YOGESH R. METHA, MUMBAI V. ITO 6(3)(1), MUMBAI

ITA 533/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7871 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence; Question of law; Wrong claim; Reason to believe
• Section: 143(3); 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D.T.GARASIA , JM AND SHRI RAJESH KUMAR, AM I.T.A. NO. 53 3 /MUM/20 1 5 ( / ASSESSMENT YEAR : 2 006 - 07 ) YOGESH R MEHTA, 11, NARENDRA ESTATE , OPP KAMGAR NAGAR STATIUM, SENAPATI BAPAT ROAD, DADAR(W), MUMBAI - 400028. / VS. INCOME TAX OFFICER - 6(3)(1), ERSTWHILE ITO - 6(2)(4), AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ./ PAN : AAGPM6712M ( / APPELLANT) : ( / RESPONDENT ) / ASSESSEE BY : SHRI DHAVAL SHAH / REVENUE BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 21.9. 2017 / DATE OF PRONOUNCEMENT : 27.12. 201 7 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS APPEAL, THE ASSESSEE IS CHALLENGING THE ORDER OF LD.CIT(A) - 1 2 , MUMBAI, DATED 29.10.2014 , WHEREIN THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF PENALTY OF RS.6,01,369/ - LEVIED UNDER SECTION 271(1)(C) OF THE IN COME TAX ACT, 1061 . 2. FACTS OF THE CASE ARE THAT THE ASSESSMENT ORDER UNDER SECTION 143(3) WAS PASSED ON 24.11.2008 ASSESSING THE INCOME AT RS.56,17,690/ - BY MAKING VARIOUS DISALLOWANCES AGAINST THE RETURNED INCOME OF RS.3,91,726/ - . THE 2 I.T.A. NO .533/MUM/2015 QUANTUM ORDER OF ASSESSMENT WAS CHALLENGED BEFORE THE FAA, WHO VIDE ORDER DATED 5.10.2010 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY UPHOLDING THE ADDITION ON ACCOUNT OF HOUSE PROPERTY AND PARTLY IN RESPECT OF CASH CREDIT TO THE TUNE OF RS.17,61,900/ - . THEREAFTER TH E AO ISSUED SHOW CAUSE NOTICE DA T ED 27.9.2011 AND 28.12.2011 WHICH WERE SERVED UPON THE ASSESSEE AND THE ASSESSEE VIDE REPLY DA T ED 17.10.2011 REQUESTED THE AO TO RE - FIX THE HEARING AFTER 25 DAYS. THE ASSESSEE VIDE LETTER DATED 9.1.2012 SUBMITTED AS UNDER : 'YOUR GOODSELF HAS NOW SOUGHT TO LEVY THE PENALTY IN RESPECT OF THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS OF RS.17,61,900/ - . IN THIS REGARD, AT THE OUTSET, WE SUBMIT THAT THE SAID ADDITION ITSELF IS I NCORRECT AND UNJUSTIFIED AND HENCE NO P ENALTY CAN BE LEVIED IN THE PRESENT CASE. IN HIS CASE, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS DEPOSITED CASH AND NOT RECORDED IN THE BOOKS OF ACCOUNTS. IN THIS REGARD, WE SUBMIT THAT THE BANK ACCOUNT WAS REFLECTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AS EVIDENT FROM THE BALANCE SHEET FILED. THE SAID CASH DEPOSITS WERE MAINLY OUT OF CASH RECEIVED AS ADVANCE FOR SALE OF THE RESIDENTIAL PREMISES OF T HE ASSESSEE AT AHMEDABAD. THE ASSESSEE HAD PROPOSED