9911796707
TMI Blog2016 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... AO under section 271(1)(c) of the Act in the Asstt.Years 2002-03 and 2003-04 respectively. 3. Brief facts of the case are that the assessee is a non-resident Indian. He has FDRs. with Dena bank in FCNR NRE category. The interest income out of these FDRs is exempt from tax. Against these FDs., an overdraft facility account was opened. The assessee has given power of attorney to one Shri Hasmukhbhai Patel who has maintained FDR/OD account with fixed deposit overdraft facility. According to the AO, certain amounts have been deposited in FD/OD account. He, therefore, recorded reasons and reopened the assessment in both these years by issuance of notice under section 148 on 27.2.008 and 16.3.2009 for the Asstt.Years 2002-03 and 2003-04 respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 lakhs was deposited through bank transfer on 9.4.2011. Then again Rs. 7.00 lakh was deposited through transfer on 10.4.2001. Similarly on 24.10.2001, Rs. 5 lakhs was transferred through bank. The CIT(A) has deleted all these additions on the ground that the assessee has explained the source of deposits. The only addition confirmed was a sum of Rs. 5.00 lakhs which was deposited on 27.4.2001 by transfer from bank. But the assessee could not file confirmation. Had the assessee filed the confirmation from M/s.Shrinathji Corporation, then the addition would have been deleted. In other words, the amount has been transferred from the account of M/s.Shrinathji Corporation, through banking channel. But in order to substantiate the source of dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. (i)and (Income-tax Officer,)** ** ** (iii) in the cases referred to in Clause (c) or Clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefit the furnishing of inaccurate particulars of such income or fringe benefits: Explanation 1- Where in respect of any facts material to the computation of the total income of any person under this Act, (A) Such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the CIT to be false, or (B) such person offers an explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions; (a) first whether in respect of any facts material to the computation of the total income under the provisions of the Act, the assessee fails to offer an explanation or the explanation offered by the assessee is found to be false by the Assessing Officer or Learned CIT(Appeal); and, (b) where in respect of any fact, material to the computation of total income under the provisions of the Act, the assessee is not able to substantiate the explanation and the assessee fails, to prove that such explanation is bona fide and that the assessee had disclosed all the facts relating to the same and material to the computation of the total income. Under first situation, the deeming fiction would come to play if the assessee failed to give any ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self would have been deleted, but the AO has not issued any notice to M/s.Shrinathji Corporation in order to find out whether the explanation given by the assessee is false or not. Similarly, in the Asstt.Yar 2003-04, the explanation given by the assessee is that he has received back Rs. 1.50 lakhs from Shri Anvarbhai Kapadia and that amount was deposited in the bank account. The AO has accepted the facts that a sum of Rs. 3.00 lakhs advanced by the assessee, but disbelieved the explanation of Rs. 1.50 lakhs. Again the explanation of the assessee was not held to be false. Therefore, in view of our discussion, we are of the view that the assessee does not deserve to be visited with penalty under section 271(1)(c) of the Act, and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
