KHIMJI POONJA FREIGHT FORWARDDERS P.LTD, MUMBAI V. DCIT CIR 2(2),

ITSSA 41/MUM/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7436 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 10-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS USHA NAIR
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Period of limitation; Difference of opinion; Block assessment; Documents seized
• Section: 32; 246; 263; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI D.K.AGARWAL, JM AND SHRI N.K.BILLAIYA, A M IT(SS)A NO.41/MUM/2011 : BLOCK ENDING 12.12.2002 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT LTD. 19-21, 1 ST FLOOR, WADIA BUILDING DALAL STREET, FORT, MUMBAI 400 023. PAN : AAACK4719K. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 2(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HITEN VASANT RESPONDENT BY : MRS.USHA NAIR DATE OF HEARING :. 22.03.2012 DATE OF PRONOUNCEM ENT : 03.04.2012 O R D E R PER N.K.BILLIAYA, AM : THE PRESENT APPEAL IS PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) 5 , MUMBAI DATED 15.02.2011 . 2. THE ONLY GROUND RAISED BY THE APPELLANT IS AGAIN ST THE CONFIRMATION OF THE LEVY OF PENALTY TO THE TUNE OF RS. 3974563.00 U /S 158BFA(2) OF THE ACT BY THE CIT [ A ] . 3. BRIEFLY STATED , THE FACTS AT THE TIME OF ASSESS MENT PROCEEDINGS WERE THAT A SEARCH U/S 132 OF THE I.T ACT , WAS CONDUCTED AT THE BUSINESS PREMISES OF THE APPELLANT AND AT THE RESIDENTIAL PREMISES OF ITS D IRECTORS ON 12.12.2002 AND ACCORDINGLY BLOCK PERIOD WAS FIXED AT 01.04.1996 TO 12.12.2002 . THE ASSESSEE FILED THE RETURN OF INCOME FOR THE BLOCK PERIOD ON 06.10.2003 DECLARING THE UNDISCLOSED INCOME AT RS. 10000000.00 WHICH RETURN WAS ASSESSED AT RS. 64107627.00 BY THE ASSESSING OFFICER VIDE ORDER DAT ED 31.12.2004 . THE ASSESSEE WENT IN APPEAL AGAINST THE SAID ASSESSMENT , FIRST BEFORE THE CIT [ A ] WHERE THE ASSESSEE GOT SOME RELIEF AND THAN PREFE RRED APPEAL BEFORE THE IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 2 INCOME-TAX APPELLATE TRIBUNAL , A BENCH , MUMBA I , AGAINST THE ORDER OF THE CIT [ A ] . 1 THE QUANTUM WHICH WERE IN DISPUTE BEFORE THE APPE LLATE AUTHORITIES AGAINST THE ASSESSMENT ORDER WERE MAINL Y ON ACCOUNT OF : A] UNDISCLOSED CASH RECEIPTS AS PER ANNX. A 8 2698 002.00 B] UNDISCLOSED CASH RECEIPTS AS PER ANNX A 2 48231 00.00 C] UNPROVED CASH EXPENSES FOR WANT OF EVIDENCE 513 00000.00 2 THE CIT [ A ] VIDE ORDER DATED 06.02.2006 ALLOWE D RELIEF TO THE ASSESSEE TO THE TUNE OF RS .49531300.00 OUT OF UNPR OVED CASH EXPENSES AND A FURTHER RELIEF OF RS. 11.09777.00 OUT OF CASH RECEIPTS . 3 REVENUE WENT IN APPEAL AGAINST THE ABOVE SAID ORDER OF THE CIT [ A ] BEFORE THE INCOME-TAX APPELLATE TRIBUNAL A BENCH MUMBAI . 