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TMI Blog2017 (11) TMI 1831X X X X Extracts X X X X X X X X Extracts X X X X ..... ch he had not raised in quantum proceedings. CIT(Appeals), in the present case, we hold, ought to have considered the alternate explanation given by the assessee regarding the source of cash deposited in his bank, before adjudicating on the levy of penalty. We, therefore, consider it fit to restore the matter back to the file of the CIT(Appeals) to consider the explanation offered by the assessee and thereafter decide the issue in accordance with law. We may add that the assessee be given due opportunity of hearing in this regard. Appeal of the assessee stands allowed for statistical purposes - ITA No.58/Chd/2017 (Assessment Year: 2009-10) - - - Dated:- 17-11-2017 - Shri Sanjay Garg And Ms. Annapurna Gupta, JJ. Appellant b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd against the facts of the case. 2. That in the facts and circumstances of the case the ld. CIT(A) was not dismissing the appeal and upholding the penalty levied at 300% of the tax alleged to have been concealed. 3. That without prejudice the Id. CIT(A) did not adjudicate on the alternative plea set forth before him for explanation of deposits in bank account to the tune of ₹ 70,41,000/- 4. That the quantum of penalty levied and upheld is rightly excessive. 4. At this stage, the relevant facts leading to the addition made on account of unexplained cash deposits of ₹ 70,41,000/- in the bank account of the assessee are being brought out. During assessment proceedings when the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the aforesaid two persons against agreement to sell land, which were forfeited by him. Further investigations during the course of assessment proceedings to establish the genuineness of the said transaction were carried out by the Assessing Officer asking the assessee to produce the said persons, issuing summons to them and making further enquiries all of which yielded no result. The assessee could not produce the said person, none appeared in response to the summons issued by the Assessing Officer and enquiry conducted by the Assessing Officer revealed that one of the persons Shri Mandeep Singh from whom the advance of ₹ 35 lacs was received was not a resident of village Chillan which was the address given in the agreement. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the Ld.CIT(Appeals) had without considering this alternate explanation of the assessee, upheld the penalty levied merely on account of the fact that earlier explanation of the source of deposit was rejected right up by the I.T.A.T. The Ld. counsel for assessee pleaded that penalty proceedings were separate proceedings and the assessee was entitled to take up fresh contentions in penalty proceedings to save itself from the levy of penalty. 6. The Ld. DR, on the other hand, contended that the assessee could not come up with new explanation in penalty proceedings and the earlier explanation having been found to be unsubstantiated, penalty had been rightly levied and confirmed by the Ld.CIT(Appeals). 7. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings are taxing proceedings while penalty proceedings are criminal proceedings by nature and a decision given in assessment proceeding cannot possibly be binding on the authority who tries the assessee for an offence. This view was confirmed by the apex court in Anwar Ali s case 76 ITR 696 wherein it was held that findings given in assessment proceedings were not conclusive though it was a good piece of evidence. Following the aforesaid two decisions, the Hon ble Bombay High Court in the case of Jainarayan Babulal vs CIT reported at 69 CTR 201, while dealing with an identical issue of levy of penalty on unexplained cash credits for which some other contentions were raised in penalty proceedings, held that it was open to the ITO t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the levy of penalty. Penalty proceedings being separate and distinct from assessment proceedings the assessee is entitled to give all possible explanations in support of his contentions. As observed earlier by us, the findings in quantum proceedings will not operate as res judicata. The assessee cannot be stopped from raising new contentions which he had not raised in quantum proceedings. The Ld.CIT(Appeals), therefore, in the present case, we hold, ought to have considered the alternate explanation given by the assessee regarding the source of cash deposited in his bank, before adjudicating on the levy of penalty. We, therefore, consider it fit to restore the matter back to the file of the Ld.CIT(Appeals) to consider the explanation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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