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TMI Blog2016 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessee reply, in quantum the ld. CIT(A) as well as ITAT has confirmed the addition. The penalty proceedings u/s 271(1)(c) of the Act was separately initiated for concealment of particulars of income and furnishing inaccurate particulars of income for both the additions. Before imposing penalty proceedings, the AO again gave reasonable opportunity being heard to the assessee which was availed of by the assessee vide letter dated 28-03- 2011. The AO held that facts of the case are that survey u/s 133A of the Act was conducted at the business premises of the assessee on 28-02- 2006. During the course of survey, a purchase deed dated 26-12-2005 was found and impounded. According to the deed, the assessee purchased a plot from one Shri Durga Lal Saini for a total sale consideration of Rs. 4.00 lacs. Although, the assessee as well as counsel of the assessee admitted the amount as undisclosed during the course of survey but while filing of return of income for the relevant period, no income was shown. During the course of assessment proceedings, the assessee could not explain the same, therefore, the entire amount was treated as undisclosed income and was added to the taxable inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome while filing the return of income for the relevant period which was self evident from the income declared in return. Therefore, the plea taken by the assessee that the same had been covered by trading addition/ surrender of income made by the assessee, is not correct. Thus the provisions of Section 271(1)(c) of the Act is clearly applicable in this case. He further relied on the case Hon'ble Apex Court in the case of G.C. Agarwal vs. CIT, 186 ITR 571 wherein it was held that difference between tax assessed in first returns and the tax on the incomes assessed, should be taken as the tax which would have been evaded. He further relied on the case of Hon'ble Kerala High Court in the case of CIT vs. Kerala Transport Co. (2004), 134 Taxman 320 wherein it was held that penalty may be imposed in case of a surrender, even when the assessee was to make a surrender, it must be adduced sufficient explanation for previous omission so as to protect itself against action u/s 271(1)(c) of the Act. After considering the assessee's reply, the AO imposed minimum penalty of Rs. 1.84 lacs which is 100% of tax sought to be evaded u/s 271(1)(c) of the Act. 2.2 Being aggrieved by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings that this addition should be set off against the income surrendered during survey. The claim of set off was not allowed by AO since not included in the working of undisclosed income. No explanation was filed during the appeal proceedings before CIT (A) to explain the said cash deposits in the bank. Hence, the addition was sustained by the ld. CIT(A). The ground raised before the Hon'ble ITAT was not pressed and the same was dismissed as such, as mentioned in para 16 of the Tribunal's order. The contention raised now that relevant entries were not made in the regular books of account due to mistake of the accountant, is not substantiated by the appellant and therefore, cannot be accepted as a bona fide explanation in terms of Explanation 1 to Section 271(1)9c) of the Act. Considering all the facts and circumstances of the case, I do not find any merit in the arguments of the appellant and therefore, uphold the penalty levied u/s 271(1)c) of the Act. The case laws relied by the ld. AR are not applicable on the facts of this case since the additions were neither made on estimated basis nor without considering the submissions made by the appellant. The additions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (2010) 127 ITD 361 (Chennai) (iv) Dinesh B Thakkar vs. ACIT (2012) 49 SOT 147 (v) Vinod Kumar Jaipuria vs. ITO (ITAT Jaipur Bench ITA No. 750/JP/2005- SMC) (vi) Hari Narayan Soni vs. DCIT (ITAT, Jaipur Bench ITA No. 185/JP/2000) (vii) Anil Kumar Gangwal vs. DCIT (ITA No. 380/JP/2004) and Sunil Kumar Gangwal vs. DCIT (ITA No. 381/JP/2004) In the end, the ld. AR of the assessee prayed for deletion of penalty imposed u/s 271(1)(c) of the Act. 2.4 At the outset, the ld. DR vehemently supported the orders of the lower authorities and argued that Hon'ble ITAT has confirmed the quantum addition and registry documents were found during the course of survey which cannot be ignored by filing of affidavit by the father of the assessee. It is a make believe theory of the assessee. The assessee is gifted the property by the father not through registered deed and by registered immovable property in the name of the assessee. Therefore, the assessee has concealed the income and furnished the inaccurate particulars of income. Similarly, the assessee had deposited the cash in the bank and there is no source of it which has also been confirmed by ITAT. Therefore, the same may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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