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TMI Blog2014 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the assessee that Explanation (1) to Section 271(1)(c) of the Income Tax Act will come to play as there is some bona fide explanation with regard to the undisclosed income, could not be accepted, as there was no proper explanation by the assessee showing that the transaction was bona fide - even after the search, the assessee had not disclosed the cash deposits in the return of income filed – the order of the Tribunal is upheld – decided against assessee. - Tax Case (Appeal) Nos. 608 to 613 of 2013 - - - Dated:- 25-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. S. Sridhar For the Respondent : Mr. T. R. Senthil Kumar Standing Counsel for Income Tax JUDGMENT (Delivered by R. Sudhakar,J.) The above Tax Case (Appeals) are filed by the assessee as against the order of the Income Tax Appellate Tribunal for the assessment years 2002-03, 2003-04, 2003-04, 2004-05, 2004-05 and 2005-06 raising the following substantial questions of law: 1. Whether the Appellate Tribunal is correct in law in sustaining the levy of penalty under Section 271(1)(c) of the Act overlooking the distinction between the acceptability of the explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings notice to reopen the assessment was issued on 26.3.2008 to the assessee on the ground that in the previous year relevant to the impugned assessment year, the assessee had made cash deposit of ₹ 11.00 lakhs in the Indian Overseas Bank, Santhome Branch. The Assessing Officer held that though the assessee had stated that he had received the amount from the entity, namely, S S Foundations (P) Ltd., the cash book of the said entity did not show any such payment. This was the finding in respect of all the cash deposits referred to above. Hence, the Assessing Officer imposed penalty under Section 271(1)(c) of the Income Tax Act holding that there has been concealment of particulars of income and also furnishing of inaccurate particulars for such income. As against the said order of the Assessing Officer, the assessee filed an appeal before the Commissioner of Income Tax (Appeals), who upheld the order of the Assessing Officer. 3. As against the said order, the assessee preferred further appeal before the Income Tax Appellate Tribunal. The Tribunal, after following the decision of the Delhi High Court in ITA No.415/2012 dated 21.01.2013 titled as CIT v. MAK Data Ltd, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only issue which arises in the cases is as to whether the CIT(A) has rightly confirmed the penalties qua unexplained cash deposit of ₹ 2.50 lakhs and unexplained cash deposit of ₹ 11.00 lakhs. It is a trite preposition of law that assessment proceedings and penalty proceedings are altogether different and they do not stand on same footing. In the penalty proceedings, the concerned assessee can always justify his conduct leading to addition by tendering appropriate explanations which has to be examined independently. In both these cases, we find that in 'scrutiny' assessment as well as reassessment, the assessee himself suffered the additions of unexplained cash deposits of ₹ 2.5 lakhs and ₹ 11.00 lakhs respectively. It also transpires that they pertain to amount deposited in assessee's bank account in Indian Overseas Bank, Santhome Branch, Chennai. At the first instance, the assessment was finalized under section 143(3) r.w.s. 153C r.w.s.153A of the Act vide assessment order dated 31.12.2007. Thereafter, the Assessing Officer passed reassessment order (supra) dated 24.12.2008. It is evident that in assessments as well as in penalty proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealment of particulars of income or furnishing inaccurate particulars of income. The Supreme Court also clearly held that the burden is then on the assessee to show otherwise, by cogent and reliable evidence. 10. In the present case, we find that the assessee had not offered any explanation either during the assessment proceedings or during the penalty proceedings regarding the unexplained cash deposits. The assessee had also not disclosed the said income in the return filed in response to the notice issued under Section 153C of the Income Tax Act. Also, the findings of the Authorities below make it clear that there was no proper explanation given by the assessee with regard to the undisclosed income and the assessee had not given any details as to how he would fall within Explanation 1 to Section 271(1)(c) of the Income Tax Act. Without any material, the assessee had merely stated that the source of income was from the business run by his father and the assessee will be no avail. It is seen from the order of the Tribunal that the assessee and his father are Directors of the entity, namely, S S Foundations P. Ltd. Hence, the authorities were justified in rejecting such a plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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