TO SELL THE PREMISES SINCE HE WAS IN D IRE NEED OF FUNDS. IT IS SUBMITTED THAT THE ASSESSEE HAD PROPOSED TO SELL THE PREMISES SITUATED AT 402,C WING, SURYANSHI TOWER, VASTRAPUR. AHMEDABAD TO SHRI JASUBHAL D. GANDHI AND SMT. MADHUKANTA J. GANDHI. ACCORDINGLY, THE ASSESSEE HAD RECEIVED RS.18,62,O OO/ - FROM THE SAID PARTIES AS AN ADVANCE TOWARDS SALE OF THE PREMISES. IT IS SUBMITTED THAT DUE TO CERTAIN PROBLEMS IN THE SALE TRANSACTIONS, THE ASSESSEE COULD NOT SELL THE SAID PREMISES. YET, SINCE THE SAID PARTIES WERE RELATIVES OF THE ASSESSEE, THE ASS ESSEE AGREED THEM TO US THE SAID RESIDENTIAL FLAT FOR THE RESIDENCE PURPOSE OF THE SAID PARTIES AND REQUESTED THEM TO HOLD THE SAID ADVANCE TILL THE SAME ARE REPAID BACK. IN SUPPORT OF THE SAID FACTS, THE ASSESSEE HAD ALSO FILE THE AFFIDAVITS OF THE SAID P ARTIES CONFIRMING THAT THE SAID PARTIES HAD PAID ADVANCE FOR THE PREMISES IN CASH. THE SAID TRANSACTION OF RECEIPT OF 3 I.T.A. NO .533/MUM/2015 CASH AND IMMEDIATE DEPOSIT OF THE SAME IN TH E , BANK ACCOUNT WERE REFLECTED IN THE BOOKS OF ACCOUNTS AS BANKING TRANSACTION AND HENCE WER E ACCOUNTED ACCORDINGLY. IN FACT, WE SUBMIT THAT THE ASSESSEE HAS ALSO EXPLAINED THE SOURCE' THE CASH PAID BY THE SAID PARTIES IN ORDER TO ESTABLISH THAT THE CASH WAS GENUINE AND EXPLAINED IT WAS ALSO ESTABLISHED BEFORE THE ASSESSING OFFICER THAT THE CASH WA S PAID TO THE ASSES SEE BY THE SAID PARTIES OUT OF THE SALE OF JEWELLERY IN CASH TO THE JEWELER. IN ORDER TO JUSTIFY THE S AID AVERMENTS, THE ASSESSEE HAD ALSO FILED THE FOLLOWING ADDITIONAL EVIDENCES: A) THE AFFIDAVITS OF SHRI JASUBHAL D. GANDHI AND SMT. MADHUKANTA J. GANDHI CONFIRMING FACT THAT THEY HAVE PAID CASH TO THE TUNE OF RS.18,62,OOO/ - . B) THE INVOICE OF M/S PRERAK GEMS EVIDENCING THE SALE OF JEWELLERY BY SHR I JASUBHAI D. GA NDHI AND SMT. MADHUKANTA J. GANDHI. C) CONFIRMATION LETTER FROM THE J EWELER THAT THEY HAVE PURCHASED THE J EWELLERY. HOWEVER , THE SAID SUBMISSIONS WERE NOT FOUND SATISFACTORY TO THE AO AS WELL AS THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) AND HENCE THE SAID A DDITION WAS CONFIRMED BY THEM 3. HOWEVER, THE AO REJEC TED THE CONTENTION OF T HE AS S ESS E E BY OBSERVING THAT THE LD. CIT(A) HAS CALLED FOR REMAND REPORT AND ON THIS BASIS CONFIRMED THE ADDITION OF RS. 24,702/ - UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND PARTLY CONFIRMED THE UNEXPLAINED CASH CREDIT OF RS.17,6 1,900/ - . THE AO ALSO REJECTED THE CONTENTION OF THE ASSESSEE THAT THE SAID AMOUNT WAS RECEIVED FROM IN - LAWS I.E. FATHER - IN - LAW, MOTHER IN - LAW, WHO RAISED BY SELLING OF PERSONAL JEWELLERY TO M/S PRERAK GEMS BUT DURING THE REMAND REPORT PROCEEDINGS, ON AO