1 ITA 614-09 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 614/JODH/2009 ASSTT. YEAR : 2005-06. SHRI GOPAL BIRLA, VS. THE INCOME-TAX OFFICER, PROP. M/S. BIRLA TRADING CORPORATION, WARD-1, NASIR BAZAR, MERTA CITY. NAGAUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.C. PARWAL & SHRI VARUN BANSAL RESPONDENT BY : SHRI MAHESH KUMAR DATE OF HEARING : 01.12.2011 DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09/12/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST CONFIRMING L EVY OF PENALTY UNDER SECTION 271(1)(C) AT RS. 2,32,352/- RELATING TO ASSESSMENT YEAR 2005-06. 2. AN ADDITION OF RS. 5,79,154/- WAS MADE REPRESENT ING ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS. THIS ADDITION WAS SUSTAI NED UPTO THE STAGE OF TRIBUNAL. THEREAFTER, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND LEVIED A PENALTY @ 130%. THE LD. CIT (A) HAS CONFIRMED THE LEVY OF PE NALTY. 2 3. THE LD. COUNSEL OF THE ASSESSEE HAS FILED WRITTE N SUBMISSION ALONG WITH APPLICATION FOR ADMITTING ADDITIONAL EVIDENCES WHIC H ARE IN CASE OF CONFIRMATION FROM 18 CREDITORS, COPY OF ACCOUNT STATEMENT OF ANOTHER CRE DITOR AND AFFIDAVIT OF THE ADVOCATE SHRI GAUTAM DHARIWAL WHO REPRESENTED THE CASE BEFOR E LD. CIT (A). 4. ON THE OTHER HAND, THE LD. D/R HAS STATED THAT A DDITION HAS BEEN AFFIRMED UPTO THE STAGE OF TRIBUNAL AND, THEREFORE, THE ASSESSING OFF ICER AND LD. CIT (A) WERE JUSTIFIED IN LEVYING AND UPHOLDING THE PENALTY. 5. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THIS MATTER SHOULD BE SENT BACK TO TH E FILE OF ASSESSING OFFICER TO CONSIDER THE ADDITIONAL EVIDENCES FILED HERE BEFORE THE TRIB UNAL. IT IS A MATTER OF FACT THAT THESE VERY ADDITIONAL EVIDENCES WERE FILED BEFORE THE TRI BUNAL IN QUANTUM PROCEEDINGS ALSO. HOWEVER, THEY WERE NOT CONSIDERED. ASSESSMENT PROC EEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT AND, THEREFORE, IF ANY MA TERIAL HAS COME ON RECORD THAT HAS TO BE CONSIDERED. THE ADDITION ON ACCOUNT OF CASH CREDIT ORS WAS SUSTAINED AS ASSESSEE COULD NOT FILE THE CONFIRMATION. HOWEVER, THEY WERE GENU INE CASH CREDITORS. NOW ASSESSEE HAS OBTAINED THE CONFIRMATION ALSO AND IT WAS STATED TH AT SOME OF THE AMOUNT HAS BEEN REPAID ALSO. THEREFORE, PENALTY SHOULD NOT HAVE BEEN LEVIE D. IF THESE FACTS ARE CORRECT THAT THE CREDITOR HAS CONFIRMED THE LOAN AMOUNT AND CERTAIN AMOUNT HAS BEEN RETURNED ALSO, THEN IN OUR CONSIDERED VIEW PENALTY UNDER SECTION 271(1) (C) CANNOT BE LEVIED. THEREFORE, TO ASCERTAIN THIS FACTUAL ASPECT AND TO MEET THE ENDS OF JUSTICE, WE RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR RE-EXAMINING THE MATT ER AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09. 12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SHRI GOPAL BIRLA, MERTA CITY. THE ITO WARD-1, NAGAUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 614/JODH/2009) BY ORDER, AR ITAT JODHPUR.