Calcutta High Court
Commissioner Of Income-Tax-Xvi vs Shri Ram Naresh Agarwal (Huf) on 30 March, 2010
Author: Sengupta
Bench: Sengupta
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income-tax)
Original Side
Present :
The Hon'ble Justice Sengupta
And
The Hon'ble Justice Kalidas Mukherjee
30.03.2010
ITA 42 of 2010
Commissioner of Income-tax-XVI, Kolkata
Vs.
Shri Ram Naresh Agarwal (HUF)
The Court :- In terms of our earlier order supplementary affidavit has been filed wherein
the proposed question of law which claimed to be substantial one has been stated. Those proposed
questions of law are as follows :-
"I) Whether on the facts and in the circumstances of the case of the Income Tax
Appellate Tribunal, erred in law in up-holding the order of the Commissioner of Income Tax
(Appeal) deleting/cancelling the penalty of Rs. 7,50,000/- imposed by the Assessing Officer under
section 271(1)(c ) of the Income Tax Act, 1961, without appreciating the fact and circumstances
under which the addition was made on account of unexplained cash credit under Section 68 of
Income Tax Act, 1961 ?
II) Whether on the facts and in the circumstances of the case of the Income Tax
Appellate Tribunal, erred in law in up-holding the order of the Commissioner of
Income Tax (Appeal) deleting/cancelling the penalty of Rs.7,50,000/- imposed
by the Assessing Officer under section 271(1)(c ) of the Income Tax Act, 1961
on the ground that the same is not leviable as the respondent/assessee had
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voluntarily offered the amount of gift for taxation, thereby ignoring the detailed investigations which forced the assessee to surrender ?"
On reading of the judgment of the learned Tribunal and the Commissioner we are of the view that no question of law involved in this matter since the Commissioner and the learned Tribunal after appreciating the facts and circumstances felt that imposition of penalty of Rs. 7,50,000/- was not warranted as it was held that the same was not leviable because respondent/assessee has voluntarily offered the amount of gift for taxation. According to us imposition of penalty is levied only when there is wilful, deliberate attempt to evade tax and/or concealment of income. Penalty is a measure when there is some wilful default, and where there is no element of mensrea in technical sense question of taking penal measure does not arise. Both the authorities below on the fact found that there is no element of mensrea. We think that the decision of deleting of amount of penalty was just and proper. The questions sought to be raised herein therefore do not need any scrutiny of this Court. We, therefore, dismiss the appeal.
All parties shall act on a xerox signed copy of this order on usual undertakings.
(Sengupta, J.) (Kalidas Mukherjee, J.) ANC.3