TaxTMI 
TaxTMI 
2015 (7) TMI 651
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.... evidences on record to prove the identify of the share applicants. 4. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in ignoring the contention of the appellant that no penalty is leviable as the appellant has disclosed all facts in the return filed by the appellant and as such there is neither concealment nor furnishing inaccurate particulars of income. 5. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the levy of penalty is untenable as no finding has been given on merit regarding concealment in the penalty order passed by the AO. 6. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in confirming the order imposing penalty u/s 271(1)(c) despite the fact that the appellant has submitted explanation in support of its contention that there is neither concealment nor furnishing of inaccurate particulars of income. 7. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in rejecting the contention of the appellant th....
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.... cognizance of the fact that out of the addition of Rs. 25,50,000/- made by the AO the CIT(A) in the quantum proceedings had deleted the addition of Rs. 3 lakhs as a result the addition surviving was only Rs. 22,50,000/-. However, while upholding the penalty order necessary relief qua this fact was not considered. Apart from that the addition of Rs. 1,80,692/- it was submitted was set aside by the ITAT in the quantum proceedings. Accordingly in view of these facts the penalty order should be quashed. In the facts of the present case it was argued simply because the explanation of the assessee has not been accepted in the quantum proceedings, it cannot be said to amounting to concealment having been made out. It was submitted that the penalty proceedings and the assessment proceedings are separate and distinct and the issue is well settled in law. Accordingly the explanation offered in the penalty proceedings should have been independently considered by the Revenue. In the facts of the present case it was submitted that the penalty proceedings have been sustained not on the basis of any defect in the books of accounts but for not producing the books of account at the appropriate tim....
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....vastava, Shri Moolchand Nirmal and Shri Yogesh Saxena. The summons issued to Shri Amit Gupta and Shri Surender Kumar Srivastava were returned back with the remark incomplete address and no such persons respectively. Further, in response to the summons issued to Shri Moolchand Nirmal and Shri Yogesh Saxena both appeared on dated 05.12.2006 and 29.01.2007 respectively and their statements were recorded by the AO. They denied investing any amount in the assessee company. However, in the meantime, the assessee vide his reply dated 02.02.2007, requested the AO to issue notice u/s 131 of the Act to the shareholders to secure their attendance. Further, the AO made enquiries and come to the conclusion that the share application money received from an account maintained in the name of Mr. Agarwal with ABN Amro Bank, Barakhamba Road, New Delhi. The AO on 28.02.2007 issued a show cause notice along with the statements of Sh. Moolchand Nirmal and Shri Yogesh Saxena to the assessee, which was replied by the assessee on 30.04.2007 where confirmations, receipt of filing income tax returns, affidavits were filed. Not satisfied with the aforesaid replies/documents, the AO made an addition of Rs. 25....
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....ee Authorities below. Faced with these findings, the only contention which could be raised by the ld. Counsel for the appellant was that Shri Moolchand Nirmal and Mr. Yogesh Saxena were not allowed to be cross examined by the appellant even when specific opportunities were sought for. We may note that the Tribunal in the impugned judgment had categorically observed that no such cross examination was sought for by the assessee and the ld. Counsel for the assessee argued that this was factually wrong observations, as vide communication dated 2.2.2007, the assessee had made a specific request for summoning the investors u/s 131 of the Act. 7. In view of the aforesaid submissions, we had called for the original records vide our orders dated 3.8.2011. Those records have been produced and we have gone through the same. From the order sheet recorded by the AO on various dates, we find that the assessee was specifically told about the statement of two persons, but he never asked for fresh cross examination. When we go through the communication dated 2.2.2007 along with the order sheet and read the said communication in that perspective, we find that there was no such specific requ....