SHRI PRAPHULL KALURAM SHIVALE,PUNE V. CENTRAL CIRCLE 2(3), PUNE

ITA 1582/PUN/2024

AI Insights

The case involves multiple appeals by Shri Praphull Kaluram Shivale and Smt. Anjali Praphull Shivale against the orders of the CIT(A) confirming penalties and additions made by the Assessing Officer under sections 271(1)(c) and 143(3) r.w.s. 147 of the Income Tax Act, 1961. The appeals were consolidated due to the interconnected nature of the issues across different assessment years. The primary contention revolves around the alleged unaccounted sales/receipts discovered during survey actions conducted in 2017 and 2019, and the subsequent penalties and additions based on these findings. The Tribunal found that the Assessing Officer's rejection of the assessee's reconciliation of sales/receipts was not justified and directed a re-examination of the matter.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 396377 (ITAT-PUNE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND DESAI; ADDL
• Assessee Lawyers: S B.C. MALAKAR; YUVRAJ CHAVAN
• Keywords: Business income; Opportunity of being heard; Reassessment proceedings; Corroborative evidences; Competent authority
• Section: 148; 143(3); 142(1); 271(1)(c); 133A

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND MS. ASTHA CHANDRA, JUDICIAL MEMBER ITA Nos.1582 & 1038/PUN/2024 Assessment years : 2014-15 & 2015-16 Shri Praphull Kaluram Shivale 1, A/P Koregaon Bhima, Pune Nagar Road, Tal Shirur, Pune – 411007 Vs. ACIT, Central Circle 2(3), Pune PAN: BFQPS4176B (Appellant) (Respondent) ITA Nos.1581 & 1577/PUN/2024 Assessment years : 2014-15 & 2016-17 Shri Praphull Kaluram Shivale 1, A/P Koregaon Bhima, Pune Nagar Road, Tal Shirur, Pune – 411007 Vs. DCIT, Circle 12, Pune PAN: BFQPS4176B (Appellant) (Respondent) ITA No.1583/PUN/2024 Assessment year : 2018-19 Smt. Anjali Praphull Shivale Vadhu BK, Shirur, Pune – 412216 Vs. ACIT, Central Circle 2(3), Pune PAN: BFQPS4176B (Appellant) (Respondent) Assessee by : S/Shri B.C. Malakar and Yuvraj Chavan Department by : Shri Arvind Desai, Addl CIT DR Date of hearing : 20-03-2025 Date of pronouncement : 27-05-2025 O R D E R PER BENCH: ITA Nos.1582/PUN/2024 and 1038/PUN/2024 filed by the assessee are directed against the common order dated 09.03.2024 of the Ld. CIT(A), Pune – 12, relating to assessment years 2014-15 and 2015-16 respectively. ITA 2 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 No.1581/PUN/2024 filed by the assessee is directed against the order dated 09.07.2024 of the Ld. CIT(A), Pune – 12 confirming the penalty of Rs.15,67,000/- levied by the Assessing Officer u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for assessment year 2014-15. ITA No.1577/PUN/2024 filed by the assessee is directed against the order dated 09.03.2024 of the Ld. CIT(A), Pune – 12 confirming the penalty of Rs.58,88,200/- levied by the Assessing Officer u/s 271(1)(c) of the Act for assessment year 2016- 17. ITA No.1583//PUN/2024 filed by the wife of assessee Smt. Anjali Prafulla Shivale is directed against the order dated 10.04.2024 of the Ld. CIT(A), Pune – 12 for assessment year 2018-19. For the sake of convenience, all these appeals were heard together and are being disposed of by this common order. ITA No.1582/PUN/2024 (A.Y. 2014-15) 2. Facts of the case, in brief, are that the assessee is an individual engaged in the business of buying, developing and selling of agricultural land. He filed his return of income on 17.02.2015 declaring total income of Rs.10,31,277/-. A survey action u/s 133A of the Act was conducted in the case of the assessee on 28.09.2017 wherein the assessee had admitted additional income of Rs.61,00,000/- being the profit @ 25% of the gross receipts estimated during the course of survey proceedings. Thereafter, the case of the assessee was reopened and the assessment 3 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 was completed u/s 143(3) r.w.s. 147 of the Act on 14.12.2018 assessing the total income of the assessee at Rs.61,02,350/-. 3. Subsequently, another survey action u/s 133A of the Act was conducted in the case of the assessee on 13.09.2019 during which evidences of cash receipts by the assessee on the sale of land not recorded in the books of account were found and impounded. Thus, on the basis of evidences found as a result of survey action, the total suppression of profit quantified for the year under consideration was Rs.1,30,23,386/-. 4. The Assessing Officer, therefore, reopened the case of the assessee within the meaning of section 147 of the Act. Accordingly, a notice u/s 148 of the Act was issued to the assessee on 08.03.2021 after recording the reasons and obtaining the approval from the competent authority. The assessee in response to the same vide letter dated 06.04.2021 stated that the return of income filed on 14.02.2018 may be treated as return in response to the notice issued u/s 148 of the Act. The Assessing Officer thereafter issued and served statutory notices u/s 143(2) and 142(1) of the Act on the assessee in response to which the AR of the assessee appeared before the Assessing Officer and filed the requisite details. 