9911796707
TMI Blog2018 (10) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of the assessee and during the course of survey incriminating material was found indicating escapement of income and consequently the assessee admitted the income of Rs. 3.00 crores spread over for three years involving assessment years 2012-13, 2013-14 and 2014-15. Subsequently, on the basis of incriminating material found, the Assessing Officer (AO) had issued the notice u/s 148 calling for the return of income for the A.Y.2012-13 on 12.11.2013. In response to the notice issued, the assessee has filed the return of income on 06.08.2014 and the case was taken for scrutiny and the notices u/s 143(2) and 142(1) were issued to the assessee calling for various details. In response to the notices issued by the AO, the assessee filed the copies of unaudited Profit & Loss Account, Balance Sheet and its enclosures, bank statements and registered sale deeds pertaining to the sales made during the financial year 2011-12 which was offered to income. The assessee has not produced the books of accounts, vouchers and the audited financial statements before the AO in the assessment proceedings. Therefore, the AO completed the assessment on the basis of impounded material found during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee was admitting the sale consideration as recorded in the sale deeds but not the actual sale consideration which was agreed as per the sale agreement. As observed by the AO, the assessee sold the semi-finished flats to the buyers with sale deed and subsequently made the agreements for additional construction(sale agreement) and the differences noticed in sale deeds and the agreements are as follows : 1. As pet Bundle GNR/BNDL1 of impounded material, at Page No.35, the agreement value was Rs. 1,20,00,000/-. However, the sale value was recorded at Rs. 94,00,000/-. 2. As per Bundle GNR/BNDL-1 of Impounded material, from Page No.13 to 18 & Page Nos. 19 to 28, the value of sale recorded in the saIe-deed and the agreement of sale for same flat are at Rs. 4,90,000/- and Rs. 29,00,000/- respectively. 3. As per GNR/BNDL-12 read with answer to Q.No.37 in the statement recorded on 10-102013, the sale was agreed for three fiats at Rs. 57 Lakhs. However, the sales offered from these to the Profit & Loss Account is Rs. 43.8 Lakhs only. 4. Also, as per the impounded material obtained on 10-10-2013 marked as SS&SIK/A/11, at Page No.28, the sales made to Smt. Ramanadham Sasik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evised total sales. The Ld.AR submitted that when the AO has resorted for estimation of income he should not have made the addition to the returned income which results in double addition. The assessee further submitted that the AO committed the error in making separate addition of Rs. 2,15,000/- on account of unrecorded interest after estimation of income. The Ld.CIT(A) forwarded the submissions of the assessee to the AO for submission of the remand report. At the remand stage also the AO called for the various details with regard to the additional receipts, but the assessee furnished only the ledger account copies of the flat buyers but failed to furnish the remaining details. As stated earlier the assessee failed to get the books of accounts audited. Therefore the AO disbelieved the submissions of the assessee and submitted the remand report supporting the assessment order. The Ld.CIT(A) considered remand report, the submissions made by the assessee and the rejoinder to the remand report and observed that the assessee has not maintained the books of accounts which was confirmed by the assessee in the statement recorded during the course of survey and the assessee has not filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined the value of property at Rs. 14,85,000/- for stamp duty/registration purposes as per the document cited above (back side of page no.129 of paper book). Hence purchase consideration of Rs. 4,90,000/- in the confirmation letter (page no.127 of paper book) is in my view is not correct. From the impounded materials (page no.42 of paper book), it could be noted that appellant received a sum of Rs. 5 Iakhs as token advance from Shri V. Chandrasekhar and hence the actual sale consideration must be more. Relevant impounded material is reproduced. Scanned copy of receipt on the letterhead of G.Narayana Rao Flat No.FF-5 SVL Nilaya Date : 18/3/11 RECEIPT Received Rs. 5,00,001/- (five lakhs one) token advance for Flat No.FF-5, SVL Nilaya from Sri Vallamkonda Chandra Sekhar S/o Sri Satyanarayana. Including car parking & amenities. Sd/- Below the receipt, the following notings are made on the letterhead. 