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TMI Blog2024 (11) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') 27.06.2019. The assessee has raised the following grounds of appeal:- "1. On the facts and in circumstances of the case as well as law on the subject, the learned CIT(A) has erred in confirming the action of the Assessing Officer in levying the penalty of Rs. 2,17,272/- u/s 271(1)(c) of the I.T. Act, 1961. 2. It is therefore prayed that the above penalty levied by the Assessing Officer and confirmed by the CIT(A) may please be deleted. 3. Appellant craves leave to add, alter or delete any ground(s) either before or in course of hearing of the appeal." 2. Rival submission of both the parties have been heard and record perused. The Ld. Authorized R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-12. On verification of record, it was realized that due to inadvertent, the appeal for assessment year 2011-12 could not be filed before Tribunal. The Ld.AR of the assessee submits that there is no fault on the part of assessee rather he was relying upon the CA/Consultant who is well known professional in the matters of appeal before Tribunal. The Ld. AR of the assessee submits that there is absolutely no mala fide intention on the part of assessee rather the assessee was under bona fide belief that this appeal has already been filed. The Ld. AR of the assessee submits that assessee has a good case on merit and is likely succeeds if the case of assessee is heard and decided on merit. The Ld. AR of the assessee submits that when technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered as "return of income filed under section 139" for the purpose of penalty under section 271(1)(c) and no penalty is to be levied. Only income assessed over and above the return of income, if there is no income assessed over and above return of income, no penalty is liable to be levied under section 271(1)(c) of the Act. The Ld. AR of the assessee reiterated that so far as levy of penalty on addition of Rs. 60,800/- on account of cash deposit in bank account is concerned, the cash deposit in bank account was reflected in cash book and such deposit was not unexplained. Merely, Assessing Officer treated the cash deposit as undisclosed income but cash deposit is not with concealed income for the purpose of penalty proceedings. To suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions of instructing Chartered Accountant, Kansariwala & Chevli & Associates by staff of Rasesh Shah & Co (AR) for filing appeal before Tribunal for assessment year 2012-13, which was filed on 24.05.2021, which was filed in time. For filing appeal for assessment year 2011-12 against the order dated 21.03.2022, instructing Chartered Accountant sent separate e-mail, however, that e-mail was inadvertently assumed by staff of present Ld.AR in relation to assessment year 2012-13 and resultantly no further action was initiated. On the basis of aforesaid facts, the ld AR of the assessee explained that appeal for impugned year could not be filed and fact for non-filing appeal was realized only after 3rd week of October, 2023 when the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Dahyabhai Patel vs. ACIT [2017] 80 taxmann.com 162 (Gun). Similar view was taken by Division Benches of Mumbai Tribunal in the case of Ravi Sud vs. ACIT [2015] 60 taxmann.com 241 (Mumbai-Trib.). So far as addition under section 69 of Rs. 60,800/- is concerned, in our view, no penalty is leviable as mere cash deposit cannot be considered income of the assessee. It is also matter of record that no further appeal is filed by the assessee. The assessee has not filed further appeal due to smallness of the addition. Mere no further appeal is filed; it cannot be taken as admission on the part of the assessee. Each and every addition cannot be a basis for levying a penalty under section 271(1), unless there is a finding of AO that the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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