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TMI Blog2014 (1) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant : Shri Mehul R Shah For the Respondent : Shri P L Kureel, Sr DR ORDER:- PER : Anil Chaturvedi These three appeals are filed by the Assessee against the order of CIT(A)-I, Surat dated 19.11.2012 09.11.2012 for A.Y. 2003-04. 2. At the outset before us, the ld. A.R. submitted that though the three appeals are of different assessee but the facts are identical and relates to the same issue except for the amounts and therefore all the three appeals can be considered together. We therefore dispose off all the three appeals of the Assessee by a consolidated order for the sake of convenience. We therefore proceed with the facts of case in the case of Jindal Fashion ITA No. 215/Ahd/2013. 3. The facts as culled out from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause as to why the excess stock found and declared during the course of survey not be added to the income. Assessee interalia submitted that at the time of survey the sale value of the stock found was compared to the cost value of the books stock. It was further submitted that books stock of the goods ascertained on the basis of earlier years gross profit was not at all correct. It was further submitted that quantitative records maintained by the Assessee should be considered for the purpose of reconciliation. With respect to the discrepancy in the cash, Shri Ashok Kumar Jindal stated that the amount has been taken by all the partners and therefore the explanation with respect discrepancy of cash amounting to Rs. 14,03,958/- was accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not disclosed before the Assessing Officer or filed even before the CIT(Appeals) which lead to an estimation of undisclosed stock. The appellant cannot claim benefit of its own conduct of not disclosing full material facts, which leads to estimation and then claiming that it does not amount to concealment. 7.2 It is pertinent to point out that the Explanation-1 to section 271(1)(c) of the I.T. Act in unambiguous terms mentions that disclosure of full material facts before the Assessing Officer is a primary condition for the explanation not to be invoked. Therefore, the appellant s contention is rejected and the penalty levied confirmed. (i.e. ground no. 1 decided against the appellant). 7. Aggrieved by the order of CIT(A), the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,21,538/- as against Rs. 37,81,757/- made by A.O. He further submitted that Hon. ITAT vide order dated 31.08.2010 has upheld the order of CIT(A). The ld. A.R. therefore submitted that the explanation submitted by the Assessee in respect of stock was substantiated by the Assessee and was not found to the false. The difference was on account of valuation of stock and considering the number of items of stock, the explanation of Assessee cannot be brushed as not bona fide. He further placed reliance on the decision in the case of CIT vs. Mecon Builders and Engineers (2001) 248 ITR 159 (Del.) and in the case of Ashish B. Modi (HUF) ITA No. 218/Ahd/2013. He therefore submitted that the penalty be deleted. 8. The ld. D.R. on the other hand supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed in computing the total income shall be considered as the income in respect of which particulars have been concealed for the purposes of cl. (c) of s. 271(1) and the penalty follows. On the other hand, if the assessee is able to offer an explanation, which is not found by the authorities to be false, and assessee has been able to prove that such explanation is bona fide and that all the facts relating to the same have been disclosed by him, then in that case penalty shall not be imposed. 11. In the present case the assessee had disclosed the material facts before the AO. When the assessee has made a particular claim in the return of income and has also furnished all the material facts relevant thereto, the disallowance of such clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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