TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 316
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....firming penalty of Rs. 56,615.00 imposed u/s 158BFA(2) of the Income tax act, 1961. 2. Because on facts and in circumstances of the case, ld. Commissioner of income tax (appeals)-I, Kanpur has erred in not appreciating that when the assessee was following cash system of account and there was not unanimity in either assessing authority or Hon'ble appellate authorities about the addition and figures of addition, penalty should not have been imposed on the assessee. 3. Because on facts and in circumstances of the case, ld. Commissioner of income tax (appeals)-I, Kanpur has erred in not appreciating that during the course of search, no unexplained valuable or cash has been found from the possession of the assessee. 4. Because on facts and in circumstances of the case, ld. Commissioner of income tax (appeals)-I, Kanpur has erred in not appreciating the facts of the case and submissions of the assessee. 5. Because on facts and in circumstances of the case, submissions before ld. Assessing Officer and ld. CIT(A) statement of facts and grounds of appeal in 1st appeal may be treated as part of these grounds of appeal. 6. Because on facts and in circumstances of the case, impugned o....
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....BFA(2) is not justified. Reliance was placed on the Tribunal decision in the case of Smt. Bitoli Devi vs. ACIT [2009] 31 SOT 30 (ITAT[Luck]). 5. Learned D.R. of the Revenue supported the orders of the authorities below. 6. We have considered the rival submissions. We find that as per the Tribunal order in quantum proceedings in I.T.A. No. 446/Lkw/04 dated 30/06/2006 submitted by Learned A.R. of the assessee, it is seen that the Tribunal has upheld the addition to the extent of 50% of the addition made by the Assessing Officer on mercantile basis by estimating that this much amount must have been received in this year because it was the claim of the assessee that the assessee is following cash system of accounting. Hence, it is seen that the addition upheld by the Tribunal is on estimate basis only and this fact should be kept in mind while deciding the penalty issue. In the light of above facts, we now examine the applicability of the Tribunal decision cited by Learned A.R. of the assessee. In that case, the assessee declared income by applying net profit rate of 4.4%, which was subsequently reduced to 4% by the CIT(A) as well as by the Tribunal. Under these facts, it was held by....
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....fered as sundry creditors written back. Although some addition was made by the Assessing Officer but the same was deleted by CIT(A) and since no penalty has been imposed on such additional income added by the Assessing Officer, that aspect is not relevant. The penalty has been imposed of Rs. 8,000/- in respect of additional income shown by the assessee in the return filed u/s 153A. He submitted that surrender was made bonafide and to buy piece of mind and to avoid litigation and therefore, penalty is not justified under these facts. He further submitted that in assessment year 2002-03 in assessee's own case, similar penalty was imposed but was deleted by the Tribunal. He submitted that as per this Tribunal decision for assessment year 2002-03, the penalty in the present year is not justified. 10. Learned D.R. of the Revenue supported the orders of the authorities below. 11. We have considered the rival submissions. The relevant Para from the Tribunal order for assessment year 2003-04 being Para - 5 is available on page 75 of the paper book, which is reproduced below: "5. We have carefully perused the orders of the lower authorities and the judgments referred to by the assessee a....
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....ted as part of these grounds of appeal. 7. Because on facts and in circumstances of the case, impugned order is bad in law as well as facts and appropriate relief deserves to be allowed." 9.It was submitted by Learned A.R. of the assessee that in the present case, since search was conducted, penalty can be levied only under explanation 5 to section 271(1)(c) of the Act. He further submitted that in the present case, no adverse material has been found in course of search or subsequent to search and therefore, penalty is not justified and in support of this contention, reliance was placed on the Tribunal decision in assessee's own case for assessment year 2000-2001 and 2004-2005 as reported in ACIT vs. Smt. Surinder Kaur [2009] 31 SOT 23 (Lucknow) (URO). He submitted that the copy of the Tribunal order is available on pages 47 to 53 of the paper book and in particular, our attention was drawn to Para 19 and 20 of the Tribunal decision. 16. Learned D. R. of the Revenue supported the orders of the authorities below. 17. We have considered the rival submissions. We find that in compliance to notice issued by the Assessing Officer u/s 153A, the assessee filed return of income showing....
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.... of imposition of a penalty under cl. (c) of sub-s. (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless,' (1) such income is, or the transactions resulting in such income are recorded,' (i) in a case falling under cl. (a), before the date of the search; and (ii) in a case falling under cl. (b), on or before such date, in the books of account, if any, maintained by him for any source of income or such income is otherwise disclosed to the Chief CIT or CIT before the said date; or (2) he, in the course of the search, makes a statement under sub-s. (4) of s. 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in sub-s. (1) of s. 139, and also specifies in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income." 20. Thus, the first requirement for invoking Expln. 5 is that in a valid search, som....
