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TMI Blog2018 (6) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and confirmed by the Ld. CIT(A) - appeal of revenue is dismissed. - I.T.A. No. 1439/Kol/2017 - - - Dated:- 8-6-2018 - Shri P.M. Jagtap, AM And Shri A.T. Varkey, JM For The Revenue : Shri G.H. Seema, Addl. CIT For The Assessee : Shri S.M. Surana appearing ORDER PER P.M. JAGTAP, AM This appeal preferred by the revenue is directed against the order of Ld. CIT(A) 10, Kolkata dated 09.03.2017 whereby he cancelled the penalty of ₹ 11,38,202/- imposed by the AO under section 271(1)(c) of the Act. 2. The assessee in the present case is an individual who filed his return of income for the year under consideration declaring a total income of ₹ 4,92,990/-. In the assessment completed u/s 143(3)/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order: From the findings above, it is seen that a portion of the impugned additions were confirmed by the 1st appellate authority after seeking a remand report from the appellant, and the additions were confirmed only to the extent that the appellant- individual was unable to submit evidence in full regarding the impugned expenses. The 1st appellate Authority has also observed that as the payment was made by the relevant companies, therefore, question of unexplained expenditure does not arise. On the other hand, I find that there is factual merit in the contentions of the appellant that all the credit card payments were made by companies whose chairman the appellant was, and that these were through banking channels and not by cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission or documents produced by him. There is also merit in the contention of the appellant that the deeming provision for addition u/s 69C is available to the Ld.AO upto assessment stage only, and said deeming fiction cannot be extended for applying to penalty proceedings also. For levy of penalty for additions u/s 69C, Department is required to prove beyond doubt that alleged credit card payments represent income of the assessee and in absence of that, penalty u/s 271(1)(c) cannot be levied for addition made u/s 69C more particularly for alleged 'furnishing of inaccurate particulars' as in penalty proceedings, benefit of doubt is always in favour of the assessee. I have carefully perused the decisions relied upon by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the assessee as to whether he concealed the particulars of income or furnished inaccurate particulars of such income was not clear. In support of this contention, the learned counsel for the assessee has relied on the latest decision of the coordinate bench of this Tribunal in the case of Jeetmal Choraria vs ACIT rendered vide its order dated 01.12.2017 passed in ITA No. 956/Kol/2016 wherein a similar issue is decided by the Tribunal after taking into consideration the relevant decision of the different High Courts vide paragraph no. 14 and 15 of its order which read as under: From the aforesaid discussion it can be seen that the line of reasoning of the Hon ble Bombay High Court and the Hon ble Patna High Court is that issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We, therefore, hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. 6. In our opinion, the decision rendered by the Coordinate Bench of this Tribunal in the case of Jeetmal Choraria vs ACIT (supra) is squarely applicable in the present case and even the learned DR has not disputed this position. We, therefore, respectfully follow the said decision of the Coordinate Bench of this Tribunal and cancel the penalty imposed by the A.O. under section 271(1)(c) and confirmed by the Ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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