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Union Engineering Co. Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberIncome-tax Reference No. 21 of 1978
Judge
Reported in(1980)14CTR(Ker)146; [1980]122ITR719(Ker)
ActsIncome Tax Act, 1922 - Sections 28(1); Income Tax Act, 1961 - Sections 139(5) and 271(1)
AppellantUnion Engineering Co.
RespondentCommissioner of Income-tax
Appellant Advocate K.S. Paripoornan and; G. Sivarajan, Advs.
Respondent Advocate P.K.R. Menon, Adv.
Excerpt:
.....income - filing of revised return not relevant factor to be considered before imposing penalty - assessee concealed particulars of income within meaning of section 271 (1) (c) - case of imposition of penalty made out with consideration of relevant facts and circumstances - question answered in affirmative. - - act, 1961, reads :271. failure to furnish returns, comply with notices, concealment of income, etc. --(1) if the income-tax officer or the appellate assistant commissioner or the commissioner (appeals) in the course of any proceedings under this act, is satisfied that any person--(c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty,-(iii) in the cases referred to in..........or deducted in computing the loss in the assessment of such person for any earlier assessment year or years but in respect of which no penalty under clause (iii) of this subsection had been levied, that part of the amount so added or deducted in such earlier assessment year immediately preceding the year in which the receipt, deposit, outgoing or investment appears (such earlier assessment year hereafter in this explanation referred to as the first preceding year) which is sufficient to cover the amount represented by such receipt, deposit or outgoing or value of such investment (such amount or value, hereafter in this explanation referred to as the utilised amount) shall be treated as the income of the assessee, particulars of which had been concealed or inaccurate particulars of.....
Judgment:

Gopalan Nambiyar, C.J.

1. The following questions of law have been directed to be referred by the Tribunal under Section 256(2) of the I.T. Act, 1961 :

' 1. Whether, on the facts and in the circumstances of the case, the hon'ble Tribunal was justified in holding that the provision of Section 28(1)(c) of the old Act corresponding to Section 271(1)(c) of the new Act are attracted in this case,

2. Whether, on the facts and in the circumstances of the case, the hon'ble Tribunal is correct in imposing a penalty although a revised return was filed before the close of the assessment giving out full and complete disclosure of the income ?

3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in restricting the penalty to 100% of the tax sought to be avoided '

2. The assessee is a manufacturer of tea chest fittings front tin plates imported under licence issued under the Kerala Small Scale Industries Scheme. The assessment year, with which we are concerned, is 1961-62, and for the accounting year ended on May 31, 1960, the assessee filed a return of income on May 30, 1962, showing the total income as Rs. 23,947. This worked out to a gross profit of 31.7% on a turnover of Rs. 1,04,604. Out of the tin plates purchases of the year ended May 31, 1960, relevant to the assessment year 1961-62, the assessee had deposited 38 tons of tin sheets on November 3, 1959, with the State Bank of India as security for key loan facilities. The stocks were released by the bank between March 12, 1960, and May 14, 1960, in three instalments, the last being 24'5 tons released on May 14, 1960. On November 26, 1965, the assessee produced the books of account for the year ended May 31, 1960, and these were examined by the ITO. The officer found that there were manipulations in the accounts to a considerable extent by short-crediting sales. The day book and the ledger were impounded and also the file containing the sale bills. By letter dated December 9, 1965, the ITO wrote to the assesseeabout the serious irregularities disclosed, and gave an opportunity to the assessee to explain the shortage, and hearing was fixed for December 20, 1965. On that day, the assessee replied to the officer that the fittings manufactured prior to May 13, 1960, which was for the period from June 1, 1959 to May 13, 1960, were out of tin sheet cuttings taken on loan from Janab V. Ibrahim Kutty and Janab Abdul Azeez of Quilon. The ITO issued summons to these two persons to appear before him with books of account for the relevant year. On December 29, 1965, the assessee wrote to the officer not to examine the two witnesses and admitting that the stocks declared for the assessment purposes as on May 31, 1960, were at variance with the actual stock. The assessee also furnished details of the stock not accounted for in the books of account amounting to Rs. 24,760. Along with his letter dated December 29, 1965, the assessee also enclosed a revised return showing a total income of Rs. 47,406 inclusive of the unaccounted stock. The assessment was completed by the officer on December 31, 1965, on a total income of Rs. 56,006. The total income was reduced as a result of the appeals preferred eventually to Rs. 50,206.

