TMI Blog2018 (1) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ecially when there is nothing more available with the Appellate Authority considering the penalty proceedings, to substantiate such diversion. Admittedly, there was no such substantiating material produced by the assessee and available with the Tribunal at the earlier stage when the assessment proceedings were considered. In such circumstances, we are of the opinion that the addition made of computation of income as available definitely comes under Explanation 1(B) of Section 271(1). - Decided against the assessee. - ITA No.78 of 2008 - - - Dated:- 12-1-2018 - MR. K. VINOD CHANDRAN AND MR. ASHOK MENON, JJ. For The Appellant : Sri. P. K. R. Menon, sr.counsel, GOI (Taxes) For The Respondent : Sri. E. K. Nandakumar (SR.) And s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the order of the CIT (A) and the order of the Tribunal which had only confirmed the order of CIT (A) wrongly placed the burden on the Revenue wrong and vitiated? ( 5) Whether, on the facts and in the circumstances of the case and in the light of Explanation 1(B) to Section 271(1)(c), the order of the Tribunal canceling the penalty justified and vitiated, and wrong? 2. The present respondent is the wife and legal heir of the assessee. The assessee, now deceased was an individual, who filed return of income for the assessment year 1990-91 on 4.4.1991 declaring an income of ₹ 97,430/- comprising of share income from M/s.Anirudhan Associates and profit from the proprietary concern, M/s.Car Care Centre. Original assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. P.M.Shah, [(1993) 203 ITR 792] . The other ground was that the Tribunal, in the original assessment, had accepted the contention of the assessee that there were some diversion of materials, which the assessee had retained, out of the Government contracts which had been abandoned. Though the Tribunal did not grant the entire relief, it was held by the Commissioner that there could be no allegation of concealment of income sustained, with respect to the unexplained income, as there was a possibility of the diversion having taken care of the entire investments. The Tribunal, without an independent consideration, found that the reasoning of the Commissioner (Appeals) is proper and sustainable. 5. We have heard the learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered and deleted it from the unexplained income. The CIT (Appeals), according to us, has virtually sat in appeal over the orders of the Tribunal in the assessment proceedings. There could, hence, be no ground of bona fides to set aside the penalty when the Tribunal considering the assessment proceedings has refused to allow the claim to make deletion in the computation of income as made by the Assessing Officer. 8. We are also not impressed with the finding of the Commissioner that though there would be justification for making an addition in computation of income, it does not necessarily follow that the said income is concealed income. This is a wrong understanding of the explanation. The Explanation 1(B) to Section 271(1) of the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of computation of income as available definitely comes under Explanation 1(B) of Section 271(1) of the Act. As we noticed earlier, the Tribunal had merely adopted the reasoning of the Appellate Authority and we, hence, answer the questions of law in favour of the Revenue and against the assessee. 10. At this stage, the learned counsel for the respondent had two arguments; insofar as the Tribunal having not considered the issue independently and hence there should be a remand made. It was also submitted that the litigation Policy of the Central Government mandated that no appeal is filed if the tax effect is less than ₹ 20,00,000/-. 11. As to the Tribunal having not independently considered, it is to be noticed that the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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