TMI Blog2009 (12) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... established in the penalty order." Grounds of cross-objection read as under: "1. The order of the learned Asstt. CIT, Circle 31 (1) in imposing penalty of Rs. 4,49,007 (as mentioned in the Form No. 36 filed by the Department) under s. 271 (1)(c) on the surrender amount of Rs. 10 lacs is totally wrong, bad in law and needs to be quashed. 2. The assessee has also surrendered income in other years also but no penalty has been imposed in those years although the facts of the case and assessee is the same. 3. No opportunity was given to the assessee and order was passed without hearing/giving opportunity as mentioned in the penalty order." 3. The above appeal is filed by the Department against deletion of concealment penalty by the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rs. 10 lacs with the following observations: "As discussed hereinabove under the fact and circumstances of the case and the scenario as emerged out ever since the survey conducted at the business premises of the assessee till the date of assessment proceedings, I have no material and any aid to make a true assessment of the income declared by the assessee and also to verify the genuineness of the sundry creditors. As mentioned hereinabove, since the assessee could not produce the sundry creditors for examination, he has filed a letter submitting inter alia that in order to buy peace and litigation, they are ready to surrender Rs. 10 lakhs for the asst. yr. 2004-05 with request that no penalty/interest shall be levied. Although the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the assessment order imposed the penalty which was in respect of addition of Rs. 10 lacs as well as disallowance claimed under s. 80HHC. Aggrieved, the assessee filed an appeal before the CIT(A) who has deleted the penalty vis-a-vis both the items. The Department in its appeal has contested the deletion of penalty only in respect of addition made on account of unexplained sundry creditors. The assessee in its cross-objection has supported the order of the CIT(A). 6. Arguing the appeal for Revenue, it was vehemently submitted by learned Departmental Representative that the assessee could not support the balance shown in the names of sundry creditors, therefore, an addition of Rs. 10 lakhs was made. The said amount represented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced before the CIT(A) on various decisions to contend that it was not a case where levy of penalty could be held justified and it was submitted that these cases have been discussed in the order of the CIT(A) and relying on those decisions it was submitted that penalty has rightly been deleted by the CIT(A). It was further submitted that under similar facts and circumstances, surrender was made in respect of other assessment years also and this fact has been duly noted by the CIT(A) in his order and in respect of those assessment years no penalty whatsoever has been imposed and, thus, it was pleaded that imposition of penalty for the present year has rightly been deleted by learned CIT(A) and his order should be upheld. 8. We have careful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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