TMI Blog2013 (11) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of two flats and also in respect of other similar flats sold to other parties - Even purchaser (J.B.Exports) produced the documents before the AO - On examining the documents it was found that no "on-money" was paid to the assessee - Following Mak Data P. Ltd., vs. Commissioner of Income Tax-II [2013 (11) TMI 14 - SUPREME COURT] - When a difference is noticed by the Assessing Officer between the reported and assessed income - The burden is then on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise – In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d' and therefore, no income was offered by the assessee in the said year, namely, 1996-97. The assessee took a stand that the cash found at the time of search represented "on-money" and the notings and workings made in the slips of paper, were not of relevance, since such notings related to one purchaser. The Assessing Officer found the explanation given by the assessee as not credible. Accordingly, the Assessing Officer based on the evidence included "on-money" component and completed the assessment. Penalty proceedings were also initiated under Section 271(1)(c) of the Act. As against the quantum assessment, the matter ultimately came before this Court in T.C.(A).Nos.1150 to 1152 of 2006, for the assessment years 1995-96 and 1996-97 respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taking note of the findings recorded by the Tribunal in its order in the quantum appeal, the first Appellate Authority held that there is no reason for deviating from the view and there is no infirmity in the imposition of the penalty under Section 271(1)(c) of the Act. Aggrieved by such order, the assessee preferred an appeal to the Tribunal. 3. Before the Tribunal, the assessee contended that there was a mistake in the entries regarding the sale of flats to J.B.Exports and the assesee also filed copies of the entry register in respect of two flats and also in respect of other similar flats, which were sold to other parties. Therefore, it was contended that even J.B.Exports produced the documents before the Assessing Officer, which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed by the first Appellate Authority, is just and proper. 6. The case of the Revenue is that the quantum appeal had attained finality as the assessee's appeals in T.C.(A) Nos.1150 to 1152 of 2006, were dismissed by this Court, by order dated 03.08.2012, that itself would be sufficient to sustain the order of penalty under Section 271(1)(c) of the Act. The learned counsel for the Revenue relied upon the observations made by the first Appellate Authority in its order dated 31.01.2007 and submitted that the Tribunal erroneously reversed the said order. 7. Per contra, the learned counsel appearing for the assessee by relying upon the reasons assigned by the Tribunal sought to sustain the order of the Tribunal. 8. The Tribunal while all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is to be stated that the findings recorded by the Tribunal is a finding of fact. Therefore, unless it is shown that such finding is perverse, the same cannot be interfered, while considering an appeal which can be entertained only on a question of law. Further, it has to be pointed out that merely because the assessment proceedings namely, the quantum assessment having been confirmed by this Court in T.C.(A).Nos.1150 to 1152 of 2006, dated 03.08.2006, cannot automatically lead to the conclusion that the penalty proceedings are justified. Infact, the Tribunal rightly made an observations to the said effect that the quantum assessment cannot have a direct impact automatically leading to inference of concealment and consequent imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of sustaining the penalty would be taken as condition that is the main requirement under Section 271(1)(c) of the Act. Referring to the decision in the case of Dharmendra Textile Processors, (supra), the Hon'ble Supreme Court pointed out that in the background of Section 271(1)(c) of the Act, there is no necessity of mens rea being shown by the Revenue, however referring to the Explanation to Section 271(1)(c) penalty being a multiple liability, the bonafide of the conduct of the assessee necessarily assumes significant, even though willfulness of the assessee may not be a criteria, the conduct is to be considered. Thus, a mere fact that the addition in this case has been sustained by this Court by itself would not lead to the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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