TMI Blog2016 (6) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy of penalty u/s. 271(1)(c) of the Act. We accordingly set aside the findings of the ld. CIT(A) and direct the A.O to delete the impugned penalty. - Decided in favour of assessee. - ITA. No. 1625/AHD/2014 - - - Dated:- 10-5-2016 - Shri Rajpal Yadav, Judicial Member And Shri N. K. Billaiya, Accountant Member For the Appellant : Shri M.K. Patel, A.R. For the Respondent : Smt. Sonia Kumar Sr. D.R. ORDER Per N. K. Billaiya, Accountant Member 1. This appeal filed by the assessee is preferred against the order of Ld. CIT(A), Valsad dated 26.03.2014 pertaining to A.Y. 2005-06. 2. The grievance of the assessee relates to upholding of the penalty levied u/s. 271(1)(c) of the Act amounting to ₹ 11,86,400/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income at ₹ 3,62,06,193/-. On being aggrieved by the order, the assessee had filed an appeal before the Commissioner of income Tax (Appeals). The Hon ble Commissioner of Income (Appeals), Valsad, partly allowed the appeal of the assessee. The assessee company has filed an appeal before the Hon ble ITAT which is pending for disposal as on date. In our case we have disclosed all facts and particulars both in our return of income and during the course of assessment proceedings. Hence we request you good self not to levy penalty and drop the contemplated penalty proceedings. Alternatively and without prejudice to the above we would like to submit before your good self as under:- 1. There is no finding of fact in the body of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood self that the addition has been made by the then Learned assessing Officer solely based on the statement recorded by the Director of the assessee company, which was duly retracted within a reasonable time. The Learned assessing Officer further relied upon the statement of Shri Rashmin Mahendra Abhoti, who has not purchased any shop in his name. The then Learned assessing Officer has not confronted the assessee regarding the receipt of money in cash and merely assumed that the assessee company has received cash from each and every purchase. 2.4 In this regard we would like to submit before your good self the above additions were made by the then Learned assessing Officer and upheld by the then Honorable CIT(Appeals) without bringin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of the assessee did not find any favour with the A.O who was satisfied that the assessee has consciously concealed its income to the tune of ₹ 32.70 lacs and accordingly levied penalty of ₹ 11,86,400/-. 9. Assessee carried the matter before the ld. CIT(A) but without any success. Before us, the ld. counsel for the assessee brought to our notice, order of the Tribunal in quantum appeal in ITA No. 3032/Ahd/2008 dated 30.05.2014. It is the say of the ld. counsel that since the quantum addition of ₹ 32.70 lacs have been reduced to 2.95 lacs shows that the impugned addition was debatable and, therefore, no penalty should be levied. 10. Per Contra, the ld. D.R. strongly supported the findings of the revenue autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect. 12. Considering the totality of the facts and respectfully following the decisions of High Court stated above, we are of the considered view that in the present case, the additions are based on the statement recorded at the time of survey u/s.133A which have been later on retracted by the assessee. The A.0. has not brought any corroborative evidence and material on record to justify the addition. The A.O has not brought any independent evidence or given any finding to substantiate the declaration made at the time of survey. In view of these facts we are of the view that no addition can be made only on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the time of survey. I am of the considered opinion with the assessing officer that the retraction letter filed by the appellant is not valid. I am constrained to agree with the assessing officer and the addition made by the assessing officer is upheld. This ground of appeal is accordingly dismissed. 5.2. It is evident from the above observation of the ld.CIT(A) that the AO had not confronted the assessee regarding receipt of money in cash and merely assumed that the assessee has received cash from each and every purchaser. Undisputedly, the AO has not made enquiry from the other purchasers and no material has been placed on record that money was received in cash except that statement was made by one of the Directors of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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