1995 (5) TMI 58 - AT - Income Tax

Summary

Issues Involved:
1. Levy of penalty on unexplained investments.
2. Levy of penalty on alleged payment for property purchase.
3. Levy of penalty on income from two lorries.
4. Levy of penalty on income and credits from Archana Jewellery.
5. Restriction of quantum of penalty to the minimum leviable.

Detailed Analysis:

1. Levy of Penalty on Unexplained Investments:
The assessee, an Abkari contractor, was found to have made investments totaling Rs. 12,37,800 during the period from 22nd Aug., 1980 to 14th Dec., 1980. The Assessing Officer (AO) noted that the total withdrawals by the assessee amounted to Rs. 10,27,295, leaving a difference of Rs. 2,10,505. The assessee's explanation that the difference was covered by earlier withdrawals and temporary loans was not accepted by the AO due to lack of evidence. The CIT(A) accepted part of the assessee's claim, reducing the unexplained amount to Rs. 1,00,000. The Tribunal found that the possible savings from earlier withdrawals were not considered and thus vacated the penalty on the unexplained investment of Rs. 1 lakh, stating it could not be considered as concealed income.

2. Levy of Penalty on Alleged Payment for Property Purchase:
The AO found two agreements indicating that the assessee had agreed to purchase property from one Mohammed, with an advance payment of Rs. 1,00,000 on 14th Oct., 1980. The assessee and Mohammed both denied the transaction. The Tribunal noted that Mohammed was not sure of his signature on the agreement and that other relevant parties were not examined. The Tribunal set aside the penalty, instructing the AO to re-examine the issue with adequate opportunity given to the assessee, emphasizing the need for a thorough investigation to confirm the alleged payment.

3. Levy of Penalty on Income from Two Lorries:
The AO included income from two lorries, KRF 9956 and KRF 4685, found in diaries seized during a search, attributing the income to the assessee. The assessee claimed the diaries belonged to his uncle's son, Raghavan, who resided with him. The CIT(A) found that the presumption under s. 132(4A) of the IT Act was not sufficient for penalty as the lorries were registered in Raghavan's name, and no further evidence indicated the assessee's ownership. The Tribunal upheld the CIT(A)'s decision, noting the lack of material to suggest mens rea and the valid explanation for the diaries' presence.

4. Levy of Penalty on Income and Credits from Archana Jewellery:
The Revenue contended that Archana Jewellery was a benami concern of the assessee. The CIT(A) canceled the penalty, following the Tribunal's earlier decision for the asst. yrs. 1979-80 and 1980-81, which found insufficient evidence to prove the business belonged to the assessee. The Tribunal noted that the Revenue had not discharged its onus to prove the benami nature of the business and upheld the CIT(A)'s cancellation of the penalty.

5. Restriction of Quantum of Penalty to the Minimum Leviable:
The CIT(A) had restricted the quantum of penalty to the minimum leviable under the Act, considering the circumstances and the partial sustenance of penalty items. The Tribunal found no wrongful exercise of discretion and upheld the CIT(A)'s direction. Further, with the deletion and setting aside of penalties on the unexplained investment and alleged property payment, the Revenue's contention on the quantum of penalty was rendered moot.

Conclusion:
The assessee's appeal for the asst. yr. 1981-82 was partly allowed, and the Revenue's appeals for the asst. yrs. 1981-82 and 1982-83 were dismissed.