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2017 (8) TMI 719 - ITAT MUMBAIPenalty u/s. 271(1)(c) - addition u/s 68 - proof of genuineness of the gift transactions - Held that:- the A.O had hardly afforded a period of 5 days to the assessee for producing the aforesaid parties for examination, and on account of failure on the part of the assessee to do the needful within the said short period, therefore added the aforesaid amount to the income of the assessee. Assessee had came forth with an explanation as regards the aforesaid amounts so received by him by way of bank transactions from the duly identified parties, and it is neither the case of the department, nor so evidenced by the material available on record, that the said explanation of the assessee had been found to be false, therefore there can be no escape from the fact that the assessee to some extent had also substantiated his aforesaid explanation (which though not being to the satisfaction of the A.O, would though justify an addition in the hands of the assessee during the course of the quantum proceedings), therefore, the case of the assessee falls beyond the scope and gamut of the Explanation 1 of Sec. 271(1)(c). We find that our aforesaid view that in respect of a transaction which is found to be unproved but not disproved, no penalty u/s. 271(1)(c) is liable to be imposed, stands fortified by the judgment of the Hon’ble High Court of Bombay in the case of CIT 8 Vs. Upendra V. Mithani (2009 (8) TMI 1159 - BOMBAY HIGH COURT). - Decided in favour of assessee.
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