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TMI Blog2017 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... of mind of the Assessing Officer which is not permissible. DR made arguments that it is a case of difference of opinion because the Assessing Officer has made the addition, in quantum proceedings u/s 68. While ITAT in quantum proceedings has upheld the addition u/s 69A which provisions are materially different from the provisions of section 68 and hence it is a case of difference opinion. But on this point also penalty is not leviable. The assessee has turnover of ₹ 4.79 crore and has paid salary to the tune of ₹ 2043 lacs in the impugned year and whatever the assessee has also produced a certificate from the national bank certifying that alleged share application money received by the assessee was actually returned to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether assessee has concealed his particulars or has furnished inaccurate particulars of his income has to be framed against an assessee before levying penalty u/s 271(1)(c). 5. The CIT(A) has erred in not appreciating that the AO neither in the notice of penalty nor in the order of penalty has specifically framed the appropriate charge against the assessee. 6. The ld. CIT as erred in law and on facts in not appreciating that the provision of section 271(1)(c) are discretionary provisons and should be executed in a judicial manner. 7. The Ld. CIT (A) has erred in law and on facts in not appreciating that there was difference of opinion among the AO and the ITAT in respect of additions sustained in quantum proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Changia Steels Pvt Ltd Vijaya Bank, Ram Naqar 2566 3. 2,50,000 897084 28.3.2000 Teem Metals Pvt. Ltd. KVB Karol Bagh 2789 4.2. On the basis of the aforesaid information obtained from the Investigation Wing, the assessment was re-opened by issuing notice u/s 148 of the IT Act. In the re-opened proceedings, the AO made an addition of ₹ 18,51,600/- on account of unexplained cash credits u/s 68 of the IT Act. The said addition was challenged before the CIT(Appeals), which proved unsuccessful although the quantum of addition was reduced to ₹ 13,50,000/-. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made before us. The facts of the case are that the assessee received three cheques aggregating to ₹ 13.50 lakh from Teem Metals (P) Ltd. and Changia Steels (P) Ltd. According to the assessee, the cheques were received for allotment of shares, however, the shares were not allotted and the money was returned by way of cheques in this very year. The cheques were encashed after the close of the year. Receipt and payment are by limited companies and all transactions have been conducted through banking channels. No benefit has been received by the assessee. The transactions have not been recorded in the books because the assessee made the repayment in this very year. On these facts, it can be said that the assessee was in possession of mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation wing also showed that the transactions are in the nature of accommodation entries. The cumulative effect is that the assessee has failed to discharge its primary burden u/s 69A of the Act It may be mentioned here that the AO has made addition under a wrong section 68, but it is found that no entry has been made in the books of the assessee. Therefore, the addition should have been correctly made u/s 69A. The Tribunal has all the powers to correct such minor error in regard to the correct provision applicable on the facts. Thus , it is held that the Id. CIT(Appeals) rightly upheld the addition of ₹ 13.50 lakh. 3. ld. CIT (A) confirmed the action of the A.O. 4. The ld. counsel for the assessee Sh. P.C. Yadav, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments of the ld. counsel, the ld. DR has submitted that the notice annexed in P.B. is merely a photo copy and the original is to be seen first for adjudicating the issue of initiation of proceedings. The ld. counsel for the assessee has brought the original notice and shown to the Bench. On perusal of the same it is found that there is no difference between the photo copy annexed at paper book as well as original notice and hence the submission of the ld. DR deserves to be ignored. The ld. DR failed to point out any contrary decision in the case of Manju Nath Cotton Mills reported in 359 ITR 565. Hence the appeal of the assessee deserves to be allowed on this ground alone. 7. The ld. DR made arguments that it is a case of difference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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