Itta/333/2014 Of Commissioner Of Income Tax-Iii v. Sri Lakshmi Gayatri Hotels Private Limited

HIGH COURT OF JUDICATURE AT HYDERABADFOR THE STATE OF TELANGANA AND THE STATE OF ANDHRAPRADESH THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 333 of 2014 Date: 10.06.2014 Between: Commissioner of Income Tax-III,Hyderabad. … Appellant And Sri Lakshmi Gayatri Hotels Pvt. Ltd.,No.8, Rajbhavan Road, Somajiguda,Hyderabad. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTAANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No.333 of 2014 JUDGMENT:(Per the Hon’ble The Chief Justice Sri Kalyan JyotiSengupta) This appeal is sought to be preferred and admitted againstthe judgment and order of the learned Tribunal dated 31.5.2013 inrelation to the assessment year 2008-2009 on the followingsuggested questions of law. (i) “In the facts and circumstances of the case,whether the Tribunal (ITAT) is correct in law inupholding the cancellation of penalty levied underSection 277(1)(c) of the Income Tax Act, 1961, whenthe concealment of income by the respondent-assessee was established by its failure in not payingthe tax either in the form of advance tax or selfassessment tax for the effected income as per thebooks of account maintained by it till the survey wasconducted by the Department? (ii)In the facts and circumstances of the case, whether the Tribunal (ITAT) is correct in law in holding thatthere is no concealment of income by the respondent-assessee by not filing the return of income for thesubject assessment year within the due date underSection 139 of the Act, as it has filed the said returnwithin the time permitted under Section 139(4) of theAct, when the said case is attracted for levy ofpenalty in terms of Section 271(1)(c) of the Act?” We have heard Sri B. Narasimha Sarma, the learnedCounsel for the appellant, and gone through the impugnedjudgment and order of the learned Tribunal. The learned Tribunal on fact found that the penaltyproceedings were initiated on the basis of presumption. Nopenalty proceedings can be initiated based on presumption, andthey can be initiated only when there have been clear findings offacts as mentioned in Section 271(1)(c) of the Income Tax Act,1961. We do not find any element of law in this appeal. Hence, this appeal is dismissed. There will be no order asto costs. ___________________ K.J. SENGUPTA, CJ Date: 10.06.2014GBS ___________________ SANJAY KUMAR, J