Principal Commissioner Of Income Tax Central 2 v. Trisha Krishnan

RESERVED ON 20.06.2017 DATE OF JUDGMENT : 14.06.2018 CORAM : The Hon'ble Ms.INDIRA BANERJEE, CHIEF JUSTICEAND The Hon'ble Mr.JUSTICE M.SUNDAR Tax Case Appeal No.239 of 2017 Principal Commissioner of Income Tax Central 2,No.108, Mahatma Gandhi Road,Chennai-600 034. .. Appellant Vs... Respondent Trisha Krishnan Tax Case Appeal is preferred under Section 260A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunal, Madras 'B' Bench, dated 6[th] September, 2016 in ITANo.1009/Mds/2016. Against the order dated 20.01.2016 passed by thecommissioner of Income Tax(Appeal)18 Chennai and made in CIT(Appeals) order in ITA No.775/15-16 and against order dated24.09.2013 passed by the Deputy Commissioner of Income TaxCentral Circle 11(5) Chennai and made in P.A.No.ACDPT8973C inthe Assessment Year of 2010-11 and against the assessment orderdated 11.03.2013 passed by the Assistant Commissioner of IncomeTax Central Circle II (5) and made in ACDPT8973C in assessmentyear of 2010-11. For Appellant: Mr.T.R.Senthil KumarFor Respondent : Mr.M.P.Senthil Kumar - - - - JUDGMENT M.SUNDAR, J.This is a Tax Case Appeal assailing an order of the IncomeTax Appellate Tribunal, 'B' Bench, Chennai. The facts that areessential for appreciating our order are set out infra under thecaption 'Factual Matrix'.2FACTUAL MATRIX : 2(a) The Assessee in the instant case is a Cine artist andshe is also into modeling. Assessee is the sole respondent inthis Tax Case Appeal (hereinafter referred to as 'TCA' forbrevity) before us. The sole respondent shall be referred to as'Assessee' for the sake of convenience and clarity. ThePrincipal Commissioner of Income Tax, Central 2 is the appellantin this TCA and the appellant shall be referred to as 'Revenue'also for the sake of convenience and clarity. The assessmentyear which is subject matter of this TCA is 2010-2011(hereinafter referred to as the 'said assessment year' for thesake of clarity and convenience). 2(b) The Assessee, who is an individual filed her return ofincome for the said assessment year on 25.9.2010, declaring anincome of Rs.89,69,894/-. Subsequently, the Assessee filed arevised return on 30.03.2012 admitting a total income ofRs.4,41,40,950/-. As is evident from the numbers, the differencebetween the income originally declared on 25.9.2010 and thetotal income admitted in the revised return filed on 30.03.2012is Rs.3,51,71,053/-. It is not in dispute before us that thisentire differential sum is the advance received by the Assesseein the said assessment year from various cinema producerstowards the work to be done by her. In the original returnfiled, the advances received by the assessee had not been shownas income in the said assessment year, though the same have beenset out in the balance sheet filed by her with the Revenue. This'advance not being shown as income in the same assessment year'issue is the first aspect of the matter. 2(c) Thereafter an assessment order was made by theAssessing Officer (hereinafter referred to as 'AO' for the sakeof brevity) on 11.3.2013. In the assessment order, the AO hasnoticed that the Assessee had incurred expenses towards (a)Audit fees, (b) Commission and brokerage, (c) Professionalcharges and (d) security charges, for which Tax Deduction atSource (hereinafter referred to as 'TDS' for brevity) has beenmade, but no proof of remittance of the same into the Governmentaccount was produced. On this ground, as the proof for deductionof tax and remittance into the Central Government account withregard to the above said four heads of expenditure had not beenproduced, the AO disallowed and added to the total income thesaid sum (Rs.24,05,062/-) under Section 40(a)(ia) of the IncomeTax Act, 1961 (hereinafter referred to as 'IT Act” for the sakeof brevity). This disallowance qua TDS is the second aspect of the matter. the matter. 2(d) With regard to the above two aspects of the matter,namely, advances not shown as income in the said assessment yearand the disallowance on account of no proof for deduction andremittance of TDS, penalty proceedings were initiated and theRevenue, by an order dated 24.9.2013, imposed a penalty ofRs.1,16,11,020/- under Section 271(1)(c) of the IT Act. This sumwas arrived at by the Revenue by computing penalty at 100% oftax payable on what according to the Revenue is the concealedincome. What the Revenue contends as concealed income is thesums involved in the two aspects of the matter alluded to supra. 