TaxTMI 
TaxTMI 
2014 (2) TMI 1326
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....from the Commissioner of Income Tax (Appeal), where as the Penalty has been imposed on 26/02/2004 i.e. after the expiry of the said period. The order passed after the expiry of the time limit is liable to be cancelled. 3. That the addition of Rs. 23 lacs on the difference of valuation of stock and Rs. 42,25,000/- on account of Cash Credits was liable to be deleted, had the appeals to the Honourable ITAT been filed in time as the authorities below found that no regular books of account were maintained by the Appellant and the assessment was framed ex parte u/s. 144. The Appeal on quantum was also decided ex parte. The penalty imposed is liable to be deleted. 4. That the learned Commissioner of Income Tax (Appeal) has erred to uphold the imposition of penalty without going through the submission made by the Appellant for which the penalty imposed is liable to be cancelled. 5. That the Ld. Commissioner of Income Tax (Appeals) has wrongly uphold that the alleged addition made by the Assessing Officer u/s. 68 & 69 of the Income Tax Act, 1961 as correct when there were no books of accounts maintained by the Appellant. 3. After hearing both the parties, we find that a search was condu....
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....advance from customer and combine machines were sold to these parties in the following years. In fact, some confirmations and affidavits were filed before the Assessing Officer which have not been properly considered. 5. The Assessing Officer examined the above submissions and observed that no doubt, penalty proceedings are distinct and separate from assessment proceedings and the matter can be examined on the basis of the material produced during appellate proceedings. However, since nothing was produced during penalty proceedings, therefore, the claim of the assessee could not be entertained. He also observed that Assessing Officer has made detailed observations regarding surrender of Rs. 23 lacs as well as cash credit amounting to Rs. 43,25,000/- in the assessment order and since there is nothing filed during the penalty proceedings to substantiate these claims, therefore, penalty was leviable. In this regard, he relied on the decision of the Chandigarh Bench of the Tribunal in case of DCIT, Special Range Patiala Vs. Road Master Industries of India Ltd. ITA 700/Chd/1998. He further observed that order was not time barred because limitation has to be reckoned after the date of r....
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....se slips have no evidentiary value. It was, further, claimed that these persons sold these combines to some other persons and again there was no evidence to establish the identity of the subsequent buyers of these combines. The AO had rightly invoked the provisions of section 68 of the Income tax Act, 1961 and made the addition of Rs. 43,25,000/- on this account. Even now, the assessee has simply re-iterated its plea which was taken before the AO at the time of assessment proceeding and at appellate stage. That too without any supporting evidence. It may be mentioned here that assessee has not filed any documentary evidence alongwith its reply. No material, whatsoever, has been produced to support it's contention. No regular books of accounts, original sale bills and mode of payment has been forth coming from the assessee and in the absence of these vital documents, the onus which was on the assessee to prove the identity of the persons, their credit worthiness and the genuineness of the transactions has not been discharged by the assessee. Thus, it is clear that the assessee has concealed particulars of income and is not able to substantiate its claim during the course of asse....
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....t order, it has been mentioned that Sh. V.K. Gupta, C.A. Counsel for the assessee when appeared on 17.02.1997 before the A.O. stated that the books of account for the relevant period were not maintained by the assessee. In para 8 of the assessment order, the A.O. again mentioned that verification of credits amounting to Rs. 43,25,000/- was not possible through books of accounts as no regular books of accounts were maintained by the assessee for the year under consideration. As such, from this discussion in the assessment order on a number of occasions, it is well established that the assessee had not maintained/produced regular books of accounts for the period under consideration. Assessee's contention that its books of account are with the department, is baseless, not supported by any documentary evidence and this deserves to be rejected. For the remaining issues raised in the written submission, it is submitted that all these issues have been discussed in the penalty order and as such the reliance is placed on the penalty order passed by the undersigned. For, ready reference a copy of assessment order dated 27.03.1997 is enclosed herewith". 3.6 I have gone through the facts ....
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.... levied. He also submitted that addition has been wrongly confirmed under section 68 and 69 of the Act when the assessee was not maintaining books of account. He also relied on the decision of Hon'ble Punjab and Haryana High Court in case of Harigopal Singh Vs. CIT, 258 ITR 85. 10. On the other hand, ld. DR submitted that penalty order is not time barred because as per the provisions of section 275 of the Act, the same can be passed before the expiry of the financial year within six months from the end of the month in which the order of the Tribunal is received by the Chief Commissioner/Commissioner as the case may be. He pointed out that the order of the Tribunal in this case in quantum appeal was passed on 25.6.2003 which was served on the Commissioner on 8.8.2003. Therefore as per sub-sec. (a) of Sec. 275(1) penalty order can be passed within time of six months from the end of the month in which the order is served on the Commissioner. The penalty order has been passed on 26.2.2004 which is within six months. He also pointed out that the Ld. Counsel for the assessee can not take a plea that this order has been passed by refusing condonation of delay because no such distinct....
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....ction is made in Sec. 275(1)(a) in the order of the Tribunal passed in limine by refusing to condone the delay or otherwise. Sec. 275(1)(a) reads as under: No order imposing a penalty under this Chapter shall be passed- "[(a) in a case where the relevant assessment or other order is the subject-matter of an appeal to the [***] Commissioner (Appeals) under section 246 [or section 246A] or an appeal to the Appellate Tribunal under section 253, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed or six months from the end of the month in which the order of the [***] Commissioner (Appeals) or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or Commissioner, whichever period expires later Sec. 275(1)(a)." The above clearly shows that limitation for passing the penalty order in case where the appeals are pending would be six months from the end of the month in which order u/s. 254 is received by the Ld. Commissioner. Therefore clearly a time of six months is available to the Revenue. Since the order of the Tribunal was received by the Department o....
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....e sense that its consequences are intended to be an effective deterrent which will put a stoop to practices which the Legislature considers to be against the public interest and held that if there is no evidence on the record except the explanation given by the assessee, which explanation has been found to be false, it does not follow that the receipt constitutes his taxable income. The court observed (at page 701): "It must be remembered that the proceedings under section 28 are of a penal nature and the burden is on the Department to prove that a particular amount is a revenue receipt. It would be perfectly legitimate to say that the mere fact that the explanation of the assessee is false does not necessarily give rise to the inference that the disputed amount represents income. It cannot be said that the finding given in the assessment proceedings for determining or computing the tax is conclusive. However, it is good evidence. Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished in....