2010 (10) TMI 1131

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.....1996 to 8.8.2002. The Tribunal in its order has sustained the additions at ₹ 87,857/- and ₹ 29,500/- found to be received by the assessee from ELOMA, GLORIA and M/s Butenoth all from Germany. It was observed by the Tribunal that these receipts must have been remitted by the said individuals for the services rendered by the assessee. 3. We have heard both the parties and perused the materials available on record. We have also gone through the orders of the lower authorities. The assessing officer in this case levied penalty only on the reason that the Tribunal has sustained the above additions. However, he has not given his findings independently regarding the levy of penalty. The provisions of Section 158BFA read as follows Se....

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....n findings in its order dated 24.10.2008 in IT(SS)A.No.140/Hyd./2005 in Para 9 & 10 which are reproduced as hereunder where is no conclusive establishment of guilt: 9. The first receipt is of ₹ 87,857/-. This amount is received from two persons in Germany Viz., Eloma and Gloria. The intimation sent along with the remittance and which is part of the seized material, states that the amount is sent for medical equipment. The seized material also indicates that the assessee may have rendered service to these two persons and in consideration of the services rendered, the amount seems to have been sent to the assessee. The two persons do not appear to be connected either with VTL or CPT and the amount clearly represents professional incom....

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....could not automatically justify imposition of penalty. In order to justify levy of penalty, there must be some material circumstances leading to reasonable conclusion that the amount does actually received by the assessee as income and the circumstances must show that there was conscious concealment or act of furnishing inaccurate particulars of income. The assessment order itself does not provide the conclusive evidence that the amount assessed was in fact the concealed income of the assessee. The department never examines persons who have given these receipts. Though the additions were justified in assessment proceedings, the said additions itself cannot be the reason for levy of penalty. Circumstances herein do not justify imposition of ....