2(e) The above said order of penalty dated 24.9.2013 is thelone core issue in this case. 2(f) The order of penalty, as aforestated, passed by theDeputy Commissioner of Income Tax, Central Circle II(5),Chennai, was carried in appeal by the Assessee. The appeal wasbefore the Commissioner of Income Tax (Appeals) (hereinafterreferred to as 'CIT' for brevity), bearing ITA No.775/15-16. TheCIT, after scrutinizing the documents in a full fledged hearing,allowed the appeal holding on facts that there is no concealmentof income and the instant case does not attract penalty underSection 271(1)(c) of the IT Act on both the above said aspects.Revenue carried the matter to the Income Tax Appellate Tribunal,Chennai (hereinafter referred to as 'ITAT' for brevity) by wayof I.T.A.No.1009/Mds/2016. The ITAT also, after a detailedhearing and enquiry, by way of an order dated 6.9.2016 confirmedthe order of CIT. 2(g) Both CIT and ITAT, on facts and on scrutiny ofdocuments and a detailed / thorough enquiry touching uponvarious factual aspects, came to the conclusion with regard todisallowance qua TDS that the same was an inadvertent error onthe part of the accountant. With regard to the issue relating toadvances not being shown as income in the same / said assessmentyear, both the CIT and ITAT, concurrently, held that there is nodeliberate suppression or concealment of income on the part ofAssessee, as the Assessee was under the bona fide belief thatadvances received need not be shown as income in the same / saidassessment year. We shall discuss more about this under thecaption 'discussion' infra in this judgment. 2(h) With regard to this caption 'Factual Matrix', tocomplete the facts, it would suffice to note that the instantTCA before us has been filed by the Revenue assailing the abovesaid order of the ITAT dated 6.9.2016. 3DISCUSSION : 3(a) As would be evident from the factual matrix supra, theonly issue that falls our consideration in the instant TCA iswhether the Assessee is liable for penalty under Section 271(1) https://hcservices.ecourts.gov.in/hcservices/ (c) of the IT Act. In other words, the only issue that falls ourconsideration is whether the Assessee is guilty of concealmentof income, which is deliberate. 3(b) Mr.T.R.Senthil Kumar, learned counsel appearing forthe Revenue appellant would strenuously contend that theAssessee filed revised returns on 30.3.2012, only after theRevenue issued Section 143 notice on 23.9.2011 and therefore, itshould be construed that the Assessee is guilty of deliberateconcealment of income. 3(c) It is also not in dispute before us that as far asimposition of penalty under Section 271(1)(c) of the IT Act isconcerned, there is a legal presumption against Assessee and itis for the Assessee to prima facie show bonafides in thatregard. The moment the Assessee shows the same, the onus shiftsto the Revenue to establish that the concealment was deliberateand willful. 3(b) Mr.T.R.Senthil Kumar, learned counsel appearing forthe Revenue appellant would strenuously contend that theAssessee filed revised returns on 30.3.2012, only after theRevenue issued Section 143 notice on 23.9.2011 and therefore, itshould be construed that the Assessee is guilty of deliberateconcealment of income. 3(c) It is also not in dispute before us that as far asimposition of penalty under Section 271(1)(c) of the IT Act isconcerned, there is a legal presumption against Assessee and itis for the Assessee to prima facie show bonafides in thatregard. The moment the Assessee shows the same, the onus shiftsto the Revenue to establish that the concealment was deliberateand willful. 3(d) Though we had not ordered notice, when the matter washeard, Mr.M.P.Senthil Kumar, learned counsel was present onbehalf of the Assessee. As the learned counsel for the Assesseewas present before the Court, voluntarily / by his own volition,we decided to give audience to the learned counsel appearing onbehalf of the Assessee also, with the intention of gettingcomplete and exhaustive inputs on the matter, even to decidewhether to admit the TCA. 3(e) Learned counsel for the Assessee would point out thatit is incorrect to say that the Assessee filed her revisedreturn only after the issue of Section 143 notice on 23.9.2011.Learned counsel for the Assessee points out that the same issue(advances being treated as income in the same assessment year)arose for the assessee in the previous assessment years, beingAssessment Year 2005-06 and 2008-09 and the CIT by orders dated1.8.2011 held that advances received have to necessarily beshown as income in the same assessment year. On coming to knowabout this legal position, with the intention of not engaging inconfrontation with the Revenue, the Assessee decided to acceptthe orders of CIT in the above said previous assessment yearsand give quietus to the same. As the Assessee decided to acceptthe orders of the CIT for the previous assessment years, theAssessee chose to file a revised return for the said assessmentyear on 30.3.2012. 