TMI Blog2023 (4) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee are rejected. - I.T.A No. 9233/Del/2019 - - - Dated:- 28-3-2023 - SHRI CHALLA NAGENDRA PRASAD , JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA , ACCOUNTANT MEMBER For the Assessee : None For the Revenue : Shri R. K. Jain, Sr. DR ORDER PER C.N. PRASAD, J. M. This appeal is filed by the assessee against the order of the Ld. Commissioner of Income Tax(Appeals)-9, New Delhi dated 27.09.2019 for AY 2015-16 in sustaining the penalty levied u/s 271(1)(c) of the Income Tax Act, 1961. 2. Several notices have been issued to the assessee and all the notices returned un-served with the endorsement of postal authorities that assessee has left the address. In spite of issue of several notices as none appeared nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.06.2018. The reply of the assessee was considered by the AO and found to be not acceptable. Further the AO also noted that the case laws quoted by the assessee in its favour were found to be different from the assessee's. The AO held as under:- 3.3 It is clear that despite multiple opportunities having been provided to the assessee during the course of assessment, the assessee failed to produce the said parties or provide confirmation of their outstanding balances. This clearly establishes that the liability of the assessee towards these parties had seized and the assessee was no longer in touch with the same and could not provide relevant addresses. 4. In view of above discussion and after considering the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which could have proved its contention bona fide. In this case as noted above, the AO has carried out detailed enquiry and the appellant was controverted with those findings of facts regarding sundry creditors remaining non-confirmed. Further, despite of opportunity the appellant failed to prove its claim with respect to non-confirmed parties. Having regard to those facts, the impugned amount is definitely a case of furnishing of inaccurate particulars of income and concealment of income. 5.3 Further, even if it is an accepted position that not contesting the quantum addition, cannot be a basis of penalty and that assessment proceedings is different from penalty proceedings, the onus was on the appellant to furnish expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to pay an additional amount through penalty. In the assessee's case all these ingredients are there and therefore, the penalty u/s 271(1)(c) of the IT Act, 1961 is very much attracted. 5.5 In a recent case of CIT vs. Atul Mohan Bindal 317 ITR 1 (SC), the Apex Court affirmed its decision in the case of Union of India Vs. Dharmendra Textile Processors (supra) and held that the penalty leviable u/s 271 (1 )(c) was neither criminal nor quasi criminal in nature. It was a civil liability and therefore, presence of mens rea was not essential. 5.6 Reference can be made to the case of CIT vs. Escorts Finance Ltd. 226 CTR 105 (Del), Where the jurisdictional High Court held that Even if there is no concealment of income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence once the contravention is established then the penalty is to follow 5.8 Further reliance is placed on the judgment in the case of CIT vs Frostair (P) Ltd. 26 taxmann.com 11, wherein the Hon ble Delhi High Court held thus: Section 68, read with section 271(1)(c), of the Incometax Act, 1961 - Cash credit Whether assessee is under a burden to explain nature and source of share application money received in a given case and he has to establish shareholder's identity; genuineness of transaction; and creditworthiness of shareholders - Held, yes - On being informed that assessee had accepted share capital from some companies which were engaged in providing bogus entries, in form of loan and share application money, Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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