9911796707
TMI Blog2019 (8) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 5.45 crores on account of holding the entries to this extent as unaccounted for in the books of the assessee, has been rightly deleted by the CI T(A), we hold. - ground of appeal No.2 raised by the Revenue is dismissed. Excess depreciation claimed - claim of higher depreciation on life saving equipments - HELD THAT:- CIT(A) had noted from the details of assets purchased during the year that certain assets did not qualify for higher rate of depreciation and accordingly asked the assessee to file a revised calculation of depreciation. The same was duly filed, gone through by the CIT(A) and no discrepancy or anomaly found in the same and excess depreciation as worked out by the assessee amounting to ₹ 27,71,054/- was upheld by the CIT(A). DR has been unable to point out any anomaly or discrepancy in the findings of the CIT(A). DR has been unable to point out from the revised calculation filed by the assessee to the CIT(A), any incorrectness in the claim of the assessee. In the light of any discrepancy having not been pointed out by the Ld. DR on the facts relating to the revised computation filed by the assessee, we find no reason to interfere in the order of the Ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seized material - HELD THAT:- it is not denied that the documents mentioned the name of Dr. Manjari Bhargava on the first page but in her statement made to the AO she has denied making any entry in the same and has stated that the same may have been made by some staff member. No statement of any staff member has been recorded by the search team. The Ld.CIT(A), we find, has gone through the contents of the document, Annexure A-120, and has noted that it only contains some general notings about the reminders of the work to be done, how the work is to be done and some observation probably of audit. The Revenue has not disputed this fact by pointing out otherwise from the document. As for the figures noted in the document which were the basis of addition made, we find that before the Ld.CIT(A) the assessee had explained the same to be pertaining to balances in its various bank accounts on the said dates, had filed a reconciliation of the figures reflected in the balance sheet with the balances in its bank accounts on that date and had substantiated the same with copies of the relevant bank statements. This explanation has also not been shown to be false before us. We therefore find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f unaccounted cash collections made from OPD/IPD.The order of the CIT(A), therefore, deleting the addition is upheld. Addition of share capital - HELD THAT:- Revenue has not controverted the factual findings of the Ld.CIT(A) that Confirmations, PAN and details of cheques issued by the investors and credited in the bank account of the assessee were submitted. No discrepancy has been pointed out by the Ld.DR in the aforesaid documents. The Ld.CIT(A) has also we find specifically dealt with the contention of the AO that there was mismatch in the cheques shown to be issued by the investors and that shown as deposited by the assessee in his bank account. The Ld.CIT(A) has verified this fact and given a categorical finding that there was no such mismatch. The Ld.DR has been unable to controvert this finding of the Ld.CIT(A). No other anomaly or fact has been brought to our notice by the DR casting any doubt on the genuineness of the transaction. The Ld.CIT(A) has also given a finding that share application money received from two persons was returned subsequently, which also has not been controverted by the Revenue before us. We therefore agree with the Ld.CIT(A) that the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im had been duly disclosed and the disallowance made for want of evidence to prove the rendering of services by the said consultant. It is also a fact on record that the payment was made through banking channels and even TDS deducted on the same. Clearly ,it is not the case that the claim of the assessee was found to be wholly false by the Revenue. We therefore hold that though it may be a fit case for making disallowance of expenses,but definitely the assessee cannot be charged with having concealed/furnished inaccurate particulars of income relating to the same. We therefore direct that the penalty levied on the disallowance of consultancy charges of ₹ 15 lacs be deleted. Penalty for addition on account of difference in receipts reflected in the provisional trial balance and that shown in the books of account - HELD THAT:- The figures reflected in the provisional trial balance cannot be said to the final figures of receipts and, therefore, as rightly stated by the assessee, the addition made is not on account of any concrete finding that the assessee had not disclosed income to the extent of difference between the two document. We therefore hold that though it may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the common issues arose first in A.Y 2008-09 and therefore stated that the appeal and cross objection relating to assessment year 2008-09,be first taken up for hearing. The appeal of the Revenue in I TA No.33/Chd/2014 was first taken up for hearing. ITA No.33/Chd/2014(A.Y.2008-09): 5. Ground Nos.1, 4 5 it was stated were general in nature. The same, therefore, need no adjudication. 6. Ground No.2 raised by the Revenue reads as under: 2. The Ld CIT (A) has erred on the facts and in law in deleting addition of ₹ 5,45,00,000/- made u/s 68 of the Act since the assessee has failed to prove that the whole amount related with cash receipts in Annexure A2 was deposited in banks and shown in the books of account. 7. The issue raised in the above ground relates to addition made on account of discrepancy noted in a document, A-2, seized during search at the assessee s premises. 8. Drawing our attention to the facts of the case it was pointed out that a diary was seized from the premises of the Director of the assessee company, Dr.Kamlesh Bhargava, which had entries relating to cash received by him day-to-day and covered the period from 2.5.2007 to 20.9.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee reiterated his contentions by filing detailed submissions and also various details and workings to prove that the entire cash receipts reflected in the document A-2 had been accounted for in the books of the assessee. The Ld.CI T(A) on perusing the same was convinced and accordingly deleted the addition made by the AO. 11. Before us, the Ld. DR contended that the fact that the document A-2, seized from the Director of the assessee company, contained notings of cash receipts and that deposited in the bank by the Director from the business of the assessee hospital, has not been disputed by the assessee. Also not disputed, it was contended, was the fact that the said document reflected a difference of ₹ 5.45 crores between the cash receipts and cash deposited in bank by the Director during the impugned year. The Ld. DR contended that the assessee had failed to prove that it had deposited the whole amount of cash receipts reflected in the diary, in the bank and, therefore, the AO had rightly made the addition of the difference in the hands of