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TMI Blog2017 (11) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961 for assessment year 2008 - 09. 2. The brief facts of the case are that the assessment in this case was completed under section 153A of the Income Tax Act, 1961 at Rs. 4,34,53,780 after making an addition of Rs. 10,63,807/- on account of disallowance out of foreign travelling expenses. The assessee preferred an appeal before the Ld. CIT (Appeals) against the quantum addition which was dismissed. 2.1 The assessee did not prefer any further appeal against the quantum addition. Meanwhile, penalty proceedings were initiated against the assessee. It was the assessee's plea before the AO that the foreign trips were to Gulf countries and Geneva and pertained to the trips made by the two directors and also one of the key emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof. It was also submitted that all the relevant details and information had been duly furnished during the course of assessment proceedings and that no false or incorrect details had been filed. It was also submitted that the expenses were claimed as a deduction as the expenditure was genuinely incurred and that merely because there was a disallowance out of expenses, the penalty could not be imposed. Reliance was placed on a plethora of case laws and it was submitted that even if the claim for deductibility of expenses was not accepted, it was not a fit case for the imposition of penalty. 4. The Ld. Senior Departmental Representative read out extensively from the order of the Ld. CIT (Appeals) and submitted that as the expenses relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While considering whether the assessee has been able to discharge his burden, the Assessing Officer should not begin with the presumption that he is guilty. Since the burden of proof in penalty proceedings varies from that in the assessment proceedings, a finding in the assessment proceedings that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceedings constitutes good evidence in the penalty proceedings. In the penalty proceedings the authorities must consider the matter afresh as the question has to be considered from a different angle. It is important to keep in mind the fundamental legal proposition that Assessment proceedings are not conclusive. Assessment proceedings and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84 Taxman 460 (P & H), it was held that the judgment in Dharmendra Textile cannot be read as laying down that in every case where particulars of income are inaccurate, penalty must follow. Even so, the concept of penalty has not undergone change by virtue of the said judgment. Penalty is imposed only when there is some element of deliberate default. 5.4 Reverting to the facts of the present case, the penalty order is woefully silent on the issue as to how this satisfaction of furnishing of inaccurate was arrived at. The quantum addition on which the penalty has been imposed pertains to disallowance out of foreign travel expenses but the Ld. CIT (A) has not examined the issue in detail but has simply confirmed the penalty by relying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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