TMI Blog2016 (5) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances of the case Ld. CIT(A) has grossly erred in confirming the penalty of ₹ 15,85,386/- levied u/s 271(1)(c) of the Income Tax Act, 1961. 1.1 That the Ld. CIT(A) has erred in upholding the penalty levied u/s 271(1)(c) of the Income Tax Act, 1961 without appreciating the fact that the income was surrendered by the assessee during the course of assessment proceeding and the income was offered suo-motto, to buy the peace of mind and to avoid prolonged litigation. Thus upholding the penalty so levied deserves to be deleted. 1.2 That the penalty u/s 271(1)(c) has been imposed and confirmed by the Ld. CIT(A) without making any independent enquiry in penalty proceedings and simply relying upon the conclusion drawn in assessment order thus the penalty deserves to be deleted. 1.3 That the assessee has voluntarily surrendered the income and paid the due tax thereon thus there remained no income on which tax sought to be evaded could be calculated which fact was not appreciated by the Ld. CIT(A). 2. The sole ground of the appeal is against confirming the penalty of ₹ 15,85,386/- imposed U/s 271(1)(c) of the Income Tax Act, 1961 (in short the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil liability . He relied on the following case laws:- (i) [2009] 226 CTR (Delhi) 533 - CIT V/s Dass Trading holding (P) Ltd. (ii) [2008] 305 ITR 0029(MP) - DDIT U/s Chirag Metal Rolling Mills Ltd. (iii) [2001] 251 ITR 99(SC) - K.P. Madhusudan. (iv) [2008] 302 ITR 0239(Kev) - CIT V/s Guruvijay Kuri Co. Ltd. (v) [2009] 316 ITR 0058 (Mad)- Komal Basha V/s DCIT The ld Assessing Officer has held that on the basis of above facts, the assessee had concealed and furnished inaccurate particulars of income and thereby caused loss to the revenue. Further the onus was on the assessee to prove that there is no concealment but assessee failed to prove the same during the assessment as well as penalty proceedings. Finally be imposed penalty at ₹ 15,85,386/-, which is 100% of tax sought to be evaded on concealed income. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had dismissed the assessee s appeal by observing as under:- 4.20 With reference to penalty proceedings, the following propositions can be laid down on the basis of language of relevant section of the IT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.23 AO has rightly placed reliance on the following decisions for coming to the conclusion that penalty is leviable in this case. (a) [2009] 226 CTR (Delhi) 533 - CIT V/s Dass Trading holding (P) Ltd. (b) [2008] 305 ITR 0029(MP) - DDIT V/s Chirag Metal Rolling Mills Ltd. (c) [2008] 302 ITR 0239(Kev) - CIT V/s Guruvijay Kuri Co. Ltd. (d) [2009] 316 ITR 0058 (Mad)- Komal Basha V/s DCIT I therefore hold that AO is justified in imposing penalty of ₹ 15,85,386 in this case and the same is confirmed. Ground No. 2 is thus dismissed. 4. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that during the year under consideration, the assessee has shown cash deposits of ₹ 47,10,000/- in the name of various persons as shown under the head Advance from customers in Balance sheet. During the course of assessment proceedings, addresses of customers from whom advances were received were filed as available in the records of the assessee. These advances were received for booking of the vehicles from casual customers and when supplies from company was not made available, advance money were refunded to the customers. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings, the appellant had submitted an affidavit one person Sh. Gopal Singh Choyal, one of the witnesses. A copy of the same was submitted before the Ld. CIT(A) also. A bare perusal of the said affidavit would show that the said person as witness has confirmed on oath all the facts as explained by the appellant. He has confirmed of having booked the Eishers Truck by advancing the amount and also receiving the refund owing to the nondelivery of the booked truck within the stipulated time period of one month. In the affidavit, the mode and manner of advancing the money and receiving the same back has been explained by the said witness on oath which duly support the contentions of assessee. It is therefore, submitted that assessee has no control over the third party i.e. the alleged customers who were non-related to the appellant and they were no more in touch with the assessee at the given point of time. Except the details and addresses as provided by them at the time of booking, no other document or details were available with the assessee , thus the assessee was unable to produce further details and these parties for examinations more particularly the appellant has repaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomobile vehicles, accessories and spare parts and also service centre for all type of automobiles vehicles. The year under consideration is the first year of the business of the assessee as it started his business at the end of March, 2006. It is common practice that drivers booked the required vehicles with the authorized dealer to make available it. The assessee maintained record of these customers, which has been submitted during the course of assessment. It is a fact that on verification of these persons were not responded to the Assessing Officer notice issued U/s 133(6) of the Act but is also a fact that these customers are less educated and do not have bank account particularly drivers, therefore, they booked these vehicles in cash. The year under consideration is first year, therefore, it is not possible to generate unaccounted income on total turnover of ₹ 1.05 crores. Even this amount is unaccounted, it may be pertained to the other persons, which cannot be added here. The Hon'ble Supreme Court in the case of CIT Vs. Bharat Engineering and Construction Co. (1972) 83 ITR 187 (SC) has held that cash credit entries made in the first year of business, the finding o ..... 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