{"id":263442,"date":"1972-09-19T00:00:00","date_gmt":"1972-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-m-manasvi-vs-c-i-t-gujarat-ii-ahmedabad-on-19-september-1972"},"modified":"2018-08-30T13:22:10","modified_gmt":"2018-08-30T07:52:10","slug":"d-m-manasvi-vs-c-i-t-gujarat-ii-ahmedabad-on-19-september-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-m-manasvi-vs-c-i-t-gujarat-ii-ahmedabad-on-19-september-1972","title":{"rendered":"D. M. Manasvi vs C.I.T., Gujarat Ii, Ahmedabad on 19 September, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D. M. Manasvi vs C.I.T., Gujarat Ii, Ahmedabad on 19 September, 1972<\/div>\n
Equivalent citations: 1973 AIR 22, 1973 SCR (2) 389<\/div>\n
Author: H R Khanna<\/div>\n
Bench: Khanna, Hans Raj<\/div>\n
           PETITIONER:\nD. M. MANASVI\n\n\tVs.\n\nRESPONDENT:\nC.I.T., GUJARAT II, AHMEDABAD\n\nDATE OF JUDGMENT19\/09\/1972\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1973 AIR   22\t\t  1973 SCR  (2) 389\n 1973 SCC  (3) 207\n\n\nACT:\nIncome Tax Act<\/a>, 1961-Section 271(1)(c)<\/a>-Scope of-Satisfaction\nregarding  matters in cls. (a) to (c) precedes the issue  of\nnotice-Notice need not be issued in the course of assessment\nproceedings-No\tnotice contemplated before arriving  at\t the\nsatisfaction-Provision for reference to Inspecting Assistant\nCommissioner  does not mean proceedings cannot be  initiated\nby Income Tax Officer.\n\n\n\nHEADNOTE:\nWhat  is contemplated by clause (1) of section\t271<\/a>,  income\nTax  Act<\/a>,  1961,  is  that the Income  Tax  Officer  or\t the\nAppellate Assistant Commissioner should have been  satisfied\nin the course of proceedings under the Act regarding matters\nmentioned  in  the clauses of that sub-section.\t It  is\t not\nhowever\t essential  that  notice  to  the  person  proceeded\nagainst\t should have also been issued during the  course  of\nthe  assessment\t proceedings.\tSatisfaction,  in  the\tvery\nnature of things, precedes the issue of notice and it  would\nnot be correct to equate the satisfaction of the Income\t Tax\nOfficer or Appellate Assistant Commissioner with the  actual\nissue  of  notice.   The  issue\t of  notice,  indeed,  is  a\nconsequence of the satisfaction of the Income Tax Officer or\nthe  Appellate\tAssistant  Commissioner\t and  it  would\t  he\nsufficient compliance with the provisions of the statute  if\nthe   Income   Tax  Officer  or\t the   Appellate   Assistant\nCommissioner  is satisfied about the matters referred to  in\nclauses (a) to (c) of sub-section (1) of section 271<\/a>  during\nthe course of proceedings under the Act, even though  notice\nto  the\t person\t proceeded  against  in\t pursuance  of\tthat\nsatisfaction  is  issued  subsequent to the  making  of\t the\nassessment   orders  would  not\t show  that  there  was\t  no\nsatisfaction of the Income Tax Officer during the assessment\nproceedings, that the assessee had concealed the particulars\nof his income or had furnished incorrect particulars of such\nincome. [393E]\nCommissioner  of  Income  Tax, Madras and.  Anr.  v.  S.  V.\nAngidi Chettiar<\/a>, [1962] 44 I.T.R. 739, referred to.\nThe  fact that the Income Tax Officer has to refer the\tcase\nto  the\t Inspecting Assistant Commissioner  if\tthe  minimum\nimposable penalty exceeds the sum of rupees one thousand  in\na  case\t falling  under clause (c)  of\tsub-section  (1)  of\nsection\t 271<\/a> would not show that the proceedings in  such  a\ncase cannot be initiated by the Income Tax Officer. [394F]\nIt  is\tnot necessary that the Income  Tax  officer,  before\nfeeling\t satisfied  regarding the  necessity  of  initiating\nproceedings  for imposition of penalty\tand  before  issuing\nconsequential  notice should have issued another  notice  to\nthe  assessee and held a preliminary enquiry  regarding\t the\nnecessity  of initiating proceedings.  Such a  course  would\nresult\tin  mere duplication of the  procedure\twithout\t any\nadvantage to the parties.  The final conclusion on the point\nas  to whether the requirements of clauses (a), (b) and\t (c)\nof  s. 271<\/a> have been satisfied would be reached\t only  after\nthe  assessee has been heard or has been given a  reasonable\nopportunity of being heard. [395E, B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1447  to
\n1450 of 1969.\n<\/p>\n
390<\/span><\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nAugust\t30, 1968 of the Gujarat High Court at  Ahmedabad  in
