TaxTMI 
TaxTMI 
2025 (5) TMI 2045
X X X X Extracts X X X X
X X X X Extracts X X X X
....une - 12 confirming the penalty of Rs. 58,88,200/- levied by the Assessing Officer u/s 271(1)(c) of the Act for assessment year 2016-17. ITA No.1583//PUN/2024 filed by the wife of assessee Smt. Anjali Prafulla Shivale is directed against the order dated 10.04.2024 of the Ld. CIT(A), Pune - 12 for assessment year 2018-19. For the sake of convenience, all these appeals were heard together and are being disposed of by this common order. ITA No.1582/PUN/2024 (A.Y. 2014-15) 2. Facts of the case, in brief, are that the assessee is an individual engaged in the business of buying, developing and selling of agricultural land. He filed his return of income on 17.02.2015 declaring total income of Rs. 10,31,277/-. A survey action u/s 133A of the Act was conducted in the case of the assessee on 28.09.2017 wherein the assessee had admitted additional income of Rs. 61,00,000/- being the profit @ 25% of the gross receipts estimated during the course of survey proceedings. Thereafter, the case of the assessee was reopened and the assessment was completed u/s 143(3) r.w.s. 147 of the Act on 14.12.2018 assessing the total income of the assessee at Rs. 61,02,350/-. 3. Subsequently, another survey a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of his wife pertaining to assessment years 2014-15 to 2017-18 which has been offered subsequently by them in their respective returns filed after the survey action. The Assessing Officer compared the figure of unaccounted sales appearing in the impounded papers in Bundle No.1 and noted that the assessee has received sale consideration in cash amounting to Rs. 1,30,23,386/- over and above the consideration of Rs. 2,44,06,563/- taxed in the hands of the assessee in the order passed earlier. Thus, the assessee has offered less sales to the extent of Rs. 1,30,23,386/- in his return. He, therefore, asked the assessee to explain the difference. The assessee in response to the same submitted that he had already offered the income of Rs. 61,02,250/- @ 25% on the sales of Rs. 2,44,06,563/- as disclosed during the survey action conducted on 28.09.2017. It was further submitted that during the course of next survey action conducted on 13.09.2019 when the query was raised relating to the entries found to be mentioned in Bundle No.1, he instantaneously could not demonstrate that such receipts were already disclosed in the books of account and the return of income filed against the notice issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the statements recorded during the course of 2017 Survey action and the assessment conducted afterwards, the Net Profit of the assessee has been estimated @25%. Therefore, this claim of the assessee is hereby rejected. Accordingly, it is concluded that as the assessee has received the Gross receipts of Rs. 1,30,23,386/- additionally for the year under consideration, the net receipt profit on the same comes to Rs. 32,55,846/- being the 25% of the sales receipt." 7. In appeal the Ld. CIT(A) upheld the action of the Assessing Officer by observing as under: "3.1 I have gone through the Assessment Order, the statement of facts, submissions made by the appellant during the assessment as well as the appellate proceedings, the findings of both the surveys conducted on 28.09.2017 as well as 13.09.2019 and the appeal is decided as under. 3.2 Brief facts of the case are that a survey action u/s 133A was conducted in the case of the appellant and his wife Smt. Anjali Praphull Shivale who are engaged in the business of land development, plotting and selling on 13/09/2019. There was one more survey conducted in the case of the appellant on 28.09.2017. During the course of survey proceedi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n in cash amounting to Rs. 1,30,23,386/- over and above the consideration of Rs. 2,44,06,563/- taxed in the hands of the appellant in the aforesaid order passed. Thus, it was found that the appellant had offered lesser sales to the extent of Rs. 1,30,23,386/- in his return of income. On this basis the case of the appellant was reopened after recording the reasons. 3.4 During the course of the reassessment proceedings, the appellant vide specific questionnaire issued dated 29/01/2022 was asked to submit his explanation in this regard. In response to which the appellant furnished his explanation through a letter filed on 21/03/2022 wherein he had stated that he had already offered the income of Rs. 61,02,250/- 25% on the sales of Rs. 2,44,06,563/- as disclosed during the survey action conducted on 28/09/2017. The appellant further stated that during the course of the next survey conducted on 13/09/2019, when the query was raised relating to the entries found to be mentioned in Bundle No.1, he instantaneously could not demonstrate that such receipts were already disclosed in the books of accounts and the return of income filed against the notice issued u/s. 148 in the earlier assess....