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TMI Blog2010 (12) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on an overall appreciation of the evidence and conduct of the assessee - whether it was contumacious or not - The miscellaneous application filed by the assessee is rejected X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was also dismissed by order dated30th July, 2010 and thus the penalty was confirmed. It is against this order of the Tribunal that the present miscellaneous application has been filed by the assessee. 4. The learned counsel for the assessee raised the following points in support of the application: (a) The affidavit filed by S.K. Parikh and others in which they retracted from their statements given during the survey were wrongly considered by the Tribunal as fresh evidence and inadmissible on that ground. The paper book filed by the assessee has been duly certified and the affidavits were certified to have been filed before the Assessing Officer. (b) The Tribunal was wrong in saying that the fact that the Assessing Officer had droppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted as follows: (a) The Tribunal has rightly recognised the fact that the penalty was imposed not merely on the basis of the statements recorded during the survey but also because there was no evidence adduced by the assessee to prove whether any services were rendered by the payees and if so, what was the nature of the services so as to justify the commission payment. (b) The affidavits are dated January 2002, whereas the assessment was completed on30-3-2001. They were not therefore before the Assessing Officer. The Tribunal is therefore right in saying that they have no evidentiary value. (c) The assessee's miscellaneous application (MA No.89/MUM/2010) filed against the order of the Tribunal in the quantum proceedings has been reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavits can be taken to have any evidentiary value or not is a matter of inference and the decision of the Tribunal that they did not have any evidentiary value cannot give rise to any mistake apparent from the record. It is the view of the Tribunal that no evidentiary value can be attached to the affidavits. Whether the view is wrong or right is not a matter which can be canvassed u/s. 254(2). At best it could be said to be arguable or debatable. Secondly, even if it is assumed that the Assessing Officer had dropped the penalty proceedings for the earlier years on merits - for which there is no evidence on record except a possible inference - the question would still remain whether the assessee, for the year under appeal, concealed it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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