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TMI Blog2020 (2) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act, 1961 (hereinafter referred to as "the Act"); whereas ITA No.1169/Ahd/2013 arose against penalty imposed under Section 271AAA of the Act. 2. First, we take up ITA No. 1708/Ahd/2011. The grounds of appeal taken by the assessee are not in consonance with Rule 8 of Income Tax (Appellate Tribunal) Rules, 1963; they are descriptive and argumentative in nature. In brief, the grievance of the assessee is that learned CIT(A) has erred in confirming the addition of Rs. 18,20,407/-. 3. The brief facts of the case are that a survey under Section 133A of the Income-tax Act was carried out at the business premises of M/s. Ashish Kumar Ankit Kumar & Co., situated at 1st Floor, 311, Kucha Ghasi Ram, Fateh Puri, Chandani Chowk, Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thereon in order to buy the peace of mind. The amount of Rs. 27.50 Lacs cannot be therefore treated as the commission income of the appellant. If this amount is excluded, then the turnover of the appellant on the basis of the seized documents can be worked out as under: It may be mentioned that during the course of search some documents were found which indicated the total turnover of the appellant for three dates namely on 2/12/2008 total turnover of Rs. 20,69,950/-, on 3/12/2008 total turnover Rs. 61,56,350/- and on 4/12/2008 total turnover of Rs. 43,35,460/-. In other words, the average turnover for the three days was Rs. 41,87,253/-. If this figure is taken as the average turnover for 207 days, then the total turnover during this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT(A) to exclude this amount from the total income of the assessee representing commission income. The learned CIT(A) has determined Rs. 25 lakhs as estimated commission income; thereafter debited the expenditure and confirmed addition of Rs. 18,20,407/-, but set off of Rs. 27.50 lakhs disclosed by the assessee has not been given. On the other hand, learned Departmental Representative contended that the amount of Rs. 27.50 lakhs is a separate amount and it cannot be treated as commission income. 6. We have duly considered the rival contentions and gone through the record carefully. A perusal of the order of learned CIT(A) would indicate that learned First Appellate Authority has estimated the commission income of the assessee for 207 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The disclosure made by the assessee at Rs. 27.50 lakhs is more the ultimate estimated income worked out by the learned CIT(A); therefore, no further addition is required. Accordingly, the addition of Rs. 18,20,407/- is deleted and the appeal of the assessee is partly allowed. 7. Now we take up ITA No. 1169/Ahd/2013. This appeal of the assessee is directed against the order of the learned CIT(A)-III, Ahmedabad dated 18.02.2013 for Assessment Year 2009-10. 8. The solitary grievance of the assessee is that learned CIT(A) has erred in confirming the penalty of Rs. 4,57,041/- which was imposed by the Assessing Officer under Section 271AAA(2)(ii) of the Act. 9. The penalty under Section 271AAA(2)(ii) has been imposed qua the addition of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. (3) No penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1). (4) The provisions of sections 274 and 275 shall, so far as may be, apply in relation to the penalty referred to in this section. Explanation.-For the purposes of this section,- (a) "undisclosed income" means- (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has- (A) not been recorded on or before the date of sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the manner in which the undisclosed income was derived and paid the taxes together with interest, if any, in respect of the undisclosed income. As submitted by the assessee, it has not firstly admitted the cash recovered during the course of search at Rs. 27.50 lakhs. Therefore, it does not fulfill the conditions enumerated in sub-section (2) of Section 271AAA of the Act. Even copy of the statement recorded under Section 132(4) has not been placed before us. Therefore, after going through the record, we are of the view that the assessee failed to fulfill the conditions of Section 271AAA. It, therefore, deserves to be visited with penalty. However, the penalty is to be restricted qua 10% of the additions we have confirmed. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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