\nIncome-tax Reference No. 6 of 1968.\n<\/p>\n
M.   C. Chagla and I. N. Shroff, for the appellant.
\nN.   D.\t Karkhanis, R. N. Sachthey and S. P. Nayar, for\t the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nKHANNA, J.-This judgment would dispose of four civil appeals
\nNos.  1447  to\t1450 of 1969 which have been  filed  by\t the
\nassessee  by special leave against the judgment\t of  Gujarat
\nHigh  Court  whereby that court answered the  following\t two
\nquestions in a reference under section 256(1)<\/a> of the  Income
\nTax  Act, 1961 (hereinafter referred to as the Act)  in\t the
\naffirmative and in favour of the department
\n\t      “(1)   Whether  on  the  facts  and   in\t the
\n\t      circumstances of the case, the proceedings for
\n\t      the   imposition\tof  penalty  were   properly
\n\t      commenced\t in the course of  any\tproceedings.
\n\t      under  the Act as required by section  271<\/a>  of
\n\t      the  Income Tax Act, 1961 for  the  assessment
\n\t      ‘years 1959-60 to 1962-63 ?\n<\/p>\n
\t      (2)   Whether   on  the  facts  and   in\t the
\n\t      circumstances  of\t the  case,  there  was\t any
\n\t      material\tor evidence before the\tTribunal  to
\n\t      hold   that  the\tassessee  had\tdeliberately
\n\t      concealed\t  particulars  of  his\t income\t  or
\n\t      deliberately furnished inaccurate\t particulars
\n\t      of  such income as required by sec. 271  (1  )\n<\/p>\n
\t      (c) of the Act for the assessment years  1959-
\n\t      60 to 1962-63?”\n<\/p>\n
While  answering question No.1 in the affirmative, the\tHigh
\n‘Court\tobserved that so far as the assessment year  1961-62
\nwas concerned, the penalty proceedings were invalid.
\nThe assessee is an individual and the matter relates to\t the
\nassessment  years  1959-60, 1960-61,  1961-62  and  1962-63.
\nDuring\tthe relevant years the assessee derived income\tfrom
\nseveral sources.  The assessment for the first year was made
\nunder section 23(3)<\/a> of the Indian Income Tax Act, 1922.\t The
\nIncome\tTax Officer subsequently found that income from\t the
\nbusiness  in  the name of M\/s.\tKohinoor Crain\tMills  Sales
\nDepot  (hereinafter referred to as the Kohinoor\t Mills)\t was
\nnot included in the return filed by the, assessee and he had
\nnot  shown  any\t connection with or  interest  in  the\tsaid
\nbusiness.   For\t the  subsequent three\tyears  the  assessee
\ndisclosed  20  per  cent as his share of  the  profits\tfrom
\nKohinoor Mills.\t The Income Tax Officer was of the
\n391<\/span>
\nopinion\t that Kohinoor Miffs was not a\tgenuine\t partnership
\nbut was the sole proprietorship concern of the assessee\t and
\nthe  whole of the income from the said concern\tbelonged  to
\nthe assessee.  As the assessment for the first two years had
\nalready been completed before the Income Tax Officer got the
\ninformation  regarding the interest in Kohinoor\t Mills,\t the
\nIncome\tTax  Officer reopened the assessment for  those\t two
\nyears.\t The income from the Kohinoor Mills  was  thereafter
\nincluded  in  the income of the assessee for the  first\t two
\nyears  as  well\t as  in\t the  assessments  relating  to\t the
\nremaining two years.  The order of the Income Tax Officer in
\nthis   respect\twas  upheld  by\t the   Appellate   Assistant