4 THE FACTS OF THE DISPUTE FINALLY GOT SETTLED BY THE INCOME-TAX APPELLATE TRIBUNAL A BENCH , MUMBAI IN ITSS NO. 135/M / 2006. WHILE DECIDING ON THE GROUND OF CASH RECEIPTS AS PE R ANNEXURE A 8 & A 2 OF THE SEIZED MATERIALS , THE CO-ORDINATE BENCH CAME TO THE FINDING AS UNDER : WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RI VAL CONTENTIONS CAREFULLY. THE DISPUTE IS REGARDING ADDITION ON AC COUNT OF CASH RECEIPTS TOTALLING RS. 7521102.00 FOUND NOTED ON TH E LOOSE SHEETS AS PER ANNEXURE A-8 AND A-2. ON THE SAME SHEETS PAYME NTS OF RS. 2785686.00 AND RS.3625635.00 WERE ALSO INDICATED WH ICH WERE NOT NETTED AGAINST THE RECEIPTS AND THE TOTAL RECEIPTS OF RS. 7521102.00 WAS TREATED BY THE ASSESSING OFFICER AS UNDISCLOSED INCOME. CIT(A) ALSO DID NOT ACCEPT THE CLAIM OF THE ASSESSEE TO SE T OFF THE PAYMENTS AGAINST THE RECEIPTS ON THE GROUND THAT THERE WAS N O EVIDENCE TO PROVE THAT THE PAYMENTS WERE MADE WHOLLY AND EXCLUS IVELY FOR THE PURPOSE OF BUSINESS. ALTERNATIVELY, THE ASSESSEE A LSO PLEADED THAT AT LEAST THE CASH RECEIPTS SHOULD BE ALLOWED TO BE USE D TO EXPLAIN THE CASH SEIZED OF RS.3015332.00 WHICH THE ASSESSEE HAD ALREADY DECLARED AS UNDISCLOSED INCOME. CIT(A) DID NOT ACC EPT THE CLAIM FULLY AND OBSERVED THAT AFTER CONSIDERING THE PAYME NTS, THE ASSESSEE WAS HAVING ONLY NET RECEIPT OF RS.1109777.00 AVAILA BLE TO EXPLAIN THE SEIZED CASH. ACCORDINGLY SHE HAS HELD THAT THE SEIZED CASH WILL BE EXPLAINED ONLY TO THE EXTENT OF RS. 1109777.00 A ND SHE CONFIRMED THAT ADDITION OF RS.6411325.00. THE REVENUE HAS CH ALLENGED THE DECISION OF CIT(A). AFTER CAREFUL CONSIDERATION WE FIND THE OBJECTION OF THE REVENUE REASONABLE. THE CIT(A) HAS HELD THA T SUM OF IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 3 RS.1109777.00 OUT OF CASH SEIZED STAND EXPLAINED AN D THIS FINDING IS FOUND TO BE REASONABLE AS THE ASSESSEE HAD NOT CASH RECEIPT OF RS.1109777.00 AVAILABLE TO EXPLAIN THE SEIZED CASH. BUT CONFIRMING ADDITION ONLY TO THE EXTENT OF RS.6411325.00 ON ACC OUNT OF CASH RECEIPT IS NOT CORRECT AS ENTIRE CASH RECEIPTS HAD BEEN FOUND TO BE UNEXPLAINED. IN OUR VIEW ON THE FACTS OF THE CASE ADDITION OF RS.7521102.00 ON ACCOUNT OF UNEXPLAINED CASH RECEIP TS HAS TO BE UPHELD. THEREFORE, WE MODIFY THE ORDER OF CIT (A) BY HOLDING THAT THE ADDITION ON ACCOUNT OF CASH RECEIPT OF RS. 7521 102 IS JUSTIFIED WHILE THE ASSESSEE WILL GET RELIEF OF RS. 1109777.0 0 IN RESPECT OF CASH SEIZED OF RS.3015332.00 WHICH HAD BEEN DECLARE D AS UNDISCLOSED INCOME. 4. THUS ADDITION ON ACCOUNT OF CASH RECEIPTS TO THE TUNE OF RS.7521102.00 WAS SUSTAINED BY THE TRIBUNAL. 5. REGARDING DISPUTE IN RELATION TO UNEXPLAINED CAS H EXPENDITURE TO THE TUNE OF RS.51300000.00 MADE BY THE ASSESSING OFFIC ER, THE TRIBUNAL FINALLY SETTLED THE ISSUE BY CONFIRMING ADDITION OF RS.2842 284.00 AS THE UNDISCLOSED INCOME OF THE ASSESSEE. 