TMI Blog2015 (12) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted before the Ld.CIT(A) that due to unavoidable circumstances, the assessee could not produce the third part evidences i.e., confirmation letters etc., at the time of assessment proceedings. The ld.CIT(A) instead of remanding the details furnished by the assessee to the ld.AO, rejected the same without giving any cogent reasons. Further it is observed that the ld.AO has not recorded his satisfaction in respect of the cash credits The aforesaid features does not establish that the cash credits shown in the books of accounts remained unexplained. Therefore we are inclined to delete the penalty levied by the ld.AO on the cash credits - Decided against revenue - I.T.A .No. 5771/Mum/2012 - - - Dated:- 4-12-2015 - SHRI RAJENDRA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For The Appellant : Shri S.M. Makija For The Respondent : Shri R.A. Dyani ORDER PER BEENA PILLAI, JUDICIAL MEMBER: This is a penalty appeal filed by the assessee, arising out of the CIT(A) s order dated 05/07/2012, for A.Y. 2007-08 on the following grounds: 1. The ld. CIT(A) has erred in levying of penalty with reference to the additions made by the ld. Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs, including specific disallowance of ₹ 7,31,000/-(Rs. 2,83,000 of salary + ₹ 4,48,000 on account of tenant accommodation charges). 2.4. The ld.AO further made addition of ₹ 1,44,000/- in respect of squared up cash credits amounting to ₹ 18,000/- each from 8 persons. The ld.AO observed that, the assessee had only submitted a statement of name of persons, from whom cash of ₹ 18,000/- has been received. Accordingly, the addition of Rs, 1,44,000/- was made u/s. 68 of the I.T. Act and the penalty proceedings u/s. 271(l)(c) were also initiated on the ground that the assessee has concealed its income and furnished inaccurate particulars of income. 2.5. The assessment proceedings u/s.143(3) was completed on 13.11.2009, determining the total income at ₹ 22,90,506/-. The ld.AO disallowed the expenses amounting to ₹ 10,44,000/-. The Ld.AO initiated penalty proceedings in respect of the addition made on the disallowance of the entire expenses of ₹ 10,44,000/-. 3. Aggrieved by the order of the ld.AO, the assessee preferred an appeal before the ld. CIT(A). 3.1 In the appeal proceedings, it was submitted by the assessee that it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assessee could establish the genuineness of the expenditure nor could he rebut the findings of the AO by any documentary evidence that, it has actually incurred any genuine expenditure, under the head salary, or tenant accommodation charges. 3.5. As regards the penalty levied on the addition of ₹ 1,44,000/- in respect of cash credits not satisfactorily explained, it is noted that neither at the time of assessment nor at the time of penalty proceedings, while the appellant has plenty of opportunities, it could not file even the confirmation from such parties. Therefore, it is noted that primary onus of proving the genuineness of these cash credits has not been discharged by the appellant. Now, in the appeal proceedings, the appellant has filed the list of 8 cash creditors from whom the loans in question have been taken. First of all it is fresh evidence filed at the appellate stage and neither the appellant has made any application of admission of fresh evidence under rule 46A nor it has shown any reason as to why in spite of sufficient opportunities available to the appellant, the same was not filed before the-AO at the time of assessment or penalty proceedings. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of ₹ 2,83,000/- and ₹ 4,48,000/- is hereby confirmed. 4.3. Accordingly Ground number 1 of the assessee s appeal is dismissed. 5. As regards to Ground no. 2, it is noted that neither at the time of assessment nor at the time of penalty proceedings, the assessee could not file the confirmation from such parties. Therefore, it has been noted by the authorities below that the primary onus of proving the genuineness of these cash credits has not been discharged by the appellant. The Ld.CIT(A) has recorded that it was for the first time the assessee has filed details regarding the 8 persons from whom loan amounting to ₹ 18,000/- each has been taken. 5.1. The Ld.CIT(A) has recorded that neither the assessee has made any application of admission of fresh evidence under rule 46A, nor it has shown any reason as to why in spite of sufficient opportunities available to the assessee, the same was not filed before the ld.AO, at the time of assessment or penalty proceedings. Under these circumstances, the Ld.CIT(A) had not taken cognizance of details filed by the assessee. 5.2. The Ld.AR relies upon the decision of the ITAT Mumbai in the case of Hafeez S. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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