TMI Blog2008 (7) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. Therefore, the residual figure assessed was only an estimated figure. AO did not make any enquiry as to the veracity of the assessee's claim in regard to the quotations. The patients were not examined. There is no clear-cut proof that the assessee did receive the amount as shown in the quotation. As such it cannot be said that the factum of concealment was proved beyond the shadow of doubt. Therefore, we find that the factum of concealment was not proved beyond the shadow of doubt. Additions were made solely on the basis of quotations in consultation register. Cash receipts cannot be determined correctly on the basis of quotations alone. No enquiry was made to find out the truth. Justice is truth in action. De hors suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal undisclosed income was determined at Rs. 2,54,59,503. The Commissioner (Appeals) vide order dated 31-3-2006 reduced the undisclosed income to Rs. 2,30,71,258. An appeal against the order of the Commissioner (Appeals) was filed before the Tribunal. The Tribunal determined the total undisclosed income at Rs. 1,16,81,860. The Commissioner (Appeals) in the light of the order of the Tribunal reduced the penalty from Rs. 73,59,575 to Rs. 29,87,077. 5. The learned counsel for the assessee submitted before us that the assessee did not conceal any income. Correct income was disclosed in the return. The block assessment was made on estimate basis. The difference between the returned income and the assessed income was due to the estimation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sub-section (2) of section 158BFA, the expression employed 'may direct that a person shall pay' clearly indicate the discretionary nature of the penalty. The expression 'may' employed in this section specifically postulate that discretion lies on the Assessing Officer or Commissioner (Appeals), as the case may be, to apply their mind before directing a party to pay the penalty. The expression 'shall' coming in the second proviso in fact, is to restrict the applicability of the penalty only to the difference in the income and not to the entire income. The operative force of the word 'shall' is directed towards the quantum and not on basic consideration as to whether penalty is to be levied or not. Therefore, in a given case, the competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2006 in IT (SS) A No. 94 (Mds.)/2006. While deciding the quantum issue the Tribunal recorded the submission of the learned Departmental Representative vide para 18 of the order. Income from suppression of receipts was estimated on the basis of documents seized during the search. At para 21 it is observed that the revenue was left with no option but to estimate the professional receipts. The Assessing Officer himself estimated the cost of medicine at 42 per cent. The Tribunal also observed at para 21 of the order that in this case, there was no alternative but to estimate reasonable proportion of fees which was not received by the assessee and also the cost of medicine supplied by the assessee. As such the Assessing Officer was directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , particularly when the assessment is made on the inference flowing from the inability of the assessee to establish the case pleaded by him, will not be sufficient for the purpose of imposition of penalty. The degree of proof required for the imposition of penalty is quite different from and is of a much higher order than that required for the purpose of making addition on estimate basis. Besides, addition on the basis of estimate does not ipso facto supply evidence of concealment so as to justify penalty. The maxim of English Law as propounded by Justice Holroyd J. prescribes: "It is better that ten guilty men should escape rather than one innocent should suffer." Finding of concealment cannot be based on estimation alone. We have consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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