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2015 (1) TMI 1163 - HC - Income TaxLevy of penalty u/s 263 for failure to deposit advance tax - incorrect estimation of advance tax - Held that:- In the case on hand, there is no material to show that that the assessee has consciously concealed certain particulars pertaining to his income or has supplied inaccurate particulars, deliberately. Further, it is the case of the Revenue that the explanation given by the assessee in connection with his income is not acceptable and it is not the case that the assessee has offered no explanation or false explanation, at all. Instead the case of the revenue is that the explanation given by the assessee cannot be accepted. Decision of the Apex Court in CIT VS. KHODAY ESWARSA & SONS (1971 (9) TMI 19 - SUPREME Court) and AMRUT TUBEWELL COMPANY VS. ASST. CIT (2015 (1) TMI 1149 - GUJARAT HIGH COURT), penalty being proceedings being penal in character, the department must establish that the receipt of the amount in dispute constitutes income of assessee. Apart from falsity of explanation given by the assessee department must have before it before levying penalty cogent material or evidence from which it could be inferred that assessee has consciously concealed particulars of his income or had deliberately furnished inaccurate particulars in respect of the same and that the disputed amount is a revenue receipt. No doubt the original assessment proceedings, for computing the tax may be a good item of evidence in the penalty proceeding s but the penalty cannot be levied solely on the basis of the reasons given in the original order of assessment question of law raised in this appeal is answered in favour of the appellant-assessee
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