TaxTMI 
TaxTMI 
2024 (9) TMI 346
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....ears and in respect of the same the assessee has filed an application for condonation of delay alongwith an Affidavit stating the reasons for delay in filing of the present appeals, alongwith request for condonation of the delay in filing of the present appeals. We observe that the delay in filing of the appeals are time barred by 282 days (in ITA Nos. 210/Ahd/2020, 211/Ahd/2020 & 214/Ahd/2020) and 332 days (in ITA Nos. 212/Ahd/2020, 213/Ahd/2020, 215/Ahd/2020, 216/Ahd/2020, 217/Ahd/2020 & 218/Ahd/2020). The assessee has submitted similar Affidavits for the impugned years under consideration in which it has been submitted that the order passed Ld. CIT(A) was to be handed over by the assessee to the concerned Tax Practitioner for filing of appeal before the Hon'ble ITAT, however, inadvertently, the assessee forgot to handover such orders to the Practitioner for onward filing. The assessee submitted that he is not well read and was unable to comprehend the orders and further it took the assessee some time to gather the records and thereafter consult the concerned Chartered Accountant. Thereafter, once the matter had been handed over by the assessee to the Chartered Accountant, on fur....
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....ain on Block No. 485A of Rs. 1,89,43,840/- on account of undisclosed amount of capital gain on Block No. 485A which has been added without considering & appreciating the facts of the case and accordingly levied penalty on the same by Assessing Officer which has been upheld by CIT Appeal. 4. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal." 6. The issue involves levy of penalty under Section 271AAA on two additions made while framing assessment, consequent to search carried out on 21.09.2010: Amt. (Rs.) Particulars Rs. 1,89,43,840/- Undisclosed consideration on sale of land Rs. 1,48,00,000/- Protective addition w.r.t. undisclosed capital gain Penalty on addition of Rs. 1,89,43,840/- 7. The brief facts in relation to this ground of appeal are that the assessee alongwith other co-owners, had sold land bearing Block No. 485 in two lots admeasuring 3521 sq. meters and 880 sq. meters approximately, during the year under consideration and declared capital gain in the return of income. Based on certain materials found during the course of search, the Assessing Officer conclud....
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....eafter learned CIT(A) was justified in confirming the same. Therefore, even the order passed by the learned CIT(A) which was on merits was not required to be interfered with by the learned CIT(A) and ought not to have been quashed and set aside without assigning any reasons. Under the circumstances, the impugned orders passed by the learned Tribunal cannot be sustained. 9.0. In view of the above and for the reasons stated above, the questions of law are answered in favour of the Revenue and against the assessee and impugned common judgment and order passed by the learned Tribunal in IT(SS)A No.117/AHD/2015 to IT(SS)A No.122/AHD/2015 is hereby quashed and set aside and the orders passed by the AO as well as learned CIT(A) are restored. All the appeals are allowed accordingly. No costs." In the result, these Tax Appeals are also allowed Impugned common order of the Tribunal is set-aside." 8. Special Leave Petition (SLP) filed by the assessee against the order was dismissed by Hon'ble Supreme Court as being barred by limitation. Accordingly, so far as the quantum additions are concerned, the same stand confirmed in the hands of the assessee. 9. With regards to ....
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....ing out a detailed analysis of the same, has confirmed the quantum additions in the hands of the assessee. He further submitted that even the High Court while upholding the quantum additions observed that the assessee was non-cooperative before Ld. CIT(A) despite number of opportunities having been given to the assessee to present it's case on merits. Further, the High Court specifically noted that even Ld. CIT(A) has decided the matter on merits, confirming the additions of unexplained investment. Accordingly, when the High Court itself has confirmed the quantum additions by holding that Ld. CIT(A) had decided the matter on merits and had held that the Assessing Officer was justified in making the addition of unexplained investment and thereafter, Ld. CIT(A) was justified in confirming the same, then in these facts and circumstances , Ld. CIT(A) has not erred in facts and in law in confirming the levy of penalty under Section 271AAA of the Act. Secondly, the documents are not dumped documents and the Assessing Officer has clearly correlated the area sold by the assessee as per registered sale deed with the seized documents found during the course of search action. It was also subm....
