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TMI Blog2013 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... was no loss in the earlier year, which was supposed to be carried forward - The assessee has failed to bring any material on record to prove that losses were carried forward from the earlier years - There was malafide intention on furnishing the false particular – Following CIT vs. Ananthan Chattier [2003 (12) TMI 12 - MADRAS High Court] - The burden always lies with the assessee to prove that there was no concealment – Decided in favour of Revenue. - Income Tax Appeal No. - 109 of 2008 - - - Dated:- 2-12-2013 - Hon'ble Rajiv Sharma And Hon'ble Dr. Satish Chandra,JJ. For the Appellant : Neerav Chitravanshi For the Respondent : D. D. Chopra ORDER The present appeal has been filed by the appellant-assessee under Section 260 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order and rejected the claim of the set off pertaining to unabsorbed depreciation/losses of the earlier years. The Assessing Officer has also disallowed the claim of deduction of Rs.1.00 lacs paid by the assessee to the LIC towards the Group Gratuity Scheme. Being aggrieved, the assessee has filed an appeal before the CIT(A), who vide its order dated 26.06.2001 has allowed the appeal partly on the issue of set off of unabsorbed losses/depreciation. The CIT(A) had accepted the submission of the appellant and directed the Assessing Officer to compute the losses of the appellant after taking entire material available on record including the appellate orders of the earlier assessment years and set them off against the profit of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year under consideration, the assessee has shown the net profit of Rs.29,91,572/-, but this net profit was set off against the unabsorbed depreciation/losses of the earlier years by the assessee. But the Assessing Officer has computed the total income of Rs.30,91,570/- as against the NIL income disclosed by the assessee. Learned counsel submits that the Tribunal has failed to consider that it has been held by the Hon'ble Apex Court as well as by this Hon'ble Court in a series of decisions that the penalty and quantum proceedings are different from each other. An independent satisfaction about concealment or furnishing of false particulars is an essential ingredient and pre-requisite for the imposition of penalty on the assessee and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year under consideration has dismissed the appeal filed by the assessee. Thus, the addition was upheld. On the similar analogy, it appears that the CIT(A) by the same order has directed the AO to initiate the penalty proceedings. The AO has passed the order under Section 251/143(3) of the Act dated 12.12.2005, where the penalty proceedings have been initiated. We agree with the submission of learned counsel for the assessee that penalty and quantum proceedings are independent as per the ratio laid down in the case of Durga Kanal Rice Mills vs. CIT, 265 ITR 25 (Cal). From the records, it appears that the reasons for levy of the penalty is that in the computation of the income, the assessee has shown the net profit of Rs.29,91,572 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on furnishing the false particular, penalty is leviable as per the following cases :- (i) R.K. Bhargawa vs. CIT, 274 ITR 287 (Raj.); and (ii) Londu Lal vs. CIT, 298 ITR 37 (All.). The burden always lies with the assessee to prove that there was no concealment as per the ratio laid down in the case of CIT vs. Ananthan Chattier, 273 ITR 401 (Mad). Mens era is not essential element for levy of the penalty being civil liability as per the ratio laid down in the case of CIT vs. Reliance Petro Product, AIR 2010 SC 1881. It may be mentioned that the Hon'ble Apex Court in the case of Civil Appeal No.9772 of 2013 (Mak Data P. Ltd. vs. Commissioner of Income Tax-II) decided on 30.10.2013 has held that "Had it been the intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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