TaxTMI 
TaxTMI 
2012 (11) TMI 107
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....se, learned CIT(A) erred in confirming the addition of amount disclosed during survey even though the said disclosure had been made subject to the condition that Department will not take penal action for the said amount. Ignoring the conditional disclosure, while finalizing the assessment, the Assessing Officer, after having made the addition of the disclosed amount, also simultaneously initiated penalty proceedings." 2. The facts in brief are that an action u/s. 133A of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') was carried out at the premises of the assessee on 30-11-2006. During the course of survey some lose papers files and some diary pads were impounded, stock and cash inventory were also made. The statement of....
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....s, which is reproduced as under:- "1. The facts of the case are that survey action under Section 133A of the Act was carried bout by the Income-Tax Department on 30 November, 2006 at the business premises of the appellant. During the course of survey the Income-Tax Department had impounded certain loose papers and had also recorded the statements of the concerned personnel of the appellant company. As a consequence of the survey action, the case was selected for compulsory scrutiny under the guidelines of the Board. 2. The appellant had filed its return of income on 10th October, 2007 where the total income under the regular provisions of the Act was declared at Rs. NIL. However, the said return was field under Section 115JB declaring....
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....n of one of the employees; c. The accuracy and authenticity of such noting is always to be doubted since the same appears to be rough and tentative in natures made by a person for purpose bests known to him only. d. There is no way to ascertain as to whether the said notings is receipt, payment, loan, advances, etc., unless certain assumptions and presumptions are being attached. e. Some of the loose papers do not specify the year to which the said notings pertain justifying the addition proposed to be made in the year under consideration. f. The loose papers are unsigned and therefore not sufficient to fasten liability on the assessee. Further the notings so made are also not handwritten by the directors of the assessee company....
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....tings so made, clearly pointing out that the circulation of funds is out of the cash recorded in the books of account of these entities. Accordingly, the pool of ash handled by Rameshbhai is of many persons and firms including that of his persona transactions and the regular cash available with each and every entity exceeds the notings made in the said diary as under. 6. Accordingly, the figure which has been referred to in the statement of Rameshbhai and in the notice is erroneous and made purely on assumptions, surmises and conjectures. Accordingly no reliance can be put on the hypothetical figure stated by Rameshbhai in his statement, without examining Rameshbhai as to how he had derived the said figure. 7. The appellant during the....
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....ed penalty proceedings under Section 271(1)(c) and the fact that the additional income offered in the course of assessment proceedings was a conditional offer, the present appeal is made to challenge the addition made by the Assessing Officer without any corroborative evidence." On the contrary, Ld. DR supported the orders of authorities below. 5. We have heard the rival submissions and perused the materials available on record. We find that Ld. CIT(A) decided this issue in para-5.2 of his order, which is reproduced hereinbelow:- "5.2 I have considered the contentions of the appellant as well as the assessment order. The following observations are being made after considering all aspects. a) There were huge tans in cash in Annex....