TMI Blog2019 (7) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration by the Tribunal while passing the impugned order. Though the decision in the case of Apex Metchem (P) Ltd. [ 2014 (5) TMI 11 - RAJASTHAN HIGH COURT] arose u/s 158BFA, it is not applicable to the case on hand, because, on facts, in the said case, it was found by all the three Authorities that the assessee was involved in undisclosed transactions on the basis of overwhelming evidence and all those transactions were out of books. It is never the case of the Revenue that the undisclosed income was on account of any transaction, which was out of books. But, the entire case arose out of valuation of the gold jewellery and the diamonds. Thus, for the above reasons, we find that the Revenue has not made out any ground to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other assets in the quantum of appeal ? and ii. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Assessing Officer had not established that there was any willful or deliberate concealment and furnishing of inaccurate particulars on the part of the assessee ignoring the settled law that mens rea was not essential for attracting civil liability or penalty especially in view of the terminology used in Section 158BFA(2)? 4. During the course of the search conducted in the premises of the assessee on 13.9.2001, gold jewellery, diamonds and other valuable articles were found and seized. In the block return, the assessee admitted the undisclosed income of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before the Tribunal, which, by the impugned order, allowed the appeal and set aside the levy of penalty and this is how the Revenue is before us by way of this appeal. 7. Before examining the correctness of the order passed by the Tribunal, we wish to point out that in the instant case, the facts clearly disclose that the provisions of Section 158BFA of the Act could not have been invoked. The reason being that as against the block assessment, the assessee filed an appeal before the Tribunal and as admitted by the Revenue, the assessee succeeded and substantial relief was granted in favour of the assessee. As against such findings, the Revenue did not file any appeal. It is only thereafter the giving effect to order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer exercising his discretion comes to the conclusion that penalty is imposable, the Statute requires that such sum of penalty 'shall' not be less than the amount of tax leviable, but 'shall' not also exceed three times the amount of tax so leviable in respect of the undisclosed income determined by the Assessing Officer. Thus, it is discretionary for the Assessing Officer to direct that a person shall pay penalty and it is mandatory that in case the Assessing Officer is of the opinion that such penalty is leviable, the penalty amount shall not be less than the amount of tax leviable in respect of the undisclosed income and shall be not more than three times the amount of tax. Thus, the Legislature did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omputation of undisclosed income could not be considered as undisclosed income determined by the Assessing Officer under Clause (c) of Section 158BC of the Act, as it was found that no amount was found to have been invested by the assessee in the first instance for the transactions of the whole year and that the estimate of 1% net profit was mere guesswork. It was further found that de hors the surrender, there was no evidence, which could be said to have been found as a result of the search and therefore, the computation of undisclosed income by the Assessing Officer in the block assessment proceedings could not be construed as a determination of undisclosed income contemplated under Section 158BC(c) or Section 158BB of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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