TMI Blog1994 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... 1976. The net income was fixed in the assessment at Rs. 75,000. Subsequent to the completion of assessment on 30th Nov., 1984, the assessee was required to file a cash flow statement for the financial year 1977-78. In the cash flow statement filed on 24th Feb., 1986 income from toddy shop was credited at Rs. 40,000 as against Rs. 5,000 offered by the assessee. The Assessing Officer concluded from the above statement that the assessee had admitted the offence of concealment of income from toddy business to the extent of Rs. 35,000. 3. In respect of the cashew business, the assessee had filed quantitative details of the kernels as under: Opening stock . 12,550 lbs. Purchase 6435 lbs Prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal, the first appellate authority confirmed the penalty imposed under s. 271(1)(c) of the IT Act, 1961. The assessee is aggrieved. 5. It is contended that there was no concealment of the particulars of the income. We do not agree. The assessee took credit for Rs. 40,000 out of the estimated increase in the income from toddy business. Shri Nair contends that because the Assessing Officer had made the assessment on a higher income, the assessee took credit for it to some extent and therefore, it cannot constitute concealment. We do not accept his argument. This is not a case of mere estimate. The assessee has accepted the estimate and has tried to take benefit out of this estimate in the form of cash balance. Therefore, this estimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus we have heard rival submissions and perused the records. Sec. 275(a) is as follows : "275. No order imposing a penalty under this Chapter shall be passed— (a) in a case where the relevant assessment or other order is subject-matter of an appeal to the AAC or the CIT(A) under s. 246 or an appeal to the Tribunal under sub-s. (2) of s. 253, after the expiration of a period of— (i) two years from the end of the financial year in which the proceedings, in the course of which action for imposition of penalty has been initated, are completed, or (ii) six months from the end of the month in which the order of the AAC or the CIT(A) or, as the case may be, the Tribunal is received by the CIT, whichever period expires later;". It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n consequence of appellate orders and therefore no penalty is leviable. This contention is acceptable. 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 as has been held by the Chandigarh Bench of the Tribunal in the case of ITO vs. Sudhar Pharmaceutical Pvt. Ltd. (1983) 17 TTJ (Chd) 518. It was held therein as follows: "The legislature, apparently, has taken note of the difference between the total income and the total income assessed. This becomes very clear from a very close reading of the provisions of s. 271(1)(c) read with the other provisions of this section, particularly the provisions of Expln. 4. This Explanation clarified the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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