TMI Blog2019 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... mount having ceased to be a loan, the very foundation for initiating the proceedings, for and levying the penalty u/s. 271D was lost. Also see R. P. Singh Co. (P.) Ltd. [ 2010 (9) TMI 863 - DELHI HIGH COURT] as held that once the A.O. has treated the share application money received by the assessee in cash, as undisclosed income of the assessee, he could not have proceeded on the basis that it was deposit; and that there was no question of levy of penalty u/s. 271D - Decided in favour of assessee. - ITA No.622/Mum/2018 (Assessment Year: 2012-13) - - - Dated:- 27-9-2019 - SHRI A. D. JAIN, VP AND SHRI RAJESH KUMAR, AM Appellant by: Shri Vipin K. Gajarathi And Shri Kushal D. Jain Respondent by: Shri A. M. Mittal ORDER Per A. D. Jain, VP: This is assessee s appeal for assessment year 2012-13, against the order dated 16.12.2016, passed by the learned Commissioner of Income Tax (Appeals) ( ld.CIT(A) , for short), confirming the levy of penalty of ₹ 1,14,50,000/-, levied u/s. 271D of the Income Tax Act, 1961 ( the Act', for short) on the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O completed the assessment based on the revised income. The mere fact that a sum of ₹ 1,14,50,000/- was not excluded by the Assessing Officer from the return of income, cannot come in the way of imposition of penalty under section 271D. It was clearly established in the course of the survey that the appellant had accepted cash loan of Rs, 1,14,50,000/-in cash during the previous year 2011-12. The appellant cannot pre-empt the imposition of penalty under section 27 ID simply by including the loan amount in its total income. Further, manner of treatment in any assessment order cannot change the facts. In the case of contradiction, the actual facts must prevail over how the AO or the appellant treat them in case of contradiction. 6.5.3 The appellant claimed that the omission on the part of the Assessing Officer to exclude the loan amount from the total income of the appellant amounts to finding by the Assessing Officer that the alleged loan amount actually represents appellant's income. After careful consideration, I have come to the conclusion that the claim of the appellant is not correct and non-exclusion of the sum of ₹ 1,14,50,000/- from the to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order under section 143(3). 6.5.6 Secondly, as per the provisions of section 68.- the Assessing Officer charge certain sums to income tax as income of the assessee if he is not satisfied by the explanation given by the assessee regarding the source of the sum. However, the assessee cannot himself offer a sum u/s 68 because the power to invoke that section lies only with the AO. Further, the assessee is aware of the source of the money, the question of offering it u/s 68 does not arise. While offering any sum for income, the assessee must specify the nature of the income so that the correct total income can be arrived at. For example, if the income is derived from speculation business, then, the income will not be eligible for set off against loss from sources other than speculation business. Therefore, it is necessary for the AO to know the nature of the income. It, therefore, follows that the appellant must furnish the nature of the income to enable the AO to ascertain his total income. If the sum offered by the appellant represented its income and not loan taken in cash, the appellant should have established that in the course of the penalty proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee; that it was the assessee itself who included the amount in its total income; that this did not absolve the assessee from the burden of proving that the transaction was not a loan; that the findings recorded in the penalty order directly emanate from the findings of fact recorded during the survey; that when the assessee offers any amount as its income, it is the assessee s burden to specify the nature of such income; that in the absence thereof, the assessee ought to have established such nature during the penalty proceedings, by furnishing whatever evidence supported the assessee s case; that this has no-where been done by the assessee and so, its burden remains hitherto un-discharged; and that in these facts, there being no merit whatsoever in the appeal of the assessee, the same be ordered to be dismissed and the levy of penalty, as confirmed by the ld. CIT(A), be upheld. 6. Heard. The facts, as discussed hereinabove, are nowhere in dispute. The question up for decision is as to whether the ld. CIT(A) has rightly confirmed the penalty levied on the assessee under the provisions of section 271D, where the assessee had accepted the amount of ₹ 1,14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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