TMI Blog2012 (11) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had also again and again reiterated before the revenue that he had enough holding of gold due to the disclosure made in VDIS Scheme in the year 1997. As from the facts of the case it is apparent that no gold was found at the time of search and the entire episode revolves round the existence of gold based on certain documents found at the time of search, thus as decided in COMMISSIONER OF INCOME-TAX Versus RAVI KUMAR [2007 (7) TMI 45 - HIGH COURT, PUNJAB AND HARYANA] that though addition could be sustained based on certain documents found during the course of search, penalty cannot survive unless and until some more cogent evidence of concealment of income is revealed - in favour of assessee. - ITA No. 1374/Ahd/2010 - - - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s carefully appreciated and not found to be forceful and convincing hence not accepted. In view of the facts and circumstances mentioned above and the Ld. CIT(A) has upheld the decision of the AO and confirmed the addition made by him on the above mentioned issue. The assessee has failed to discharge prima facie onus casted upon him but the assessee has failed to give the evidences at the time of assessment proceedings, appellate stages and also at the time of finalizing penalty proceedings to justify his claim. The assessee reiterated the same issue which were narrated earlier proceedings which were rejected by the then AO and CIT(A). Hence the amount of Rs.15,00,000/- remains unexplained in the hands of the assessee. 7. Further, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned AO by observing as under:- 6. I have carefully considered both the positions. The explanation provided by the Assessee and the AR both before the AO in asst. proceedings as also in penalty proceedings have already been dealt with by the CIT(II), Ahmedabad in his order dtd. 15.02.2008 in appeal No.CIT(A)-II/CC.1/556/2006- 07Thus, a clear finding has been given that there was no link between the disclosure made under VDIS,1997 and the investment in jewellery detected in course of the search of the Assessee s premises. The disclosure made under the VDIS, was in respect of construction activity and nothing to do investment in jewellery. The explanation that the source of investment was the withdrawals from the partnership firms was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The documents found represent the assessee s investment in ornaments. The assessee in his statement has made a disclosure for this investment and therefore the CIT(A) has confirmed the addition and our interference is not called for. 6.1 6.2 6.3 Given such facts and circumstances of the case as discussed above in considerable detail, it is held that the AO was fully justified in taking the view that the Assessee had furnished inaccurate particulars of income and had thereby concealed income to the extent of Rs.15 lacs. The penalty of Rs.4,50,000 levied under the provisions of sec. 271 (1) (c) r. w. the Explanation -1 below the said section, is confirmed. 6. The learned AR reiterated his submissions made before the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a detailed retracting affidavit, then it is a duty of the A. O. to make a further and deep inquiry. It is also held by the Supreme Court in the case of Pullangode Rubber Produce Company Ltd. vs. State of Kerala (91 ITR 18) that it is open to the assessee who made the admission to show that it was incorrect and it is the assessee who can prove that the admission made by him previously is in fact not correct and true. 6.1 The learned AR further submitted that in the present case the assessee had agreed for the alleged unexplained investment of Rs.15 lacs in ornaments initially at the time of search on 18-01-2005, but immediately retracted by filing an affidavit on the very next day i.e. on 19-01-2005. No jewelry was found at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arthed certain documents to establish that the assessee had made investment of Rs.15 lacs in gold. At the time of search initially the assessee had agreed for such investment made which was not from accounted income of the assessee, however, the assessee had retracted from his statement subsequently. The learned CIT(A) confirmed the order of the learned AO for the reason that the assessee had failed to discharge the prima facie onus cast upon him to establish that he had not made such investment outside his books of accounts. The assessee had also again and again reiterated before the revenue that he had enough holding of gold due to the disclosure made in VDIS Scheme in the year 1997. Further, from the facts of the case it is apparent that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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