TMI Blog2013 (6) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... BFA(2) is imposable in respect of undisclosed income which is determined as a result of evidence found during the course of search. The addition here is not based on any evidence found during the course of search and therefore, penalty was not imposable. CIT(A) was justified in cancelling the penalty. Appeal in the case of Shri Dal Chand Yadav - unaccounted marriage expenses - Held that:- It is not clear as to how the authorised officer mentioned that paper relates to the marriage expenses. The assessee has shown withdrawal of Rs. 2,06,240 in the regular books of account. The other figures may be the amounts received from the relatives or the figures may not be for the marriage expenses. The availability of the word Papa on this paper show that this paper is not in the handwriting of the assessee as he would not have used the word Papa. Hence, such document is not sufficient to impose penalty. Similarly, in respect of other additions, there was no material found during the course of search for making the addition. Hence, CIT(A) was justified in deleting the penalty. Appeal of revenue dismissed. - - - - - Dated:- 14-7-2011 - Order The order of the Bench was delivered by N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther noticed that the bank account of the mother of the assessee showed the same residential address as that of the assessee and such account was opened before the date of search. The Tribunal has confirmed the addition on the proposition that Instruction No. 1916 dated May 11, 1994 cannot be treated as an explanation to the source of the jewellery found. In respect of addition based on income expenditure method, the Tribunal was convinced that the income has to be computed on the basis of the material but in the circumstances and facts of the percentage, the difference between the unexplained expenditure and income is also to be added. Looking to the finding given by the Tribunal in the quantum appeal, the learned Commissioner of Income-tax (Appeals) held that it is not a case where penalty is to be imposed as the penalty is discretionary. Before us, the learned Departmental representative has filed the written submissions. The learned Departmental representative has submitted that no presumption can be taken that the Assessing Officer has not exercised his discretion. Our attention was drawn towards the decision of the hon'ble apex court in the case of Union of India v. Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT v. Harkaran Das Ved Pal [2011] 336 ITR 8 (Delhi) ; 222 CTR 438 held that levy of penalty under section 158BFA(2) is discretionary and not mandatory and therefore, held that penalty cannot be imposed in case block assessment is made on the basis of benefit surrendered by the assessee de hors any evidence of undisclosed income found during search. The hon'ble Kerala High Court in the case of CIT v. Heera Construction Co. P. Ltd. [2011] 337 ITR 359 (Ker) ; 2011TLOL-351-HC-Ker held that if any addition is made in respect of undisclosed income to the returned income then penalty is discretionary. There are various decisions in which it has been held that penalty is discretionary. Since we are having the benefit of the hon'ble jurisdictional High Court therefore, we are not referring to other decisions of the Tribunals. We have perused the order of the Tribunal while deciding the quantum appeal. While confirming the addition on account of jewellery, the Tribunal has observed that Instruction No. 1916, dated May 11, 1994, cannot be treated as an explanation to the sources of jewellery found. There is no positive finding that jewellery was unexplained in spite of the explanation g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation in respect of the above additions and the Assessing Officer has also considered the explanation though the Assessing Officer has imposed the penalty on the difference between undisclosed income determined as a result of the order of the Tribunal and the undisclosed income as returned by the assessee. The learned Commissioner of Income-tax (Appeals) has observed that the addition of Rs. 4.60 lakhs is based on a slip of paper seized during the course of search and the statement of the assessee. The learned Commissioner of Income-tax (Appeals) has referred to the order of the Tribunal while deciding the quantum appeal in which it has been observed that the slip contain the figure of Rs. 4.50 lakhs on the top. The total payments shown therein comes to Rs. 2,94,595. The handwriting in the slip is not of the assessee and the details have been written in a haphazard manner. The notings in the slip do not prove conclusively that they relate to marriage expenses. No other paper has been found relating to the marriage. The Tribunal held that the documents cannot be considered a dumb document. The assessee has not proved that the paper does not belong to him. The addition was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