the assessee as income unaccounted in the books of the assessee. The Ld. DR heavily relied upon the findings of the AO at para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that the cash receipts reflected in the documents had been duly accounted for in the books of the assessee and also deposited in the bank account of the assessee and, therefore, the Ld.CI T(A) had rightly held that there was no reason to hold any amount of the cash receipts as unaccounted in the books of the assessee. The Ld.Counsel for the assessee at this juncture took us through various details and explanation filed to the lower authorities and placed in the form of Paper Book before us. Beginning with the document which formed the basis of the addition, being diary seized from the Director of the assessee company Dr.Akhil Bhargava and mentioned as Annexure A-2, placed at Paper Book page Nos.34 to 83, the Ld.Counsel for the assessee pointed out that on the basis of the details extracted from this document, it was found that there was a difference in the cash receipts reflected by Dr.Akhil Bhargava from assessee s business of running the hospital and amount deposited in bank, to the extent of ₹ 5.45 crores for the impugned year. It was pointed out from the said document that admittedly it contained datewise notings of cash received by Dr.Akhil Bhargava and also notings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008, 20-10-2008, 26-10-2008, 27-10-2008, 05-11-2008, 15-11-2008, 25-11-2008, 28-11-2008, 12-12-2008, 26-12-2008, 07-01-2009, 08-01-2009, 25-01-2009, 15-02-2009, AY 2009-10 07-04-2009, 06-05-2009, 07-05-2009 06-06-009 07.06.2009 08-06-2009, 09-06-2009, 10-06-009 11-06-2009 12.06.2009 13-06-2009, 14-06-2009, 15-06-2009 1-06-2009 17.06.2009 18-06-2009, 19-06-2009, 20-06-2009 21-06-2009 22.06.2009 23-06-2009, 12-07-2009, 13-08-2009 06-11-2009 07.11.2009 08-11-2009, 24-11-2009, 31-12-2009, 08-01-2010, 12-03-2010, 13-03-2010, 14-03-2010, 15-03-2010, 16-03-2010, 17-03-2010 18-03-2010, 19-03-2010, 20-03-2010, 21-03-2010, AY 2010-11 02-04-2010, 09-04-2010, 10-04-2010, 11-04-2010, 17-06-2010, 18-06-2010, 19-06-2010, 20-06-2010, 24-06-2010, 07-08-2010, 08-08-2010, 09-08-2010, 10-08-2010, 11-08-2010, 12-08-2010, 13-08-2010, 14-08-2010, 15-08-2010, 16-08-2010, 17-08-2010, 18-08-2010, 19-08-2010, 20-08-2010, 21-08-2010, 22-08-2010, 3-08-2010, 24-08-2010, 26-08-2010, 12-09-2010, Thus, before going into the amounts included in the said diary, it is submitted that said diary maintained by Dr. Akhil Bhargava was an incomplete diary with incomplete records of receipts and deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100,000 As against this meager total for the entire period, the total amount of cheques/DD's deposited in the bank are to the tune of ₹ 44.19 crores during the said period. This further proves the point that the diary maintained by Dr. Akhil was an incomplete diary with incomplete records since all deposits of cash/cheques/drafts are not recorded by Dr. Akhil in a proper manner. 14. Thus the Ld.Counsel for the assessee contended that it was sufficiently proved to the authorities below that the diary was an incomplete record of entries and no cognizance could therefore be taken of the same. 15. Thereafter the Ld.Counsel for the assessee contended that another document,A-116, was also found during search which was a sort of petty cash book/record maintained by the cashier who after meeting out day-to-day expenditure would transfer the balance cash to Dr.Akhil Bhargava for safe keeping and which would be noted in his diary,A-2. The correlation between entries in document A-116 and A 2, Ld.Counsel contended, was also demonstrated to the lower authorities, by matching the balance of cash at the end of select days reflected in the document A-116 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, as regards the amounts appearing as deposits, it could alsobe observed that the diary A-2 indicates cash deposited every now and then. The sum so deposited is reflected in the bank statement. The said annexure along with the bank statement highlighting the same amounts in the bank wasp/aced before Your Honors and the same verified. The bank accounts wherein the said cash is deposited are the banks of the assessee company which are reflected in the balance sheet. In light of the above, it is submitted that t he said annexure must be read as a whole wherein the deposits are considered to be accounted for and thus, since the total cash receipts of the assessee is more than the collection mentioned in the diary (as demonstrated in our earlier submissions dated 26.03.2013), the entire diary should be construed to be recorded accounted for in the books of account. Thus in the current circumstances, there is nothing to warrant any addition on this account. Further, on making a total summation of the amounts in the diary it comes p a total of ₹ 25.55 crores for the various years mentioned therein. As against this, a total of ₹ 24.80 crores has been deposited i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion it was submitted that the total revenue booked by the assessee in the different years was more than the amounts deposited in the bank as cash and cheque. 20. The Ld.Counsel for the assessee, therefore, contended that in view of the above, the Ld.CIT(A) had rightly held that there was no case for holding that the assessee had not accounted for the cash receipts to the extent of ₹ 5.45 crores noted in the diary in Annexure A-2 and deleted the addition so made by the AO. Our attention was drawn to the findings of the Ld.CI T(A) at para 4.3 to 4.3.4 as under: 4.3 I have considered the submission of Ld. Counsel. At the outset, it may be mentioned that section 68 has no application to the facts of this issue as this section applies only when an amount is found credited in the books of accounts of an assessee and the assessee cannot explain the source of that credit. This section cannot be applied where a revenue receipt is omitted from the accounts as appears to be the case of the Revenue. However, that is not of importance and the basic issue is whether the amount in question is taxable in the hands of the appellant or not.- 4.3.1 I have also gone through the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard,, which means that the figures mentioned by the appellant are correct. Be as it may, the entries in this Annexure A-2 regarding receipt of cash by Dr. Akhil Bhargava and deposit thereof in the bank account cannot form the basis of addition, since as discussed above, the appellant has not understated its receipts and moreover, no other corroborative material was found and seized to indicate that the receipts are understated. It is also seen that the appellant has declared more cash receipts in its books of accounts than the cash receipts recorded in Annexure A-2 and so the cash receipts are in no way understated. 4.3.4 In view of the above, it is held that the Assessing Officer was not right in treating the difference of cash collection and deposit thereof in the bank accounts as per Annexure A-2 as undisclosed income of the appellant and so the addition made on this account is deleted. Ground of appeal No. 3 is allowed. 