TMI Blog2019 (11) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... , all those plea are available with the assessee. Since the addition itself ought not have been made in the hands of the assessee, because this bank account did not belong to the assessee, rather it belonged to HUF, therefore, for the purpose of penalty, we are satisfied that the assessee does not deserves to be visited with penalty in these circumstances. We allow the appeal of the assessee, and delete penalty - Decided in favour of assessee. - ITA.No.2142/Ahd/2015 WITH Cross Objection No.32/Ahd/2018, ITA.No.445/Ahd/2015 - - - Dated:- 19-11-2019 - Shri Rajpal Yadav, Hon ble Judicial Member And Shri Waseem Ahmed Hon ble Accountant Member For the Assessee : Shri Jigneshkumar Parikh, AR For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the ld.CIT(A) is less than ₹ 50 lakhs. It reads as under: Assessed income u/s.143(3) 1,34,63,480/- Tax On Assessed Income ₹ 39,79,044/- Surcharge 3,97,904/- E-Cess 87,538/- Total ₹ 44,64,486/- Per contra, the ld.DR did not dispute applicability of the above CBDT circular and the tax calculation shown by the ld.counsel. He left the issue to the Tribunal to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brief facts of the case are that the assessee has filed her return of income electronically on 30.10.2017 declaring total income at ₹ 8,19,930/-. Return was selected for scrutiny assessment and notice under section 143(2) was issued and served upon the assessee. The AO has confronted the assessee that AIR wing has transmitted an information that the assessee has deposited a sum of ₹ 11,20,000/- in cash in saving bank account no.20855 with Punjab National Bank. He directed assessee to explain the source of deposits. It was contended by the assessee that this bank account belonged to HUF, and out of agriculture income, the cash was deposited in HUF account. The ld.AO accepted the explanation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) and (b)** ** ** (c) has concealed the particulars of his income or furnished inaccurate particulars of such income. He may direct that such person shall pay by way of penalty. (i)and (Income-tax Officer,)** ** ** (iii) in the cases referred to in Clause (c) or Clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefit the furnishing of inaccurate particulars of such income or fringe benefits: Explanation 1- Where in respect of any facts material to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he situation in which the assessee has concealed the income or furnished inaccurate particulars, in certain situation, even without there being anything to indicate so, statutory deeming fiction for concealment of income comes into play. This deeming fiction, by way of Explanation I to section 271(1)(c) postulates two situations; (a) first whether in respect of any facts material to the computation of the total income under the provisions of the Act, the assessee fails to offer an explanation or the explanation offered by the assessee is found to be false by the Assessing Officer or Learned CIT(Appeal); and, (b) where in respect of any fact, material to the computation of total income under the provisions of the Act, the assessee is not abl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No doubt the addition on account of unexplained credit found deposited in the bank account with Punjab National Bank, has been made at ₹ 8,20,000/-. This addition stand confirmed at the end of the ld.CIT(A), and thereafter, the assessee did not press CO before us. Question is, if an issue has been decided against the assessee on the wrong premise, can that be used against the assessee in the penalty proceedings also ? The bank account is in the name of HUF, and the HUF is a separate taxable independent entity. If an account is being maintained by the HUF, then the assessment in the hands of HUF ought to have been made. In the present case that has not been done. Since the quantum is not open before us, we cannot tou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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