TMI Blog2018 (4) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of survey, the onus have shifted on the Revenue to establish it otherwise. Further the assessee has not admitted for any addition as proposed by the Revenue. Therefore the entire addition is made based on presumptions and assumptions from certain documents unearthed during the course of survey proceedings by rejecting the explanations offered by the assessee without any basis. In these circumstances, though it may be a fit case for addition, we are of the considered view that the penal provisions of Section 271(1)(c) of the Act would not be applicable in the case of the assessee. - Decided in favour of assessee - I.T.A.No.2497/CHNY/2017 - - - Dated:- 2-4-2018 - SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opined that the assessee has made cash payment of ₹ 1,19,72,476/-. On query, the assessee explained as under:- These payments were never made by the assessee and this is only an excel sheet which one of the employees of the company prepared to budget the expenses to be incurred. The said expenses were not incurred by company nor paid by the company in cash. We have furnished the entire bank statements of the company to substantiate that such payments were not made. Further, the excel sheet would have been prepared by the employee only to estimate for expenses projected to be incurred for the project and there is no convincing evidence identified by the department to claim that said cash payments were made other than the excel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On appeal the Ld.CIT(A) relying in the decisions of CIT Vs. Chemiequip Ltd (2004) 265 ITR 265 (Bombay), CIT Vs. Adithya Chemicals Ltd Ors. (2006) 283 ITR 458 (Delhi) and CIT Vs. India Sea Foods (1976) 105 ITR 708 (Kerala) and agreeing with the view of the Ld.AO confirmed his order. 5. Before us the Ld.AR made the following submissions:- (i) M/s. Walchand Nagar from Pune was successful bidder in the tender floated by Tamil Nadu Electricity Board and in turn they had awarded sub-contract to the appellant company for execution of civil work in the State of Tamil Nadu. (ii) During the course of survey proceedings the Revenue had retrieved an excel sheet from the deleted items of the computer used by the former employee of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence to establish that the assessee had made cash payments. The persons to whom such payments were made were neither cross examined nor proper investigation made. The Revenue had not made a concrete finding as to whether the assessee had made any cash payment which is unaccounted. Since the assessee has offered an explanation with respect to the documents found during the course of survey, the onus have shifted on the Revenue to establish it otherwise. Further the assessee has not admitted for any addition as proposed by the Revenue. Therefore in the case of the assessee it appears that the entire addition is made based on presumptions and assumptions from certain documents unearthed during the course of survey proceedings by rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the Assessing Officer in the assessment order. ( iv) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bonafide, an order imposing penalty could be passed. ( v) If the explanation offered, even though not substantiated by the assessee, but is found to be bonafide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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