TMI Blog2014 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 68 of the Act creates a legal fiction and fiction created by such provision are only for the limited purpose of assessment and the same cannot be made applicable u/s.271(1)(c) of the Act - Mere operation of the fiction in the quantum proceedings does not by itself justify the levy of penalty - the only reason why the additions have been confirmed is the failure of the assessee in proving the creditworthiness of the donors which is material in so far as quantum assessment proceedings are concerned and not in case of penalty proceedings - there is no infirmity in the finding of CIT(A) and the order is upheld – Decided against Revenue. - I.T.A. No.3095/Ahd/2009 - - - Dated:- 14-8-2013 - Shri A. Mohan Alankamony And Shri Kul Bharat,JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in not appreciating the decision of the Hon'ble Supreme Court in the case of Union of India Others Vs. Dharamendra Textile Processors Others reported I 306 ITR 277 in which the Hon'ble Apex Court has held that willful concealment is not an essential ingredient for levy of penalty u/s.271(1)(c). 2. Briefly stated facts are that a penalty amounting to Rs.2,46,285/- u/s.271(1)(c) was levied on the basis of the following additions made by the AO:- (i) The difference in account - Rs. 63,314/- (ii) The gifts treated as non-genuine - Rs.6,50,501/- 2.1. The ld.CIT(A) deleted the penalty as levied by the Assessing Officer. Aggrieved by the order of the ld.CIT(A), the Revenue is in appeal before the Tribunal. 3. The ld.Sr.DR supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cheque is placed at page No.36 of the paper-book. He submitted that copy of confirmation letter received from Mrs.Varshaben O.Patel is placed at page No.37 of the paper-book. He further submitted that copy of advice received from ICICI Bank Satellite Branch,Ahmedabad dated 11/09/2006 as regards credit of the said funds is placed at page No.38 of the paper-book. He further submitted that a copy of relevant extract of assessee's bank statement and details thereof is placed at page-39 of the paper-book. He submitted that in quantum appeal, the Hon'ble ITAT has confirmed the said addition merely because the assessee was not able to establish the creditworthiness. However, identity and genuineness of the said donor are well established before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para, it is observed by the Tribunal in ITA No.338/Ahd/2008(supra) that the assessee has filed details in respect of the said gift. After considering the submissions of the assessee, the Hon'ble ITAT set aside the issue to the file of AO for certain creditworthiness of the donor. This fact is also not controverted by the ld.Sr.DR. Hence, the penalty levied on this addition also does not survive, the same is hereby deleted. In respect of addition of Rs.1,08,300/-, the Hon'ble ITAT confirmed the addition on the basis that capacity of creditworthiness of the donor could not be established. The contention of the ld.counsel for the assessee in this respect is that there is no dispute with regard to genuineness and identity of the donor. The ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