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the period from A.Y. 2014-15 to 2017-18. In response, the Appellant furnished his explanation on 29/03/2022 along with reconciliation chart of sales receipt for the requisite period. The reconciliation chart as well as the explanation furnished by the Appellant was considered by the AO, in view of the material and information provided by the Investigation Wing. On perusal of the reconciliation statement, the appellant had given the chart reconciling the project wise figure of sale made in cash and cheques vis-a-vis sales receipt shown in the books of account, duly highlighting the duplication entries as appearing in the impounded material. Accordingly, the Appellant reconciled the sales receipt of Rs. 11,44,553/- pertaining to A.Y. 2014-15 over and above the earlier offered sale receipts. The Appellant explained that after considering all the duplication entries in the impounded material, the gross receipt comes to Rs. 1,75,18,759/- against which he had already offered the sale receipt to the tune of Rs. 2,44,06,563/-. However, the appellant could not justify as to how he has offered more sales in the survey undertaken in 2017 as compared to those which were offered in 2019. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant is taking this stand so as to reduce his profit for AY 2015-16 substantially i.e. from 25% to 6.93%. Hence, this afterthought of the appellant being without any basis cannot be entertained at this level. 3.8 It is also pertinent to note that the estimate was not made by the AO, but as the appellant had not maintained books of accounts and had failed to disclose the true picture of his income, he himself had disclosed the estimated income from the undisclosed transactions in land business. This estimation was done twice during the two surveys and not once. Hence, the submission of the appellant that the addition on estimate basis is not justified is contradictory to the appellant's own stand. The appeal proceedings for the AYs 2014-15 to 2017-18 in respect of the assessment orders passed in consequence to the first Survey action u/s 133A dated 28.09.2017 are also pending and are separately being dealt with by this office. As there was no proper reply submitted by the appellant, the AO in his wisdom, has adhered to the estimated profit at 25% as declared by the appellant after considering host of circumstances such a quality of evidence of the impounded documents, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f appeal during or before the hearing of the appeal. 9. The Ld. Counsel for the assessee at the outset submitted that the assessee has disclosed more sales / receipts during the course of first survey action which was based on estimate basis. Further, in the second survey report, the Investigation Officer has time and again stated that there are lot of duplicate entries which must be ruled out while arriving at the correct figure of unrecorded / under-reported sales / receipts. He drew the attention of the Bench to para 6 of the assessment order and submitted that the assessee has explained that after considering all the duplicate entries in the impounded material, the gross receipt comes to Rs. 1,75,18,759/- against the sale receipt to the tune of Rs. 2,44,06,563/- offered earlier after the first survey which was on estimate basis. However, the Assessing Officer disbelieved the same on the ground that there is no reason for the assessee to disclose such higher figure during the course of first survey that was conducted in 2017. He submitted that during the course of first survey the assessee had declared such sales / receipts on estimate basis, has honoured the same and paid the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Counsel for the assessee that the assessee has already declared more receipts / sales in the return filed in response to the notice issued u/s 148 of the Act after the first survey which was on estimate basis and therefore, the addition made by the Assessing Officer by estimating the profit @ 25% on the suppressed turnover of Rs. 1,30,23,386/- is not justified. Further, the Ld. CIT(A) without appreciation of the facts properly has sustained the addition which is also not justified. 12. A perusal of the assessment order shows that the assessee had given a chart reconciling the project-wise figure of sales made in cash and cheque vis-à-vis sale receipts shown in the books of account duly highlighting the duplication of entries as appearing in the impounded material. Although the assessee had explained that the gross receipts as per the impounded material comes to Rs. 1,75,18,759/- as against the amount already offered to the tune of Rs. 2,44,06,563/-, however, we find the Assessing Officer disbelieved the same on the ground that the assessee has not justified as to why he has offered more sales / receipts in the first survey undertaken in 2017. It is an admitted fact that th....