9911796707
TMI Blog2015 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... f the I.T.Act 1961 by the learned A.O. 2. That the learned CIT(A) has confirmed the appeal merely on the grounds that the learned A.O. has confirmed the additions of Rs. 16,84,013/- being alleged unaccounted and unrecorded income and Rs. 20,000/- also being unaccounted income which is against the material facts lying on the record GBP, of the learned A.O. and considering the same penalty levied on both the amounts deserves to be deleted. 3. That the assessment order passed by the learned A.O. itself is not inconsonance with decision of Hon'ble Gujarat High Court and hence penalty order passed by learned A.O. and confirmed by learned CIT(A) deserves to be cancelled. 4. That the learned A.O. herself has admitted in para 10(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by CIT(A) u/s.271(1)(c) of the Act. 3. The brief facts of the case are that the assessee was engaged in the business of construction. A survey action u/s.133A of the Act was conducted at the business premises of assessee on 23.09.2003. During the course of survey proceeding, the statement of Shri Kamleshbhai J. Patel was recorded u/s.131, one of the partner of the assessee firm. After verifying the books of accounts comprising the cash book and ledger, the said partner admitted and declared that cash entries in Diary no. "K-9" were not recorded in the books of account. The total of all such fund entries was Rs. 43,28,407/- spanning over two financial years i.e. A.Y. 2003-04 Rs. 22,82,559/- & A.Y. 04-05 Rs. 20,45,845/-. Thereafter, vide let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. A.O. imposed a penalty of Rs. 6,27,254/- on the ground that the assessee failed to disclose additional income as accepted during the course of survey and therefore, the assessee concealed its income. 4. The ld. CIT(A) also confirmed the penalty of Rs. 6,27,254/- by holding that non disclosure of income as surrendered during the survey amounted to concealment of income and thus dismissed the appeal of assessee. 5. The ld. A.R. submitted that the assessee's case is covered in its favour by its own case for the succeeding assessment year 2004-05 wherein penalty imposed was deleted by the tribunal order dated 21.02.2014 in ITA No 1945/Ahd/2012. The ld. Counsel further submitted that an addition of Rs. 43,28,407/- spanning over two A.Ys., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the course of survey u/s 133A at the premises of Assessee diary was found which contained details of cash entries. The cash entries was accepted as income by one of the partner in the statement that was recorded at the time of survey. The cash entries found in the diary were considered as income by the AO which was also partly confirmed by CIT(A). During the course of assessment proceedings and appellate proceedings the submissions have been given by assessee but the same have not been proved to be false or untrue by the Revenue. A case for levy of penalty for concealment of income has to be evaluated in terms of provisions of Explanation 1 to Section. 271(1)(c), as per which if in relation to any addition in the assessment, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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