9911796707
TMI Blog1982 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... bserving that the penalty had been levied by the IAC only by rejecting explanation furnished by the assessee and was in respect of the estimated income confirmed by the Tribunal ?" Inasmuch as, in our opinion the above-said question does not call for reference, we are unable to accept the request of the concerned Commissioner for the following reasons. 2. The assessment year involved is 1970-71 and during the relevant accounting year the assessee ran nursing home styled as Dr. S. Herbert Nursing Home. A raid was conducted in the premises and the revenue came in possession of certain registers and rough note books. As per perusal of the same, the ITO came to the conclusion that certain receipts were admittedly suppressed. The assessee cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to sustain the levy of penalty and as such cancel the same. When we carefully go through the assessment order, the order of the AAC in the assessee's first appeal and that of the Tribunal in cross appeals of the assessee and the revenue, we find that the additions sustained finally by the highest fact-finding body in this case was nothing but confirmation of the estimate made by the ITO. The Tribunal in para 6 of its order has observed : " This fact itself is enough to reject the books of a/c produced by the assessee and to apply the provisions of section145 (2). Sec 145(2) lays down that where the ITO is not satisfied about the correctness and completeness of the assessee's accounts or where no method of accounting has been regularly em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. On the basis of these facts alone, the assessee should not have been visited with concealment penalty. Reliance of the learned departmental Repersentative on the case of D.D. Lamba & Co. is misplaced because that was under the Explanation which has not been invoked in this case. When we peruse the facts of the instant case and seek guidance from the Punjab and Haryana High Court judgment in the case of Sunder Lal Mohinder Lal, one of the questions referred to their Lordships was "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in upholding penalty of Rs. 4,500 on the additional profit estimated on sales outside the books of accounts?" Their Lordships concluded the issue in favour of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 505 (P&H). We are in respectfully agreement with the above mentioned observations. Similarly, this court in a Bench decision in CIT v. Bharat Tubewell Store [1980] 14 CTR (P&H) 82, Income-tax Ref. No. 56/74, decided on 4th September, 1979 after elaborate discussion of the various authorities on the subject, came to a similar conclusion as we have arrived at in this case. We, therefore, following the decision of our own court in Karnail Singh's case, Jiwan Lal Shah's case and Bharat Tubewell Stores' case hold that in the facts and circumstances of this case, the penalty was not exigible. Question No. 3, is therefore, answered in the negative, i.e., in favour of the assessee and against the revenue." 10. In the instant case, though the rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
