TMI Blog2003 (10) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirming penalty of Rs. 27,890 is in the case of the same assessee and the third order confirming penalty of Rs. 36,837 in the case of Shri I.S. Goyal for assessment year 1995-96 which are both on identical facts and circumstances wherein the ld. CIT(A) followed his decision of assessment year 1995-96 given in the case of Shri Brij Lal Goyal. 3. Both the assessees were searched on4-10-1994by an action under section 132 of the Act. The assessee was maintaining books of account in the regular course of business. The turnover disclosed in such account for assessment year 1995-96, was Rs. 10,23,912. As per seized annexure from the assessee's premises, the Assessing Officer found that the assessee has carried out additional sales of Rs. 53.41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have its account audited under section 44AB of the Act. The said section refers to "total sales, turnover or gross receipt" and "account". It does not allow the assessee to substitute the part of the turnover from total turnover and a part of account from the account. The correct and admitted turnover of the assessee in this case exceeded to Rs. 40 lakhs. He upheld the decision of the Assessing Officer that the appellant was liable to get his accounts audited under section 44AB of the Act. 5. On the question of reasonable cause, he stated that it stands to no reason that a reasonable cause would be in secreting of accounts by the assessee. In the assessee's case, the net disclosure of sales/turnover was act of his own volition and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Asstt. CIT [2002] 256 ITR 201 for the plea that annexures or diaries so seized can hardly be described as books of account and no liability can be fastened on the assessee. We have taken note of this judgment. Explanation (5) to section 271(1)(c) enacts a deeming provision and has application to a situation where in the course of a search under section 132, the assessee is found to be the owner of any money, bullion, jewellery and other valuable articles or thing and the assessee claims that such assets have been acquired by him by utilizing wholly or in part, his income of any previous year which has already ended before the date of search or which is to end on or after the date of search. In such a situation, notwithstanding the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they must be maintained for the purpose of drawing the source of income under the Income-tax Act. 11. It is evident from the aforesaid observation that books of account maintained in regular course only make the assessee eligible for grant of immunity from penalty and not with reference to any of such books, which have not been maintained in the regular course of business. Admittedly, the additional sales found as a result of search, was not recorded in the books of account regularly kept in the course of business by the appellant. Merely because the appellant accepted the additional sales for the purpose of assessment of the relevant year on the basis of entries in the seized documents, the same would not constitute accounts of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a detailed show-cause notice based on the seized record was handed over to the AR of the assessee on 21-2-1997 after giving complete photocopies of the seized materials and other records". From perusal of assessment order for the assessment year 1995-96, we also find a mention made by the Assessing Officer that the appellant did not include income on the basis of seized Annexure A-8 in the income returned by him on16-9-1996. This goes to prove the bona fides of the appellant for explaining reasonable cause on the alternate plea raised before the Assessing Officer and contended before us by relying on the judgment of Hon'ble Punjab Haryana High Court in the case of ITO v. Babu Lal Jain [2001] 251 ITR 656 as a good reason for his failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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