TMI Blog2000 (7) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... n30th March, 1988. As there was delay in filing the return, the AO initiated penalty proceedings under s. 271(1)(a) of the IT Act by serving a show-cause notice. It was submitted by the assessee that due to some mental tension the partner who was entrusted with the accounts could not finalise the same and Form NO.6 was also filed on30th July, 1987, vide receipt No. 48 for extension of time. This reply of the assessee was considered by the AO who noted that assessee was supported to file return and when he failed, a notice under s. 139(2) was also. issued to the assessee which was served on9th Sept., 1987, but return which was to be filed in pursuance of this notice under s, 139(2) by8th Oct., 1987was actually filed on30th March, 1988. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A). Accordingly, appeal is dismissed. 4. ITA No. 5996/Del/1993 is against order dt. 3rd Aug., 1993, by which CIT(A) confirmed the penalty of Rs. 43,824 under s. 271(1)(c) out of Rs. 50,000 levied by the AO. 5. Facts relevant to decide the appeal are that assessee filed return for asst. yr. 1987-88 at an income of Rs. 42,095.28 and assessment was completed at an income of Rs. 1,49,940 in which there were addition of Rs. 50,000 each on account of unexplained cash credit in the name of Dalip Kumar and Phool Chand respectively. It appears that CIT(A) confirmed the addition of Rs. 50,000 in the name of Dalip Kumar but restored the other addition of Rs. 50,000 to the file of AO with direction to provide an opportunity to the assessee to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of these factual positions he concluded that assessee failed to prove source of the amount with Dalip Kumar and Phool Chand and treated that these depositors were merely name lenders to the assessee. He had levied a penalty of Rs. 50,000. 6. Before the CIT(A) the assessee pleaded the same facts also placed reliance on the decision of Hon'ble Supreme Court in the case of Sir Shadi Lal Sugar General Mills Ltd. vs. CIT (1987) 64 CTR (SC) 199 : (1987) 168 ITR 705 (SC) on the point that there may be hundred reasons for making surrender but that fact alone will not roe sufficient for levy of penalty as AO is supposed to bring some more material on record to levy the penalty. Other case law relied upon by the assessee was that of CIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deposit of Rs. 50,000. In his statement he stated to have declared the amount under Amnesty Scheme and gave the amount to one Smt. Anubhi Aggrarwal and after taking that amount he had given that amount to the assessee. No doubt the assessee could not file the copy of return of Dalip Kumar in which he has declared the amount under Amnesty Scheme but Dalip Kumar had filed a certificate from Anubhi Aggarwal to whom he advanced the money in earlier years. Identity of Dalip Kumar as well his capacity and genuineness of the transaction were fully proved. If AO as well as the CIT(A) had not accepted that evidence, then there may be justification for addition but certainly it could not be the basis for levy of penalty in the absence of any proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of CIT(A) and submitted that in the case in hand there had been specific finding that Dalip Kumar was not in a position to lend the amount of Rs. 50,000 and Phool Chand could not be produced before the AO in spite of opportunity given by the CIT(A). The conclusion is that identity of Phool Chand as well as his creditworthiness and genuineness of the transaction remained to be proved and that fact alone is sufficient to conclude that assessee committed default warranting penalty under s. 271(1)(c) of the Act. 9. We have considered the rival submissions and perused the record carefully. So far as cash credit in respect of Dalip Kumar is concerned admittedly Dalip Kumar had been produced before the AO and he had confirmed the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment and in such circumstances the penalty cannot be imposed. Further, the Department has to bring something more in the case of such surrender as apex Court has concluded that surrender alone will not be sufficient for penalty as there may be hundred reasons for making surrender. 11. Before parting we may refer the decision of Addl. CIT vs. Rawalpindi Flour Mills (P) Ltd. (1980) 125 ITR 243 (All) in which addition on account of cash credits not proved to be genuine was not found sufficient for levy of penalty and in the same way in the case of CIT vs. Rudrappan Co. (1984) 147 ITR 204 (Mad) if assessee failed to explain the source of cash credit, still penalty was not found leviable by the Hon'ble Madras High Court. 12. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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