Itta/366/2013 Of The Commissioner Of Income Tax-Iv v. Marson Constructions Pvt Ltd

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE K.C. BHANUI.T.T.A.No.366 of 2013 Date: 27-08-2013 Between: The Commissioner of Income Tax-IVHyderabad. … Appellant And 1.Marson Constructions Pvt Ltd, 6-3-1186/7/2, Near Hotel Grand Kakatiya,Begumpet, Hyderabad. … Respondent HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAAND HON’BLE SRI JUSTICE K.C. BHANUI.T.T.A.No.366 of 2013 JUDGMENT:(Per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) We have heard Mr. J.V. Prasad, learned Standing Counselfor Revenue, and have gone through the impugned judgment andorder of the learned Tribunal. It appears that the learned Tribunal has decided the questionof levying penalty, while holding that the pre-conditions for levying of penalty for concealment have not beenfulfilled. We quote the fact finding of the learned Tribunal asfollows: “During the course of search and seizure operations theauthorities did not find that the sale of the property wasmade at a higher price than what was recorded. There isalso no evidence with the assessing officer that theassessee derived any amount more than the sale pricerecorded in the books of account. The assessee to avoid protracted litigation accepted thequantum addition in the assessment order. That itselfcannot be reason for levy of penalty. Penalty proceeding isindependent from assessment proceedings. Thefurnishing of inaccurate particulars of income orconcealment of income shall be proved by theDepartment. In the present case, the addition was madeon estimate basis. When the addition is made on estimatebasis, no penalty under Section 271(1)(c) can beimposed.” We are of the view that the learned Tribunal has reachedcorrect finding. Since the department has estimated the incomewithout relying on any materials placed by the assessee, there is noscope for concealment of income or furnishing of inaccurateparticulars. The other point has not been questioned in particular bythe Revenue. The appeal is, accordingly, dismissed. There will be noorder as to costs. Miscellaneous Petitions pending, if any, shallstand closed. _________________ K.J. SENGUPTA, CJ _________________ K.C. BHANU, J