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TMI Blog1991 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... onscious concealment, the Tribunal was right in law in reducing the quantum of concealed income? " The question formulated at the instance of the assessee reads: " Whether, on the facts and circumstances of the case, the Tribunal was right in sustaining the penalty to the extent of Rs. 47,000 holding that there was concealment ? " Facts relevant to dispose of the issues can briefly be stated thus In the course of the assessment proceedings, the Income-tax Officer was satisfied that the assessee had concealed particulars of his income to the extent of Rs. 1,00,804 and, consequently, initiated proceedings under section 271(1)(c) of the Income-tax Act. This amount represented the purchases made in the peeling shed for which no explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill 7,613.25 Petrol 1,543.86 Ferry for lorry for going to Azhikode 52.00 Prawns loading charge 91.50 Workshop bill repairing a/c for vehicles 1,250.96 Peeling charge 4,303.07 Loading and unloading 580.80 Salary and rent 1,870.00 Lorry hire 1,070.00 Printing and stationery 37.50 Current charge 132.98 Expense 18.40 Travelling expenses 41.50 ------------------------- 3,81,193.89 Received cash 24,189.45 ------------------------- 3,57,005.44 ------------------------- This is the actual credit balance of the depot as on March 31, 1972 and not Rs. 4,57,868 shown in the ledger. Thus, the difference of Rs. 1,00,864 is an inflation of the credit balance in the Chandiroor shed account and conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quotation from his order extracted above by us paragraph 6. However, what is really added is not inflation in purchases but excess of assets over liabilities as disclosed in the balance-sheet. Now in order to establish that Rs. 1,00,864 is concealed income for this year, it is necessary to establish that this discrepancy arose in the course of the accounting year. In other words, it presupposes that the balance-sheet for the immediately prior year would be correct and would show no such excess. For this purpose, we checked up the figures for the prior year . We found that the opening credit balance in favour of the peeling shed account was Rs. 77,900.42 just as file No. 149 shows the statements of purchases, etc., made by the peeling sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that matter the case of the Department that the opening balance in the ledger (annexure F) does not reflect the true state of affairs. The Tribunal has verified the accounts maintained by the assessee during the previous year as if it was considering a case of reopening the assessment for the previous year. This approach to the issue is uncalled for. It is in this background that the whole case requires to be considered. If this finding is eschewed from the order, what remains is only the concurrent finding of fact that the assessee has concealed particulars of income. We shall, in this connection, refer to the finding entered by the Tribunal in the order disposing of the appeal. " It is not possible now to dispute that the actual c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of omission but a sin of commission. We, therefore, agree with the Department that the seized materials would show manipulations in order to conceal income." It can be seen from the discussion above that the assessee has not produced any materials in proof of his case that the alleged concealed income represents the price he paid to the sellers of prawns. Though he had the opportunity to prove the above case, he has not taken any steps in that regard. Under these circumstances, the order reducing the penalty is not sustainable. The Appellate Tribunal, in considering a case the assessee has not set up either before the Inspecting Assistant Commissioner or even before the Tribunal, must be held to have misdirected itself in law and as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished." This clause provides that, in addition to any tax payable by the assessee, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars of income have been concealed or inaccurate particulars have been furnished, shall be paid by way of penalty. Counsel submits that, before the penalty is levied, the authority concerned has to determine the actual amount of income of which particulars have been concealed or inaccurate particulars have been furnished and only that income can provide the basis for levy of penalty and not the entire income as if the concealment of particulars pertains to that income. Even assuming that there is substance in this argument, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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