H. S. AHLUWALIA, J.M.: These two appeals have been filed again common order dt. 25th Sept., 1984 of AAC and are therefore, dispose off by single order. very ticklish issue is involved in these appeals. Initially assessee as Karta of HUF was carrying on some business. On 24th Dec., 1973 partnership deed was executed which was made effective from 26th Oct., 1973 and as result thereof business was taken over by partnership firm consisting of assessee and his two major sons. 1/4th share of profits was also to go to Shri Satyanarain, minor son of assessee. assessee initially filed return for first year declaring income of Rs. 5,005 and assessment was completed accordingly. Thereafter, ITO realised that share income of his minor son was liable to be included in his income and therefore, he issued notice under s. 148. In response thereto, assessee filed return again showing nearly same income and claiming status as Karta of HUF. statues as Karta was denied to assessee and he was assessed in his individual capacity, 25 per cent profit in respect of Shri Satyanarain minor son of assessee was added to his income which was computed at Rs. 10,607. In later year assessee did not file any return under s. 139(1) and consequently notice was issued to him under s. 148. Thereafter, he filed return declaring and income of Rs. 7,250 in status of HUF. income disclosed was only share income from firm. assessment was again completed after including sum of Rs. 6,850 credited in account of assessee s minor son, Shri Satyanarain. This assessment having been confirmed, ITO initiated penalty proceedings under s. 271(1)(c) of IT Act. assessee s explanation was that he had not included share income of minor son because of ignorance of law in first instance. Later one notice under s. 148 was issued to him. He was under wrong impression that he could claim HUF status and income of minor was not included in his return as minor was individual and that income was not liable to be included as such. ITO rejected his explanation and levied penalties of Rs. 8,000 and Rs. 1,200 respectively. assessee went in appeals to AAC who confirmed levy of penalties on merits though he reduced figures of Rs. 6335 and Rs. 940. assessee has come up in second appeal before Tribunal. I have heard representative of parties at length in both these appeals. main contention raised on behalf of assessee was that although he was under bona fide belief that income of his minor son was not liable to be added to his total income and, therefore, it wa not disclosed, in his returns Incidentally it was also contended that there was no concealment because ITO was already assessing firm of which assessee is partner and share of profits in firm was given to minor so that all facts were fully known to ITO at time of original assessment had accepted assessee s version as such. number of authorities were cited for t h e proposition that in these circumstance bona fide belief of assessee should be considered to be sufficient to exonerate him form liability to penalty. I have carefully gone through all facts and circumstances of this case and various authorities quoted on behalf of assessee and I am afraid, I am not inclined to accept his contention. It was not seriously dispute before me that forms in which returns were filed by assessee did contain column in which income of spouse minor child of assessee was to be shown if it was includible in his hands. It was not also seriously disputed that assessee did not show this income in first year when he filed his return. When column is there in return. When column is there in return, person is ordinarily expected to read contents and fill it accordingly. All authorities relied upon on behalf of assessee did not consider this aspect of matter. For example, in CIT vs. Lal Babu (1980) 15 CTR (Pat) 173: (1980) 122 ITR 1006 (Pat) High Court only held that neither s. 64 nor s. 139 of IT Act imposed any obligation on assessee to include in his return income of his minor son and his wife and for such omission provision of s. 271(1)(c) were not attracted. This case, however, relates to year 1969-70, when there was no column in form of return for showing income of wife or minor children, though there might be some note on forms at end. In Cement Marketing Co. of India vs. Asst. CST (1980) 124 ITR 15 (SC) all that was decided was that return cannot be false unless there is element of deliberateness in it. It could be possible that incorrectness may be due to want of care on part of assessee and return may be liable to be branded as false return, but bona fide belief may exonerate assessee. question of leaving any column unfilled was not involved in matter and only fault of assessee was to exclude from its return of turnover, amount of freight which assessee bona fide believed was not part thereof. In CIT vs. P. A. Patel (1981) 127 ITR 390 (Pat) again Patna High Court was of opinion that as assessee was not bound to disclose income of his wife during relevant assessment years which were 1962-63 and 1963-64, therefore, there could not be said to be any concealment. In case of Tek Chand Pannalal vs. ITO (1982) Tax World S. 4 p. 277 assessee had sold immovable property for Rs. 23,500 but no capital gain was shown on ground that assessee was under bona fide belief that value of order property was only Rs. 21,280 and as such fair market value for all capital assets did not exceed Rs. 50,000. This belief was considered to be sufficient to exonerate assessee. In ITO vs. Kalavati Devi (1983) 6 Tax World S. 4 p. 64 assessee was lady. She had never filed any return of income before that and she did not file return. She was sought to be penalised for having failed to file return under s. 271(1)(a) of IT Act. Tribunal may have rightly held that she could entertain bona fide belief that she was not bound to file return. All these cases, are therefore, no guide for decision of present issue, in which there is reason for assessee s not having filed in relevant column relating to income of his minor son which was liable to be clubbed in his income. relevant decision in this behalf is CIT vs. Smt. P. K. Kochammu Amma Peroke 1980 19 CTR (SC) 196: (1980) 125 ITR 624 (SC) While deletion of penalty by High Court was upheld by Hon ble Supreme Court following observations of Hon ble Supreme Court are most pertinent and for sake of clarification, I am quoting them in extenso: "The assessee then contended that return of income which was required to be filed by her under s. 139, sub-s. (1), was return in prescribed form and form of return prescribed by r. 12 of IT Rules, 1962 did not contain any column for showing income of spouse and minor child which was liable to be included in total income of assessee under s. 64, sub-s. (1), cls. (i) and (ii) and there was, therefore, no obligation on assessee to disclose this income in returns filed by her. This contention is also, in our opinion, falacious and deserves to be rejected. It is true that form of return prescribed by r. 12, which was in force during relevant assessment year did not contain any separate column for showing income of spouse and minor child liable to be included in total income of assessee, but it did contain note stating that if income of any other person is includible in total income of assessee under provisions, inter alia of s. 64, such income should also be shown in return under appropriate head. This note clearly required assessee to show in return under appropriate head of income, namely, "Profits and gains of business or profession", amounts representing shares of husband and minor daughter of assessee in profits of two partnership firms. But even so, assessee failed to disclose these amounts in return submitted by her and there was, therefore, plainly and manifestly breach of obligation imposed by s. 139, sub-s. (1), requiring assessee to furnish return of her income in prescribed form. It is difficult to see how note in prescribed from of return could be ignored by assessee and she could contend that, dispute note she was not liable to show in her return amounts representing shares of her husband minor daughter in two partnership firms. contention of assessee, if accepted would render note meaningless and futile and turn it into dead letter and that would be country to all recognised canons of construction. There can be no doubts that assessee was bound to show in her return amounts representing shares of her husband and minor daughter in two partnership firms and in failing to do so, she was guilty of concealment of this item of income which plainly attracted applicability of s. 271, sub-s. (1), cl. (c). It is obvious that on this view order imposing penalty on assessee would have to be sustained but there is decision of this Court in V. D. M. KM. M. RM. Muthiah Chettair vs. CIT (1969) 74 ITR 183 (SC), which is binding upon us and where we find that different view has been taken by Bench of three judges of this Court. It was held in this case that even if there were any printed instructions in form of return requiring assessee to disclose income received by his wife and minor child from firm of which assessee was partner, there was, in absence in return of any head under which income of wife or minor child could be shown. No obligation on assessee to disclose this item of income, and assessee could not be deemed to have failed or omitted to disclose fully and truly all material facts necessary for his assessment within meaning of s. 34(1)(a) of Indian IT Act, 1922. With greatest respect to learned judges who decided this case, we do not think, for reasons already discussed that this decision lays down correct law on subject, and had it not been for fact that since 1st April, 1972, form of return prescribed by r. 12 has been amended and since then, there is separate column providing that "income arising to spouse/minor child or any other person as referred to in Chap. V of Act" should be shown separately under that column and consequently there is no longer any scope for arguing that assessee is not bound to disclose such income in return to be furnished by him, we would have referred present case to larger Bench. But we do not propose to do so since question has now become academic in view of amendment in form of return carried out w.e.f. 1st April, 1972." Now that return clearly contains column in which income liable to be clubbed in hands of assessee, has to he mentioned, there can be no escape from conclusion that assessee had omitted to include this in return either intentionally or had been guilty of gross and wilful negligence within meaning of old Explanation to s. 271(1)(c) as it stood before 1st April, 1976. There is another important aspect of matter. When ITO issued notice under s. 148 assessee filed return claiming HUF status. reason for claiming this status can easily be imagined. If assessee was HUF, s. 64 may have no application for it. It was for this reason that assessee claimed this status and this fact completely proves earlier Mala fide of assessee that omission to include income of his minor son was not accidental but was intentional. It needs be pointed out that in subsequent proceedings assessee contended that status was not that on HUF and partnership deed clearly mentioned that HUF had been disrupted and that was long before all these incidents. penalty for first year, therefore, has been rightly levied and is hereby confirmed. However, these observation would not apply to later year. In subsequent year, there was no return filed in first instance. return was filed subsequent year, there was no return filed in first instance. return was filed only on notice under s. 148. wrong status was claimed. In other words, wrong exemption was claimed. There would be no concealment if exemption claimed was correct. What I mean to say is that second return as filed did not require disclosure of minor s share of income. Therefore, return as such did not involve any concealment. Claim of wrong status cannot be said to be concealment though it may not have been wise on part of assessee. Although conduct of assessee in subsequent year is equally unworthy, I think technically he may not strictly come in ambit of s. 271(1)(c). So far as his malicious conduct is concerted, he has already been heavily penalised in relation to first year. penalty for second year is, therefore, deleted. In result, first appeal is disallowed and second appeal is allowed. *** NATHULAL & ANR. v. INCOME TAX OFFICER