Case: Commissioner of Income Tax (Central), Calcutta Vs. Ashoka Marketing Limited

in the respondents hands. Accordingly, the Tribunal set aside the penalty of Rs. 15 lakhs. The Commissioner of Income-tax (Central), Calcutta, thereupon applied under section 66(1) of the Act for reference of the following three questions to the High Court :" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in placing upon the department the onus to prove by positive evidence that the sum of Rs. 40, 05, 825 represented concealed, income of the assessee when the assessee itself had conceded that the said sum was its income ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating the sum of Rs. 40, 05, 825 on the same footing as the sum of Rs. 14, 30, 561 and in setting aside, on that view, the penalty order passed in this case ?3. Whether, in any event, on the facts and in the circumstances of the case, the Tribunal was right in setting aside the said order of penalty ? "2. The Tribunal rejected the application on the view that no question of law arose from the order of the Tribunal. The Commissioner thereafter applied under section 66(2) to the High Court for an order requiring the Income-tax Appellate Tribunal to draw up a statement of the case and to refer the aforesaid questions of law to the High Court for determination. On this application a rule nisi was issued on April 28, 1969. On September 16, 1969, the High Court discharged the rule and dismissed the application without however giving any reasons. The present appeal by special leave is directed against this order of the High Court.3. Mr. Desai, learned counsel for the appellant, submitted that the High Court having issued a rule nisi on the application under section 66(2) was wrong in dismissing the same without a speaking order. We agree that the High Court should have stated the reasons on which it dismissed the application; however, as we have heard the counsel on either side on the merits of the case, we do not think it would be proper to send the matter back to the High Court only on that ground. We, therefore, propose to dispose of the appeal on merits.4. It was argued before the Tribunal in the penalty proceeding that merely because the respondent did not press its objection to the assessment of the sum of Rs. 40, 05, 825 in its hands, it could not be said that it was admitted that the amount was the concealed income of the respondent. Before the Tribunal the explanation offered by the respondent in respect of the aforesaid sum was" To avoid protracted appeal proceedings, a compromise was entered into between the assessee company and D.J.C. Ltd., whereby the sum would be assessed in the assessees hands and omitted from the assessment of Dalmia Jain Company Limited, the latter undertaking to meet the tax liability in respect of such inclusion the balance of the profit being retained by the company. Such an arrangement was possible because D.J. Co. Ltd. was one of the companies in the Sahu Jain Group. "5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner of Income-tax v. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner of Income-tax to contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner ofv. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner ofto contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs.