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2019 (9) TMI 1292 - ITAT AHMEDABADReopening of assessment - Addition u/s 68 - HELD THAT:- Since mere cash deposit in the bank account cannot justify such belief or interference the Co-ordinate Bench was pleased to quash the entire proceeding following the judgment passed in the matter of Bir Bahadur Singh Sijwali-vs-ITO [2015 (2) TMI 60 - ITAT DELHI] . Nothing more than the cash deposit of ₹ 22,99,411/- in the bank account of the assessee is available to justify the reopening of assessment on apprehension that income has escaped assessment - we quash reopening of assessment. Penalty u/s 271(1)(c) - unexplained cash credit u/s 68 - HELD THAT:- Finding in the assessment proceeding, howsoever relevant and good may not be conclusive so far as penalty proceedings are concerned. Further that it is a settled principle that parameters of judging the justification for addition made in assessment proceedings are different from penalty imposed on account of concealment of income or filing inaccurate particulars of income. Certain disallowances/additions can be legally made in the assessment proceedings on the preponderance of probabilities but penalty cannot be imposed on preponderance of probability. Rather, revenue has to prove that the claim of the assessee is not genuine. Merely because an addition has been confirmed in appeal or no appeal has been filed by assessee against such addition, the same cannot be the sole ground for coming to a conclusion that assessee has concealed any income. As decided in DISHMAN PHARMACEUTICALS & CHEMICALS LTD, AHMEDABAD VERSUS ACIT (OSD) , RANGE-1, AHMEDABAD [2015 (2) TMI 1105 - ITAT AHMEDABAD] certain disallowance and/or reasons could legally be made in the assessment proceeding on the preponderance of the probabilities but no penalty could be imposed u/s 271(1)(c) of the Act on preponderance of probabilities and the revenue has to prove that the claim of the assessee was not genuine or was inflated its tax liability. we observe that merely because addition u/s 68 is accepted by the assessee that cannot be a ground for levy of penalty; penalty cannot be levied in the absence of any such concrete finding that the amount deposited is the actual income of the assessee even if such addition has been confirmed by the first appellate authority. - Decided in favour of assessee.
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