Dilip H. Chhabria, Mumbai vs Assessee on 19 August, 2015
Provided further that the provisions of the preceding proviso shall not
apply where the undisclosed income determined by the Assessing
Officer is in excess of the income shown in the return and in such cases
the penalty shall be imposed on that portion of undisclosed income
determined which is in excess of the amount of undisclosed income
shown in the return.'
The assessee's sole case, adverting our attention to paras 10 and 11 of the
tribunal's order supra, was that the addition as sustained was on an estimate basis, and
which could not therefore be subject to penalty. We are completely unable to
appreciate the assessee's case. The addition (or disallowance) in any assessment could
only be on the basis of some material/evidence, lest it is illegal, unable to stand the
test of judicial scrutiny. Further, assessment under Chapter XIV-B of the Act is only
of undisclosed income, i.e., which is not or would not have been, but for a search or
requisition, disclosed to the Revenue. In fact, the very assumption of jurisdiction for
assessment of such income is based on discovery of material indicating such income
of the assessee, or evidence relatable thereto. All that the tribunal has done is to
eliminate the addition/s that had the effect of inflating the quantum of the assessed
income superfluously, i.e., which is not backed by any independent material - nothing
4
IT(SS)A No.23/Mum/2012
(BP: 01.04.1987 to 18. 12.1997)
Dilip H. Chhabria vs. Dy. CIT
more and nothing less. Rather, as observed during hearing, the tribunal had not
proceeded in a mathematical fashion, giving a specific finding qua each separate
addition deleted, even as the Revenue had tabulated each addition comprising the
assessed income separately. In fact, it is conscious of the same, explaining itself by
stating (at para 11 of its order) of restricting the addition to a reasonable sum of `.10
lacs. To therefore read its order to mean that the addition as sustained was based on no
material would be a complete misreading of, or misconstruing, its order. The law in
the matter is patently clear and the onus to show that he was entitled to a relief higher
than that allowed by the tribunal is squarely on the assessee. The ingredients of the
penal provision, which, as its reading would show, is strict, are satisfied, and no case
for non-imposition of the penalty has been made out. The same could only be by
leading evidence or even furnishing an explanation, exhibiting or establishing its case
on facts. Merely making a bald assertion of the assessment being based on an
estimate, which is de hors the material on record, would not assist the assessee. For
the same reasons, reliance on case law, which we have otherwise perused, would be of
little consequence. We decide accordingly.