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TMI Blog2020 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. The disclosure made by the assessee at ₹ 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 ₹ 18,20,407/- is deleted and the appeal of the assessee is partly allowed. Penalty u/s 271AAA - survey u/s 133A - HELD 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. We have already deleted ₹ 18,20,407/-; therefore, 10% of this is to be excluded. The penalty is, therefore, restricted to ₹ 2,75,000/-, instead of ₹ 4,57,041/- imposed by the Assessing Officer. - ITA Nos. 1708/Ahd/2011 And 1169/Ahd/2013 - - - Dated:- 13-2-2020 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Tushar Hemani, AR For the Revenue : Shri Deelip Kumar, Sr DR ORDER PER RAJPAL YADAV, VICE PRESIDENT :- The present two appeals are directed at the instance of the assessee against two separate orders of the learned CIT(A)-III, Ahmedabad dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and agreed to pay the taxes thereon in order to buy the peace of mind. The amount of ₹ 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 ₹ 20,69,950/-, on 3/12/2008 total turnover ₹ 61,56,350/- and on 4/12/2008 total turnover of ₹ 43,35,460/-. In other words, the average turnover for the three days was ₹ 41,87,253/-. If this figure is taken as the average turnover for 207 days, then the total turnover during this period comes to ₹ 86,67,61,440/-. If the rate of commission is taken at rupees 200 per lakh then the commission income of the appellant for 207 days comes to ₹ 17,33,522/- and if the commission income of ₹ 300 per lakh is considered, then the total commission income of the appellant comes to ₹ 26,00,284/-. It may be mentioned that one of the partner of the appellant had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which the firm remained in existence for the relevant accounting year, i.e. for the number of days relating to Assessment Year 2009-10 it remained into existence. Its existence has been worked out for 207 days. Once, after taking into consideration the turnover, the commission income has been worked out at a sum of ₹ 25 lakhs, then how the commission income already accounted for by the firm at ₹ 27.50 lakhs could not be set off. We could appreciate the case of the Revenue, if after taking into the average commission income for three days, the learned CIT(A) worked out the commission income of 207 days at ₹ 27.50 lakhs plus ₹ 25 lakhs. In that situation, the stand of the Revenue not to give set off of ₹ 27.50 lakhs could be justified. But in the present situation, the only method which could be adopted is to work out total commission income for 207 days by whatever method, then debit that commission income from the amount already disclosed by the assessee plus expenditure and the remaining will be taxable. The disclosure made by the assessee at ₹ 27.50 lakhs is more the ultimate estimated income worked out by the learned CIT(A); therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 search in the books of account or other documents maintained in the normal course relating to such previous year; or (B) otherwise not been disclosed to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted; (b) specified previous year means ..... X X X X Extracts X X X X X X X X Extracts X X X X
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