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2019 (2) TMI 287

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..... shareholders/creditors were not presented in person before authorities - quantum proceedings are different from penalty proceedings. In our considered view Assessing Officer has not disproved documents/evidences filed by assessee to be inaccurate/false in penalty proceedings. Merely because quantum addition has been confirmed by Ld. CIT (A) against which assessee has not preferred any appeal before this Tribunal, would not lead to automatic levy of penalty unless Assessing Officer establishes that documents filed by assessee were not true. - Decided in favour of assessee.
Smt. Beena A Pillai, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Appellant : Smt. Prem Lata Bansal, Sr.Adv. For the Respondent : Smt. Nain .....

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..... to the evidences produced by the assessee during the proceeding. Therefore, the penalty confirmed by him is liable to be deleted. 6. That the Ld. CIT(A) has ignored the material fact that once the burden laid upon the assessee discharged by it, then the burden is shifted to the Assessing Officer to rebut the same by way of making investigation. In the present case, no investigation, not even a single notice has been issued by the Assessing Officer to the loan creditors / share applicants and therefore, no penalty could have been levied by him for furnishing inaccurate particulars of income particularly when no particulars has been concealed by the assessee. 7. That the Ld. CIT(A) has misdirected himself in ignoring the fact and law tha .....

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..... r scrutiny and notice under section 143(2)/142(1) of the I.T.Act, 1961 (the Act) were issued. After calling for all relevant information /details from assessee and submissions filed by assessee, Ld.AO passed assessment order under section 143(3) by making following additions: under section 40 (a) of the Act - ₹ 19,77,318/- under section 68 of the Act - ₹ 7,50,000/- 3. Aggrieved by additions made by Ld.AO, assessee preferred appeal before Ld.CIT (A) who partly allowed appeal filed by assessee. 4. Ld.AO simultaneously issued notice under section 274 of the Act, r.w. 271 (1) (c ) of the Act, on addition made under Section 68 of the Act by Ld.AO. 5. During penalty proceedings, Ld.AO recorded that, assessee filed no further evid .....

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..... 5,000/- (Share Capital) 4. Sh. Parikh Jain Rs.2,50,000/- (Share Capital) 9.2. She submitted before Ld.CIT (A) that in quantum proceedings, additional evidence were filed under Rule 46A, wherein confirmations along with PAN card copies, identity proof of shareholders as well as lenders were filed. She submitted that above referred transactions were genuine on which no penalty could be levied. 9.3. She submitted that none of details filed by assessee has been verified by authorities below, as once assessee filed details it discharged it's initial onus, and burden shifts on Department to verify the same. 9.4. Further Ld.Counsel placed reliance upon decision of Hon'ble Supreme Court in case of CIT vs.SSA Emerald Meadows reported in [2016] .....

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..... of the opinion that quantum proceedings are different from penalty proceedings. In our considered view Assessing Officer has not disproved documents/evidences filed by assessee to be inaccurate/false in penalty proceedings. Merely because quantum addition has been confirmed by Ld. CIT (A) against which assessee has not preferred any appeal before this Tribunal, would not lead to automatic levy of penalty unless Assessing Officer establishes that documents filed by assessee were not true. 12.1. Under such circumstances we do not find it fit and proper for penalty to be sustained, as Assessing Officer do not have any evidence to disprove that documents filed by assessee are not true and cannot lead to levy of penalty for filing of inaccurat .....

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