21. We have heard the rival contentions carefully, gone through the orders of the authorities below and also the documents referred to before us. We do not find any infirmity in the order of the CIT(A). As rightly stated by the Ld.CI T(A), the AO has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has directly correlated the two figures and established the fact that all cash receipts noted in the diary and in fact more was were duly accounted for in the books of the assessee. Not a single instance of cash noted as received any day in the diary has been pointed out to us as not reflected in the books of account by the assessee from the voluminous details filed to the revenue authorities. The detail filed by the assessee comparing the daily cash receipts noted in the diary and that reflected in the books of account for the entire year, the monthly summary of the cash receipts noted in the diary and that reflected in the books of account, all clearly show that the cash accounted for in the books was more than that reflected in the diary with the diary reflecting total cash receipts of ₹ 6.68 crores, while the books reflected cash receipts for the same period of ₹ 9.22 crores. The Revenue has neither controverted these facts, nor pointed out any anomaly in the same. This fact in itself establishes that all the cash receipts noted in the diary were duly accounted for in the books of the assessee. There is no basis, therefore, with the Revenue for holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the claim of higher rate of depreciation, the assessee submitted that these equipments were in the nature of life savings equipments and so higher rate of depreciation was allowable for the same. The Assessing Officer was not satisfied with the explanation of the assessee and restricted the depreciation to 15% on these items. 29. During appellate proceedings the Ld.Counsel for the assessee conceded its claim of depreciation @ 40% on the assets purchased up to financial year 2005-06 stating that it was cumbersome to segregate the assets upto that year. Regarding the assets purchased thereafter, the assessee was asked by the Ld.CI T(A) to file the list of assets which were eligible for claim of depreciation @ 40%. The assessee accordingly file a revised claim of depreciation in all the years involved. The Ld.CIT(A) accordingly on the basis of the revised claim so filed by the assessee, disallowed depreciation relating to the impugned year restricting the depreciation to be disallowed for the impugned year to the extent of ₹ 27,71,054/-. The relevant findings of the Ld.CI T(A) at paras 5.3 to 5.3.2 of the order are as under: 5.3 1 have considered the submission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly asked the assessee to file a revised claim, which was duly filed by the assessee and after going through it the Ld.CIT(A) had restricted the disallowance of depreciation to the extent as calculated by the assessee in its detail submitted amounting to ₹ 27,71,054/-. The Ld.Counsel for the assessee stated that there was no requirement, therefore, to interfere in the order of the Ld.CI T(A). 32. We have heard the rival contentions and perused the orders of the authorities below. The facts relating to the case are that the AO had disallowed the claim of depreciation @ 40% on surgical equipments on the opening balance of these assets/WDV of these assets and on certain assets purchased during the year which as per him, did not qualify for the higher rate of depreciation amounting to ₹ 38,58,533/- and ₹ 10,70,314/- respectively and which added upto ₹ 49,28,847/-. Admittedly, the assessee had foregone its claim of depreciation at higher rate on the WDV of assets. Therefore, there is no dispute vis- -vis the same. It is only the depreciation at higher rate of assets purchased during the year which, in fact is in dispute. As rightly pointed out by the Ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Assessing Officer noticed that the assessee had debited a large amount to the profit and loss account on account of interest paid on borrowed funds. At the same time, the assessee had made interest free advances as under: a) M/s Silver Oak Foundation ₹ 21,42,000/- b) Advance for land ₹ 21.50.000/- Total ₹ 42,92,000/- 35. The Assessing Officer questioned the assessee regarding business expediency for making these advances and also about proportionate disallowance of interest u/s 36(l)(iii) of the Act. The assessee filed a reply, the contents of which were summarized by the Ld.CIT(A) at para 3.1.1 of his order as under: (i) M/s Silver Oak Foundation is running a college under the name and style of 'Silver Oak College of Nursing', imparting medical/ nursing education to the students. The nurses trained in the college are provided to the hospital and so commercial expediency stands explained. (ii) Regarding advance for purchase of land at Abhipur, the same was shown as ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the investment in relation to which disallowance was made amounted to ₹ 42.92 lacs. It was, therefore, contended that in view of various decisions of various judicial authorities, the presumption was that the investment has been made out of own interest free funds of the assessee calling for no disallowance of interest u/s 36(1)(iii) of the Act. 40. The Ld. DR, on the other hand, relied upon the order of authorities below. 41. We have heard the rival submissions, perused the orders of the authorities below. It is settled law that where sufficient own interest free funds are available, the presumption is that non business advances/investments have been made out of the said interest free funds. The Hon'ble Supreme Court has held so in the case of CIT (LTU) vs Reliance Industries Ltd. in Civil Appeal no.37 of 2019 dated 02-01-19. In view of the above settled law and considering the uncontroverted fact that the assessee had own interest free funds in the form of profits of the year alone amounting to ₹ 2.12 crores which were more than sufficient for making the impugned investments of ₹ 42.92 lakhs, we hold that no disallowance of interest u/s 36(1)(iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue are that as per Annexure A-119, seized during the course of search, the receipts from ECHS and CGHS were to the tune of ₹ 13.61 crores, whereas the assessee had shown receipts of only ₹ 11.38 crores in its books of accounts and so the addition of the difference, being ₹ 2.23 crores, was made by the Assessing Officer. 