3. On these facts, the IAC of Income-tax concluded that the assessee had not disclosed in the original return dated May 30, 1962, correct particulars of income and had concealed its income to a substantial extent and levied a penalty of Rs. 20,000 equal to about 120% of the amount of tax sought to be avoided under Section 271(1)(c) of the I.T. Act, 1961. This was confirmed in appeal by the Income-tax Appellate Tribunal, which reduced the quantum of penalty to Rs. 13,000, amounting to 100% of the tax sought to be avoided. At the instance of the assessee, the questions of law quoted earlier have been compelled to be referred by the Tribunal.

4. Section 271(1)(c) of the I.T. Act, 1961, reads :

' 271. Failure to furnish returns, comply with notices, concealment of income, etc.--(1) If the Income-tax Officer or the Appellate Assistant Commissioner or the Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any person--...

(c) has concealed the particulars of his income or furnished inaccurate particulars of such income,

he may direct that such person shall pay by way of penalty,--...

(iii) in the cases referred to in Clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income :

Provided that, if in a case falling under Clause (c), the amount of income (as determined by the Income-tax Officer on assessment) in respect of which the particulars have been concealed or inaccuaate particulars havebeen furnished exceeds a sum of twenty-five thousand rupees, the Income-tax Officer shall not issue any direction for payment by way of penalty without the previous approval of the Inspecting Assistant Commissioner.

Explanation 1.--Where in respect of any facts material to the computation of the total income of any person under this Act,--

(A) such person fails to offer an explanation or offers an explanation which is found by the Income-tax Officer or the Appellate Assistant Commissioner or the Commissioner (Appeals) to be false, or

(B) such person offers an explanation which he is not able to substantiate,

then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of Clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed :

Provided that nothing contained in this Explanation shall apply to a case referred to in Clause (B) in respect of any amount added or disallowed as a result of the rejection of any explanation offered by such person, if such explanation is bona fide and all the facts relating to the same and material to the computation of his total income have been disclosed by him.

Explanation 2.--Where the source of any receipt, deposit, outgoing or investment in any assessment year is claimed by any person to be an amount which had been added in computing the income or deducted in computing the loss in the assessment of such person for any earlier assessment year or years but in respect of which no penalty under Clause (iii) of this subsection had been levied, that part of the amount so added or deducted in such earlier assessment year immediately preceding the year in which the receipt, deposit, outgoing or investment appears (such earlier assessment year hereafter in this Explanation referred to as the first preceding year) which is sufficient to cover the amount represented by such receipt, deposit or outgoing or value of such investment (such amount or value, hereafter in this Explanation referred to as the utilised amount) shall be treated as the income of the assessee, particulars of which had been concealed or inaccurate particulars of which had been furnished for the first preceding year ; and where the amount so added or deducted in the first preceding year is not sufficient to cover the utilised amount, that part of the amount so added or deducted in the year immediately preceding the first preceding year which is sufficient to cover such part of the utilised amount as is not so covered shall be treated to be the income of the assessee, particulars of which had been concealed or inaccurate particulars of which had been furnished for the year immediately preceding the first preceding year and so on, until the entire utilised amount is covered by the amounts so added or deducted in such earlier assessment years.

Explanation 3.--Where any person who has not previously been assessed under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, fails without reasonable cause, to furnish within the period specified in Sub-clause (iii) of Clause (a) of Sub-section (1) of Section 153 a return of his income which he is required to furnish under Section 139 in respect of any assessment year commencing on or after the 1st day of April, 1974, and, until the expiry of the period aforesaid, no notice has been issued to him under Sub-section (2) of Section 139 or Section 148 and the Income-tax Officer or the Appellate Assistant Commissioner or the Commissioner (Appeals) is satisfied that in respect of such assessment year such person has taxable income, then, such person shall, for the purposes of Clause (c) of this sub-section, be deemed to have concealed the particulars of his income in respect of such assessment year, notwithstanding that such person furnishes a return of his income at any time after the expiry of the period aforesaid in pursuance of a notice under Section 148.

