In the present case, the Ld. AO made changes in the original order by invoking sec 154 based on evidences and disallowed a certain sum of expenditure which were related to previous years and as told found to be of capital in nature too. On appeal to CIT by the assessee, an order was passed for providing an opportunity of being heard to the assessee.
‘In the United States, these ‘fact-cases’ are likened to railroad-tickets: ‘valid for single journey only’. The Americans are not greatly enamoured (as we or the British are) about precedent, and every ten or fifteen years they appoint a body of very learned and wise lawyers, who go into the hundreds of cases reported in all the decisions across the United States and then come up with what is called a ‘restatement’ of the law on every possible topic. After the restatement, no case can be cited of a period prior to the restatement, and a large body of useless case law gets confined to the dustbin of legal history.’
We find that the findings of the Tribunal on the assessment was not on the ground of treating the claim as not bona fide. We find that the assessment on the consumption of bottles made on the ground of alleged non-existence of two firms was rejected by the Tribunal by rendering a finding that the suppliers were very much in existence. On the 2% addition made to the bottles sent direct to the factory without entering into the books of accounts and on the price difference,
The CIT adverted to the fact that the quantum appeal had been rejected by the CIT (A) and the ITAT. That in itself would not amount to a valid justification for imposition of a penalty. Before a penalty is imposed, the requirements of Section 271 must be established. Accordingly, it would have been open to the Court to set aside the impugned order in its entirety and to remand the proceedings back to the assessing officer for fresh consideration.
Sec. 54F provides that capital gains on transfer of capital assets shall not be charged in cases of investment in residential house. The section pointedly says that such eligibility would be available if the assessee has, within the period prescribed, constructed, a residential house. For the purpose of that section, the residential house so constructed is referred to as new asset.
The very same issue was considered by the Division Bench of this Court in Tax Case (Appeal) No.273 of 2012 dated 12.09.2012 (Commissioner of Income Tax, Chennai v. M/s. Shriram Properties & Constructions (Chennai) Ltd., T.Nagar, Chennai-17) wherein one of us was a member (Justice K.Ravichandrabaabu, J). In that case, the Assessing Officer initiated penalty proceedings under Section 271(1) (c) of the Act holding that the assessee had not filed the revised return of income to offer the amount as income for the purpose of assessment
In short, the Revenue authorities and the Tribunal on the basis of evidence on record came to the conclusion that the addition of Rs.50 lacs was justified. We do not find any question of law arising. The entire issue rests solely on appreciation of evidence on record. Particularly when the assessee having made such a statement and repeated the same two months later and in the letter retracting the statement never offered any explanation as to the reason why he made a confessional statement two months after the search, we do not find any reason to interfere with the concurrent findings of facts of two Revenue authorities and the Tribunal.
We do not find that the assessee is entitled to stay of recovery proceedings during the limitation period for the filing of the appeal. There is no deemed stay of liability after the enforceable order is passed by an authority under the statute. In view of the above, mere fact that the petitioner had time limit to file an appeal does not bar the revenue to execute the order passed.
On going through the order dated 28.01.2013 we find that the same has been passed without any application of mind. To say the least, it is a cut-and-paste job. This is apparent from the fact that the paragraph 3 is merely a repetition of the provisions of section 147 and 148 of the said Act. Thereafter, paragraphs 4, 5 upto 5.6 comprise of quotations and extracts from Supreme Court and High Court decisions.
In view of the fact that this pre-condition has not been satisfied, we feel that the impugned notice dated 07.03.2012 as also the order dated 31.05.2012 ought to be set-aside. It is ordered accordingly. All the proceedings pursuant to the notice dated 27.03.20 12 are quashed.
