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TMI Blog2005 (2) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had filed the return of income on 13-2-1990 declaring therein income of ₹ 18,880. During the course of assessment proceedings, the Assessing Officer noticed a credit of ₹ 89,000 in the name of Sh. Sudershan Kumar, brother of the assessee. The Assessing Officer held that the assessee failed to prove the credit worthiness of the creditor and genuineness of the transactions. He, therefore, made an addition of ₹ 89,000 as income from undisclosed source. On appeal, the Ld. CIT(A) deleted the addition. Revenue filed an appeal against the order of CIT(A). The ITAT set aside the order of the CIT(A) and restored that of the Assessing Officer. At the time of completing the assessment, the Assessing Officer also initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "5.1 Insofar as the taking of loan from brother Sh. Sudershan Kumar is concerned, it stands to reason that the Ld. counsel has not been able to explain the conduct of the appellant in concealing the particulars to the tune of ₹ 8,000 + ₹ 81,000, total = ₹ 89,000. The facts and circumstances available at the time of recording of the observations regarding the concealment of income to the tune of ₹ 89,000 by the appellant by using the shoulder of the brother of the appellant in introducing appellant's own money in the name of his brother who is even unable to maintain the daily necessaries of life not to speak of deposing with a heavy amount of ₹ 89,000 to his brother i.e. the appellant. This observation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be exigible on this part of the income which stands concealed." The assessee is aggrieved by the order of the CIT(A). Hence, this appeal before the Bench. 3. The Ld. counsel for the assessee reiterated the submissions made before the authorities below. It was submitted that the addition was made by rejecting the explanation of the assessee. The assessee filed an affidavit of the creditor. He was also produced before the Assessing Officer and his statement was recorded wherein he confirmed the transaction. However, the Assessing Officer still made an addition. Sh. Sudershan Kumar was also assessed to tax and he had filed the returns for the assessment years 1985-86, 1986-87 & 1987-88 under the Amnesty Scheme. The addition mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at both assessment proceedings and penalty proceedings are separate and distinct proceedings. Mere fact the addition has been made and sustained in appeal does not by itself justify imposition of penalty under section 271(1)(c). While addition could be made for the reason that the explanation submitted by the assessee was not satisfactory. But for the purpose of levying a penalty under section 271(1)(c), the revenue is required to establish that the assessee was guilty of dishonest or contumacious conduct. In the present case, the assessee explained that an amount of ₹ 89,000 was received from his brother. In support of such contention, the assessee filed an affidavit confirming the transaction. The Statement of his brother was also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amritsar Bench in the cases of Agro Chemicals (India) (supra), Bharat Rice & Gen. Mills, Mansa (supra) and Smt. Neeta Rani's case (supra) also support this view. The decision of ITAT, Chandigarh Bench in the case of Raunaqi Ram Nand Lal v. ITO [ ] 92 ITD 514 . Further, ITAT Chandigarh has held that in a case where the assessee has furnished prima facie evidence in support of genuineness of credit and the Revenue as well as the Tribunal did not accept evidence to be sufficient for the purposes of discharging onus within the parameters of section 68, and an addition to some extent was sustained, the issue of levy of penalty under section 271(1)(c ) has to be considered on the basis of evidence or record as to whether the explanation of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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