TMI Blog2017 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... [2017 (1) TMI 1292 - BOMBAY HIGH COURT ] As decided in the case of CIT vs. Baroda Tin Works [1995 (9) TMI 18 - GUJARAT High Court] is relevant wherein it was held that the fiction created under sections 68, 69,69A,69B and 69C by itself, cannot be extended to penalty proceedings to raise a presumption about concealment of such income. The Hon’ble High court has also held that once the presumption of concealment or concealed income is rebutted, it is for the department to establish that the income which the assessee is alleged to have concealed is, in fact, his income as distinguished from deemed income of the assessee which he failed to disclose in his return. In the present case of the appellant, find that effectively the penalty has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 30,07,091/ 3. The Revenue has raised the following two grounds: - 1. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the penalty w.r.t unexplained investment under section 69 stating that the fiction created under section 68,69,69A and 69C by itself, cannot be extended to penalty proceeding in spite of the fact that the assessee during the survey under section 133A voluntarily accepted that discrepancy in stock and that was not based on any fiction. 2. On the facts and in the circumstances of the case, Ld. CIT(A) erred in deleting the penalty wrt unexplained cash credit under section 68 and commission expenses without consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced this Para in above of this order. From the above Para of the penalty order, we are of the view that concealment is initiated and penalty is levied and the AO is not sure about the charge of levy of penalty under section 271(1)(c) of the Act. 6. At the outset, it is clear that this issue is squarely covered in favour of assessee and against the Revenue by the decision of Hon ble Bombay High Court in the case of CIT vs. Samson Perinchery (Bom) in ITA No. 1154 of 2014 dated 05-01-2017. We find that the AO while levying penalty under section 271(1)(c) of the Act in his discussion clearly stated that the expression used in section 271(1)(c) of the Act furnishing of inaccurate particulars of income and also concealing the particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Respectfully, following Hon ble Bombay High Court decision in the case of Samson Perinchery (supra) on specific charge, penalty levied by the AO cannot be sustained. Accordingly, we confirm the order of CIT(A) deleing the penalty and dismiss the appeal of Revenue. 7. Coming to the merits of the case, we find from the penalty order of the AO i.e. as regards to unexplained investment towards discrepancy in stock, loan received from HUF and claim of commission paid by assessee, the penalty is levied just because additions are made. We find that the CIT(A) has deleted the penalty in Paras 3.3, 4.3 and 5.3 which reads as under: - 3.3 I have perused the facts and the case and appellant s submissions carefully. The appellant had d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 271(1)(c) on this issue is deleted, and therefore, the ground of appeal is allowed. 4.3 I have perused the facts of the case and appellant s submissions carefully. I find that the addition has been made of the amount received from HUF of ₹ 2,00,000/- as unexplained cash credit under section 68. It was observed that HUF was not assessed to tax and there was no PAN of HUF. Hence, the identity was proved, but the credit worthiness and gaminess of transaction were not proved. Without prejudice to the addition made of deemed income under section 68. Reliance is placed on the same decision of Hon ble High Court of Gujarat in the case of CIT vs. Baroda Tin Works (1999) 221 ITR 661 (Guj.), as also relied upon in ground No.1 above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
