2012 (6) TMI 469

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....l is, whether the Tribunal was justified in sustaining the penalty under section 271(1)(c) of the Act on the ground that there had been concealment of income by the assessee ?   3. Briefly stated the facts of the case as narrated in the appeal are that on August 5, 1994, a survey was carried out under section 133A of the Act at the business premises of the assessee-appellant. The surveying authority found the stock of first and second class bricks in excess to the tune of 28750 and 45280 respectively whereas the third class tiles were found short to the extent of 63400. The Income-tax Officer, on the basis of the above, vide order dated November 24, 1997, made addition of Rs. 44,380 on account of shortage in stock of third class til....

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....-tax (Appeals) and held that the deletion of penalty was not justified. It was ordered that the penalty be calculated on the basis of the amount of addition finally sustained by the Tribunal.   6. It is how the assessee is in appeal before us.   7. We have heard learned counsel for the parties and have perused the record.   8. The Tribunal had set aside the order of the Commissioner of Income-tax (Appeals) and directed the Assessing Officer to recompute the amount of penalty on the basis of the amount which was finally sustained by it. The Tribunal while reversing the order of the Commissioner of Income-tax (Appeals), cancelling the penalty had categorically held that the addition had not been made on the basis of es....

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....ategorical finding as under :   'Since stock with respect to first class and second class bricks has been found in excess and inventory prepared at the time of survey had duly been signed by the assessee, therefore, the addition in this regard is called for and the same has rightly been made by the Assessing Officer at Rs. 43,483 by adopting the sale rate of Rs. 725 and Rs. 500 per thousand bricks with respect to first and second class bricks respectively.'   In view of the foregoing finding, it becomes crystal clear that the assessee was having excess stock of first and second class bricks which was not accounted for in the books of account. It is true, as contended by the learned authorised representative, that penalty pro....