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2015 (12) TMI 1414 - ITAT AHMEDABAD

2015 (12) TMI 1414 - ITAT AHMEDABAD - TMI - Penalty u/s.271(1)(c) - Held that:- As decided in assessee's own case for the assessment year 2004-05 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 offers no explanation or offers explanation which is found to be false or is not able to substantiate the explanation and is also not able to pr .....

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income. We are of the view that in the absence of complete and convincing corroborative evidence, the Revenue may justify addition, but in the matter of penalty proceedings, the onus lies heavily on the Revenue to prove that the assessee had concealed its income or has filed inaccurate particulars of its income. Further the decision relied upon by Revenue is distinguishable on facts and therefore cannot be applied to the facts of the present case. In view of the aforesaid facts we are of the vie .....

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following grounds: 1. That the learned CIT(A)-IV, Baroda has erred both in law and on the facts of the case in dismissing the appeal of the appellant against levying penalty of ₹ 5,26,121/- U/s 271(1)(c) of 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 ₹ 16,84,013/- being alleged unaccounted and unrecorded income and ₹ 20,000/- also being unaccounted income whic .....

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in the diary is contract receipts not accounted for, in books of account and as such penalty levied on incorrect income deserves to be deleted. 5. On the facts and circumstances of the case of the appellant penalty order passed by learned A.O. and confirmed by learned CIT(A) requires to be cancelled. 6. That the appellant has filed its reply in detail with various decision to the learned A.O. and Paper Book filed before learned CIT(A)which has not been properly appreciated before dismissing the .....

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ed CIT(A) on incorrect facts and contrary to the materials available on record and merely quantum additions confirmed, which is against provisions of Act, which deserve s to be cancelled. 10.Considering the facts and circumstances of the case of the appellant, the penalty levied by learned A.O. and confirmed by learned CIT(A) be deleted. 2. The common issue raised in all ground of appeal is against confirming the penalty of ₹ 5,26,121/- by CIT(A) u/s.271(1)(c) of the Act. 3. The brief fact .....

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he books of account. The total of all such fund entries was ₹ 43,28,407/- spanning over two financial years i.e. A.Y. 2003-04 ₹ 22,82,559/- & A.Y. 04-05 ₹ 20,45,845/-. Thereafter, vide letter dated 12.10.2003, the assessee after having reconciled the figures stated that the discrepancies in respect of unrecorded entries as found during the course of survey were ₹ 16,32,559/- for A.Y. 2003-04 and 26,95,848/- for A.Y. 2004-05 meaning thereby that the aggregate amounts r .....

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y stating that the discrepancies were reconciled. The A.O. framed the assessment u/s.143(3) after rejecting the books of account u/s.145(3) of the Act at ₹ 33,33,121/- by making various disallowances/additions inter alia of ₹ 16,86,813/- on account of unrecorded and unaccounted cash transaction (on money) as discussed in para no.22 of the assessment order. The ld. A.O. also allowed deduction in respect of work in progress declared by the assessee amounting to ₹ 7,03,558/- in th .....

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med the penalty of ₹ 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 ₹ 43,28,407/- sp .....

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t penalty levied in the year under consideration of ₹ 6,27,254/- should be deleted. The ld. D.R. also did not raise any objection to the arguments advanced by the ld. A.R. that penalty on same facts qua addition in the A.Y. 2004-05 had been deleted by the Tribunal. 6. We have heard the rival submissions and perused the material on record. We find that following a survey u/s133A of the Act some cash entries were found unrecorded which related to two years namely 2003-04 and 2004-05. The fac .....

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d. It is an undisputed fact that during 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 asses .....

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