9911796707
TMI Blog1983 (2) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... nproved cash credits: . . . . Sh. Sant Singh 1,000 . . . Sh. Kewal Singh 1,000 . . . Sh. Gulzar Singh 2,000 . . . Sh. Khaushi Ram 5,000 Rs. 9,000 (iii) Addition in the name of M/s Phulka Rice Mills, Sirhind . Rs. 9,390 . . Total Rs. 26,137 3. The assessee aggrieved by the said assessment order went in appeal before the AAC. The AAC vide his order dt. 31st Oct., 1977 reduced the trading addition to Rs. 5,000 but confirmed the rest of the additions. When the matter came before the Tribunal, the Tribunal deleted even the addition of Rs. 5,000 sustained by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies on the assessee. He submitted in respect of additions of Rs. 9,000 on account of cash credits and Rs. 9,390 on account of M/s Phulka Rice Mills, the explanation given by the assessee is frivolous. He argued at length that even explanations are not given for the cash credits in course of penalty proceedings. He submitted that contention of the assessee that due to business expediency the creditors could not be produced is a contention which will lead to strange consequences. He also placed his reliance on CIT vs. M. Habibullah (1982) 29 CTR (All) 281 : (1982) 10 Taxman 216 (All). The ld. counsel for the assessee, on the other hand, submitted that ITO never invoked the Explanation. He took us once again through the finding of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25th Nov., 1974 and provision to cl. 3 in s. 271 came on the statute w.e.f. 1st April, 1976 where permission of the IAC is contemplated; earlier it was the IAC himself who could levy the penalty. In support of his contention that law standing on the date when the return is filed is to apply, he placed his reliance on the case of Brij Mohan vs. CIT (1979) 12 CTR (SC) 198 : (1979) 120 ITR 1 (SC). Regarding onus, he took us through certain pages of assessee's compilation p. 26 being the affidavit of Khushi Ram, p. 30 being the copy of account of Sirhind Branch. He vehemently argued that s. 68 is for unproved cash credits and not for penalty. 6. The ld. Department al Representative in the rejoinder submitted that no plea can be taken as done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order at length the reproduction of which shall only encumber this order. Regarding new plea which is taken by the ld. counsel for the assessee before us, there is no controversy about the facts that the return in the instant case was filed on 25th Nov., 1974, the law in form of ss. 271 and 274 standing on that date and provisions and clauses given therein did not authorise the ITO to levy the penalty in cases where concealed income was more than Rs. 25,000. There is also no controversy, about the fact that the concealed income taken into consideration by the ITO accounted to Rs. 7,744, +9,090, +9,320 i.e. Rs. 26,067 which is apparently more than Rs. 25,000. Their lordships of the Hon'ble Supreme Court in the case of Brij Mohan, sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n different grounds whatsoever. Regarding reliance on which was identically placed by the Revenue in the case of Ramesh Kumar Ved Prakash, we have dealt with the same at length in the said case. Similar is the reliance of the ld. Department al Representative on the case of CIT vs. M. Habibullah (1982) 29 CTR (All) 281, because in the instant case we are not ignoring the application of the Explanation but we are cancelling the penalty on different ground whatsoever. 9. Similarly, reliance of the ld. Department al Representative in the case of Shiv Narain Khanna, supra, is misplaced. In that case, their Lordships held that material on which assessment is based can also form basis for penalty. We are intentionally not discussing the catena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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