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TMI Blog2019 (11) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasonable and bonafide explanation under section 273B - Even otherwise, when the surrender is not based on any incriminating material but it is only based on the statement recorded during the survey, therefore, the evidentiary value of the statement recorded under section 133A in the absence of corroborating evidence cannot be a conclusive basis for holding the assessee liable for the penalty proceedings under section 271(1)(c) of the IT Act. Once the assessee has brought all relevant documentary evidences in support of the genuineness of the claim, then in the absence of any contrary finding by the AO, the said explanation would be regarded as bonafide and reasonable explanation under section 273B of the IT Act. Consequently, no penalty under section 271(1)(c) - Decided in favour of assessee. - ITA No. 490/JP/2019 - - - Dated:- 22-10-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri S.L. Poddar (Advocate) For the Revenue : Shri Jai Singh (JCIT) ORDER PER VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before the Tribunal, the ld. A/R of the assessee has submitted that though the assessee surrendered a sum of ₹ 47,18,937/- during the course of survey on account of alleged bogus claim of commission payment, however, the said surrender was made by the assessee on account of undue pressure and coercion on the part of the department and to buy peace as well as avoiding the litigation. Thus the surrender was made under the pressure of Survey authorities simply on raising the question about the payment of commission debited to the Profit Loss account. He has referred to the statement recorded during the course of survey proceedings and submitted that it was not a case of any incriminating material found during the course of survey disclosing any bogus claim of commission but it is a simple case of surrender made by the assessee under the pressure of the Survey team and agreed to pay the tax on the said amount. In order to buy peace, the assessee paid the tax on the said amount as per the revised computation of income filed during the course of assessment proceedings. Therefore, such surrender cannot be treated as concealment of the income or furnishing inaccurate particulars o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la Kendra (2015) 273 CTR 522 (Raj.) The ld. A/R has referred to the affidavits as well as returns of income of the various persons to whom the commission was paid by the assessee and submitted that all these persons have confirmed the receipt of commission and rendering of service. The said commission receipt was also offered to tax in their returns of income, therefore, in view of the facts and circumstances when the assessee has produced all the relevant record to show that the transaction of payment of commission is genuine, then the penalty under section 271(1)(c) is not justified and the same may be deleted. 4. On the other hand, the ld. D/R has submitted that the assessee admitted the bogus claim of commission expenditure debited in the books of account during the course of survey proceedings and consequently he surrendered the said amount to tax. Thus the fact of bogus claim of commission was admitted by the assessee in the statement recorded during the survey proceedings and subsequently the assessee offered the said amount to tax. Further, it is not the case of bogus claim of commission for the year under consideration but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Survey team from the computer of the assessee. The reference of Profit Loss account was made only to show the commission of sale debited in the Profit Loss account for all these years. Thus out of the total amount of commission debited to the Profit Loss account for all these assessment years i.e. 2011-12 to 2016-17 the assessee has surrendered the adhoc amount and for the year under consideration the amount surrendered by the assessee is ₹ 47,18,934/- out of the total claim of ₹ 75,93,727/-. The assessee has stated that the commission on sales paid to certain persons, namely, Kailash Chand Soni, Kapil Soni, Aditya Jain and Rathi Malhotra is genuine and all other payments are bogus. Since the assessee surrendered the said amounts and also offered to tax, therefore, there was no scope of any further enquiry on this issue in the assessment proceedings, however, when the assessee has raised this issue during the penalty proceedings, then the AO was under obligation to verify the explanation of the assessee from the evidences produced by the assessee or by conducting a due enquiry. There is no dispute that the assessment is a relevant material for the purpose of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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