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Chief Comm. (Admn,) UP Lucknow v. M/s Sharma Sugar Ind. - INCOME TAX REFERENCE No. 98 of 1986 [2004] RD-AH 1256 (29 October 2004)


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Court No. 37

I.T.R. No. 98 of 1986

The Chief Commissioner (Adm.) U.P. Lucknow....... Applicant


M/s Sharma Sugar Industries, Shahjahanpur............. Respondent

Hon'ble R.K. Agrawal, J.

Hon'ble Prakash Krishna, J.

The Income Tax Appellate Tribunal Allahabad has referred the following two questions of law under Section 256 (1) of the Income Tax Act, 1961, hereinafter referred to as the Act for opinion to this Court.

1. Whether on the facts and in the circumstances of the case, Tribunal was correct in believing the statement of the Munim in the cross examination by the assessee's counsel on 26.3.1980 when the said Munim had admitted before the I.T.O. on 17.9.1979 that he had not written the Cane Purchase Register?

2. Whether on the facts and in the circumstances of the case,             Tribunal was justified in law in canceling the penalty of Rs. 22,736/- levied U/S 271 (1) (C)?

Briefly stated the facts giving rise to the present reference are as follows :-

The reference relates to the assessment year 1976-77. The respondent assessee is a firm consisting of two partners, which had done the business of Khandsari. In the assessment year 1976-77 it filed return of income showing income of Rs. 10,000/-. On verification of the books of accounts the Income Tax Officer noticed that there was inflated purchase by Rs. 38,000/-. He accordingly added the said amount in the income assessed by him. Panalty proceedings under Section 271 (1) (C) of the Act was also initiated. The Income Tax Officer imposed penalty of Rs. 22,736/-. He had held that the assessee had concealed the purpose of his income. Feeling aggrieved the respondent preferred appeal before the Commissioner of Income Tax (Appeals), who had upheld the order. In further appeal the Tribunal has deleted the penalty.

We have heard  Shri  A.N. Mahajan, learned Standing Counsel for the Revenue. None appeared for the assessee.

It may be mentioned here that one of the partners namely, Ram Kumar Sharma was an illiterate person and did not know anything about the books of the account and the other partner Surendra Kumar Misra, though literate did not have any knowledge of books of accounts which were written by the Munim. The Munim was produced before the Income Tax Officer, who initially denied to have made any interpolation in the purchase register, but on a cross examination he had admitted to have interpolated the books of accounts, but attributed is act to have been done on the instance of the Manager under threat and coercion. The Tribunal has found that there was no mala fide on the part of the respondent in concealment of the income as it was a bona fide act. On the findings recorded by the Tribunal we are of the opinion that the Tribunal was justified in believing the statement of Munim in the cross examination.

In this view of the matter we answer the questions referred to us in affirmative i.e.  in favour of the assessee and against the Revenue. There shall be no order as to costs.

Dt. 29.10.2004



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