1993 ALLMR ONLINE 1486 (S.C.)
Supreme Court Of India
B. P. JEEVAN REDDY AND S. P. BHARUCHA, JJ.
Varkey Chacko vs. Commissioner of Income-tax
Civil Appeal No. 1151 of 1982
24th August, 1993.
Income Tax Act (1961), S. 271(1)(c)
Cases Cited:
(1993) 199 ITR 610,(1992) 6 JT (SC),714 [Para 9]
1992 AIR SCW 1031,(1992) 2 SCC 514,AIR 1992 SC 1139,1992 Tax LR 463 [Para 7]
AIR 1979 SC 1897,120 ITR 1,1979 Tax LR 1297 [Para 8]
AIR 1973 SC 72,86 ITR 557,1973 Tax LR 8 [Para 7]
AIR 1970 SC 778,77 ITR 107 [Para 8]
JUDGMENT
BHARUCHA, J. :-This is an appeal on a certificate granted by the High Court of Kerala. The judgment under appeal was delivered on a reference under S.256(2) of the Income-tax Act, 1961. It answered in the negative, that is, against the appellant (assessee) and in favour of the Revenue (respondent), the following question :
"Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in holding that the Income-tax Officer had no jurisdiction to levy the penalty and that he should have referred the case to that Inspecting Assistant Commissioner for imposition of penalty?"
2. The reference pertained to the Assessment Year 1968-69, the relevant accounting period having ended on 31st March, 1968.
3. The assessee filed his return on 16th April, 1970. With effect from 1st April, 1971, sub-sec. (2) of S. 274 of the Income-tax Act, 1961, was amended. Prior to the said amendment where, in a case falling under Cl. (iii) of sub-sec. (1) of S. 276, the minimum penalty imposible exceeded the sum of Rupees 1,000/-, the Income-tax Officer was obliged to refer the case to the Inspecting Assistant Commissioner. The reason of the said amendment the Income-tax Officer was obliged to refer to the Inspecting Assistant Commissioner such cases falling under Cl. (c) of sub-sec. (1) of S. 271 where the amount of income, as determined by the I.T.O. on assessment, in respect of which particulars had been concealed or inaccurate particulars had been furnished exceeds the sum of Rs. 25,000/-. On 27th March, 1972, the I.T.O. made the orders of assessment and initiated penalty proceedings against the assessee on the basis of a finding recorded in the assessment order that there had been concealment of income in respect of an amount which did exceed Rs. 25,000/-. After considering the assessee's objections, the I.T.O., by order dated 26th March, 1974, imposed a penalty of Rs. 10,000/-.
4. The assessee appealed to the Appellate Assistant Commissioner, who set aside the penalty order on the ground that the I.T.O. did not have the jurisdiction to levy the penalty. The Revenue carried the matter to the Income-tax Appellate Tribunal, which confirmed the order of AAC. It held that the law governing the imposition of penalty for concealment of income was the law that was in force on the date on which the return in which the concealment had been made was filed and that the said amendment had no application to the case because it had not been made Expressly retrospective.
5. Arising out of the order of the Tribunal, the question quoted above was referred to the High Court. The High Court noted that the question to be considered was whether the proceedings for imposition of penalty taken in the case were governed by the provisions of S. 274(2) as they stood prior to the said amendment or whether it was the sub-section as amended that would apply. It concluded that the competence or jurisdiction of the authority to initiate the penalty proceedings could be governed only by the law which was in force on the date of initiation of such proceedings. A combined reading of S, 271(1)(c)(ii) and S. 274(2) provided a clear indication that under the provisions of S. 274(2) as they stood prior to the amendment of 1970 the competence of the I.T.O. to exercise the power of imposition of penalty against an assessee under S. 271(1)(c) was to depend upon the findings arrived at by him in assessment proceedings as to the factum of concealment and the amount of income in respect of which such concealment had taken place. It was only on arriving at such a finding that the question of initiation of penalty proceedings could arise. In this connection, the High Court referred to the judgment of this Court in Jain Brothers v. Union of India, 77 ITR 107 : (AIR 1970 SC 778). Accordingly, the Tribunal was held to be in error and the question referred to the High Court was answered in the negative, that is, against the assessee and in favour of Revenue.
6. Section 271(1)(c) confers upon the assessing authority the power to direct an assessee to pay a penalty where he is satisfied that the assessee has concealed the particulars of his income or has furnished inaccurate particulars of his income. S. 274(2), before it was amended by the Taxation law (Amendment) Act, 1970, with 'effect from 1st April, 1971, read thus :
"Notwithstanding anything contained in Cl. (iii) of sub-sec. (1) of S. 271, if in a case falling under Cl. (c) of that sub-section, the minimum penalty imposable exceeds a sum of rupees one thousand, the Income-tax Officer shall refer the case to the Inspecting Assistant Commissioner who shall, for the purpose, have all the powers conferred under this Chapter for the imposition of penalty".
After the said amendment, it read thus :
"Notwithstanding anything contained in Cl. (iii) of sub-sec. (1) of S. 271, if in a case falling under Cl. (c) of that sub-section, the amount of income (as determined by the Income-tax Officer on assessment) in respect of which the
particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of twenty-five thousand rupees the Income-tax Officer shall refer the case to the Inspecting Assistant Commissioner who shall, for the purpose, have all the powers conferred under this Chapter for the imposition of penalty."
