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TMI Blog2019 (8) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner of Income-tax (Appeals) may kindly be deleted." 3. The brief facts of the case shows that a search was conducted in the case of the assessee and the assessment was completed u/s 153A read with section 143 (3) of the income tax act where in various additions were made in the hands of the appellant. The assessee approached the settlement commission and had made an admission of INR 3,300,000 on account of suppression of sales and receipts. However, the settlement commission declared the application filed by the appellant as invalid because the assessee did not pay the taxes on the declared income. The learned CIT - A also confirmed the above addition in the hands of the appellant to the extent of INR 1 7605370/-. Therefore the learned assessing officer found that assessee is liable for imposition of penalty u/s 271 (1) ( c) for concealment of income. The learned assessing officer levied the penalty of INR 6 285118/- on concealed income of INR 1 7605370/-. 4. The assessee preferred an appeal before the learned CIT - A. The learned CIT - A granted several opportunities to the assessee , however the assessee did not make any representation or made any submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000 on account of bogus share capital, on which the penalty cannot be deleted as assessee has concealed income. 7. We have carefully considered the rival contention and perused the order of the lower authorities. With respect to the argument of the learned authorised representative that there is no sufficient opportunity granted to the assessee is devoid of any merit. The order of the learned assessing officer and the order of the learned CIT - A shows that during the total assessment proceedings and the appellate proceedings the assessee has been given umpteen numbers of opportunities, many summons were issued but assessee has not complied with them. Before CIT - A the assessee was also given innumerable opportunities of hearing, however, none of them was availed by this assessee. In view of this, it is apparent that assessee does not want to represent its case before the lower authorities but at higher forum would agitate the issue of the penalty, stating that no sufficient opportunity was granted to the assessee. This is nothing but a ploy to get the issue set aside to the file of the learned assessing officer and to delay the process of the justice. 8. We have also seen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed. 14. The assessee has raised the following grounds of appeal in ITA No. 266/Del/2012 for the Assessment Year 2005-06:- "1. That the learned Commissioner of Income-tax (Appeals)-II, New Delhi has erred in confirming the penalty imposed by the ld Assessing Officer without providing sufficient opportunity to the appellant and without considering the material available on record. 2. That it is accordingly prayed that the additions confirmed by the learned Commissioner of Income-tax (Appeals) may kindly be deleted." 15. The brief fact shows that assessment u/s 153A read with section 143 (3) of the act was completed for assessment year 2005 - 06 and 30/11/2007 at the total income of INR 3 7898400/-. The assessee preferred an appeal before the learned CIT - A- 1 granted the substantial relief to the assessee. After the grant of the relief the learned CIT - A confirmed the disallowance to the extent of INR 6 883782 with respect to the advance received against the export of goods. The deferred revenue expenditure of Rs. 2950195/- was claimed by the assessee however same was confirmed by the learned CIT - A. Further sum of INR 1 300000/- was disclosed by the assessee as suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tax should not result into the penalty for concealment of income. With respect to the addition made by the learned CIT - A u/s 40 A (3) of the income tax act he submitted that it is the disallowance based on which the penalty has been levied. He further submitted that mere disallowance of the above expenditure cannot result into the penalty u/s 271 (1) (c) of the income tax act for concealment of the total income. With respect to the claim of the deferred revenue expenditure of Rs. 2950195 he submitted that it is merely disallowance of the expenditure which should not result into penalty for concealment of income. With respect to the advanced sales proceeds received from a foreign party he submitted that assessee could not export the goods to the assessee. He extensively referred to para number 6 of the order of the learned assessing officer and stated that out of the total addition of Rs. 8835006/- the learned CIT - A has upheld the disallowance/addition to the extent of only INR 6 883782/-. He stated that assessee has furnished the complete particulars of the above item. Therefore there is no concealment of income on that account. He then stated that the assessee has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 40A (3) of the income tax act 1961 stating that based on the seized documents the assessee has constructed the books of accounts and in those books of accounts assessee has recorded the above sales in cash. Out of the above cash sales assessee has incurred expenditure which are in violation of the provisions of section 40A (3) of the income tax act. Therefore the addition of INR 1 705240/- was made. In the present case the learned assessing officer made the addition on account of undisclosed sales whereas the learned CIT - A found that the undisclosed sales has been properly accounted by the assessee in the books of accounts , however out of those undisclosed sales, certain expenditure in Cash were made and on those expenditure the provisions of section 40A (3) of the income tax act was invoked and disallowance was made. Merely because the expenditure are disallowed the assessee does not make himself exposed to the provisions of section 271 (1) (c) of the income tax act for concealment of income. The assessee has disclosed the complete details of that expenditure in its books of accounts. In view of this, the learned assessing officer has wrongly levied penalty for conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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