TMI Blog2015 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings and the findings given in the assessment though it may constitute good evidence but same is not conclusive in the penalty proceedings Further, merely because additions have been confirmed in appeal it cannot be the sole ground for coming to the conclusion that the assessee had concealed any income. We are of the view that in the absence of complete and convincing corroborative evidence, the Revenue may justify addition, but in the matter of penalty proceedings, the onus lies heavily on the Revenue to prove that the assessee had concealed its income or has filed inaccurate particulars of its income. Further the decision relied upon by Revenue is distinguishable on facts and therefore cannot be applied to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celled. 4. That the learned A.O. herself has admitted in para 10(1) of the penalty order that amount shown in the diary is contract receipts not accounted for, in books of account and as such penalty levied on incorrect income deserves to be deleted. 5. On the facts and circumstances of the case of the appellant penalty order passed by learned A.O. and confirmed by learned CIT(A) requires to be cancelled. 6. That the appellant has filed its reply in detail with various decision to the learned A.O. and Paper Book filed before learned CIT(A)which has not been properly appreciated before dismissing the appeal of the appellant. 7. On peculiar facts and circumstances of the case of the appellant, there is neither concealm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver two financial years i.e. A.Y. 2003-04 ₹ 22,82,559/- A.Y. 04-05 ₹ 20,45,845/-. Thereafter, vide letter dated 12.10.2003, the assessee after having reconciled the figures stated that the discrepancies in respect of unrecorded entries as found during the course of survey were ₹ 16,32,559/- for A.Y. 2003-04 and 26,95,848/- for A.Y. 2004-05 meaning thereby that the aggregate amounts remained same. The assessee had filed the return of income on 23.07.2003 declaring an income of ₹ 37,080/- which was before the date of survey. Thereafter, the assessee filed revised return on 20.10.2003declaring total income of ₹ 7,40,620/- by accompanying therewith the audited accounts u/s.44AB of the Act. While filing the revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was deleted by the tribunal order dated 21.02.2014 in ITA No 1945/Ahd/2012. The ld. Counsel further submitted that an addition of ₹ 43,28,407/- spanning over two A.Ys., namely, A.Y. 2003-04 ₹ 22,82,559/- and A.Y. 2004-05 ₹ 20,45,848/- which was latter reconcile vide letter dated 12th October, 2013 and the revised unrecorded cash entires were ₹ 16,32,559/- for A.Y. 2003-04 and ₹ 26,95,848/-. The ld. Counsel also argued that though the addition in respect of both these years were sustained by CIT(A) and Tribunal, however, the Tribunal deleted the penalty imposed u/s.271(1)(c) in A.Y. 2004-05 and therefore, prayed that penalty levied in the year under consideration of ₹ 6,27,254/- should be deleted. The ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy of penalty for concealment of income has to be evaluated in terms of provisions of Explanation 1 to Section. 271(1)(c), as per which if in relation to any addition in the assessment, the assessee offers no explanation or offers explanation which is found to be false or is not able to substantiate the explanation and is also not able to prove that the explanation is bonafide, the addition made would amount to concealment of particulars of income. It is a settled legal position that penalty proceedings are different from assessment proceedings and the findings given in the assessment though it may constitute good evidence but same is not conclusive in the penalty proceedings Further, merely because additions have been confirmed in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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