6. WITH THE ABOVE FACTUAL BACKGROUND, PENALTY PROCE EDINGS U/S 158BFA(2) WAS INITIATED. DURING THE COURSE OF PENALTY PROCEED INGS THE ASSESSEE WAS ASKED BY THE ASSESSING OFFICER THAT WHY PENALTY SHOULD NO T BE LEVIED FOR CONCEALMENT OF INCOME. 7. THE ASSESSEE OBJECTED TO THE STAND TAKEN BY THE ASSESSING OFFICER ONLY ON THE GROUND THAT THE ASSESSMENT WAS MADE ON THE E STIMATES AND THEREFORE IT IS NOT A FIT CASE FOR THE LEVY OF PENALTY. 8. THIS CONTENTION OF THE ASSESSEE DID NOT FIND ANY FAVOUR FROM THE ASSESSING OFFICER WHO WENT ON TO LEVY THE PENALTY T O THE TUNE OF RS.3974563.00 BEING 100% OF 60% OF 16308830.00. IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 4 9. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE CIT (A). BEFORE THE FIRST APPELLATE AUTHORITY THE CONTENTION OF THE ASS ESSEE REMAINED THE SAME, I.E., THAT PENALTY IS BASED ON ESTIMATED ADDITIONS AND TH EREFORE SHOULD BE CANCELLED. THE LEARNED CIT(A) AFTER CONSIDERING THE FACTS IN T OTALITY, CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY OBSERVING MOST SIGNIFICANTLY, I ALSO FIND THAT THE ADDITIO NS STOOD CONFIRMED AT SUCCESSIVE STAGES OF APPEAL UPTO THE ITAT. THE NAT URE OF THE ADDITIONS ALSO FULLY JUSTIFY THE LEVY OF PENALTY AS THEY ARE BASED ON DOCUMENTS FOUND DURING THE SEARCH. IN THIS RESPECT, THE HON. ITAT HAS GI VEN A CLEAR FINDING THAT THE SUPPRESSION OF CASH RECEIPTS STANDS PROVED BEYOND D OUBT BY THE SEIZED PAPERS. IN SIMILAR VEIN, THE INFLATION OF EXPENDITURE ALSO STANDS ESTABLISHED BY SEIZED DOCUMENTS. THE NATURAL INFERENCE THAT THIS LEADS T O IS THAT THE DIFFERENCE IN THE ASSESSED AND RETURNED UNDISCLOSED INCOME AROSE OUT OF THE CONSCIOUS ATTEMPT MADE BY THE APPELLANT TO EVADE TAX BY THESE ACTS. IN THIS CONTEXT, THE APPELLANTS ARGUMENT THAT THE PENALTY IS BASED ON E STIMATED ADDITIONS IS MISPLACED AS THE ADDITIONS ARE GERMANE TO CLEAR ENT RIES IN SEIZED DOCUMENTS (ANNEXURE A-8 AND A-9) WHICH HAVE ALSO GONE THROUGH RIGOROUS APPELLATE SCRUTINY. FURTHER, THE APPELLANT WAS ALSO FOUND T O HAVE INCURRED ILLEGAL EXPENSES WHICH WERE FOUND TO BE IN EXCESS OF WHAT W AS DISCLOSED. IN THIS BACKDROP, I AGREE WITH THE ASSESSING OFFICER THAT T HE CASES RELIED UPON BY THE APPELLANT DO NOT APPLY TO THE PRINCIPLES GOVERNING LEVY OF PENALTY U/S 158BFA(2). BESIDES, OTHERWISE ALSO, BECAUSE OF THE VERY APPARENT AND STARK CONCEALMENT OF INCOME BY THE APPELLANT, THESE CASES ARE ALSO DISTINGUISHABLE ON FACTS. IN LINE WITH THE FOREGOING, I FIND THAT LEVY OF PENALTY ON THE ADDITIONS CONFIRMED IS JUSTIFIED. IT IS CONFIRMED AND THE GR OUNDS OF APPEAL ARE DISMISSED. 10. AGGRIEVED, ASSESSEE IS BEFORE US. THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 158BFA(2) IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 5 AND REITERATED THAT THE WHOLE ASSESSMENT HAS BEEN M ADE ON ESTIMATE AND EVEN THE ITAT A BENCH MUMBAI WHILE CONFIRMING THE QUAN TUM HAS ACTUALLY ESTIMATED THE ADDITION, THEREFORE PENALTY SO LEVIED DESERVES TO BE CANCELLED. 