29.00 24.00 (-) 5.00 (-) 5.00 on 26.03.2011 24.00 19.00 before 18.04.2011 Due to inconsistencies, contradictions and the nature of transactions recorded in sale deeds and the sale agreements, the Ld.CIT(A) held that much reliance cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income @11% adopted by the Ld.CIT(A) is erroneous and the Ld.CIT(A) ought to have upheld the estimation of income @ 12.5% as held by the Hon'ble ITAT, Hyderabad in the case of KNR Constructions due to the deficiencies found during the survey. The Ld.DR further supported the case stating that the assessee has not at all maintained the books of accounts and the books of accounts were not found during the course of survey. The books of accounts were neither produced before the AO at the time of assessment nor produced before the Ld.CIT(A) during the appeal proceedings. The Ld.DR further argued that during the remand proceedings also, the assessee failed to produce the books of accounts and the incriminating material found shows the unaccounted receipts in the business of the assessee. Therefore, the Ld.DR argued that the estimation of income @12.5% was rightly made by the AO and requested to uphold the addition. 8.0 Supporting ground No.3 related to separate addition of Rs. 1,23,30,000/-, the Ld.DR argued that the Ld.CIT(A) should not have deleted the addition relating to the additional receipts which was evidenced by the sale agreement. The agreement of the assessee with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t.Ramanadham Sasikala 21,00,000 45,00,000 24,00,000 Boyapati Kishore Kumar 20,00,000 56,00,000 36,00,000 Total 1,83,70,000 3,07,00,000 1,23,30,000 12.1. The Ld.CIT(A) did not accept the contention of the assessee that he did not receive the additional receipts, since the assessee has failed to produce the books of accounts and also did not produce the buyers before the AO for verification of the facts. The fact of non receipt of the additional receipts should be supported by the books of accounts and with the relevant expenditure. The Ld.CIT(A) held that for arriving the total sales the additional receipts also required to be considered but no separate addition required to be made on account of unaccounted receipts and accordingly included the sum of Rs. 1,23,30,000/- in the total turnover and estimated the income thereon. In this case, the assessee has not produced the audit report and the books of accounts either before the AO or before the Ld.CIT(A) and also during the remand proceedings. The sale agreements were found during the course of survey in the premises of the assessee and as per section 292C of the Act, the rebuttal is on assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the revenue nor the assessee could place the material relating to the expenditure claimed with regard to the unaccounted receipts. The revenue did not bring any material to establish that there was no expenditure incurred by the assessee relating to the unaccounted receipts. In the absence of the books of accounts it is unascertainable whether the assessee had booked the entire expenditure relating to accounted and unaccounted receipts. In the absence of any specific material with regard to the expenditure relating to unaccounted receipts, we hold that it is judicious to estimate the income on total receipts inclusive of unaccounted sales instead of making separate addition. The returned income of Rs. 1,00,93,430/- was after admission of additional income of Rs. 99,65,600/-, but not the original income as per Profit & Loss account found during the course of survey. Therefore, we hold the Ld.CIT(A) has rightly deleted the separate addition of Rs. 1,23,30,000/- and arrived at the total turnover of Rs. 13,84,64,334/-. Accordingly the revenues appeal in ground No.3 is dismissed and the cross objection of the assessee in Co.No.80 in ground No.4 is allowed. 13. The AO estimated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimation of income at Rs. 1,52,31,076/- by estimation of income @ 11% on total turnover. This ground is adjudicated by us in revenue's appeal and upheld the order of the Ld.CIT(A), therefore, this ground is dismissed. 19. Ground No.3 is related to the addition of Rs. 2,15,000/- unrecorded interest. This ground is not pressed by the Ld.AR during the appeal hearing, therefore, this ground is dismissed as not pressed. 20. Ground No.4 is related to the separate addition of Rs. 1,23,30,000/- This issue was decided against the revenue and in favour of the assessee in revenue's appeal. Hence, no further adjudication considered necessary. 21. In the result, appeal of the revenue, cross appeal filed by the assessee are dismissed and the cross objections of the assessee are partly allowed. I.T.A.No.499/Viz/2017, CO No.81/Viz/2017 & I.T.A.No.487/Viz/2017 22. A survey u/s 133A was conducted in the business premises of the assessee and simultaneously in the premises of Sri P.Prabhakar Rao on 10.10.2013 who is associated with the assessee. During the course of survey in the premises of Sri P.Prabhakar Rao, loose sheets were found and impounded as Annexure SS&SK/A/1 and the assessee encl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. The assessee argued, that since the amount received was share capital of the firm and the same was transferred to his account by way of journal entries for sale of flat, it should not be treated as loan in cash and accordingly requested to drop the penalty proceedings. The assessee