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2015 (9) TMI 285 - ITAT AHMEDABAD

2015 (9) TMI 285 - ITAT AHMEDABAD - TMI - Penalty under section 271(1)(c) - addition u/s. 69A - Held that:- The hon’ble apex court in Reliance Petro-products case (2010 (3) TMI 80 - SUPREME COURT) holds that quantum and penalty proceedings stand on different footings. And each and every disallowance/addition does not lead to automatic imposition of section 271(1)(c) penalty. We notice that first of all, the authorities’ below do not produce any material much less a corroborating one to suppo .....

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t of balance sheet. We infer in these facts that although assessee’s plea was declined in quantum, the same is a reasonable explanation in the instant penalty proceedings for want of any further evidence to the contrary. We conclude in these facts that the assessee has successfully explained source of the robbed sum of ₹ 20 lacs to his bank withdrawal of ₹ 24 lacs. His arguments are accordingly accepted. The impugned penalty is deleted. - Decided in favour of assessee. - ITA No. 2994 .....

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te order affirming the Assessing Officer s action imposing the impugned sec. 271(1)(c) penalty of ₹ 8,63,500/-. He is engaged in the business(es) of transport, construction, petroleum products and also derives agricultural income. The transport business is being run in the name & style of M/s. Neelam Transport. This whole episode has arisen from a robbery incident dated 31/03/2005 involving a sum of ₹ 20 lacs from assessee/his representative. The same was to be deposited to a shr .....

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tified exclusion of the balance ₹ 20 lacs sum. The same was stated to be part of a withdrawal amounting to ₹ 24 lacs from his bank account on 24/03/2005 and robbed thereafter. The Assessing Officer framed a regular assessment on 28/12/2007 inter alia placing a heavy reliance on assessee s survey statement and added this remaining sum for ₹ 20 lacs u/s. 69A of the Act. He also initiated sec. 271(1)(c) penalty proceedings alleging concealment and furnishing of inaccurate particul .....

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ncluded a sum of ₹ 20/- lacs robbed from the employee of the assessee on 31.3.2005 when he was going to deposit this amount to the account of some shroff at Umreth. The assessee's explanation that cash of ₹ 20/- lacs robbed from his employee was out of withdrawal of ₹ 24/- lacs from bank account of M/s Neelam Construction on 25.3.2005 was not accepted by the A.O. on the ground that when his statement was recorded during the survey proceedings, he admitted that this amount w .....

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This submission of the assessee was not acceptable to the Id. CIT(A) as he was also of the view that all these explanation are afterthought as at the time of survey the assessee had accepted that the amount robbed on 31.3.2005 was out of assessee' unaccounted income and the assessee could not establish that this amount was out of an amount of ₹ 24/- lacs withdrawn on 25.3.2005. We are inclined to agree with this view of Id. CIT(A) on account of two reasons: (1) if assessee was to pay a .....

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s not found as no cash was found during the survey. We further find that the case laws relied by the assessee are distinguishable in fact. In those cases the amount disclosed at the time of survey was not shown in the return filed by the assessee on the basis of concrete evidence to show that assessee was wrong in disclosing the same at the time of survey. In the instant case the assessee has failed to give any cogent evidence in support of his contention that a sum of ₹ 20/- lacs robbed o .....

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ng to a conclusion that his case attracted both components of section. 271(1)(c) penalty i.e. concealment and furnishing of inaccurate particulars of income for imposing the impugned section 271(1)© penalty of ₹ 8,63,500/- arising from the abvoestated unexplained cash addition of ₹ 20 lacs in order dated 25-03-2010. 5. The Commissioner of Income Tax(A) has affirmed the Assessing Officer s action imposing penalty in question as follows:- 8. With regard to levy of penalty u/s 271( .....

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T Act. In this regard, it would be very relevant to reproduced the above order of CIT(A) IV, Baroda here under: "I have considered the submissions. The Assessing Officer made the addition by not accepting appellant's claim during the assessment proceedings that the cash of ₹ 20,00,000/- robbed from his employee was out of withdrawal of ₹ 24,00,000/- from bank by M/s. Neelam Construction on 25.3.2005. The Assessing Officer observed that no such plea was taken at the time of s .....

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tement U/S.133A, however, in his reply, the appellant had not claimed the robbed cash to be out of cash withdrawn from the bank. On the contrary, while in Q.No.6 of the statement U/S.133A, withdrawal from the bank was asked about, immediately thereafter in reply to Q.No.7, appellant admitted the robbed cash to be his unaccounted income. There was no reason for the appellant to have not mentioned the vital fact regarding the stolen cash to be out of cash withdrawn from the bank. In the other stat .....

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of the Umreth shroff in his books, is completely irrelevant for deciding whether the cash robbed from appellant's employee was unaccounted or not At the time of statement u/s. 133A itself, appellant had submitted that the cash was being taken for payment to Shri Kiritkumar Champaklal Gabhawala. This only indicates the destination of the cash and has no bearing on its source. The appellant could not explain source of the cash in his possession, which was robbed and admitted it to be represen .....

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pellant during the course of survey proceeding very well admitted that the above cash of ₹ 20,00,000/- robbed from his employed was out of unaccounted income. The appellant in his statement u/s 133A had not claimed that the robbed cash was out of cash withdrawn from the bank. On the contrary while in question No. 6 of the statement u/s 133A , withdrawal from the bank was asked about , immediately thereafter in reply to question No. 7, the appellant admitted the robbed cash to be his unacco .....

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ppellant had made wrong claim. This fact clearly goes to prove that the appellant had made false claim by changing his version before the A.O. during the course of assessment proceedings and such false claim clearly amount to filing of inaccurate particulars of income. Thus the provisions of section 271(1)(C) of the IT Act are clearly attracted in the case of appellant so far as the addition of ₹ 20,00,000/- as made by the A.O. u/s 69A of the IT Act is concerned. 10. Considering all these .....

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of any of his concerns. He draws our attention to page 13 of the paper book comprising of relevant bank statement demonstrating a sum of ₹ 24 lacs to have been withdrawn on 24/03/2008. It is argued that diversion of his sum to any other head has nowhere been proved. The assessee contends that the tribunal s order confirming the impugned addition in question was based on assumptions and presumptions only. Case law of (2013) 3521 ISTR 480 (SC) CI Tax vs. Khader Khan & Sons, (2001) 249 IT .....

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31/03/2005. The impugned survey was conducted on 01/04/2005 wherein the assessee failed to explain his pencil entries and also the source of the sum robbed. This has culminated in the corresponding quantum addition of ₹ 20 lacs which has attained finality. However the fact also remains that time period between the bank withdrawal and robbery (supra) is of a week only. This is not the lower authorities case that the above-stated withdrawn sum stood appropriated anywhere else. This is not t .....

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