R.L. Gulati, J. - (1.) THIS is a petition under Article 226 of the Constitution and the facts giving rise to it are briefly these.
(2.) THE petitioner is a partnership firm which runs a flour, oil and rice mill at Bareilly, in the name and style of M/s. Raghunandan Prasad Mohan Lal. On December, 29, 1959, it filed its return for the assessment year 1959-60 showing a net profit of Rs. 22,674. Later, a revised return was filed by it on February 1, 1962, showing a loss of Rs, 3,940, on the ground that in the earlier return the liability for sales tax had not been deducted. THE Income-tax Officer did not accept the petitioner's return and by his order dated March 30, 1964 assessed it at a net income of Rs. 82,662. THE petitioner appealed. At the time of the hearing of the appeal the Appellate Assistant Commissioner of Income-tax found that there were certain deposits in the petitioner's bank account which had not been properly explained and the partners had not withdrawn any amount from the partnership accounts for their personal expenses. THE Appellate Assistant Commissioner of Income-tax after calling for a remand report from the Income-tax Officer came to the conclusion that the petitioner had earned an income of Rs. 1,03,500 from undisclosed sources and finally computed the petitioner's total income at Rs. 1,69,350 by his order dated April 5, 1965. On the same day he issued a notice under Section 274 of the Income-tax Act, 1961, calling upon the petitioner to show cause why penalty under Section 271 (c) should not be imposed upon it for having 'concealed its income or having furnished inaccurate particulars thereof. By his order dated December 31, 1966 the Appellate Assistant Commissioner of Income-tax imposed a penalty of Rs. 52,500 which was reduced on appeal to Rs. 10,000 by the Income Tax Appellate Tribunal by its order dated December 17, 1967. One of the contentions raised by the petitioner before the Income Tax Appellate Tribunal was that Section 297 (2) (g) of the Act was ultra vires. THE Income-tax Appellate Tribunal relying upon the decision of the Supreme Court in K.S. Venkataraman and Co (P) Ltd. v. State of Madras, (1966) 60 ITR 112 = (AIR 1966 SC 1089) declined to adjudicate upon that contention of the petitioner, because the Supreme Court in that case had held that an authority constituted under a Statute was not competent to pronounce upon the validity of a provision of that Statute. THE petitioner then filed the present writ petition and amongst others, raised a ground about the constitutional validity of Section 297 (2) (g) of the Act. This petition came up for hearing before a Division Bench of this Court of which one of us was a Member. In support of his contention that Section 297 (2) (g) was ultra vires, the learned counsel for the petitioner relied upon a decision of the Bombay High Court in Shakri Offset Works v. Inspecting Asst. Commr. of Income Tax, (1967) 64 ITR 637 (Bom) and also on certain observations of the Supreme Court in Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691 and contended that an earlier decision of this Court in Income-tax Officer v. Firm Madan Mohan Damma Mal, 1968 70 ITR 293 required reconsideration. As the Bench considered the question to be of considerable importance and not free from difficulty, it referred this petition to a larger Bench and that is how it has now come up before the Full Bench. In this petition the petitioner has not only challenged the penalty proceedings, but has also challenged the orders of the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal passed in appeal against the assessment order. We cannot allow the petitioner to agitate any question relating to the assessment, because the petitioner has already availed of the statutory remedies and at its instance a reference under Section 66 (1) of the Income-tax Act, 1922 is pending in this Court. Any question arising out of the order of the Income-tax Appellate Tribunal can be decided in that reference and cannot be entertained by this Court under Article 226 of the Constitution. We shall, therefore, confine ourselves to the grounds relating to the imposition of penalty.
(3.) MR. Raja Ram Agarwal, appearing for the petitioner has attacked the imposition of penalty upon the following grounds: (1) The finding that there was concealment of income in the assessment proceedings was without jurisdiction and could not form the basis of penalty proceedings. (2) Section 297 (2) (g) of the Income-tax Act, 1961, violates Article 20 (1) of the Constitution. (3) Section 297 (2) (g) offends against Article 14 of the Constitution, and . (4) Section 271 of the Act was inapplicable in terms and the penalty order based upon that provision was, therefore, without jurisdiction. As regards the first contention, in our opinion, the petitioner is not entitled to raise the same before us. The petitioner had taken the matter in appeal before the Income-tax Appellate Tribunal and it was open to it to have raised this question before it, and in case the Tribunal decided that question against the petitioner, to have asked the Tribunal to make a reference to this Court on any question of law arising out of the order of the Tribunal. The petitioner cannot be permitted to by-pass that procedure. If the petitioner has not sought a reference against the order of the Tribunal on such a question, we cannot permit such a question to be raised before us in a petition under Article 226 of the Constitution.;