also explained before the Addl.CIT with regard to the ledger account copy titled as 'LIC Colony / CBR Towers Shri Satya Sri Prabhakar Rao from 1.4.2007 to 31.03.2008', found during the survey and supplied to the assessee stating that it was not maintained by him and not aware of the contents. The assessee also further stated that he has not paid any interest and did not claim any expenditure in the profit and loss account to treat the sums received as loans. He has accepted that the receipts were given by him for the amounts received from Sri P.Prabhakar Rao for contribution of share capital in SK Constructions and the unsigned xerox copies of the ledger accounts found in the premises of Prabhakar Rao does not have any evidentiary value. Therefore, requested the Addl.CIT to drop the penalty proceedings. The Addl.CIT found from the impounded material marked as SS & SK/A/1, page No.6 that the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The submission of the assessee that the amounts taken are capital contribution in M/s SK Constructions are self serving and after thought and make believe submissions because (a) The assessee himself says that M/s SK Constructions has not filed any return of income. The very existence of the firm M/s SK Constructions has not been disclosed in any form of return of Income. This shows that the submis sions regarding the firm M/s SK Constructions is an after thought and is self serving and make believe arrangement created by the a ssessee to explain the loan taken by him in cash from these persons is the capital contribution made by the these persons (i.e. P.Prabhakar Rao & T V S G Nagaprasad) In the said firm Also it cannot be believed these persons keep on contributing amounts towards capital contribution year after year while assessee does not make any contribution in the so called firm M/s SK Constructions hence this submission made by the assessee is fake and deserves to be rejected and there by it is rejected." Accordingly the Addl.CIT levied the penalty of Rs. 67,19,000/- representing the loans of Rs. 61,19,000/- and Rs. 6,00,000/- taken from Sri P.Prabhakar Rao and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of loan transaction, emergent financial requirement and ignorance of provisions etc. permits the tax authorities to drop the penalty as per section 273B of the IT Act. However, the Ld.CIT(A) rejected the contention of the assessee since the business expediency was not established. 27.1 The Ld.A.R of the asseessee also stated before the Ld.CIT(A) that Sri P Prabhakar Rao has given a site for development to the assessee and the assessee had spent a sum of Rs. 22,70,000/- for the development expenses on behalf of him. The assessee further submitted before the CIT(A) that the total amount of cash received from Prabhakara Rao during the F.Y.2007-08 and 2008-09 was Rs. 90,48,000/- and out of which an amount of Rs. 22,70,000/- was deducted from Rs. 90,48,000/- for development expenses and the balance amount due was Rs. 67,78,000/- was partly adjusted by sale of one flat at LIC Colony for Rs. 23,10,000/- vide document No.4736/2012 and additional works of Rs. 30,33,000/- and further sum of Rs. 14,35,000/- was adjusted towards the sale of flat to outsider Sk.Abdul Rahim, Hyderabad, since Sri P.Prabhakar Rao has received the amount of Rs. 14,35,000/- directly from the purchaser of the flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. With regard to the reasonable cause, the Ld.CIT(A) dismissed the appeal of the assessee stating that the assessee failed to establish the business exigencies with the tangible evidence. The assessee's claim with regard to capital contribution to SK Interiors and development of site in respect of Sri P Prabhakar Rao was also held to be not established by the assessee and rejected the claim of the assessee which is discussed in detail in para No.5.4. to 5.4.4 of the CIT(A)'s order which reads as under : "5.4. Admittedly, appellant submitted to have received a sum of Rs. 83,48,000/- as loan in cash from Shri P.Prabhakar Rao and Shri T.S.V.G.Naga Prasad during relevant Assessment Year as detailed below : 5.4.1. Sl.No. Lender Name Amount (in cash) 1. Shri P.Prabhakar Rao 68,48,000 2. Shri TSVG Naga Prasad 15,00,000 Total 83,48,000 Impounded material obtained during survey and books of account of appellant confirmed the above. (a) The loan amounts received by appellant from Shri P.Prabhakar Rao in cash are evidenced by the impounded materials detailed below which were found in the premises of Shri P.Prabhakar Rao. S. No. Date of Receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. P. Prathakar Rao gave his site for development to appellant and appellant had spent Rs. 22,70,000/- for development expenses on behalf of Shri P. Prabhakar Rao was not established either before Addl. Commissioner of Income Tax or during appeal proceedings i.e., no evidence in respect of this claim was produced either before Addl. Commissioner of Income Tax or during appeal proceedings." With regard to the sale of flats, the Ld.CIT(A) observed that the evidence is available for sale of flats to Sri P.Prabhakar Rao for sale consideration of Rs. 37,45,000/-, for two flats and the same required to be allowed thus, confirmed the penalty of Rs. 31,03,000/- out of the loans accepted from Sri P Prabhakar Rao. 28.1. In respect of Sri TSVG Naga Prasad, the Ld.CIT(A) observed that Sri Naga Prasad has purchased the flat from the assessee which is supported by the corresponding entry in the relevant sale deed. Therefore, held that penalty u/s 271D is not attracted in the case of Sri TSVG Naga Prasad. Accordingly, the Ld.CIT(A) allowed the appeal of the assessee partly. 