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....dingly, looking into the instant facts we are of the considered view that Ld. CIT(A) has not erred in facts and in law in confirming levy of penalty under Section 271AAA of the Act. 12. In the result, this ground of the assessee is dismissed. The next issue for consideration is regarding levy of penalty with respect to protective addition made in the hands of undisclosed capital gain amounting to Rs. 1,48,00,000/- 13. The brief facts relating to this ground of appeal are that the Assessing Officer made addition of Rs. 1,48,00,000/- on "protective basis" in the hands of assessee in respect of undisclosed consideration on sale of land based on Pages 9-22 of Annexure BS-24 found during the course of search, from the premises of the assessee. While making the addition in the hands of the assessee, the Assessing Officer observed that the document relating to the above transaction was seized from the premises of the assessee, the seized documents shows that the name of the assessee was specifically mentioned in every receipt relating to sale of this property and therefore, the sale consideration of Rs. 1.48 crores was actually received by the assessee himself (though he was not ....
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.... concealed the income. In the case of Mohd. Khasim vs. ACIT 69 taxmann.com 315 (Bangalore - Tribunal), the ITAT held that where Revenue itself was not sure as to whether alleged capital gains was to be assessed in the hands of assessee and such addition was made on protective basis, penalty under Section 158BFA could not be levied on the assessee. In the case of CIT vs. Sanatan Seva Mandal 40 taxmann.com 397 (Gujarat), the High Court held that where pursuant to search proceedings, certain addition was made to assessee's income on protective basis and in case of one 'K' on substantive basis, in view of fact that substantive additions were already subjected to penalty, no penalty could be levied in respect of said additions protectively made against the assessee. 17. Accordingly, in view of the above judicial precedents and keeping in light the fact that additions have been made in the hands of the assessee on "protective basis", we are of the considered view that Ld. CIT(A) has erred in confirming levy of penalty under Section 271AAA of the Act on additions made in the hands of the assessee on protective basis. 18. Accordingly, assessee's appeal with respect to this ground of ....
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....ee as well. 23. With regards to levy of penalty of Rs. 49 lakhs under Section 271AAA in the hands of the assessee, the brief facts are that the assessee, alongwith Shri Nagarji Thakore sold land bearing Block No. 325 at Ambli to "Jayesh Kotak" and "Pravin Kotak" for Rs. 50,00,000/- and declared capital gain of Rs. 16,28,303/- in the return of income. The Assessing Officer took a view that sale consideration of such land was Rs. 1,48,00,000/-. After giving the benefit of indexed cost of acquisition of Rs. 8,71,697/-, "Long Term Capital Gain" ("LTCG" for short) in the hands of the assessee worked out at Rs. 65,28,303/-. Since assessee had already declared LTCG of Rs. 16,28,303/- in the return of income, Assessing Officer made addition of Rs. 49,00,000/- in respect of undisclosed capital gain on sale of land. Eventually, penalty under Section 271AAA came to be levied on such addition which was confirmed by CIT(A) as well. 24. In this case, we observe that the Ld. CIT(A), after taking into consideration the seized material found during the course of search, confirmed the quantum additions in the hands of the assessee. Further, such quantum additions amounting to Rs. 1.48 crores t....
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..... 4. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal." 28. The limited issue for consideration for the impugned assessment year is the levy of penalty of Rs. 59,34,456/- under Section 271(1)(c) of the Act by the Assessing Officer and such penalty has been confirmed by Ld. CIT(A), against which the assessee is in appeal before us. 29. The Counsel for the assessee has taken a specific legal point before us, which is to the effect that search action took place on 21.09.2010 i.e. F.Y. 2010-11 relevant to A.Y. 2011-12. Therefore, A.Y. 2011-12 is the "search year". The Counsel for the assessee submitted that Section 271AAA of the Act provides for levy of penalty for "search year". The Counsel for the assessee submitted that it is a settled law that penalty under Section 271AAA only can be imposed in "search year" and not penalty under Section 271(1)(c) of the Act. The Counsel for the assessee placed reliance on several judicial precedents on this issue. Accordingly, it was submitted by the Counsel for the assessee that on the short count, penalty under Section 271(1)(c) of the Act deserves to b....
