TMI Blog2004 (10) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... y charges were not recovered. - it is not a case where there is concealment or willful evasion. Hence, we are of the view that the Appellate Tribunal was not correct in treating the income as concealed – penalty set aside - - - - - Dated:- 4-10-2004 - Judge(s) : S. SANKARASUBBAN., A. K. BASHEER. JUDGMENT The judgment of the court was delivered by S. Sankarasubban J. - This appeal has been filed against the order passed by the Income-tax Appellate Tribunal, Cochin Bench, in I.T.A. No. 587/Cochin of 1990, under section 260A of the Income-tax Act, 1961. The questions of law framed in this case are as follows: "(i) Was the Appellate Tribunal justified in law and in the facts and circumstances of the case in sustaining the levy of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deleted. During the pendency of the appeal, the Assessing Officer initiated penalty proceedings under section 271(1)(c) and levied a penalty of Rs. 3,72,619 with reference to all the additions made. The Commissioner of Income-tax (Appeals) held that no penalty could be levied with reference to the items at Nos. (ii) and (iii) above, since they have been deleted and if at all any penalty can be levied, it can be levied only on the amount of Rs. 51,515. So far as this aspect is concerned, the appellate authority held that the Tribunal upheld the addition of Rs. 51,515 only on the ground that there is nothing on record to show that the assessee had not charged any fees as claimed by him in 449 out of 654 cases admittedly attended to in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the addition of Rs. 51,515 is not simply on estimate basis. There is a clear finding that the assessee has not disclosed any charges in respect of as many as 449 cases, out of a total of 654 cases. The only explanation given was that he gave a concession in respect of these cases and nothing was charged." It is against the above judgment that this appeal has been filed. Learned counsel for the appellant, Sri T.M. Sreedharan, submitted that there is nothing to show that as a matter of fact, the assessee earned the income with regard to Rs. 51,515. According to the assessee, the appellant gave sufficient explanation and it was bona fide one and, hence, there is no concealment. On the other hand, learned counsel for the Department submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived in 491 cases out of a total of 654 cases. Whenever the assessee had given free treatment, the words 'free' was indicated in the bill or birth register or I.P. register." Therefore, the Assessing Officer took the view that he wilfully omitted to account for the delivery charges and operation charges in the above 491 cases. After hearing both sides, we are of the view that it cannot be said that the income was concealed. The explanation given by the assessee was that so far as the delivery charges are concerned, in many cases, charges were not realised. But the only drawback was that the assessee was not able to prove that delivery charges were not received in all such cases. It is also found that in many cases, delivery charges were n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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