Kerala H.C : the provisions of s. 209A are not attracted to the facts of this case

High Court Of Kerala

CIT vs. R. Bharathan

Section 256(2)

Asst. Year 1983-84

V.V. Kamat & P.A. Mohammed, JJ.

OP No. 15988 of 1995

15th July, 1996

Counsel Appeared
P.K.R. Menon, for the Petitioner : C. Kochunni Nair, M.A. Firoze & Dale P. Kurian, for the RespondentJUDGEMNT

V. V. KAMAT, J. :

With regard to the same assessee, in OP No. 14917 of 1995 [reported as CIT vs. R. Bharathan (1998) 148 CTR (Ker) 199], we have already called for a reference by the necessary direction with regard to the same asst. yr. 1983-84. The facts are the same. The question in this petition is whether the provisions of s. 209A of the IT Act get attracted in a situation where initially the assessee shows losses and thereby no (sic) taxable income comes to be assessed on the basis of an enormous amount of income found out on the scrutiny of accounts. The Tribunal has relied upon the decision of the CIT(A) with regard to the quantum proceedings whereby the quantum is reduced to Rs. 5 lakhs. On the above basis, the Tribunal has cancelled the penalty proceedings which was the subject-matter of OP No. 14917 of 1985, and, in addition thereto, has come to the conclusion that the provisions of s. 209A of the Act would not be applicable. In our judgment, the questions are questions of law and arerequired to be considered. We, therefore, direct the Tribunal to prepare the necessary statement of the case in detail and annex all the necessary orders with regard to the quantum proceedings, penalty proceedings as well as proceedings relating to the conclusion regarding attraction of the provisions of s. 209A of the Act and thereafter refer the following two questions to this Court :

“1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that the provisions of s. 209A are not attracted to the facts of this case ?

2. Whether, on the facts and in the circumstances of the case, (i) did the assessee have taxable income under the provisions of the IT Act ? (ii) the Tribunal is right in law and fact in confirming the cancellation of penalty under s. 273(2)(a) of the IT Act ? (iii) the Tribunal is justified in equating taxable income with returned income.” The two references arising out of both these OP Nos. 14917 of 1995 and 15988 of 1995, be placed together for hearing and final decision after receipt.

[Citation:230 ITR 189]

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