S INQUIRY WITH M/S PRERAK GEMS WHO FIRST DENYING ANY SUCH TRANSACTIONS WITH THE ASSESSEES IN - LAWS SUBSEQUENTLY CONFIRMED ON 4 I.T.A. NO .533/MUM/2015 3.12.2009 STATING THAT AFTER EXAMINATION OF RECORD MINU TELY IT WAS FOUND THAT THE IT PURCHASED JEWELLERY FROM THESE PARTIES. THE AO ALLEGED THAT M/S PRERAK GEMS MADE TWO CONTRARY STATEMENT S . THEREFORE , THE AO WAS OF THE VIEW THE ASSESSEE EVADED TAX AND ACCORDINGLY IMPOSED PENALTY OF RS.6,01,369/ - 100% OF THE TAX SOUGHT TO BE EVADED. IN THE APPELLATE PROCEEDINGS, THE LD.CIT (A) CONFIRMED THE ACTION OF THE AO BY OBSERVING AS UNDER : 5.2 IN LIGHT OF THE ABOVE FACTS, THERE REMAINS NO DOUBT THAT THE EXPLANATION SO FURNISHED BY THE APPELLANT IS PATENTLY FALSE AND WRONG. IF ALL THESE FACTS ARE CONSIDERED AND VIEWED TOGETHER, IT IMMENSELY TRANSPIRES THAT IT THE APPELLANT HAD INTRODUCED HIS UNACCOUNTED AND UNDISCLOSED INCOME UNDER THE GARB OF CASH DEPOSITS IN BANK ACCOUNT AND WHICH THE APPELLANT COULD NOT EXPLAIN. ON THE CONTRARY, IT IS A CASE OF EX FACIE UNDISCLOSED INCOME OF T HE APPELLANT. IT IS ESTABLISHED THAT THE APPELLANT HAD CONCEALED HIS INCOME CHARGEABLE TO TAX AND ALSO CONCEALED THE PARTICULARS OF SUCH INCOME. THEREFORE, LEVY OF PENALTY CANNOT BE CONSIDERED IMPROPER. IT IS WELL ESTABLISHED FACT THAT THE DEPARTMENT SCRUT INIZES CASES AT MINIMAL AND DOES NOT EXCEED 2 % OF TOTAL RETURNS. IN OTHER WORDS, MORE THAN 98 % RETURNS ARE ACCEPTED AS SUCH REPOSING CONFIDENCE ON TRUTHFULNESS OF THE ASSESSEE. HAD THE CASE NOT BEEN SELECTED FOR SCRUTINY, SUCH TYPE OF APPARENT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF SUCH INCOME COULD NOT HAVE BEEN UNEARTHED. ONE HAS TO APPRECIATE THAT EVEN AFTER SELECTION OF CASE FOR SCRUTINY, DETECTION OF SUCH WRONGFUL CLAIMS WITHIN THE LIMITED PERIOD ALONG WITH OTHER CASES TO BE SCR UTINIZED, IS NOT AN EASY TASK. IF PENALTY IS NOT LEVIED IN SUCH CIRCUMSTANCES, THE DETERRENT EFFECT OF THE PROVISIONS OF PENALTY WOULD BE OF NO CONSEQUENCE. NON - LEVY OF PENALTY U/S.271(1) WOULD GIVE LICENSE TO UNSCRUPULOUS A SSESSEES TO MAKE WHOLLY UNTENAB LE AND UN - SUSTAINABLE CLAIMS IN THE HOPE THAT THEIR RETURN WOULD NOT BE PICKED UP FOR SCRUTINY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF ASSESSMENT U/S.143(1) AND EVEN IF THEIR CASE IS SELECTED FOR SCRUTINY, THEY CAN GET AWAY MERELY BY PAYING DUE TAX , WHICH, IN ANY CASE, WAS PAYABLE BY THEM. THE CONSEQUENCE WOULD BE THAT THE PERSONS, WHO MAKE CLAIMS OF SUCH NATURE, ACTUATED BY MALA FIDE INTENTION TO EVADE TAX OTHERWISE PAYABLE BY THEM, WOULD GET AWAY 5 I.T.A. NO .533/MUM/2015 WITHOUT PAYING THE TAX LEGALLY PAYABLE BY THEM IF T HEIR CASES ARE NOT PICKED UP FOR SCRUTINY AND SUCH