1998 (9) TMI 37

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....the parties. At the instance of the Revenue, the Income-tax Appellate Tribunal referred the following questions relating to the assessment year 1978-79 for the opinion of this court : "1. Whether, on the facts and in the circumstances of the case and also in view of the pendency of appeal before the Tribunal at the time of passing the order of penalty, the penalty order is barred by limitati....

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....fficer, therefore, concluded that the assessee had concealed income from toddy business to the extent of Rs. 35,000. In cashew business, the quantitative details furnished by the assessee showed that the assessee had sent 3200 lbs. of cashew kernels on consignment, but no such sale had been credited to the profit and loss account for the year ending March 31, 1978. The assessee having failed to ac....

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....two counts : (1) that the penalty order was barred by limitation ; and (2) that ultimately loss having been assessed, no penalty was sustainable. The Appellate Tribunal accepted both the contentions. The Appellate Tribunal found as under: "Though the loss got reduced from the loss originally claimed, still it was only a loss that was finally assessed. In such cases, penalty is not leviable .....