TMI Blog2018 (5) TMI 1725X X X X Extracts X X X X X X X X Extracts X X X X ..... of concealment - Decided in favor of assessee. - ITA No.115/Ran/2016 And ITA No.116/Ran/2016 - - - Dated:- 28-5-2018 - SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER For The Assessee : None For The Revenue : Shri A.K.Mohanty, JCIT ORDER Per Pavan Kumar Gadale, JM: These are the appeals filed by two different assessee against the order of CIT(A), Hazaribag, dated 05.01.2016 02.02.2016, for the assessment year 2009-2010. 2. None appeared on behalf of the assessee when the matter was called for hearing, neither any adjournment application has been field by the assessee. Therefore, the Bench decided to dispose off the appeal after considering the material available on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the assessee. 6. Aggrieved by the order of CIT(A), the assessee has filed an appeal before the Tribunal. 7. None for the assessee, whereas on the other hand, ld. DR relied on the order of lower authorities. 8. We have heard the submissions of ld. DR and perused the material on record. The sole disputed issue is with respect to levy of penalty. In the course of appellate proceedings before the CIT(A), the ld. AR submitted that the assessee has deposited the tax raised by the Assessing Officer, therefore, levy of penalty cannot be sustainable in the eyes of law. We find the assessee has accepted the addition made by the Assessing Officer and paid the tax accordingly. The Hon ble Supreme Court in the case of Reliance Petr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the orders passed by the Commissioner of Appeals and the Commissioner. The imposition of penalty is not automatic. Imposition of penalty even if the tax liability is admitted is not automatic. Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the AO in the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. The findings recorded in the assessment proceedings in so far as concealment of income and furnishing of incorrect particulars would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied, cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared as invalid in the penalty proceedings. ( Para 63) In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Hon ble Supreme Court in the case of Sir Shadi Lal Sugar General Mills Ltd. Vs. CIT, [1987] 168 ITR 705(SC)/33 Taxman 460A(SC) has held as under :- When a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. Where an ultimate finding on an issue is an inference to be drawn from the facts found, on the application of any principles of law, there will be a mixed question of law and fact, and the inference from the facts found is, in such a case, a question of law. But where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to additions it did not follow that the amount agreed to be added was concealed. There may be hundred, and one reasons far such admissions, i.e., when the assessee realised the true position it did not dispute certain disallowances but that did not absolve the revenue from proving the mens rea of quasi-criminal offence. The Tribunal was undoubtedly competent to disagree with the view of the AAC but in proceeding to do so, it had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determinative of the question of fact raised before the Tribunal. It is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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