TMI Blog2011 (1) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... te particulars of its income or has concealed its income in order to avoid payment of tax. The Assessing Officer has merely accepted the surrender made by the assessee. This is good as far as the assessment is concerned but in order to levy penalty, the Assessing Officer has to conclusively establish that the assessee has concealed its income or has filed inaccurate particulars of income. In the absence of any evidence to this effect, in our considered opinion, the Assessing Officer was not justified in levying penalty of Rs.5,82,287/-. Hence, we set aside the orders of the lower authorities and delete the penalty of Rs.5,82,287/-. - 1232 of 2008 - - - Dated:- 18-1-2011 - MS.JUSTICE HARSHA DEVANI, MR.JUSTICE H.B.ANTANI, JJ. NAYAK F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 453/- on account of bogus purchases of colours and chemicals. The assessing officer initiated penalty proceedings under section 271(1)(c) of the Act and vide order dated 28.08.2006 imposed minimum penalty of Rs.5,82,287/- for furnishing inaccurate particulars of income. Being aggrieved, the assessee preferred appeal before the Commissioner (Appeals), who vide order dated 31.01.2007 dismissed the appeal. The assessee carried the matter in second appeal before the Tribunal, who, vide the impugned order, deleted the penalty. 3. Mr. B. B. Naik, learned senior advocate appearing onbehalf of the appellant vehemently assailed the impugned order of the Tribunal submitting that the Tribunal has committed an error in coming to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the genuineness of the purchases made from four parties namely Simron Sales corporation Rs.6,90,360/-, Shree Chemical Rs.6,49,800/-, M/s. Abhi Dyes Rs.1.00 lakh and M/s. Pooja Dye Chem Rs.1,44,293/-. The notices sent were returned back unserved by the postal authorities. The Inspector deputed by the Assessing Officer to verify the genuineness of the parties and to serve the summons u/s 131 of the Act to the parties, reported that the addresses given are not proper and complete. The assessee was required by the Assessing officer to produce the parties. The assessee replied that the assessee is unable to collect the confirmation from the parties despite sincere efforts, as they could not be traced. Therefore, to avoid unnecessary lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoid payment of tax. The Assessing Officer has merely accepted the surrender made by the assessee. This is good as far as the assessment is concerned but in order to levy penalty, the Assessing Officer has to conclusively establish that the assessee has concealed its income or has filed inaccurate particulars of income. In the absence of any evidence to this effect, in our considered opinion, the Assessing Officer was not justified in levying penalty of Rs.5,82,287/-. Hence, we set aside the orders of the lower authorities and delete the penalty of Rs.5,82,287/-. 5. Thus, the Tribunal, upon appreciation of the material on record, has found that the Assessing Officer has relied on the submissions of the parties namely M/s. Abhi Dyes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed inaccurate particulars. On behalf of the revenue it has been contended that it is not permissible for the Tribunal to go behind the assessment order. In other words what is sought to be suggested that the findings recorded in the assessment order are conclusive even for the purpose of penalty proceedings. In this regard it may be germane to refer to the decision of the Supreme Court in the case of Commissioner of Income Tax, West Bengal v. Anwar Ali, (1970) 76 ITR 696, where the Supreme Court in the context of section 28(1)(c) of the Indian Income Tax Act, 1922 held thus: If there is no evidence on the record except the explanation given by the assessee, which explanation is found to be false, it does not follow that the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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