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2016 (6) TMI 211 - ITAT MUMBAILevy of penalty u/s. 271(1)(c) - withdrawal on last date of cash deposit - Held that:- in the absence of details as to cash withdrawals and deposits during the immediately preceding year, the claim as to the opening balance cannot be verified or opined upon. In fact, the cash utilized for personal/household purposes would also have to be factored there-into. Why, we wonder the assessee could not furnish, similarly, the said details for the immediately preceding year as well. Continuing further, the cash utilized for personal/household purposes for the months of April to July 2004 is admittedly at ₹ 1.90 lacs (PB pgs. 1 – 2), which we accept in-as-much as the AO has not made any addition on account of low or inadequate household/personal withdrawals. This would, accordingly, consume almost the entire withdrawal of ₹ 2.15 lacs made from during this period. In fact, another ₹ 40,000/- to ₹ 50,000/- would be required toward such monthly expenses for the month of August 2004, being generally drawn at the beginning of the month, so that the surplus of ₹ 0.25 lacs (2.15 lacs -1.90 lacs) can be regarded as toward the same. The explanation of the withdrawals being the source of the deposit would thus not hold for ₹ 2.50 lacs deposited in bank account on 30.7.2004. The explanation offered (qua this deposit) is not valid; rather, cannot be under the circumstances regarded as an explanation at all. The penalty in respect of the addition to this extent thus stands rightly levied, and is accordingly confirmed. For second block of withdrawals i.e., beginning August 18, 2004, up to 09.11.2004 the acceptability or otherwise – in whole or in part, of the assessee’s explanation thus hinges critically on this fact and the concomitant expenditure incurred thereat. It may well be that the assessee spent the surplus (Rs.2.50 lacs) or similar amount on the said treatment, depositing the balance (Rs.14 lacs) in end-December, 2004, upon full recovery, so that there was no imminent need for cash. If the operation, which is stated to be for the same problem, costs ₹ 1.02 lacs a year later, the same would cost the assessee – who is even otherwise covered by insurance, a similar amount – with we observing the assessee to have funds – despite the deposits, cash at ₹ 2.50 lacs for the purpose. The question, however, is: Why does not the assessee state so, revealing the truth of the matter? Is it that only a balance of ₹ 15,000/- was left with the assessee after the treatment, which he deposits in bank on 13/12/2004. The facts having already been taken cognizance of, would require being substantiated and cannot be overlooked or dismissed as not relevant. The matter being factually indeterminate, has been accordingly restored back, i.e., with regard to the explanation for ₹ 14.00 lacs deposited in December, 2004. - Decided partly favour of assessee for statistical purposes.
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