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TMI Blog2011 (2) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Radhika Suri, Advocate for the respondent. AJAY KUMAR MITTAL, J. 1. This appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (in short the Act ) against the order dated 27.3.2009 passed by the Income Tax Appellate Tribunal, Delhi Bench D , New Delhi (hereinafter referred to as the Tribunal ) in ITA No. 1059/Del/2008, relating to the assessment year 1993-94, claiming the following substantial questions of law:- I. Whether, on the facts and in the circumstances of the case, the Ld. ITAT was right in law in upholding the order of the Ld. CIT(A) in deleting the penalty of Rs.4,78,640/- on the ground of non-recording of satisfaction by the Assessing Officer in the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 1993-94 declaring an income of Rs.1,41,72,960/-. The assessment was completed on 15.3.1996 at a total income of Rs.1,65,54,940/-. The Assessing Officer vide order dated 29.4.2005 levied a penalty of Rs.4,78,640/- on the assessee for furnishing inaccurate particulars of the income. Feeling aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) [in short the CIT(A) ]. The CIT (A) vide order dated 8.1.2008 deleted the said penalty. Against the deletion of penalty, the department filed an appeal before the Tribunal who vide order dated 27.3.2009 upheld the order of the CIT (A) and dismissed the appeal and this gave rise to the revenue to approach this Court by way of instant appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to be false by the Assessing Officer or the first appellate authority, or an explanation is offered which is not substantiated. In such a case, the amount added or disallowed in computing the total income is deemed to represent the income in respect of which the particulars have been concealed. As per the proviso to Explanation 1, the onus to establish that the explanation offered was bona fide and all facts relating to the same and material on the computation of his income have been disclosed by him will be on the person charged with concealment. Mere failure to substantiate the explanation is not enough to warrant penalty. The Revenue has to establish that the explanation offered was not substantiated. The proviso to Explanation 1 is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so argued that the disallowance on account of depreciation on electric installation, fire fighting, plant and machinery and on building as well as relating to valuation of closing stock would not result in misstatement or concealment of facts. Learned counsel has placed reliance on the findings of the Tribunal and the judgment of this Court in ITA No. 450 of 2009 (Commissioner of Income Tax, Faridabad v. M/s SSP Ltd.) decided on 20.8.2009. 8. We have given our thoughtful consideration to the respective submissions of learned counsel for the parties and do not find any merit in the submissions made by learned counsel for the revenue. 9. The principles enunciated in Gurbachan Lal's case (supra) are that the initial onus lay upon the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s income and according to the Department said income was assessable under the head income from house properties . It has also been pointed out by CIT(A) that for assessment year 1993-94, the plea of the assessee has been accepted by the Tribunal in assessee's own case in ITA No. 1651/Del/98 and it was directed to the Assessing Officer to decide the issue considering the decisions of Madras High Court in the case of CIT vs. Sanmar Holdings Ltd. 183 CTR 346 and, thus, it has been held by CIT(A) that this was a case only of difference of opinion and the assessee did not misrepresent or misstate the facts regarding the source of income. Therefore, Ld. CIT(A) has deleted the penalty on this account. XX XX XX XX 6. The second addition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been no misstatement or concealment of facts. It is only a case where claim of assessee has been rejected and it is not a case where assessee had submitted inaccurate particulars or concealed particulars of its income. It has been pointed out by the CIT(A) that even though the addition in closing stock is made same is allowable in the next year as the additional cost of opening stock for that year. He also held that penalty cannot be justified because it is a petty disallowance. After hearing Ld. DR, we do not find any infirmity in such findings of CIT (A) and, thus, on third account also, it is not a justified case for levy of penalty. In view of above discussion, we find no infirmity in the order of the CIT(A) vide which penalty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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