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2016 (6) TMI 799 - AT - Income TaxPenalty u/s 271(1)(c) imposed on the legal heir - genuineness of purchase - assessee could not produce original evidences at the time of quantum proceedings but produced during the penalty proceedings - Held that - It is undisputed fact that the assessee expired on November 22 2010. In this case the assessment was completed on December 17 2008 and penalty was imposed on March 1 2011. It means that after the death of the assessee. The assessee claimed the expenditure of Rs. 6, 09, 534 in the profit and loss account which has been disallowed by the Assessing Officer. The same has been confirmed by the Income-tax Appellate Tribunal vide order dated November 26 2010. The assessee claimed that this marble was fixed in the construction made in Kamla Modi Market which was purchased on February 3 2006. Copy of the bill placed before us on page 9 of the paper book which is copy of the bill of lading for purchase of marble at Rs. 4, 11, 608 on which registration number of the seller and the name of the transporter has been given. The evidence placed for remaining expenses also perused and we find that the assessee could not produce these original evidences at the time of quantum proceedings but produced during the penalty proceedings before the learned Commissioner of Income-tax (Appeals) but he has not taken any cognizance. He simply treated them as non-genuine. The learned Commissioner of Income-tax (Appeals) has coterminous power with the Assessing Officer as penalty proceedings are distinct from the assessment order he could have sent these evidences to the Assessing Officer for verification. The inquiry made by the Inspector in December 2008 to verify the marble fixed in the constructed area. The case law referred by the assessee particularly the decision of the Mumbai Income-tax Appellate Tribunal Bench in the case of Bhagwansingh Shriramsingh L/H Dinesh Bhagwan Singh v. ITO 2006 (5) TMI 270 - ITAT MUMBAI is squarely applicable as any sum referred in section 159(1) does not include the penalty proceedings on the legal representative under section 159(2) of the Act. Therefore penalty imposed on the legal heir is not justified. - Decided in favour of assessee
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