TMI Blog2002 (7) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of fact, beyond the limited and restricted scope of appeal under section 260A of the Act. - - - - - Dated:- 26-7-2002 - Judge(s) : D. K. JAIN., MS. SHARDA AGGARWAL. JUDGMENT The judgment of the court was delivered by D.K. JAIN J.-This appeal by the Revenue under section 260A of the Income-tax Act, 1961 (for short "the Act"), is directed against the order of the Income-tax Appellate Tribunal (for short "the Tribunal"), dated September 25, 2001, in I.T.A. No. 2331/D of 1995. By the said order the Tribunal has upheld the decision of the Commissioner of Income-tax (Appeals) (for short the "CIT(A)"), deleting the penalty levied on the assessee under section 271(1)(c) of the Act to the extent of Rs. 5,93,432. Briefly state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 7,07,572 in respect of seven items, including the aforenoted four items. Aggrieved, the assessee preferred appeal to the Commissioner of Income tax (Appeals), who vide his order dated November 23, 1994, upheld the levy of penalty in respect of some of the items but deleted the same in respect of the aforenoted items. The Commissioner of Income-tax (Appeals) held that in so far as the first three items were concerned, the addition/disallowance having been deleted by the Tribunal in the quantum appeal, no penalty could be levied in respect thereof and as regards the fourth addition on account of capital gains, he was of the view that the assessee had disclosed all the material facts relating to the sale, which was duly reflected in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urbachan Lal [2001] 250 ITR 157. In the said decision Chief Justice Arijit Pasayat (as his Lordship then was) observed as follows: "A conspectus of the Explanation added by the Finance Act, 1964, and the subsequent substituted Explanations make it clear that the statute visualises assessment proceedings and penalty proceedings to be wholly distinct and independent of each other. In essence, the Explanation (after 1964) is a rule of evidence. Presumptions which are rebuttable in nature are available to be drawn. The initial burden of discharging the onus is on the assessee. Explanation I automatically comes into operation when in respect of any facts material to the computation of the total income of any person, there is failure to offer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l income was to be assessed as business income, and (2) whether profit on sale of flat was to be assessed as income from business or as capital gains, the authorities below have accepted the explanation of the assessee as bona fide. The Commissioner of Income-tax (Appeals) has in fact recorded that the assessee has not concealed or furnished inaccurate particulars of its income. In our view, these are pure findings of fact, beyond the limited and restricted scope of appeal under section 260A of the Act. As regards the plea of learned counsel for the Revenue that the Tribunal should have awaited the decision of the High Court in the reference arising out of quantum proceedings, we feel that we can do no better than to refer to the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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