49. Before the Ld.CIT(A) the assessee contended that there was a mistake in totaling the amount of receipts from ECHS and CGHS reflected in Annexure A-119 and that the total was less than the amount accounted for by the assessee in its books of account. The Ld.CIT(A) asked the AO to compute the total amount of receipts in Annexure A-119, who in turn conveyed to the CIT(A) that the total of Annexure A-119 was ₹ 9,39,65,366/-. The Ld.CIT(A) noted that since the assessee had shown more receipts in its books of account at ₹ 11.38 crores as compared to that reflected in Annexure A-119, the addition was wrongly made by the AO. He further noted that the entire amount received by the assessee from ECHS and CGHS was through cheques only and, therefore, held that there was no question of any understatement of the said receipts. The addition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the before the CIT(A), the assessee had withdrawn its claim of excess depreciation on the WDV of assets as on 31-03-2006 and for the assets purchased thereafter had filed a revised claim of depreciation as per which accordingly the CIT(A) had restricted the disallowance to ₹ 11,28,169, as against ₹ 46,70,605/- disallowed by the A.O. 55. Since admittedly the issue is identical to that in Ground No.3 of the Revenues appeal for A.Y 2008-09 in ITA No.33/2014 dealt with us above, our decision rendered therein at para 32 of our order will apply to the present ground, following which we uphold the order of the Ld.CIT(A) allowing relief on account depreciation claimed at higher rate on life saving equipments ,amounting to ₹ 35,42,436/- Ground of appeal No.4 raised by the Revenue is dismissed. In effect the appeal of the Revenue is dismissed. We shall now take up the Cross Objection filed by the assessee for A.Y 2009-10. CO No.10/Chd/2014 (A.Y 2009-10) 56. Ground No.1 raised by the assessee reads as under: 1. That order passed u/s 250(6) of the Income Tax Act, 1961 by the Ld. Commissioner of Income Tax (Appeals), Chandigarh is against law and fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has failed to prove that the whole amount related with cash receipts in Annexure A-2 was deposited in banks and shown in the books of account. 64. It was common ground between the parties that the issue raised in ground No.2 as above was similar and in fact identical to ground No.2 raised in Revenues appeal in ITA No.33/Chd/2014 for A.Y 2008-09 dealt with us above. It was pointed out that the issue arose from the difference of cash receipts and the amount of cash deposited in bank as noted in document A-2 found during search. That during the impugned year the said difference was ₹ 2.50 crores which was added back to the income of the assessee u/s 68 of the Act. Both the parties contended that their pleadings were identical to that made in ground no.2 of ITA No.33/Chd/2014 for A.Y 2008-09. 65. Since admittedly identical issue has already been dealt with by us in Revenues appeal for A.Y 2008-09 in ITA No.33/Chd/2014, our decision on the same rendered at paras 21 to 26 of our order above will apply to the present ground also, following which we uphold the order of the CIT(A) deleting the addition made of ₹ 2.50 crores . The ground of appeal No.2 raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from other notings on the same page and these notings pertained to audit observations. It was also submitted that that these entries were relatable to balances of the bank as on that date. The Assessing Officer recorded the statement of Dr. Manjari Bhargava, whose name was mentioned in the first page of the diary and she had explained that she had only written her name on the diary, but entries in the diary had not been made by her. The Assessing Officer was not satisfied with the explanation of the assessee and added entire amount of ₹ 16,92,72,420/- u/s 68 of the Act. 72. The Ld.CIT(A) went through the contents of the impugned documents and noted that the notings in the same pertained to reminders in the form of jobs to be done, some basics about how to do the work and some other observations, probably of audit. He, also noted that for the figures mentioned in the said document which formed the basis of the addition, they were shown by the assessee to be reflecting the balances of the bank accounts as per the books of account. He, therefore, held that the addition could not be made on the basis of scribblings of some staff member since the person named in the diary Dr.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,29,70,189 4,28,76,170 4,28,76,170 As per 4,22,78,168 4,16,02,105- 4,32,49,150 4,21,42,977 Difference 31,499 13,68,084 (3,72,980) 7,33,193 6.3.3 As already discussed, clarification/ statement of the person, who had written this diary, was not recorded. In any case, the appellant has explained the notings on this diary and addition cannot be made on the basis of scribblings by some staff member, who was probably reconciling the audit observations regarding bank balances. The addition made on this account is accordingly deleted. Grounds of appeal Nos. 5.1 to 5.3 are allowed. 73. Before us the Ld. DR relied upon the findings of the AO that since Dr.Manoj Bhargava, whose name found mentioned in the diary, had failed to give any satisfactory explanation of the entry, the addition was rightly made. Our attention was drawn to para 6.2 of the AO s order as under|: 6.2 The assessee reply is duly considered, but not accepted because assessee has failed to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates, had filed a reconciliation of the figures reflected in the balance sheet with the balances in its bank accounts on that date and had substantiated the same with copies of the relevant bank statements. This explanation has also not been shown to be false before us. We therefore find no infirmity in the order of the Ld.CIT(A) holding the impugned figures in the document to be mere rough notings made during audit and thus deleting the addition made by the A.O. 77. The order of the Ld.CIT(A) in deleting the addition of ₹ 16.92 crores is, therefore, upheld. Ground of appeal No.4 is accordingly dismissed. In effect appeal of the Revenue is dismissed. We shall now take up assesses Cross Objection for A.Y 2010-11 CO No.11/Chd/2014: ( A.Y 2010-11) 78. Ground No.1 raised by the assessee reads as under: 1. That order passed u/s 250(6) of the Income Tax Act, 1961 by the Ld. Commissioner of Income Tax (Appeals), Chandigarh is against law and facts on the file in as much as he was not justified to arbitrarily uphold the disallowance of ₹ 11,00,376/- out of interest account by resort to provisions of section 36(1)(iii) ignoring the fact that the advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us, the Ld.Counsel for the assessee reiterated the contentions made before the lower authorities that the gross receipts of ₹ 21.24 crores were mentioned in the provisional trial balances and, therefore, was a provisional figure and even otherwise the difference between the actual receipts recorded by the assessee and provisional figure was meagre being ₹ 11 lacs only and, therefore, warranted no addition. The Ld. DR relied upon the order of the CIT(A). 86. We have heard the rival contentions. The issue relates to addition made on account of difference of gross receipts as reflected in the provisional trial balance seized from the assessee s premises being Annexure A-110 and that reflected in the Profit Loss Account amounting to ₹ 11 lacs. Since it is an admitted fact that the document Annexure A-110 was a provisional trial balance of the assessee, the onus rested on the assessee to explain the difference between the gross receipts reflected in the same and that accounted for in the books of the assessee. Whatsoever and howsoever meagre they were the assessee was required to give a plausible explanation for the same since the recordings in the provisional t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and in law in allowing the relief of ₹ 32,30,593/- in respect of excess depreciation claimed since the assessee has failed to prove the claim of higher depreciation on life saving equipments. 