TMI Blog2016 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ar along with PAN; return of allotment filed with the ROC; allotment of shares to the respective allottees. All these evidences filed by the assessee has not been rebutted or disputed by the AO. Penalty proceedings are separate and distinct from the assessment proceedings and even if in the quantum proceedings, the matter has attained finality, however in the penalty proceedings, assessee may chose to rely upon the same material to prove that he has not guilty of furnishing of concealment of income. The Explanation 1 to section 271(1)(c) raises rebuttable presumption and once the assessee has furnished all the evidences in support of its explanation and has substantiated his claim then the onus cost upon him is discharged and onus then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 2,37,24,900/-. From the stage of the CIT(A), relief of ₹ 1,98,49,900/- was given on account of share application received from Smt Nirmala Barmecha, however, in respect of following five companies share application money received was confirmed by the CIT(A) under section 68, as unexplained credit:- 1. Coromandal Merchants P. Ltd. 2. Maple Mercantile P. Ltd. 3. Certicare Marketing P. Ltd. 4. Ziwani Barter P. Ltd. 5. Devraaj Mercantile P. Ltd. The addition of ₹ 38,75,000/- on account of share application money from above stated companies have also been confirmed from the stage of the Tribunal also. 4. Before us, the Ld. Counsel for the assessee submitted that with regard to these five compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the Registrar of Companies; PAN card , etc. Thus, the onus of the assessee stood fully discharged and accordingly, no penalty can be levied under section 271(1)(c) for furnishing of inaccurate particulars or for concealment of income. 5. On the other hand, Ld. DR strongly relied upon the order of the AO and submitted that, once the addition has been confirmed the penalty has rightly been levied. 6. The Ld. CIT(A) has deleted the penalty after considering the entire documents and analyzing of the bank account of the five companies under which share transaction have been taken place. The relevant finding of the CIT(A) is reproduced hereunder: 5. Decision - I have carefully considered the orders of the various authorities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of July, 2005 in which all these transactions of investment are stated to have taken place. It is clear that all the five companies have had substantial transactions and they had substantial inflow and outflow of monies in all these accounts. Be that as it may, this by itself cannot lead to a situation where levying of is the natural consequence. The AO appears to have erred in presuming that the arguments which apply to the quantum additions are identical to the arguments which apply to the levy of penalty. It is clear that the appellant had received money from five companies by way of share application money. It is also clear that all possible documentation had been furnished before the AO. The lack of satisfaction about the extent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well. 5.3 The upholding of the quantum addition by the CIT(A) is seen to hinge on factors such as commonality of addresses of all the investors and debits from the bank accounts of the investors following on the heels of the credits made. The AO has chosen to reiterate these issues, rather than make out a case for imposition of penalty. It is seen that the AO has simply not found acceptable the explanation and the documentation furnished by the appellant. Nowhere has he been able to make out a case that the appellant has clearly received monies from several investors. The proofs thereof have not been found to be acceptable by the AO. But nowhere has the AO been able to point out any lack of accuracy or lack of genuineness in the explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All these evidences filed by the assessee has not been rebutted or disputed by the AO. It is a trite law that penalty proceedings are separate and distinct from the assessment proceedings and even if in the quantum proceedings, the matter has attained finality, however in the penalty proceedings, assessee may chose to rely upon the same material to prove that he has not guilty of furnishing of concealment of income. The Explanation 1 to section 271(1)(c) raises rebuttable presumption and once the assessee has furnished all the evidences in support of its explanation and has substantiated his claim then the onus cost upon him is discharged and onus then shifts upon the AO to prove that such an explanation or evidence is false. Here in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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