WRONG CLAIMS ARE NOT DETECTED BY THE ASSESSING OFFICERS. IN SUCH C IRCUMSTANCES, THE LEVY OF PENALTY IS PERFECTLY IN ORDER. EVEN OTHERWISE, IT HAS BEEN WELL SETTLED THAT PENALTY FOR TAX DELINQUENCY IS FOR A CIVIL WRONG AND MEANT FOR SAFEGUARDING THE LOSS OF REVENUE AND, THEREFORE, IT HAS TO BE LEVIED IN APPROPRIATE CASES. THE AO WAS QUITE LIBERAL IN LEVYING MINIMUM PENALTY @100% IN CASE OF SUCH A PATENTLY FALSE CLAIM. THEREFORE, THERE IS NO REASON TO INTER FERE WITH THE ORDER OF THE AO LEVYING MINIMUM PENALTY 4. THE LD. AR VEHEMENTLY , SUBMITTED BEFORE US THAT THE CONFIRMATION OF PENALTY BY THE LD.CIT(A) IS TOTALLY WRONG AND AGAINST THE FACTS ON RECORD. THE LD. AR SUBMI TT ED THAT THE ASSESSEE RECEIVED MONE Y OF RS.17 , 61 , 900/ - WHICH WAS ALLEGED TO BE UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT RECEIVED FROM IN - LAWS WHO IN TERMS RAISED MONEY BY SELLING THE JEWELLERY TO M/S PRERAK GEMS . THE LD. AR WHILE TAKING US THROUGH THE PAGE NO.63 OF THE PAPER BOOK WH ICH IS A LETTER FILED BY M/S PRERAK GEMS IN RESPONSE TO THE INFORMATION SOUGHT BY THE AO. M/S PRERAK GEMS SUBMITTED THAT AS PER THEIR RECORD, THERE WAS NO TRANSACTION OF PURCHASE OF JEWELL ERY FROM SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA J GANDHI VIDE LETTER DATED 4.11.2009 WHEREAS THEREAFTER ANOTHER LETTER DATED 3.12.2009 BY M/S PRERAK GEMS CONFIRMED THE DEALING WITH THE IN - LAWS OF THE ASSESSEE THAT IT HAS PURCHASED JEWELLERY FROM SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA J GANDHI. THE SAI D PARTIES EXPLAINED AS TO HOW THE MISTAKE HAS HAPPENED AS THE NAME IN THE BOOKS OF ACCOUNTS APPEAR ED AS SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA J GANDHI . THE SAID JEWELERS HAVE SUBMITTED THE PURCHASE BILLS , PURCHASE REGISTER , 6 I.T.A. NO .533/MUM/2015 COPIES OF PROFIT AND LOS S AND INCOME TAX RETURN WHEREIN THESE TRANSACTIONS WERE DULY REFLECTED. THE LD. AR SUBMITTED THAT SINCE THE TRANSACTIONS HAS BEEN CONFIRMED BY THE JEWELER THEREFORE NO PENALTY COULD BE LEVIED ON THAT ACCOUNT. THE LD. AR, IN SUPPORT OF THE CONTENTIONS S UBMITTED RELIED ON THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS TEZPUR ROLLER AND FLOUR MILLS(1976) 103 ITR 259 (GAUHATI) . THE LD. AR SUBMITTED THAT IN VIEW OF THE ABOVE DECISION THE PENALTY NEEDS TO BE STR UCK DOWN AS THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON IT AND PROVED THE CASH CREDIT IN THE BOOKS OF ACCOUNT AND THE BURDEN IS SHIFTED TO REVENUE TO UNPROVE THE CONTENTION OF THE ASSESSEE THAT THE CAS H CREDIT CONSTITUTUED ASSESSEES INCOME 5 . THE LD . DR, ON THE OTHER HAND, RELIED ON THE ORDERS OF AUTHORITIES BELOW BY SUBMITTING THAT THE ORDER OF THE FAA