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TMI Blog2017 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh confirmation for the year ending 31-12-1987 due to long passage of time. Even the books of account were available for inspection only in August 2009 as per the direction of the Hon’ble Bombay High Court. We find from the penalty order of the AO that he has no were discussed the element of concealment in respect to this cash credit and hence we have no reason to sustain the same. The penalty levied by AO and confirmed by CIT(A) is deleted. In respect to other items on which penalty was levied by AO and confirmed by CIT(A) in all these three years, the Tribunal has deleted the additions, the penalties levied and confirmed will not sustain. AO is directed to delete the penalties in respect to those items which have already been deleted by the Tribunal in quantum. All the three appeals of the assessee are allowed. - ITA No.5320/Mum/2013, ITA No.5321/Mum/2013, ITA No.5322/Mum/2013 - - - Dated:- 15-3-2017 - SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM For The Assessee : Shri Vipul Joshi, AR For The Revenue : Shri P. Daniel, DR ORDER PER MAHAVIR SINGH, JM: These three appeals by the assessee are arising out of the common order of CIT(A)-40, Mumbai, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty levied under Section 271(1)(c) of the Income Tax Act, 1961 (the Act) by the Assessing Officer. 1. b. While doing so, the CIT (A) erred in:- i) Not considering the detailed written submission made before him and merely relying on the observation made in the quantum appeal by his predecessor. ii) Failed to appreciate that the quantum proceedings and penalty proceedings are independent. iii) Erroneously not accepting the case law cited by the appellant iv) Relying on case laws which were distinguishable on facts and in law. v) Not considering submissions made by the appellant in respect of each of the addition/ disallowance made by the AO while completing assessment and in respect of which the AO had levied penalty. 1 c. It is submitted that in the facts and in law the CIT (A) failed to appreciate that there was neither concealment of income nor filing of inaccurate particulars of income and thereby erred in confirming penalty levied under section 271 (1) (c ) of the Act by the Assessing Officer. The appellant therefore prays that the order of the CIT (A) be set aside and the AO be directed to delete the penalty levied under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Negative Balance 32,272,000 32,272,000 Page No. 34 Para 51 of ITAT Order Penalty Levied on (Rfer Pg 2 of the Penalty order) 37,111,208 ASSESSMENT YEAR 1988-89 1. Interest disallowed 8,99,443 899,443 (Page No 54 Para 88 of the ITAT order) 2. Interest on security 3,802,299 3,802,299 (Page No 55-56 Para 90 of the hAT order) 3. Loss in security transaction disallowed 1,605,045 1,605,045 (Page No 58-59 Para 95 of the [TAT order) 4. Negative Brokerage 1,961,363 1,961,363 (Page No 40 Para 65 of the ITAT order) 5. Undisclosed investm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty u/s 271(1)(c) of the act in AY 1887-88 left with is as under: - 1. For AY 1987-88 the unexplained cash credit of ₹ 28,000/- confirmed by Tribunal of Ronak Patel on which penalty is levied. 5. We find that the Tribunal has confirmed the addition only on the basis that the assessee did not obtain any confirmation letter from this party, however, the assessee placed reliance on repayment of ₹ 93,000/- made on 10-05-1991 to the creditor. Hence, it is a debatable issue whether the assessee has repayment or not. The Tribunal also accepted the assessee s contention that the source to the extent of 12,000/- is explained in view of the payment of interest. Hence, the Tribunal sustained the addition only by observing as under: - 16. The next addition relates to cash credit available in the name of Ronak Patel. The assessee has received fresh deposit of ₹ 40,000/- from this creditor during the year under consideration. This account had a opening balance of ₹ 85,000/- and with the fresh credit cited above, the closing balance was shown at ₹ 1,25,000/-. The assessee did not obtain any confirmation letter from this party. However, he placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g GIR number, the assessee has not provided the address of the creditor. It is also not clear as to whether the assessee is paying interest to this creditor and the details of repayment were also not given. In these set of facts, we are of the view that the assessee has failed to discharge the initial burden placed upon him u/s 68 of the Act in respect of this creditor. Accordingly, we confirm the assessment of the amount received from this creditor u/s 68 of the Act. 4. We find from the above that the assessee before Tribunal explained that the assessee has furnished copy of account of creditor, copy of receipts issued to the creditor, confirmation letter obtain for the year ended 31-03-1989 and 31-03-1991. It is admitted fact that the confirmation letters contained the GIR No. of the creditor. Now, it was claimed before us that the assessee could not obtain fresh confirmation for the year ending 31-12-1987 due to long passage of time. Even the books of account were available for inspection only in August 2009 as per the direction of the Hon ble Bombay High Court. We find from the penalty order of the AO that he has no were discussed the element of concealment in respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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