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TMI Blog2012 (10) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. 1-4-1996 to 26-2- 2003 order dtd. 29-7-2009 while dismissing the Revenue's appeal, partly allowed the assessee's appeal. Pursuant to the order of the Tribunal (supra), the A.O. passed an order giving effect to the order of the ITAT, determined the undisclosed income of Rs. 34,25,849/-. Thus, there is an addition of Rs. 18,25,849/- to the returned undisclosed income of the assessee as under:- Sr No. Description of relevant page from where the addition on account of unexplained expenditure has been made Rupees i. Page No. 42 of Annexure A/9 seized from residence 11,70,000 ii. Page No. 18 of Annexure A/1 seized from residence 83,100 iii. Page No. 40 of Annexure A/1 seized from residence. 13,300 iv. Page No. 46 of Annexure A/1 seized from residence. 35,890 v. Page No. 46 of Annexure A/1 seized from residence. 4,200 vi. Page No. 46 of Annexure A/3 seized from office 75,000 vii. Page No. 74 of Annexure A/4 seized from office 76,250 viii. Reverse of page 174 of Annexure A/10 and page 6 of Annexure A/3 seized from office 4,64,000 Total (i to viii) 19,21,740 Page 14 of Annexure A/1 - covered by return of undisclosed income 15,04,109 34,25,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal:- "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s 158BFA(2) of the I.T. Act which specifies that the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amount of undisclosed income shown in the return." 5. At the time of hearing the ld. D.R. while relying on the order of the A.O. submits that since the addition to the extent of Rs. 18,25,849/- has been confirmed by the Tribunal, the A.O. was justified in levying the penalty and the ld. CIT(A) was not justified in deleting the same. He, therefore, submits that the penalty imposed by the A.O. be restored. 6. On the other hand the ld. counsel for the assessee, at the outset, submits that since the A.O. at the last page of the impugned penalty has held that "......Since the assessee has shown a reasonable cause for non-inclusion of the items assessed in his returned undisclosed income a minimum penalty equivalent to amount of tax leviable on the amount of undisclosed income assessed in excess of returned income is being levied", the ld. CIT(A) was fully justified in deleting the penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order are on account of alleged unexplained expenditure. The assessee has filed his explanation, the gist of which is mentioned in the impugned penalty order as under: - With regard to the addition of Rs. 11,70,000/- it was claimed by the `assessee that actually no expenditure had been incurred and the notings were on account of estimate only. The Tribunal has upheld the addition on the ground that no evidence has been produced and the spot inspection is too late to justify intervention. With regard to the addition of Rs. 83,100/-, it was claimed by the assessee that the same was out of sufficient cash available with the assessee. With regard to the addition of Rs. 13,300/- on account of unexplained expenditure for purchase of mobile phone, it was claimed by the assessee that the same is out of family drawings. With regard to the addition of Rs. 35,890/-, it was explained by the assessee that he has not incurred such expenditure but it is only a noting of the estimate collected by his staff , the question of recording this expense in the books of account does not arise. With regard to the addition of Rs. 4200/-, it was explained by the assessee that considering the fact, it is ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BFA(3) is also devoid of any merit. Of course, as per the provision of section 273B no penalty shall be imposable on the person or the assessee, as the case may be, on their failure referred to in the said provisions if he proves that there was reasonable cause for the said failure. But then the said provision in no manner leads to the presumption that in respect of the cases other than covered by section 273B for any failure or violation imposition of the penalty is automatic. Each provision of penalty has to be construed independently keeping in view the language employed therein. For the aforementioned reasons, we are of the considered opinion that the learned Income-tax Appellate Tribunal has committed no error in holding that the provisions of section 158BFA(2) providing for imposition of penalty in respect of the undisclosed income determined by the Assessing Officer under clause (c) of section 158BC is discretionary and not mandatory. Moreover, in the instant case, after due examination of the facts and the material on record, the Commissioner of Income-tax (Appeals) and learned Income-tax Appellate Tribunal have concurrently found that the difference of the undiscl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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