INDIA SEA FOODS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a petition filed under Section 256(2) of the Income-tax Act, 1961 (hereinafter called "the Act"), praying that a direction should be issued by this court to the Income-tax Appellate Tribunal, Cochin Bench (hereinafter referred to as "the Tribunal"), to draw up a statement of the case and refer to this court the following questions, which are said to arise out of the order dated 18th June, 1974, passed in I.T.A. No. 405/Coch/71-72 :

(2.) THE assessee who is the petitioner before us had applied to the Tribunal as per an application, R.A. No. 50/Coch/74-75, filed under Section 256(1) of the Act to refer the aforementioned question to this court. That application was rejected by the Tribunal by its order dated 28th September, 1974, a copy of which has been produced along with the original petition as annexure "5".

(3.) AGAINST the said order imposing the penalty the assessee filed an appeal before the Income-tax Appellate Tribunal, Cochin Bench. One of the principal contentions put forward by the assessee in that appeal was that there was no evidence before the department to show that the assessee had concealed particulars of its income and the mere fact that in the agreement evidencing the settlement there was a clause stating that the department can levy against the assessee the minimum penalty, would not confer jurisdiction on the Inspecting Assistant Commissioner to levy a penalty under Section 271(1)(c) of the Act in the absence of clear and positive proof that the assessee had either concealed particulars of its income or furnished inaccurate particulars of such income. The Tribunal rejected the said contention and held that penalty was imposable against the assessee. Notwithstanding the said finding, it, however, allowed the assessee's appeal upholding another contention put forward by the assessee that the total income computation in the order of assessment circumscribes the quantum of concealment in penalty proceedings and since certain claims for deduction put forward by the assessable income as determined in the assessment year had been disallowed in the assessment order, it was not possible to hold that there was a concealment by the assessee in respect of Rs. 18,460 which was the amount of the total income determined in the assessment year. It is for canvassing the correctness of the finding entered by the Tribunal against the assessee on the first point that the assessee seeks to get the matter referred to this court.