9911796707
TMI Blog1997 (2) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of Rs. 14,23,429, which included, inter alia an addition of Rs. 8,91,108 towards excessive burning loss claimed by the assessee company in its re-rolling process. The assessment was accepted by the assessee and no appeal was filed thereafter. In fact, the assessee filed another return on 31-3-1986 (the same day on which the penalty notice with regard to the earlier return was served on the assessee) in which instead of the loss claimed in the return, it showed an income of Rs. 40,000. It was claimed by the assessee that no penalty for concealment was warranted inasmuch as the return was filed under the Amnesty Scheme. The Assessing Officer discussed that the original return having been filed much earlier, did not come within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted. The CIT(Appeals) noted that in respect of the quantitative particulars, full reconciliation had been furnished by the assessee. He thereafter noted that the Joint Plant Committee of the Government of India had held that claim of burning loss at 8% was not unduly excessive and furthermore that All India Steel Rerollers Association had communicated that burning loss could usually be taken at 10%. In the circumstances, when the addition had been made merely by estimating the percentage of burning loss, the CIT(Appeals) was of the opinion that no penalty was exigible. Accordingly, he cancelled the penalty. 4. During the course of the hearing of the appeal before us, the learned DR argued very vehemently that the assessee had accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in the case of Sir Shadilal Sugar & General Mills Ltd v. CIT [1987] 168 ITR 705/33 Taxman 460A. Thereafter, the learned DR has relied on the judgement of the Gujarat High Court in the case of CIT v. Somnath Oil Mills [1995] 214 ITR 32/83 Taxman 4. It was held in this particular case that even though the finding given in the assessment proceedings for determining the tax on the basis of suppressed sales or purchases is not conclusive, but yet, the same would be good evidence for the purpose of levying penalty for concealment. One has got to agree with the judgement in this case. At the same time again, one is required to take note of the judgements of various courts including that of Supreme Court that the findings in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(Appeals) resolves all the discrepancies as pointed out in the impugned penalty order. This point has also been mentioned by the CIT(Appeals) in his appellate order. 6. The departmental contention is based mostly on the fact of admission of the income in the return filed by the assessee subsequent to the assessment and also on the other fact that no appeal was filed against the impugned addition. The latter fact, by itself, cannot be a conclusive evidence for concealment in respect of the amount added back in the assessment. So far as the second return filed by the assessee is concerned, that was filed under the Amnesty Scheme. Hence, no question of concealment can come in respect of anything offered or declared in that return. Alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thermore that the claim of the assessee is also a plausible one, although rejected by the Assessing Officer. As has been discussed by the CIT(Appeals), the quantitative discrepancies have been fully reconciled, proper answers have been given to the points of anomalies, etc., mentioned in the penalty order, in the report of the Assessing Officer submitted to the CIT(Appeals) and no finding has been given by the department anywhere about any purchase or sales having been made outside the books. In the face of all these facts, therefore, we are of the opinion that none of the citations relied upon by the DR applies to the facts of the present case. On the other hand, we may like to discuss 2 recent judgements of the Madras High Court in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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