TMI Blog2016 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... s to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the Assessing Officer is not required to record his satisfaction in a particular manner or reduce it into writing we confirm the order of the ld. CIT(A). Therefore, the appeal of the assessee is dismissed. - Decided against assessee - ITA No. 623/JP/2013 - - - Dated:- 21-10-2015 - SHRI T.R. MEENA,AM SHRI LALIET KUMAR, JM For The Assessee : Shri S.L. Poddar, CA For The Revenue : Shri Raj Mehra, JCIT -DR ORDER PER T.R. MEENA, AM This is an appeal filed by the assessee against the order of the ld. CIT(A)-III, Jaipur dated 07-05-2013 for the assessment year 2006-07 wherein the solitary ground of the assessee is that the ld. CIT(A) has erred in confirming the penalty of ₹ 1.84 lacs u/s 271(1)(c) of the Act levied by the AO . 2.1 The brief facts in this case is that the AO made addition on account of purchased deed found during the course of survey of plot No.B-177, measuring 831 sq.ft from Shri Durga Lal Saini. After considering the assessee's reply, the AO made addition of ₹ 4.00 lacs of the Act which was challenged by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in bank account with regular books of account, it was found that cash of ₹ 1.90 lacs was deposited in the bank account on 27-02-2005 but the same was not found to be recorded in impounded regular books of account. Further, out of cash deposit of ₹ 4.50 lacs made in the bank account on 6-10-2005, only entry of ₹ 4.00 lacs was available in regular books and thus ₹ 50,000/- remained unexplained. Therefore, the total cash deposit in bank account amounting to ₹ 2.40 lacs was found unexplained deposits. This fact was also admitted by the assessee during the course of survey but no such disclosure was made in the return of income filed for the relevant period. During the course of assessment proceedings, the assessee had not given any explanation on this issue. Therefore, the entire amount was added to the taxable income treating it as unexplained bank deposits u/s 69 of the Act. Both the appellate authorities i.e. ld. CIT(A) and ITAT have also confirmed the facts of the AO on this issue and confirmed the addition. The assessee submitted before the AO that the addition on this issue had been made after rejecting the explanation of the assessee. It was fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the same was rejected by the AO. The appellant contention that the plot was gifted to the appellant was rejected both by the ld. CIT(A) and Hon'ble ITAT, Jaipur in their appellate orders. The appellant s alternative contention that said addition should be set off against the trading addition was also not accepted by the appellate authority. The observation are findings of the Hon'ble in para 14 of its order is reproduced below:- 14. After considering the rival contentions and on perusal of the material available on record, we noted that during the course of survey purchase deed dated 26-12-2005 was found which clearly states that plot was sold to the assessee by her father with a consideration of ₹ 4.00 lacs. This purchase deed cannot be ignored by furnishing an affidavit from the father of the assessee. Therefore, the addition made of ₹ 4.00 lacs is confirmed. Thus Ground No. 2 of the assessee is dismissed. It is evident that Hon'ble Tribunal considered the evidence filed by the appellant in the form of affidavit of the father of the appellant but rejected it after considering the evidence of unexplained investment found in the form of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the deponent was not examined, the averment in the affidavit remained uncontroverted. In view of these facts, it is not a fit case of levy of penalty. He further argued that penalty u/s 271(1) of the Act for quantum addition of ₹ 2.40 lacs is also not justified. The ld. AR argued that in quantum order, it is clearly mentioned that the assessee was having sufficient cash balance on the date of the deposit, so the Accountant committed mistake in not accounting the deposits in bank in the regular cash book maintained during the course of business. Thus it is for the mistake for the Accountant that the assessee has to suffer otherwise in totality the assessee surrendered more income than mistake committed by her. Since the assessee is illiterate lady and she did not know more about the accounts and there is no intention of concealment as the amount was deposited in bank which was duly accounted for in regular books of account. The assessee should have been given the benefit of bonafide belief of certain claim being made. Every claim denied by the AO or every tax imposed by the AO and the claim not accepted by the AO cannot be the sole basis of levy of penalty. This was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted that Coordinate Bench has not accepted the theory of set off of this addition against trading addition in quantum proceedings. Similarly, the cash deposit in the bank account is also proved by the AO as concealment of income of the assessee. The explanation filed by the assessee is not bonafide and this case is covered u/s 271(1) of the Act. The cases relied on by the ld. DR are squarely applicable on this case. In the case of CIT vs. Mac Data (P) Ltd. 358 ITR 593 (SC) wherein it has been held as under:- The Assessing Officer has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the Assessing Officer is not required to record his satisfaction in a particular manner or reduce it into writing. The scope of section 271(1)(c) has also been elaborately discussed by this court in Union of India v. Dharamendra Textile Processors [2008] 13 SCC 369* and CIT v. Atul Mohan Bindal [2009] 9 SCC 589**. Thus in view of the above judgement of Hon'ble Supreme Court (supra), we confirm the order of the ld. CIT(A). Therefore, the appeal of the assessee is dismissed. 3.0 In the result, the appeal of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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