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....fore us is a 'specified previous year', and the undisclosed income belongs to this year, an inevitable corollary to this finding, in view of the discussions above, is that the provisions of Section 271AAA will come into play. It is also important to bear in mind the fact that the situations in which provisions of Section 271AAA and the provisions of Section 271(1)(c) can apply are inherently mutually exclusive as Section 271AAA(3) clearly states that, "(n)o penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1) (of Section 271AAA)". Accordingly, the provisions of Section 271(1)(c) cannot be put into service here. Learned counsel has also invited our attention to the fact that, on the same set of facts and in connection with the same investment in the land-cash component of which has been treated as 'income from other sources' in the hands of all the persons jointly making this investment, penalties have been levied under section 271AAA in the cases of Dr Anil Jain, Dr Vishal Gupta and B Srinivas Mallaya. It is contended that it cannot be open ....
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....okji Chanduji Thakor for A.Y. 2005-06) 35. The assessee has raised the following grounds of appeal: "1. The Ld. CIT(A) has erred on facts and in law in upholding the assessment order u/s 271(1)(c) of the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT(A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged unexplained investment of Rs. 5,13,883/- on account of unexplained investment block no. 77 which has been added without considering & appreciating the facts of the case and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal." 36. The brief facts of the case are that search proceedings was conducted at the premises of the assessee on 21.09.2010. The assessee filed return of income in recourse to proceedings under Section 153A of the Act. 37. During the course of assessment, the Assessing Officer observed that assessee had purchased land bearing Block No.77 on 17.03....
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....e grounds of appeal are dismissed." 39. Before us, the Counsel for the assessee submitted that the brother of the assessee, Shri Rohit Thakore was the co-owner of this property, wherein assessments were framed pursuant to the same search carried out on 21.09.2010. The Counsel for the assessee submitted that consequential penalty under Section 271(1)(c) of the Act was levied on the brother of the assessee with respect to same addition (since he was the co-owner of the property) and the matter travelled to ITAT and the Hon'ble ITAT vide order in the case of Rohitji Chanduji Thakore vs. DCIT in IT(SS)A No. 45 and ITA No. 204/Ahd/2020 deleted the addition on merits. Further, the penalty thereon was also deleted by ITAT vide the same order (at Para 25 of the said order). Accordingly, the Counsel for the assessee submitted that since the instant appeal relates to only levy of penalty and the additions made in the hands of the brother of the assessee with respect to investment of the same amount in the same property has been deleted by ITAT in the hands of the co-owner of the property (being the assessee's brother Shri Rohit C. Thakore), then there is no justifiable basis for levy of p....
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....search under section 132 of the Income Tax Act was carried out in group cases of Thakore group on 21.9.2010. The residence of the assessee was also covered by the search and in order to give logical end to the proceedings, a notice under section 153A was issued and served upon the assessee on 18.10.2011. In response to the notice, the assessee submitted a letter dated 17.11.2011 stating that PAN mentioned in the notice was incorrect. Further, the assessee requested to provide copies of statement recorded during the course of search. The ld.AO thereafter discussed how the confusion on account of different PAN has arisen, and how the assessee did not file return in response to the notice under section 153A of the Act. The ld.AO thereafter recorded a finding that notice for lodging prosecution was issued upon the assessee, and thereafter the assessee filed return of income on 1.11.2012. The ld.AO had issued notice under section 143(2) and proceeded to pass assessment order. He passed the assessment order under section 143(3) read with section 153A on 30.3.2013. The ld.AO has observed that the assessee has purchased block no.77 on 17.3.2005 and purchase price of this block was at Rs. 5....
