TMI Blog2012 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is not sustainable AY 07-08 – cash and jewelry found during search – Held that:- Circular No.1916 permits possession of 1450 grams of jewellery whereas the total jewellery found during the course of search was to the extent of 1,442.56 grams. Thus, the same should have been treated as ‘explained’ on the basis of the said Circular. Further, assessee had surrendered the undisclosed cash found during search. Therefore although both the additions made by the A.O. have been accepted by the assessee, the same could not be treated as ‘concealed income’ of the assessee as envisaged in sec.271(1)(c) – Decided in favor of assessee. - ITAs 4809 and 4810/M/2011 - - - Dated:- 13-6-2012 - SHRI P.M. JAGTAP, AND SHRI AMIT SHUKLA, JJ. Appellant by: Shri Vijay Mehta Respondent by: Shri Sandeep Goel O R D E R PER P.M. JAGTAP, AM: These two appeals filed by the assessee against two separate orders passed by the learned CIT (A) for A.Y. 2004-05 and 2007-08 involve a common issue relating to imposition of penalty u/s.271(1)(c). 2. First we shall take the appeal of the assessee for the A.Y. 2004-05 being ITA 4809/Mum/2011 which is directed against the order of Ld. CIT (A)-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid claim of the assessee was accepted in the original assessment completed u/s.143(3). He submitted that during the course of assessment proceedings u/s.143(3) r.w.s.153A which took place after a period of 9 years, the assessee however could not substantiate the cost of the acquisition claimed by him due to afflux of time. He contended that there was however no incriminating material found during the course of search to show that the cost of acquisition of shares claimed by the assessee was wrong and it was actually less than what was claimed by the assessee. He submitted that the A.O. adopted the cost of acquisition of shares at Rs.2 each relying on the case of M/s. Ramesh D. Shah Family Trust wherein shares were purchased on 01.04.2003 whereas the shares in the case of the assessee were purchased in the year 2000. He invited our attentions to the details of market quotation of the relevant shares of M/s Praj Industries Ltd. placed at page no.4 of his paper book to point out that the lowest market quotation of the said shares was Rs.15/-. He contended that the cost of acquisition of shares adopted by the A.O. at Rs.2/- per share thus was without any basis and the addition made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed by the Ld. CIT (A). 7. We have heard the arguments of both the sides and also perused the material on record. It is observed that while computing the long-term capital gain arising from sale of shares, the cost of acquisition of shares was claimed by the assessee at Rs.19,59,195/- and the said claim was accepted in the assessment originally completed u/s.143(3). Although the assessee could not produce any documentary evidence to support and substantiate his claim of cost of acquisition of shares during the course of assessment proceedings u/s.143(3) r.w.s. 153A which were taken-up after a gap of nine years, we find that there is nothing found either during the course of search or brought on record even during the course of assessment proceedings by the A.O. to show that the cost of acquisition of shares claimed by the assessee was on the higher side and the same was actually lower than what was claimed. The A.O., adopted the cost of acquisition of shares at Rs.2/- per share relying on the case of M/s. Ramesh D. Shah Family Trust. However, as rightly pointed out by the Ld. Counsel for the assessee, the shares in the said case were purchased on 01.04.2003 while the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two bank lockers. Looking to the status of the assessee s family and considering the social custom, the A.O. treated the said jewellery to the extent of Rs.12,94,687/- as explained and the balance amount of Rs.3 lakh was added by him to the total income of the assessee as unexplained investment made by the assessee in jewellery. Accordingly, total addition of Rs.3,15,000/- was made by the A.O. to the total income of the assessee in the assessment completed u/s.143(3) r.w.s.153A and penalty proceedings u/s.271(1)(c) were also initiated by him. As the assessee could not offer any explanation to the satisfaction of the A.O. in reply to the notice issued during the course of penalty proceedings, the A.O. imposed penalty of Rs.94,500/- u/s.271(1)(c) which the Ld. CIT (A) confirmed dismissing the appeal filed by the assessee. Aggrieved by the order of the Ld. CIT (A), the assessee has preferred this appeal before the Tribunal. 11. We have heard the arguments of both the sides and also perused the material on record. As pointed out by the Ld. Counsel for the assessee from page no.2 of the assessment order, a sum of Rs.1,85,000/- only was surrendered by the assessee as his undisclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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