TMI Blog2000 (6) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... hat said paper was from April 1982 to March 1983 and on last page assessee had mentioned that it was for income-tax purposes' 'Serial No. 35 of the seizure memo was also looked into which contained datewise account of the number of trucks booked on a particular day. He examined this Serial No. 35 with the commission receipt book (Serial No. 2 of seizure memo) and noted that number of trucks booked as per Serial No. 35 were much more than that shown in the commission receipt book. He gave certain instances and called upon the assessee to explain the reason of variation. The assessee submitted that some of the bookings of the trucks mentioned in Serial No. 35 were cancelled that is why commission receipt book was containing lesser number of trucks. The Assessing Officer did find some force in the contention of the assessee that some of the trucks were repeated on subsequent dates but he was of the opinion that it is possible that truck may go to Delhi and come back on that very day and ready for business on subsequent date. He also noted that commission charged was between Rs. 30 to Rs. 40 and sometimes it was Rs. 23 or Rs. 24 but he took average of Rs. 34 and worked out the income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why this plea was not taken at the time of assessment. It was submitted that case was not properly represented before the Assessi ng Officer and CIT(A) and further penalty proceedings are distinct proceedings in which any new ground can be taken and reference was made to the decision of Jurisdictional High Court in the case of CIT v. Mohinder Singh [1986] 139 ITR 160 (All.) and Banaras Taxtorium v. CIT [1988] 169 ITR 782 (All.). Ratio of these cases was not found applicable in the facts of the present case and Assessing Officer placed reliance on page No. 38 of Serial No. 30 of seizure memo and noted that assessee was preparing different figures for income-tax purpose. Other facts noted by Assessing Officer was the finding in the assessment order on book note at Si. No. 4 of seizure memo and concluded that assessee was having commission income from transportation of gitti and income from that business. He took into consideration that no doubt amount of income stood reduced by CIT(A) and further by ITAT but fact remains that what source of income stood confirmed and that showed that assessee had concealed the main source of income. The plea of the learned counsel for the assessee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 30,000 out of extra labour charges received by the assessee which was reduced by the Tribunal to Rs. 15,000 and remaining penalties were confirmed. 2.4 Aggrieved, the assessee is in appeal before the tribunal. 3. The learned counsel for the assessee has pointed out that detailed written submissions were made before the Assessing Officer as well as before the CIT(A) who have not taken into consideration all the factual position. Copy of written submissions made before the Assessing Officer is appearing at pages 30 to 42 of the paper book in which it was submitted that assessee was being assessed from assessment year 1980-81 onwards and till 1982-83 the assessee was showing one source of income from transport of goods from Agra to Delhi and being assessed on the negligible increased returned income. In assessment years 1983-84 and 1984-85 alone there was finding of Assessing Officer that assessee was having two other sources of income but in assessment year 1985-86 onwards the assessee was showing only one source of income from transportation of goods and up to assessment year 1988-89 the same income was being assessed. The other plea of the learned counsel was that As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 lakh by the Assessing Officer. in such cases the contention of the learned counsel was that no penalty is leviable as it was a matter of estimate and there is no specific finding about actual figure of concealment. 3.2 The learned counsel submitted on merit that no addition was warranted. About commission on transportation of goods the assessee's case was that Sl. No. 13 of the seizure memo is the basis for making addition by Assessing Officer. This was the book containing day to day income as well as expenditure but Assessing Officer and CIT(A) admitted the correctness of expenses claimed by the assessee and strangely enough rejected the income shown by the assessee while under section 132(4A) of the Act all the entries in Sl. No. 3 was to be taken as correct. In the same way income from gitti business was on the basis of estimate at Rs. 20,000 by Assessing Officer and the Tribunal restricted to Rs. 5,000 but there was no basis and entry was of that amount which was being given by the assessee to the employees of purchasers to keep them happy. About commission income from transportation of gitti the learned counsel submitted that there was no entry in the note book that asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved in spite of the fact that Explanation to section 271(1)(c) had been added. In the case in hand the Department has not proved that fact. Again reliance was placed on the decision of Calcutta High Court in the case of CITv.Bhuramal Manickchand [1980] 121 ITR 840 in which it was laid down that burden is on the Department to prove that assessee is liable to penalty and there must be some positive cogent material or evidence. If only evidence is an explanation submitted by the assessee which has been found to be false, that is not sufficient material for attracting the penal provision as finding of assessment proceedings may be prima facie evidence but not conclusive and no penalty can be imposed solely on such findings. On the basis of it, it was submitted that in the case in hand the Assessing Officer had not brought anything except finding of assessment proceedings and thus penalty was not leviable. 4. The learned D.R. placed reliance on the order of Assessing Officer as well as CIT(A). It was submitted that in the present case the assessment had been framed on the basis of material on record and all the three sources of income stood confirmed up to the Tribunal which is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) restricted it and ultimately all the sources of income were restricted to Rs. 1.75 lakh by the Tribunal as noted by the CIT(A) in the impugned order. So far as first source of income is concerned, the explanation of the assessee is that Assessing Officer had wrongly taken Serial No. 35 as the register of showing booking of the trucks while in fact it was register of availability of trucks for loading. The other plea was that some of the books were cancelled. This fact is also getting corroboration from the observation of Assessing Officer in assessment order itself that in some cases number of trucks were being utilised on subsequent dates but he did not agree with the assessee as trucks may go after doing their business from Delhi on that very day. Whatever may be the fact the assessee was able to make it a plausible case that Serial No. 35 was register of the availability of trucks and there was some logic in the plea that some of the bookings of trucks were cancelled. This creates high doubt. Undisputedly legal position as it stands now is that penalty proceedings are quite distinct and separate. Assessee is supposed to prove its innocence by leading any type of evidence he li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 to 61 of the paper book. Each of them has stated that gitti business was their own but being done through assessee-firm. To examine the authenticity of such certificates the Assessing Officer examined three of them who supported thee contents of certificates but their testimony was rejected on the ground that they were not maintaining any account. In penalty proceedings the assessee again requested the Assessing Officer to examine all the contractors and truck owners in respect of their certificates but Assessing Officer or the CIT(A) did nothing in that way. These certificates as well as one affidavit of partner Om Prakash, copy of which is appearing at pages 68 to 72 goes unchallenged and unrebutted. From these facts the conclusion is that there was specific version of contractors and truck owners that no commission was being paid to assessee-firm. No evidence from Assessing Officer's side that assessee was earning any income. The plea of the assessee was that no material was found at the time of search indicating any business of assessee's earning commission income from transportation of gitti. No immovable property of partners was detected nor cash was found at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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