Income-tax---

----Appeal to Supreme Court---Penalty---Concealment of income---Finding that there had been concealment of income---Decision of High Court that reduction of penalty by Tribunal was not justified---Leave to appeal to Supreme Court not granted from decision---Indian Income Tax Act, 1961, Ss.261 & 271(1)(cy).

Held, on the facts of the case, that there was no challenge to the finding that there had been concealment of income and the High Court had held that the Tribunal had misdirected itself in law in reducing the penalty. Therefore, this was not a fit case for appeal to the Supreme Court.

CIT v. Shri Pawan Kumar Dalmia (1987) 168 ITR 1(Ker.) and CIT v. Saraf Trading Corporation (1987) 167 ITR 909 (Ker.) ref.

G. Sivarajan for Petitioner.

P.K.R. Menon and N.R.K. Nair for Respondent.

JUDGMENT

MRS. K.K. USHA, J: --This is an application under section 261 of the Income Tax Act, 1961, for leave to appeal to the Supreme Court from the judgment in Income Tax Reference No.287 of 1982 (CIT v. Bharath Sea Foods (1992) 195 ITR 60 (Ker.) At the instance of the Revenue, the following question came up for consideration in Income Tax Reference No.287 of 1982 (see (1992) 195 ITR 60, 61):

"Whether, on the facts and in the circumstances of the case and in view of the application of the Explanation to section 271(1)(c) of the Income Tax Act, 1961, and also in view of the finding of conscious concealment, the Tribunal was right in law in reducing the quantum of concealed income?"

The question was answered in the negative and in favour of the Revenue.

In the course of the assessment proceedings, it was found that the assessee had concealed particulars of his income to the extent of Rs.1,00,864 and proceedings under section 271(1)(c) of the Income Tax Act, 1961, were initiated. The above amount represented the purchase price of raw materials in the peeling shed at Chandiroor for which no explanation was offered. Pursuant thereto, the Inspecting Assistant Commissioner imposed a penalty of Rs.1,05,000 which was reduced by the Appellate Tribunal. This Court held that the Appellate Tribunal has misdirected itself in law in reducing the penalty imposed by the Inspecting Assistant Commissioner from the amount of Rs.1,05,000 to Rs.47,000. The Appellate Tribunal had relied on materials, which were not relied on by both sides. It was not the case of the assessee nor that of the Department that the opening balance in the ledger did not reflect the true state of affairs. Concealment was found against the assessee concurrently and there was no challenge to the above finding.

It is contended on behalf of the petitioner that the Tribunal cannot be found fault with for considering contentions which were not put forward by either side since the Tribunal is the final fact-finding authority, that this Court failed to bear in mind the decisions in CIT v. Shri Pawan Kumar Dalmia (1987) 168 ITR 1 and CIT v. Saraf Trading Corporation (1987) 167 ITR 909 in the matter of levy of penalty, that the alleged concealment found by the authorities was on the basis of mistaken facts and that there was no concealment, even though in the assessment proceedings, certain additions had been made. On the above basis, it was submitted that it is a case fit for a decision by the Supreme Court.

We heard counsel in detail. After considering the facts and circumstances of the case and the law on the point, we are not inclined to certify that this is a fit case for appeal to the Supreme Court.

In the result, the petition fails and it is dismissed.

M.B.A./155/T.F.

Petition dismissed.