\nCommissioner  as  well\tas  by\tthe  Income  Tax   Appellate
\nTribunal..\n<\/p>\n
The  non-disclosure  of the business profits  from  Kohinoor
\nMills was considered by the Income Tax Officer to  represent
\ndeliberate   concealment,  and\tso  he\t initiated   penalty
\nproceedings  under  section  271<\/a> of the\t Act  for  the\tfour
\nassessment  years  in question.\t As,  however,\tthe  minimum
\npenalty\t leviable  under  section 271<\/a> (1)  (c)\tof  the\t Act
\nexceeded  the  sum of rupees one thousand,  the\t cases\twere
\nreferred  under section 274(2)<\/a> of the Act to the  Inspecting
\nAssistant Commissioner.\n<\/p>\n
The  Inspecting\t Assistant Commissioner thereupon  grave  an
\nopportunity  to\t the  assessee of being\t heard\tand,  after-
\nhearing\t him, came to the conclusion that the  assessee\t had
\nconcealed  his income and deliberately furnished  inaccurate
\nparticulars  thereof  for all the four assessment  years  in
\nquestion.   He accordingly levied “penalties of Rs.  21,062,
\nRs.  1,14,477,\tRs.  2,02,584  and  Rs.\t 1,02,731  for\t the
\nassessment  years  1959-60,  1960-61,  1961-62\tand  1962-63
\nrespectively.\t In  appeal  before  the  Tribunal  it\t was
\nsubmitted  on behalf of the assessee that there had been  no
\nvalid levy of the penalties because the penalty\t proceedings
\nhad  not been commenced in the course of  proceedings  under
\nthe Act.  The Tribunal rejected this contention and observed
\nthat  as the Income Tax Officer had given directions in\t the
\nassessment  order  for the issue of a notice  under  section
\n277(1)(c)<\/a>  the\tpenalty proceedings could be  said  to\thave
\ncommenced  during the course of the  assessment\t proceedings
\nand therefore levy of penalty was not invalid.\tThe Tribunal
\nalso rejected the submission made on behalf of the  assessee
\nthat there was no evidence to show that the assessee was the
\nowner  of the business of Kohinoor Mills and that there\t had
\nbeen concealment of his income on the part of the  assessee.
\nThe  Tribunal, however, gave relief to the assessee  in\t the
\nmatter\tof quantum of penalty.\tOn application made  by\t the
\nassessee, the questions reproduced earlier were referred  to
\nthe  High  Court.   The High Court,  as\t already  mentioned,
\nanswered
\n392<\/span>
\nboth  the questions in the affirmative and in favour of\t the
\ndepartment.   So  far  as the assessment  year\t1961-62\t was
\nconcerned the penalty proceedings were held to be invalid on
\na ground with which we are not concerned.\n<\/p>\n
Mr. Chagla on behalf of the assessee appellant has before us
\nassailed the answers to the two questions given by the\tHigh
\nCourt.\t It is urged that there was no proper initiation  of
\nproceedings  for the imposition of penalty.   The  requisite
\nsatisfaction  of  the Income Tax Officer, according  to\t the
\nlearned counsel, has also not been shown to have existed for
\nthe  initiation\t of  the proceedings.\tThere  was  also  no
\nmaterial  or evidence before the Tribunal, it is  submitted,
\nto  hold  that the assessee had deliberately  concealed\t the
\nparticulars  of\t his income or\thad  deliberately  furnished
\ninaccurate particulars of his income.  The above submissions
\nhave  been  controverted by Mr. Karkhanis on behalf  of\t the
\ndepartment and, in our opinion, are without merit.
