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TMI Blog2023 (1) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... at independent finding that the assessee has concealed income or furnished inaccurate particular of income. In holding so we find support and guidance from the judgment of Hon ble supreme court in case of T Ashok Pai [ 2007 (5) TMI 199 - SUPREME COURT ] Assessee during the penalty proceedings furnished documentary evidences in support of identity, genuineness and credit worthiness of parties by stating that same were not furnished earlier due non-cooperation from the parties. The above explanation of the assessee was not found to be incorrect by the AO. The AO neither made any independent inquiry with regard to fact whether the loan credit indeed represent income of the assessee and the consciously furnished inaccurate particulars of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte to the assessee and after hearing the Revenue. 3. The only effective issue raised by the assessee is that the learned CIT(A) erred in confirming the levy of penalty under section 271(1)(c) of the Act for Rs. 3,46,390/- only. 4. The facts in brief are that the assessee is a partnership firm and engaged in the business of real estate development. The Assessee for the year under consideration declared income at NIL. However, the AO in the assessment order passed under section 143(3) of the Act made addition of Rs. 11,21,000/- on account unexplained cash credit under section 68 of the Act. The AO also initiated penalty proceeding under section 271(1)(c) of the Act. 5. It was, during the penalty proceeding, was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty by observing as under: Having considered facts and circumstances the case, I find that impugned penalty has been levied with respect to the addition of Rs. 1121000/- made under section 68 in respect of un-explained cash credits. The relevant facts are that the assessee during assessment proceedings had failed to prove the identity of the creditors, their creditworthiness and the genuineness of the credits by adducing necessary and sufficient evidences during assessment proceedings. The said addition was confirmed by the CIT(A) in quantum appeal for the above stated reasons. The impugned penalty has been levied after finalization of first appeal of assessee wherein the impugned addition has been confirmed. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding. Any addition made under the assessment proceeding will not automatically lead to concealment of income or furnishing inaccurate particular of income. As such, the AO has to reach at independent finding that the assessee has concealed income or furnished inaccurate particular of income. In holding so we find support and guidance from the judgment of Hon ble supreme court in case of T Ashok Pai vs CIT reported in 292 ITR 11 where it was held as under: Since burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitute good evidence in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der:- We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penaltyundersection271(1)(c). If we accept the contention of the revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penaltyundersection271(1)(c). That is clearly not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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