9911796707
TMI Blog2015 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the instant penalty proceedings for want of any further evidence to the contrary. We conclude in these facts that the assessee has successfully explained source of the robbed sum of ₹ 20 lacs to his bank withdrawal of ₹ 24 lacs. His arguments are accordingly accepted. The impugned penalty is deleted. - Decided in favour of assessee. - ITA No. 2994/Ahd/2011 - - - Dated:- 26-8-2015 - Shri G. D. Agrawal and Shri S. S. Godara, JJ. For The Assessee : Shri A. L. Thakkar, A.R. For The Revenue : Shri Dinesh Singh, Sr. D.R. ORDER PER : S. S. GODARA, JUDICIAL MEMBER:- This assessee s appeal for A.Y. 2005-06, arises from order of the CIT(A)-IV, Baroda dated 14-09-2011 in appeal no. CAB/IV-N- 38/10-11, in proceedings under section 271(1)(c) of the Income Tax Act, 1961; in short the Act . 2. The assessee s sole substantive ground challenges lower appellate order affirming the Assessing Officer s action imposing the impugned sec. 271(1)(c) penalty of ₹ 8,63,500/-. He is engaged in the business(es) of transport, construction, petroleum products and also derives agricultural income. The transport business is being run in the name style of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Urnreth. Assessee however, during the appellate proceedings was able to show that Shroff was assessee's creditor and the total borrowings during the year was ₹ 82,83,279/- and the assessee's employee was going to deposit the sum of ₹ 20/- lacs in the account of- shroff at Umreth. This submission of the assessee was not acceptable to the Id. CIT(A) as he was also of the view that all these explanation are afterthought as at the time of survey the assessee had accepted that the amount robbed on 31.3.2005 was out of assessee' unaccounted income and the assessee could not establish that this amount was out of an amount of ₹ 24/- lacs withdrawn on 25.3.2005. We are inclined to agree with this view of Id. CIT(A) on account of two reasons: (1) if assessee was to pay any sum to Mr. Shroff, he could have paid the same through cheque as both the parties were having their bank accounts and there was no need to withdraw any sum in cash and then deposit the same to the account of Mr. shroff. (2) If the contention of the assessee is accepted that this amount of ₹ 20/- lacs was out of ₹ 24/- lacs withdrawn from the bank on 25.3.2005, the remaining amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 20,00,000/- robbed from his employee was out of withdrawal of ₹ 24,00,000/- from bank by M/s. Neelam Construction on 25.3.2005. The Assessing Officer observed that no such plea was taken at the time of survey. The Assessing Officer relied upon the statement U/S.133A of the appellant accepting the cash of ₹ 20,00,000/- robbed from his employee to be out of his unaccounted income. Appellant's contention is that in the second statement recorded at the time of survey, it had been mentioned that cash was withdrawn on 25.3.2005 from Bank of Baroda. Though it is correct that appellant had been questioned about cash withdrawal of ₹ 20,00,000/- from Bank of Baroda on 25.3.2005 in the statement U/S.133A, however, in his reply, the appellant had not claimed the robbed cash to be out of cash withdrawn from the bank. On the contrary, while in Q.No.6 of the statement U/S.133A, withdrawal from the bank was asked about, immediately thereafter in reply to Q.No.7, appellant admitted the robbed cash to be his unaccounted income. There was no reason for the appellant to have not mentioned the vital fact regarding the stolen cash to be out of cash withdrawn from the bank. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bbed cash to be out of cash withdrawn from the bank at the time of assessment proceeding was not acceptable as the appellant had made wrong claim. This fact clearly goes to prove that the appellant had made false claim by changing his version before the A.O. during the course of assessment proceedings and such false claim clearly amount to filing of inaccurate particulars of income. Thus the provisions of section 271(1)(C) of the IT Act are clearly attracted in the case of appellant so far as the addition of ₹ 20,00,000/- as made by the A.O. u/s 69A of the IT Act is concerned. 10. Considering all these facts, I hold that the A.O. has correctly levied the penalty u/s 271(l)(c) of the Act on addition of ₹ 20,00,000/-as made u/s 69A of the IT Act and therefore the same is confirmed. 4. The assessee refers to his survey statement indicating that pencil entry of cash withdrawal from bank of ₹ 20 lacs not being recorded in cash book of M/s. Neelam Constructions, cash payment of ₹ 20 lacs to be made to its shroff (supra) not posted in any ledger and robbed sum not recorded in books of any of his concerns. He draws our attention to page 13 of the paper b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
