TMI Blog2008 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the assessee without any iota of doubt. As per the latest judgment of the Supreme Court in the case of Union of India vs. Dharmendra Textile Processors [ 2007 (7) TMI 307 - SUPREME COURT] , though the liability may be a civil liability, but cannot be equated with other liability of the payment of tax in the Act. Therefore, for attracting the penalty provision, a strict proof is required and onus to prove the same is on the Department. Since the Department has failed to establish the same and discharge its onus ultimately, we find that the penalty imposed by the Department is not warranted and justified in the facts and circumstances of the case. Accordingly, we delete the penalty. In the result, the appeal filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal and this Tribunal vide its order dt. 18th Oct., 2005 set aside the order of the CIT(A) and restored the addition made by the AO. Since the assessee firm voluntarily disclosed a sum of Rs. 25,86,000, the concealed income worked out by the AO was at Rs. 60,64,250. Subsequently, the AO imposed the minimum penalty, i.e., 100 per cent on the tax said to be evaded on the said amount of Rs. 60,64,250. The assessee preferred an appeal before the CIT(A) against the order of penalty which was dismissed vide impugned order. Aggrieved by the order of the CIT(A), the assessee has filed the appeal before us. 4. Before us, the learned counsel for the assessee has contended that there was a mistake in the entries made regarding the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) 432 : 2008-TIOL-192-SC-CX-LB, the penalty provision is a civil liability and wilful concealment is not an essential ingredient for attracting the civil liability. He has contended that the Larger Bench of the Supreme Court has observed that the conceptual and contextual difference between s. 271(1)(c) and s. 276C of the IT Act was lost sight of in the case of Dilip N. Shroff vs. Jt. CIT (2007) 210 CTR (SC) 228 : (2007) 291 ITR (SC) 519. He has filed a copy of the judgment dt. 29th Sept., 2008 of the Supreme Court in the case of Union of India vs. Dharmendra Textile Processors. 6. After considering the rival contentions and material on record, we note that though the Supreme Court held that the penalty provision is civil liability and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee that there may be a mistake in recording the rate. There may be a possibility that the rate of two flats are merged and recorded. In these facts and circumstances, we are of the view that the possibility of a wrong entry cannot be ruled out in the present case. Therefore, we hold that the Department has failed to prove the concealment on the part of the assessee without any iota of doubt. As per the latest judgment of the Supreme Court, though the liability may be a civil liability, but cannot be equated with other liability of the payment of tax in the Act. Therefore, for attracting the penalty provision, a strict proof is required and onus to prove the same is on the Department. Since the Department has failed to establish the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
