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3. On appeal before the Learned Commissioner of Income Tax(Appeals), it was contended that confirmation of Mrs. Sabina A. Kapadia as well as acknowledgment of her return of income were submitted at the time of assessment proceedings. In respect of others also, the confirmations were filed and the mere fact that the assessee could not produce the creditors, it cannot be said that the assessee has concealed the particulars of income. In the impugned order, the Learned Commissioner of Income Tax(Appeals) relying on the recent judgment of the Hon'ble Supreme Court in the case of Dharmendra Textile Processors reported in 295 ITR 244 confirmed the penalty. In the assessment year 1991-92, on identical facts, the penalty of Rs.61,624/- was levied and in the impugned order, the Learned Commissioner of Income Tax(Appeals) confirmed the same following the judgment of the Hon'ble Supreme Court in the case of Dharmendra Textile Processors (supra). In that year, the loan was taken from two persons, whose confirmations were filed, but the assessee could not produce the creditors before the A.O. For this addition of Rs.1,60,980/-, before the A.O., the assessee explained that Shri Sabbirbhai Patel from whom the loan of Rs.1,05,000/- was taken, who is an agriculturist having agriculture land admeasuring 14 hectors. In support of this, the extract of 7/12 and Village Jogwad's Tal. Chikhli Talati's Certificate of crops was submitted. It was also explained that confirmation of Shri Sabbirbhai Patel was also furnished. The identity, genuineness as well as creditworthiness of the creditor was furnished. The addition in respect of two creditors amounting to Rs.1,60,980/- was confirmed up to Tribunal.

5. On the other hand, the ld. Departmental Representative, Shri Sanjay Rai vehemently contended that the assessee did not discharge his onus in proving the cash credit at the time of original assessment. The assessee could not produce the creditors. The addition made under section 68 is confirmed up to Tribunal. Therefore, in view of the recent judgment of the Hon'ble Supreme Court in the case of Union of India & Others -vs.- Dharmendra Textile Processors & Ors. (2008) 295 ITR 244 (SC), the penalty under section 271(1)(c) has rightly been confirmed by the Learned Commissioner of Income Tax(Appeals). Therefore, the order of Learned Commissioner of Income Tax(Appeals) in this regard be upheld.

Dharmendra Textile Processors and Ors. (2008) 295 ITR 244(SC), relied on by the learned DR. The said decision, in our opinion. does not assist the stand of the Revenue as the assessee before us has not raised any contention regarding mens rea. Further, in the said case mailer as lo whether provision containing imposition of mandatory penalty on persons who evade payment of tax, should be read to contain mens rea as an essential requirement, has been referred to a larger Bench of the Supreme Court in view of the conflict of opinion in the judgments of the Division Benches of the Supreme Court in Dilip N. Shroff -v.- Joint CIT [2007] 291 ITR 519 and Chairman. SEB1 v. Shriram Mutual Fund 12006] 131 Comp Cas 591; [2006] 5 SCC 361. We have also gone through the decision in the case of National textiles v. CIT [2001] 249 ITR 125 (Guj.). wherein Hon'ble jurisdictional High Court has observed as under :