1999 (8) TMI 64

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....the Act"), seeking a direction to the Income-tax Appellate Tribunal, Delhi, to draw up a statement of the case and refer the following question for the opinion of this court : "Whether, the Income-tax Appellate Tribunal was justified in law in upholding the order of the Commissioner of Income-tax (Appeals), cancelling the penalty under section 271(1)(c) at (of) Rs. 4,29,520 ?" The business p....

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....ever, after seeking a few adjournments, the assessee filed a revised return declaring a total income of Rs, 6,40,300, instead of Rs. 95,859, declared earlier. The return was captioned "without prejudice" and in the accompanying letter it was stated that the assessee was surrendering Rs. 5,50,442 as business income for the assessment year 1988-89 and requested that penalty and prosecution proceedin....

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....ent and merely because the assessee had surrendered the amount in the revised return, penalty under the said section cannot be levied. The Tribunal finally held as follows : "Availability of cash with the assessee is fully supported by entries of purchases and sales in the books of account. The Assessing Officer in order to verify the claim of purchases, wrote letter dated November 2, 1987, to ....

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.... explanation of the assessee relating to availability of cash was not bona fide or false. The charge of concealment of income or furnishing of inaccurate particulars of income has not been established." It is vehemently argued by Mr. Sanjeev Khanna, learned senior standing counsel for the Revenue, that the abovesaid question is a question of law and the Tribunal ought to have referred the same ....