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TMI Blog1987 (8) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ce these very items are involved and the finding of the Tribunal also was that a cash of Rs. 75,000 was introduced by the assessee spuriously, the learned CIT (A) was wrong in reducing the quantum of penalty. 2. We have heard the learned Sr. Departmental Representative and are deciding the issue ex parte as the assessee did not turn up for argument on the date of hearing. The point raised is that the assessee had not adduced any additional evidence during the penalty proceedings and at the same time the ITO also had no other material to process the penalty proceedings. The ITO had categorically asked and made enquiry as to why the various items that had been added should not be treated as concealed income of the assessee for which the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4 of his order in regard to commission of Rs. 31,872, which was confirmed by the Tribunal as rightly disallowed, on which penalty was levied had observed as under : "3 Shri B. N. Khanna, the learned counsel for the appellant, submitted that whatever view may be taken so far as assessment of total income is concerned, there is no case for imposition of penalty on the basis of this addition. The identity of the two parties is established. Such commission was paid to M/s. Bharat Agencies even in the past when no disallowance was made and in this year also out of the total payment no disallowance has been made with respect to amount of Rs. 2,309. It was also contended that there was an agreement with respect to commission on sale payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the agreement dated 21-6-1974 was never mentioned before the ITO, let alone the production of such agreement before the ITO. It was also observed.that the agreement had no credential value for the reason that it was thought about only after the addition was made by the ITO, and also that if it were really an existing arrangement, then nothing prevented the assessee from taking that plea before the ITO, it was also found that the so called Bharat Agency did not even render any service. Rather the evidence showed that the goods were sent to the assessee directly and the assessee paid the amounts and the parties never dealt with Bharat Agencies. All these factors clearly go to establish that the claim of the assessee that there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. In these circumstances, the assessee was not in a position to explain from where he brought in the cash of Rs. 75,000 on 12-7-1974. The learned CIT (A) as against this finding of the Tribunal, relied on one of the submissions made by the assessee that many a times Banks do accommodate their clients and that sufficient funds were available to the partners, which were utilised for retirement of Hundies. According to the learned CIT (A), this is a valid document on the basis of which he comes to the decision that there is no concealment on the part of the assessee. 4. It is our conclusion that the learned CIT (A) did not appreciate the facts in the proper perspective and has come to a decision without going through the records in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have acted on his own but under the instructions of the assessee only. The learned CIT (A) had confirmed that this was concealed income on the part of the assessee and confirmed the penalty to this extent. Finally, in view of our observations, made in the earlier paragraphs, and as the facts stand as they are, the assessee has failed to substantiate that there was no concealment on his part and, therefore, the penalty as was levied by the ITO at Rs. 40,000 by treating the sums of Rs. 31,872, Rs. 75,000 and Rs. 32,086 as concealed income is fully justified and accordingly we restore the penalty as was levied by him by setting aside the order of the CIT (A) partially. 6. In this result, the Departmental appeal is allowed. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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