29. Aggrieved by the order of the Ld.CIT(A) the revenue is in appeal before us for deletion of penalty levied u/s 271D i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bution to capital is nothing but an effort made by the assessee to circumvent the provisions of section 269 SS of the Act, and the Ld.DR argued that the amounts received by the assessee are nothing but the cash loans which attracts the provisions of section 269SS and consequent penalty u/s 271D of the Act. The receipt of Rs. 15 lakhs on 18.02.2008 and Rs. 5 lakhs on 26.02.2008, though mentioned towards BRP road project, the assessee has not furnished the details of the BRP project, partners, the capital account, pattern of capital and the relevant documentation etc. Further in the receipt it was clearly mentioned that the amount was a project loan which bears the interest @2.50 per month. Therefore, argued that the entire amount of cash receipts accepted by the assessee has nothing to do with the business project or partnership deed and the entire amount is nothing but a loan which required to be repaid along with the interest as per the ledger account copy furnished in paper book page No.22, wherein, the entire amount required to be repaid along with interest. Therefore, argued that the entire amount of loan of Rs. 68,48,000/- is nothing but the cash loan which attracts penalty u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of Rs. 23,10,000/- on 05.09.2012 and the corresponding entries were made in the sale document. Similarly, one more apartment was sold by the assessee to Sri Sk.Abdul Rahim, Hyderabad for a consideration of Rs. 14,35,000/- and the sale consideration was received by Sri P Prabhakar Rao directly. Therefore, the Ld.A.R argued that the assessee has not accepted the loans in cash in violation of the provisions of section 269 SS of the Act., hence the question of attracting the penalty u/s 271D does not arise. He stated that either the amount was adjusted towards the sale of flats or the development works undertaken by the assessee, hence requested to cancel the penalty order passed by the Ld.CIT(A). 31. We have heard both the parties and perused the material placed on record. In this case, the assessee had received the sum of Rs. 68,48,000/- from Sri P Prabhakar Rao as per the details mentioned earlier in this order. The assessee has given receipts on the letter head under his signature which was acknowledged by Sri P Prabhakar Rao. 31.1. The Ld.CIT(A) confirmed the validity of penalty holding that the period of limitation should be reckoned from the date of initiation of penalty by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of syndicate, nature of the project, details of the project and the accounts in writing with regard to the construction of the project or the syndicate with the members etc. No such evidence was placed by the Ld.AR during the appeal hearing either before the Ld.CIT(A) or before the Addl.CIT. During the appeal hearing also, the assessee did not place any evidence to establish that the assessee along with Sri P. Prabhakar Rao had entered into syndicate with common objective for doing the common business. No common bank account was opened, no separate books of accounts were maintained and the funds were not deposited in the common bank account. In the absence of the common bank account, return of Income, the details of the proposed projects the contention of the assessee that he had received the funds from Sri P Prabhakar Rao for the purpose of share capital of the syndicate is baseless and unacceptable. Before taking the sums from the partners, there should be document with the details of the proposed project, syndicate and their members to prove the common business venture. It is uncommon to advance the amounts in large sums throughout the year without common purpose or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of any such evidence, the contention of the assessee that the amounts were received as capital contribution is unacceptable and we hold that the sums received by the assessee are nothing but the cash loans. Mentioning on the face of receipt for as share capital is nothing but an effort to circumvent the provisions of section 269SS of the Act and it is a planned scheme of the assessee. The assessee had enclosed copies of letters filed by Sri P Prabhakar Rao in page No.17 and 19 of paper book, wherein, he had stated that he had given advances to Sri G.Narayana Rao. Further in Page