D.S. Tewatta, J. - (1.) THE ITO, vide his order dated 30th March, 1976, initiated penalty proceedings against the assessee-firm in view of his express finding in the assessment order of the same date that the assessee-firm had concealed certain items of income for the year 1973-74. THE ITO thereafter made a reference to the IAC for imposing penalty as the amount of concealed income exceeded the sum of Rs. 25,000 in which event only the IAC had the jurisdiction to impose penalty.
(2.) THE IAC vide his order dated 27th January, 1979, imposed a penalty of Rs. 20,500. THE assessee-firm challenged his order in appeal before the Income-tax Tribunal wherein the jurisdiction of the IAC to levy penalty was questioned in view of the deletion of Section 274(2) of the I.T. Act (hereinafter referred to as "the Act"), with effect from April 1, 1976. THE Tribunal dismissed the appeal holding t'hat the IAC had the jurisdiction to levy penalty in view of the binding Division Bench judgment of this court in CIT v. Raman Industries [1980] 121 ITR 405. The assessee-firm thereafter applied to the Tribunal, under Section 256(1) of the Act, to refer the following three questions for the decision of the High Court: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the IAC of Income-tax was competent to levy penalty under Section 271(1)(c) of the Income-tax Act ? (2) If the answer to question No. (1) is in the affirmative, whether, on the facts and in the circumstances of the case, the levy of penalty under Section 271(1)(c) is valid and justified ? (3.) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was a clear finding of concealment given by the ITO in the assessment order in respect of the items of Rs. 14,000 and Rs. 6,500 ?" The Tribunal referred question No. (1) only and the present reference, therefore, deals with the said question. In our view, once the Tribunal noted that there existed a binding decision of this court in the light whereof the Tribunal had no option but to hold that the IAC did have the jurisdiction to levy penalty despite the factum of amendment in question, the Tribunal could not have referred that question for the decision of this court as that tantamounted to its questioning the correctness of the binding decision of this court. A Division Bench of this court in CIT v. Shiv Parshad [1984] 146 ITR 397 (P & H) has expressly ruled that if a binding decision of this court covers a question sought to be referred to the High Court then so far as the Tribunal is concerned no referable question can be said to arise even if the given question raises a question of law. We entirely concur with the view that the Division Bench in Shiv Parshad's case has taken and, therefore, return the question unanswered.
(3.) THE learned counsel for the assessee-firm sought to challenge the correctness of this court's decision in Raman Industries' case [1980] 121 ITR 405. THE decision in that case has been followed and approved by the later two Division Benches in CIT v. Sadhu Ram [1981] 127 ITR 517 (P&H) and CIT v. Mela Ram Jagdish Rai & Co. [1981] 132 ITR 897 (P & H). In view of the consistent view of this court, we see no reason to doubt the correctness of the view taken in Raman Industries' case. In view of the above, the reference is returned unanswered. No costs.;