3(f) Be that as it may, one other important factor, whichthe learned counsel for the Assessee would point out, is inthe balance sheet that was annexed to the Return (even theoriginal return filed before the revised return) clearly showsthe advance which the Assessee has received and therefore, thereis no intention at all on the part of the Assessee to conceal.The learned counsel for the Assessee would further submit thatthe Assessee was under the bona fide belief that it is notnecessary to show the advances received in the said assessmentyear as income as she may have to return the advances received, if ultimately she is not able to perform her work for one reasonor the other. However, as stated supra, in the light of theorder of the CIT in the previous assessment years, the Assesseedecided to file the revised return and showed the advances asincome in the same assessment year, i.e., the said assessmentyear. 3(g) This submission on behalf of the Assessee thatadvances received were shown in the balance sheet even with theoriginal return and therefore, there is no intention to conceal,much less intention to conceal deliberately finds favour withus. However, we proceed to discuss the matter further. 3(h) Learned counsel for the Revenue would strenuouslycontend that it is a fit case for imposing penalty under Section271(1)(c) of the IT Act and to buttress his submission, thelearned counsel pressed into service two case laws, namely, MAKData (P.) Ltd. Vs. Commissioner of Income Tax-II [(2013) 38Taxmann.com 448 (SC)] and N.Ranjit Vs. Commissioner of IncomeTax-V, Chennai [(2013) 239 CTR 558] (Madras High Court DB). 3(g) This submission on behalf of the Assessee thatadvances received were shown in the balance sheet even with theoriginal return and therefore, there is no intention to conceal,much less intention to conceal deliberately finds favour withus. However, we proceed to discuss the matter further. 3(h) Learned counsel for the Revenue would strenuouslycontend that it is a fit case for imposing penalty under Section271(1)(c) of the IT Act and to buttress his submission, thelearned counsel pressed into service two case laws, namely, MAKData (P.) Ltd. Vs. Commissioner of Income Tax-II [(2013) 38Taxmann.com 448 (SC)] and N.Ranjit Vs. Commissioner of IncomeTax-V, Chennai [(2013) 239 CTR 558] (Madras High Court DB). 3(i) We have given our careful consideration to the ratioin the two case laws. In MAK Data (P.) Ltd.'s case, certainamounts received as share application money, was concealed andin response to a show cause notice, the Assessee offered thesame as income. Therefore, it is clearly distinguishable onfacts. 3(j) With regard to N.Ranjit's case, the Assessee hadconcealed the capital gains and in the course of enquiry by theinvestigation against Assessee's wife with regard to certainmutual fund transactions made by her, this concealment surfaced.Therefore, N.Ranjit's case is also clearly distinguishable onfacts. However, there can be no dispute that the final outcomeof any case and the manner / mode of disposal adopted by thecourt is not in any manner relevant for applying the ratio inthe given case. Therefore, in N.Ranjit's case though on factsthe Division Bench confirmed the conclusion that the assesseehad concealed income and was liable to be mulcted with penalty,the ratio is that the penal provisions are not automatic and thelevy itself depends upon the facts and circumstances of eachcase. The said finding is found in part of paragraph 12 ofN.Ranjit's case, which reads as follows : “12.It is not that every case of additionwarrants levy of penalty. The application ofpenal provisions are not automatic and the levyitself depends upon the facts and circumstancesof each case. ........” 