1. This is an application under Section 256(2) of the Income-tax Act,1961 (for short the 'Act'), by the Department requiring the Income-taxAppellate Tribunal, Cuttack Bench, Cuttack (for short the 'Tribunal'), tostate a case and refer the questions of law 'arising out of its order for theopinion of this court.
2. The opposite party-assessee is a doctor having income from salary and from private practice. He had neither maintained any books of account nor a professional diary for his professional income and such income was used to be returned on estimate. For the assessment year 1971-72, the assessee returned his professional income at Rs. 2,000 and the original assessment was completed on that basis.. Subsequently, on receipt of information from Government Departments to the effect that the assessee had received a sum of Rs. 22,724 by way of consultation and injection fees, the Income-tax Officer initiated proceedings under Section 147(a) of the Act. A notice under'section 148 of the Act was issued to the assessee in response to which he reiterated that his professional income was Rs. 2,000 for the year under consideration because he had not received the entire amount for which he had issued certificates but only a small portion being consultation fees only and the major portion was given to the doctors who gave injections. This was not believed by the Income-tax Officer. The total income of the assessee was assessed at Rs. 26,430 as against the returned income of Rs. 8,433. Penalty proceeding under Section 271(1)(c) of the Act was initiated against him. The assessee examined two witnesses in support of his contention that he had received consultation fees only and not injection fees. This was not accepted and ultimately penalty of Rs. 16,720 was imposed on him which was confirmed by the Appellate Assistant Commissioner on appeal. The assessee carried a second appeal to the Tribunal and the Tribunal held that there were no materials for coming to the conclusion that the assessee had either concealed his income or committed fraud or wilful neglect in returning the correct income. He has supported his stand by adducing evidence which, has not been controverted by the Department. Ultimately, the Tribunal set aside the order imposing the penalty and allowed the appeal. Against this, an application under Section 256(1) of the Act was filed before the Tribunal which was rejected. Hence, the present application.
3. The main contention of the learned counsel for the Department is that the assessee has given receipts for the amount he has received which go to show that, in fact, he has received the amount and now he cannot turn round and say that he has not received the same amount and it was received by somebody else. It is further contended that the assessing officer found that the professional income that was returned was not correct. The total income was reassessed and determined by him. The reassessment has not been challenged by the assessee.
4. On the other hand, learned counsel for the assessee submitted that without a finding that the assessee has deliberately concealed the income or furnished false particulars, penalty cannot be imposed. The assessee has discharged his onus that he has not received the entire amount. This fact has been accepted by the Tribunal. So no question of law is involved in this case. The question now raised is a question of fact.
5. The Tribunal after considering the facts and circumstances of the case and the evidence adduced on behalf of the assessee, came to a definite conclusion that there is no material to hold that the assessee has either concealed his income or committed fraud or wilful neglect by returning the correct income. The assessee has also discharged his onus by proving that he has not received the entire amount and that he has not received the injection fees by adducing evidence which was not challenged by the Department. The Department has not produced anything more, except relying on the receipts, to show that the assessee has given a false return. The evidence adduced by the assessee has also not been rebutted.
6. After hearing counsel for both sides and considering the facts and circumstances of the case, we are of the view that no question of law arises out of the order of the Tribunal for consideration by this court. This S. J. C. application is, therefore, dismissed. No costs.