TMI Blog2016 (9) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... t as he has declared the impugned assessment year’ income remaining unaccounted in assessment year 2007-08. Learned co-ordinate bench in quantum proceedings has already adjudicated the relevant issue. The same has become final. We conclude in these peculiar facts that the above stated telescoping effect of the income declared in survey can be reasonably treated as source of assessee’s unexplained investments in question. We reiterate that quantum and penalty are separate proceedings and each and every disallowance/addition made in former does not lead to automatic application of the latter penal provision as held by hon’ble apex court in CIT vs. RELIANCE PETROPRODUCTS PVT. LTD. (2010 (3) TMI 80 - SUPREME COURT ). We accept assessee’s argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A)-II/CC-3/14 15/2011-12 CIT(A)-II/CC- 3/16/2011-12, confirming Assessing Officer s action in imposing penalties of ₹ 5,21,681/- ₹ 2,27,767/- and ₹ 3,27,438/-; respectively, proceedings under section 271(1) (C) of the Income Tax Act, 1961; in short the Act . We proceed assessment year-wise for the sake of convenience and brevity. ASSESSMENT YEAR 2003-04 IT(SS)A 151/Ahd/2013 2. This assessee-an individual manages and runs tuition classes. The department carried out a search at the residence of one Shri Jitendrabhai B. Sojitra on 07-11-2006 engaged in the very vocation. The assessee herein was admittedly associated to the said searched person. This search followed a survey conducted on the very day at as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It observed that assessee s disclosure of ₹ 31 lacs (supra) could not be taxed once again in the impugned assessment year as follows:- 5. We have considered rival submissions carefully and have perused the orders of the AO and the CIT(A) and also the copy of the statement of the assessee recorded at the time of survey on 7.11.2006 filed in the compilation before the Tribunal. We find that there were discrepancies in the receipt of fees as per the statement of the assessee recorded during the survey on 7.11.2006 and as shown by the assessee in his return of income for the different assessment years. The AO has reproduced in tabular form the relevant figures at page no.5 of the assessment order. The total of such difference in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to taxing the same figure of difference twice, which amounts to double taxation, which is not permitted under the law, and accordingly, we hold that no separate addition on account of difference in the figure of receipt of fees, is called for. We find that the CIT(A) was justified in upholding the claim of the assessee that the receipt of ₹ 1,24,000/- from Mouni Tuition Classes was not earned by the assessee as he was providing honorary service to the said Institute, which is evident from the certificate issued by Mouni Study Centre. In this view of the matter, the issue is decided in favour of the assessee, as there is no justification in making the addition on account of difference in figures of receipt of tuition fees for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as source of assessee s unexplained investments in question. We reiterate that quantum and penalty are separate proceedings and each and every disallowance/addition made in former does not lead to automatic application of the latter penal provision as held by hon ble apex court in CIT vs. Reliance Petro I. products 322 ITR 158 (SC). We accept assessee s arguments accordingly. The impugned penalty of ₹ 5,21,681/- stands deleted. IT(SS)A 151/Ahd/2013 is accepted. ASSESSMENT YEAR 2005-06 ITA 834/Ahd/2013 8. Both parties state at the outset that section 271(1)(c) penalty in question of ₹ 2,27,767/- emanates from suppressed receipts from un-recorded tuition classes being added to the tune of ₹ 4,13,550/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We accordingly observe that once the assessee has succeeded on quantum issue in preceding assessment year, the mere fact that he has not preferred any separate appeal in the impugned assessment year is not to be taken as the sole reason for confirming the penalty in question. We accordingly draw support learned co-ordinate bench decision in preceding assessment year in quantum proceeding to the limited extent of the impugned penal action and accept assessee s arguments. The impugned penalty of ₹ 2,27,767/- stands deleted. ITA 834/Ahd/2013 succeeds. ASSESSMENT YEAR 2006-07 IT(SS)A 152/Ahd/2013 12. This assessee s appeal challenges section 271(1)(c) penalty of ₹ 3,27,438/- emanating from unexplained investment action of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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