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2019 (3) TMI 1546 - AT - Income TaxUnexplained cash deposits in bank accounts - addition u/s 68/69 - AIR information received the assessee has deposited cash in three saving bank account with Vishwas Co-operative bank - Information u/s.133(6) was requisitioned from the bank - CIT-A upheld the addition u/s.69 - HELD THAT:- The facts reveal that the assessee is doing regular deposits in the aforesaid accounts without disclosing them in his return of income and thus evading tax. It was first through the AIR information that he was taken into task in 2011-12 and thereafter, he has executed Saate Khat with his relative which was also not registered and was later cancelled. The entire transaction was carried in cash so that any trail of money cannot be established. For the cash deposit in same account during 147 proceedings and in preceding year and in succeeding year the assessee has stated that the deposits are result of its unaccounted purchase and sales and has offered it for taxation under section 44AD of the Act. These are some of the facts which comes from the findings of the Ld. CIT(Appeals). No infirmity with the findings of the CIT(Appeals) in respect of these grounds and the same is therefore, upheld. - Decided against assessee. GP rate @15% with regard to the additional income in the hands of the assessee - HELD THAT:- On the similar issue, the Pune Bench of the Tribunal in assessee’s own case In respect of unexplained deposit in Bank of Baroda, we direct the Assessing Officer to apply GP rate at 15% to work out additional income in the hands of the assessee. Thus, ground Nos. 5 to 8 raised in appeal by the assessee are partly allowed. Penalty proceedings u/s.271(1)(c) - Defective notice - penalty order mentioned both the limbs of section 271(1)(c) of the Act i.e. ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’ - HELD THAT:- There is ambiguity in the mind of Assessing Officer as to which limb/charge, penalty is to be levied. That taking guidance from the decision of CIT Vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT] wherein considered the decision of CIT Vs. Manjunath Cotton and Ginning Factory [2017 (1) TMI 1292 - BOMBAY HIGH COURT] the legal proposition that comes out and which is binding in nature is that the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income while imposition of penalty on the other limb i.e. concealment of income. Thus direct the Assessing Officer to delete the penalty from the hands of the assessee - decided in favour of assessee.
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