9911796707
TMI Blog2003 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the decisions of the Supreme Court in CIT (Addl.) v. Jeevan Lal Sah [1994] 205 ITR 244 and other Supreme Court decisions the Tribunal is right in law and fact in holding that 'for levy of penalty under section 271(1)(c) there should be a conscious concealment of income on the part of the assessee' and is not the approach of the Tribunal based on the above principle and the consequential conclusion wrong, vitiated and against law? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that 'There is no material brought on record by the Assessing Officer to rebut the plea of the assessee that the failure to return the correct income did not arise from any fraud or gross or wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof on the Revenue? 7. Whether, on the facts and in the circumstances of the case, if according to the learned representative of the assessee 'the assessee was not well versed in accounts and that he had to depend on his chartered accountant' (vide para. 11) are not the contentions of the representative that 'the assessee went through the details and found that two accounts were remaining unadjusted', the assessee could have disputed that the income did not represent the income of the current year (para. 11, lower down) inconsistent, militating against each other and are not both the contentions unacceptable and false and the Tribunal unjustified in relying on the above submissions and in finding 'we see no reason to doubt the plea of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The brief facts necessary for the purpose of this case are as follows: The respondent/assessee is an individual deriving income mainly from the proprietary business in the name of M/s. Bharathy Clays and M/s. Bharathy Earth Engineering Contractors. For the assessment year 1989-90, the assessee filed a return showing a loss of Rs. 4,685. The Assessing Officer issued a notice to the assessee stating that he proposes to complete the assessment ex parte on an income of Rs. 40 lakhs since the assessee did not respond to the various notices. The assessee then filed a reply stating that the two items appearing in the schedule of advances totalling Rs. 40,413 shown as advance in the name of Kalpaka Finance, Thiruvananthapuram, is actually inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffer made by the assessee cannot be treated as voluntary. It was held that the assessee has to be treated as having concealed income to the extent of Rs. 1,68,748 and directed the Assessing Officer to levy the minimum penalty on that amount. The Department filed Appeal No. 682 (Coch.) of 1995 to the extent the Commissioner of Income-tax (Appeals) had directed the deletion of a sum of Rs. 43,499 for the computation of minimum penalty. The assessee had filed a cross objection to the extent the Commissioner of Income-tax (Appeals) sustained the imposition of penalty on a concealed income of Rs. 1,68,748. The Tribunal, by the impugned order, had dismissed the appeal filed by the Revenue and allowed the cross objection filed by the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thiruvananthapuram, and a sum of Rs. 1,28,335 as advance received from Travancore Cements Ltd., was due to a bona fide mistake and that the assessee immediately after noticing the mistake had offered the same for assessment voluntarily and before detection. Counsel submitted that the accounts of the assessee are subjected to audit as contemplated under section 44AB and in the balance-sheet the four amounts are shown as sundry credits account. Counsel further submitted that on the finding of fact entered by the Tribunal it was very clear that there was no case for penalty under section 271(1)(c) of the Act. Counsel further submitted that the Tribunal has decided the appeal based on the principles laid down by the Supreme Court and by this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the facts and circumstances of the case and also in the light of the legal principles regarding the burden in the decision of the Supreme Court and of this court relied on by senior counsel and in other cases. We make it clear that we have not considered the merits of the case in this appeal. We also make it clear that the issue involved in this case is only in relation to the imposition of penalty based on the alleged concealed income of Rs. 1,68,748. Here, we note that questions Nos. 9 and 10 raised by the appellant on which notice was issued relates to the justification for admitting the crossobjection filed by the assessee beyond the time prescribed in the statute. We find that the Tribunal has considered the said ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
