JUDGMENT
V.B. Gupta, J.
1. Present appeal has been filed by the assessed under Section 260A of the Income Tax Act, 1961 (for short as ‘Act’) against the order dated 28th October, 2005 passed by Income Tax Appellate Tribunal (for short as ‘Tribunal’) in ITA No. 2487/Del/04 for the assessment year 2000-2001 vide which the appeal filed by the assessed was dismissed.
2. The assessed company was required to get its account audited and furnish the report within the specified period in terms of Section 44AB of the Act. The return of income was filed on estimated basis on 1st December, 2002 without any profit and loss account and balance sheet. In form No. 3CA attached with the return, the auditors have stated that statutory audit has not been conducted under the Companies Act, 1956 since books of accounts were not produced before them as they were lying in the factory premises which was stated to be under lock out. Subsequently, the assessed filed its revised return on 4th March, 2003 along with the audit report under Section 44AB of the Act since the assessed has not filed the income tax return along with tax audit report till the due date, therefore, the Assessing Officer initiated penalty proceedings under Section 271B of the Act by issuance of show cause notice.
3. In reply, the assessed stated that it had filed the audit report under Section 44AB along with original return of income on 1st December, 2000 in as much as on the last date, i.e., 30th November, 2000, there was heavy rush in the Revenue Department. assessed further stated that statutory audit under the Companies Act, 1956 was not conducted since the relating records were lying in the factory premises which was under lock out w.e.f. 13th January, 2000. The Assessing Officer did not find the submissions of the assessed acceptable on the ground as the access to the premises remained always available to the assessed or its Directors as the factory remained in their physical control and the lock out was not imposed by any statutory authority. Thus, rejecting the contentions of the assessed, the Assessing Officer held that there is no reasonable cause for not getting the accounts audited and for not furnishing the audit report within the prescribed time and accordingly a penalty of Rs. 1 lac was imposed by the Assessing Officer.
4. The assessed aggrieved with the order passed by the Assessing Officer, carried the matter in appeal before the Commissioner of Income Tax (Appeals)(for short as CIT(A). Before the CIT(A) the assessed reiterated its pleas which it has taken before the Assessing Officer. The CIT(A)concluded that assessed being in full control of factory premises, had access to the premises and the records kept therein and, therefore, the explanation offered was devoid of factual support and thus, the penalty imposed upon the assessed was sustained.
5. The assessed challenged the order of CIT(A) before the Tribunal and vide impugned order the Tribunal had dismissed the appeal of the assessed.
6. It has been contended by learned Counsel for the Appellant that the assessed was prevented by a sufficient cause from getting the tax audit done since there was a lock out at the premises of the assessed due to labour unrest and as such assessed had no access to the records which were lying locked in the premises and thus, it was not a case where circumstances warrant imposition of penalty.
7. It is an admitted fact that the assessed had failed to furnished the audit report required under Section 44AB within the prescribed period under the statute. The case of the assessed is that due to lock out, the Director of the assessed company was unable to enter the factory premises which prevented the assessed to gets accounts audited within time and in support of lock out the assessed had submitted a copy of the order of the Industrial Tribunal dated 29th October, 2002 before the authorities below.
8. The CIT(A) after considering the plea of the assessed and perusal the order of the Tribunal concluded that the physical control of the factory remained with the assessed in as much as some work relating to packaging etc. was being carried out. Secondly the CIT(A) concluded that agitation of the workers continued only till August, 2000 and, thus, the assessed was under full control of the factory premises and had access to the premises and records kept therein.
9. Thus, the finding of the CIT(A) has been reiterated by the Tribunal in the impugned order. Admittedly, these are findings of fact as to whether there was lock out in the assessed company or not and as to whether the assessed was prevented access to its factory or not.
10. An appeal under Section 260A of the Act can be only in respect of a ‘substantial question of law’. The expression ‘substantial question of law’ has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd. , the Apex Court laid down the following tests to determine whether a substantial question of law is involved. The tests are :(1) whether directly or indirectly it affects substantial rights of the parties, or, (2) the question is of general public importance, or, (3) whether it is an open question in the sense that issue is not settled by pronouncement of the Supreme Court or Privy Council or by the Federal Court, or, (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view.
11. Following the above principles, the Kerala High Court in M. Pappu Pillai v. ITO has held that:
There is no scope for interference by this Court on a finding recorded when such finding could be treated to be a finding of fact. A finding of fact must, therefore, be held to have become final.
12. In the present case, there are concurrent findings of three statutory authorities to these effect that there was no lock out in the premises and the records kept therein and the explanation offered by the assessed is devoid of factual support.
13. We find no ground to differ with the reasoning given by the three statutory authorities and the conclusion with regard to these findings made by the Tribunal is essentially factual and as such no substantial question involved in the present case.
14. Under these circumstances, we find no reason to differ with the finding given by the Tribunal which is purely a finding of fact and as such the present appeal is not maintainable and the same is, hereby, dismissed with costs of Rs. 5,000/- to be deposited with Delhi High Court Legal Services Committee. Costs be paid within four weeks.
15. List for compliance on 14th September, 2007.