TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 142
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....e record, are that the assessee is a Private Limited Company. A survey was conducted on its office premises on 04.12.2012 by the Income Tax Department. Certain loose papers were found and impounded and inventor-zed as Bundle No.1, which contains 7 pages. A statement of Shri Abiraj Rajan, one of the Directors of the assessee company, was recorded during the survey. He was confronted that, page no. 7 of the impounded papers contains details of loans taken from various persons by the assessee. The total loan amount reflected on the seized paper was of Rs. 1,56,50,000/-, out of which, loan amounting to Rs. 42 lacs was accepted by the Directors of the assessee company, by account payee cheque and it was accounted for in their regular books of ac....
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.... the revised return of income. The AO completed the assessment based on the revised income. The mere fact that a sum of Rs. 1,14,50,000/- was not excluded by the Assessing Officer from the return of income, cannot come in the way of imposition of penalty under section 271D. It was clearly established in the course of the survey that the appellant had accepted cash loan of Rs, 1,14,50,000/-in cash during the previous year 2011-12. The appellant cannot pre-empt the imposition of penalty under section 27 ID simply by including the loan amount in its total income. Further, manner of treatment in any assessment order cannot change the facts. In the case of contradiction, the actual facts must prevail over how the AO or the appellant treat them i....
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....of Rs. 1,14,50,000/-as cash loan accepted by the appellant and at the same time inclusion in the total income (or rather omission to exclude the sum from the total income) are contradictory because the two cages are mutually exclusive. I have considered this contention of the appellant. In/this case, it is the appellant, who included the sum of Rs. 1,14,50,000/- in the total income (of the appellant) forcing thereby, so to say, the Assessing Officer to include the said sum in its total income. Therefore, the appellant cannot take shelter under the technical issue that once the sum is included in total income, it cannot be treated as loan. Even if, it is presumed that omission to exclude the loans received from the total income in the assess....
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....nish the nature of the income to enable the AO to ascertain his total income. If the sum offered by the appellant represented its income and not loan taken in cash, the appellant should have established that in the course of the penalty proceedings by furnishing the manner in which the income was earned along with evidence in support thereof. 6.5.7 I agree with the appellant's contention that nobody can be harassed twice for the same cause. In case of conflicting findings in two orders, the actual facts will decide which order will prevail. In this case, the actual fact is that the appellant had taken loans in cash^ In case of dispute over the actual facts, the manner of treated given in the assessment order who have been vital. But ....
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....nding that as rightly held by the ld. CIT(A), it does not lie in the mouth of the assessee to contend that non exclusion of the amount of Rs. 1,14,50,000/- from the total income of the assessee, amounts to holding that the sum did not represent the loan accepted by the assessee; that it was the assessee itself who included the amount in its total income; that this did not absolve the assessee from the burden of proving that the transaction was not a loan; that the findings recorded in the penalty order directly emanate from the findings of fact recorded during the survey; that when the assessee offers any amount as its income, it is the assessee's burden to specify the nature of such income; that in the absence thereof, the assessee ought t....