\nAccording  to clause (c) of sub-section (1) of\tsection\t 271<\/a>
\n,of  the  Act, if the Income Tax Officer  or  the  Appellate
\nAssistant  Commissioner\t in the course\tof  any\t proceedings
\nunder the Act is satisfied that any person has concealed the
\nparticulars   of   his\tincome\t or   furnished\t  inaccurate
\nparticulars  of such income, he may direct that such  person
\nshall  pay  in\taddition to the amount of  tax,\t by  way  of
\npenalty a sum calculated in accordance with clause, (iii) of
\nthat  sub-section.   Section 274<\/a> of the Act  prescribes\t the
\nprocedure for the imposition of penalty and reads as under :\n<\/p>\n
\t      “274.  Procedure.-No order imposing a  penalty
\n\t      under  this Chapter shall be made\t unless\t the
\n\t      assessee\thas been heard, or has been given  a
\n\t      reasonable opportunity of being heard.
\n\t      (2)   Notwithstanding  anything  contained  in
\n\t      clause (iii)of sub-section (1) of section 271<\/a>,
\n\t      if in a case falling under clause (c) of\tthat
\n\t      sub-section,  the\t minimum  penalty  imposable
\n\t      exceeds  a  sum of rupees\t one  thousand,\t the
\n\t      Income Tax Officer shall refer the case to the
\n\t      Inspecting  Assistant Commissioner who  shall,
\n\t      for the purpose, have all the powers conferred
\n\t      under  this  Chapter  for\t the  imposition  of
\n\t      penalty.\n<\/p><\/blockquote>\n
\t      (3)   An\tAppellate Assistant Commissioner  on
\n\t      making an order under this Chapter imposing  a
\n\t      penalty,\tshall forthwith send a copy  of\t the
\n\t      same to the Income Tax Officer.”\n<\/p><\/blockquote>\n
Clause\t(c)  of sub-section (1) of section  271<\/a>\t shows\tthat
\noccasion  for  taking  proceedings for\tpayment\t of  penalty
\narises if the Income Tax Officer or the Appellate  Assistant
\nCommissioner is
\n393<\/span>
\nsatisfied  that any person has concealed the particulars  of
\nhis  income  or\t furnished inaccurate  particulars  of\tsuch
\nincome. it has also to be shown that the Income Tax  Officer
\nor the Appellate Assistant Commissioner was so satisfied  in
\nthe  course  of proceedings under the Act.  In\tthe  present
\ncase,  we find that the Income Tax Officer while making\t the
\nassessment orders for the assessment years in question\theld
\nthat  Kohinoor\tMills  had  been  wrongly  shown  to  be   a
\npartnership  firm and that the other alleged  partners\twere
\nsimply\tname lenders for the assessee.\tIt was further\theld
\nthat  Kohinoor\tMills  was the Proprietary  concern  of\t the
\nassessee  and  the  income  from  that\tconcern\t should\t  be
\nconsidered  to\tbe the income of the assessee.\t Notice\t was
\nordered\t to  be issued for proposed  penalty  under  section
\n271(1)(c)<\/a>  of  the  Act to the assessee “in  regard  to\t the
\nconcealment  of\t and furnishing\t inaccurate  particulars  of
\nincome” from Kohinoor Mills.  Notices, it would appear, were
\nthereafter issued by the Income Tax Officer to the assessee.
