TaxTMI 
TaxTMI 
2015 (4) TMI 757
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.... been accepted by the ITO cannot lead to addition as unexplained credit under section 68 of the Act so as to enable the ITO to levy concealment penalty under section 271(1)(c)." 2. At the outset it may be mentioned here that Ld. CIT(A) has given substantial relief to the assessee, therefore, it was considered necessary to enquire from the Department that whether or not any appeal has been filed by the Revenue against impugned order passed by Ld. CIT(A). Upon such enquiry it has been mentioned by Ld. DR that Department did not file any appeal against impugned order passed by Ld. CIT(A). It is under these circumstances, we proceed to decide the present appeal. The letter submitted by Ld. DR is placed on our record, in which he has stated that as per telephonic conversation with the AO he has informed that no appeal has been filed by the Department against impugned order passed by Ld. CIT(A). 3. The impugned penalty was levied on two additions aggregating to Rs. 1,37,26,052/- (Rs.16,44,426/- as school fee of the children and Rs. 1,20,81,606/- being amount received from producers as advance). The subject matter of present appeal is addition on account of school fee, as on other a....
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....arrange to pay the school fees of my grand children, Jai Shroff and Krishna Shroff for the year 2004-05. Yours truly, Mrs. Claude M. Grout 16. On a careful consideration of the above confirmation, we find that it does not even mention the amount which has been paid by Mrs. Claude M. Grout nor she has given any details of her bank account , further , the mode of payments has also not been mentioned . Even the assessee has not filed any other corroborative evidence to substantiate his claim that the payment of school fees has been made by his mother-in-law. Even before us the assessee could not supply the copy of the bank statements from which the amount has been transmitted to India. But the fact is that payment Of Rs. 1644426.00 has been made to the School therefore it is on the assessee to explain the sources from which the payments have been made. Considering the facts in totality, in our humble opinion, the assessee has failed to discharge the onus cast upon him. We do not find any reason to interfere with the findings of the Ld. CIT(A) therefore addition of Rs. 16,44,426/- is confirmed. This ground of the assessee is dismissed. As the person is the same from whom the s....
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....to pay the same for the relevant assessment year. A copy of her confirmation and passport in support of the same is enclosed herewith for your record." 3.4 It was submitted that mother-in-law of the assessee is non-resident and her confirmation and copy of passport was also submitted. As assessee could not submit bank account of his mother-in-law the addition was made. It was further submitted by Ld. AR that since question of law has been admitted by Hon'ble Bombay High Court, the issue of levy of concealment penalty would become debatable as per decision of Tribunal in the case of Nayan Builders and Developers Pvt. Ltd. vs. ITO order dated 18/3/2011 in ITA No.2379/Mum/2009, copy of this order is also filed and at page 18 to 20 of the paper book. It was further submitted by Ld. AR that the said order of the Tribunal has been confirmed by Hon'ble Bombay High Court in the case of CIT vs. Nayan Builders & Developers vide order dated 8/7/2014 passed in IT Appeal 415 of 2012, copy of this order is field at pages 16 to 17 of the paper book. Thus, it was pleaded by Ld. AR that it is a case where levy of penalty cannot be held to be justified. 4. On the other hand, it was submitted b....
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....uced. Observation of Tribunal in the case of M/s.Nayan Builders & Developers vs. ITO: "3. It is, therefore, abundantly clear that the additions in respect of which penalty was confirmed have been accepted by the Hon'ble Bombay High Court leading to substantial question of law. When the High Court admits substantial question of law on an addition, it becomes apparent that the addition is certainly debatable. In such circumstances penalty cannot be levied u/s. 271(1)(c) as has been held in several cases including Rupam Mercantile Vs. DCIT (2004) 91 ITD 237 (Ahd) (tm) and Smt. Raila Ratilal Shah vs. ACIT [1998] 60 TTJ (Ahd) 171. The admission of substantial question of Law by the Hon'ble High Court lend credence to the bona fides of the assessee in claiming deduction. Once it turns out that the claim of the assessee could have been considered for the deduction as per a person properly instructed in law and is not completely debarred at all, the mere fact of confirmation of disallowance would not per se lead to the imposition of penalty. Since the additions, in respect of which penalty has been upheld in the present proceedings, have been held by the Hon'ble High Court to b....