No.18 also Sri P Prabhakar Rao confirmed that he has given amounts to Sri G Narayana Rao. The balance sheet of Sri P Prabhakar Rao for the year ending 31.03.2008 in page No.22 also shows that Sri P Prabhakar Rao has given loans to the assessee and also charged the interest. The balance sheet filed by Sri P Prabhakar Rao in page No.23 and 24 in the paper book also establishes that Sri G.Narayana Rao is a debtor to Sri P Prabhakar Rao and he had given advances to the assessee. All the above facts clearly establish that the sums received by the assessee was the loan but not towards common project or sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009-10, the assessee had received Rs. 22,00,000/- from Sri P.Prabhakar Rao which is part of the total loan of Rs. 90,48,000/- discussed in appeal No.499 of 2008-09. Out of which Rs. 68,48,000/- was related to the assessment year 2008-09 and the remaining amount of Rs. 22,00,000/- was related to the assessment year 2009-10. The Addl.CIT held the said sum as loan as per the facts discussed in Revenue's appeal No.ITA 499/Viz/2017 and levied the penalty of Rs. 22,00,000/- u/s 271D of the Act. The details of amounts taken by the assessee as per the receipts are as under : 27.05.2008 Rs.10,00,000/- 26.06.2008 Rs.5,00,000/- 06.08.2008 Rs.7,00,000/- Total Rs.22,00,000/- 35.1. Aggrieved by the order the AO, the assessee went on appeal before the CIT(A) and the Ld.CIT(A) in his order dated 23.03.2017 confirmed the penalty. Before the Ld.CIT(A), the assessee argued that the assessee had incurred development expenses of Rs. 22,70,000/-for development of site of Sri P Prabhakar Rao, but no evidence was furnished before the Ld.CIT(A), therefore, the Ld.CIT(A) rejected the claim and confirmed the penalty of Rs. 22,10,000/- for the assessment year 2009-10. The Ld.AR reiterated the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the AO and deleted the additions. For ready reference, we extract relevant part of the order of the Ld.CIT(A) in para No.5.3.5 to 5.3.7 which reads as under : "5.3.5. In my view, the net profit admitted by the appellant (with the income offered of Rs. 1 crore under survey) at over 20% for the relevant assessment year is quite reasonable in this line of business. Since there is no evidence in impounded material to hold any unaccounted receipt for the relevant assessment year, in my view, no estimate of income as discussed in para3 of assessment order is necessary 5.3.6. The estimated income of Rs. 42,22,500/- @ 125% on gross receipts of Rs. 3,37,80,000/- is less than appellant's admitted net profit of Rs. 89,80,399/- in profit & loss account (which included appellant's offer of Rs. 1.00 croreunder s.133A of the Act). When the sum of Rs. 1.00 crore offered u/s.133A of the Act is excluded, then the net profit is a negative figure. Under such circumstances, I am not convinced with A.O's view that appellant had shown gross profit @ 8.35%. I, therefore, direct AO to accept appellant's admitted total income of Rs. 95,80,310/-. 5.3.7. Also, no separate ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the unsecured loans relating to V.Malleswari is an opening balance, but not the loan accepted during the year. The revenue did not place any evidence to prove that the said sum of Rs. 17,76,000/- was accepted during the year. The revenue did not controvert the evidences placed by the assessee during the appeal hearing from the income tax returns filed by the assessee with the IT Department. Therefore, there is no doubt that the loan of Rs. 17,76,000/- related to the earlier year, but not related to the year under consideration. The AO made the addition u/s 68 of the Act and as per the provisions of section 68 of the Act, the credits made during the year under consideration for which the source is not explained required to be brought to tax. Since the credit is related to the earlier assessment year, there is no case for making the addition in the year under consideration. Accordingly, we do not find any infirmity in the order of the Ld.CIT(A) and the same is upheld. The appeal of the revenue on this ground is dismissed. 41. Ground No.3 and 4 are related to the additional income offered by the assessee at the time of survey and the income determined by the AO on estimation basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted before the Ld.CIT(A)that the assessee he had inadvertently failed to furnish the details of the loans received through fund transfer from account No.01092100006054 for a sum of Rs. 11,00,000/- on 02.08.2010 before the AO. Even if it is presumed that the loan taken was Rs. 1,20,00,000/-, the assessee submitted that penalty if at all leviable would be 24.01 lacs but not Rs. 35.01 lacs as contended by the Addl.CIT. However, the assessee has maintained that the aggregate loan was Rs. 95,99,000/- but not Rs. 1,20,00,000/-. 