2016 (8) TMI 901

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.... 1961 ( in short "the Act"). 2. The facts of the case are that the search and seizure action was taken on the assessee on 28.04.2006 vide warrant No.5147 at residential address Flat No.303, 3rd Floor, Shravan Apartment, 13th Road, Old Khar, Mumbai - 400052. A survey u/s.133A/search was also conducted at the business premises of M/s. Chinai Ranadive Associates Pvt. Ltd. at 1st Floor, Army and Nevy Building, Kala Ghoda, M.G.Road, Mumbai - 400001. Pages 1 to 3(three papers) were impounded from the business premises which were the copy of letter address to Shri. Dip Ghosh, 86-A, Jal Darshan, Nepean Sea Road, Mumbai -400036, regarding the sale of assessee's flat at Krishna Kaveri CHS, Andheri (West). Accordingly, the assessee was to receive a....

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....ord:- "5. I have carefully considered the assessee's submissions. It is admitted fact that in the original return of income the assessee had claimed Long Term Capital Loss of Rs. 6,78,228/- on the sale of the flats when in actual fact the period of holding of the flats was less 3 years. Thus, the assessee's reliance on the Supreme Court judgement in the case of Reliance Petroproduct (Private) Ltd. (322 ITR 158) can be clearly distinguished since in this case it is not a question of inaccurate claim but a wrong claim based on facts. It is further seen that had the search not taken place at the premises of the assessee, the fact regarding the receipt in cash of Rs. 8 lakhs on the sale of flat would not have come to light and the assessee w....

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....of capital gain i.e. short term capital gain was wrongly claimed as long term capital loss. Hence, the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished by the assessee is Rs. 14,78,228/- 6. The assessee has declared a Long Term Capital Loss in respect of the flats sold at Rs. 6,78,228/- in the return filed u/s.139(1) of the I.T.Act, 1961. The assessee has filed a return in response to notice u/s.153A at Rs. 15,01,060/- in which he has included the cash receipt from sale of flats at Rs. 8 lakhs. The total income determined after giving effect to Ld. CIT(A)'s order is Rs. 15,01,060/-. The income in respect of which particulars have been concealed or inaccurate particulars ha....

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....t to be evaded amounting to Rs. 4,88,438/-. However, the learned CIT(A) has arrived at this conclusion that the assessee only concealed the Rs. 8 lakhs has not been shown as Short Term Capital Gain. It is not in dispute moreover admitted by the assessee also that the assessee failed to show the sale account to the tune of Rs. 8 lakhs in his return. Undoubtedly, there is no explanation on record as to why the said amount of Rs. 8 lakhs was not reflected in the return of income resultantly the assessee did not show the Short Term Capital Gain to the tune of Rs. 8 lakhs. It is clear case wherein the assessee did not disclose an amount of Rs. 8 lakhs in his return. Making the statement before the tax authority nowhere justify the claim of the a....