3(k) Learned counsel for the Revenue, though had filed someother case laws, had pressed into service only these two caselaws and we have dealt with these two case laws. https://hcservices.ecourts.gov.in/hcservices/ 3(l) Though it was not argued in the course of oralsubmissions, in the hearing before us, we find that in thewritten submissions filed by the Revenue, the learned counselfor the Revenue has pressed into service a judgment of aDivision Bench of this Court, being Commissioner of Income-taxVs. J.K.A. Subramania Chettiar [(1977) 110 ITR 602 (MAD)].Pressing into service this judgment, the Revenue would contendthat meaning of the words 'Omission' and 'Discover', asoccurring in Section 139(5) of the Income-tax Act, 1961, have tobe read in the light of the ratio in J.K.A. SubramaniaChettiar's case. We find that the ratio in J.K.A. SubramaniaChettiar's case runs as follows : https://hcservices.ecourts.gov.in/hcservices/ 3(l) Though it was not argued in the course of oralsubmissions, in the hearing before us, we find that in thewritten submissions filed by the Revenue, the learned counselfor the Revenue has pressed into service a judgment of aDivision Bench of this Court, being Commissioner of Income-taxVs. J.K.A. Subramania Chettiar [(1977) 110 ITR 602 (MAD)].Pressing into service this judgment, the Revenue would contendthat meaning of the words 'Omission' and 'Discover', asoccurring in Section 139(5) of the Income-tax Act, 1961, have tobe read in the light of the ratio in J.K.A. SubramaniaChettiar's case. We find that the ratio in J.K.A. SubramaniaChettiar's case runs as follows : “In our opinion, section 139(5) will applyonly to a limited category of cases, namely,where in the original return there was anyomission or any wrong statement. The very word "omission " connotes an unintentional act.Equally, the words "wrong statement" will nottake in "a statement known to be false to theperson who made the Statement." However, the word"discovers" occurring in Section 139(5) will makeit clear that at the time of discovery only, aperson who has furnished a return finds out thatan inadvertent omission or an unintended wrongstatement had crept in the return filed by him.If a person who furnished the return was aware ofthe falsity of the statement and theincorrectness of the particulars of income evenat the time when he filed the original return,there was no question of that person subsequentlydiscovering the existence of the omission orcreeping in of the wrong statement in the returnalready filed by him. Therefore, we are of theopinion that Section 139(5) will apply only tocases of "omission or wrong statements" and notto cases of "concealment or false statements ".This conclusion of ours derives support from thelanguage used in Section 139(5).” 3(m) However, we find that J.K.A. Subramania Chettiar'scase was one where certain hundi transactions that the Assesseecame forward to disclose in the revised return, were found to beof bogus nature and ultimately, the falsity of hunditransactions was admitted. More over, it was a clear case offiling revised returns after being 'found out'. Therefore,J.K.A. Subramania Chettiar's case is clearly distinguishable onfacts and whatever the Division Bench has opined there is onlyin the context of that factual matrix. In our opinion, it doesnot help the Revenue in the instant case owing to the factualmatrix. However, even if the opinion of the Division Bench, which has been extracted supra, is applied to the facts of thiscase, it does not help the Revenue as there was no concealmentby the Assessee and there was no statement made by the Assesseeknowing it to be false. As stated supra, the balance sheetrevealed the advances received and at that point of time, thequestion of whether advances received in the assessment yearshould be shown in the same assessment year, was before the CITfor previous assessment years for the same Assessee. 3(n) Therefore, we have no hesitation in persuadingourselves to hold that the Assessee, in the instant case, hasnot concealed the income deliberately (particularly in the lightof the fact that advances have been shown in the balance sheetfiled even along with the original return) and therefore, is notliable for imposition of penalty under Section 271(1)(c) of theIT Act. 3(o) With regard to disallowance qua non furnishing ofchalans for deduction and remittance of TDS, on facts the CIThad come to the conclusion that it is an inadvertent error onthe part of the accountant. This has been confirmed by the ITAT. 3(p) Hearing a TCA under Section 260A of the IT Act, wewill not reexamine factual findings. We take it that thefactual findings arrived at by the CIT and confirmed by the ITATare conclusive. 3(o) With regard to disallowance qua non furnishing ofchalans for deduction and remittance of TDS, on facts the CIThad come to the conclusion that it is an inadvertent error onthe part of the accountant. This has been confirmed by the ITAT. 3(p) Hearing a TCA under Section 260A of the IT Act, wewill not reexamine factual findings. We take it that thefactual findings arrived at by the CIT and confirmed by the ITATare conclusive. 