93. It was common ground that the issue raised in ground No.3 above was identical to that raised in ground No.3 of the Revenues appeal for A.Y 2008-09 in ITA No.33/Chd/2014 dealt with us above and related to excess depreciation allegedly claimed by the assessee on life saving equipments. It was pointed out that the before the CIT(A), the assessee had withdrawn its claim of excess depreciation on the WDV of assets as on 31-03-2006 and for the assets purchased thereafter had filed a revised claim of depreciation as per which accordingly the CIT(A) had restricted the disallowance to Rs.(3,10,449/-) as against ₹ 32,30,593/-/- disallowed by the A.O. 94. Since admittedly the issue is identical to that in Ground No.3 of the Revenues appeal for A.Y 2008-09 in ITA No.33/2014 dealt with us above, our decision rendered therein at para 32 of our order will apply to the present ground, following which we uphold the order of the Ld.CIT(A) allowing relief on account depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue before us relates to difference in cash receipts as recorded in a document seized during search, numbered Annexure-95. Page 84 and that as shown in the books of account of the assessee being ₹ 10,01,05,101/- and ₹ 9,68,66,118/- respectively, resulting in a difference of ₹ 32,38,983/-. The assessee has explained the document to be handwritten/copied extract of the receipts of the assessee as reflected in the billing software summary. The Revenue has not disputed this fact and the same is evident from the copies of the said two documents placed before us at Paper Book page No.38 as being the billing software summary as under: 366 GE10277 31/03/2010 18:51 C 300 PARMOD KUMAR 367 GE10278 31/03/2010 19:04 C 500 PARMOD KUMAR 368 GE10279 31/03/2010 19:26 C 35 INJD 369 IP013719 31/03/2010 21:06 C 10,000.00 Admission Advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue ₹ 20,15,258 Draft ₹ 31,05,000 Credit Card ₹ 80,40,853.50 Total OPD Collection 16724217.10 Refunds 286939.00 Net 18928749.10 Total IPD Collection 98425276 Refunds 4087812 Net 94337464 100. It is evident that the summary of total receipts of the assessee as recorded in the software were noted in the impugned document. The Department noted that while the cash receipts shown therein amounted to ₹ 10 crores odd, the assessee had shown receipts in its books of ₹ 9.68 crores only and on account of absence of any plausible explanation added back the difference as unrecorded cash receipts. 101. On going through the order of the Ld.CIT(A) deleting the addition made, we find that one of the reason for deleting the addition was the fact noted by the CIT(A) that the billing software summary related to the period ending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Draft ₹ 3,05,000/- Credit Card ₹ 8,80,893/- ₹ 1,89,28,749/- 104. Similarly, the IPD collections are given as under: Cash ₹ 8,24,79,717/- Cheque ₹ 18,97,787/- Draft ₹ 2,98,00,000/- Credit card ₹ 71,59,960/- Total ₹ 9,43,37,461/- 105. On totaling each mode of collections from the OPD and IPD , the same tallies with the total collections for different modes as reflected above(1,89,28,749 + 9,43,37,461 = 11,32,66,210). The total of the OPD and IPD collections as aggregated above being ₹ 1,89,28,749/- and ₹ 9,43,37,464/-, we find are reflected against the TOTAL O.P.D COLLECTION Net / TOTAL I.P.D COLLECTION Net in the summary sheet as under: TOTAL O.P.D COLLECTION ; 1672421.10 Refunds 286939.00,Net: 18928149.10 TOTAL I.P.D COLLECTION : 98425276.00 Refund 4087812.00 Net:: 9433746400 In the same column ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) deleted the addition so made on finding that the entries were mere scribbblings and, therefore, could not be said to be unaccounted income or receipts of the assessee. The relevant findings of the CIT(A) at para 7.4 of his order are as under: 7.4 A perusal of other pages of this annexure (a note pad) reveals that these contain some entries alongwith the bills numbers and these entries are relatable to the bills issued by M/s Silver Oak Medicos, a proprietorship concern of Dr. Manjari Bhargava. However, the entries made at page No. 19 are not relatable to entries made on other pages of this annexure. This annexure was maintained by some employee, who could have explained the no tings made on this annexure, but the explanation/ statement of the person, who had made these notings, was not recorded at the time of search or post search enquiries. Be as it may, these entries are mere scribblings, whose sum has also not been correctly worked out (the total of these entries is 28.33 lacs, whereas the total on this page is mentioned as 28.50) and cannot be said to be unaccounted income/ receipt of the appellant, particularly when the entries made on other pages of this annexure ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation of the assessee and made addition of ₹ 60,74,000/-, which was sum of the 'profit' column of this register. 114. The Ld.CIT(A) deleted the addition observing as under: 8.3.1 The appellant has explained that for ECHS/ CGHS patients, treated by the appellant hospital, the bills are issued on various counts like OPD, surgery, room rent, medicines, dialysis, scanning etc. It is also explained that consolidated amount is received from ECHS/CGHS in respect of various patients. According to the appellant, this register (A-21) contains patientwise detail of the amounts received from ECHS/ CGHS, which had been bifurcated among various sister concerns. 8.3.2 A perusal of various pages of A-21 reveals that the explanation of the appellant is correct. This register (A-21) contains details of receipts from ECHS/ CGHS and these receipts have been bifurcated by making various columns like Med (medicines), MRI, implant, CT etc. The last column on various pages of this register is 'profit'. The entries were made by some staff member, probably for the purposes of bifurcation of receipts (from ECHS/ CGHS) among various concerns carried on by the group. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umn was profit. The CIT(A) has also given a finding that the total of the profit column has been reflected by way of profits of M/s Anvit Enterprises and M/s Silver Oak Medicos. The aforesaid factual findings of the Ld.CIT(A) have also remained uncontroverted before us. In view of the same, we do not find any reason to interfere in the order of the CIT(A) deleting the addition of ₹ 60.74 lacs. Ground of appeal No.6 is, therefore, dismissed. 118. Ground No.7 raised by the Revenue reads as under: 7. The Ld CIT (A) has erred on the facts and in law in deleting addition of ₹ 36,03,000/- made u/s 68 of the Act since the assessee has failed to explain the entries made in the Annexure A-3 of the seized material. 119. Brief facts, as stated in the CIT(A) s order are that, this annexure (which was a register) contained details of advances received from various patients covered by ECHS/ CGHS and also the details of payments received from ECGS/ CGHS. The assessee had claimed before the Assessing Officer that the receipts were duly reflected in the books of accounts of the assessee company, but the Assessing Officer was not satisfied with the explanation of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money in currency chest and this fact was relatable to Annexure A 2, in which equal amount had been entered as in A-116. The Assessing Officer was not satisfied with the explanation of the assessee and made addition of the amount seized of ₹ 45,17,000/-. 