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Madhya Pradesh High Court · body

2004 DIGILAW 712 (MP)

Commissioner of Income Tax v. Laxmandas Nandlal

2004-08-27

A.M.SAPRE, ASHOK KUMAR TIWARI

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Judgment ( 1. ) THE decision rendered in this case shall also govern disposal of IT Ref. Nos. 30, 50 and 51 of 1999 because, all these income-tax references involve common question and secondly, they arise out of common order between the same parties. The only difference being that they arise out of the different assessment years. ( 2. ) THIS is an application made by the Revenue (CIT) under Section 256 (2) of the IT Act consequent upon the dismissal of their application made under Section 256 (1) of the Act by the Tribunal in RA Nos. 110 to 112/ind/1998, which in turn arises out of an order passed by the Tribunal dt. 23rd April, 1998, in ITA Nos. 304 to 306/ind/1994 pertaining to the asst. yrs. 1988-89 to 1990-91. By impugned order, the learned Members of the Tribunal were of the view that the questions proposed by the Revenue do not involve any question of law which is capable of being referred to the High Court for its opinion. Accordingly, the reference application made by the Revenue under Section 256 (1) of the Act before the Tribunal was dismissed, holding that the questions proposed are essentially questions of facts. It is this order against which or consequent upon which, this application has been presented by the Revenue by taking recourse to the provisions of Section 256 (2) of the Act praying for calling of the questions proposed by the Revenue to be answered by this Court. ( 3. ) HEARD Shri R. L. Jain, learned counsel for the applicant. ( 4. ) THESE are the questions which the Revenue has proposed for being answered by this Court on a reference being called from the Tribunal under Section 256 (1) of the Act : " (i) Whether, on the facts and circumstances of the case and in law, the Honble Tribunal was legally justified in deleting the penalty levied under Section 271b of the IT Act in this case ? (ii) Whether, on the facts and in the circumstances of the case and in law, the relief allowed by the Tribunal by way of deletion of penalty under Section 271 B was not contrary to and inconsistent with the material on record and, therefore, liable to be reversed as perverse being based on presumptions instead of evidence ?" ( 5. (ii) Whether, on the facts and in the circumstances of the case and in law, the relief allowed by the Tribunal by way of deletion of penalty under Section 271 B was not contrary to and inconsistent with the material on record and, therefore, liable to be reversed as perverse being based on presumptions instead of evidence ?" ( 5. ) HAVING heard learned counsel for the petitioner and having perused record of the case, we are of the opinion that no referable question arises in this case and the question really involved in the case is question of fact. Accordingly, Tribunal did not commit any error when it declined to make a reference to this Court. ( 6. ) BASICALLY, the question before the taxing authority and which travelled upto the Tribunal was in relation to not filing of the audit report by the assessee within the time stipulated. It is on account of this default, the proceedings under Section 271b ibid were initiated against the assessee. The question was accordingly examined by the taxing authority after obtaining the explanation from the assessee. The Tribunal, while deciding the second appeal, held that the explanation offered by the assessee is genuine, bona fide and consequently, audit reports filed by the assessee were taken on record for making assessment of the assessee though filed late, as the reasons for delay explained were found satisfactory. ( 7. ) IN our opinion, the questions referred supra, proposed by the Revenue do not involve any question of law. The explanation offered by the assessee was accepted by the Tribunal. The Tribunal had the jurisdiction to accept the explanation offered by the assessee and it was rightly accepted. This Court cannot go into the question, i. e. , as to whether the explanation offered by an assessee constitute sufficient cause or not in proceedings under Section 256 (1) of the Act. We, therefore, agree with the observations made by the learned Members of the Tribunal while dismissing the application made by the Revenue under Section 256 (1) of the IT Act and hold that this application does not involve any referable question of law so as to call the same from Tribunal for being answered by this Court on merits. ( 8. ) AS a consequence, the application fails and is hereby dismissed.