\nThe  fact that notices were issued subsequent to the  making
\nof  the\t assessment orders would not, in our  opinion,\tshow
\nthat  there  was no satisfaction of the Income\tTax  Officer
\nduring\tthe  assessment proceedings that  the  assessee\t had
\nconcealed  the\tparticulars of his income or  had  furnished
\nincorrect particulars of such income.  What is\tcontemplated
\nby clause (1) of section 271<\/a> is that the Income Tax  Officer
\nor  the\t Appellate Assistant Commissioner should  have\tbeen
\nsatisfied  in  the  course  of\tproceedings  under  the\t Act
\nregarding  matters  mentioned in the clauses  of  that\tsub-
\nsection.   It is not, however, essential that notice to\t the
\nperson proceeded against should have also been issued during
\nthe  course of the assessment proceedings.  Satisfaction  in
\nthe  very nature of things precedes the issue of notice\t and
\nit  would not be correct to equate the satisfaction  of\t the
\nIncome Tax Officer or Appellate Assistant Commissioner\twith
\nthe actual issue of notice.  The issue of notice indeed is a
\nconsequence  of the satisfaction of the Income Tax Officer
\nor the Appellate Assistant Commissioner and it would, in our
\nopinion, be sufficient compliance with the provisions of the
\nstatute if the Income Tax Officer or the Appellate Assistant
\nCommissioner  is satisfied about the matters referred to  in
\nclauses (a) to (c) of sub-section (1) of section 271<\/a>  during
\nthe  course of proceedings under the Act even though  notice
\nto  the\t person\t proceeded  against  in\t pursuance  of\tthat
\nsatisfaction is issued subsequently.  We may in this context
\nrefer  to a decision of five judges bench of this  Court  in
\nthe  case of Commissioner of Income Tax, Madras and  Another
\nv. S. V. Angidi Chettiar<\/a>(1).  Shah J speaking for the  Court
\nwhile dealing with section 28<\/a> of the Indian Income Tax\tAct,
\n1922 observed:\n<\/p>\n
(1)  [1962] 441.T.R.739.\n<\/p>\n
394<\/span><\/p>\n
\t      “The power to impose penalty under section  28<\/a>
\n\t      depends  upon the satisfaction of\t the  Income
\n\t      Tax Officer in the course of proceedings under
\n\t      the  Act; it cannot be exercised if he is\t not
\n\t      satisfied\t about the existence  of  conditions
\n\t      specified\t in clauses (a), (b) or\t (c)  before
\n\t      the proceedings are concluded.  The proceeding
\n\t      to  levy penalty has, however, not to be\tcom-
\n\t      menced  by the Income Tax Officer\t before\t the
\n\t      completion  of the assessment  proceedings  by
\n\t      the  Income Tax Officer.\tSatisfaction  before
\n\t      conclusion  of the proceeding under  the\tAct,
\n\t      and not the issue of a notice or initiation of
\n\t      any  step for imposing penalty is a  condition
\n\t      for the exercise of the jurisdiction.”\n<\/p><\/blockquote>\n
The appellant in the present case, it may be mentioned,\t has
\nnot  produced  or got printed in the paper book\t the  notice
\nwhich  was  issued  to\thim by the  Income  Tax\t Officer  in
\nconnection  with the imposition of penalty.  In the  absence
\nof that notice, it cannot be said, as has now been suggested
\non  behalf  of\tthe assessee appellant, that  there  was  no
\nmention in the notice of the satisfaction of the Income\t Tax
\nOfficer\t on  the point that the assessee had  concealed\t the
\nparticulars  of\t his  income  or  had  furnished  inaccurate
\nparticulars thereof.\n<\/p>\n
We are also not impressed by the argument advanced on behalf
\nof the appellant that the proceedings for the imposition  of
\npenalty were initiated not by the Income Tax Officer but  by
\nthe  Inspecting Assistant Commissioner when the\t matter\t had
\nbeen  referred to him under section 274(2)<\/a> of the Act.\t The
\nproceedings  for the imposition of penalty in terms of\tsub-
\nsection (1) of section 271<\/a> have necessarily to be  initiated
\neither\tby  the\t Income\t Tax Officer  or  by  the  Appellate
\nAssistant  Commissioner.   The\tfact  that  the\t Income\t Tax
\nOfficer\t has to refer the case to the  Inspecting  Assistant
\nCommissioner  if the minimum imposable penalty\texceeds\t the
\nsum  of rupees one thousand in a case falling  under  clause\n<\/p>\n