5. During the course of assessment proceedings the Assessing Officer noted that during the course of second survey on 13.09.2019 evidences of unaccounted 4 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 receipts on account of sale of lands received through cheque and cash were found and impounded as Bundle No.1. He noted that pages 1 to 83 of Bundle No.1 contains the charts of sale of land in various schemes floated by the assessee group. The details maintained in the charts included details of sale consideration received for the land sold by way of cheque and in cash. The Assessing Officer observed that during survey proceedings, the assessee Shri Praphull Shivale, husband of Smt. Anjali Shivale had stated that all the receipts appearing in the chart were accounted for in the books of account maintained. However, he could not demonstrate the same with reference to the books of account maintained or with reference to the return of income filed. He noted that as per the summary of sales offered by the assessee group, the total sales received both in cheque and in cash in the hands of the assessee and his wife for assessment years 2014-15 to 2018-19 are of Rs.97,82,05,971/-. However, the assessee, during the first survey action on 28.09.2017, had disclosed the gross receipts of Rs.58,60,79,094/- in his hands and in the hands of his wife pertaining to assessment years 2014-15 to 2017-18 which has been offered subsequently by them in their respective returns filed after the survey action. The Assessing Officer compared the figure of unaccounted sales appearing in the impounded papers in Bundle No.1 and noted that the assessee has received sale consideration in cash amounting to Rs.1,30,23,386/- over and above the consideration of Rs.2,44,06,563/- taxed in the hands of the assessee in the order passed earlier. Thus, the assessee has offered less sales to the extent of Rs.1,30,23,386/- in his return. He, therefore, asked the assessee to explain the 5 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 difference. The assessee in response to the same submitted that he had already offered the income of Rs.61,02,250/- @ 25% on the sales of Rs.2,44,06,563/- as disclosed during the survey action conducted on 28.09.2017. It was further submitted that during the course of next survey action conducted on 13.09.2019 when the query was raised relating to the entries found to be mentioned in Bundle No.1, he instantaneously could not demonstrate that such receipts were already disclosed in the books of account and the return of income filed against the notice issued u/s 148 of the Act in the earlier assessment proceedings. It was submitted that due to very little time allowed to reconcile the regular books of account and impounded documents in Bundle No.1 which were voluminous containing as many as 83 pages, the assessee had offered such income on estimate basis. It was further submitted that the assessee had declared more sales in the first survey undertaken in 2017 as compared to those which were found during the course of second survey. The assessee has also tried to reconcile the same. It was further submitted that the profit @ 25% offered during the course of survey action was also in the higher side since the profit in such type of business is usually less than 20%. 6. However, the Assessing Officer was not satisfied with the arguments advanced by the assessee and made addition of Rs.32,55,846/- being the profit @ 25% on the suppressed sale receipts of Rs.1,30,23,386/- by observing as under: “7.6 The reconciliation chart as well as the explanation furnished by the Assessee has been considered in view of the material and information provided by the Investigation Wing. On perusal of the reconciliation statement, the assessee has given the chart reconciling the project wise figure of sale made in cash and cheques vis-à-vis sales receipt shown in the books of account, along with duly 6 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 highlighting the duplication entries as appearing on the impounded material. Accordingly, the Assessee has reconciled the sales receipt of Rs.11,44,553/- pertaining to A.Y.2014-15 over and above the earlier offered sale receipts. The Assessee has explained that after considering all the duplication entries in the impounded material, the gross receipt comes to Rs.1,75,18,759/- against which he has already offered the sale receipt to the tune of Rs.2,44,06,563/-. However, the assessee hasn't justified as how he has offered more sales in the survey undertaken in 2017 as compared to those which were offered in 2019. This stand taken by the assessee is not justifiable from the records collected during the course of survey action and therefore the same is not acceptable. Therefore, it is clear that the assessee has not offered receipts to sale amounting to Rs.1,30,23,386/- for taxation. Further, in his submission the assessee has stated that, the Net Profit of his receipts should be calculated @ 19.98% whereas on perusal of the statements recorded during the course of 2017 Survey action and the assessment conducted afterwards, the Net Profit of the assessee has been estimated @25%. Therefore, this claim of the assessee is hereby rejected. Accordingly, it is concluded that as the assessee has received the Gross receipts of Rs.1,30,23,386/- additionally for the year under consideration, the net receipt profit on the same comes to Rs.32,55,846/- being the 25% of the sales receipt.” 7. In appeal the Ld. CIT(A) upheld the action of the Assessing Officer by observing as under: “3.1 I have gone through the Assessment Order, the statement of facts, submissions made by the appellant during the assessment as well as the appellate proceedings, the findings of both the surveys conducted on 28.09.2017 as well as 13.09.2019 and the appeal is decided as under. 