TMI Blog2013 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... bonafide belief that the offender was not liable to act in the manner prescribed by the statute - following the Hon'ble Supreme Court, we direct the AO to delete the penalty in AY 1991-92 - In respect to AY 1992-93, the assessee offered explanation before the lower authorities i.e. the AO as well as the CIT(A) during assessment proceedings and also during penalty proceedings - The relevant explanation was that there was no difference as such or the difference was very negligible. The jewelleries explained by the assessee and that was not found to be false by the AO - The explanation offered by assessee was not negated - as per rule of evidence there was distinction between set of facts ‘not proved' and facts disproved and facts proved - Benefit of the principle that mere non-satisfactory nature of explanation furnished cannot amount to proof of falsity of explanation furnished can apply in case the fact-finding authority reached to a stage where it can only conclude that the fact alleged was ‘not proved' which would result that except rejection of the explanation furnished by the assessee, there was no material to sustain the plea of concealment - once the explanation was not he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs.62,191/- for AY 1991-92 and Rs.1,44,355 for AY 1992-93. Aggrieved, assessee preferred appeals before CIT(A), who confirmed the penalty by giving following finding separately: For AY 1991-92: As far as addition u/s.68 is concerned the original additions in CIT project was of Rs.1,16,800/- but relief allowed by the Appellate Authority of Rs.1,06,800/- as evidences to this extent was produced by the assessee. The remaining Rs.10,000/ was not agitated by the assessee before the Hon'ble Tribunal and no evidences regarding its genuineness has been placed before me during the course of penalty appeal proceedings. As regards treating gift as unexplained cash credit, the matter was agitated before the Hon'ble Tribunal by way of cross objection but not pressed and therefore dismissed by the Hon'ble ITAT. Even before the Assessing Officer or before the CIT(Appeals) during the course of quantum appeal no details with regard to persons making the gift etc was provided by the appellant. Even before me during the course of this appeal no details have been submitted. As regards rejecting the loss claim in construction business is concerned, no details were filed before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income during the course of search proceedings u/s 132(4) with regard to unaccounted jewellery of Rs.6,02,012/-. Therefore action of u/s. 147 taken by the Assessing Officer was in order. It was claim before me during the course of penalty proceedings that the jewellery pertaining to which additions have been made ere acquired more than 10 years back and that this fact was not considered at any stage in the assessment order or appeal proceedings and that it should now be considered as penalty proceedings are independent of assessment. It is however seen that this fact has been considered by the CIT(Appeals) in his quantum appellate order (page-2). It has been mentioned by the CIT(Appeals) that certain jewellery was purchased between assessment year 1977-78 and 1990-91 and he also mentions that the appellant exchanged jewellery during this period. While considering the aspect of undisclosed jewellery ,this fact would have been before the Hon'ble Tribunal as well. Therefore the aspects of purchase of jewellery 10 years prior to the assessment year have been considered and only after that the relevant Appellate Authorities have concluded the amount of undisclosed jewellery to be taxed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unexplained cash credit and gift is at Rs.19,253/- which is negligible. Remaining additions according to Ld. counsel are only on estimate basis and neither the AO nor the CIT(A) has explained how the amounts are concealed. In respect to unexplained cash credit as well as unexplained gift, AO or CIT(A) has no where tried to explain how the amounts are concealed. On the other hand, the Ld. Sr. DR supported the orders of lower authorities. 6. We find that the facts above narrated in both the years are undisputed. In respect to AY 1991-92, the addition made by AO on account of cash credit and gift remains at Rs.19,253/- as against the assessment made by AO at Rs.1,16,800/-. Even in the penalty order, the AO has not brought out any reason how these amounts are concealed income whereas the identity of the creditors, creditworthiness and genuineness of transaction is proved except the negligible amount of Rs.19,253/- and that also due to lack of evidence. In respect to other additions, the AO has only made estimates. In such circumstances, we are of the view that penalty will not merely be imposed because it is lawful to do so. Whether penalty should be imposed for failure to perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars) except to the extent of the following: (i) Belonging to the assessee herself (2502.300 gms 2497.400 gms) 4.900 gms (ii) Belonging to the husband (513.90 gms 496 gms) 24.300 gms (b) The ITAT has accepted the entire 513.90 gms as belonging to the husband on the basis of his affidavit. In view of the above, we find that the jewelleries, except the abovementioned jewelleries, is explained by the assessee and that is not found to be false by the AO. The explanation offered by assessee is not negated. We are of the view that as per rule of evidence, there is distinction between set of facts not proved' and facts disproved and facts proved. Benefit of the principle that mere non-satisfactory nature of explanation furnished cannot amount to proof of falsity of explanation furnished can apply in case the fact-finding authority reaches to a stage where it can only conclude that the fact alleged is not proved' which would result that except rejection of the explanation furnished by the assessee, there is no material to sustain the plea of concealment. In such circumstances, in the present case also, once the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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