TMI Blog2015 (7) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... erned with the concealment penalty. We, therefore, hold that merely on the ground that a part confirmation was made u/s.68 of IT Act in the case of the Assessee should not be considered as a valid ground for levy of concealment penalty. We, therefore, reverse the factual as well as legal findings of the authorities below and direct to delete the penalty levied. - Decided in favour of assessee - ITA No.1107/Ahd/2011 - - - Dated:- 20-3-2015 - Shri Mukul Kr. Shrawat And Shri Anil Chaturvedi JJ For the Appellant : Shri Nimesh Yadav, Sr.D.R.. For the Respondent : S/Shri Parimal Singh and B. Parmar, A.R. ORDER Per: Mukul Kumar Shrawat, JUDICIAL MEMBER This is an Appeal filed by the Assessee arising from the order of lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e list of loans/deposits/liability amounting to ₹ 1,87,25,296/- as per balance sheet of Om Steel nor has filed any confirmation inspite of repeated specific request since the assessee had failed to furnish the list of depositors/lender and also explanation about the nature and source thereof ₹ 1,91,96,156/- being the total amount of loans/deposits is charged to income-tax as income of the assessee of the previous year under consideration as per provision u/s. 68 of the IT Act, 1961. 3. Since the said addition was confirmed; hence again the Assessee preferred an Appeal before learned CIT(A). 4. Vide an order dated 7th February, 2008 for A.Y.I989-90, learned CIT(A)-XX, Ahmedabad in Appeal No. CIT(A)-XX/201/2006-07 order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the appellant had filed Return of Income on 24/05/1999 declaring total income of ₹ 69,131/-, which was processed under section 143(1) (a) of the act. Subsequently the case was reopened under section 147 and re-assessment was finalized under section 144 r.w.s. 147 of the act on 07/03/2002 determining total income ofRs.1,92,65,287/- by making in addition of ₹ 1,91,96,156/- on account of non-genuine deposits under section 68 of the act. The matter travelled to the Hon'ble ITAT which restored the matter back to the file of the assessing officer. The learned assessing officer, thereafter, passed the assessment order under section 143(3) r.w.s. 254 of the Act determining total income at ₹ 1,92,65,287- by making in add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear involved was A.Y. 1989-90; hence due to lapse of so many years, almost over 16 years, the requisite confirmation letters and details of those depositors were not available to the Assessee. But there was no mala fide on the part of the Assessee to hide the basic facts in connection with the deposits credited in the account. He has also pleaded that in a situation when the names and other details of all the depositors were revealed to the Revenue Department as per the Income Tax Return then the onus was on the Revenue Department to investigate the correctness of those depositors. Rather, the Revenue Department had no evidence in its hand to demonstrate that there was any wrong statement of facts. Finally, he has also pleaded that now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pronounced in the case of National Textiles Vs. CIT, 249 ITR 125 (Guj.), wherein it was held as under: Held, that, in the instant case, the cash credits were not satisfactorily explained by evidence and documents. The parties who had advanced the alleged temporary loans were neither disclosed nor were there any supporting documents on record. The accountant, who had arranged the loans was not produced and it was stated that he had left the service as relations with him were strained. In this state of accounts and evidence in the quantum proceedings the Department was justified in treating the cash credits as income of the assessee, but merely on that basis by recourse to Explanation-1, penalty under 271(l)(c) could not have been impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced in the books of account. In this case, the Assessee has offered an explanation giving reasons of his hardship of not producing certain confirmation letters, etc. Since the penalty proceedings are undisputedly a distinct proceedings from the assessment proceedings; therefore, the addition confirmed in the assessment proceedings are to be judged independently instead of drawing any conclusion from those proceedings in a matter concerned with the concealment penalty. We, therefore, hold that merely on the ground that a part confirmation was made u/s.68 of IT Act in the case of the Assessee should not be considered as a valid ground for levy of concealment penalty. We, therefore, reverse the factual as well as legal findings of the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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