TMI Blog2018 (2) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and thereafter given him chance to cross examine the person though statement was recorded by the AO. In such circumstances penalty cannot be levied, hence deleted. - Decided in favour of assessee. - I.T.A. No.1262/Ahd/2015 - - - Dated:- 12-2-2018 - SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri K. P. Shah, A.R. For The Respondent by : Shri James Kurian, Sr. D.R ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER : This appeal of the assessee relating to assessment year 2009-10 is directed against the order of Learned Commissioner of Income Tax (Appeals)-10, Ahmedabad dated 24/03/2015 which is arising out of order u/s.271(1)(c) of the Income Tax Act, 1961, vide appeal no.CIT(A)- 10/ITO 7(4)/96/2014-15. 2. Assessee has taken following Grounds of appeal: Your appellant being aggrieved by the order passed by the Commissioner of Income Tax (APPEALS)-IO, Ahmedabad; for A.Y. 2009 - 10 presents this appeal on the following amongst other grounds of appeal. The grounds of appeal are independent of and without prejudice to each other. 1. The learned C.I.T. (Appeals) -10, Ahmedabad grossl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,627/- as unexplained Cash credit u/s 68 of the I.T. Act, 1961. 4. (i) The learned C.I.T.(Appeals) -10, Ahmedabad erred in confirming the addition of credit opening balance of two depositors viz. (1) Harshadbhai V. Patel ₹ 40,000/- and (2) Pravin V. Patel ₹ 45,000/-. ( ii) The learned C.I.T. (Appeals)-10, Ahmedabad erred in confirming unexplained cash credit of ₹ 85,000/- as concealed income; even though the amount of ₹ 85,000 is not credited in the books for F.Y. 2008-09. 5. The learned C.I.T. (Appeals) -10, Ahmedabad erred in upholding penalty levied by the learned A.O. only on the basis of voluntary surrender by the appellant of an income to buy peace and without bringing some material on record so that it is conclusively established that such surrender, in fact, represented the real income or undisclosed income of appellant. 6. The learned C.I.T.(Appeals) -10, Ahmedabad erred in confirming the penalty even though no clear finding whether the assessee is guilty of concealing the income or furnishing inaccurate particulars of income was stated in the show cause notice dt.28/12/2011. [ CIT vs. Whiteford India Ltd. 38 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 13,500/- on the salary payments of ₹ 2,81,100/- made your assessee. Even a subtle thought of concealing salary income would not naturally crop up in a mind where TDS has been deducted. Therefore by no stretch of imagination, it can be said that the concealment was intentional and conscious. Further, your assessee quotes the following rulings in support of his propositions. a) National Textiles v. CIT(2001)249 ITR 125 (Gujarat High Court) b) CIT v. Sureshchandra Mittal (2001) 251 ITR 9 (SC) c) Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income . As observed by the Supreme Court in the case of K C Builders v. Asst. CIT (2004) 265 ITR 562 d) Shri Shadilal Sugar General Mills Ltd. V. CIT (1987) 168 ITR 705 (SC) e) CIT v. Skyline Auto Products (P) Ltd (2004) 271 ITR 335 (MP) Hence, your assessee earnestly requests your learned self to do away with the imposition of penalty. Creditors of ₹ 10,47,627/-: Your assessee has agreed to the addition of ₹ 10,47,627/- for buying peace and tranquility of mind.. It is a well fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be intentionally. The judgment relied by the assessee is also on the fact that concealment is not intentionally and therefore the same is not applicable in this case. 3.6 During the assessment proceeding addition of ₹ 10,47,627/- was made as assessee has failed to prove that the creditor to the extent of ₹ 10,47,627/- is genuine. The additions were made after recording the statement of the creditor who has denied the transactions to the assessee or not appeared. When asked to justify the creditors the assessee vide letter elated 23/12/2011 agrees that is unable to justify creditworthiness and genuineness of the creditors and offered the same for taxation. When asked as to why the penalty should not be imposed for furnishing inaccurate particulars and thereby concealment of income, the assessee submitted that the addition was agreed for buying peace and tranquility mind. It is well settled and accepted position in the law that if an assessee surrenders by piece of mind penalty for concealment is not leviable. The assessee has also relied upon various judgments in support of his view. The addition of non genuine creditor was made after recording the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances and therefore not applicable in this case. 3.11 Finally ld. AO levied the penalty of ₹ 4,80,525/-. 4. Against the said order assessee preferred first statutory appeal before the ld. CIT (A) who dismissed the appeal of the assessee. 5. We have gone through the relevant record and impugned order. The appellant is a proprietor of Pap - Stat Incorporation which is carrying on the business of manufacturing of Note books and foolscap books. The appellant has submitted Audited books of accounts alongwith the Tax audit report u/s.44AB of the I.T.Act, 1961. While passing order u/s.143(3) of the IT. Act, 1961, the learned A.O. has accepted book results fully. However, as per the said order the A.O. has made addition of Salary of ₹ 2,81,100/- and of ₹ 11,32,627/- u/s.68 of the Act. 5.1 As regards to addition of salary of ₹ 2,81,100/- the appellant had submitted that the employer had made TDS of ₹ 13,500/-. The appellant further submited that as per the scheme of the Act, Income Tax Department is already having the details of Salary and TDS made from the salary of each employee. 5.2 As regards to the addition of ₹ 11,32,627/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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