(c)  of sub-section (1) of section 271<\/a> would not  show\tthat
\nthe  proceedings in such a case cannot be initiated  by\t the
\nIncome Tax Officer.  The Income Tax Officer in such an event
\ncan refer the case to the Inspecting Assistant\tCommissioner
\nafter initiating the proceedings.  It would, indeed, be\t the
\nsatisfaction of the Income Tax Officer in the course of\t the
\nassessment  proceedings regarding the concealment of  income
\nwhich  would  constitute  the basis and\t foundation  of\t the
\nproceedings for levy of penalty.\n<\/p>\n
There  is also no force in the submission made on behalf  of
\nthe  appellant\tthat the Income Tax Officer  before  feeling
\nsatisfied regarding the necessity of initiating\t proceedings
\nfor imposition
\n395<\/span>
\nof  penalty and before issuing consequential  notice  should
\nhave  issued  another  notice to the  assessee\tand  held  a
\npreliminary  enquiry regarding the necessity  of  initiating
\nproceedings.  Such a course, in our opinion, would result in
\nmere  duplication of the procedure without any advantage  to
\nthe  parties.  A similar contention was advanced in  a\tcase
\nrelating  to initiation of proceedings under section  34<\/a>  of
\nthe  Indian  Income Tax Act, 1922 and was  repelled  by\t the
\nJudicial  Committee  in the case of Commissioner  of  Income
\nTax, Bengal v. M\/s.  Mahaliram Ramjidas<\/a>(1) in the  following
\nwords :\n<\/p>\n
\t      “Therefore a construction of section 34<\/a>  which
\n\t      requires\ta quasi-judicial enquiry to be\theld
\n\t      before  the  powers under the section  can  be
\n\t      operated\twould result in mere duplication  of
\n\t      procedure\t and  in two enquiries of  the\tsame
\n\t      kind, into the same matter, conducted by\tthe
\n\t      same  official, and without any  advantage  to
\n\t      the  parties.  A construction so\tunreasonable
\n\t      and unpractical ought not to be preferred when
\n\t      another  construction is\topen.\tAccordingly,
\n\t      their Lordships are of opinion that the Income
\n\t      Tax Officer is not required by the section  to
\n\t      convene  the assessee, or to intimate  to\t him
\n\t      the  nature of the alleged escapement,  or  to
\n\t      give him an opportunity of being heard, before
\n\t      he decides to operate the powers conferred  by
\n\t      the section.”\n<\/p><\/blockquote>\n
It  may\t also  be  observed that  what\tis  contemplated  by
\nsections  271<\/a>  and 274<\/a> of the Act is that  there  should  be
\nprima  facie satisfaction of the Income Tax Officer  or\t the
\nAppellate  Assistant Commissioner in respect of the  matters
\nmentioned in subsection (1) before he hears the assessee  or
\ngives  him  an\topportunity  of\t being\theard.\t The   final
\nconclusion  on the point as to whether the  requirements  of
\nclauses\t (a),  (b)  and\t (c) of\t section  271(1)<\/a>  have\tbeen
\nsatisfied would be reached only after the assessee has\tbeen
\nheard  or has been given a reasonable opportunity  of  being
\nheard.\n<\/p>\n
The  argument that there was no material or evidence  before
\nthe  Tribunal  to hold that the\t assessee  had\tdeliberately
\nconcealed the particulars of his income or had\tdeliberately
\nfurnished  inaccurate particulars of such income is  equally
\nbereft\tof  force.   The Tribunal while\t dealing  with\tthis
\naspect of the matter referred to its earlier observations in
\nthe  appeal  relating  to  thE refusal\tof  the\t Income\t Tax
\nauthorities  to\t register Kohinoor Mills as a  firm.   Those
\nobservations ‘Were as under :\n<\/p>\n
\t      “In our view, the Income-Tax authorities\twere
\n\t      fully   justified\t  in   refusing\t  to   grant
\n\t      registration to the firm for
\n(1)  [1940] 8 IJR 442.\n<\/p><\/blockquote>\n
8-L498 SupCI\/73
\n396<\/span>
\n\t      all  the\tthree years.  On going\tthrough\t the
\n\t      statements   of\tRamanbhai Thakorlal   and
\n\t      Gopaldas,\t we  have  no  doubt  at  all\tthat
\n\t      Ramanbhai,   Thakorlal  and  Kirit  were\t not
\n\t      partners in this business.  Thakorlal was mere
\n\t      student for a considerable part of the period,
\n\t      during which he masqueraded as a partner.\t The
\n\t      qualifications of both Thakorlal and Ramanbhai
