- (1.) BY this application made under S. 256(2), the applicant requires us to direct the Tribunal to refer the following question for opinion of this Court : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting the penalty of Rs. 65,500 imposed under S. 271(1)(c) of the IT Act and holding that the assessee could not be subjected to charge of concealment of income as envisaged by the legislature in s. 271(1)(c)?"
(2.) WE have gone through the order of the Tribunal. The facts as found by the Tribunal are that the assessee-company engaged in the business of dealing in television and typewriter, etc., filed duly audited accounts under S. 44-AB of the IT Act, 1961 (briefly, the Act). The due date for filing return under S. 139(1) of the Act was 30th June, 1985. Before the return could be filed, a special survey was conducted on 31st May, 1985, on the business premises of the assessee. Originally, the return was filed showing a loss of Rs. 24,400. During the course of assessment proceedings, the assessee was required to give quantitative tally of television sets, inter alia. At that time, it transpired that whereas the purchase of 25 television sets valued at Rs. 70,731 from Uptron India Ltd. had duly been accounted for at the end of the year, the corresponding stock was not included in the value of closing stock. The explanation of the assessee was that it always declared such stock on physical verification, and as 25 television sets did not reach the assessee's business premises at the close of the accounting year, the same was not reflected in the closing stock. The assessee explained that it had no intention of suppressing its income as 25 television sets had been duly entered in the relevant stock register which was seized by the special survey team conducted on 31st May, 1985, and that the sale of 25 television sets was duly accounted in the subsequent year. On these facts, the Tribunal found as follows: "....The sale of such TV sets was also found to be accounted for in the books of accounts, although of the subsequent year, at the time of survey on 31st May, 1985. Inclusion of sale of such TV sets in the subsequent year, had naturally gone to increase the income of that year against which set off was claimed in the asst. yr. 1986-87 by increasing the value of opening stock and such a set off was duly allowed also. It is, therefore, not correct to say, as has been held by the learned CIT(A) that there was manipulation and such a manipulation would have gone unnoticed, had the AO not investigated and gone through the books of account carefully. In the peculiar circumstances of the case, the said sum of Rs. 70,731 could not have been said to be an item of concealment for the purpose of S. 271(1)(c).... Therefore, on a consideration of totality of facts and circumstances of the case, we came to the conclusion that the omission to include the item aggregating Rs. 95,957 was not in anyway fraudulent nor there was any wilful act at the part of the appellant, aimed at concealment of income and we have no option but to hold that the appellant could not be subjected to charge of concealment of income as envisaged by the legislature in S. 271(1)(c). Therefore, on consideration of totality of facts and circumstances of the case, we hold that the penalty under s. 271(1)(c) was not leviable and we decide accordingly." The question for consideration before the Tribunal was whether on the facts and circumstances of the case, the assessee could be held guilty of the charge of concealment. Upon considering the facts and circumstances of the case, the Tribunal reached the conclusion that there was no wilful concealment on the part of the assessee.
(3.) THE question whether there was wilful concealment on the part of the assessee or not, is a question of fact, as it has been so held by the apex Court in several cases. We are, therefore, of the view that the aforementioned question is not a question of law. The application is, accordingly, rejected. ***** Copyright 2000 Current Database Media, All Rights Reserved.;