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TMI Blog2017 (8) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... he shortage if any. In-fact, the shortage was arrived at on basis of estimate and the respondent – Assessee had itself surrendered additional income to buy peace of mind and avoid unnecessary litigation. It did not accept that actual stock was more than that recorded in its books and during the proceedings also submitted a chart showing no excess stock. In the present facts, the respondent – Assessee was consistently stating that there is no excess stock in his possession. That, it was subject to central excise control and no proceeding for clandestine removal of goods etc. were initiated against the respondent – Assessee. Further, in these facts, the respondent – Assessee, the CIT(A) and the Tribunal have held that no penalty is imposable, as the respondent – Assessee herein has consistently contended that there is no excess stock. This contention has not been examined and commented upon the Revenue before imposing of penalty. Thus, the impugned order of the Tribunal calls for no interference. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... were not technically qualified or competent for the same. In-fact, there was no weighment of stock. Hence, it cannot be said that the physical stock has been taken. I may mention that these are different sizes, length and grades of material. Each has its own physical weight based on its density. The materials are in bundle and the bundles varies. The size of ingots also varies in length, shape and size. Thus, there cannot be any standard yardstick to take physical weighment except by actual weighment on Weigh Bridge. In such a short time so much of the quantity cannot be actually weighed. Thus, it can be very safely concluded that the figures mentioned in the stock statement may be vague estimate. We do not agree with the results mentioned in the stock statements. We have also mentioned that the persons who had signed the stock statement is not authorized and competent enough for this work. We may also clarify that as per our system in the materials received by weighment. The materials produced are also weighed and all the entries are made on actual in our records as well as records kept as per central excise laws. The officials of central excise department verify the same. Our au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of income as well as concealment of income, the penalty was imposed only for furnishing inaccurate particulars of income. Further, on examination of facts, CIT(A) concluded that there has been no filing of inaccurate particulars of income on part of the respondent - Assessee. In particular, he noted the fact that at all times commencing from the recording of the statement of Mr. Sarda, the respondent - Assessee, has challenged the valuation of the stock at ₹ 1.20 crores. Even thereafter, the respondent - Assessee addressed communication dated 21st and 25th September, 2006 to the Income Tax Authorities pointing out that the manner and method of quantification of stock done during the course of survey proceeding was not correct. It also notes that the respondent - Assessee was subject to Excise control as contended by the respondent and no case with regard to clandestine removal etc. was ever initiated against the respondent. No other incriminating material was found during the survey. The impugned order held on examination of facts that there is no warrant to impose penalty under Section 271(1)(c) of the Act as the respondent had not furnished inaccurate particulars of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two Authorities deleting the penalty was not on the basis that the declaration of income was subject to the condition of no penalty being imposed. In this case, both the Authorities on merits, found no penalty is imposable. Therefore, Mak Data (supra) would have no application. 12. We find that the decision of the Apex Court in Mak Data (supra) was rendered on 30th October, 2013 i.e. after impugned order of the Tribunal dated 30th November, 2012. Thus, normal course would have been to restore the issue to the Tribunal to pass a decision keeping in view the decision of the Apex Court in Mak Data (supra). However, such an exercise is not called for in this case as neither of the two authorities i.e. CIT (A) and the Tribunal have deleted the penalty on account of the respondent - Assessee declaring additional income to buy peace / avoiding litigation. Both, the CIT (A) and the Tribunal have on merits found that the conduct of the respondent - Assessee did not justify any penalty under Section 271(1)(c) of the Act. Therefore, we would examine the appeal of the Revenue on merits in the context of the findings by the Authorities under the Act. 13. In the matter of imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court Mak Data P. Ltd. (supra) to contend that facts are identical, therefore, penalty must follow. The Assessee in the above case had during survey operation made voluntary disclosure of income. Similar to the present case submits the Revenue. However, the distinction in this case is that the respondent - Assessee had at the first opportunity i.e. when statement has been recorded, contended that the manner and method of quantification of stock done during the course of survey proceeding was not correct. In-fact, even after that it was consistently writing to the Authorities that there is no excess stock and the manner in which the stock taking has been done is not correct. This was not so in the case of Mak Data P. Ltd. (supra). In the case of Mak Data P. Ltd. (supra), the Assessee did not dispute the facts of undisclosed income at any time/stage. Therefore, paragraph 10 of the decision in Mak Data (supra) will have no application in absence of the Revenue being able to show that there has been a conduct which would warrant penalty upon the respondent - Assessee namely either concealment of income or filing of inaccurate particulars of income. In the present facts, the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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