- (1.) THE Income -tax Appellate Tribunal, Allahabad Bench, Allahabad, has referred the following question of law under Section 256(1) of the Income -tax Act, 1961 (hereinafter referred to as 'the Act'), for opinion to this court: Whether, on the facts and in the circumstances of the case, the hon'ble Income -tax Appellate Tribunal was justified in holding that the conditions laid down in Explanation 5(2) to Section 271(1)(c) were fulfilled and no penalty was leviable under Section 271(1)(c) of the Income -tax Act, 1961? The reference relates to the assessment year 1990 -91.
(2.) BRIEFLY stated the facts giving rise to the present reference are as follows. On facts, a search took place on the premises of the assessee and his brother Shri Pramod Kumar Maheshwari on May 9, 1989. Cash amounting to Rs. 10,000 each was surrendered by the assessee and his wife. Incidentally, the surrender was made not by the assessee but by his father Shri Bhagwan Das Maheshwari. The assessment was completed on the strength of the surrendered amount and rested at that; no appeal was filed. Penalty was imposed by the Assessing Officer on the count that the cash surrendered was not found recorded in the books of account of the assessee in the manner in which such income had been utilised, was also not specified in the relevant statement under Section 132(4). Taking aid of Explanation 5 appended to Clause (c) of Sub -section (1) of Section 271 penalty in a sum of Rs. 26,090 was imposed which has been sustained during the first appeal. This penalty was deleted by the Tribunal. In doing so, the Tribunal mainly took into consideration the fact that in the case of the assessee as well as in his brother's case surrender was made by their father and not the assessee from whom enquiries were never made. The view that in a situation like this, penalty was also not imposable, found support from several decisions including a decision of the Allahabad Benches in the case of Shri Radha Kishan Goel decided on July 31, 1992, in I.T.A. No. 207(Alld.) of 1992.
(3.) WE have heard Shri A.N. Mahajan, learned standing counsel appearing for the Revenue. We find that this Court in the case of CIT v. Radha Kishan Goel : [2005]278ITR454(All) has upheld the order of the Tribunal where it was held that if the conditions laid down in Explanation 5(2) to Section 271(1)(c) of the Act were fulfilled, no penalty was leviable thereunder.;