TMI Blog2015 (7) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... estimation may be one of the grounds on which discretion not to impose penalty may be exercised. However, in the absence of any requirement to prove the concealment or furnishing of inaccurate particulars found in section 271(1)(c) of the Act cannot form the sole basis to delete penalty imposed by the Assessing Officer and confirmed by the Commissioner (Appeals). Thus the said decision squarely covers the case where penalty under section 271(1)(c) is levied. We therefore, do not find any error much less an apparent error in the order of the Tribunal in this respect.- Decided against assessee. - M.A. No.144 & 145/Ahd/2014,ITA NO.1272 & 1273/Ahd/2011 - - - Dated:- 19-6-2015 - Shri N.S. Saini and Rajpal Yadav , JJ. For the Petitioner: Shri S.N. Divatia. For the Respondent Shri M.K. Singh, Sr.D.R. ORDER PER N.S. SAINI, ACCOUNTANT MEMBER: These are the Miscellaneous Applications filed by the assessee against the consolidated order of the Tribunal dated 30-6-2014 passed in I.T.A.No.1272 1273/Ahd/2011 for the A.Y. 1991-92 AND 1992-93. 2. The grievance projected in the Miscellaneous Petition filed by the assessee reads as under:- 1. The applicant above- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utmost respect that the perusal of the decision in case of Shri Murarilal R. Agrawal there was a search wherein a bank account was found and the assessee had admitted it as his benami and the addition in respect of peak credit was made. Similarly in case of Shri Ojas Mehta an addition of ₹ 22,72,788/- was made on the basis of peak of undisclosed bank account... The applicant submits with utmost respect that the facts of the present case are similar to those cases in the sense that the addition of peak credit of bank accounts found out was made and the penalty levied thereon was deleted. The applicant s case is on much stronger footing that it is not the case of search and other bank accounts were disclosed by the present applicant to Dept. 2.4. The applicant submits with utmost respect that the reliance placed by Hon ble Tribunal on the decision of Shri Bechardas Parmar is wholly misplaced on facts and in law both. It was a case of search and seizure with asstt under special Chapter XVI i.e. 158BC and penalty u/s. 158BFA (2) are not applicable as held in the said decision itself. 2.5. In view of above fact and circumstances of the case, the applicant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty u/s. 271(1)(c) cannot be levied. He, in support of the above contention, relied upon the decision of this Bench of the Tribunal in the case of Murarilal Ratanlal Agarwal Vs. ACIT in IT(SS)A No. 573 615/Ahd/2012 Assessment Year 2004- 05 order dated 05.07.2013 and in the case of Shri Ojas Ashokbhai Mehta Vs. ITO in ITA No. 296 297/Ahd/2013 Assessment Year 2008-09 order dated 23.08.2013. 9. In the alternative, the Authorized Representative of the assessee also contended that only one undisclosed bank account was found by the investigation wing of the Department and the assessee himself disclosed the other five bank accounts and the addition was made on the basis of all the six bank accounts out of which five bank accounts were voluntarily disclosed by the assessee and therefore, penalty u/s. 271(1)(c) should not have been levied in respect of income assessed on the basis of those five bank accounts. 10. The Departmental Representative supported the orders of lower authorities. 11. We find that it is not in dispute that the six bank accounts with reference to which addition was made by the Assessing Officer were not disclosed by the assessee in its retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts. In the above circumstances, we do not find any good reason to interfere with the orders of the lower authorities. Therefore, both the appeals of the assessee are dismissed. 4. We have heard the rival submissions, perused the material available on record. According to the Authorised Represetative of the assessee the assessee explained the source of deposit in its 6 undisclosed bank account and the same is evidenced by the following finding in the assessment order. With initial capital contribution of several persons named above I have made investment in shares and securities of funds initially contributed in cash is employed by way of cash deposits in different bank accounts particulars whereof are disclosed with the return... 5. We find that no such observation is stated in either of the assessment orders for the two years which are under consideration. Thus we do not find any error in the order of the Tribunal in this respect. 6. Further the next contention of the assessee is that finding of the Tribunal that in view of transfer entries in the undisclosed bank account detected by the department to other 5 undisclosed bank account the disclosure of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied was under sec. 271(1)(c) of the Act. 11. We find that the Tribunal has quoted the following Principle of law enunciated by the Hon ble Gujarat High Court:- Penalty corresponding to the addition of ₹ 17.22 lakhs was deleted on the ground that the assessee had demonstrated that there was estimation of additions and that, therefore, no penalty could be levied. Here again, we are of the opinion that the Tribunal interfered with the penalty on he ground which was not permissible. Additions made on the basis of estimation may be one of the grounds on which discretion not to impose penalty may be exercised. However, in the absence of any requirement to prove the concealment or furnishing of inaccurate particulars found in section 271(1)(c) of the Act cannot form the sole basis to delete penalty imposed by the Assessing Officer and confirmed by the Commissioner (Appeals.) 12. The Tribunal placed reliance on the above principle of law enunciated by the Hon ble High Court. While laying down the above principle, the Hon ble High Court has expressly stated about the provisions of Section 271(1)(c) of the Act. Thus the said decision squarely covers the case where pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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