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Section 271(1)(c) of the Income-tax Act, 1961 - Penalty - For concealment of income - ITO held that certain income shown by assessee as income of other persons was, in fact, its own concealed income - On reference relating to inclusion of impugned income in assessee's income High Court had held that impugned income was not assessee's income - Whether, in view of High Court decision, penalty for concealment of income could not be levied on assessee - Held, on facts, yes Facts In the relevant assessment year, a penalty was levied on the assessee under section 271(1)(c) on the ground that income from certain items was, in fact, the income of the assessee, and not the income of other persons as claimed by the assessee. On merits, in an earlier reference, the High Court had already held that the aforesaid income said to be the income of the assessee was not in fact the assessee's income. On reference: Held In view of the High Court decision in the earlier reference relating to the inclusion of the impugned income in the assessee's income, the penalty case did not survive, and, therefore, in the instant case, the I AC was not justified in levying penalty under section 277(1)(c ). A.K. Sen and Bishambar Lal for the Applicant. K.K. Wadhera and P.N. Misra for the Respondent. JUDGMENT Kapur, J. - The questions referred to us in this reference have already been set out in the judgment in Income-tax Reference No. 217 of 1975. For convenience, they are repeated again. They are as follows: "1. Whether, on the facts and in the circumstances of the case, the levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 was justified? 2. If answer to the aforesaid question is in the affirmative, whether on the facts and in the circumstances of the case, while levying penalty the tax sought to be evaded is to be calculated by including in the income returned the amounts shown in Part F of the return? 3. Whether, on the facts and in the circumstances of the case, for calculation of penalty, item of Rs. 3,78,329 has to be disregarded as being income not liable to be returned? 4. Whether, on the facts and in the circumstances of the case, for purpose of calculation of the…

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