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Commissioner Of Income Tax v. Shri Ram Kishroe Gupta - INCOME TAX APPLICATION No. 100 of 1996 [2006] RD-AH 14938 (31 August 2006)


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Court No.2

Income Tax Application No.100 of 1996.

The Commissioner of Income Tax, Kanpur v. Shri Ram Kishore Gupta,Banda.

Hon'ble R.K.Agrawal, J.

Hon'ble Vikram Nath, J.

(Delivered by R.K.Agrawal, J.)

We have heard Sri Shambhu Chopra, learned Standing Counsel for the Revenue and Sri Shakeel Ahmad, learned counsel appearing for the respondent assessee.  

By means of the present application filed under Section 256(2) of the Income Tax Act, 1961, hereinafter referred to as "the Act" the Commissioner of Income Tax, Kanpur requires this Court to direct the Income Tax Appellate Tribunal, Allahabad, hereinafter referred to as "the Tribunal" to draw a statement of case regarding the following question of law for opinion to this Court.

Whether on the facts and in the circumstances of the case, the I.T.A.T. was justified in holding that conditions laid down in Explanation 5(2) to Section 271(1)(c) were fulfilled and no penalty was leviable under Section 271(1)(c)?

We have perused the order passed by the Tribunal dated 22nd August, 1994 by which it has deleted the penalty imposed upon the respondent-assessee under Section 271(1)(c) of the Act. We find that the Tribunal has deleted the penalty on the ground that Clause (2) of Explanation 5 to Section 271 (1)(c) of the Act was attracted to the present case. In the alternative, it has held that the Explanation 5 itself was not applicable and, therefore, no penalty under Section 271(1)(c) ought to have been levied.  We find that in the application filed under Section 256(1) of the Act, the Commissioner of Income Tax had proposed only one question regarding applicability of Clause (2) of Explanation 5. However, no question was proposed for being referred in respect of the alternative finding given by the Tribunal regarding non-applicability of Explanation 5 to Section 271(1)(c) of the Act on the basis of which the penalty was deleted. The Tribunal has rejected the reference application under Section 256(1) of the Act on this ground. After considering the entire matter, we are of the considered opinion that the proposed question is academic inasmuch as no question of law has been raised challenging the finding given by the Tribunal  regarding non-applicability of Explanation 5 to Section 271(1)(c) of the Act on which score also the Tribunal has deleted the penalty.

We are, therefore, of the considered opinion that this application is misconceived.  It is dismissed accordingly.




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