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TMI Blog2019 (4) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No. 953/MUM/2012 Assessment Year: 2007-08 2. The ground of appeal reads as under: On the facts and circumstances of the case, the Ld. CIT(A) erred in reducing the penalty of Rs. 83,82,904/- to Rs. 2,99,574/- in respect of cash component for only 3 units for which evidence was found during the search whereas, penalty was levied in respect of cash component for all units following the modus operandi of the assessee on the strength of representative evidence. 3. Briefly stated, the facts are that the assessee is a Private Limited Company engaged in the business as builder and developer. Haresh N. Patel is one of the directors of the assessee-company. A search action was carried out by the revenue in the residence of Shri Patel and conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been reduced by the CIT(A) by estimating the same at 17%. Thus it is a case of estimation. Relying on decision in VIP Industries (2009) 30 SOT 254 (Mum), Narendra Kumar v. ITO (2005) 94 TTJ 156 and Shivlal Tak v. CIT 251 ITR 373 (Raj), the Ld. CIT(A) observed that "the additions were made on estimated basis by extrapolating the percentage of on-money offered on more than 100 parties, whereas there were evidence of cash receipts only respect of 3 units, it would be incorrect to hold that penalty could be levied for the entire amount of unaccounted income assessed on the basis of estimation." As the 3 units in respect of which cash receipt was specifically found, as per table given below, the Ld. CIT(A) reduced the penalty u/s 271(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 143(2) was not issued to the assessee within a period of 12 months from the date of filing of return for the impugned assessment year, the Tribunal restored the ground to the file of the AO for deciding afresh as per law after verifying the records. In view of the above facts and circumstances of the case, we uphold the order of the Ld. CIT(A). 7. In the result, the appeal is dismissed. ITA No. 954/MUM/2012 Assessment Year: 2008-09 8. During the course of survey u/s 133A on 10.01.2007, certain documents marked as 'Annexure A-1' (pages 1 to 5) were found and impounded by the authorized officer. As per the AO, the contents of these documents reveal that the assessee had received cash towards sale of shops in its project Glomax Mall. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be adopted for the year under consideration, the assessee filed a reply dated 18.12.2010. However, the AO was not convinced with the said reply for the reason that even in earlier assessment year, the assessee had received advances by way of cheques but cash was also received over and above it. The AO also rejected the contention of the assessee that the Ld. CIT(A) has reduced the percentage of cash component from 77.38% to 17% on the ground that further appeal u/s 253(2) was filed before the ITAT and the order is still awaited. Further, the AO rejected the contention of the assessee that each assessment year is distinct on the ground that the only ongoing project of the assessee was Glomax Mall at Kharghar, Navi Mumbai and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been found either in the course of search and survey proceedings in relation to the assessee. It may be appreciated that if in fact there was such a huge receipt of on-money as alleged by the revenue, then the revenue should have been able to corroborate it with evidences in the form of undisclosed cash, investment or expenditure. The fact that no such evidences were available as regard to undisclosed cash, expenses or investment in fact also substantiates the claim of the assessee that no on-money was received by it." With the above observations, the Tribunal directed the AO to delete the addition made on account of extrapolation in respect of advances received during the year. Further observing that such an exaggerated/wild extrapola ..... X X X X Extracts X X X X X X X X Extracts X X X X
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