Explanation 4.--For the purposes of Clause (iii) of this sub-section, the expression ' the amount of tax sought to be evaded ',--

(a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished exceeds the total income assessed, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income :

(b) in any case to which Explanation 3 applies, means the tax on the total income assessed ;

(c) in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished. '

5. The ground of action in this case is that the assessee had concealed the particulars of his income. Counsel for the assessee raised two contentions : that in order to attract a penalty under the terms of this section, mere concealment of income would not suffice, and that there must be a finding that there was a conscious concealment of income. Secondly, that in imposing a penalty and fixing a quantum thereof, the fact that a revised return had in fact been filed by the assessee was at least a relevant factor to be taken into account by the assessing authority, which has not been done in the instant case.

6. In support of the first of the contentions that the concealment was not a conscious concealment, counsel for the assessee relied upon a decision of the Madras High Court in Radha Rukmani Ammal v. CIT [1957] 31 ITR 704 atpp. 708 & 709. There, it was ruled by the Madras High Court with respect to Section 28(1)(c) of the Indian I.T. Act, 1922 (practically on the same terms as Section 271(1)(c) of the present Act) that penalty can be levied only if there was concealment of which the assessee was conscious and the concealment was from the assessing authority. At page 708, the court observed as follows :

' The concealment penalised under Section 28 must be concealment of which the assessee is conscious. Further it must be a concealment from the assessing authority, for example, the Income-tax Officer.'

7. Again at page 709, the Madras High Court observed that there was no finding nor any material for finding that the assessee had deliberately furnished inaccurate particulars of the income he had received and that the specific finding was that the assessee was not conscious of any concealment. This aspect was elaborated further in the course of the discussion in the judgment. The counsel also relied on the observations of the Supreme Court in Anwar Ali's case : [1970]76ITR696(SC) . While discussing the scope of Section 28 of the Indian I.T. Act, 1922, the court observed (p. 701) :

' It must be remembered that the proceedings under Section 28 are of a penal nature and the burden is on the department to prove that a particular amount is a revenue receipt. It would be perfectly ligitimate to say that the mere fact that the explanation of the assessee is false does not necessarily give rise to the inference that the disputed amount represents income. It cannot be said that the finding given in the assessment proceedings for determining or computing the tax is conclusive. However, it is good evidence. Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate parti-culers. '

8. Counsel for the assessee stressed the emphasis laid on the element of ' conscious concealment' as the ingredient attracting liability under the section. In CIT v. J. K. A. Subramania Chettiar : [1977]110ITR602(Mad) , the Madras High Court discussed the meaning of the words ' has concealed the particulars of his income ' and observed thus (p. 608) :

' It is implicit in the word ' concealed ' that there has been a deliberate act on the part of the assessee. The meaning of the word ' concealment ' as found in the Shorter Oxford English Dictionary, third edition, volume I, is as follows :

' In law, the intentional suppression of truth or fact known, to the injury or prejudice of another. 'Consequently, there can be no doubt, with reference to the facts stated above, that both in the first return as well as in the second return theassessee' had intentionally and deliberately concealed the particulars of his income.'

9. In the light of these and similar observations in some other decisions, counsel for the assessee contended that there had been no finding in this case that there was a conscious concealment by the assessee. We are unable to agree. The Tribunal as well as the IAC have noted the facts leading to the imposition of the penalty, and after setting out the facts, the Tribunal recorded its finding at the end of para. 5 that the assessee-firm had concealed the particulars of its income and furnished inaccurate particulars of such income within the meaning of Section 271(1)(c) of the I.T. Act, 1961. On the facts disclosed and the circumstances shown, we are satisfied that this finding meets the requirements of law and cannot be attacked as being vitiated or defective.