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....ause on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in not appreciating the facts of the case and submissions of the assessee. 5. Because on facts and in circumstances of the case, submissions before ld. Assessing Officer and ld. CIT(A), statement of facts and grounds of appeal in 1st appeal may be treated as part of these grounds of appeal. 6. Because on facts and in circumstances of the case, impugned order is bad in law as well as facts and appropriate relief deserves to be allowed." 21. It was submitted by Learned A.R. of the assessee that the assessee, through his Learned A.R. of the assessee, has appraised the Assessing Officer with the situation that it is not possible to reply all the points of questionnaire within short period of time as it will take time to prepare the case point by point and from the books of account and also that his son is paralyzed and his father was ill who later died on 1st November. He further submitted that the Assessing Officer has not provided the reasonable opportunity to make compliance and therefore, penalty u/s 271(1)(b) of the Act is not justified. He also placed reliance on the Tr....
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....d not u/s 144. Hence, this Tribunal decision is squarely applicable in the present case and therefore, respectfully following this Tribunal decision, we delete the penalty. 25. In the result, the appeal of the assessee stands allowed. 26. Now we take up the appeal in the case of Smt. Surinder Kaur for assessment year 2008-2009 in I.T.A. No.151/Lkw/2013. In this appeal, the assessee has raised the following grounds: "1. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I Kanpur has erred in confirming the disallowance of Rs. 21,277.00 made on account of expenses on vehicle. 2. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in confirming the addition of Rs. 2,78,971/- made on account of application of provisions of 50C without appreciating that before making addition legal procedure for referring the property to valuation cell has not been followed. 3. That learned Assessing Officer has erred in not appreciating that when the transfer of property was executed in assessment year 2007-08, no addition in this year could be made. 4. That learned Assessing Officer has erred in ....
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....irming penalty of Rs. 100000.00 imposed u/s 271 (1) (c) of the income tax act, 1961. 2. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in not deciding the ground relating to quantum of penalty. 3. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in not appreciating that the addition was such on which no penalty should have been imposed. 4. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in not appreciating the facts of the case and submissions of the assessee. 5. Because on facts and in circumstances of the case, submissions before ld. Assessing Officer and ld. CIT(A), statement of facts and grounds of appeal in 1st appeal may be treated as part of these grounds of appeal. 6. Because on facts and in circumstances of the case, impugned order is bad in law as well as facts and appropriate relief deserves to be allowed." 33. It was submitted by Learned A.R. of the assessee that the gift was received through bank but the same was not accepted for the reason that the donor is not relative of t....
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....ified. 39. Learned D. R. of the Revenue supported the orders of the authorities below. 40. We have considered the rival submissions. Regarding the first issue i.e. addition of Rs. 34,500/- on account of job work receipt, we find that the addition was made by the Assessing Officer on the basis that there is possibility that the assessee has not issued cash memo in some cases. Before observing so, not even a single instance has been pointed out by the Assessing Officer of a cash memo not accounted for by the assessee. The CIT(A) has also confirmed this addition on this basis alone that the addition is only of 10% of the returned income. This is no basis for confirming an arbitrary addition. Hence, we delete this addition. 41. Regarding the second issue being disallowance of Rs. 26,195/- out of car expenses, we find that it is noted by the Assessing Officer that the assessee has only one car and therefore, personal use cannot be ruled out. He therefore, made disallowance of 1/5th of the expenses. Considering the facts, we do not find any infirmity in the orders of the authorities below on this issue. Hence, we decline to interfere in the order of CIT(A) on this issue. 42. In the r....
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....ision, we delete the penalty. 47. In the result, the appeal of the assessee stands allowed. 48. Now we take up the appeals in the case of Shri Paramjeet Singh for assessment years 2007-08 & 2008-2009 in I.T.A. Nos.158 & 159/Lkw/2013. In both the appeals, the assessee has raised common grounds which are as under: "1. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in confirming penalty of Rs. 10,000.00 imposed u/s 271 (1) (b) of the income tax act, 1961. 2. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in holding that there was no reasonable cause for non compliance. 3. Because on facts and in circumstances of the case, ld. Commissioner of income tax (Appeals)-I, Kanpur has erred in not appreciating the facts of the case and submissions of the assessee. 4. Because on facts and in circumstances of the case, submissions before ld. Assessing Officer and ld. CIT(A), statement of facts and grounds of appeal in 1st appeal may be treated as part of these grounds of appeal. 5. Because on facts and in circumstances of the case, impugned order is bad in law....
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.... 2.18 lac was out of cash available with the assessee and even after this cash deposit in bank, the assessee was showing cash balance in the balance sheet at Rs. 7,97,140.50. He further submitted that the said balance sheet of the assessee is available on page No. 12 of the paper book. He also submitted that on page NO. 17 of the paper book is the detail regarding cash deposited in bank of Rs. 218,000/-. He also submitted that on pages 13 & 14 is a chart showing availability of cash on the date of deposit of cash in bank during financial year 2005-06. He submitted that considering all these facts, the addition is not justified. 53. Learned D. R. of the Revenue supported the orders of the authorities below. 54. We have considered the rival submissions. We find that as per the details available on page No. 17 of the paper book, an amount of Rs. 40,000/- was deposited in ICICI bank on 13/06/2007 and another amount of Rs. 19,000/- was deposited in bank on 14/06/2007 and total amount deposited in June was Rs. 59,000/-. As per the chart, showing availability of cash in June 2007, the assessee is showing opening cash balance of Rs. 4.15 lac and closing cash balance of Rs. 3.99 lac after....