SHOULD BE UPHELD ON THE GROUND THAT THE QUANTUM ADDITION ON ACCOUNT OF CASH CREDIT HAS BEEN CONFIRMED TO THE EXTENT OF RS.17,61,900/ - ON WHICH THE PENALTY WAS RIGHTLY LEVIED BY THE AO. THE LD. CIT(A) CONFIRMED THE ADDITION AFTER RECEIPT OF LETTER S FROM M/S PRERAK GEMS WHICH ARE CONTRA DICTORY FIRST DENYING THE TRANSACTIONS A ND THEREAFTER ACCEPT ING THE TRANSACTIONS AND THEREFORE, THE ENTIRE TRA NSACTIONS ARE SHROUDED WITH MYSTRI ES. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW. THE 7 I.T.A. NO .533/MUM/2015 UNDISPUTED FACTS ARE THAT THE QUANTUM TO THE TUNE OF RS.17,61,900/ - STO OD CONFIRMED BY THE LD. CIT(A) ON THE GROUND IN THE REMAND REPORT FROM THE AO M/S PRERAK GEMS FILED THE CONTRADICTORY LETTERS AND THEREFORE THE TRANSACTIONS CANNOT BE TREATED AS GENUINE, WHEREAS, ON THE OTHER HAND, WE FIND THAT M/S PRERAK GEMS EXPLA INED AS TO HOW THE MISTAKE HAS HAPPENED. THE PERUSAL OF THE LETTER FILED BY M/S PRERAK GEMS , COPY OF WHICH ARE PLACED AT PAGE 63 AND 84, IT IS OBSERVED THAT IN THE LETTER DATED 4.11.2009, THE PARTY DENIED TO HAVE ANY TRANSACTIONS WITH SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA J GANDHI DURING FINANCIAL YEAR 2005 - 06 WHEREAS BY A SUBSEQUENT LETTER DATED 3.12.2009 THE TRANSACTIONS WERE CONFIRMED AFTER ASSESSEE TOOK UP THE MATTER WITH M/S PRERAK GEMS. IT WAS CONFIRMED THAT NAMES WERE WRONGLY WRITTEN I N THE RECORD OF THE JEWELER AS SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA AND REGRETTED THE ERROR AND INCONVENIE NCE CAUSED TO THE ASSESSEE. THE COPY OF T HE BILLS, PURCHASE BILLS, EXTRACT OF PURCHASE REGISTER , C OPY OF PROFIT AND LOSS ACCOUNT AND IT RETU RN WERE FILED WITH THE DEPARTMENT HAVING CONFIRMED THE PURCHASE OF JEWEL LERY FROM SHRI JASUBHAI D GANDHI AND SMT.MADHUKANTA. IN OUR OPINION, THE ACTION OF THE LD.CIT(A) IN CONFIRMING THE PENALTY APPEARS TO BE INCORRECT AS THE ASSESSEE HAS DISCHARGED ONUS CAST UPON IT BY PROVING THE SOURCE OF MONEY FROM HIS IN - LAWS WHICH WAS CONFIRMED BY THE JEWELLERS . IN THE PRESENT CIRCUMSTANCES, WE ARE NOT INCLINED TO AGREE WITH THE CONCLUSION DRAWN BY THE LD.CIT(A) 8 I.T.A. NO .533/MUM/2015 UPHOLDING THE ORDER OF AO . IN THE CASE RELIED UPON BY THE ASSESSEE OF T HE HONBLE GAUHATI HIGH COURT(SUPRA), THE HONBLE HIGH COURT HELD AS UNDER : 11. IN COMMISSIONER OF INCOME - TAX V. KHODAY ESWARSA AND SONS , [1972] 83 ITR 369, 376 (SC) THE SUPREME COU RT AFTER QUOTING FROM ANWAR ALI'S CASE, AS QUOTED HEREIN - ABOVE, HAS OBSERVED AS FOLLOWS : 'FROM THE ABOVE IT IS CLEAR THAT PENALTY PROCEEDINGS BEING PENAL IN CHARACTER, THE DEPARTMENT MUST ESTABLISH THAT THE RECEIPT OF THE AMOUNT IN DISPUTE CONSTITUTES INC OME OF THE ASSESSEE. APART