ADDITIONAL COMMISSIONER OF INCOME TAX Vs. GURBHACHAN SINGH

JUDGEMENT

(1.) THE question raised in this IT Ref. is one that has arisen on several occasions earlier. The provisions of S. 271(1)(c) of the INCOME TAX ACT, 1961, as they originally stood, fixed the minimum penalty at 20 per cent. of the tax sought to be evaded, but by an amendment in 1968, the minimum penalty was changed to 100 per cent. of the concealed income. In several cases, a return of income has been filed which has not revealed the entire taxable income. These returns have been filed before the amendment of 1968. However, in some cases a revised return and in some cases a return consequent to reopening of the assessment under ss. 147 and 148 of the Act has been filed after the amendment became operative. In these cases, a question has arisen as to whether the penalty should be imposed on the basis of the first return or on the basis of the second return. Some judgments have taken the view that it is the last return which has to be seen because the concealment is also present in the last return. On the other hand, other judgments have taken the view that the concealment took place in the first return and hence, it is the date of the first return that determines the quantum of penalty.

(2.) THE question referred in this case to us is as follows :

(3.) HOWEVER , in another judgment of this Court CIT vs. Mohan Dass Hassa Nand (1983) 36 CTR (Del) 153 : (1983) 141 ITR 203 (Del), this point was left open. In that case, a return was filed under S. 148 repeating the same concealment that was present in the original return. Bat, before the filing of the return, the assessee had himself made a voluntary disclosure in September, 1967. The Court came to the conclusion that the concealment was known to the Department before the return was filed and, consequently, the only concealment within the meaning of S. 271(1)(c) which could be acted upon was made in the original return. In yet another case, CIT vs. Kulwant Kaur (ITR No. 197 of 1976, decided on May 29, 1984 -(1984) 41 CTR (Del) 343 : (1985) 156 ITR 70 (Del)), the question was whether the date of the concealment was the date of the original return or the date of the revised return. The revision of the return in that case was about certain other particulars, so the Tribunal had held that filing of the revised return made no difference and the actual concealment was on the date of the original return. This view was upheld on the findings of the Tribunal.