1. This is an application under Section 256(2) of the I.T. Act, 1961 (hereinafter referred to as 'the Act').
2. The material facts giving rise to this reference briefly are as follows :
For the assessment years 1974-75 and 1975-76, the assessee filed returns but did riot disclose his income from contract receipts. Afterframing assessments, the ITO received information regarding the amount of income received by the assessee from the public works department. The ITO thereupon issued notices under Section 147(b)/148 of the Act for escaped assessment. The assessee filed revised returns and the ITO completed reassessment and treated the non-disclosure of contract receipts in the original returns as concealed income and initiated penalty proceedings and levied penalty on the assessee under Section 271(1)(c) of the Act. Aggrieved by the order passed by the ITO imposing penalty, the assessee preferred appeals to the AAC. The AAC reduced the amount of penalty. On further appeal, the Tribunal dismissed the appeal and confirmed the order passed by the AAC. Aggrieved by that order, the applicant submitted an application praying that the following four questions of law be referred to this court for its opinion :
'(1) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that penalty of Rs. 12,804 levied under Section 271(1)(c) of the I.T. Act, 1961, for I.T. Year 1974-75 was justified in view of the evidence on record that the assessee had disclosed the particulars of income before detection by the ITO and which had been already subjected to tax at source
(2) Whether, on the facts and in the circumstances of the case, and on the evidence on record, the levy of penalty under Section 271(1)(c) is justified when the return filed for escaped assessment was not in response to notice under Section 148/147(b) but earlier to the service of notice under Section 148
(3) Whether, on the facts and in the circumstances of the case, and in view of the M.P. High Court decision of September 3, 1980, reported in Taxation, April, 1981, Section 1 page 8 in the case of Addl. CIT, Bhopal v. Mohandas Sewakrain, Indore (see infra) the Tribunal was correct in law in upholding the quantum of penalty levied by the ITO on the basis of law applicable to Section 271(1)(c) prior to its amendment on April 1, 1962
(4) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the default of concealment of income from contract receipts had been committed at the time of the original return filed or at the time of the revised (reassessment) return filed in pursuance of notice under Section 148 '
3. The Tribunal, by its order dated December 2, (981, referred questions Nos. 3 and 4 but rejected the application of the assessee for referring questions Nos. 1 and 2. Hence, the applicant has filed this application.
4. Having heard learned counsel for the parties, we have come to the conclusion that this application deserves to be rejected. The question as to whether the amount of penalty levied under Section 271(1)(c) of the Act for the assessment year 1974-75 was or was not justified in view of theevidence on record or in view of the fact that the assessee had filed revised returns prior to the service of notice under Section 148 of the Act, cannot be held to be a question of law. . Under the circumstances, the Tribunal was right in rejecting the prayer of the applicant in that behalf.
5. The application is, therefore, rejected. Parties shall bear their own costs of this application.