9911796707
TMI Blog2017 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(3) of the Income Tax Act, 1961 (hereinafter 'the Act'). The penalty was levied under section 271(1)(c) of the Act for the A.Yrs. 1987-88, 1988-89. 1989-90 vide order dated 30-03-2012. 2. The only common issue in these appeals of assessee is against the order of CIT(A) confirming the levy of penalty under section 271(1)(c) of the Act. For this assessee has raised following grounds in three assessment years: - "ASSESSMENT YEAR -1987-88 1. a. The Learned Commissioner of Income Tax(Appeals)-40 Mumbai [CIT(A)] erred in confirming the penalty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 inaccu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of the CIT (A) be set aside and the AO be directed to delete the penalty levied under Section 271(1)(c) of the Act." 3. At the outset, the learned Counsel for the assessee filed a complete details and the amount on which the penalty levied, addition / disallowance made by AO and confirmed by CIT(A) and finally, in quantum appeal either deleted or confirmed by the Tribunal, the order wise break up is as under: - ASSESSMENT YEAR 1987-88 S. No Details of Addition/Disallowance Amount Allowed in appeal by Hon Tribunal Confirmed Remarks 1. Unexplained cash credit 94,100 66,100 28,000 Confirmed of Ronak Patel on the ground that confirmation not produced (Page No.11 Para 16 of ITAT Order) 2. Interest on purchase and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained cash credit 20,20,367 20,20,367 (Page No 61-64 Para 102-102.6 of the ITAT order) 3. Total addition/disallowance 32,39,548 32,39,548 4. Penalty levied on (Page 2 of Penalty order) 32,40,709 5. Difference 1,161 From the above, it is clear that in assessment year 1987-88 only addition confirmed by Tribunal is on account of unexplained cash credit of Rs. 28,000/- of Ronak Patel. In assessment year 1988-89 addition confirmed of unexplained cash credit of Rs. 3,00,000/- in the name of M/s Mamta Enterprises. In assessment year 1989-90 additions are deleted by the Tribunal. 4. Hence, now the only issue of levy of penalty u/s 271(1)(c) of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter pertaining to either prior years or to subsequent years. We further notice that the assessee has paid interest of Rs. 11,890/- to this creditor during the year under consideration. Thus, we are of the view that the sources to the extent of Rs. 12,000/- can be considered to have been explained in view of the payment of interest, referred above. Accordingly, we modify the order passed by Ld CIT(A) on this issue and direct the AO to sustain the addition in respect of this cash credit to the extent of Rs. 28,000/-. We order accordingly." In view of the above observations of the Tribunal in respect to this cash credit, we are of the view that there is a debate about re-payment of Rs. 93,000/- made on 10-05-1991 by the assessee to this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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