ARYA CONFECTIONARY WORKS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BY a reference, Misc. Civil Case No. 74 of 1979, under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), the Income-tax Appellate Tribunal, Indore Bench, has referred the following two questions of law to this court for its opinion :

(2.) WHEN that reference came up for hearing before a Division Bench of this court, the court by its order dated March 27, 1981, directed the Tribunal to send a supplementary statement of the case and state therein the date on which the matter regarding imposition of penalty was referred by the Income-tax Officer to the Inspecting Assistant Commissioner. In pursuance of that direction, the Tribunal has now sent a supplementary statement of the case. The Tribunal has stated that the Income-tax Officer had made a reference to the Inspecting Assistant Commissioner on April 22, 1975, for imposition of penalty under Section 271(1)(c) of the Act, in accordance with the provisions of Section 274(2) of the Act as it stood prior to April 1, 1976, when that provision was deleted by the Taxation Laws (Amendment) Act, 1975. The Tribunal has also stated that there is no pro forma prescribed under the Income-tax Rules for making a reference under Section 274(2) of the Act. In view of the facts stated in the supplementary statement of the case, it must be held, following a Division Bench decision of this court in CIT v. A.N. Tiwari, 1980 124 ITR 680, that as the reference was made to the Inspecting Assistant Commissioner under Section 274(2) of the Act in accordance with Section 274(2) of the Act as it stood at the time of making the reference, the reference would not be invalidated by the subsequent amendment deleting Section 274(2) from April 1, 1976. Shri Choudhary, learned counsel for the assessee, however, contended that no valid reference was made by the Income-tax Officer prior to April 1, 1976. The contention was that what was sent by the Income-tax Officer to the Inspecting Assistant Commissioner on April 22, 1975, was merely a report which was not accompanied by the relevant record. It is, therefore, necessary to deal with the contention as to whether the reference made by the Income-tax Officer to the Inspecting Assistant Commissioner on April 22, 1975, was a valid reference.

(3.) IN view of the aforesaid finding by the Tribunal, it cannot be held, as urged on behalf of the assessee, that the Revenue had not discharged the burden to prove that there was concealment of income by the assessee. The Tribunal, in our opinion was justified in holding that the levy of penalty was valid.