7. Learned counsel for the assessee submitted that the offence of concealment had been committed when the return had been filed; that, therefore, the unamended provisions of S. 274(2) applied and the I.T.O. had no authority to impose the penalty. He relied upon the judgment of this Court in C.I.T. v. M/s. Onkar Saran and Sons, (1992) 2 SCC 514 : (1992 AIR SCW 1031). Emphasis was laid upon the statement in the judgment that, after the decision of this Court in Brij Mohan v. C.I.T., 120 ITR 1 : (AIR 1979 SC 1897), there could be no doubt that the law applicable to penalty proceedings under S. 271(1)(a) or (c) was the law that was in force on the date on which the offending return had been filed.
8. The issue in the cases of Onkar Saran and Brij Mohan related to the quantum of penalty that could be demanded AND it was in that context that the statement that was emphasised was made. In Brij Mohan case it was expressly stated that a penalty was imposed on account of the commission of a wrongful act and "it is the law operating on the date on which the wrongful act is committed which determines the penalty".
9. Learned counsel for the Revenue drew our attention, first, to this Court's judgment in Jain Brolhers (AIR 1970 SC 778) (ibid). It was there held, inter alia, that it was the satisfaction of the income-tax authorities that a default had been committed by the assessee which attracted the provisions relating to penalty. Whatever the stage at which the satisfaction was reached, the order imposing the penalty had to be made only after the completion of the assessment. The crucial date, therefore, for purpose of penalty was the date of such completion. In D. M. Manasvi v. C.I.T., 86 ITR 557: (AIR 1973 SC 22), this was reiterated. Counsel for the Revenue laid great stress upon the judgment of this Court in CIT v. Dhadi Sahu, (1993) 199 ITR 610. In this case the assessee had failed to disclose certain income falling to the share of his minor children for the Assessment Years 1968-69 and 1969-70. The I.T.O. passed assessment orders on 28th February, 1970 and initiated penalty proceedings under S.271(1)(c). Since the amounts of the panelty to be imposed would exceed Rs. 1,000, the I.T.O. referred the cases under Section 274(2), as it then stood, to the IAC. Pending the penalty proceedings, Section 274(2) was amended with effect from 1st April, 1971, as a result of which only cases of penalty in which the income concealed was Rs. 25,000 or more were required to be referred to the IAC. In the assessee's case referred to the IAC the income concealed was less than Rs. 25,000. Even so, the IAC passed orders on 15th February. 1973, imposing penalty in the same of Rs. 24,000 and Rs. 12,500 respectively for the Assessment Year 1968-69 and 1969-70. This Court held that the
reference had been validly made by the I.T.O. to the I.A.C. before 1st April, 1971 and the question was whether the amendment that came into effect on 1st April, 1971 diversed the IAC of his jurisdiction because the amount of concealed income did not exceed Rs. 25,000 and the case did not fall within the ambit of S. 274(2) as amended. The amending Act, it was noted, did not make any provision that reference validly pending before the IAC had to be returned without passing any final orders if the amount of income in respect of which particulars had been concealed did not exceed Rs. 25,000. This supported the inference that in a pending reference the IAC continued to have jurisdiction to impose a penalty. The previous operation of S. 274(2) as it stood before 1st April, 1971 and anything done thereunder continued to have effect under S. 6(b) of the General Clauses Act, 1897, enabling the IAC to pass orders imposing penalty in pending references. What was material was the date upon which the references were initiated. If the references had been made before 1st April, 1971, they would be governed by S. 274(2) as it stood before that date and the IAC had jurisdiction to pass orders of penalty.
10. Learned counsel for the Revenue submitted that the I.T.O. had, in the instant case, satisfied himself that there had been concealment of income on 27th March, 1972, when he made the order of assessment. Such satisfaction was a pre-requisite to the initiation of the penalty proceedings, which were initiated on the same day. On that day, under the amended provisions of S. 274(2), I.T.O. had the authority to impose the penalty upon the assessee. Therefore, the High Court had answered the reference correctly.
11. A penalty for concealment of particulars of income or for furnishing inaccurate particulars of income can be imposed only when the assessing authority is satisfied that there has been such concealment or furnishing of inaccurate particulars. A penalty proceeding, therefore, can be initiated only after an assessment order has been made which finds such concealment or furnishing of inaccurate particulars. Who at this point of time has the authority to impose the penalty is what is relevant. Whoever this authority may be, he is obliged to impose such penalty as was permissible under the law in that behalf on the date on which the offence of concealment of income was committed, that is to say, on the date of the offending return. The two aspects must firmly be borne in mind, namely, who may impose the penalty and in what measure.
12. In the instant case, when the I.T.O. reached the satisfaction that the assessee had concealed income and made the assessment order on 27th March, 1972, the amended provisions of S. 274(2) were in operation and they entitled the I.T.O, to impose penalty in cases where the amount of income in respect of which particulars had been concealed were, as here, less than Rs. 25,000.
13. We are, therefore, of the view that the High Court answered the question referred to it correctly. The