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2015 (9) TMI 268 - ITAT AHMEDABAD

2015 (9) TMI 268 - ITAT AHMEDABAD - TMI - Penalty u/s.271(1)(C) - addition made invoking the provisions of section 69A - Held that:- There is no dispute with regard to the fact that neither the transactions were not disclosed nor the Bank Account in which the cash deposits have been made were disclosed to the Revenue Authorities. The only explanation for not disclosing the transactions are that there was loss in share transactions, therefore the assessee has not reflected the same in the return .....

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ash deposits were made. Under these facts, we do not see any reason to interfere with the findings of the authorities below. However, ld.counsel for the assessee submitted that in the quantum proceedings, the Tribunal has reduced the addition from ₹ 37,75,000/- to ₹ 14,19,919.88 in assessee’s own case for AY 2008-09. We, therefore, direct the AO to delete the penalty on the addition in sum of ₹ 23,55,080/-. - Decided partly in favour of assessee. - I.T.A. No.2132/Ahd/2014 - Dat .....

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s well as law on the subject, the learned Commissioner of Income tax (Appeals) has erred in confirming in the action of the assessing officer in levying penalty of ₹ 12,86,987/- u/s.271(1)(C) of the Income Tax Act, 1961. 2. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal. 2. Briefly stated fac .....

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07-08. The transactions were made not reflected in the return of income furnished for the year under consideration. The explanation has given by the assessee was not found acceptable by the AO and the AO made addition by invoking the provisions of section 69A of the Act amounting to ₹ 37,75,000/-. The AO also initiated penalty proceedings u/s.271(1)(c) of the Act. In quantum proceedings, the matter travelled upto the stage of Tribunal (ITAT B Bench, Ahmedabad) was pleased to confirm the ad .....

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#8377; 12,86,987/-. The ld.counsel for the assessee argued at length to buttress the contention. Under the facts and circumstances of the present case, the authorities below were not justified in levying the penalty and confirming the same. He placed reliance on various judicial pronouncements. The ld.counsel for the assessee has relied on the judgement of Hon ble High Court of Gujarat rendered in the case of CIT vs. Whiteford India Ltd. reported at (2013) 38 tamann.com 15 (Guj.) and also the de .....

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ssee and submitted that there is no dispute with regard to the fact that the assessee has not disclosed the transactions in the income tax return. He had also not disclosed Bank Account Number (10011001005255) to the Revenue Authorities. He further submitted that as per the provisions of section 271(1)(c) of the Act, the penalty is leviable if the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income. He submitted that in the given case, the asse .....

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decisions relied upon by the ld.counsel for the assessee. The ld.counsel for the assessee reiterated the submissions as made vide letter dated 06/05/2015 and the same is reproduced hereunder:- 1. This appeal is against penalty order passed by CIT(A) dated 06.05.2014 wherein the penalty levied u/s.271(l)(c) is confirmed as per page 4, para 7. The AO has passed the penalty order dated 18.03.2013 wherein after citing various judgments, as per para 7 he has levied penalty for default of inaccurate p .....

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ssed the order and as per the same addition u/s.69A ₹ 37,75,000/- made on account of one bank account not disclosed in the return. The assessee has made submission before AO as per P.B. Page 1 and 2 in which it was stated that, there was loss of ₹ 56,99,475/- in the said bank account and, therefore, the said bank account is not considered and disclosed in the return of income. The assessee has enclosed Xerox copies of brokers contract note, statement of account, P&L account befor .....

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ts are computer generated and, therefore, no signature required. The AO has not issued any summons u/s. 131/133(6) if he has any doubts regarding genuineness of loss incurred by the assessee in respect of non disclosed bank account. The assessee has not disclosed this bank account because there was loss which assessee do not want to set off "bona fidely" against other business income of textile. 3. The CIT(A) has confirmed the addition u/s. 143(3) as per order dated 08.06.2011 as per P .....

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ss as well as PAN as per P.B. Page 6 to 194. Therefore, this finding of ITAT is factually incorrect. The order of ITAT is at Page 251 to 255. Before ITAT the case laws of Gujarat High Court in Shilpa Dying was cited and copy was also filed in which it is held that, unaccounted stock found during survey can be set off against loss of current year. This decision is also not been considered by the Hon'ble ITAT otherwise there would not been any addition since loss has been incurred. 4. The Hon& .....

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ITAT in the proceedings u/s. 143(3) and, therefore, discharged the onus regarding actual loss incurred in the said bank account and, therefore, in view of the "Bona Fide" of the assessee, the said bank account has not been disclosed. All these evidences are again as per page 6 to 194. Therefore, there is no such question of levying any penalty u/s. 271(l)(c) though Tribunal has partly confirmed the addition. 6. Before Tribunal assessee has relied upon the following judgments and filed .....

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attention is drawn to CIT vs Sangrur Vanaspati (P&H), 4 DTR 166, in reference to unaccounted sales, which is confirmed by Tribunal by applying G.P. rate, it is held that, there is no question of any penalty. This is as per P.B. Page 199. 8. AS REGARDS CASE LAWS IN REFERENCE TO CONTENTION THAT, PENALTY AND QUANTAM PROCEEDINGS ARE SEPARATE. In this connection following judgments are relevant. - 265 ITR 25 (Cal) Durga Kamal Rice Mill - 249 ITR 125 (Guj) National Textile - 278 ITR 354 (All) Mata .....

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