125. The CIT(A) deleted the addition holding as under: 11.3 I have considered the facts of the issue. The Annexure A-l16 is a petty cash book and cash is handed over to Dr. Akhil Bhargava each day for keeping the same in the currency chest. The amount given to him everyday is mentioned in A-l 16 and is relatable to the entries made by Dr.Akhil Bhargava in the diary A-2, which was also seized. Thus, the conclusion of the Assessing Officer that cash in hand reflected in A-l 16 is actual cash in hand as per the books of accounts, is not correct. 11.3.1 The accounts of the appellant are maintained on computerised accounting system Tally' and it is noticed that as on the date of search i.e. 21.09.2010, the entries had been made in tally accounts only upto 01.09.2010. As per these computerized accounts, cash in hand as on 01.09.2010 was of ₹ 62,80,060/-. The appellant has prepared its cash book after this date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income Tax (Appeals), Chandigarh is against law and facts on the file in as much as he was not justified to arbitrarily uphold the disallowance of ₹ 11,00,376/- out of interest account by resort to provisions of section 36(1)(iii) ignoring the fact that the advance was made for the purpose of business. 131. It was common ground between the parties that the issue in the above ground was identical to that raised in ground No.1 of assesses C.O. No.9/Chd/2014,and related to disallowance of interest u/s 36(1)(iii) of the Act ,in relation to purported non business advances made to the same parties as in A.Y 2008-09 as under: Silver Oak Foundation ₹ 91,69,805/- PSIDC ₹ 25,00,000/- 132. The Ld.Counsel for the assessee contended that his argument against the said disallowance upheld by the CIT(A) was the same as in A.Y 2008-09, that the advances were the same as in preceding year except additional advance given to PSIDC of 3.50 lacs, that the assessee had sufficient own interest free funds ,in the form of Reserves for the year amounting to ₹ 7.72 crores and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned party. It was also submitted that nature, source and identity of the investors was established and no case could be made out to doubt the genuineness, existence or identity of the investors and so provisions of section 68 could not be invoked. The appellant had relied upon the judgements of Hon'ble Supreme Court in the cases of M/s Lovely Exports (P) Ltd. (216 CTR 195), affirming the judgement of Hon'ble Delhi High Court (299 ITR 268) and of M/s Steller Investment Ltd. (251 ITR 263), affirming the judgement of Hon'ble Delhi High Court (192 ITR 287). The Assessing Officer was not satisfied with the explanation of the appellant and held that the creditworthiness and genuineness of transaction was not proved. He accordingly, made addition of entire amount of ₹ 90 lacs. 138. During appellate proceedings before the CIT(A), the assessee submitted additional evidence by way of confirmation of the parties which after considering the objection of the AO was duly admitted by the CIT(A). The Ld.CIT(A) thereafter, after considering all the evidences on record found that the contention of the AO that the cheques shown to be given to the assessee and that deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh. Arjinder Bains and Arjinder Bains (HUF). The contention of the Assessing Officer that the payments might have been for some underlying business transaction is not supported by any evidence and no document was found at the time of search also to indicate such a possibility. 3.3.1 The Assessing Officer has mentioned in his report that the bank account statements submitted showed some amounts and cheque numbers, which do not match with the bank statements is factually incorrect. All the share application money received from all the persons have been credited to the bank account of the appellant company. The appellant has provided sufficient evidence in the form of cheques received from Sh. Arjinder Bains and Arjinder Bains (HUF) and the cheque numbers match with the cheque numbers mentioned in the bank statement of the appellant company. The Assessing Officer has also contended that the entries regarding share application money in the bank statement of Sh. Amardeep Singh Sidhu and Sh. Bhupinder Baidwan are not proper and do not correlate with the entries of the bank statement of the appellant company, but the contention of the Assessing Officer in this regard is not correct. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: The assessee has to prima facie prove (1) the identity of the creditor/subscriber; (2) the genuineness of the transaction, namely, whether it has been transmitted through banking or other indisputable channels; (3) the creditworthiness or financial strength of the Briber; (4) if relevant details of the address or PAN identity of the creditor/ subscriber are furnished to the Department along with copies of the shareholders register, share application forms, share transfer register, etc. it would constitute acceptable proof or acceptable explanation by the assessee; (5) the Department would not be justified in drawing an adverse inference only because the creditor/ subscriber fails or neglects to respond to its notices; (6) the onus would not stand discharged if the creditor/ subscriber denies or repudiates the transaction set up by the assessee nor should the AO take such repudiation at face value and construe it, without more, against the assessee; (7) the AO is dutybound to investigate the creditworthiness of the creditor/ subscriber, the genuineness of the transaction and the veracity of the repudiation. In the case of private placement the legal regime would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has also we find specifically dealt with the contention of the AO that there was mismatch in the cheques shown to be issued by the investors and that shown as deposited by the assessee in his bank account. The Ld.CIT(A) has verified this fact and given a categorical finding that there was no such mismatch. The Ld.DR has been unable to controvert this finding of the Ld.CIT(A). No other anomaly or fact has been brought to our notice by the Ld.DR casting any doubt on the genuineness of the transaction. The Ld.CIT(A) has also given a finding that share application money received from two persons was returned subsequently, which also has not been controverted by the Revenue before us. We therefore agree with the Ld.CIT(A) that the assessee had duly discharged its onus of proving the genuineness of the transaction and with the Revenue not pointing out any reason to doubt the same, there remains no basis for treating the share capital as unexplained . In view of the above, we uphold the order of the CIT(A), deleting the addition made of ₹ 90 lacs on account of unexplained share application money. The ground of appeal raised by the Revenue is dismissed. In effect the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny incriminating material found during the course of search which could have led to the impugned addition. It was further pointed out that earlier the assessment for the impugned year was completed and the order now passed u/s 153A r.w.s. 143(3) of the Act, making additions could have been made only on the basis of incriminating material found during the course of search, as laid down in various judicial decisions. Our attention was drawn to the decision of the ITAT Chandigarh Bench in the case of Mala Builders Pvt. Ltd. vs ACIT reported in 51 ITR (Trib) 272 pointing out therefrom the reference made to several decisions of the Hon ble High Courts holding so. 146. The Ld.DR was unable to bring to our notice any incriminating material found during search which was the basis of the addition made, though at the same time he vehemently argued that various high courts had ruled otherwise also holding that addition need not be confined and based only to material found during search. 