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2022 (10) TMI 603 - ITAT JAIPURPenalty u/s 271(1)(c) - defective Notice u/s 274 - non striking off the irrelevant portion of the printed show cause notice - HELD THAT:- On conjoint reading of the provision of law for levy of penalty and the definition of undisclosed income and the facts as narrated here in above that AO has not proved that whether the advance in question are in fact taken or given by the assessee or Mr. Anand Singhal. Not only that the revenue has not done any exercise to confirm with Shri Subhas Ji that whether the money in question is related to the person named in or not? Since, the assets being the advances itself is not tested and statement recorded at the time search where in the assessee has categorically submitted that the money in fact taken and not given and the same is not pertain to the assessee. In the assessment proceeding this very basic fact is not establish and in the absence of this fact being not confirmed we are of the considered view that in light of these facts being not clear the levy of the penalty under section 271(1)(c) is not justified on the addition and therefore, the same is required to be deleted. Surrender made after the conceled income was detected by the department cannot be held to be voluntary or bonafide but under compulsion - As in the case of S.P.Goel vs DCIT [2002 (4) TMI 952 - ITAT MUMBAI] “Mere entry on a loose sheet of paper does not indicate undisclosed income unless circumstantial evidence in the form of extra cash, jewellery or investment outside books is found”, in the case of Ashwini Kumar [1991 (8) TMI 142 - ITAT DELHI-D]“ In the case of dumb document, revenue should collect necessary evidence that the figures represent incomes earned by the assessee.” In the case of JCIT vs West Bengal Trading Agency, [2004 (1) TMI 303 - ITAT CALCUTTA-B]. “There has to be direct or circumstantial material to establish that the intention expressed in the seized document/books has actually been implemented and in the case of P.R.Patel [2000 (5) TMI 1070 - ITAT MUMBAI] “No addition can be made on the basis of a seized documents which do not bear the name of assessee.” Based on judicial precedent and the detailed discussion made here in above the penalty levied on the sustained addition is deleted and in terms of these observations ground raised by the assessee is allowed.
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