TaxTMI 
TaxTMI 
1982 (2) TMI 119
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.... was due to this mistake of the assessee under the bonafide impression, that the appeal was filed before the Tribunal as late as on 27th Nov., 1979. After taking into considerations the submissions made by the assessee for condonation of delay, the delay was condoned on 19th Aug., 1981. and the appeal was fixed to be heard on merit on 1st Feb., 1982. 3. It will not be out of place to mention that in the grounds of appeal the assessee also raised a contention regarding jurisdiction and competence of the IAC to levy the penalty, but at the time of hearing we were not addressed on this issue and the ld. counsel for the assessee Sh. D.K. Gupta was fair enough to admit that the contention raised pertaining to jurisdiction is against the assessee by the Punjab and Haryana High Court judgment. Since we were not addressed on the said ground, we don't express any opinion on the same and deal with the contentions pertaining to merit alone. 4. Coming to the merit pertaining to the levy of penalty, it is very relevant to look into the assessment order for the year under consideration which is 1970-71. As per the said assessment order, it can be narrated in brief that the assessee ran a nur....
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....rties sought an adjournment which was refused because a number of adjournments had already been granted in this case. We do not have day-to day details of income of Rs. 42,307 which was admittedly kept outside the books of account during the period 6th Aug.,1969 to 11th March,1970. We also do not have the day-to-day details of Rs. 41,431 which expenditure, according to the assessee, was incurred but was not disclosed because it was connected with the income Rs. 42,307. The admitted position even before the ITO (that position has not changed before us) is that against the receipts of Rs. 1,08,660 during the period 6th Aug., 1970, the assessee disclosed only Rs. 66,353 and thus, suppressed income to the extent of Rs. 42,307. This fact itself is enough to reject the books of account produced by the assessee and to apply the provisions of s. 145(2). Sec 145(2) lays down that where the ITO is not satisfied about the correctness and completeness of the assessee's accounts or where no method of accounting has been regularly employed by the assessee, the ITO may make an assessment in the manner provided in s. 144. Sec.144 provides that the ITO, after taking into account all relevant materi....
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.... of Rs. 21,380." 6. It is out of these facts pertaining to assessee that concealment penalty under s. 271(1) (c) was levied by the IAC, according to whom, the assessee was guilty of concealment but considering that the assessee was a professional man and had left the accountancy part entirely his accountant the IAC levied minimum penalty of hundred per cent in a sum of Rs. 19,681. 7. While considering this action of the IAC the ld. counsel for the assessee, submitted that from perusal of assessment order, order of the AAC and that of the Tribunal, it is undisputedly a case of estimate and on the basis of income estimated the assessee should not have been visited with penalty under s. 271(1)(c). He submitted that the facts in respect of asst. yr. 1971-72 in the assessee's own case were identical where concealment penalty was dropped by the IAC. The ld. Deptl. Rep. on the other hand picked up a few sentences from the order of the Tribunal which mentioned about suppression of receipts and relying on the Allahabad High Court decision in the case of Addl. CIT vs. D.D. Lamba and Co. (1981) 20 CTR (All) 160 : (1981) 128 ITR 564 (All) attempted his utmost to persuade us to confirm the ....
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....eceipts, towards expenditure, it did not take into consideration the expenses shown to have been suppressed by the assessee but estimated the same also on the basis of percentage of other expenses, hence, it is clear that it was only a matter of estimate. On the basis of these facts, alone the assessee should not have been visited with concealment penalty. Reliance of the ld. Deptl. Rep. on the case of D.D. Lamba & Co. is misplaced because that was under the Explanation which has not been invoked in this case. When we peruse the facts of the instant case and seek guidance from the Punjab and Haryana High Court judgment in the case of Sunder Lal Mohinder Pal, one of the questions referred to their Lordships was "whether on the facts and in the circumstances of the case, the Tribunal was right in law in upholding penalty of Rs. 4,500 on the additional profit estimated on estimated sales outside the books of account?" Their Lordships concluded the issue in favour of the assessee in the following words: "8. As regards question No. 3, it may be observed that admittedly no material was placed before the authorities by the Revenue in the penalty proceedings. It is no doubt true that the....