3(q) Having said this, it takes us to the proposed /substantial questions of law, on which the Revenue wanted thisTCA to be admitted. Questions, which according to the Revenueare substantial questions of law as proposed by the Revenue, inthe instant TCA, read as follows : “1.Whether on the facts and in thecircumstances of the case, the Hon'ble AppellateTribunal was correct in law in holding thatadditional income declared by the assessee byfiling revised return consequent to noticesu/s.143(2) and 142(1) does not attract penaltyu/s.271(1)(c) of Income Tax Act, 1961? 2.Whether the Tribunal is right in law intreating the revised return filed by theassessee as a valid return and holding that thesame was filed to avoid confrontation with theRevenue and thereby coming to the conclusionthat the additional income declared therein doesnot form a basis for levy of penalty u/s.271(1)(c) of the Income Tax Act, whereas, the originalreturn filed by the assessee has no omission soas to treat the revised return as a valid one? 3.Whether on the facts and in thecircumstances of the case and in law, theadmission made by the assessee in the revisedreturn offering higher amount of income does notattract penalty in view of Explanation 1 to Section 271(1)(c) of the Income Tax Act, 1961?4.Whether on the facts and in thecircumstances of the case, the Tribunal is rightin law in confirming the order of the CIT(A)wherein it was held that the disallowance u/s.40(a)(ia) does not attract penalty u/s.271(1)(c)of the Income Tax Act, 1961?” 3(r) We have carefully examined the questions set outsupra, which according to the Revenue are substantial questionsof law. 3(s) Section 260A(7) of the IT Act has clearly mandatedthat the provisions of the Code of Civil Procedure, 1908 ('CPC',for brevity), relating to appeals to the High Court shall, asfar as my be, apply in the case of appeals under this section.Therefore, we turn to Section 100 of CPC, which deals with theadmission of a second appeal on substantial questions of law. 3(t) Hon'ble Supreme Court has given the same meaning tothe concept of 'substantial question of law' to both theseprovisions, i.e., Section 100 CPC and Section 260A of IT Act.This can be inferred from the judgment of M.Janardhana Rao Vs.Joint Commissioner of Income Tax [2005 273 ITR 50 (SC) = (2005)2 SCC 324], wherein the Supreme Court remanded to the High Courtthe appeal under Section 260A of IT Act since substantialquestions of law were not framed at the time of admission andwere framed after the conclusion of arguments. In doing so, itreferred to the Apex Court judgment in Sir Chunilal V. Mehta &Sons Ltd. vs Century Spg. & Mfg. Co. Ltd. toenumerate the principles regarding substantial question of law.Though Chunilal Mehta's case dealt with Article 133(1) of theConstitution of India which provides for certificate of appealto be granted by the High Court, if the case involves asubstantial question of law of general importance, it was citedby the Apex Court to enumerate the principles regarding theconcept of ‘substantial question of law’. The same case wasreferred to by the Supreme Court in Hero Vinoth Vs. Seshammal[(2006) 5 SCC 545] to lay down the principles regardingsubstantial question of law in an appeal under Section 100 ofCPC. 3(u) We notice that the Hon'ble Supreme Court of India inHero Vinoth's case has clearly held that the substantialquestion of law occurring in Section 100 CPC is different anddistinct from a mere question of law. Relevant paragraph readsas follows : “24.The principles relating to Section 100CPC relevant for this case may be summarisedthus: (i) An inference of fact from the recitals orcontents of a document is a question of fact.But the legal effect of the terms of a documentis a question of law. Construction of a documentinvolving the application of any principle oflaw, is also a question of law. Therefore, whenthere is misconstruction of a document or wrongapplication of a principle of law in construinga document, it gives rise to a question of law. (ii) The High Court should be satisfied that thecase involves a substantial question of law, andnot a mere question of law. A question of lawhaving a material bearing on the decision of thecase (that is, a question, answer to whichaffects the rights of parties to the suit) willbe a substantial question of law, if it is notcovered by any specific provisions of law orsettled legal principle emerging from bindingprecedents, and, involves a debatable legalissue. A substantial question of law will alsoarise in a contrary situation, where the legalposition is clear, either on account of expressprovisions of law or binding precedents, but thecourt below has decided the matter, eitherignoring or acting contrary to such legalprinciple. In the