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2013 (8) TMI 482 - ITAT MUMBAIUnexplained credit u/s 68 - The addition made to the returned income, for which the penalty stood levied, is u/s.68 – Held that:- Explanation, if any, offered in establishing the genuineness of the credits, is essentially a matter of fact - The only explanation offered by the assessee in the quantum proceedings, which is itself a matter of fact, was that the said credits in fact pertain to an earlier year, and which was found on verification as incorrect on facts, so that the additions stood confirmed – Decided against the Assessee. Issue involved is primarily factual, i.e., whether the assessee has been able to satisfactorily prove the impugned credits as to their representing the assessee's genuine liabilities or not.If and to the extent it has been, its return of income does not bear any concealment or inaccurate furnishing of any particulars of income, so that no penalty u/s.271(1)(c) could be levied. The law placing the onus to prove the credits on the assessee, a failure to do so would invite addition in its respect as unexplained income u/s.68. Further, that the addition has been made under the deeming provision of section 68 is no bar for the levy of penalty. Penalty proceedings u/s 271(1)(c) – Held that:- Assessee has been able to adduce some evidences toward establishing the credits as representing genuine liabilities - Accepting or rejecting the assessee's claim is based on appreciation of those evidences, forming part of the assessee's explanation, and for which reference is made to a series of decisions by the apex court, as follows - In sum, decision in the instant case is based purely on findings of fact; the law in the matter being well settled and trite: CIT v. Atul Mohan Bindal [2009 (8) TMI 44 - SUPREME COURT]; Union of India v. Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT] etc. - Penalty deleted. - Decided in favaor of assessee.
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