TMI Blog2010 (2) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... 049/Mum/2009, - - - Dated:- 4-2-2010 - R.K. Gupta, A.L. Gehlot, JJ. Debashis Chande for the Appellant Nitesh Joshi for the Respondent ORDER R.K. Gupta:- 1. This is an appeal by the department against the cancellation of penalty imposed u/s.271(1)(c) at Rs.63,86,565/-. 2. Briefly stated, the facts of the case are that the assessee was engaged in the business of manufacture and export of garments. During the course of business, the assessee had given garment stitching job to certain job workers. The expenses debited to profit and loss a/c. on account of stitching charges were Rs.9,76,36,767/-. The original assessment was completed on 29-1-1998 wherein ad hoc disallowance of 1% of the total expenditure was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been dismissed by the Tribunal confirming the disallowance on account of stitching charges. The explanation offered by the assessee was not found satisfactory by the AO. Accordingly, he levied a penalty of Rs.63,86,565/-. 3. The assessee preferred appeal before the CIT(A). Detailed submissions were filed before him. Reliance was placed on various case laws i.e. 83 ITR 369, 123 ITR 457, 75 ITR 285,113 ITR 74 and 157 ITR 822. It was also submitted that on similar facts the CIT(A) has deleted the penalty for asst. year 2001-02 vide order No.CIT(A)-VIII/IT-51/06-07 dated 25-1-2007. A copy of the order is also filed. After considering the submissions and perusing the other material on record, the CIT(A) gave the following finding which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the assessee was allowed proper opportunity for filing confirmations of the parties to whom the stitching charges were paid. However, they were not filed. Attention of the Bench was drawn on the findings of the AO in the assessment order and penalty order. 5. On the other hand, the ld. counsel of the assessee placed strong reliance on the order of the CIT(A). It was further submitted that enquiries were made, replies and explanations were filed at the time of assessment proceedings as well as at the time of penalty proceedings. It was further submitted that similar stitching charges were paid for asst. year 1996-97. It was further submitted that on the basis of assessment proceedings the assessment for the year under consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. There should be something on record to show that the assessee had concealed its particulars of income. All details relating to stitching charges were filed during the original assessment proceedings as well as during re-assessment proceedings. Explanation for not getting full confirmations was also filed. The case of the department may be that the explanation filed could not be substantiated by filing any supporting evidence but, in our considered view, if by any reason the explanation is not substantiated by filing supporting evidence, penalty at least cannot be levied if the explanation of the assessee is not found false or incorrect. In the instant case, neither the explanation of the assessee is found to be false nor incorrect. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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