9911796707
TMI Blog2022 (4) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income declaring income of Rs. 32,19,20,154/-. The Ld. Assessing Officer ("AO") completed the assessment under section 143(3) on 27.03.2014 on total income of Rs. 34,94,35,270/- including therein an addition of Rs. 2,75,15,116/- on account of unexplained cash credit under section 68 of the Income Tax Act, 1961 (the "Act"). The Ld. AO initiated penalty proceedings under section 271(1)(c) of the Act for concealment of income/ furnishing inaccurate particulars of income amounting to Rs. 2,75,15,116/-. 3. During penalty proceedings none attended before the Ld. AO nor any written submission was filed. For the reasons recorded by him in para 5 of his order dated 29.09.2014, the Ld. AO imposed penalty of Rs. 91,37,780/- being 100% of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Confirmations were not received in case of three creditors totalling Rs. 61,51,681/- out of six creditors in whose cases, the inquiries under Section 133 (6) were made. Out of those three creditors, the notice under Section 133 (6) was returned unserved in one case. The assessee was informed of the results of inquiries on 18th March, 2014. The assessee was then asked to furnish reply on 24th March, 2014. However, nobody attended on the said date. Therefore, the assessment order was passed on 27th March, 2014 just four days before, the expiry of limitation, making an addition of 50% of total creditors of Rs. 5,50,30,233/-. 6. Under explanation 1(A) to Section 271(1)(c), an addition made becomes deemed concealment, if assessee fails to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient opportunity has not been provided; that disposal of penalty appeal pending disposal of quantum appeal is not justified; and that confirmation of penalty was not justified. 8. Perusal of record shows the following details of the notice of hearing issued to the assessee by the Tribunal :- Date of issue of notice Date of hearing fixed 12.02.2020 31.03.2020 04.02.2021 15.03.2021 09.04.2021 24.05.2021 07.07.2021 09.08.2021 06.09.2021 28.10.2021 22.11.2021 11.01.2022 22.02.2022 04.04.2022 All the notices remained unserved as the assessee 'left' from the given address. There is no hope of service of notice upon the assesee as the assessee has not intimated the change of its address. The Ld. Departmental Representative (DR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith the appeal in the Tribunal. The Ld. DR has also not apprised us about the present status of the quantum appeal. Nonetheless the legal position is that the onus of proving the nature and source of credit entries in its books of account lies on the assessee. It is for the assessee to offer explanation to the satisfaction of the Assessing Officer. If an assessee fails to do so and the identity of the creditor, his creditworthiness and genuineness of the transaction remains unproved, the sum so credited may be charged to income tax as the income of the assessee under section 68 of the Act. Levy or otherwise of the penalty relating thereto would depend on the facts and circumstances of each case. 9.4 There is not statutory bar on pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al within that period. We are conscious that the Ld. CIT(A) has to exercise his discretion under section 249(3) in judicious manner but in the case under consideration the assessee did not submit even an application for condonation of delay. Curiously enough, there is no whisper anywhere in the records of the Tribunal also that the appeal of the assessee has been dismissed by the Ld. CIT(A) as it was not presented within the period allowed under section 249(2)(b) of the Act. Thus, the finding of the Ld. CIT(A) remains uncontroverted. 12. It is a clear case of negligence and inaction on the part of the assessee. In DCIT vs. Jaya Publications (2009) 309 ITR (AT) 245 (Chennai), the Chennai Bench of the Tribunal held that in the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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