147. We have considered the contention of the Ld.Counsel for the assessee. We agree that it has been time and again been held by the various High Courts that if no incriminating material is found during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of the assessee without appreciating the facts of the case. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the penalty of ₹ 1,40,145/- on the confirmed addition u/s 36(l)(iii) by relying on the decision of the Hon'ble Punjab Haryana High Court in the case of Commissioner of Income-tax - III, Ludhina v. Trident Infotech Corpn. Ltd.[2013] 34 taxmann.com 132 as the assessee had furnished inaccurate particulars of income. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the penalty of ₹ 19,78,824/- on the confirmed addition on account of excess depreciation claimed u/s 32 as the assessee had furnished inaccurate particulars of income by claiming incorrect depreciation. 4. It is prayed that the order of the Ld. CIT(A) be cancelled and that of the assessing officer may be restored. 5. The appellant craves leave to add or amend any grounds of appeal before the appeal is heard or is disposed off. 152. The issue relating to disallowance of interest u/s 36(1)(iii) of the Act was raised before us in the Cross Objections filed by the assessee for A.Y 2008-09 to A.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, whereas, the AO has held that in the instant case there is no commercial expediency and therefore it is not allowable. The AO has made disallowance by placing reliance upon the decision of M/s Abhishek Industries Ltd. From the aforesaid facts, it is clear that whether the interest is allowable or not and whether there is any commercial expediency in a particular case is a debatable issue. The decision in the case of CIT Vs. Reliance Petroproducts (P) Ltd. is applicable in this case. 4.4 Reference in this regard may be made to the case of M/s Trident Infotech. Corporation Ltd. for A.Y. 200405 where penalty on identical issue had been levied by the AO. The Hon'ble I.T.A.T. vide its order in ITA No 1298/Chandi/2009 dated 26.03.2012 held as under:- We have heard the rival contentions and perused the record. The issue arising in the present appeal is in relation of the penalty levied u/s 27l(l)(c) of the Act, The assessee during the year under consideration had claimed interest expenditure on the borrowed funds in its Profit Los:, Account. The AO noted the assessee to have made interest free advances on which no interest was charged by the assessee and in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra). The penalty imposed by the AO is accordingly cancelled. This ground of appeal is allowed. 155. Before us the Ld. DR relied upon the order of the AO levying the penalty and contended that since the assessee had not been able to prove business expediency of these advances its claim was malafide and bogus and thus penalty had been rightly levied by the AO. 156. The Ld.Counsel for the assessee, on the other hand, relied upon the order of the CIT(A). 157. We have gone through the order of the Ld.CIT(A) and do not find any reason to interfere in the same. The LD.CIT(A) has followed the decision of the Hon ble Jurisdictional High Court in the case of Trident Infotech(supra) wherein penalty levied on identical disallowance of interest u/s 36(1)(iii) was deleted holding that mere disallowance of interest following decision of the Court in the case of Abhishek Industries(supra) does not establish that the assessee had concealed /furnished inaccurate particulars of income, particularly when all particulars relating to the claim had been duly disclosed. The facts leading to the disallowance of interest in the present case are identical. The Revenue has not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee not been taken up for scrutiny, the true facts would have never come to light and the assessee would have managed to evade tax. Thus, it is a clear case of concealment of income by furnishing inaccurate particulars. 5.4 The AO thus has held that the appellant has concealed the particulars of income. However, there is nothing in the assessment order or in the order passed u/s 271(l)(c) to suggest that the appellant had concealed any particulars of income, Whether there is any concealment or not would depend upon the Return filed because that is the only document, where the assessee can furnish the particulars of his income. The complete facts regarding the claim of depreciation had been mentioned in the depreciation chart filed with return of income and nothing had been concealed therein. Therefore, it cannot be held that the appellant had concealed the particulars of income. 5.5 As regards, furnishing of inaccurate particulars, if is an undisputed position in the present case that no information given in the Return was found to be, incorrect or inaccurate. In this case, there is no finding that any details supplied by die appellant in its return were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal contention or position that a particular receipt is not taxable as income or that a particular expenditure or loss is allowable as deduction, the mere fact that the Assessing Officer took a different view of the allowability of the expenditure or loss or the taxability of the receipt, without anything more and without unearthing any new material or fact kept back by the assessee, cannot invite penalty on the ground of furnishing inaccurate particulars of income. (ii) Commissioner of Income Tax Vs Lakhani Footwear [20121 347 ITR 478 (P H) The hon 'ble jurisdictional High Court has held that penalty under sec. 271(l)(c) is not leviable in respect of deductions which are debatable and no concealment of income is involved. (iii} Commissioner of Income Tax Vs Lakhani India Ltd [2009] 17 DTK 307 (T H); [2010] 324 ITR 73. Penalty under sec.271(l)(c) - Concealment - excess claim for deduction under sec. 80HHC - In view of concurrent finding recorded by the CIT(A) and the Tribunal that there was no concealment or misrepresentation by the assessee, impugned order setting aside the levy of penalty under sec.271(l)(c) cannot be held to be erroneous - no substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT in the case of