TMI Blog2016 (7) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... it, but it is not a good case for imposition of penalty, since it relates to lack of tendering explanation to the satisfaction of the ld. Assessing Officer and not disproving the contention of the assessee with regard to the genuineness of the receipts. In the present case, the explanation given by the assessee not disproved by the ld. Assessing Officer, as such there is no conclusive evidence to show that assessee has concealed particulars of income or furnished inaccurate particulars of income. Further regarding agricultural income, the assessee made an honest plea that assessee does not own any agricultural land. It has earned from the agricultural land owned by assessee’s father-in-law. There is no material brought on record to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Excess claim of depreciation 99,000/- d) Agricultural income 1,25,000/- e) Consultancy charges 5,00,000/- Aggrieved, the assessee carried the appeal before the Ld.CIT(A). On appeal, the Ld.CIT(A) On appeal, Ld.CIT(A) had partly granted relief resulting in the process following additions were sustained. a) Sundry creditor-M/s.Sabari Cottage Ind. 1,67,001/- b) Loan Creditor Mrs.Malliga 1,00,000/- c) Loan Creditor Mrs.Radhamani 2,00,000/- d) Loan Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,57,001/- The CIT(A) confirmed each of the above addition by observing as follows:- i) M/s.Sabari Cottage Industries ₹ 1,67,001/-: M/s.Sabari Cottage Industry failed to respond to the summons issued. The genuineness of the transaction was doubted by the AO. ii) Mrs.Malliga - ₹ 1,00,000/-: Summons issued, return was un-served. The party has given a confirmation letter stating that out of balance of ₹ 3,06,666/-, outstanding is at ₹ 2,06,666/- represents the amount due from the assessee and ₹ 1 lakh adjusted towards advance given to the assessee for repairing the house. iii) Mrs.Radhamani-Rs. 2,00,000/-: In respect of summons, her husband Velumani ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of penalty, since it relates to lack of tendering explanation to the satisfaction of the ld. Assessing Officer and not disproving the contention of the assessee with regard to the genuineness of the receipts. As held by the Calcutta High Court in the case of Durga Kamal Rice Mills Vs. CIT reported in [2004] 265 ITR 025 relying on M/s.National Textiles reported in [2001]249 ITR 125(Guj.), there is a difference in facts not proved and facts disproved . It is further held that penalty can be levied only for the latter. Similar view has been taken in CIT v. Vidyagauri Natverlal Ors., reported in [1999] 153 CTR 546 (Guj). Being so, in the present case, the explanation given by the assessee not disproved by the ld. Assessing Officer, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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