TMI Blog2006 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ken contract for sale of liquor and was having two shops, i.e., Camp-I and Camp-II, Bhilai. The assessee has shown sale of country liquor of Masala variety at the rate of Rs. 86 per litre and plain variety at the rate of Rs. 72 per litre through out the year. On verification of the figures shown by the assessee, a letter was written to the District Excise Officer, Durg for finding out the actual selling rate in the year under consideration. He informed the rates as under: ----------------------------------------------- A. Shop of Camp-I, Bhilai Full Bottle Half Quarter (750 ml.) (500 ml.) (250 ml.) Masala Rs. 73 Rs. 49 Rs. 25 Plain Rs. 61 Rs. 41 Rs. 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the assessee is concerned, he chose to accept the addition and did not contest the same in appeal. Not contesting the addition in appeal or accepting the same, it cannot be treated as voluntarily offer on the part of the assessee. He further held that the contention of the assessee with regard to non-levy of penalty, etc., has no meaning and it has no relevance with regard to the penalty proceedings are concerned. He levied the penalty of Rs. 2,25,000 under section 271(1)(c) of the Act. 3. Aggrieved by the above, the assessee approached the first appellate authority. It was contended before the ld. CIT(A) that the assessee was maintaining the regular books of account which are duly audited under section 44AB and considering the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had no application. The CIT(A) gave partial relief to the assessee. Aggrieved by the order of the CIT(A), the assessee is in appeal before the Tribunal. 5. The ld. counsel for the assessee submitted that the State Excise Department has not fixed any rate for sale and the figures intimated by the Excise Department are tentative sale prices of goods and is mainly for the purpose of estimating the auction amount for subsequent year. There is nothing on record to show that the assessee had actually sold the liquor for a higher price. Only the purchase price of the liquor is fixed by the Government and selling prices are to be fixed by the licensees. Before accepting the order of the assessee, there is no iota of evidence on record that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court in the case of CIT v. Suresh Chandra Mittal [2001] 251 ITR 91 he submitted that surrender of certain income to purchase price and to avoid litigation automatically does not lead to penalty proceedings. The counsel submitted that as per the business practice followed by the trader in this field, no contractor maintains sales bills and the assessee is not an exception. In fact, there is no evidence on record to show that the assessee had earned more income than what he declared. In penalty proceedings, the onus is on the revenue to show that the assessee had positive income than declared. 6. Relying on the decision of the ITAT, Nagpur Bench in the case of Asstt. CIT v. Gupta Enterprises [IT Appeal No. 463 (Nag.) of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision mainly relied upon by the DR of the ITAT, Nagpur Bench in Suresh Kumar Jain's case. The main reliance was placed on the decision of the Hon'ble Kerala High Court in the case of DKB Co. and also the Guwahati High Court decision in the case of Akshay Bhandar v. CIT [1996] 220 ITR 325. The Hon'ble Kerala High Court in the case of D.K.B. Co. observed as under: "it is settled position in law that there cannot be estoppel against a statute. It is for the department to consider the explanation offered by the assessee in respect of an amount which was offered to be taxed. It is not automatic that whenever an amount has been offered by the assessee, penalty is not to be levied. Therefore, in the penal proceedings which conceptually d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the income. Penalty proceedings are independent and the assessee is not precluded from giving evidence at that stage. It may be a good case to make addition but it is not necessary that such cases lead to levy of penalty, if the assessee offers an explanation which is prima facie is acceptable. When the assessee has discharged his initial burden, then it is for the revenue to show positively that the assessee had concealed the income. 9. Coming to the decision of ITAT, Nagpur Bench in the case of Suresh Kumar Jain relied upon by the DR, this was a case of cash credit and when questioned, one of the creditor had stated that this was the fund of the assessee. The amount represented the assessee's own income routed through him. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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