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2021 (7) TMI 870 - AT - Income TaxLevy of penalty u/s 271(1)(c) - Defective notice - non specification of charge - Notice as barred by limitation u/s 275 - whether AO has erred in imposing penalty under section 271(1)(c) without specifically pointing out in the show cause notice, whether the penalty was proposed on concealment of particulars of income or for furnishing inaccurate particulars of income - HELD THAT:- In the instant case, the ld CIT(A) has passed the order on 19.09.2011 and the penalty order has thereafter been passed by the AO on 22.03.2013 which is well within the limitation period of one year from the end of financial year in which the order of the ld CIT(A) has been received by the Commissioner. In the result, the contention so advanced by the ld AR in so far as the impugned order is barred by limitation cannot be accepted. Defect in the show-cause notice issued u/s 271(1)(C) - Uncertain charge at the time of initiation of penalty proceedings is followed by a certain charge and definite finding at the time of passing the penalty proceedings as to the concealment of particulars of income and the penalty order so passed cannot be vitiated on the ground of uncertain charge and non-application of mind as so contended by the ld AR. Unsecured loan receipts - Assessee has submitted before the Tribunal that the payment have been received through cheque, all creditors have confirmed the amount and filed their confirmations, all the transactions have been entered in the books of accounts and bank balance show sufficient funds and basis such contentions, the Tribunal had remanded the matter to the file of the AO with the direction that where the assessee has filed the confirmations before the AO, then the AO in case of any doubt will issue summons to these creditors to verify the correctness thereof. We find that there is no further enquiry or summons issued by the AO to the specified creditors and the findings as given in the original order were reiterated by the AO in the order passed pursuant to directions of the Tribunal. In the above background, we therefore agree with the contention of the ld AR that once the explanation has been submitted by the assessee along with necessary confirmation and other evidences, the onus shifts on the AO to disprove the same by bringing contrary evidence on record and which in the instant case, has not been disproved by the AO and therefore, mere non-acceptance of the explanation so submitted by the assessee can be made a basis for addition in the quantum proceedings, however, the same cannot result in levy of penalty u/s 271(1)(c) No other contention has been advanced on merits of levy of penalty an addition of unexplained/bogus credits and unexplained advances against flat bookings. Hence, the levy of penalty on such addition are hereby confirmed. - Decided partly in favour of assessee.
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