TaxTMI 
TaxTMI 
2016 (6) TMI 164
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....oots for the levy of penalty lie in the assessment order made u/s. 143(3) of the Act dated 28.12.2007. During the course of the scrutiny assessment proceedings, the A.O observed that during the course of survey proceedings, statement of Smt. Rashmin Mahendra Abhoti was recorded along with the statement of Shri Jay Chandrakant Patel who is one of the directors of the assessee company. The statement was recorded in respect of the transaction relating to a shop at "Amidhara Complex". 4. In his statement of Rashmin Mahendra Abhoti admitted that he has paid an amount of Rs. 4,75,000/- to the assessee whereas the assessee has accounted the receipt of Rs. 1,80,000/- only. Further, in his statement Shri Jay Chandrakant Patel (Director) admitted ....
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....t the assessee has either concealed any income or has furnished any inaccurate particulars of income. Hence we request your good self to kindly drop the contemplated penalty proceedings and oblige. 1.2The then Learned Assessing Officer had treated Rs. 32,70,000/- received in cash from sale of shops as undisclosed income earned by the assessee company and initiated penalty. As regards this addition made by the then Learned assessing Officer we would like to humbly submit before your good self as under 2.1 During the year under consideration an action u/s. 133A was carried out in the premises of the assessee company and a statement was recorded on oath of Shh Jay Chandrakant Patel, one of the Directors of the company and Shr....
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....o prove that 3. The assessee company has concealed its income 4. It has submitted inaccurate particulars of its income. 2.5 For initiating penalty proceedings there has to be a conclusion reached by the assessing officer that the assessee company has concealed income or has furnished any inaccurate particulars of income. In the assessee company's case we have disclosed all facts and particulars both in our return of income and during the course of assessment proceedings. Hence we request your good self not to levy penalty and drop the contemplated penalty proceedings initiated on this addition. 3.1 The then Learned assessing officer had also made addition to the tune of Rs. 3,29,64,000/- by replying upon ....
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....rd the rival contentions, we have carefully perused the orders of the authorities below. We have also gone through the decision of the Tribunal in ITA N0. 3032/Ahd/2008 while deciding the quantum addition the Tribunal held as under:- 5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. The submission of the ld. counsel for the assessee is of two folds. Firstly, that the statement made during the course of survey u/s.133A of the Act has no evidentiary value. Secondly, the Revenue has not placed any independent material on record to substantiate the addition. The ld. counsel for the assessee has relied on the decision of the Coordinate Bench rendered in....
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....on during the course of survey. We thus direct the deletion of the addition made. Thus this ground of the assessee is allowed." 5.1. The ld. counsel for the assessee has also relied on the decision of Hon'ble Apex Court rendered in the case of CIT vs. S. Khader Khan Son in Civil Appeal Nos.13224 of 2008 & 6747 of 2012, dated 20th September-2012, whereby the appeal filed by the Revenue was dismissed. The ld.Sr.DR has relied on the order of the authorities below. The AO made the addition on the basis of a statement given during the course of survey. The ld. CIT(A) has upheld the action of the Assessing Officer by observing as under:- "7.1. I have perused the factual matrix of the case. Admittedly the addition in respect ....
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....y during the course of survey. The ld. CIT(A) has held that the retraction letter of the assessee is not valid without giving any reason. We also find that the Id.CIT(A) has not taken into account the decision of the Hon'ble Madras High Court rendered in the case of CIT vs. Khader Khan Son reported at (2008) 214 CTR 589 (Mad.) and the appeal filed by the Revenue before the Hon'ble Apex Court. Therefore, ld.CIT(A) was not justified in confirming the action of the A.O and moreover the Revenue has not placed any independent material on record to substantiate the addition. Under these facts, the addition to the extent of Rs. 2,95,000/- only (Rs. 4.75,000 - Rs. 1,80,000) is hereby sustained and the A.O is directed to delete the balance a....