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Commissioner of Income-tax Vs. Rita Malhotra - Court Judgment

LegalCrystal Citation
Subject Direct Taxation
CourtDelhi High Court
Decided On
Case NumberIncome-tax Cases Nos. 84 to 88 of 1978
Judge
Reported in[1985]154ITR550(Delhi)
ActsIncome Tax Act, 1961 - Sections 10(6), 38, 147, 148, 256(1) and 271(1)
AppellantCommissioner of Income-tax
RespondentRita Malhotra
Excerpt:
- .....s. 271(1)(c) and imposed a penalty. on appeal, the tribunal struck down the penalty. 4. on these facts, no question of law arises, because the only case arising from the facts was that the assessed claimed deduction, which was wholly disallowed and then partly allowed. there is nothing false about the claim except that it was wrongly made in full. the assessed has a right to make any claim, which may or may not be disallowed. when the premises are partly used for business and partly for residence, the apportionment of the amount to be allowed or disallowed has to be made by the ito under s. 38 of the i.t. act, 1961. this is not a case of concealment of income and in view no question of law arises. this application and the connected applications are dismissed. as there is no appearance.....
Judgment:

Kapur, J.

1. We have examined the order of the Tribunal and the order refusing an application under s. 256(1) of the I.T. Act. The question proposed by the Department was as follows :

'Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law :

(i) in holding that penalty under section 271(1)(c) of the Income-tax Act was not exigible, and

(ii) in cancelling the penalty of Rs. 4,400 levied by the Appellate Assistant Commissioner under section 271(1)(c) of the Income-tax Act, 1961 ?'

2. This question is in ITC No. 84 of 1978. The same or similar questions are involved in the other four cases (ITCs. Nos. 85 to 88 of 1978) relating to four other assessment years.

3. The Tribunal has stated that no question of law arises on the facts of the case. What happened was that the assessed had claimed a deduction from income-tax in money-lending business in respect of the premises in which she was carrying on money-lending business. She also happened to be living in the same premises and, accordingly, the ITO disallowed the whole amount claimed for the assessment year 1967-68. The assessed appealed and went on making similar claims every year. The amount was disallowed every year in full but, on appeal, the AAC allowed a partial deduction and at the same time took action for concealment of income under s. 271(1)(c) and imposed a penalty. On appeal, the Tribunal struck down the penalty.

4. On these facts, no question of law arises, because the only case arising from the facts was that the assessed claimed deduction, which was wholly disallowed and then partly allowed. There is nothing false about the claim except that it was wrongly made in full. The assessed has a right to make any claim, which may or may not be disallowed. When the premises are partly used for business and partly for residence, the apportionment of the amount to be allowed or disallowed has to be made by the ITO under s. 38 of the I.T. Act, 1961. This is not a case of concealment of income and in view no question of law arises. This application and the connected applications are dismissed. As there is no appearance for the respondent there will be no order as to costs.


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