11. LEARNED DR SUPPORTED THE ORDERS OF THE LOWER AU THORITIES. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LEVY OF PENALTY U/S 158BFA(2) HAS BEEN DISPUTED BY THE APPELLANT ONLY O N THE GROUND THAT INCOME FINALLY ASSESSED IS ONLY THE ESTIMATED INCOME. LET US FIRST SEE THE PROVISIONS OF SECTION 158BFA(2). [ LEVY OF INTEREST AND PENALTY IN CERTAIN CASES. 158BFA. (1) WHERE THE RETURN OF TOTAL INCOME INCLUDING UNDISCLOSED INCOME FOR THE BLOCK PERIOD, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 . OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A ON OR AFTER THE 1ST DAY OF JANUARY, 1997, AS REQUIRED BY A NOTICE UNDER CLAUSE (A) OF SECTION 158BC , IS FURNISHED AFTER THE EXPIRY OF THE PERIOD SPECIFIED IN SUCH NOTICE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF 72 [ONE] PER CENT OF THE TAX ON UNDISCLOSED INCOME, DETERMINED UNDER CLAUSE (C) OF SECTION 158BC , FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DAY IMMEDIATELY FOLLOW ING THE EXPIRY OF THE TIME SPECIFIED IN THE NOTICE, AND (A) WHERE THE RETURN IS FURNISHED AFTER THE EXPIRY OF THE TIME AFORESAID, ENDING ON THE DATE OF FURNISHING TH E RETURN; OR (B) WHERE NO RETURN HAS BEEN FURNISHED, ON THE DAT E OF COMPLETION OF ASSESSMENT UNDER CLAUSE (C) OF SECTIO N 158BC . (2) THE ASSESSING OFFICER OR THE COMMISSIONER (APPE ALS) IN THE COURSE OF ANY PROCEEDINGS UNDER THIS CHAPTER, MAY D IRECT THAT A PERSON SHALL PAY BY WAY OF PENALTY A SUM WHICH SHAL L NOT BE LESS THAN THE AMOUNT OF TAX LEVIABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SO LEVIABLE IN RESPECT OF T HE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER UNDER CL AUSE (C) OF SECTION 158BC : PROVIDED THAT NO ORDER IMPOSING PENALTY SHALL BE MADE IN RES PECT OF A PERSON IF (I) SUCH PERSON HAS FURNISHED A RETURN UNDER CLAUS E (A) OF SECTION 158BC ; IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 6 (II) THE TAX PAYABLE ON THE BASIS OF SUCH RETURN H AS BEEN PAID OR, IF THE ASSETS SEIZED CONSIST OF MONEY, THE ASSESSEE OFFERS THE MONEY SO SEIZED TO BE ADJUSTED AGAINST THE TAX PAYABLE; (III) EVIDENCE OF TAX PAID IS FURNISHED ALONG WITH THE RETURN; AND (IV) AN APPEAL IS NOT FILED AGAINST THE ASSESSMENT OF THAT PART OF INCOME WHICH IS SHOWN IN THE RETURN 72A : PROVIDED FURTHER THAT THE PROVISIONS OF THE PRECEDING PROVISO SHALL NOT APPLY WHERE THE UNDISCLOSED INCOME DETERM INED BY THE ASSESSING OFFICER IS IN EXCESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES THE PENALTY SHALL BE IMPOSED ON T HAT PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. (3) NO ORDER IMPOSING A PENALTY UNDER SUB-SECTION ( 2) SHALL BE MADE, (A) UNLESS AN ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD; (B) BY THE ASSISTANT COMMISSIONER 73 [OR DEPUTY COMMISSIONER] OR THE ASSISTANT DIRECTOR 73 [OR DEPUTY