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....le Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon'ble Delhi High Court after detailed analysis has summarized the following legal position: 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessme....
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....n 153A of the Act. Like in the present appeals, simultaneous search was carried out at the premises of the Venus Infrastructure and Ashok Sunderdas Vaswani, and the material found during the search of Venus Infrastructure Developers or Ashok Sunderdas Vaswani could be used while framing the assessment of Rajesh Sunderdas Vaswani and Deepak Budharmal Vaswani under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench's order. It reads as under: "15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against suc....
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....red under any other provision of law, but certainly, not under Section 153A. This goes to the root of the matter." 21. Hon'ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153A of the Act. Hon'ble jurisdictional high Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): "[A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A which is different from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incrimi....
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....er can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the as....
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....ons came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the contro....
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....erits, however, the Hon'ble High Court set-aside the order of ITAT on the ground that there was no infirmity in order of CIT(A), who had also decided the case on merits. However, we observe that CIT(A) had not discussed the merits of the case in detail. Accordingly, in so far as levy of penalty under Section 271(1)(c) of the Act is concerned, we are of the view that it is a fit case were penalty is liable to be deleted. 42. In the result, the appeal of the assessee is allowed in ITA No. 211/Ahd/2020 for A.Y. 2005-06. Now we shall take up ITA No. 212/Ahd/2020 (Ashokji Chanduji Thakore for A.Y. 2006-07) 43. The assessee has taken the following grounds of appeal: "1. The Ld. CIT(A) has erred on facts and in law in upholding the assessment order u/s 271(1)(c) of the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT (A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged capital gain of Rs. 86,60,942 on account of undisclosed short term capital gain of block no. 76 & 77 which has been added without considering & appreciating the facts that relevant capit....
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....also the co-owner of this piece of land and similar assessments were framed pursuant to the same search carried out by the Department on 21.09.2010. However, the same addition, which was made with respect to undisclosed sale consideration in the hands of the assessee's brother, Rohit C. Thakore, who was also the co-owner of this block of land, was deleted by ITAT for the same assessment year (A.Y. 2006-07) (Para 16-24 of the ITAT's order). Further, similar penalty imposed in the hands of Rohit C. Thakore, with respect to sale of same block of land (as assessee's co-owner) was also deleted by the Hon'ble ITAT (Para 80-82 of ITAT order). Accordingly, it is submitted that when on identical facts similar additions and penalty has been deleted by ITAT in the case of the co-owner of this property vide order dated 23.11.2021, then it is a fit case, where penalty under Section 271(1)(c) of the Act on identical set of facts is liable to be deleted. 46. In response, the Ld. D.R. placed reliance on the observations made by Ld. CIT(A) in the appellate order. 47. We have heard the rival contentions and perused the material on record. It would be useful to reproduce the relevant extracts o....
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....Rs.91,74,825/- being sale consideration of 1/5 of land (-) Rs. 5,13,883/- being assessee's share in the cost of acquisition) was added to the total income. The assessee was duty bound to rebut the initial presumption in favor of the Revenue by virtue of sections 132(4) and 292C but has not led any argument and any iota of evidence in this regard and thus has not discharged his primary onus. I find no basis to interfere in the addition made. The addition of Rs. 86,60,942/- is confirmed and the related ground is dismissed." 18. The ld.counsel for the assessee while impugning the addition, took us through the assessment order, and explained as to how no gain has arisen to the assessee, and how no addition is required to be made. He specifically took us through question and answer given by the assessee during his statements recorded under section 131 of the post-search inquiry. On the other hand, the ld.CIT-DR also relied upon the assessment order, and submitted that evidence during the course of search duly seized exhibiting the earning of short term capital gain by the assessee on the land transactions comprised at block no.77 and 76. 19. We have duly considered....
