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TMI Blog2012 (2) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, inter alia, jewellery worth Rs.12,77,635/- being undisclosed was added in the hands of the assessee. Ld. CIT(Appeals), Central Circle-I, Kolkata in a detailed order deleted almost all the additions including the addition made on account of jewellery except retaining a sum of Rs.25,00,000/- and whereby the appeal was partly allowed. The assessee as well as the Department carried forward the matter before the Tribunal and the Tribunal vide its order dated 31.07.2009, inter alia, confirmed the findings of ld. CIT(Appeals) in deleting the addition of Rs.25,00,000/-, but reversed the findings of ld. CIT(Appeals) in regard to entire deletion of addition of Rs.12,77,635/- by retaining an addition of Rs.9,06,430/-. Therefore, the Assessing Officer proceeded to levy penalty in respect of unaccounted jewellery worth Rs.9,06,430/-. 3. In regard to the addition of Rs.9,06,430/-, the Assessing Officer has observed that in the block assessment addition of Rs.12,77,635/- had been made on account of undisclosed jewellery out of total seized jewellery worth Rs.46,39,923/-. He has pointed out that at the time of search and seizure operation at the residence and lockers of Binani Group, jewel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck return on 26.08.02 and returned undisclosed income as per block return is Rs.'Nil'. The undisclosed jewellery added in the block assessment after giving effect of the order of the CIT(A.) & ITAT is Rs.9,06,430/-. Therefore, as per provisions of this section, the assessee is liable to penalty on the amount of Rs.9,06,430/-. As per section 158BC, the Assessing Officer has to compute undisclosed income for the block period. Hence, every addition under this section constitutes concealment and attract penalty. The unexplained jewellery was unearthed by search & seizure operation. Malafide intention of the assessee is also apparent from the facts of the case". 4. Ld. CIT(Appeals) deleted the penalty for the following reasons :- (1) Since the addition of unexplained jewellery was deleted from the assessee's total income by ld. CIT(Appeals) and, therefore, even if the addition on account of these jewellery items was restored by the Tribunal in the quantum appeal, it was at best an item in respect of which two opinions were possible and relied on the decision of the Hon'ble Kolkata High Court in the case of CIT -vs.- Jagabandhu Prasanna Kumar Ruplal Sen Poddar [1982] 133 ITR 156 (Cal.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls was different from that in the valuation report. He further submitted that the assessee failed to produce any evidence with regard to source of payment of such jewellery. 6. Ld. counsel for the assessee submitted that in course of search jewellery worth Rs.4,00,00,000/- was found, out of which only jewellery worth Rs.9,00,000/- was disbelieved. He submitted that in total there were 484 items, out of which only 16 items aggregating Rs.9,00,000/-were disbelieved. He submitted that the Tribunal did not disbelieve the factum of bills or genuineness of them, but did not accept the assessee's explanation only because the bills were not found at the time of search and were submitted at the block assessment stage. He submitted that the assessee's explanation has not been found to be false. There is no positive evidence that the unexplained jewellery was acquired out of assessee's income. He further submitted that it was a debatable issue because ld. CIT(Appeals) had, in any case, deleted the addition, which was reversed by the Tribunal. He further submitted that Tribunal has accepted that jewellery aggregating Rs.4 lakhs and odd to three unmarried daughters in view of Circular No. 1916 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax leviable or not exceeding three times the tax", does not result in reading the first part of the section as mandatory. The proviso to the sub-section makes it clear that there is discretion on the Commissioner (Appeals) for the reasons which are set out therein". We, therefore, do not find any merit in this ground of appeal. Accordingly, the same is dismissed. 9., Now we proceed to decide Ground No. 1 of the appeal. The facts are not disputed. Admittedly, at the time of search jewellery worth Rs.4 crores and odd was found, out of which only jewellery worth Rs.12 lakhs had been treated as undisclosed income by the Assessing Officer. Ld. CIT(Appeals) had deleted the entire addition partly relying on the CBDT Circular No. 1916 dated 11.05.1994 and partly after taking into consideration the duplicate purchase bills produced by the assessee and status of assessee's family. As noted earlier, the main reason for confirmation of addition of Rs.9,06,431/- by Tribunal was that the duplicate bills were neither found at the time of search nor were produced before the Investigating Authority after the search. But it has rightly been pointed out by the ld. counsel for the assessee that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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