Sri Joy Barman Vs. ITO (ITAT Kolkata)
From the foregoing discussion we note that the addition has been made by the AO on account of unexplained money and cessation of liability on basis of lack of evidence. Though the assessee’s explanation in respect of the credit card transactions and cessation of liability in the absence of sufficient proof was not accepted, that would not mean that the assessee made any deliberate attempt towards concealment of particulars of income. Mere sustaining of addition on the basis of entries in the credit card account would not warrant a conclusion that the assessee had concealed certain particulars of income. It was lack of sufficient evidence for which the addition was sustained in part. We are of the considered opinion that this is not a fit case for levy of penalty u/s 271(1)(c) of the Act, we therefore, set aside the order of Ld. CIT(A) and direct the Assessing Officer to delete the penalty.
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
The above two captioned appeals are pertaining to the same assessee for assessment years 2008-09 & 2009-10. Since these appeals belong to the same assessee, therefore these have been clubbed together. Accordingly these were heard together and consolidated order is being passed for the sake of convenience and brevity against the different orders of Commissioner of Income Tax (Appeals)-13, Kolkata vide dated 31.12.2015 & 30.12.2015 for the AY 2008-09 & 2009-10 respectively. Assessment was framed for the AY 2009-10 by the ITO Ward-42(3), Kolkata u/s 143(3)/147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 21.12.2010.
Penalty was levied for the AY 2008-09 by Assessing Officer vide his order dated 27.06.2011 u/s 271(1)(c) of the Act.
Shri T.P. Kar, Ld. Authorized Representative appeared on behalf of assessee and Shri Arindam Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue.
First we decide to proceed to adjudicate assessee’s appeal in ITA No. 600/Kol/2016 for A.Y. 2009-10.
2. The solitary issue raised by assessee in this appeal is that Ld. CIT(A) erred in confirming the order of Assessing Officer by treating the cash deposit in the bank as undisclosed income of assessee.
3. Briefly, stated facts are that assessee in the present case is an individual and engaged in distributorship business of herbal cosmetic items of different companies under the name as M/s New Enterprise. During the course of assessment proceedings, AO observed that the assessee failed to disclose certain bank accounts in his income tax return where there were certain cash deposits in those bank accounts. The necessary details of the bank accounts as well as details of cash deposits stand as under:-
