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TMI Blog2017 (7) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... e being disposed off by way of a common order. For the sake of convenience we shall be dealing with the facts in ITA No.556/Chd/2016. ITA No.556/Chd/2016 A.Y 2007-08 3. The assessee in the present appeal has raised following grounds of appeal:- 1 That the Ld. CIT is not justified in confirming the order of Ld. Assessing officer whereas the Ld. Assessing officer has not provided proper opportunity of hearing which is against the natural justice and the assessment order passed u/s 271(1)(c) be quashed. 2 That the Ld. CIT(A) is not justified in confirming the penalty under Explanation 5A to Section 271(1)(c) of the Act amounting to ₹ 18,39,180/-. 4. Brief facts relating to the case are that a search u/s 132(1) of the Income tax Act, 1961 was conducted on 16.01.2009 at the residence and office premises of the individuals and group concerns of M/s A.P. Shresth (Kangan) group of cases by the Investigation Wing, Chandigarh. A survey operation u/s 133A of the Act was carried out at the business premises of the assessee i.e. Kangan Jewellery Shop, SCO 852, NAC, Manimajra, Chandigarh. During the course of search at the residence of Shri Sandeep Bansal, partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 9,87,872/- The assessee is hereby directed to pay a sum for ₹ 18,39,180/- by way of penalty in terms of section 271(1)(c) read with Explanation 5A thereof the I.T. Act 1961, which is equivalent to 100 per cent of tax sought to be evaded. 5. The Ld. CIT(A) upheld the levy of penalty but restricted the quantum of penalty levied to ₹ 9,87,872/-. Aggrieved by same the assessee has now come up in appeal before us. During the course of hearing before us, Ld. Counsel for the assessee drew our attention to the fact that the addition made and upheld in quantum proceedings by the Ld.CIT(A) amounting to ₹ 29,34,872/- u/s 68 of the Act, on which penalty u/s 271(1)(c) had been levied, had been restored to the AO for deciding afresh, by the ITAT vide its order in ITA No. 43/Chd/2013 and ITA No. 222/Chd/2013 dated 29.4.2016. Copy of the order was placed on record. Ld. Counsel, therefore, pleaded that since the basis of levy of penalty no longer existed, the penalty levied ought to the deleted. 6. The Ld. DR conceded that the addition made had been restored to the AO, by the ITAT in quantum proceedings. 7. We have conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Ld. Counsel for the assessee, the sequence wise periodicity of the seized document is as under:- Annexure Period Addition made (in Rs. ) A: 7 25.05.2006 to 03.06.2006 4,14,332/- A: 6 04.06.2006 to 14.07.2006 15,66,110/- A: 3 /P-II 14.07.2006 to 31.08.2006 5,26,000/- A: 5 01.09.2006 to 21.10.2006 5,97,300/- A:3/P:III 21.10.2006 to 30.11. 2006 6,22,000/- A: 8 01.12.2006 to 20.01.2007 3,85,200/- A:3 / P:IV 20.01.2007 to 31.01.2007 3,41,000/- A;$ 01.02.2007 to 31.03.2007 2,73,250/- According to Ld. Counsel for the assessee, the above period may be taken as one period and should not be broken into months / quarte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant findings of the ITAT at Para 33 to 37 of the order are reproduced herewith:- 33. Ground No.3 of the appeal relates to the addition of ₹ 7,38,700/- u/s 68 of the Act on account of peak of Annexure A-9. The Assessing officer noted that during the course of search operation at the residence of Shri Sandeep Bansal, partner of the assessee firm a document Annexure A-9 was seized. This is a note pad which contained details of purchases, sales and other expenses / receipts of the assessee relating to the jewellery w.e.f. 1.4.2007 to 14.7.2007. The Assessing officer reproduced the contents of these documents in para 5 of the assessment order. Despite providing sufficient opportunities to the assessee, the assessee failed to reconcile these entries with regular books. Therefore, the Assessing officer asked the assessee as to why peak credit of these entries should not be treated as undisclosed income of the assessee. The assessee failed to furnish any explanation in this regard. Accordingly, these transactions were treated outside the books of account. The peak credit of these entries have been worked out at ₹ 7,38,700/- by the Assessing officer and the same was add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 1,20,000/- u/s 69C on account of unexplained expenditure. During the course of search operation at the business premises of Shri Sandeep Bansal, partner of the firm, a document Annexure A-2 was impounded. Page 33 of the Annexure A-2 contained the account of Sakshi Jewellers of dated 15/2. However, the year is not mentioned. 37. We have heard the rival submissions. Shri Neeraj Jain Ld. Counsel for the assessee, pointed out that the CIT(A) was not justified in confirming the addition, particularly when year is not mentioned in the document marked Annexure A-2. He vehemently argued that this document does not pertain to search period. It is stated that the document is very old and was recorded in the books of account relating the period prior to period 2003 and no cognizance of the said document should be taken in the assessment year 2008-09. In our view, there is a force in the above contention of Shri Neeraj Jain, Ld. Counsel for the assessee. The document in question does not contain the specific date particularly the year. There is no evidence on record to prove that the document in question pertains to assessment year 2008-09 or the search period. It is also relevant to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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