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....eceipt dated 30.06.2005 of Rs. 30 lakhs for land at Bopal 77. The deal of Bopal land was lloked after by my father. So I do not have knowledge about such transaction. On page 43, there is detail of block no.77 deal for Rs. 60 lakhs. I do not have more details about this transaction.... On page no.48 of this annexure there is chitthi dated 05.03.2005 of block no.77 land which has prepared as a broker. The deal did not take place due to dispute... Q-79 On page 114 to 140 annexure A-15 Bopal block no.77 land is purchased by you. This land is purchased on 17.03.2005 for Rs. ,29,75,000/-. I am showing you page no.42 and 43 in which receipt of Rs. 30,00,000 dated 30.06.2005 is there. Whereas on page no.43 there is detail of Rs. 60 lakhs paid for this land. Kindly explain how much money did you actually paid for this land. A-79 The transaction of this land was done by my father. Bopal block no.77 land was decided to purchase for brokerage on behalf o Anilbhai of Surat for which Rs. 60 lakhs was collected from Anilbhai and was given to land owner. There was dispute for measurement issue and unauthorized construction which were not cleared and were unsolved and so Anilbhai refus....
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....g to the kind of material possessed by the AO to refute terms of contract translated in those registered sale deed, we would like to refer to the judgment of Hon'ble Punjab and Haryana High Court in the case of Paramjit Singh Vs. ITO, 323 ITR 588 (P&H) in which on the strength of sections 91 and 92 of Evidence Act, the Hon'ble Court has held that when terms of contracts, grants or other dispositions of property have been reduced to the form of documents, then no evidence is permissible to be given in proof of any such terms of such grants or deposition of the property except the documents itself. In this case, there were three brothers viz. Tarlochan Singh, Paramjit Singh and Surmukh singh. Shri Paramjit Singh and Surmukh Singh went to UK and settled down some 45 to 48 years back from the Assessment year 2003-04. According to them, their brother, Tirath Singh has helped them settle in UK. Therefore, they have given their share of land to his brother. The sale deed was registered in the name of Paramjit Singh, son of their brother Tarlochan Singh. As per the registered sale deed, the sale consideration was Rs. 24,65,000/-. Paramjit Singh was asked to explain the source of this Rs. 2....
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....own in the registered sale deed was received by the vendors and deserves to be added to the gross income of the assessee-appellant." 24. Let us revert back to the case on hand. There is a purchase deed for a sum of Rs. 29,75,000/- on 17.3.2005, which was not disputed by the Revenue also. There is a sale deed on this land at block no.77 on 29.12.2005 i.e. roughly after nine months for consideration of Rs. 30 lakhs. This consideration is being disputed by the Revenue. According to the Revenue, this consideration should be considered at Rs. 2,16,25,875/-. The evidence for such calculation is of some jotting on page no.48 of the seized material. According to the assessee, this is chitty written to work out some brokerage or some other details. It does not give any specific guidance for the rate. It is also pertinent to note that section 50C of the Income Tax Act provides that where the consideration received or accruing as a result of transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall f....
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.... AO and confirmed by the ld.CIT(A) vide separate order of even dated 27.12.2018 for all these assessment years. 82. With the help of ld.representatives of both the sides, we have gone through the impugned orders. Impugned penalties have been imposed by the Revenue on account of additions in respect of unexplained investment in properties, short term capital gain on sale of land and unexplained credits in the books etc. Further, sub-clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable him, which shall not be less than but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. In other words, the quantification of the penalty is depended upon the addition made to the income of the assessee. On the question of additions in the present case, we have already dealt with these issues hereinabove while dealing with quantum appeals, and after detailed discussion and finding thereof, we have concluded that no corroborative evidence with the departm....