45. The Ld.AR argued before the Ld.CIT(A)that the entire amount of loan was received by cheque but not by cash. The Ld.AR further submitted that the papers found during the course of survey were unsigned and has no evidentiary value. The Ld.CIT(A) observed that though the assessee admitted during the course of survey that the loans were accepted by the assessee from Sri Ram Prasad, in the absence of any corroborative material, much reliance cannot be placed on unsigned loose sheets and affidavit of the assessee found during the survey. The Ld.CIT(A) has accepted the contention of the assessee that the loan taken by the assessee was Rs. 95,99,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e borrowed a sum of Rs. 1,20,00,000 (Rupees One Crore Twenty Lakhs Only) on various dates by cash and cheque. Such loan with accrued interest amounted to Rs. 1,92,99,000 (Rupees One Crore Ninety Two Lakhs only) as on date. From out of the said amount, you have paid in various installments by cash and cheque a sum of Rs.______ till date. This Receipt is given with my consent. Witness : 1. 2. 01.11.2010 - Loan of Rs. 1,20,00,000 - Rs.1,20,00,000.00 Interest @Rs.3/- per month Rs.3,60,000 x 19 months - Rs. 68,40,000.00 Total (Principal + Interest) - Rs.1,88,40,000.00 3683 sft. 1142 sft. 400 sft. 5225 sft. 5225 x Rs. 2,600/- - Rs.1,35,85,000/- + So far given - Rs.48,80,000 Total Amount Paid - Rs.1,84,65,000.00 Loose sheet No.30 (scanned copy annexed in the penalty order) 01.11.2010 - Loan of Rs. 1,20,00,000/- - Rs.1,20,00,000 Interest @Rs.3/- per month &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree years. The assessee is permitted to retract the statement within reasonable time but not after long time. Since the assessee has not retracted the statement immediately we hold that the statement recorded during the survey is valid and retraction is an afterthought to overcome the provisions of section 269SS of the act. The Ld.AR relied on the decision of Hon'ble apex court in the case of Commissioner of Income-tax, Salem, Vs. Khader Khan Son*[2012] 25 taxmann.com 413 (SC). The facts of the case are distinguishable with that of the facts of the assessee's case, in the cited case there was no evidence available and the addition was made based on the statement recorded. In the instant case there is an ample evidence which was accepted by the assessee in the statement. Even after retraction the assessee had accepted the contents of the loose sheet with regard to sale of flats as partly correct. Therefore the case law relied on by the assessee has no application in the assessee's case. The material found during the course of survey and supported by the statement recoded on the date of survey proves that the assessee has taken the loan of Rs. 1,20,00,000/-which includes the cash loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loan of Rs. 8,00,000/- in cash during the year under consideration in violation of section 269T of the Act. Though the Ld.AR argued that it represents the interest payment, the same was not supported by the ledger account copy which was extracted by the Ld.CIT(A) in para No.5.4 of the order. In the letter dated 19.02.2015 addressed to Asst.CIT, Circle-2(1), Visakhapatnam, Shri P.Prabhakar Rao has confirmed that he has received part payment of advance. Having held that the amounts received from Shri P Prabhakar Rao was a cash loan and the assessee failed to explain the reasons for repayment of loan otherwise than by crossed cheque, we hold that the Ld.CIT(A) is justified in confirming the penalty levied by the Addl.CIT u/s 271E of the Act. Accordingly, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the assessee. ITA 502/Viz/2017 51. During the year financial year 2011-12 relevant to the assessment year 2012-13, the assessee had repaid a sum of Rs. 36,60,000/- to Shri S.Ram Prasad in cash in violation of the Provision of section 269T of the Act. The Addl.CIT levied penalty of Rs. 36,60,000/- u/s 271E of the Act. The Ld.CIT(A) deleted the penalty imposed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of the loans or deposits held by such person with the branch of the banking company or co-operative bank or, as the case may be, the other company or co-operative society or the firm, or other person either in his own name or jointly with any other person on the date of such repayment together with the interest, if any, payable on such loans or deposits, or (c) the aggregate amount of the specified advances received by such person either in his own name or jointly with any other person on the date of such repayment together with the interest, if any, payable on such specified advances, is twenty thousand rupees or more: Provided that where the repayment is by a branch of a banking company or cooperative bank, such repayment may also be made by crediting the amount of such loan or deposit to the savings bank account or the current account (if any) with such branch of the person to whom such loan or deposit has to be repaid : Provided further that nothing contained in this section shall apply to repayment of any loan or deposit or specified advance taken or accepted from- (i) Government; (ii) any banking company, post office savings bank or co-operative bank; ..... 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