second type of cases, thesubstantial question of law arises not becausethe law is still debatable, but because thedecision rendered on a material question,violates the settled position of law. (iii) The general rule is that High Court willnot interfere with the concurrent findings ofthe courts below. But it is not an absoluterule. Some of the well-recognised exceptions arewhere (i) the courts below have ignored materialevidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from provedfacts by applying the law erroneously; or (iii)the courts have wrongly cast the burden ofproof. When we refer to “decision based on noevidence”, it not only refers to cases wherethere is a total dearth of evidence, but alsorefers to any case, where the evidence, taken asa whole, is not reasonably capable of supportingthe finding. “ 3(v) With regard to 'substantial question of law', thetests laid down by the Supreme Court of India for finding outwhether a given set of questions of law are mere questions oflaw or substantial questions of law is found in Hero Vinoth'scase judgment. The ratio laid down by the Supreme Court is foundin paragraphs 21 to 23 of the said judgment, which read asfollows : 3(v) With regard to 'substantial question of law', thetests laid down by the Supreme Court of India for finding outwhether a given set of questions of law are mere questions oflaw or substantial questions of law is found in Hero Vinoth'scase judgment. The ratio laid down by the Supreme Court is foundin paragraphs 21 to 23 of the said judgment, which read asfollows : “21. The phrase “substantial question of law”,as occurring in the amended Section 100 CPC isnot defined in the Code. The word substantial,as qualifying “question of law”, means—of havingsubstance, essential, real, of sound worth,important or considerable. It is to beunderstood as something in contradistinctionwith—technical, of no substance or consequence,or academic merely. However, it is clear thatthe legislature has chosen not to qualify thescope of “substantial question of law” bysuffixing the words “of general importance” ashas been done in many other provisions such asSection 109 of the Code or Article 133(1)(a) ofthe Constitution. The substantial question oflaw on which a second appeal shall be heard neednot necessarily be a substantial question of lawof general importance. In Guran Ditta v. RamDitta [(1927-28) 55 IA 235 : AIR 1928 PC 172]the phrase “substantial question of law” as itwas employed in the last clause of the thenexisting Section 100 CPC (since omitted by theAmendment Act, 1973) came up for considerationand their Lordships held that it did not mean asubstantial question of general importance but asubstantial question of law which was involvedin the case. In Sir Chunilal case [1962 Supp (3)SCR 549 : AIR 1962 SC 1314] the ConstitutionBench expressed agreement with the followingview taken by a Full Bench of the Madras HighCourt in Rimmalapudi Subba Rao v. Noony Veeraju[AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] :(Sir Chunilal case [1962 Supp (3) SCR 549 : AIR1962 SC 1314] , SCR p. 557)“When a question of law is fairlyarguable, where there is room fordifference of opinion on it or where theCourt thought it necessary to deal withthat question at some length and discussalternative views, then the question wouldbe a substantial question of law. On the other hand if the question was practicallycovered by the decision of the highestcourt or if the general principles to beapplied in determining the question arewell settled and the only question was ofapplyingthoseprinciplestotheparticular fact of the case it would notbe a substantial question of law.” This Court laid down the following test asproper test, for determining whether a questionof law raised in the case is substantial: (SirChunilal case [1962 Supp (3) SCR 549 : AIR 1962SC 1314] , SCR pp. 557-58)“The proper test for determining whether aquestion of law raised in the case issubstantial would, in our opinion, bewhether it is of general public importanceor whether it directly and substantiallyaffects the rights of the parties and if sowhether it is either an open question inthe sense that it is not finally settled bythis Court or by the Privy Council or bythe Federal Court or is not free fromdifficulty or calls for discussion ofalternative views. If the question issettled by the highest court or the generalprinciples to be applied in determining thequestion are well settled and there is amere question of applying those principlesor that the plea raised is palpably absurdthe question would not be a substantialquestion of law.” 22. In Dy. Commr. v. Rama