Income-tax---

----Reference---Question of law---Penalty---Concealment of income---Levy of penalty is discretionary---Tribunal setting aside order of levy of penalty after satisfying itself that there was no conscious concealment of income-- No question of law arose for reference---Indian Income Tax Act, 1961, Ss.256(2) & 271(1)(c).

The assessee's premises were searched and on the basis of the seized material assessments for the assessment years 1967-68 to 1976-77 were completed by the Income-tax Officer. The Income-tax Officer imposed penalty under section 271(1)(c) of the Income tax Act, 1961, on the ground that the assessee concealed unexplained investments. On appeal, the Commissioner of Income-tax (Appeals) confirmed the order of penalty. On further appeal, the Tribunal set aside the order of penalty for all the assessment years on the grounds that in order to justify the imposition of penalty there had to be some material or circumstances leading to a reasonable conclusion that the amount represented the income of the assessee for the particular assessment year and that there could not be levy of penalty as a matter of course. On an application under section 256(2) of the Income Tax Act, 1961, for referring a question of law:

Held, that the levy of penalty is a discretionary order and the Tribunal had exercised its discretion setting aside the penalty after satisfying itself that there was no conscious concealment on the part of the-assessee. Therefore, no question of law arose for reference.

A. Sapre for the Commissioner

B. L. Nema, Senior Advocate for the Assessee.

JUDGMENT

A.K. MATHUR, C. J.---This is an application under section 256(2) of the Income Tax Act, 1961, at the instance of the Revenue for calling for a statement of case from the Tribunal on the following question of law:

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the penalty levied under section 271(l)(c) even after confirming the unexplained investment in quantum appeal?"

The assessee's premises were searched on January 21, 1976, and on the basis of seized material, assessments for the assessment years 1967-68 to 1976-77 were completed. The assessee concealed unexplained investments. The Assessing Officer imposed penalty under section 271(1)(c) of the Act. Aggrieved by this penalty, the assessee filed an appeal before the Commissioner of Income-tax (Appeals) who confirmed the order of the Assessing Officer. Hence, the assessee approached the Tribunal and the Tribunal after considering the matter allowed the appeal of the assessees and set aside the penalty. While disposing of the appeal, the Tribunal observed that in order to justify levy of penalty, there has to be some material or circumstances leading to the reasonable conclusion that the amount represented the income of the assessee of the particular assessment year. It was also observed that there cannot be levy of penalty as a matter of course. Accordingly, the Tribunal set aside the penalty for all the ten assessment years.

We have gone through the matter and we are of the opinion that levy of penalty is a discretionary order and the Tribunal has exercised its discretion setting aside the penalty after satisfying itself that there was no conscious concealment on the part of the assessee. No question of law arises' in this case to call for the statement of the case from the Tribunal. Consequently, this application under. section 256(2) of the Act rejected.

M.B.A./4147/FC Application rejected.