TMI Blog2019 (3) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... irmity with the findings of the CIT(Appeals) in respect of these grounds and the same is therefore, upheld. - Decided against assessee. GP rate @15% with regard to the additional income in the hands of the assessee - HELD THAT:- On the similar issue, the Pune Bench of the Tribunal in assessee’s own case In respect of unexplained deposit in Bank of Baroda, we direct the Assessing Officer to apply GP rate at 15% to work out additional income in the hands of the assessee. Thus, ground Nos. 5 to 8 raised in appeal by the assessee are partly allowed. Penalty proceedings u/s.271(1)(c) - Defective notice - penalty order mentioned both the limbs of section 271(1)(c) of the Act i.e. ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’ - HELD THAT:- There is ambiguity in the mind of Assessing Officer as to which limb/charge, penalty is to be levied. That taking guidance from the decision of CIT Vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT] wherein considered the decision of CIT Vs. Manjunath Cotton and Ginning Factory [2017 (1) TMI 1292 - BOMBAY HIGH COURT] the legal proposition that comes out and which is binding in nature is that the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere already assessed by the A.O. u/s. 143(3) r.w.s. 147 of the Act and the above fact was pointed out to the CIT(A) in written submission filed. 6) On the facts and in law the CIT(A) and A.O. have erred in considering the total deposits in bank as income of the appellant without considering the fact that cheques deposited were dishonored. 7) On the facts and in law the CIT(A) has erred in not accepting the fact that the undisclosed deposits in bank accounts represent sale proceeds of the goods traded and hence only profit @ 11 % should be added as income and not entire deposits in banks. 8) On the facts and in law the CIT(A) should have at the most confirmed the addition of peak deposits i.e. peak balance in the bank accounts not disclosed in the books of accounts after reducing the peak balance in undisclosed bank accounts to be taxed in preceding years and income offered to tax in the preceding years and current year. 9) Your appellant craves leave to add, alter above or any other ground/s of appeal. 3. At the very outset, we observe that there is delay of 72 days. The assessee has filed affidavit along with petition regarding condonation of delay. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Musale and therefore, the sources stated by Shri Girish Popat Musale are ambiguous. 5. The assessee filed rejoinder regarding remand report of the Assessing Officer. The Ld. CIT(Appeals) observed that the entire transaction is carried out in cash. He further observed that in the instant case no document has been placed in respect of sale of agricultural produce. No documentary evidence has been produced during the course of any proceeding before the Assessing Officer or before him to explain the availability of cash with Shri Girish Popat Musale and belongs to assessee s extended family. There was no direct evidence produced before the Ld. CIT(Appeals) to substantiate the genuineness of transaction of sale of land to Shri Girish Popat Musale from whom he has allegedly received advance for sale of co-percernary land. Shri Girish Popat Musale is neither assessed to tax nor files his return of income. The Ld. CIT(Appeals) after analysing the entire facts of the case came to the conclusion that the source of cash alleged to have been given to the assessee by Shri Girish Popat Musale was not convincingly answered and that the genuineness of transaction is not proved and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is raised for adjudication is on account of credits in the bank accounts maintained by the assessee, but undisclosed in the return of income. The assessee explained the nature of credits and debits of the said bank accounts and claimed that the same related to his business of sale and purchase of hardware items. Undisputedly, the said bank account with Bank of Baroda was undisclosed bank account and the said receipts need to be included in the total receipts declared for the year under consideration. The assessee in response to the notice issued u/s 148 of the Act, had declared gross profit on the said receipts and had filed additional income in this regard. In the assessment year 2008- 09, the GP declared in the books of account was 9.03% and on the additional sales, assessee declared GP of 8%. Similarly, in assessment year 2009-10, the GP originally declared by the assessee on account of sales was 9.40% and in assessment year 2010-11, it was 9.38%. However, the GP declared on the additional sales in both these assessment years was at the rate of 11%. The assessee has filed the copy of bank statements at page No. 26-39 of the paper book. On perusal of the said bank statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.153/PUN/2017, we observe that there is a delay of 20 days. The assessee has filed affidavit along with petition regarding condonation of delay. We have perused the documents and are convinced with the reasons submitted before us. The Ld. DR has also conceded to condonation of the delay. We, therefore, in view of the relevant documents placed before us and the justified reasons therein and the submissions of the parties condone the delay and admit the appeal for hearing on merits. 15. The Ld. AR of the assessee submitted that the Ld. CIT(Appeals) has passed an ex-parte order. With respect to the additions, though written submissions were filed, it was only statement on facts that were considered and there was no separate written submissions filed before the Ld. CIT(Appeals). Therefore, rights and liabilities of the parties were yet to be decided on merits by the First Appellate Authority. The Ld.AR of the assessee prayed that one final opportunity may be provided to the assessee so that he can represent the case on merits before the Ld.CIT(Appeals) with requisite documentary evidences and details. 16. The Ld. DR fairly conceded to the request of the Ld. AR. 17. We have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears that while initiating penalty proceedings, the Assessing Officer mentioned one limb i.e. concealment of income but at the time of levying penalty, he mentioned both the limbs i.e. concealment of income and furnishing of inaccurate particulars of income . It is apparent that there is ambiguity in the mind of Assessing Officer as to which limb/charge, penalty is to be levied. That taking guidance from the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Samson Perinchery (supra.) wherein the Hon'ble Bombay High Court has considered the decision of Hon'ble Karnataka High Court in the case of CIT Vs. Manjunath Cotton and Ginning Factory (supra.), the legal proposition that comes out and which is binding in nature is that the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income while imposition of penalty on the other limb i.e. concealment of income. 21. The sanctity in terms of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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