TaxTMI 
TaxTMI 
2013 (7) TMI 148
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.... even though there is no finding in the penalty order that there exists concealment of income ? 3. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in holding that the assessing officer can levy penalty in a case where the assessee himself has offered additional income on estimated basis in order to purchase peace with the Department? 4. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in confirming the action of the assessing officer in levying penalty even though the Commissioner of Income Tax under Section 263 had directed the Assessing Officer not to initiate penalty proceedings ?" T.C. (A).No.27 of 2010:- "1. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in confirming the levy of penalty of Rs.6,28,001/- under Section 271(1)(c) of the Act ? 2. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in imposing the penalty under Section 271(1)(c) even though there is no finding in the penalty order that there exists concealment of income ?" 2. The assessee is a private limited company. The assessmen....
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....der of assessment that as regards the claim on depreciation, in the course of Survey under Section 133A of the Act, a sworn statement was recorded from the assessee's Company Director. The assessee stated that the machineries were sent for repair to SIPCOT Commercial Complex, Gummidipoondi. However, no supporting documents were produced in respect of the machineries alleged to have been sent for servicing. In the course of the assessment proceedings, the assessee further stated that they received the machineries after repair from their stock yard in April 2003. Thus as on 31.03.2003, there was no machinery received after service for the purpose of using it in the business; consequently, the claim on depreciation was disallowed. 8. As far as fine and penalty payment under the Customs Act was concerned, the said levy were made under the Customs Act on account of price variation. Rejecting the plea of the assessee to take a lenient view, the Assessing Officer made addition of Rs.8,00,000/- under this head. 9. As far as LC discounting is concerned, the Assessing Officer found that there was no physical movement of goods and sale invoices were prepared only to help the group compa....
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....facts of the case, the Income Tax Appellate Tribunal committed serious error in holding that circumstances warrant levy of penalty in this case. 15. Learned counsel for the assessee relied on unreported decision of this Court in T.C.A.No.341 of 2010 dated 05.02.2013 (The Commissioner of Income Tax, Ward IV (1), Chennai Vs. P.Rojes) as well as to the decisions of this Court, to which one of us was a party (CHITRA VENKATARAMAN, J.) viz., in T.C.A.No.273 of 2012 dated 12.09.2012 (Commissioner of Income Tax, Chennai Vs. M/s.Shriram Properties & Constructions (Chennai) Ltd., T.Nagar, Chennai-17) and T.C.A.No.1985 of 2006 dated 01.10.2012 (Commissioner of Income Tax Vs. Balaji Distilleries Ltd) and contended that in the absence of any concealment, per se, any addition made, per se, will not lead to levy of penalty. 16. The claim of the assessee was countered by the learned Standing Counsel for the Revenue by placing reliance on the decision in the case of Union of India Vs. Rajasthan Spg. & Wvg. Mills reported in (2009) 180 Taxman 609 (SC), the decision of the Apex Court in the case of Union of India and others Vs. Dharmendra Textiles Processors and Others reported in (2008) 306 IT....
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.... of the Act. Thus, contrary to the assertion of the assessee, all that the Commissioner of Income Tax did in the revisional Order was that while accepting the plea of the assessee for restricting the addition, he merely pointed out that a non initiation of penalty proceedings did not warrant any interference. This, however, does not mean that the hands of the Assessing Officer is tied on invoking the provisions under the Act, which, otherwise, would be applicable to the facts of the case. Thus, in the given fact situation, if the provisions of the Act on penalty are attracted, the Assessing Officer has to go by the dictates of the law rather than by the order of the Commissioner of Income Tax. In fact, we may even say that the Commissioner did not comment anything at all on this. In the circumstances, we reject the plea of the assessee that based on the order under Section 263 of the Act, there could not be any penalty. 20. As far as levy of penalty is concerned, as rightly pointed out by the learned Standing counsel for the Income Tax Department, the claim for bill discounting for both assessment years was found to be totally untrue, as there was no physical movement of goods. ....
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.... T.Nagar, Chennai-17) to delete the levy of penalty, thereby, confirming the order of Income Tax Appellate Tribunal. 24. As far as the other two unreported decisions are concerned, confirming the deletion of penalty, they were based on the facts found, particularly with reference to a claim made, but not allowed under the provisions of the Act. 25. In the circumstances, we find that the unreported decisions of this Court relied on by the learned counsel for the assessee stand on factual findings and are distinguishable. The plea made by the learned counsel for the assessee, hence, stands rejected on the facts of the case on hand. 26. On the other hand, the reliance placed by the Revenue on the decisions of the Apex Court reported in (2009) 180 Taxman 609 (SC) (Union of India Vs. Rajasthan Spg. & Wvg. Mills) and in the case of Commissioner of Income Tax Vs. Zoom Communication P. Ltd., reported in (2010) 327 ITR 510 (Delhi) merits acceptance. In the decision reported in (2010) 327 ITR 510 (Delhi) (Commissioner of Income Tax Vs. Zoom Communication P. Ltd.), the Delhi High Court viewed that so long as the assessee had not concealed any material fact or the factual information ....