The judgment of the court was delivered by
M. C. DESAI C.J. - This is statement of a case submitted to this court by the Income-tax Appellate Tribunal at the assessees instance under section 66(1) of the Indian Income-tax Act read with section 21 of the Excess Profits Tax Act, the question formulated by the Tribunal being :
'Whether, in the facts and circumstances of the case, the imposition of penalty under section 16 of the Excess Profits Tax Act was legally correct ?'
The fact are very simple. During the assessment proceedings under the Income-tax Act and the Excess Profits Tax Act, the assessing authorities found that the assessee had undisclosed income of Rs. 30,400 out of its business. This income had been concealed from the returns filed under the two Acts. The assessing authorities included this amount in the assessable incomes under the two Acts. Then the assessing authorities imposed a penalty of Rs. 2,500 under section 28(1)(c) of the Income-tax Act and subsequently, another penalty of Rs. 2,500 under section 16 of the Excess Profits Tax Act. The assessee appealed against the penalty orders and the Tribunals maintained both the penalty orderi Then at his instance it has stated the case to this court.
There is nothing illegal in the imposition of the penalty under section 16 of the Excess Profits Tax Act when the Tribunal found that the assessee had concealed income from its business. The amount is less than the prescribed minimum. No illegality in the levy of the penalty under section 16 of the Excess Profits Tax Act was pointed out to us except this that, after a penalty had been imposed under section 28(1)(c), Income-tax Act, another penalty under section 16 of the Excess Profits Tax Act could not be imposed. There is nothing in section 16 of the Excess Profits Tax Act to suggest that no penalty can be imposed under it if a penalty under section 28(1)(c) of the Income-tax Act has been imposed for the same concealment. The two Acts are different and it is possible for two penalties being imposed, one under each Act. Actually, there were two concealments in the instant case, one concealment from the return filed under the Income-tax Act and the other concealment from the return filed under the Excess profit Tax Act. When there were two concealments, the assessee could be saddled with two penalties. There is no support for the contention advanced before us that when one penalty was imposed the whole concealment was wiped off and that no penalty could be imposed under the other Act subsequently. The first penalty imposed was for the concealment done under the Income-tax Act and was a penalty only for that concealment, it had no effect at all on the other concealment under the Excess Profits Tax Act, and it certainly was not wiped off by the imposition of the earlier penalty. We, therefore, answer the question in the affirmative and direct that a copy of this judgment shall be sent to the Income-tax Appellate Tribunal under the seal of the court and the signature of the Registrar as required by section 66(5) of the Income-tax Act read with section 21 of the Excess Profits Tax Act. We further direct that the Commissioner of Excess Profits Tax shall get his costs of this reference which we assess at Rs. 200 from the assessee. Counsels fee is also assessed at Rs. 200
Question answered in the affirmative.