HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA 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 JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No.333 of 2014 JUDGMENT: (Per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred and admitted against the judgment and order of the learned Tribunal dated 31.5.2013 in relation to the assessment year 2008-2009 on the following suggested questions of law.
(i) “In the facts and circumstances of the case, whether the Tribunal (ITAT) is correct in law in upholding the cancellation of penalty levied under Section 277(1)(c) of the Income Tax Act, 1961, when the concealment of income by the respondent- assessee was established by its failure in not paying the tax either in the form of advance tax or self assessment tax for the effected income as per the books of account maintained by it till the survey was conducted by the Department?
(ii) In the facts and circumstances of the case, whether the Tribunal (ITAT) is correct in law in holding that there is no concealment of income by the respondent- assessee by not filing the return of income for the subject assessment year within the due date under Section 139 of the Act, as it has filed the said return within the time permitted under Section 139(4) of the Act, when the said case is attracted for levy of penalty in terms of Section 271(1)(c) of the Act?”
We have heard Sri B. Narasimha Sarma, the learned Counsel for the appellant, and gone through the impugned judgment and order of the learned Tribunal.
The learned Tribunal on fact found that the penalty proceedings were initiated on the basis of presumption. No penalty proceedings can be initiated based on presumption, and they can be initiated only when there have been clear findings of facts 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 as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J Date: 10.06.2014 GBS