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....the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT (A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged undisclosed capital gain of Rs. 45,99,000 on account of undisclosed investment in Kasindra Survey No.1104 & 1290 which has been added without considering & appreciating the facts of the case and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant also request to honourable court for condonation of delay in filling appeal. 4. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal." 52. The brief facts of the case are that a search action was conducted at the premises of the assessee on 21.09.2010. During the course of assessment proceedings, the Assessing Officer observed that as per Annexure BS-24, the assessee alongwith his father had purchased a land at Block No. 1104 and 1290, Kasindra and on the basis of documents seized during the course of search, the Assessing Officer added a sum of Rs. 45,99,000/- ....
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....sessee submitted that no addition could have been made merely on the basis of entries recorded in the seized materials. Under these circumstances, it was duty of the Assessing Officer to have brought on record third party proof in the form of confirmation of the so-called seller (recipient of sum) substantiating the allegation that such sum of money has been paid by the assessee. However, the Assessing Officer did not make any effort whatsoever to confirm the fact that the so-called recipient of money mentioned in the seized material had sold this land to the assessee. Without carrying out even the basic investigation required in the case, the Assessing Officer had made this addition as unexplained income in the hands of the assessee. Further, the Assessing Officer also did not issue notices under Section 133(6) to the sub-Registrar Officer to provide information on who was the buyer of the land in question. Instead the Assessing Officer simply treated the notings in the seized material as reflecting the true state of affairs and proceeded to make additions in the hands of the assessee as unexplained investment, without carrying on any further investigation, which was required to b....
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....is liable to be deleted in the hands of the assessee under Section 271(1)(c) of the Act. 54. In response, the Ld. D.R. placed reliance on the observations made by Ld. Assessing Officer and Ld. CIT(A) while confirming the penalty in the hands of the assessee. 55. We have heard the rival contentions and perused the material available on record. In view of the detailed arguments given by the Ld. Counsel for the assessee, we are of the considered view that so far as penalty under Section 271(1)(c) of the Act is concerned, it is a fit case where penalty is liable to be deleted. In this case, the entire addition has been made by the Assessing Officer only on the basis of seized material "in an ex-parte order passed under Section 144 of the Act" and from the contents of the order it is observed that the Assessing Officer had no concrete proof / corroborative evidences to establish that the assessee, alongwith his father had in fact purchased the property in question. No notices were issued to the so-called "sellers" of such property to confirm whether any sale of such property had been made to the assessee and his father, no land revenue records were called for to establish that the....
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.... Officer added a sum of Rs. 2,00,000/- and Rs. 3,46,930/- as unaccounted investment in land in the hands of the assessee. The Assessing Officer also levied penalty of Rs. 1,16,471/- under Section 271(1)(c) of the Act. The penalty levied by the Assessing Officer was confirmed by Ld. CIT(A) with the following observations: "Even in the present case Appellant has failed to establish unaccounted income from the land transactions at Kasindra of Rs. 2,00,000/- and share of the assessee in the Bopa/ land was Rs. 3,46,930/- which was more than the income shown by the appellant in his return of income. The act of the appellant is in mala fide, and Explanation 1 to section 271(1) would come into play and work to the disadvantage of the assessee. In this case assessee filed the inaccurate particulars leading to concealment for which, Explanation 1 to section 271(1)(c) would come into play and assessee will be liable for penalty. In view of the facts mentioned above, I am of the considered opinion that the appellant had made patently inaccurate particulars of income leading to concealment of income. Considering the facts discussed herein above, it is held that the appellant had concea....
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.... and perused the material on record. 62. In this case, the Counsel for the assessee submitted that similar addition had been made in the hands of Rohit C. Thakore as co-owner of property, which had been deleted by ITAT. However, on going through the case records, there is nothing on record to show that similar additions made in the hands of the assessee's brother Shri Rohit C. Thakore for a sum of Rs. 2 lakhs had been deleted by any of the appellate authorities. In the instant case, the quantum additions in the hands of the assessee have been confirmed by the appellate authority. Accordingly, since the additions have also been confirmed in the hands of the assessee, we are of the considered view that the Ld. CIT(A) has not erred in facts and in law in holding levy of penalty under Section 271(1)(c) of the Act in the instant facts. Accordingly, we confirm the levy of penalty of Rs. 2 lakhs in the hands of the assessee. Further, so far as addition of Rs. 3,46,930/- is concerned, the assessee had been asked to furnish source of investment in certain block of land purchased 29.03.2008. However, the assessee did not file any reply with regard to the source of investment in such land,....
