COMMISSIONER OF INCOME TAX Vs. SIMLOT A M

JUDGEMENT

(1.) THIS is an application moved by the Commissioner of Income-tax, Jaipur, under Section 256(2) of the I.T. Act, 1961 (Act No. 43 of 1961) (hereinafter referred to as "the Act"), requiring the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, to state the case and to refer the following point of law allegedly arising out of the order of the Tribunal to this court, for our opinion :

(2.) WHETHER, in the facts and circumstances of the case, the Tribunal was justified in cancelling the penalty of Rs. 85,000 imposed by the Inspecting Assistant Commissioner under Section 271(1)(c) of the Income-tax Act, 1961 ?"

(3.) THE contention of Mr. Mehta, the learned advocate for the Revenue, is that the question sought to be referred to this court is a question of law, inasmuch as the finding of fact arrived at by the Tribunal is merely based on conjectures and surmises, and is perverse. In support of his contention, that if the finding of fact arrived at by the Tribunal is perverse, then it is a question of law, which should be referred for opinion to this court, the learned advocate has placed reliance on Oriental Investment Co. P. Ltd. v. CIT [1969] 72 ITR 408 (SC), CIT v. Daulat Ram Rawatmull [1973] 87 ITR 349 (SC), G. Venkataswami Naidu & Co. v. CIT [1959] 35 ITR 594 (SC) and CIT v. Dr. A.K. Sharma (Certified copy of the judgment (order) dated July 31, 1979, in D.B.I.T. Ref. Case No. 64 of 1978) (see p. 23 infra). On the contrary, the learned advocate for the assessee contends that whether or not the assessee had concealed the particulars of income is purely a question of fact, which does not call for any reference. In support of his contention, the learned advocate has placed reliance on CIT v. Gokuldas Harivallabhdas [1958] 34 ITR 98 (Bom), Addl. CIT v. Gem Palace [1975] 98 ITR 640 (Raj), Addl. CIT v. Noor Mohd. & Co. [1974] 97 ITR 705 (Raj) and CIT v. Goswami Smt. Chandralata Bahuji [1980] 125 ITR 700 (Raj).