FROM THE FALSITY OF THE EXPLANATION GIVEN BY THE ASSESSEE, THE DEPARTMENT MUST HAVE BEFORE IT BEFORE LEVYING PENALTY COGENT MATERIAL OR EVIDENCE FROM WHICH IT COULD BE INFERRED THAT THE ASSESSEE HAS CONSCIOUSLY CONCEALED THE PART ICULARS OF HIS INCOME OR HAD DELIBERATELY FURNISHED INACCURATE PARTICULARS IN RESPECT OF THE SAME AND THAT THE DISPUTED AMOUNT IS A REVENUE RECEIPT. NO DOUBT THE ORIGINAL ASSESSMENT PROCEEDINGS FOR COMPUTING THE TAX MAY BE A GOOD ITEM OF EVIDENCE IN THE PE NALTY PROCEEDINGS BUT THE PENALTY CANNOT BE LEVIED SOLELY ON THE BASIS OF THE REASONS GIVEN IN THE ORIGINAL ORDER OF ASSESSMENT.' 12. IN THE INSTANT CASE, IT IS FOUND AND THE TRIBUNAL ALSO HAS FOUND THAT, EXCEPT THAT THE EXPLANATION REGARDING THE ENTRY OF A SUM OF RS. 25,000 IN THE BOOKS OF ACCOUNT IN THE NAME OF M/S. KHUBRAM MANSING WAS REJECTED BY THE INCOME - TAX OFFICER, THERE IS NO ADDITIONAL EVIDENCE TO ESTABLISH THAT THE AMOUNT IN QUESTION WAS A REVENUE RECEIPT AND THAT THERE WAS CONSCIOUS CONCEALMENT OF THE PARTICULARS OF THE INCOME OR DELIBERATE FURNISHING OF INACCURATE PARTICULARS IN RESPECT OF THE SUM OF RS. 25,000. IT IS CORRECT, AS OBSERVED BY THE SUPREME COURT, THAT THIS MAY BE A GOOD ITEM OF EVIDENCE IN THE PENALTY PROCEEDINGS BUT THE PENALTY CA NNOT BE LEVIED SOLELY ON THE BASIS OF THE REASON THAT THE ASSESSEE FAILED TO EXPLAIN THE ENTRY IN QUESTION. IN THE INSTANT CASE, THE TRIBUNAL HAS OBSERVED THAT THERE WAS NO FURTHER EVIDENCE TO SUSTAIN THE PENALTY EXCEPT THE REJECTION OF THE EXPLANATION GIV EN BY THE ASSESSEE. THAT BEING SO, AND IN VIEW OF THE CLEAR OBSERVATIONS OF THE SUPREME COURT, AS QUOTED HEREINABOVE, THE PROPOSED QUESTION OF LAW IS CONCLUDED BY FINDING OF FACTS. WE, THEREFORE, FIND THAT NO QUESTION OF LAW AS PROPOSED ARISES OUT OF THE O RDER OF THE TRIBUNAL. 9 I.T.A. NO .533/MUM/2015 7 . FACTS OF THE PRESENT CASE ARE SIMILAR TO THAT OF CASE LAW RELIED UPON BY THE ASSESSEE. THEREFORE, WE HAVE STRONG REASON TO BELIEVE THAT THE ASSESSEE HAS PROVED THE SOURCE OF MONEY AND DEPARTMENT HAS NO MATERIAL TO ESTABLISH THE CA SE AGAINST THE ASSESSEE THAT THE ASSESSEE HAS CONCEALED INCOME AND SUPPRESSED THE FACTS AND ALSO DELIBERATELY FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDINGLY, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO DELETE T H E PENALTY. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ALLOWED . 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 27 TH D EC, 2017. S D SD ( D.T.GARASIA ) ( RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : . 28. 1 2 .2017 SR.PS:SR L: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, IT AT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI