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Suresh Kumar Somani Versus Income Tax Officer, Kishangarh.

2016 (4) TMI 959 - ITAT JAIPUR

Penalty u/s 271(1)(c) - addition u/s 68 - Held that:- It is undisputed fact that these cash creditors are opening as on 01/4/2006 and not pertained to year under consideration. The ld Assessing Officer issued notice in quantum proceeding U/s 133(6) of the Act. The parties concerned filed confirmations in some of the cases. It is also fact that the assessee paid the outstanding during the year and in subsequent year but could not prove beyond doubt before the Assessing Officer. It is well settled .....

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Ajmer for A.Y. 2007-08. The effective grounds of appeal are as under:- 1. On the facts and in the circumstances of the case the ld CIT(A) has grossly erred in confirming the penalty of ₹ 13,77,028/- levied U/s 271(1)(c) of the Income Tax Act, 1961. 1.1 That the ld CIT(A) has erred in upholding the penalty levied U/s 271(1)(c) of the Income /Tax Act, 1961 without appreciating the fact that the income was surrendered by the assessee during the course of assessment proceedings and the income .....

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ined no income on which tax sought to be evaded could be calculated which fact was not appreciated by the ld CIT(A). 2. The assessee is engaged in the business of purchase of sale of marble and granite, tiles and slabs. The return of income was filed on 30/07/2007 declaring total income of ₹ 2,50,070/-. During the course of scrutiny assessment, the Assessing Officer made addition of ₹ 20,21,897/- U/s 41(1)(a) of the Income Tax Act, 1961 (in short the Act) and also initiated penalty p .....

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loan of ₹ 1,48,500/- and ₹ 19,12,007/- U/s 68 of the Act. The assessee was unable to produce the cash creditors before the Assessing Officer and voluntarily surrendered these amounts to avoid the litigation. The outstanding of ₹ 20,21,897/- shown in the books of account, for which cash payment had been made and necessary evidences were not available with the assessee, which is also surrendered voluntarily before the Assessing Officer to avoid litigation. The assessee on 18/12/ .....

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Ors (2008) 214 CTR (Mad) 524 for surrender under the survey. (iii) CIT Vs S.I. Paripushpam (2001) 249 ITR 550 (Mad) for agreed addition. (iv) CIT Vs D&H Secheron Electronics Ltd. (2006) 203 CTR (MP) 164 for surrender made. (v) Gebilal Kanhialal (HUF) Vs ACIT (2004) 270 ITR 523 (Raj.) for surrender made. (vi) CIT Vs. Badrilal Chaturbhuj (2004) 265 ITR 329 (Raj) for buy peace. (vii) CIT Vs Rajnish Nath Aggarwal (2008) 219 CTR (P&H) 590 for surrender made. (viii) Hindustan Steel Ltd. Vs St .....

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eply received from the various parties. It is then the assessee came forward with the surrender letter and not suo moto. If the assessee s intention was bonafide, why he made surrender in last. The case laws relied upon by the assessee are also not squarely applicable, which was applicable on surrender voluntarily with bonafide belief. In assessee s case, the investigation of department as compelled the assessee to surrender amount for taxation as no other option was left. In assessee s case, th .....

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Komal Basha Vs DCIT (2009) 316 ITR 0058 (Mad). After considering the above case laws, the Assessing Officer imposed penalty U/s 271(1)(c) of the Act for concealing the particulars of income and furnishing inaccurate particulars of income at ₹ 13,70,028/-, which is 100% of tax sought to be evaded. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had dismissed the appeal by observing that where there is difference between th .....

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nd material to the computation of his total income have been disclosed by him. The penalty proceedings are independent proceedings. The penalty order should contend the reasons for its conclusion but this does not mean that the Assessing Officer is required to bring on record the additional or new evidences, which was not part of the regular assessment. Where the assessment order itself contends the fact which justified an inference of the concealment, penalty order is sustainable. This view der .....

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ellant about the result of such enquiries that the appellant agreed to surrender this amount. In such a situation Assessing Officer has rightly concluded that appellant furnished inaccurate particulars of his income, in the return filed by him. It cannot be held that the surrender of income by appellant was voluntary, because the surrender was made only after detection of the same by AO. In this case it is not established that the conduct and explanation of appellant was bonafide, therefore the .....

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Kev) - CIT V/s Guruvijay Kuri Co. Ltd. (d) [2009] 316ITR 0058 (Mad) - Komal Basha V/s DCIT. The ld CIT(A), therefore hold that AO is justified in imposing penalty of ₹ 13,77,028/- in this case and the same is confirmed. Ground No. 2 is thus dismissed. 4. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that in balance sheet, the assessee had shown unsecured loan in the name of 8 persons received from them in amount below ₹ 20,000/-, which were opening .....

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cash creditors in the books of account and balance sheet. The said unsecured loan did not pertain to year under appeal. There were opening balances of unsecured loan taken by the assessee in preceding assessment year and not in the year under appeal. The opening balance cannot be added U/s 68 of the Act during the year under consideration but the assessee had not raised this issue in appeal before the ld CIT(A) due to prolonged litigation and wanted to peace of mind, the assessee voluntarily has .....

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5 and penalty should not be levied in routine manner. At the time of imposing penalty, the ld Assessing Officer reproduced the finding given in the quantum addition. There is no fresh application of mind independently. He further relied on the decision in the case of Narangs International Hotels (P) Ltd. Vs. DCIT, Circle-1(2) 137 ITD 53 wherein it has been held that mere confirmations of addition cannot ipso facto lead to inference that there has been concealment of income or furnishing inaccura .....

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that the penalty imposed on account of voluntarily surrender at ₹ 20,21,895/- that these credit entries were outstanding as on 01/4/2006, which was not received during the year under consideration. During the year under consideration, the assessee had paid back to M/s JK Marbles Industry ₹ 6,08,000/-, M/s Rajhans Marble House ₹ 3,43,000/- and M/s Venketesh Marble ₹ 1,00,350/- and remaining amount outstanding as on 31/3/2007. These creditors were related to purchase made .....

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s in the year under consideration and in subsequent year. During the course of assessment proceedings, notices U/s 133(6) were issued to M/s JK Marbles Industry and M/s Lovely Marbles. The Assessing Officer received the confirmations from them duly confirming the copy of account of the assessee. The ld Assessing Officer has drawn adverse inference on the basis of that payments were made in subsequent year through bearer cheque. M/s Laxmi Flooring had squared up the account of the assessee but as .....

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e following decisions: (i) Smt. Durga Devi Somani in ITA No. 672/JP/2011. (ii) Sh. Ashish Gupta in ITA No. 671/JP/2011. (iii) Smt. Sumsitra Devi Agarwal ITA No. 687/JP/2011. (iv) Shri JUgal Kishore Sharma ITA No. 686/JP/2011. The Hon'ble Supreme Court in the case of Mak Data Pvt. Ltd. Vs. CIT (2014) 1 SCC 674 does not apply and is distinguishable on the facts and circumstances of the present case. In that case, the assessee did not offer any explanation except the said plea of voluntarily su .....

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cal facts. He has drawn our attention on page NO. 29 of the finding of the Coordinate Bench in the case of Durga Devi Somani Vs. ITO, Ashish Gupta Vs. ITO, Ashok Kumar Kamdar Vs. ITO, Sumitra Devi Agarwal Vs. ITO and Jugal Kishore Sharma Vs. ITO and prayed to delete the addition. 5. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the material available on the record. It is undisputed fact that th .....

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eration U/s 68 of the Act. The Coordinate Bench in the case of Durga Devi Somani Vs. ITO, ITA No. 672/JP/2011 for A.Y. 2007-08 order dated 31/10/2014, in the case of Ashish Gupta Vs. ITO ITA No. 671/JP/2011 A.Y. 2007-08 order dated 17/10/2014, in the case of Ashok Kumar Kamdar Vs. ITO in ITA No. 684/JP/2011 A.Y. 2007-08 order dated 18/11/2011, in the case of Sumitra Devi Agarwal Vs. ITO ITA No. 687/JP/2011 A.Y. 2007-08 order dated 01/10/2015 and in the case of Jugal Kishore Sharma Vs. ITO in ITA .....

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