TMI Blog2020 (4) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of performance releases the Revenue from its obligation to verify such liability in the present facts and circumstances. A default occurs only when an obligation is not performed. We find that the assessee has not furnished the basic details about the parties therefore we hold that the assessee has furnished inaccurate particulars of income. Regarding the contention of the assessee that there was no specific charge levied by the AO whether the assessee has concealed the particulars of income or furnished inaccurate particular of income, in this regard we note that the AO has mentioned the specific charge in the penalty order by stating that the assessee has furnished inaccurate particulars of income. Accordingly we hold that, the assessee cannot get the benefit of immunity from the penalty merely there was no specific charge in the penalty notice issued under section 274 of the Act or in the assessment order. - penalty in the present case was correctly levied by the AO which was subsequently confirmed by the learned - Decided against assessee. - ITA No.296/RJT/2017 - - - Dated:- 23-1-2020 - Shri Rajpal Yadav, Judicial Member And Shri Waseem Ahmed, Accountant Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing of such explanation makes the appellant fully liable to the penalty u/s. 271(1)(c). On merit I do not find any fault in AO's action of imposing penalty in respect of unexplained cash credit u/s. 68. 6.4 The appellant has also raised issue of absence of specific satisfaction noted (before initiating penalty proceeding) in the assessment order. This contention is factually incorrect. In order dtd. 24/12/2013 passed u/s. 143(1) rws 254 of the IT Act, 1961, in para 8 the AO has clearly mentioned that therefore penalty proceedings u/s.271(1)(c) of the Act are initiated separately for furnishing inaccurate particulars of income. Being aggrieved by the order of the ld. CIT-A, the assessee is in appeal before us. 5. The ld. AR before us submitted as under: 2.1 The penalty order page no 2 para 6 mentions as under: The A.O. has initiated penalty proceedings U/s. 274 r.w.s. 271(l)(c) of the Act for furnishing inaccurate particulars of income and concealment of income to the above extent. 2.2 Thus the penalty order does not specify the charge for which initiation is specific. It it settled law that initiation has to be specific. The above line shows that both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are there and accepted. 5.2 The Ld. A.O. made no efforts to call or examined any of the persons since he has not considered to call any persons by issuance of summons. More ever he made the addition in lump sump for all the persons. He ought to have justified his action by specifying details for each of persons. More ever he also should have considered the capacity of each of the persons_before making addition. 5.3 In view of this and as described in the statement of facts filed with Your Honour, the action of the Ld. A.O. even without specifically mentioning how the person concern has no capacity to give loan of such' small amount of less then ₹ 20,0007- and if there is no capacity of such small amount then what is the capacity of each of the persons for lesser amount. Not only this even the Ld. A.O. over look the position of similar transaction in earlier years which is also a conclusive part of genuine transaction in the line of business of the assessee. 5.4 In view of the above it is humbly submitted that penalty levied on addition made of ₹ 4,80,000/- may kindly be deleted if necessary by asking the Ld. A.O. to call all the persons by issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us arises so as to adjudicate whether the assessee has furnished inaccurate particulars of income with respect to the cash credit which were treated as unexplained under section 68 of the Act. The term inaccurate particular of income has not been defined under the provisions of section 271(1)(c) or elsewhere in the Act the Act. However, the meaning of the term inaccurate has been discussed by the Hon ble Supreme Court in the case of Reliance Petroproducts (P) Ltd reported in 189 taxman 322 wherein it was held that the term inaccurate signifies deliberate act or omission on the part of the assessee. As such, the details/informations contained in the return of income /financial statements /audit report which are not correct according to truth, and were furnished by the assessee with the dishonest intent shall be treated as inaccurate particulars. In holding so, we find support and guidance from the judgement of Hon ble Supreme Court in the case of Reliance Petroproducts (P) Ltd (supra). We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed as income of the assessee. But such addition during the assessment proceedings being deemed income does not automatically attract the penalty provisions as envisaged under the provisions of section 271(1)(c) of the Act. As such, the onus, in the case of deemed income as specified under section 68 of the Act, lies on the Revenue to prove that such deemed income is the real income of the assessee in order to attract the penalty provisions specified under section 271(1)(c) of the Act. In holding so we find support and guidance from the judgment of Hon ble Gujarat High Court in the case of CIT Vs. Baroda Tin works Box reported in 221 ITR 661 wherein it was held as under: Sections 68, 69, 69A, 69B and 69C are all part of the same scheme where certain amounts though not proved to be the income of the assessee of the previous year concerned are for the purpose of charging to tax are deemed to be so by creating legal fiction absolving the department from its initial duty to prove that any such is the income of the assessee. But for these provisions, it was for the revenue to prove that any sum, not disclosed by the assessee but which is sought to be taxed as income of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged from such an obligation and hence cannot be hold a defaulter. 7.7 In view of the above, we find that the assessee has not furnished the basic details about the parties therefore we hold that the assessee has furnished inaccurate particulars of income. In holding so, we also draw the support and guidance from the judgment of Hon ble Allahabad High Court in the case of CIT Vs. Agrawal Refigration reported in 35 taxmann.com 436 wherein it was held as under: In our considered opinion in the absence of any plausible explanation given by the assessee for not incorporating the payment of ₹ 37,000/- made by bank draft in the regular books of account, necessary inference is that he has concealed particulars of his income. The amount having been added under Section 69A of the Act nonetheless is to be treated as income of the assessee and the burden was upon the assessee to prove that there was no concealment of income. The Tribunal was, therefore, not justified in deleting the penalty only on the ground that the addition was made under Section 69A of the Act which is a deeming provision. 7.8 Regarding the contention of the learned AR for the assessee that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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