Krishna Narain [1954SCR 506 : AIR 1953 SC 521] also it was held thata question of law of importance to the partieswas a substantial question of law entitling theappellant to a certificate under (the then)Section 100 CPC. 22. In Dy. Commr. v. Rama Krishna Narain [1954SCR 506 : AIR 1953 SC 521] also it was held thata question of law of importance to the partieswas a substantial question of law entitling theappellant to a certificate under (the then)Section 100 CPC. 23. To be “substantial” a question of law mustbe debatable, not previously settled by law ofthe land or a binding precedent, and must have amaterial bearing on the decision of the case, ifanswered either way, insofar as the rights ofthe parties before it are concerned. To be aquestion of law “involving in the case” theremust be first a foundation for it laid in thepleadings and the question should emerge from https://hcservices.ecourts.gov.in/hcservices/ the sustainable findings of fact arrived at bycourt of facts and it must be necessary todecide that question of law for a just andproper decision of the case. An entirely newpoint raised for the first time before the HighCourt is not a question involved in the caseunless it goes to the root of the matter. Itwill, therefore, depend on the facts andcircumstance of each case whether a question oflaw is a substantial one and involved in thecase or not, the paramount overall considerationbeing the need for striking a judicious balancebetween the indispensable obligation to dojustice at all stages and impelling necessity ofavoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari[(2001) 3 SCC 179] .) “ 3(w) We applied the above test in the instant case. Thereis no debatable question of law of substance necessary fordetermining the rights of the parties in the case. This is justa case where the question as to whether the assessee is liableto be mulcted with penalty under Section 271(1)(c) of IT Act inthe given fact scenario / conduct needs to be answered.Therefore, we have no hesitation whatsoever in holding that theproposed questions of law are definitely not substantialquestions of law. 3(x) We are of the view that they may not even qualify aspure questions of law as they are all turning heavily on facts.3(y) We have held elsewhere in this judgment that thefactual findings returned by the CIT and ITAT are held to beconclusive as we are sitting in Section 260A of the IT Act. 4CONCLUSION :4(a) Owing to all that have been stated supra, we have nohesitation whatsoever in holding that no substantial questionsof law arise in the instant TCA and the same deserve to bedismissed. 4(b) We have also concluded that the assessee is not guiltyof deliberate concealment of income and is not liable to bemulcted with penalty under Section 271(1)(c) of the IT Act. 5DECISION :5(a) This TCA is dismissed, confirming the order oftheITATdated6.9.2016bearingreferenceNo.I.T.A.No.1009/Mds/2016, which in turn confirms the order ofthe CIT dated 20.01.2016 bearing reference ITA No.775/15-16. TheCIT order has set aside the order of the Deputy Commissioner ofIncome Tax, Central Circle II(5), Chennai, dated 24.9.2013,imposing penalty of Rs.1,16,11,020/- on the Assessee. https://hcservices.ecourts.gov.in/hcservices/ 5(b) Considering the fact that we have not even issuednotice on admission and that the learned counsel for theAssessee voluntarily appeared before this Court when the matterwas taken up for admission, we are not even examining the aspectof costs. Therefore, the parties will be left to bear theirrespective costs. Sd/- Assistant Registrar(CS-IX) //True Copy// https://hcservices.ecourts.gov.in/hcservices/ 5(b) Considering the fact that we have not even issuednotice on admission and that the learned counsel for theAssessee voluntarily appeared before this Court when the matterwas taken up for admission, we are not even examining the aspectof costs. Therefore, the parties will be left to bear theirrespective costs. Sd/- Assistant Registrar(CS-IX) //True Copy// Sub Assistant RegistrarvvkTo1.The Commissioner of Income Tax (Appeals), Mahatma Gandhi Road, Nungambakkam, hennai-600 034.2.The Income Tax Appellate Tribunal, 'B' Bench, Chennai.3.The Deputy Commissioner of Income Tax (Appeals)18 Chennai 34.4.The Asst. Commissioner of Income Tax Central Circle (5) Chennai 34.5.The Assistant Registrar Income Tax Appellate Tribunal 3[rd] floor Rajaji Bhavan, Besant Nagar, Chennai 600 090.+1cc to Mr.G.BASKAR, Advocate, S.R.No.37338 +1cc to Mr.T.R.SENTHILKUMAR, Advocate, S.R.No.37829(17.07.2018) Judgment inT.C.A.No.239 of 2017 JP(CO)TR(21/06/2018) https://hcservices.ecourts.gov.in/hcservices/