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....s sold by the assessee on 24.04.2008, however, on the basis of seized documents found during the course of search action on 21.09.2010, the Assessing Officer found that the actual sale consideration of such land was Rs. 16,15,40,700/-. Accordingly, a sum of Rs. 2,61,93,070/- was added to the assessee's income as undisclosed capital gain on sale of Bopal land being 1/5th of assessee's share in such land). Penalty of Rs. 1,07,10,074/- under Section 271(1)(c) of the Act was levied in the hands of the assessee with respect to the aforesaid additions made in the assessment order. This levy of penalty was later confirmed by Ld. CIT(A) with the following observation: "Even in the present case Appellant has failed to establish unexplained sale proceeds of land of Block No.73 Bopal of Rs. 2,61,93,070/- and the excess amount of bank deposit of Rs. 53,16,417/- which was not shown in the Return of Income. Considering the facts discussed herein above, it is held that the appellant had concealed particulars of income as discussed above. In view of the above discussion and judicial ratios (supra), and in absence of any bonafide explanation, it is held that Assessing Officer was justified....
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....ores ? The ld.AO did not get it verified from the vendee who purchased this land; what are the source of fund with the vendee of Rs. 13 cores over and above sale consideration stated in the sale deed ? There were certain rough notings which according to the assessee were by his father, who died in 2008 before the deal could be materialized. We could appreciate the case of the AO, had the said land was sold to Umang Hiralal Thakkar. During the negotiation there could be many merits and demerits discussed among the parties, but what was ultimate sale consideration accepted that has to be considered. The AO failed to bring any other corroborative evidence for buttressing his contentions. The assessee has specifically pointed out that the amounts collected from Shri Umang were returned to him, and the deal never taken place. The AO even did not bother to collect the sale deed. Apart from the above, the assessee's role has been assigned as confirming party; but it has not been brought to on record in what capacity. What rights were vested in the assessee in this land which has been relinquished by him. No documents were collected by the AO to this effect, as to why the assessee was call....
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....271(1)(c) of the Act with respect to addition of unexplained deposit in bank amounting to Rs. 53,16,417/-, in the hands of the assessee. 71. In the result, the appeal of the assessee is partly allowed for A.Y. 2009-10. Now we shall take up ITA No. 216/Ahd/2020 (Ashokji Chanduji Thakore for A.Y. 2010-11) 72. The assessee has taken the following grounds of appeal: "1. The Ld. CIT(A) has erred on facts and in law in upholding the assessment order u/s 271(1)(c) of the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT(A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged deposit in bank of Rs. 33,83,768 on account of unexplained deposits in bank which has been added without considering & appreciating the facts that that relevant bank account has been declared in return of income filled by the assessee and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant also request to honourable court for condonation of delay in filling appeal. 4. The appellant craves for liberty to add ....
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....certain facts are noteworthy. This is a case of abated assessment year and the Assessing Officer is not restricted to only make additions with respect to incriminating material found during the course of search only. Secondly, in our view, reliance cannot be placed on observations made by the ITAT in case of similar additions with respect to unexplained bank deposits / credit entries in the hands of the assessee's brother, since such relief had been granted taking into consideration the particular facts of assessee's brother's case. It is not a case of unexplained sale consideration coming out the land co-owned by the assessee's brother, but separate cash deposits were made in assessee's brother's bank account for which he gave an independent explanation, which came to be accepted by Appellate Authorities. Relief was granted by ITAT in the assessee's brother's case taking into consideration the particular set of facts in assessee's brother's case and such order passed by ITAT has been rendered on separate set of facts. In our considered view, this order would have no bearing with respect to the facts relating to additions made in the hands of the assessee on account of unexplained ....