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TMI Blog2013 (11) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary for the AO to establish from the enquiry that the assessee had concealed the income or furnished inaccurate particulars - AO could not have relied upon earlier enquiry for imposing penalty - Decided against assessee. - Income Tax Appeal No. - 93 of 2009 - - - Dated:- 13-11-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : S. C. /A. N. Mahajan For the Respondent : Anurag Khanna,Nipun Singh ORDER 1. We have heard Shri Dhananjay Awasthi, learned counsel for the income tax department. Shri Anurag Khanna appears for the respondent assessee. 2. This income tax appeal under Section 260A of the Income Tax Act, 1961 arises out of judgment and order dated 14.8.2008 passed by the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors appearing in the balance sheet were verified by the AO through revenue officers of villages, in relevant areas and from heads of Gram Panchayat. The Inspector of the department carried out the enquiry on which the A.O. came to conclusion that the credit to the tune of Rs.28,63,978/- was not genuine. The assessee filed a revision under Section 264 of the Act before the Commissioner of Income Tax. By order dated 15.7.2002 CIT set aside the assessment and directed that the A.O. to proceed denovo in the matter. He also directed to exclude the opening balance, which was carried forward from earlier years for the purpose of making an addition. 5. The A.O. passed fresh assessment order on 27.2.2004 by which he reduced the addition towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which was set aside and the matter was remanded to him. It was mandatory on the part of the AO to carry out a detailed enquiry to find out whether there was any concealment of income or furnishing of inaccurate particulars of income by the assessee. He had not carried out any detailed enquiry, was evident from fact that he had imposed penalty on entire assessed income of Rs.12,61,280/- though addition towards unexplained credit is at Rs.12,49,284/-. 8. Shri Dhananjay Awasthi has relied upon Bajrang Glass Emporium v. Commissioner of Income-tax, Agra, (2013) 30 taxmann.com 18 (All.) in which this Court after considering the judgments in CIT v. Saran Khandsari Sugar Works, 246 ITR 216 did not agree with the general proposition that mere s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessee. The penalty order was passed in mechanical manner without positively recording finding that the assesee had concealed the particulars of income or furnished inaccurate particulars of income to invite penalty. 12. Though we agree with learned counsel for the income tax department that surrender of the income to buy peace cannot be a ground on which the order imposing penalty may be set aside, there must be some positive material on which the assessee should be given an opportunity to explain, regarding correctness of the balance shown in the books of account. In the present case as found by the Tribunal after remand no fresh enquriy was made to reduce the addition from Rs.28,63,978/- to Rs.12,49,284/- and further that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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