| COURT: | Bombay High Court |
| CORAM: | A. I. S. Cheema J, A. V. Nirgude J |
| SECTION(S): | 271(1)(c) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | concealment of income, furnishing inaccurate particulars of income, penalty |
| COUNSEL: | S. V. Adwant |
| DATE: | November 24, 2014 (Date of pronouncement) |
| DATE: | November 27, 2014 (Date of publication) |
| AY: | 2003-04 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 271(1)(c): Before proceeding to the Explanation below s. 271 and putting the responsibility on the assessee, it is necessary for the AO to first demonstrate that the assessee's explanation or conduct is not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. If the explanation is not fanciful, baseless or unacceptable, penalty cannot be levied | |
A legal contention raised bonafide by the assessee claiming the amounts to be capital receipt, only because the same was not accepted, by itself cannot be said to be act of fraud or gross or wilful negligence. Merely because the claim was rejected, the same cannot be branded as concealment. Before proceeding to the explanation below Section 271 and putting the responsibility on the assessee, it is necessary for the AO to first demonstrate that the explanation of the assessee or the conduct of the assessee was not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. It cannot be said that, the explanations given by the assessee were fanciful, baseless or unacceptable.
sir,
Division bench of bombay high court correctly interpreted.
Error apparent on the face of record,..’it has already been stated, that where an inferior tribunal acts within its jurisdiction, but erroneously , whether on fact or on law , it may be corrected by appeal, if there be any; BUT its decision cannot be challenged collaterally, whether by way of a proceeding for certiorary on an action for declaration, or otherwise.
The only exception to this general rule is that where the decision of an inferior tribunal , though it has acted within its jurisdiction, is VITIATED by (a) an error of law (Nagendra v Commissioner,A.1958 SC 398 (412); Prem singh vDy.Custodian General (1958) S.C.A 24), (b) which is ‘apparent on the face of record ‘ (Hari vishnu v Ahmed,(1955) 1 S.C.R. 1104 (1123);. IN SUCH A CASE, the remedy of CERTIORARY is available to QUASH SCH DECISION;
UNDER JUDICIAL CONTROL OF ADMINISTRATIVE ACTION is always there as administrator have great capacity to misread laws under normal error or by extrajudicial approach is a world known fact so always administration need to be under survailance of competent courts.
seems ITAT is under pressure by CBDT to carry on by o called special benches which should be disbanded by the very president of the ITAT forthwith as the establishment of spl tribunals is without authority under administrative tribunal Act 1985 is crystal clear when CBDT asks the Tribunal take refuge under sec 255 of IT Act which is actually non est when tested on the constitutional proprieties under the indian constitution.
sorry failure of justice here the hon tribunal is constituting 3 member benches under so called circuit benches system used constitutionally in USA on different powers.
so soon constitutional breakdown may surface please
i doubt whether AOs understand what is actus reas and mens rea a mandatory condition tto impose sec 271(1)(c)!
i doubt whether AOs understand what is actus reas and mens rea a mandatory condition tto impose sec 271(1)(c)!