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TMI Blog2008 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... . Niraj Jain for Mr. Anjay Kothari, for the respondent. JUDGMENT These three appeals have been filed by the Revenue, against the common judgment of the tribunal, dated 04.1.2005. The appeals were admitted on different dates, by different orders, framing following substantial question of law, being as under:- "Whether on the facts and in the circumstances of the case, when return is submitted in pursuance of notice under Section 148 showing higher income than returned in original return, as a result of survey in the premises of the assessee during which assessee has surrendered income in addition to the income assessed originally and the assessment has been made at such returned income, whether presumption under Explanation 1 to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e register, then on a second thought, he gave out, that the receipt is of his firm, and is not entered in the books of account, and offered to surrender 15% of the receipt as income, to be levied to tax, then in answer to question No. 18, relating to the claims to three different amounts, during the assessment years, 1995-1996,1996-1997 and also 1997-1998, expenditure on account of discount and claim, so also commission and rebate, it was deposed, that the particulars of this claim, i.e. confirmation or other details from the concerned parties is not available, it was given out, that actually the expenditure was incurred, but it is not possible to get it verified to the extent of 100%, therefore, in order to purchase peace of mind, he surr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Commissioner relied upon the various judgments, including the judgment of Hon'ble Supreme Court, and other High Courts, and thus, set aside the impugned order. This setting aside has been confirmed by the learned Tribunal. The learned Tribunal, relied upon the judgment of Bombay Bench of the Tribunal, in the case of Kumar Agencies (India) Vs. ACIT, ITAT, and quoted the portion thereof which was relied upon in extenso. In this judgment, the judgment of Hon'ble Supreme Court in case of CIT Vs. Suresh Chandra Mittal, (reported in 251 ITR 9) and K.P. Madhusudhanan Vs. CIT (reported in 251 ITR 99) were considered and followed. Learned Tribunal also relied upon the judgment of the Jaipur Bench of the Tribunal, confirming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court, in Sudarshan Silks and Sarees vs. CIT (reported in 300 ITR 205 (SC)). Learned counsel also relied upon the judgment of this court in Shivlal Tak Vs. CIT 251 ITR 373, and supported the impugned orders. We have gone through the judgments sited at the bar. In our view, the judgment in Sudarshan's case clinches the controversy, apart from the fact, that the judgment in Suresh Chandra Mittal and K.P. Madhusudhanan also support the case of the assesses. In Sudarshan's case, it has further been held, that the finding recorded by the Tribunal, or the authorities below, on the question of liability of penalty, is essentially finding of fact, and unless, those findings are alleged to be perverse, or to be vitiated on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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