\n\t      to  be  partners of this\tbusiness  were\tonly
\n\t      wholly inadequate to, the point of being\tnon-
\n\t      existence.   They\t had  no  knowledge  of\t the
\n\t      happening of the business and they had no con-
\n\t      trol  whatsoever\ton the\tprofits\t which\twere
\n\t      accumulated in their names.  The profits\twere
\n\t      finally  disposed of after Shri D. M.  Manasvi
\n\t      became the sole proprietor of the business and
\n\t      even  before he became the sole proprietor  he
\n\t      had  extracted the profits from  the  business
\n\t      under  guise of loans to be utilised  for\t his
\n\t      own  purpose.  There is no doubt left  in\t our
\n\t      minds that the business was under the  control
\n\t      of  Shri D. M. Manasvi once the three  dummies
\n\t      are out of the way, Shri D. M. Manasvi is\t the
\n\t      only  adult  person  left\t in  charge  of\t the
\n\t      business\tand  the three minors are  only\t his
\n\t      grand  children.\t We are, therefore,  of\t the
\n\t      view  that  not  only there  was\tno  firm  in
\n\t      existence\t as alleged by the partnership\tdeed but t
\nhat the business belonged to Shri D.  M.\n<\/p>\n
\t      Manasvi.\tThe inclusion of the profits of\t the
\n\t      business\tin  the\t assessment of\tShri  D.  M.\n<\/p>\n
\t      Manasvi  is not far fetched or  fantastic,  as
\n\t      the learned counsel suggested in the course of
\n\t      his  arguments.  According to the\t partnership
\n\t      deed,  there  were four  adult  partners.\t  If
\n\t      three out of these four were dummies the\tonly
\n\t      real  and\t effective partner was\tShri  D.  M.\n<\/p>\n
\t      Manasvi.\t The three minors who were  admitted
\n\t      to  the benefits of the partnership  were\t his
\n\t      grand children.  The accumulated profits while
\n\t      the  business was run in the guise of a  firm
\n\t      were taken over by Shri D. M. Manasvi for\t use
\n\t      according\t to his own sweet will.\t  The  final
\n\t      disposition of the profits was made only after
\n\t      he  shed\tthe  disguise and  became  the\tsole
\n\t      proprietor  of the business and the manner
\n\t      in which the funds were ultimately channelised
\n\t      into  the investment in the company  in  which
\n\t      his  family was interested in the name of\t his
\n\t      son Ravindra only adds the finishing touch  to
\n\t      the scheme.  We would, therefore, confirm\t the
\n\t      orders of the Income Tax authorities  refusing
\n\t      registration  to\tthe firm for all  the  three
\n\t      assessment years in question.”\n<\/p>\n
It  would  thus\t follow\t that  the  Tribunal  came  to\t the
\nconclusion  on\tthe  basis of  relevant\t evidence  that\t the
\nbusiness of Kohinoor
\n397<\/span>
\nMills  was under the control of the assessee and that  there
\nwas  no\t firm in existence as alleged.\t The  Tribunal\talso
\nfound  that the income of the said concern belonged  to\t the
\nassessee  himself  even though the business was run  in\t the
\nguise  of a firm.  It was held that the whole scheme was  to
\ndisguise  the profits of the assessee as those of the  firm.
\nIt  cannot  therefore  be said that there  was\tno  relevant
\nmaterial  or evidence before the Tribunal to hold  that\t the
\nassessee  had deliberately concealed the particulars of\t his
\nincome or had deliberately furnished inaccurate\t particulars
\nof such income.\n<\/p>\n
Mr.  Chagla  has  referred to the case\tof  Commissioner  of
\nIncome\tTax,  West  Bengal I v.\t Anwar\tAli<\/a>(1)\twherein\t the
\nrelevant  head-note which is based upon the observations  in
\nthe body of the judgment, reads as under:\n<\/p>\n
\t      “Proceedings  under section 28<\/a> of\t the  Income
\n\t      Tax  Act,\t 1922 are penal in  character.\t The
\n\t      gist of the offence under section 2<\/a> 8<\/a> (1)\t (c)
\n\t      is   that\t the  assessee\thas  concealed\t the
\n\t      particulars  of  his  income  or\tdeliberately
\n\t      furnished\t  inaccurate  particulars  of\tsuch
\n\t      income and the burden is on the department  to
\n\t      establish\t that the receipt of the  amount  in
\n\t      dispute  constitutes income of  the  assessee.
