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Smt. Mohini Devi Saini Versus The ITO, Ward- 7 (3) , Jaipur

2016 (1) TMI 528 - ITAT JAIPUR

Penalty u/s 271(1)(c) - concealment on account of investment - Held that:- It is an undisputed fact that the evidence in the form of sale deed was found during the course of survey showing the assessee paid sale consideration of ₹ 4.00 lacs for purchase of plot which was not found recorded in the books of account and source of investment has not been explained by the assessee which was admitted by the assessee during the course of survey but the same has not been disclosed in the return. T .....

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of Hon'ble Supreme Court CIT vs. Mac Data (P) Ltd. (2013 (11) TMI 14 - SUPREME COURT ) wherein held AO has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the Assessing Officer is not required to record his satisfaction in a particular manner or reduce it into writing we confirm the order of the ld. CIT(A). Therefore, the appeal of the assessee is dismissed. - Decided against assessee - ITA No. 623/JP/2013 - Dated:- 21-10-2015 - .....

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t the AO made addition on account of purchased deed found during the course of survey of plot No.B-177, measuring 831 sq.ft from Shri Durga Lal Saini. After considering the assessee's reply, the AO made addition of ₹ 4.00 lacs of the Act which was challenged by the assessee before the ld. CIT(A) and before the ITAT and the same has been confirmed by them. The another addition was also made by the AO on account of cash deposited in the bank account amounting to ₹ 2.40 lacs. After .....

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e 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 ₹ 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 releva .....

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ted 16-07-2010 had also confirmed the addition upholding the facts and findings of the AO. The assessee submitted before the that the plot was gifted by the father of the assessee to the assessee but on account of family compulsions on paper the same was shown as sold for ₹ 4.00 lacs. It is further submitted that Department as well as the appellate authorities had not accepted the facts but the issue was contentious right from the beginning and the assessee never concealed any fact in this .....

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₹ 4.00 lacs was available in regular books and thus ₹ 50,000/- remained unexplained. Therefore, the total cash deposit in bank account amounting to ₹ 2.40 lacs was found unexplained deposits. This fact was also admitted by the assessee during the course of survey but no such disclosure was made in the return of income filed for the relevant period. During the course of assessment proceedings, the assessee had not given any explanation on this issue. Therefore, the entire amoun .....

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same was not accepted. Therefore, penalty u/s 271(1)(c) of the Act cannot be levied. The AO held that the assessee had not disclosed any income 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. .....

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to make a surrender, it must be adduced sufficient explanation for previous omission so as to protect itself against action u/s 271(1)© of the Act. After considering the assessee's reply, the AO imposed minimum penalty of ₹ 1.84 lacs which is 100% of tax sought to be evaded u/s 271(1)© of the Act. 2.2 Being aggrieved by the order of the AO, the assessee carried the matter before the ld. CIT(A) who has confirmed the penalty u/s 271(1)(c) of the Act by observing at para 02.2 of .....

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nd was offered for tax. However, in the return of income filed thereafter, the appellant did not offer this undisclosed income for tax. The affidavit of seller/ father of the appellant was contradictory to the registered sale deed and was without an supporting evidence. Hence, the same was rejected by the AO. The appellant contention that the plot was gifted to the appellant was rejected both by the ld. CIT(A) and Hon'ble ITAT, Jaipur in their appellate orders. The appellant s alternative co .....

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4.00 lacs. This purchase deed cannot be ignored by furnishing an affidavit from the father of the assessee. Therefore, the addition made of ₹ 4.00 lacs is confirmed. Thus Ground No. 2 of the assessee is dismissed. It is evident that Hon'ble Tribunal considered the evidence filed by the appellant in the form of affidavit of the father of the appellant but rejected it after considering the evidence of unexplained investment found in the form of the registered sale deed. The conduct of th .....

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re 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 Exp .....

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survey proceedings and on the enquiries made during the assessment proceedings. On such concealment of income, penalty u/s 271(1)(c ) is levibale. 2.3 Now the assessee is before us wherein the ld. AR submitted that the addition made by the AO is without considering the explanation of the assessee. The assessee filed the affidavit before the AO in quantum proceedings that assessee's father had gifted this plot to the assessee. The affidavit remained uncontroverted. The AO even did not conside .....

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He further argued that penalty u/s 271(1)© of the Act for quantum addition of ₹ 2.40 lacs is also not justified. The ld. AR argued that in quantum order, it is clearly mentioned that the assessee was having sufficient cash balance on the date of the deposit, so the Accountant committed mistake in not accounting the deposits in bank in the regular cash book maintained during the course of business. Thus it is for the mistake for the Accountant that the assessee has to suffer otherwise .....

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e the sole basis of levy of penalty. This was the crux of matter of Supreme Court judgemnet in Reliance Petro Products (P) Ltd. 322 ITR 165. The ld. AR relied on the following case laws. (i) Dr. Hakim Vs. ACIT (2009) 314 ITR 290 (Chennai). (ii) Jai Shree Somani vs. ACIT 47 TW 219 (ITAT Jaipur Bench dated 12-04-2012) (iii) A Rajendra vs. ACIT (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) .....

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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 ITA .....

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