TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 674
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....accounted sales found during the course of survey at the premises of the third party. 3. Rival contentions have been heard and record perused. The facts in brief are that the assessee is a manufacturer of marble slabs and tiles. The AO noted that a survey was conducted at the business premises of Shri Vasudev Somani and his family members and Shri Prakash Chand Vijayvargiya and his family members by the investigation wing on 06.01.2010. The AO has noted regarding the survey as under: "During the course of survey, incriminating documents, such as diaries, copies, loose papers etc. are found at the business premises of these family groups. During the course of survey, statement u/s 133A are recorded of Sh. Prakash Chand Vijayvergiya & h....
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....der: "Shri Sachin Agarwal and Naveen Agarwal both are real brothers. Shri Sachin Agarwal is elder brother of the assessee. In their family one gangsaw unit is there in the name and style of Naveen Enterprises. All the manufacturing and trading of marble is being made in this concern Naveen Enterprises. Father Shri Ghanshyam Agarwal, both the son are living together and managing the manufacturing and trading of Naveen Enterprises. No proprietary concern is in the name of Shri Sachin Agarwal. All the sales either in books of account or outside the books of account in related to Naveen Enterprises. Survey u/s 133A was also carried at the business premises of Naveen Enterprises by the department in financial year 2010-11. Sachin was managing ....
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....tion of the Hon'ble Bench is invited to the fact that, in the entire statement recorded u/s 131, as well as during the process of cross examination, both these persons had accepted that they do not know the assessee and even failed to identify him. Further they were not having knowledge about the fact that assessee was proprietor of M/s Naveen Enterprises. Both have stated that one Shri Sachin Agarwal used to take the money so deposited in the bank account and they could identify Shri Sachin Agarwal only during the course of their statements recorded before Ld. AO during the course of assessment proceedings. 5. He further contended that "Naveen Enterprise ('NE')" is a proprietary concern of the appellant, and there is no connection between....
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....gs recorded by both the lower authorities. 10. We have considered the rival contentions and carefully gone through the orders of the authorities below. We had also deliberated on the judicial pronouncements referred by the lower authorities in their respective orders as well as cited by the ld. AR and ld. DR during the course of hearing before us in the context of factual matrix of the case. 11. From the record we found that the amount received through the bank account of Shri Vasudev Somani and his wife of Rs. 1,40,71,468 has been added as unaccounted sales of Naveen Enterprises. Shri Naveen Agarwal is the proprietor of the Naveen Enterprises. As per the statement of Shri Vasudev Somani before the AO reproduced on Page No. 16, Question N....
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....see was engaged in the business of trading of marble and granite, whereas in the present case, the assessee was engaged in manufacturing of marble slabs and tiles. The profit rate of manufacturing is always high as compared to the traders, therefore, considering the totality of facts and circumstances of the case, we direct the A.O. to make addition by estimating profit @ 15% of the amount so deposited in the bank account with respect to unaccounted sales. We direct accordingly. 12. In the result, the appeal of the assessee is allowed in part. 13. Now we take ITA No. 910/JP/2016 This is an appeal filed by the assessee against the order of ld. CIT(A), Ajmer dated 23/08/2016 for the A.Y. 2010-11 in the matter of imposition of penalty U/s 2....
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....e penalty order cannot legally stand. 16. With regard to the merit of the penalty, the ld AR has relied on the decision of the Hon'ble Jurisdictional High Court in the case of Shiv Lal Tak Vs CIT 251 ITR 373 (Raj) and CIT Vs. Krishi Tyre Retreading & Rubber Industries 360 ITR 580 (Raj) wherein it was held that no penalty is imposable where addition is made on estimated basis. 17. On the other hand, the ld DR has relied on the orders of the authorities below and submitted that there was concealment of income therefore, the penalty so levied for the addition made with regard to profit estimated on unaccounted sales should be upheld. 18. We have considered the rival contentions and carefully gone through the orders of the authorities below.....