TMI Blog1999 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... arting from 17-8-1981 to 31-3-1982, on the following effective common ground:--- "On the facts and in the circumstances of the case, the ld. CIT(A) has earned in deleting the penalty imposed under section 271(1)(c) amounting to Rs. 44,090 and Rs. 1,92,600 for the first period and second period respectively." 3. Stated briefly, the facts of this case are as stated under. 4. A perusal of the penalty orders show that during the year under consideration, two separate assessments had been framed - first for the first period and second combined for the second and third period. The constitution of the firm during the year under consideration was as under:--- --------------------------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-00 52400-00 Mill Store 14141-00 19140-00 Machinery 112729-00 125000-00 -------------------- -------------------- 231444-00 267979-00 -------------------- -------------------- Thus, the difference in stock has been worked out at Rs. 36,536 in the second period, the difference in stock has been worked out to Rs. 1, 15,050 as under: --------------------------------------------------------------------------------------------------------------------------------------------------- Item Value as per return Value as per books of account --------------------------------------------------------------------------------------------------------------------------------------------------- Iron 11580-00 35000-00 Timber 5750-00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) be set-aside and that of the Assessing Officer be restored. 8. We have heard the learned D.R. for the revenue and perused the records and gone through the orders of the lower authorities. None appeared on behalf of the assessee and hence we proceed to dispose of these appeals on merits under Rule 24 of the I.T. (A.T.) Rules, 1963. 9. The first relevant and material point requires to be decided by this Bench is whether the penalty is attracted in the case of the assessee because the difference in valuation of closing stock at a higher valuation was simply adopted due to the insistence between the partners of the assessee-firm, namely, Shri Parduman Singh and whether the same was not properly explained by the assessee and whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the cuttings and revaluation of closing stock was due to sharp differences of opinion amongst the partners and there was no mens rea That penalty proceedings under section 271(1)(c) are not at all attracted and in any case the amount has already been treated as income of the assessee and the assessee has suffered tax on this amount. That during the course of hearing when the ITO pointed out that GP rate for the second and third period was low, the assessee immediately agreed to an application of a flat rate of 22% and, accordingly, filed revised returns for the second and third period subject to no penalty under section 271(1)(c) (Photostat copies filed). That as per the revised return, the valuation of closing stock at the end of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer during the course of hearing. Even pending the finalisation of the assessment, the assessee voluntarily came forward for the application of higher rate of G.P. by filing a revised return accordingly for the second and third party subject to no penalty under section 271(1)(c) of the Income-tax Act, 1961. Even these observations of the CIT(A) that the revised return was filed by the assessee in response to an undertaking given by the Assessing Officer have not been assailed by the D.R. during the course of arguments. 12. We also find from the observation of the CIT (A) that specific addition has been made by the Assessing Officer on the basis of difference in valuation of closing stock. Although the stock at the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as income of the assessee from undisclosed sources by the Assessing Officer. The penalty order shows that the Assessing Officer has treated this deposit in S.B.I. on 7-12-1981 as concealed income of the assessee because this amount did not figure in the books of account of the assessee. Though the assessee offered an explanation that this amount was withdrawn from the books of account of M/s. Joginder Singh and Parduman Singh, income-tax assessees and the same was wrongly credited to the bank account of the assessee-firm due to wrong entry made in the deposit slips. Similarly, we find that the Assessing Officer has treated cash credits in the names of Shri Narinder Singh, Ravinder Pal Singh and Sh. Tarlochan Singh totalling of Rs. 26, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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