TMI Blog1992 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises an admittedly sister concern M/s Bhagwant Sons Enterprises, Jodhpur, and there also similar additions were made as in the same of the assessee-firm. One of the additions made by the Assessing Officer was an amount Rs. 53,119 on account of alleged on money received on sale of certain by and of cigarettes. Another addition which was made was of Rs. 84,660 made by the ITO on account of alleged understatement of sale proceeds of Red White Filter cigarettes form 10th Oct., 1984 to 31st March 1985. It was on this basis that the Assessing Officer initiated penalty proceedings under s. 271(1)(c) and imposed penalty on the assessee. That penalty order was set aside by the learned CIT(A). That is why while the assessee is in affect bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to incur in connection with earning that income. Sh. Jain Emphsised that in spite of search no incriminating material or evidence had been found with the assessee proving that assessee had actually earned that income. That income had been added on the basis of a circular which the GPI had issued to all its dealers in which directions for charging on money had been given. Shri Jain claimed that although there was no evidence regarding this amount having been collected by the assessee, still the assessee filed the revised return adding Rs. 40,000 only to peace with the Department and hence this addition of Rs. 53,119 should not have been made. 5. We have carefully considered the arguments of the learned counsel and the learned Deptl. Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later judgment in the case of CIT vs. Shivdas Sirmal (1988) 73 ITR (Raj) 221 : (1989) 175 ITR 546 (Raj) it was held that CIT(A) could not set aside a penalty order. The learned counsel, however, argued that on merits also it was not a case for imposition of penalty. He referred to the fact that a similar addition in the case of M/s Bhagwant Sons Enterprises had been deleted and the other addition confirmed in that case so also in the case of the assessee are those which are on the basis of some information but without any evidence that the assessee had actually earned that income. He submitted that the assessee had surrendered the amount of Rs. 40,000 (on the basis of which an addition of Rs. 53,119 was made) to purchase peace which has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or field inaccurate particulars thereof and hence the penalty imposed by the Assessing Officer is directed to be cancelled and the order of the CIT(A) would be modified accordingly. Therefore, while the appeal filed by the Revenue may be treated as partly allowed, the appeal filed by the assessee is treated as allowed. 10. In ITA No. 1405/Jp/1989 the Revenue has challenged the cancellation of penalty imposed under s. 273(a). The learned Deptl. Representative vehemently argued that the learned CIT(A) was not justified in taking the view that the assessee cold not have visualised that its book version will not be accepted and additions would be made, because according to the Deptl. Representative the assessee itself had filed a revised ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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