TMI Blog2013 (8) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. See Rupam Mercantile Ltd. v. Deputy CIT [2004 (7) TMI 274 - ITAT AHMEDABAD-A ] - Penalty deleted - Decided in favour of assessee. - I .T.A. No. 7589/MUM/2011 - - - Dated:- 27-8-2013 - SHRI I.P. BANSAL AND SHRI SANJAY ARORA, JJ. For the Appellant : Shri Jignesh R. Shah For the Respondent : Mrs. Jothilakshmi Nayak ORDER I. P. Bansal (Judicial Member).- This is an appeal filed by the assessee. It is directed against the order passed by the learned Commissioner of Income-tax (Appeals)-19, Mumbai, dated August 8, 2011 for the assessment year 2006-07. Grounds of appeal read as under : 1. On the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advance received and repaid back given by the appellant, matched with the bank statement of the lender. (b) During the assessment proceedings before the learned Commissioner of Income-tax (Appeals) the appellant submitted: (i) details stated in paragraph (a) above ; and (ii) financials and the Income-tax return of the lender, wherein advance given to the appellant is disclosed. 4. On the facts and in the circumstances of the case the learned Commissioner of Income-tax (Appeals) has erred in concluding that the appellant has failed to prove the genuineness/creditworthiness and capacity of the lender. 5. As on the first principles, imposition of penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al perverse inasmuch as it ignored the basic documents like statement of confirmation of account, bank statement showing receipt of money from and payment of money to M/s. Kuber Developers Corporation and confirmation from the said party of having given and receipt of the advance which were produced before the Commissioner of Income tax (Appeals) and the Tribunal while confirming the addition of ₹ 2.73 crores under section 68 of the Act in the hands of the appellant ? (b) Whether, on the facts and in the circumstances of the case and in law, was the Tribunal justified in not admitting the additional evidence of loan creditor Mr. Mahendra Mansingh Arora in the form of return of income, balance-sheet and the profit and los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Commissioner of Income-tax (Appeals) should be sustained vide which impugned penalty has been confirmed. 4. We have heard both parties and their contentions have carefully been considered. The fact that aforementioned questions of law have been admitted against the additions sustained by the Tribunal of which impugned penalty has been levied is not disputed by the Revenue. A coordinate Bench in the aforementioned case of Nayan Builders and Developers P. Ltd. relying upon the decision of the Ahmedabad Third Member in the case of Rupam Mercantile Ltd. v. Deputy CIT [2004] 91 ITD 237 (Ahd) (TM) and Smt. Ramilaben Ratilal Shah v. Asst. CIT [1998] 60 TTJ (Ahd) 171, under similar circumstances, has deleted the penalty with the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cannot be levied under section 271(1)(c) as has been held in several cases including Rupam Mercantile Ltd. v. Deputy CIT [2004] 91 ITD 237 (Ahd) (TM) and Smt. Ramilaben Ratilal Shah v. Asst. CIT [1998] 60 TTJ (Ahd) 171. The admission of substantial question of law by the hon'ble High Court lends credence to the bona fides of the assessee in claiming deduction. Once it turns out that the claim of the assessee could have been considered for deduction as per a person properly instructed in law and is not com pletely debarred at all, the mere penalty. Since the additions, in respect of which penalty has been upheld in the present proceedings, have been held by the hon'ble High Court to be involving a substantial question of law, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