DIRECTOR], AS THE CASE MAY BE, WHERE THE AMOUNT OF PENALTY EXC EEDS TWENTY THOUSAND RUPEES EXCEPT WITH THE PREVIOUS APPROVAL O F THE 74 [JOINT] COMMISSIONER OR THE 74 [JOINT] DIRECTOR, AS THE CASE MAY BE; (C) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT- MATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDER SE CTION 246 75 [OR SECTION 246A ] OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTION 253 , AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH T HE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX M ONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSI ONER (APPEALS) OR, AS THE CASE MAY BE, THE APPELLATE TRI BUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR THE COMMISSIO NER, WHICHEVER PERIOD EXPIRES LATER; (D) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT- MATTER OF REVISION UNDER SECTION 263 , AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER OF REVISIO N IS PASSED; (E) IN ANY CASE OTHER THAN THOSE MENTIONED IN CLAU SES (C) AND (D), AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX M ONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER; IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 7 (F) IN RESPECT OF SEARCH INITIATED UNDER SECTION 1 32 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQ UISITIONED UNDER SECTION 132A , AFTER THE 30TH DAY OF JUNE, 1995 BUT BEFORE THE 1ST DAY OF JANUARY, 1997. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSE OF THIS SECTION, (I) THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 ; (II) THE PERIOD DURING WHICH THE IMMUNITY GRANTED UNDER SECTION 245H REMAINED IN FORCE; AND (III) THE PERIOD DURING WHICH THE PROCEEDINGS UNDE R SUB- SECTION (2) ARE STAYED BY AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED. (4) AN INCOME-TAX AUTHORITY ON MAKING AN ORDER UNDE R SUB- SECTION (2) IMPOSING A PENALTY, UNLESS HE IS HIMSEL F AN ASSESSING OFFICER, SHALL FORTHWITH SEND A COPY OF SUCH ORDER TO THE ASSESSING OFFICER.] 13. AFTER READING THE AFORESAID SECTION, IT SHOWS T HAT THE AFORESAID PROVISIONS ALLOW THE ASSESSING OFFICER TO LEVY PENA LTY ON THAT PORTION OF UNDISCLOSED INCOME WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. 14. IN THE INSTANT CASE IT IS NOT IN DISPUTE THAT T HE ASSESSEE HAS RETURNED UNDISCLOSED INCOME ONLY AT RS.1,00,00,000.00. IT IS ALSO NOT IN DISPUTE THAT OUT OF CASH RECEIPTS AS PER ANNEXURE A-8, AND A-2 A MOUNTING TO RS. 7521102.00 , ASSESSEE DISCLOSED ONLY RS.86798.00 AS PER A-8 AND RS.119746.00 AS PER A-2 IN THE TOTAL DISCLOSURE OF RS.1 CRORE. 