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TMI Blog2022 (10) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. - ITA No. 8028/Del/2019 - - - Dated:- 28-10-2022 - Shri Shamim Yahya, Accountant Member And Shri N.K. Choudhry, Judicial Member For the Appellant : Sh. RohitTiwari, Ld. Adv., Sh. Akash, Ld. Adv. For the Respondent : Sh. Kanav Bali, Ld. Sr. DR ORDER PER N.K. CHOUDHRY, J.M. This appeal has been preferred by the Assessee against the order dated 10.06.2019, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-1, New Delhi (in short Ld. Commissioner ), u/s. 250of the Income-tax Act, 1961 (in short the Act ) for the assessment year 2015-16. 2. In the instant case, the assessment order u/s. 143(3) of the Act was passed on dated 31.12.2017, whereby the income of the Assessee was determined at Rs.(-)30,76,835/- instead of Rs.(- )38,88,990/- as declared by the Assessee. The Assessing Officer also made the addition of Rs.8,10,000/- u/s. 68 of the Act on account of unexplained cash credit in bank accounts of the directors advancing the share application money to the Assessee just before advancing the share application amount. The Assessing Officer further made disallowance of Rs.2155/- on account of interest on TD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,10,000/- in the hands of the Assessee, as this amount was deposited in cash in the bank account of the Assessee. The Assessee did not prefer any appeal against the said quantum order, as the loss claimed was reduced and there was no tax burden on the Assessee. However, still the Assessing Officer imposed penalty of Rs.2,50,955/- u/s. 271(1)(c) of the Act. As the Assessee completely discharged its burden u/s. 68 of the Act by proving identity, creditworthiness of the depositors and genuineness of the transaction and the Assessing Officer has not disputed these elements, but only doubted the cash deposit in the bank account of the Assessee and added only this amount and not the whole deposit. In the penalty proceedings, the facts and circumstances should be considered afresh from a different angle and for that the findings arrived in the assessment proceedings will not be enough for imposing penalty. On reappraisal of facts and circumstances, there should be a conscious and wilful default on the part of the Assessee which results in unlawful withholding of revenue. By no stretch of imagination, mere failure of the Assessee can be equated with such conscious and wilful default. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the tax legally payable by them, if their cases are not picked up for scrutiny. This would take away the deterrent effect, which these penalty provisions in the Act have. 21. We find that the assesses before us did not explain either to the Income-tax authorities or to the Income-tax Appellate Tribunal as to in what circumstances and on account of whose mistake, the amounts claimed as deductions in this case were not added, while computing the income of the assessee-company. We cannot lose sight of the fact that the assesses is a company which must behaving professional assistance in computation of its income, and its accounts are compulsorily subjected to audit. In the absence of any details from the assessee, we fail to appreciate how such deductions could have been left out while computing the income of the assessee-company and how it could also have escaped the attention of the auditors of the company. 22. The explanation offered by the assessee-company was not accepted either by the Assessing Officer or by the Commissioner of Income-tax (Appeals). The view of Income-tax Appellate Tribunal regarding admissibility of the deduction on account of written off of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is an increase in share application money pending allotment from Rs. 40,000/- on 31.03.2014 to Rs. 73,50,000/- on 31.03.2015. The AO also noted that the share application money of Rs. 73,10,000/- was received from two applicants namely Devender Kumar Mishra and Rishi Kumar Lavania who are also Directors of the appellant company. The AO noticed that there were cash deposits of Rs. 8,10,000/- in the bank accounts of the directors. The AO observed that the cash was deposited in the bank accounts of the directors just before the payment of share application amount. The appellant could not explain the source of cash deposits in the bank accounts of Sh. Devendra Kumar Mishra and Sh. Rishi Lavania, directors of the appellant company. The AO noted that the appellant was unable to establish the genuineness of the share application money and the creditworthiness of the directors. Accordingly, the amount of Rs. 8,10,000/- pertaining to the cash deposit component of the share application money was added to the income of the appellant u/s 68 of the Act. In the penalty order, the AO has observed that the appellant has furnished inaccurate particulars of its income and has concealed it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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