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TMI Blog2009 (7) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... material were not available for a conclusive determination of the issue. Therefore, the question of imposition of penalty was open and the issue needed determination afresh. Therefore, the matter was remanded by the Tribunal to the primary authority, before whom the assessee would full opportunity to justify its stand that in the facts of the case, no penalty required to be imposed. - 4 of 2007 - - - Dated:- 1-7-2009 - RANJAN GOGOI and B. K. SHARMA JJ. A. Goyal for the appellant. U. Bhuyan for the respondents. JUDGMENT The judgment of the court was delivered by 1. Ranjan Gogoi J.-This appeal is directed against the judgment and order dated October 10, 2006 passed by the learned Income-tax Appellate Tribunal, Gauha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three creditors seeking confirmation. While M/s. Agfa India Pvt. Ltd. had replied indicating that it had shown a sum of Rs. 31,163 in its balance-sheet as due from the assessee, M/s. India Jogi had pointed out that their closing balance was nil. No reply was received from M/s. Phil Corporation. Notice, therefore, was issued to the assessee asking for its explanation by March 28, 2005. The authorized representative of the assessee appeared before the Assessing Officer on March 29, 2005, and submitted an account confirmation of M/s. Phil Corporation to the extent of Rs. 3,68,857. The authorized representative of the assessee wanted further time to effectively reconcile the accounts of the creditors which was, however, refused by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had concealed particulars of his income. In the present case, no such finding was recorded by the Assessing Officer and penalty was imposed merely because the assessee had accepted the anomalies in its balance-sheet and, thereafter, had paid the additional tax that was demanded. Accordingly, the learned Tribunal took the view that the order of the first appellate authority confirming the penalty should be interfered with and the matter remanded to the Assessing Officer for a fresh consideration. 7. Sri Goyal, learned counsel for the appellant-assessee has vehemently contended that if the learned Tribunal was satisfied that the order imposing penalty was not justified on the materials available, the penalty should have been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the learned Tribunal so as to require the court's interference. 9. We have considered the submissions advanced on behalf of the parties. In the present case, initiation of the penalty proceedings against the asses-see is not an issue before the court. The assessee had taken part in the said proceedings and is basically aggrieved by the merits of the order imposing penalty. The learned Tribunal took the view that the facts and materials germane to the issue were not brought on record of the penalty proceedings by the parties thereto and, therefore, though the penalty order is liable to be set aside, the matter should be re-decided by the primary authority after affording both the parties full opportunity to bring such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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