Rajasthan High Court - Jaipur
Commissioner Of Income Tax vs Birbal Khan Chandan Khan And Party on 18 October, 2004
Equivalent citations: (2005)195CTR(RAJ)252
Author: Ajay Rastogi
Bench: Ajay Rastogi
JUDGMENT
1. We have heard learned counsel for the parties and perused the material placed before us.
2. This is an application under Section 256(2) of the IT Act, 1961. The Tribunal has found that no substantial question of law arises out of its appellate order dt. 19th Dec., 1994 by which the penalty of Rs. 1,23,062 in respect of additions made in the assessment had been deleted.
3. In the facts and circumstances of the case, we are satisfied that the substantial questions of law do arise out of Tribunal's order dt. 11th July, 1995, and the finding of the Tribunal that no substantial question of law arises out of its appellate order dt. 19th Dec., 1994 is erroneous and the application deserves to be allowed.
4. According to the applicant--the CIT, following substantial questions of law do arise out of Tribunal's order :
"(1) Whether, on the facts and in the circumstances of the case, the learned Tribunal is legally justified in cancelling the penalty of Rs. 1,23,062 imposed under Section 271(1)(c) ?
(2) Whether the Tribunal is right in cancelling the penalty under Section 271(1)(c) by entertaining a fresh plea of the assessee which was never taken before the authorities below ?
(3) Whether the Tribunal is right in observing that the penalty is not to be levied for falsity or inconsistency in its plea but for the default of concealment which has not been proved in the case, ignoring the acceptance of the fact by the Bench that the particulars furnished by the assessee before the AO or the learned CIT(A) were inaccurate and false ?
(4) Whether, on the facts and in the circumstances of the case, the Tribunal's order is not perverse ?
(5) Whether the CIT(A), Jodhpur's order dt. 6th Dec., 1989 in Appl. No. 1/1988-89 which stands final and in which it was held that the assessee did not disclose the closing stock of empty bottles worth Rs. 2,19,065 was not a conclusive and sufficient evidence for sustaining the penalty of Rs. 1,23,062 under Section 271(1)(c) by the Tribunal ?
(6) Whether there was any evidence before the Tribunal to accept the assessee's changed stand to take a view that there was no suppressed closing stock of empty bottles and to come to the conclusion that penalty under Section 271(1)(c) was not leviable ?"
5. Having considered the aforesaid questions, we are of the opinion that they do not comprehensively give out the controversy which really arise for consideration by this Court, but only refer to different aspects. As a matter of fact, the substantial question of law, which in our opinion, arises for consideration in connection with the aforesaid controversy is as under :
"Whether, on the facts and in the circumstance of the case, the finding recorded by the Tribunal about the plausibility of the explanation furnished by the assessee to explain the additions of Rs. 1,23,062 in the assessment order is based on no material and is perverse ?"
6. Accordingly, this application is allowed and we direct the Tribunal to state the case and refer the aforesaid question of law renamed by us for the opinion of this Court. No costs.