15. AFTER PERUSING THE ORDER OF THE ITAT A BENCH MUMBAI IN APPEAL NO.IT(SS)135/M/06 WE FIND THAT WHILE DECIDING THE Q UANTUM APPEAL THE TRIBUNAL HAS GIVEN A CLEAR FINDING THAT CASH RECEI PT TO THE TUNE OF RS.7521102.00 WAS ON ACCOUNT OF UNEXPLAINED CASH RE CEIPT. IT IS SEEN THAT THE SAME AMOUNT WAS ADDED BY THE ASSESSING OFFICER AT T HE BLOCK ASSESSMENT STAGE. WE FAIL TO UNDERSTAND HOW APPELLANT SAY THAT IT IS AN ESTIMATED ADDITION IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 8 WHEN ANNEXURE A-8 SHOWING CASH RECEIPTS OF RS.26980 02 AND ANNEXURE A-2 SHOWING CASH RECEIPTS AT RS.4823100.00 WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS. WE DO NOT FIND ANY FORCE IN THE ARGUMENTS OF THE COUNSEL AS THE UNACCOUNTED CASH RE CEIPTS COULD BE DETECTED ONLY BECAUSE OF THE SEARCH AND SEIZURE OPERATIONS A ND THE APPELLANT WAS WELL WITHIN ITS KNOWLEDGE YET DID NOT DISCLOSE IT WHILE FILING THE RETURN OF INCOME FOR THE BLOCK PERIOD , THOUGH HE COULD HAVE SAVED T HE RIGORS OF PENAL PROCEEDINGS WHILE ADMITTING IT IN THE RETURN OF INC OME FILED FOR THE BLOCK PERIOD . THE CONDUCT OF THE APPELLANT CLEARLY SHOWS THAT HE CONSCIOUSLY CONCEALED THE UNACCOUNTED CASH RECEIPTS AS DISCUSSE D HERE IN ABOVE .THIS BEING SO AND IN THE ABSENCE OF ANY CONTRARY MATERIA L PLACED ON RECORD BY THE LD COUNSEL APPEARING FOR THE APPELLANT , WE FIND M ERIT IN THE ORDER OF THE LD CIT [ A] TO THIS EXTENT . 16. FURTHER, SO FAR AS ADDITION OF RS.2842284.00 WH ICH RELATES TO UNEXPLAINED CASH EXPENDITURE IS CONCERNED, AFTER PE RUSING THE ORDER OF THE CO- ORDINATE BENCH AS MENTIONED HEREINABOVE, WE FIND TH AT ALL THESE EXPENSES WERE ACTUALLY ENTERED IN THE BOOKS BUT WERE NOT SUPPORTE D BY ANY PROPER VOUCHER AS MOST OF THEM WERE CLAIMED TO BE ILLEGAL EXPENSES NA MED AS PASSING EXPENSES. THE ADDITION HAVE BEEN MADE ONLY ON ES TIMATE BASIS AND ALSO OF THE DIFFERENCE OF OPINION BETWEEN THE LD CIT[A] AND THE TRIBUNAL. TO THIS EXTENT WE AGREE WITH THE SUBMISSIONS OF THE LD COUN SEL APPEARING FOR THE APPELLANT THAT THE ADDITIONS HAVE BEEN MADE ON ESTI MATE BASIS. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO RESTR ICT THE PENALTY TO THE UNDISCLOSED CASH RECEIPTS OF RS. 7521102.00 AS DISC USSED IN PARA 15 HERE IN ABOVE . HERE IT IS NECESSARY TO MENTION THAT THE AO HAS ALREADY GIVEN CREDIT OF RS.1 CRORE WHICH INCLUDES THE DISCLOSURE MADE BY TH E APPELLANT AS PER A-8 AND A 2 , THERE FORE WE ARE NOT REDUCING THE SAID FIG URES FROM 7521102.00. IT(SS)A NO.41/MUM/2011 M/S.KHIMJI POONJA FREIGHT FORWARDERS PVT.LTD. 9 17. WHILE MODIFYING THE ORDER OF LEARNED CIT (A), T HE ASSESSING OFFICER IS DIRECTED TO LEVY THE PENALTY ON UNDISCLOSED INCOME BY TAKING CASH RECEIPTS OF RS. 7521102.00 ONLY AS UNDISCLOSED INCOME FOR THE P URPOSES OF LEVY OF PENALTY U/S 158BFA{2}. 18. IN RESULT, APPEAL BY THE ASSESSEE IS PARTLY ALL OWED. ORDER PRONOUNCED ON THIS 3 RD DAY OF APRIL, 2012. SD/- SD/- ( D. K. AGARWAL ) ( N. K. BILLAIYA ) JUDICIAL MEMBER ACCOUNTNAT MEMBER MUMBAI : 3 RD APRIL, 2012. MANASI COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - 5, MUMBAI 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.