10. It was next contended that the Tribunal was wrong in having completely ignored that the assessee had filed a revised return under Section 139(5) of the I.T. Act. Section 139(1) imposes upon a person whose total income exceeds the maximum amount not chargeable to income-tax, a duty to file a return in the prescribed form and verified in the prescribed manner setting forth such other particulars of his income as are prescribed. Section 139(5) is as follows :

'139. (5) If any person having furnished a return under Sub-section (1) or Sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made.'

11. What is pointed out by the counsel for the revenue is that Section 139(5) contemplates a case of revised return voluntarily by the assessee himself when he discovers any omission or any wrong statement in the return filed by him under Sub-section (1) or Sub-section (2) of the section, and not a case of a return having been practically forced on the assessee when pressed by events and circumstances such as what are disclosed herein and under the imminence of imposition of a penalty. We think the submission made by the counsel for the revenue is correct. We have already detailed the facts and circumstances. 'The officer had issued summons to examine two persons mentioned by the assessee. It was then that the assessee wrote on December 29, 1965, to drop the examination of the two persons and admitting the discrepancy between the stock declared and the actual stock. In the circumstances, it cannot be held that the revised return was one under Section 139(5) of the Act, and the Tribunal was not wrong in not having taken the revised return into account. Noticing the contention of the counsel for the assessee, the Tribunal ruled to this effect, with reference to the Bombay decision in Vadilal Ichhachand v. CIT : [1957]32ITR569(Bom) . It was there pointed out that the assessee's contumacy in deliberately having omittedto file an original return disclosing the correct and accurate particulars cannot be got rid of by merely filing a revised return and that penalty would be attracted despite the fact that the original return has been subsequently corrected by a revised return. The Tribunal noticed the decision of the Madras High Court in Sivagaminatha Moopanar & Sons v. CIT : [1964]52ITR591(Mad) . It was held that the assessee at the time of submitting the original return intended to conceal a part of his income, or deliberately gave false particulars at that time, and the mere fact that he subsequently rectified the omission by giving full particulars, would not avoid the applicability of Section 28(1)(c) of the Act. Counsel for the assessee relied on CIT v. Ramdas Pharmacy : [1970]77ITR276(Mad) . That decision reiterated the principle that filing a revised return under Section 22(3) of the 1922 Act will not expiate the contumacious conduct on the part of the assessee, in not having disclosed the'true and correct income in the original return. It proceeded to add that it is not correct to say that the filing of the second return is of no consequence at all, while considering the liability of the assessee under Section 28(1)(c) of the Act. All the facts and circumstances, commencing with the filing of the original return and ending with the assessment, may be taken as relevant fqr considering the assessee's liability for penalty under Section 28(1)(c) of the Act. The principle enunciated was followed by the Gujarat decision in D. V. Patel & Co. v. CIT : [1975]100ITR524(Guj) . The principle of these decisions do not go quite to the limit to which the assessee wants us to stretch. They do not state that in every case the filing of a revised return is a relevant factor to be taken into account befdre imposing a penalty. They only say that the imposition of the penalty can only be on a conspectus of all the facts and circumstances. Even accepting the principle of these decisions, we are not satisfied that in the instant case the imposition of the penalty has been made without consideration of relevant facts and circumstances.

12. Counsel for the revenue invited our attention to the Full Bench decision of this court in CIT v. Gujarat Travancore Agency : [1976]103ITR149(Ker) to the effect that mens rea is not a necessary element for the imposition of penalty under Section 271(1)(a) of the I.T. Act, 1961. The argument was that, in such circumstances, there will be no warrant to investigate whether the concealment was a conscious or intentional concealment as expressed in some of the decisions. There is force in the submission. Whatever that be, in the circumstances, we are satisfied that the finding that the assessee had concealed the particulars of his income meets the requirements of Section 271(1)(c) of the Act.

13. In the result, we answer questions Nos. (1) and (2) in the affirmative, that is, in favour of the revenue and against the assessee. Question No. (3) relates to the quantum of the penalty. That is essentially in the discretionof the Tribunal. We answer this question in the affirmative, that is, in favour of the revenue and against the assessee. There will be no order as to costs.

14. A copy of this judgment under the seal of the court and the signature of the Registrar will be communicated to the Tribunal, as required by law.


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