ASST CIT CIR 19(2), MUMBAI vs. MUKESH V. PANJWANI, MUMBAI

अऩीराथी की ओय से / Assessee by : Shri Prakash Jhunjunwala and Shri Rajkumar Jaju प्रत्मथी की ओय से/Revenue by : Shri Suman Kumar सुनवाई की तायीख /Date of Hearing : 17.1.2017 घोषणा की तायीख /Date of : 12.4.2017 Pronouncement आदेश / O R D E R PER RAJESH KUMAR, A. M: These cross-appeals filed by the respective parties against the order dated 27.07.2013 passed by the ld.CIT(A)-30, for the assessment year 2009-10.

taken by the assessee are as under : “Being aggrieved against the order of Commissioner of Income Tax(A), Mumbai, this appeal petition is being filed to consider the following Grounds of Appeal, which are independent and without prejudice to each other:

1. On the facts and circumstances of the case and in law the Learned CIT(A)erred confirming penalty u/s.271 (1 )(c) of the Act of Rs.9,OB,246/- though the appellant had voluntarily declared the income and therefore, provisions were not applicable.

2. On the facts and circumstances of the case and in law the Learned CIT(A)erred in confirming penalty u/s.271 (1)(c) of the Act and not appreciating the reasonable cause and without appreciating full facts of the case.

3. Without prejudice to above, it may be stated that all material facts were truly and fully disclosed and therefore there is no non- disclosure or untrue disclosure of the facts. In view these facts no penalty can be levied u/s. 271 (1 )(c) of the act.

4. The appellant craves leave to add, amend, modify, substitute and / or cancel any of the ground of the appeal. “

is against the confirmation of penalty of Rs.9,08,246/- as levied by the AO under section 271(1)( c ) of the Income Tax Act, 1961 by ignoring the fact that the appellant voluntarily declared the income on its own.

7. Brief facts of the case are that the return of income was filed by the assessee on 30.9.2008 declaring a total income of Rs.1,30,22,679/-. Thereafter the assessment was framed under section 143(3) of the Act vide order dated 20.12.2010 assessing the total income at Rs.1,58,69,410/-. The AO on the basis of AIR information received found that the assessee has deposited a cash of Rs.25,32,000/- with Rupee Co-op Bank Ltd and accordingly issued show cause notice dated 30.11.2010 calling upon the assessee to show cause as to why the same should not be added to the total income of the assessee as unexplained cash credit. Thereafter and amount of Rs.28,42,098/- was added to the total income of the assessee on account of cash deposit and Rs.40,005/- on account of saving bank interest and vide order dated 20.12.2012 passed order under section 143(3) of the Act. Thereafter the penalty was levied on the amount of Rs.16 lakhs u/s 271(1)( c ) vide order dated 23.6.2011 passed under section 271(1)(c) of the Act. In the appellate proceedings, the ld.CIT(A) upheld the penalty imposed by the AO. However, he noticed that the an amount of Rs.16 lakhs penalty worked out to be 176% of the tax sought to be evaded and he accordingly restricted the penalty to Rs.9,08,246/- being 100% of the tax sought to be evaded and thus, the penalty was sustained to the extent of Rs.9,08,246/- and the balance of Rs.6,91,417/- was deletd.

8. At the outset, the ld.Counsel of the assessee submitted before us that the issue is now squarely covered in favour of the assessee and against the revenue by the decision of Co-ordinate Bench of the Tribunal in the case of assessee’s wife Smt.Karishmna M Panjwani V/s ACIT in (AY-2008-09) dated 16.9.2016 under identical facts. The ld. AR prayed that in view of the above said decision of the Tribunal the appeal of the assessee be allowed and the penalty levied by the AO and also confirmed by the ld. CIT(A) be deleted.

9. On the other hand, the ld.DR very fairly agreed to the submissions of the ld.AR. 10. We have heard both the parties, perused the material placed before us and the case law relied upon by the ld.AR. On perusal of the decision of the Co-ordinate Bench of the Tribunal in assessee’s wife case, we find that the facts and circumstances of the case in hand and relied upon by the assessee are same, for the sake of clarity we reproduce the operative part of the tribunal order as under : “8. However, we find merit in the contentions of the assessee that the assessee has agreed to offer entire deposits as her income in order to buy peace from the revenue. We notice that the assessee has offered income from house property to the tune of Rs.36.91 lakhs. The assessee did not put forth a claim for telescoping the deposits with the income declared by her in the current year and in the earlier years and also with the withdrawals made from the bankaccount. This action of the assessee shows the bonafides of the assessee that it was an inadvertent mistake and the offer was made to buy peace from the revenue. It is well settled proposition of law that all receipts shall not constitute income. 9. We notice that the Ld CIT(A) has confirmed the penalty only on the reasoning that the offer was not voluntary, but the offer was made only after issuing show cause notice. We have held that the bonafides of the assessee cannot be doubted with upon considering the conduct of the assessee. We also notice that the explanation of the assessee has not been found to be false and at the same time, the assessee has furnished all facts relating to the bank account and material to the computation of his income, when called for by the AO. Even though the triggering point for offering the income may be the show cause notice issued by the AO, yet we are of the view that under Explanation 1 to sec. 271(1)(c) of the Act, the assessee cannot be deemed to have concealed the particulars of income.”