Lala Harbhagwan Dass Memorial and Doctor Prem Hospital Pvt Ltd. V/s ITO (2012) 23 taxman.com 32. In this case, the facts were similar the facts in the case of the appellant. In this case, the assessee had claimed depreciation @ 40% on CT scanner on the ground that CT scanner was life saving equipment. The AO restricted the depreciation to the rate of 25% and thereafter imposed penalty on the disallowance of excess depreciation. The Hon'ble ITAT deleted the penalty and held that such disallowance cannot be considered as concealment of income or furnishing inaccurate particulars, especially when the relevant particulars were disclosed before the AO. 5.8 The AO has relied upon the case of M/s Zoom Communication Pvt. Ltd. 327 ITR 510. In that case, the Hon'ble Delhi High Court had held as under:- It is true that mere submitting a claim which is correct in law would not amount to giving inaccurate particulars of income of the assessee, but it cannot be disputed that the claim made by the assessee needs to be bonafide. If the claim besides being incorrect in law is malafide. Explanation 1 to section 271(1) would come into play and work to the disadvanta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is claimed @ 15%, the same can be claimed in subsequent years and so he would like to forego the higher rate of claim of deprecation for assets purchased upto FY 2005-06. 160. Before us, the Ld. DR relied upon the order of the AO stating that clearly the claim of excess depreciation was malafide and bogus ,being contrary to the explicit provisions of law with regard to the allowable rate of depreciation and thus penalty had been rightly levied by the AO. 161. The Ld.Counsel for the assessee, on the other hand, relied upon the order of the CIT(A). 162. We have gone through the order of the CIT(A). We do not find any infirmity in the same. The Ld.CIT(A), we find, has deleted the penalty noting that the assessee had not concealed any particulars regarding the claim of depreciation on the surgical equipments, having disclosed all facts relating to the same in the depreciation chart filed. No detail filed by the assessee was found to be incorrect or erroneous. The Ld.CIT(A) has further noted that the disallowance was only on account of rate at which the depreciation was to be claimed on the surgical equipments with the assessee claiming 40%, while the AO restricted it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipts of the assessee. Vis- -vis the issue of penalty levied on disallowance of commission expenses of ₹ 15 lacs, the facts as noted in the order of the CIT(A) are that the AO had claimed expenses of ₹ 15 lacs as consultancy charges paid to Shri Rajneesh Ramitra, who was an NRI and shareholder of the assessee company. The AO disallowed the same holding them to be ingenuine since the assessee had failed to provide any evidence regarding the services rendered by Shri Rajneesh Ramitra. The CIT(A) upheld the order of the AO holding that the assessee had not filed any evidence regarding the services rendered even by electronic mode like email, video conferencing etc. provided by Shri Rajneesh Ramitra. Thereafter the AO imposed penalty on this disallowance @ 100% on tax sought to be evaded. The Ld.CIT(A) upheld the penalty so levied holding that in the absence of substantiation of the genuineness of the claim by the assessee, the expenditure was claimed only with a view to reduce the tax leviable and, therefore, penalty had been justifiably levied on the disallowance so made. 166. Before us, the Ld.Counsel for the assessee relied on the submissions filed before the Ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drayal Bassa v Income tax Appellate Tribunal (2003) 261ITR 67 (Raj.) Devsons P. Ltd v CIT(2011) 196 Taxman 21 (Del)- Where it was held that no penalty is leviable if the facts of the transactions are disclosed. -CIT v. Traders And Traders. 244 ITR 367 (Madras High Court) Woodward Governor India fP) Ltd, v CIT (2002) 253 ITR 475 (Dei) CIT v Dharam Chand L. Shah (1993) 204 ITR 462 (Bom) Where it was held that the fact certain additions were made in the assessment proceedings would not automatically justify the Revenue to impose penalty u/s 271 (l)(c). In view of the above facts of the case and judgements, it is prayed that appropriate relief may kindly be allowed to the assessee on the grounds of appeal and the penalty imposed may kindly be cancelled. 167. Referring to the same the Ld.Counsel for the assessee contended that Shri Rajneesh Ramitra was a technocraft and had provided consultancy services to the assessee in Healthcare System Procedure and day-to-day administration and the service had been provided by way of health workshop in the hospital and via email, teleconferencing, video conferencing, etc.. It was pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disallowance of consultancy charges of ₹ 15 lacs be deleted. Grounds of appeal raised by the assessee in ITA Nos.723 725/Chd/2017 are, therefore, allowed. The appeals of the assessee in ITA Nos.723 725/Chd/2017 are allowed. 170. As far the appeal filed by the assessee relating to assessment year 2010-11 in ITA No.724/Chd/2017, the issue relates to addition made of ₹ 11 lacs, the facts relating to which, as reproduced in the order of the CIT(A) at para 11.3 of his order are as under: 11.2 As regards, the penalty on addition of ₹ 11 lakhs u/s 37 is concerned, it is seen from the assessment order that during the assessment proceedings, the AO noted that as per the seized material, the receipts shown were ₹ 21.24 crores whereas in the P L account the receipts shown were only ₹ 17.93 crores. The appellant was able to explain the difference of 3.20 cores but could not explain the difference of ₹ 11 lakhs. The AO accordingly held that this amount of ₹ 11 lakhs is unaccounted of the appellant and added the same to the total income of the appellant. The filed an appeal before the CIT(A). The CIT(A) held that the appellant had not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 367 (Madras High Court) Woodward Governor India (P) Ltd. v CIT (2002) 253 ITR 475 (Del.) CIT v Dharam Chand L. Shah (1993) 204 ITR 462(Bom)- Where it was held that the fact certain additions were made in the assessment proceedings would not automatically justify the Revenue to impose penalty u/s 271 (l)(c). In view of the above facts of the case and judgments, it is prayed that appropriate relief may kindly be allowed to the assessee on the grounds of appeal and the penalty imposed may kindly be cancelled. 173. Referring to the same the Ld. Counsel for the assessee contended that the difference related to the figures of receipts reflected in the provisional trial balance found during the course of search and that reflected in the books of account of the assessee, which the assessee was unable to explain. It was contended that being provisional figures they were just estimates and, therefore, it could not be said categorically that the assessee had concealed the income to the extent of ₹ 11 lacs. 174. The Ld. DR, on the other hand, relied upon the order of the CIT(A). He drew our attention to para 11.5 of the order of CIT(A) as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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