TMI Blog2016 (3) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessment order because the order of the Assessing Officer have been restored by the Tribunal and as such, the penalty matter need not to be decided on the basis of findings given by the ld. CIT(Appeals) computing the income of the assessee by applying profit rate of 55%. Also here that since the finding of fact recorded by the Assessing Officer have not been considered in the penalty matter, therefore, the matter would also require re-consideration because the additions would be higher now on passing the final order passed by the Assessing Officer. Appeal of the assessee is allowed for statistical purposes. - ITA No. 796/CHD/2014 - - - Dated:- 8-3-2016 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND Ms.RANO JAIN, ACCOUNTANT MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of M/s Sipra Estates Ltd., New Delhi for land dealings in and around Zirakpur. On the basis of documents seized from the business and residential premises of Shri S.P. Goyal, statement of assessee Shri Rajidner Singh was recorded in which he has admitted to have received commission of about 2 Crores from M/s Sipra Estate Ltd. and in assessment year under appeal, amount was quantified to ₹ 1,12,24,000/-. The assessee filed return of income declaring income of ₹ 45,28,400/- after claiming expenses of ₹ 72,95,600/- under the various heads from the total commission of ₹ 1,12,24,000/-. During the course of assessment proceedings, it was seen that assessee has not maintained any books of account. The assessee has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the claim and appeal of the assessee was dismissed. 4. We have heard ld. Representatives of both the parties and perused the material available on record. It is admitted fact that the Revenue preferred appeal before ITAT Chandigarh Bench against the order of the ld. CIT(Appeals) dated 09.06.2010 on quantum in ITA 1060/2010 and the Tribunal vide order dated 10.05.2012 reversed the order of the ld. CIT(Appeals) and restored the order of the Assessing Officer. The findings of the Tribunal in paras 8 to 14 are reproduced as under : 8. We have carefully perused the rival submissions, facts of the case and the relevant record. The undisputed facts in this case are, that the assessee failed to maintain books of account or any record to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the impugned expenses, therefore, the onus lies on the assessee to support his claim, by way of cogent and corroborative evidence. This legal proposition is supportive of statutory proposition, as contemplated u/s 143(3)(ii) of the Act, which is reproduced hereunder: 143(3)(ii) On the day specified in the notice,- (ii) issued under clause (ii) of sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing, make an assessment of the total income or loss of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roving that he was not its owner, was on that person. Thus, this principle could be attracted to a set of circumstances that satisfies its conditions and was applicable to taxing proceedings. 11. In view of the legal and factual discussion, the burden of proof squarely lies on the assessee and the assessee has failed to file any evidence to discharge, even the initial onus, cast on him. 12. The Hon'ble Supreme Court, in a number of decisions has held that the revenue cannot make additions, purely on surmises, guess-work or conjectures. The reverse of the observation of the Hon'ble Supreme Court is equally true in case of an assessee, that no claim of expenses can be allowed, merely on the basis of surmises, guess-work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditions on account of disallowance of various expenses by giving specific findings of fact against the assessee. Therefore, in our view the penalty matter shall have to be re-considered in the light of findings of Assessing Officer given in the assessment order because the order of the Assessing Officer have been restored by the Tribunal and as such, the penalty matter need not to be decided on the basis of findings given by the ld. CIT(Appeals) computing the income of the assessee by applying profit rate of 55%. 6. We may also note here that since the finding of fact recorded by the Assessing Officer have not been considered in the penalty matter, therefore, the matter would also require re-consideration because the additions would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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