TMI Blog2016 (6) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... ining expenses also perused and we find that the assessee could not produce these original evidences at the time of quantum proceedings but produced during the penalty proceedings before the learned Commissioner of Income-tax (Appeals) but he has not taken any cognizance. He simply treated them as non-genuine. The learned Commissioner of Income-tax (Appeals) has coterminous power with the Assessing Officer as penalty proceedings are distinct from the assessment order, he could have sent these evidences to the Assessing Officer for verification. The inquiry made by the Inspector in December, 2008, to verify the marble fixed in the constructed area. The case law referred by the assessee particularly the decision of the Mumbai Income-tax Appellate Tribunal Bench in the case of Bhagwansingh Shriramsingh L/H Dinesh Bhagwan Singh v. ITO [2006 (5) TMI 270 - ITAT MUMBAI] is squarely applicable as any sum referred in section 159(1) does not include the penalty proceedings on the legal representative under section 159(2) of the Act. Therefore, penalty imposed on the legal heir is not justified. - Decided in favour of assessee - I. T. A. No. 69/JP/2013 - - - Dated:- 6-5-2016 - T. R. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction and sale of shops during the year. The assessee has claimed bogus expenses of ₹ 6,09,534 as cost of marble. The assessee had debited total expenditure at ₹ 22,16,592 in the profit and loss account as per construction account filed with the return of income. The expenditure debited on account of cost of marble was not found to the Assessing Officer for business purposes. The assessee could not produce any evidence for claiming this expenditure. Spot inquiry got conducted through the Inspector level that no such work was done by the assessee. The assessee could not even specified in which particular shop or place, the marble was used. The assessee had thus failed to establish the genuineness of the expenditure of ₹ 6,09,534. While computing his total income, the assessee had claimed further expenses of ₹ 61,018 on account of bank commission and other expenses and during the course of assessment proceedings, the assessee himself admitted that these expenses were personal nature and were inadmissible. Therefore, the learned Assessing Officer imposed penalty at ₹ 2,44,937 under section271(1)(c) of the Act, which is 100 per cent. of tax sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case law referred to by the assessee are also not convinced him that penalty cannot be imposed on the expired assessee. Therefore, he confirmed the penalty. 4. Now, the assessee is in appeal before us. The learned authorised representative of the assessee has submitted that the marble expenditure was duly reflected in the regularly maintained books of account of Kamla Modi Market. The marble was purchased by the assessee on February 3, 2006, from Wonder Granite Pvt. Ltd., Gurgaon, Haryana. He has drawn our attention on page 9 of the paper book to confirm the marble purchase. This evidence proved beyond doubt that this expenditure was genuine and incurred by the assessee. The marble expenditure was related to that portion of property, which was sold during the year. Therefore, the same was directly debited to the profit and loss account otherwise also the method of accounting employed by the assessee is not relevant for claiming any expenditure. Before the Assessing Officer in the assessment proceedings, has furnished photo copies of bills but original bills could not be produced before him. As the assessee already expired, therefore, original vouchers could not be produced. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken against the deceased if he had survived may be taken against the legal representative, would mean that for recovery of sum as per sub-section (1) any proceedings, i.e., recovery but not include the imposition of penalty. The learned authorised representative further relied on the decision in the case of Bhuban Mohan Mitter Charitable Trust v. ITO [1993] 45 ITD 617 (Cal) wherein the honourable High Court has held that penalty proceedings are quasi-criminal in nature. In criminal jurisprudence, a crime dies with a man and the legal representative of the deceased offender or criminal legal heirs cannot be penalised for the offences or crimes committed by the deceased. Therefore, penalty proceedings abate on the death of the assessee. He further relied on the decision in the case of Bhagwansingh Shriramsingh L/H Dinesh Bhagwan Singh v. ITO [2006] [2006] 9 SOT 73 (Mum) (URO) wherein it has been held that penalty proceedings are different and distinct in nature than tax while tax are price paid for buying civilisation. Penalties are levied for the contumacious conduct of the wrong doer, who is deceased in the case before it. The honourable Income- tax Appellate Tribunal deleted the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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