\n\t      It  there is no evidence on the record  except
\n\t      the  explanation given by the assessee,  which
\n\t      explanation  has. been found to be  false,  it
\n\t      does  not follow that the receipt\t constitutes
\n\t      his  taxable  income.  It would  be  perfectly
\n\t      legitimate to say that the mere fact that\t the
\n\t      explanation of the assessee is false does\t not
\n\t      necessarily  give rise to the  inference\tthat
\n\t      the  disputed  amount represents\tincome.\t  It
\n\t      cannot  be said that the finding given in\t the
\n\t      assessment  proceedings  for  determining\t  or
\n\t      computing the tax is conclusive.\tHowever,  it
\n\t      is  good\tevidence.   Before  penalty  can  be
\n\t      imposed  the  entirety of\t circumstances\tmust
\n\t      reasonably  point to the conclusion  that\t the
\n\t      disputed\tamount represented ,income and\tthat
\n\t      the  assessee  had consciously  concealed\t the
\n\t      particulars of his income or had\tdeliberately
\n\t      furnished inaccurate particulars.”\n<\/p><\/blockquote>\n
On  the basis of the dictum laid down in the above case,  it
\nis  urged  by Mr. Chagla that from the mere  fact  that\t the
\nexplanation of the assessee in the present case was found to
\nbe  false  it  did  not\t follow\t that  the  disputed  amount
\nrepresented his income and that the assessee had consciously
\nconcealed the particulars of his income or had\tdeliberately
\nfurnished  inaccurate particulars.  In this respect we\tfind
\nthat in the present case the inference that
\n(1)  [1970] 76 I.T.R. 696.\n<\/p>\n
398<\/span><\/p>\n
the  assessee had consciously concealed the _particulars  of
\nhis   income  or  had  deliberately   furnished\t  inaccurate
\nparticulars  is\t based not merely upon the  falsity  of\t the
\nexplanation  given by the assessee.  On the contrary, it  is
\nmade amply clear by the order of the Tribunal that there was
\npositive material to indicate that the business of  Kohinoor
\nMills  belonged to the assessee and the whole scheme was  to
\ndisguise  the profits of the assessee as those of a firm  of
\nfour partners.\tThe present is not a case of inference\tfrom
\nmere falsity of explanation given by the assessee but a case
\nwherein there- are definite findings that a device had\tbeen
\ndeliberately  created  by the assessee for  the\t purpose  of
\nconcealing  his income.\t The assessee as such can derive  no
\nassistance from Anwar Ali’s case.\n<\/p>\n
Reference has also been made to the observations in the case
\nof Commissioner of Income Tax, Madras v. Khoday Eswarsa\t and
\nSons<\/a> (1) that penalty cannot be levied solely on the  ‘basis
\nof  the reasons given in the original order  of\t assessment.
\nIt is, however, not necessary to go into this aspect of the
\nmatter because the penalty in the present case has not\tbeen
\nlevied\tsolely\ton  the basis of the reasons  given  in\t the
\noriginal order of assessment.  The Tribunal in this  respect
\nhas mainly taken into account the facts brought to light  by
\nthe  order made in appeal arising out of the refusal of\t the
\nIncome Tax authorities to register Kohinoor Mills.
\nAs a result of the above, we dismiss the appeals with costs.
\nOne hearing fee.\n<\/p>\n
K.B.N.\t\t\t       Appeals dismissed.\n(1) [1972] 83 I.T.R. 369.\n399<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D. M. Manasvi vs C.I.T., Gujarat Ii, Ahmedabad on 19 September, 1972 Equivalent citations: 1973 AIR 22, 1973 SCR (2) 389 Author: H R Khanna Bench: Khanna, Hans Raj PETITIONER: D. M. MANASVI Vs. RESPONDENT: C.I.T., GUJARAT II, AHMEDABAD DATE OF JUDGMENT19\/09\/1972 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ HEGDE, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-263442","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD. M. 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