TaxTMI 
TaxTMI 
2026 (4) TMI 473
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....sis, an excel sheet containing the cash details to an entity named J.D Solitaire was found. Relevant extracts of excel sheet is enclosed below: J.D. Solitaire (jewellery) thru AD paid (17.09.19) 8,00,000.00 J.D.Solitaire (jewellery) thru AD paid (25.09.19) 1,88,000.00 J.D. Solitaire (thru AD) 14.11.19 6,96,000.00 2.1 The AO noted that the above entries are related to cash payments given to Sh. Sanjay Kalsi Prop., JD Solitaire for the jewellery purchase. In view of the above, the cash paid to Sh. Sanjay Kalsi Prop., JD Solitaire remained unexplained and have a bearing on the determination of the total income of Sh. Sanjay Kalsi Prop., JD Solitaire notice u/s 153C of the Act dated 28.03.2023 was issued to the assessee. 3. During the course of assessment proceedings, the AO asked the assessee to furnish the necessary details regarding the nature, purpose of transaction mentioned in the sheet and how these transactions were recorded in books of account/return of income. 3.1 The assessee denied the above transactions inter-alia stating that the entire case against the Assessee is merely based on the diary entry, entry on excel sheet, copy of alleged whatsapp c....
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.... of the Income Tax Act, 1961, we have not under reported income which is in Consequence of misreporting thereof. We would sustain a substantial financial loss if we were forced to pay penalty which would be genuine hardship." 3.4 Further, the AO in view of the above excel sheet (as reproduced earlier in this order) showing cash sales by M/s JD Solitaire proprietary concern of the assessee in excess of Rs. 2 lakhs noted that the assessee had received cash above Rs. 2 lakhs otherwise than an account payee cheque etc. amounting of Rs. 14,96,500/- (Rs. 16,84,500/- - Rs. 1,88,000/-) in violation of provisions of section 269ST penalty initiated proceedings u/s 271DA of the Act. Accordingly show cause notice dated 04.09.2024 was issued by the AO. The relevant background of the show-cause notice, the show cause notice, the reply of the assessee and the basis of the levy of the penalty order u/s 271DA of the Act is reproduced as under: "Accordingly, show cause notice u/s 271DA r.w.s. 274 was issued to the assessee company on 04.09.2024 requiring to submit response regarding cash transaction of Rs. 16,84,500/- from Sh. Anil Upreti, found during the search proceedings in the case ....
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....taire accepted part consideration in cash and suppressed its actual sales. Therefore, the reply of the assessee is not acceptable. 5. Further, the assessee has stated in his reply that "The entire case against the assessee is merely based on the diary entry, entry on the excel sheet copy of Alleged whatsapp chats and email conversation. This is not sufficient evidence to prove that any cash Transactions took place." In this regard, it is pertinent to mention here that the excel sheets founds and seized wherein day to day cash transactions were recorded and whatapp chats wherein discussion on cash transactions were made cannot be insufficient evidence, ignoring the fact the said digital data was duly seized by the forensic experts in presence of independent witnesses. Further, certificate u/s 65B of the Indian evidence Act also issued by forensic expert with respect to said seizure of digital data during the search which is available on record. The contents of the said excel sheets have duly been explained by the author of the excel sheet Sh. Anil Upreti during the course of search while statement recorded under oath in the presence of two independent witness and to the bes....
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....espect of a single transaction, or (c) in respect of transactions relating to one event or occasion from a person, otherwise than by an account payee cheque or an account payee bank draft or use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed Provided that the provisions of this section shall not apply to- (i) any receipt by- (a) Government; (b) any banking company, post office savings bank or co-operative bank (ii) transactions of the nature referred to in section 269SS (iii) such other persons or class of persons or receipts, which the Central Government may, by notification in the Official Gazette, specify Penalty for failure to comply with provisions of section 269ST. 271DA (1) If a person receives any sum in contravention of the provisions of section 269ST, he shall be liable to pay, by way of penalty a sum equal to the amount of such receipt Provided that no penalty shall be imposable if such person proves that there were good and sufficient reasons for the contravention. (2) Any penalty imposable under sub-section (1) shall....
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....tracts of the order of the Ld. CIT(A) are reproduced as under: In this case, a search and seizure action had taken place which unearthed several incriminating documents. Based on these documents, a statement on oath was recorded under section 132(4) of the Act. It is settled position of law that the statement recorded during the Search & Seizure action u/s 132(4) has substantial evidentiary value. Therefore, the evidence so gathered is judicially noticeable. Accordingly, as per section 56 of the India Evidence Act, there is no legal requirement for providing further opportunities to the appellant. Accordingly, the contention of the appellant is legally untenable. 4.4 Further, requirement of opportunities for cross- examination is to ascertain the real facts. Then it goes back to ascertain who has the primary onus to establish or bring out the facts, especially in proceedings relating to Search and Seizure action. Further, in a Search and Seizure case, Section 132(4A) of the Act creates a presumption that all the books of accounts. search belongs to person found in documents and valuables found during the possession or control of such items and the contents thereof....
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....hen the learned AO had already charged tax under normal provisions of the Act on the same alleged cash receipt of Rs. 16,84,500/- and had also already recovered the said charged tax 4. That the order dated 19.09.2024 passed u/s 271DA of the Act by the learned Additional Commissioner of Income Tax Central Range-4, New Delhi is wrong and bad in law and on facts of the case inasmuch as it suffers from legal infirmities that if tax under the normal provisions of the Act has been charged and recovered on the alleged cash receipts, penalty u/s 271DA of the Act cannot be imposed on the same alleged cash receipts. 5. That the appellant craves for leave to change, modify, add and/or alter the above grounds of appeal during or before the hearing of the case if warranted." 6. The Ld. AR submitted that the assessee never accepted the above cash sales of Rs. 16,84,000/- based on the said excel sheet but to buy peace and protracted litigation accepted the above transactions and paid the due taxes of Rs. 84,610/- on it. The Ld. AR further submitted that considering the explanation of the assessee, the penalty proceedings u/s 270A of the Act was dropped by AO vide penalty orde....