9911796707
TMI Blog2017 (3) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... ng assessment year 1949-50, no penalty could be imposed on the assessee for non disclosure of the income for the assessment year 1950-51. - Decided in favour of the assessee - INCOMTE TAX APPEAL NO. 10 OF 2001 - - - Dated:- 17-3-2017 - SMT. VASANTI A NAIK V.M. DESHPANDE, JJ. N.S. Bhattad, counsel for the appellant. Mr. Bhushan Mohta, counsel holding for Mr. Anand Parchure, counsel for the respondent. ORAL JUDGMENT (Per Smt.Vasanti A Naik, J.) The appellant assessee is a partnership firm that runs a bar and restaurant. A survey under section 133A of the Income Tax Act, 1961 was conducted on 12/01/1993 at the business premises of the assessee and in the course of search, it was noticed that stock wort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 27,600/on the assessee. The assessee challenged the said order before the Commissioner of Income Tax (Appeals). The Commissioner (Appeals) allowed the appeal filed by the assessee and held that the penalty was wrongly levied. The Commissioner (Appeals) held that merely because the difference in stock was detected during the course of the relevant assessment year, the difference should not have been assessed as income for the relevant assessment year, but should have been correctly assessed as income for the assessment year 1992-93 as the opening stock as on 01/04/1992 was the closing stock on 31/03/1992. The Commissioner (Appeals) held that the assessee was not guilty of concealing the particulars of its income. The order of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. The learned counsel relied on the judgment, reported in 1988, 170 ITR 399 (Jainarayan Babulal v. Commissioner of Income Tax) to substantiate his submissions. 3. Shri Mohta, the learned counsel for the revenue, supported the order of the tribunal. The learned counsel was however not able to point out from the order of the tribunal that the tribunal had adverted its mind to the reasons recorded by the Commissioner (Appeals) for allowing the assessee's appeal. It is submitted that the difference in stock pertained to the relevant assessment year and, therefore, the Assessing Officer had rightly levied the penalty on the assessee for concealment of particulars. It is stated that the judgment reported in 1988, 170 ITR 399 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) rightly allowed the appeal filed by the assessee after observing that the assessee could not be held guilty of concealing the particulars of its income amounting to ₹ 69,000/in the relevant assessment year 1993-94 and hence penalty could not have been levied on the assessee. Though the appeal filed by the assessee was allowed on this short ground, the Income Tax Appellate Tribunal in its rather longish order did not even refer to the said factual and legal position and allowed the appeal filed by the revenue by only referring to the provisions of section 271(1)(c) of the Act. It was necessary for the tribunal to have adverted its mind to the reason recorded by the Commissioner (Appeals) for allowing the appeal fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts that the entries aggregating to the amount of ₹ 24,600/being made in the assessment year 1948-49 and the relevant assessment year being assessment year 1949-50, no penalty could be imposed on the assessee for non disclosure of the income for the assessment year 1950-51. The facts in the reported case and the present case are not only similar, but are identical. The view of the Commissioner (Appeals) is fortified by the judgment in the case of Jainarayan Babulal (supra). 5. Hence, for the reasons aforesaid, we answer the substantial question of law in favour of the assessee and set aside the order of the tribunal. The order of the Commissioner (Appeals) is confirmed. In the circumstances of the case, there would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
