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TMI Blog2014 (1) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal had reversed the order of CIT(A) on the basis that there was no evidence in the paper book about the complaints received by the assessee and communicated to the payee company - If assessee could produce such evidence, the findings of the Tribunal might have been different - The CIT(A) had given relief by not considering this aspect - it is a case where two appellate authorities has taken different view on the same subject by relying upon different evidences – where there are two views possible penalty u/s 271(1)(c ) cannot be invoked - penalty u/s 271(1)( c) was mot imposable – Decided in favour of Assessee. - I.T.A. No.4956/Del/2010 - - - Dated:- 8-8-2013 - RAJPAL YADAV AND T.S. KAPOOR, JJ. For the Appellant : Salil Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of the payee and on going through the return the Assessing Officer observed that payee had paid tax u/s 115JA of the Act and had incurred losses. After recording the statement of Director of payee company the Assessing Officer observed that the payee company was engaged in the business of manufacturing of PVC doors, profiles, tin containers etc. The Assessing Officer disallowed the amount of Rs.15,20,000/- on the following basis: (a) No particulars regarding services rendered by payee company were provided. (b) The Director of the company had no experience in the field of rubber industry and particularly in the field of production or installation of marine hoses in which the assessee was operating and providing after sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g his arguments he submitted that it was not a case where assessee has not filed explanation and its explanations was bona fide. There is difference between unproved claim and a false claim. He submitted that it was not a false claim as the payments were made through account payee cheques and assessee has been making payments for the last three years and in view of the above he submitted that it was a case of unproved claim that too held by one of the two appellate authorities, therefore, it was argued that since there were two views, penalty cannot be imposed. 6. The Ld DR, on the other hand, argued that additions were finally confirmed by ITAT and assessee did not file any appeal before Hon'ble High Court and onus was on the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , concealment of income, etc. (1). If the Assessing Officer or the Commissioner (Appeals) or the CIT in the course of any proceedings under this Act, is satisfied that any person (a) to (b)**** ** (c) has concealed the particulars of his income or furnished inaccurate particulars of such income. He may direct that such person shall pay by way of penalty. (i) and (Income-tax Officer,)****** (iii) in the cases referred to in Clause (c) or Clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefit the furnishing of inaccurate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions regarding concealment of income. The section not only covered the situation in which the assessee has concealed the income or furnished inaccurate particulars, in certain situation, even without there being anything to indicate so, statutory deeming fiction for concealment of income comes into play. This deeming fiction, by way of Explanation I to section 271(1)(c) postulates two situations; (a) first whether in respect of any facts material to the computation of the total income under the provisions of the Act, the assessee fails to offer an explanation or the explanation offered by the assessee is found to be false by the Assessing Officer or Learned CIT(Appeals); and, (b) where in respect of any fact, material to the computation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase where the assessee had not furnished explanation or had not substantiated the explanation. The assessee had produced even Director of the payee company who had agreed to have received the payment. The Hon'ble Tribunal had reversed the order of Ld CIT(A) on the basis that there was no evidence in the paper book about the complaints received by the assessee and communicated to the payee company. Further it held that there was no record of visits made by the Engineers and employees of the payee company to the site of Reliance Petrochemicals Ltd. 10. From the findings of above Tribunal order, it is apparent that it reversed the decision of Ld CIT(A) on the basis of lack of evidence in the paper book. Therefore, it emerges that if assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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