The Commissioner Of Income-Tax ... vs M/S. R.G. Govan & Co. Delhi
2000 Latest Caselaw 757 Del

ORDER

Arijit Pasayat, CJ.

1. At the instance of revenue, following question has been referred under Section 256(1) of the Income-tax Act, 1961(in short the 'Act') for opinion of this Court by the Income-tax Appellate Tribunal, Delhi Bench 'D', (in short the 'Tribunal'):

"Whether on the facts and in the circumstances of the case, the Tribunal was correct in holding that a penalty u/s 273(a) was not leviable on the assessee for the assessment year 1961-62?"

2. The background facts necessary for disposal of the reference are essentially as follow :

Assessee is a Private Limited Company which at the relevant, point of time was doing business as contractors for unloading of foodgrains from ships at Bombay Port and transport of the grains from the port to various Government Depots. For the assessment year 1961-62, relating to the accounting period ending 30th June, 1960, a notice of demand under Section 18-A of the Indian Income-tax Act, 1922 (hereinafter referred to as the 'old Act') was issued requiring the assessee to pay Rs. 2,42,842/- as advance-tax. On 15th September, 1960 assessee filed an estimate declaring a loss, and estimated its advance tax liability at nil. According to the profit and loss account of the company for the year ending 30th June, 1960, it had incurred a loss of Rs. 3,83,740/-. A return of income was filed showing loss of Rs. 3,81,311/-. Ultimately assessment was completed on a total income of Rs. 2,47,953/-. This included addition of an amount of Rs. 2,37,699/- relating to bogus losses in grains; Rs.1,58,468 on account of bills in respect of difference in the mileage and Rs.92,928/- on account of losses payable to the Regional Director of Food. On appeal against the order of assessment, Appellate Assistant Commissioner (in short 'AAC') reduced the total income to Rs.1,99,498/-. Meanwhile proceedings were initiated under Section 273(a) of the Act for understating the income and advance tax payable by the assessee under Section 18-A of the old Act. After hearing the assessee, penalty of Rs.10,000/- was levied. The imposition of penalty was confirmed by the AAC. Matter was taken by the assessee before the Tribunal. Its stand, inter alia, was that the estimate by it was in accordance with the books of account and even after making allowance for the loss in grain and other commodities which was ultimately accepted by the assessee as wrongly claimed there would have been a loss. So far as the addition of Rs.1,58,468/- made by the Income-tax Officer for difference in mileage, is concerned, that could be a subject matter of honest difference of opinion between the assessee and the Department, and similarly out of the losses payable to the Regional Director of Food a sum of Rs.24,388/- was clearly allowable and, therefore, there was no occasion for saying that the assessee had deliberately furnished a false estimate. Tribunal came to hold that penalty under the circumstances of the case should not have been levied for the estimates submitted by the assessee were in conformity with the books of account maintained by it and that addition in respect of bogus purchases ultimately accepted by the assessee did not convert the loss into profit by itself. So far as the other additions are concerned, there was scope for a difference of opinion between the assessee and the Department and that would not make the estimate the outcome of any deliberate action. Therefore, the penalty was deleted. On being moved by revenue, reference as stated has been made.

3. Learned counsel for the revenue submitted that the factual position highlighted by the Income-tax Officer in its penalty order clearly established a deliberate attempt to under-state the income for the purpose of filing an estimate and paying the admitted tax. It was, therefore, submitted that the imposition of penalty had been rightly done and the Tribunal was not justified in deleting the same.

In spite of notice the assessee has not entered appearance.

4. Section 273(a), as it stood at the relevant time, contemplated default of furnishing an estimate of advance tax payable, which assessee knew or had reasons to believe to be untrue. Burden of proving these aspects is on the department. An estimate, can never be accurate. Whether assessee had knowingly filed a wrong estimate has to be ascertained on the facts and circumstances of each case. It is for the revenue to show that the materials on which the estimate is based are no materials or are of such nature that no estimate could be based on such materials. It is only then that adverse inference can be drawn by the department. From mere fact that there was disparity between the estimate submitted by the assessee, and the income returned and/or assessed no adverse inference can be drawn. Whether the estimate made by assessee was bonafide or true to his knowledge or not is a question of fact.

5. The conclusions of the Tribunal are essentially factual in nature. Whether somebody could bona fide make an estimate of the income and that too on the basis of books of account maintained by it is purely a question of fact. Tribunal has found as a matter of fact that estimate filed by the assessee was in conformity with its books of accounts. Additions ultimately accepted did not convert loss into profit by itself. So far as other additions are concerned they related to additional claims and liability to Regional Director of Food. So far as the first item is concerned, though there was no doubt about nature of claim, there was controversy as regards the exact time when Government accepted it. The final orders did not relate to relevant financial year. But assessee's understanding of the situation cannot be said to be malfide. Similarly, in case of liability to Regional Director of Food, the dispute related to the question as to which assessment year it relates. Here also, Tribunal held no intentional distortion was involved. Tribunal's conclusion was that it cannot be said that assessee could have foreseen the possible additions that could be made in assessment. As stated above, conclusions are factual. That being the position no question of law arises and, therefore, we decline to answer the question referred.

The reference is accordingly returned unanswered.