3.2 Brief facts of the case are that a survey action u/s 133A was conducted in the case of the appellant and his wife Smt. Anjali Praphull Shivale who are engaged in the business of land development, plotting and selling on 13/09/2019. There was one more survey conducted in the case of the appellant on 28.09.2017. During the course of survey proceedings, evidences of unaccounted receipts on account of sale of lands received through cheques and cash were found and impounded as per Bundle No.1. pages No.1 to 83 of the Bundle No.1 contain the charts of sale of land in various schemes floated by the Appellant group. The details maintained in the chart included details of sale consideration received for the land sold by way of cheque and in cash. During the course of the survey proceedings, Shri. Praphull Shivale and Smt. Anjali Shivale submitted that all the receipts appearing in the chart were accounted for in the books of accounts maintained. However, they could not demonstrate the same with reference to the books of accounts maintained or with reference to the return of income filed. As per the summary of sales offered by the appellant group the total sales (Cheque & cash) in hands of Shri. Praphull Shivale and Smt. Anjali Shivale for A.Y. 2014-15 to 2018-19 were of Rs.97,82,05,971/-. 7 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 3.3 It is pertinent to mention here that during the course of earlier survey action, conducted in the case of the appellant on 28/09/2017, based on incriminating evidence found, the appellant had disclosed gross receipts of Rs.58,60,79,094/- in the hands of Shri. Praphull Shivale and Smt. Anjali Shivale pertaining to A.Y.2014-15 to 2017-18 which was offered subsequently by them in the respective returns filed after the survey action. Therefore, the sales receipt(cash & cheques) of Rs.97,82,05,971/- as quantified and disclosed in the hands of Shri. Praphull Shivale and Smt. Anjali Shivale in subsequent survey conducted on 13/09/2019 were compared with the sales offered by the appellant in his return of income. Accordingly, it was found that the appellant had filed return of income in pursuance to notice issued u/s 148 of the IT Act for AY 2014-15 wherein the appellant had shown gross receipts of Rs.2,44,06,563/- and declared taxable income of Rs.61,01,641/-. The Gross Receipts disclosed consisted of Rs.85,26,563/- on account of Development Charges and Rs.1,58,80,000/- on account of Land Sale. The said quantum of sale disclosed by the appellant and assessed in order dated 14/12/2018 passed u/s. 143(3) r.w.s. 147 of the I.T. Act was compared with the figure of sales appearing in the impounded papers in Bundle No 01. Accordingly, after comparing the figure, it was noted that the appellant had received sale consideration in cash amounting to Rs.1,30,23,386/- over and above the consideration of Rs.2,44,06,563/- taxed in the hands of the appellant in the aforesaid order passed. Thus, it was found that the appellant had offered lesser sales to the extent of Rs.1,30,23,386/- in his return of income. On this basis the case of the appellant was reopened after recording the reasons. 3.4 During the course of the reassessment proceedings, the appellant vide specific questionnaire issued dated 29/01/2022 was asked to submit his explanation in this regard. In response to which the appellant furnished his explanation through a letter filed on 21/03/2022 wherein he had stated that he had already offered the income of Rs.61,02,250/- 25% on the sales of Rs.2,44,06,563/- as disclosed during the survey action conducted on 28/09/2017. The appellant further stated that during the course of the next survey conducted on 13/09/2019, when the query was raised relating to the entries found to be mentioned in Bundle No.1, he instantaneously could not demonstrate that such receipts were already disclosed in the books of accounts and the return of income filed against the notice issued u/s. 148 in the earlier assessment proceedings. To support his stand the appellant referred to the assessment order passed u/s 143(3) r.w.s. 147 dated 14/12/2018 wherein the AO had accepted the gross receipts and the income shown in the ROI. The appellant further mentioned that no time was allowed to him to reconcile the regular books of accounts and impounded document in Bundle No.1 which was voluminous containing as many as 83 pages. 3.5 survey proceedings conducted on 13/09/2019, while recording the statement, the appellant was confronted with the impounded documents vide Page No. 1 to 83, wherein he had admitted that the noting on the pages is related to sale of plots done by him and his wife and stated that they have already declared the total sales in their returns. But he could not demonstrate the same with books of accounts and the ROI and sought some time to reconcile the figures. However, even after giving opportunity, the appellant failed to reconcile the sales receipt as found during the course of survey action with the books of accounts maintained by him and his wife. Even during the reassessment proceedings under consideration, the appellant failed to file any reconciliation statement in spite of providing sufficient opportunity. It is evident from the Pages No.1 to 83 of Bundle No.1 impounded during the second survey proceedings that excess sales receipts were found over and above the gross receipt found in the earlier survey, and if the Appellant does not 8 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 accept the same, the burden lies on him to reconcile the receipts with evidences. In the case under consideration, the appellant did not furnish any reconciliation statement nor offered gross receipts as detected during the survey action. Further, the investigating officer had given a finding that there are lot of duplication entries which must be ruled out while arriving at the right figure of unrecorded or under reported sale receipts. During the course of post survey enquiry, the appellant submitted a reconciliation vide which the total receipts found to be mentioned in the impounded documents amounts to Rs.97,82,05,971/-. However, the appellant in spite of repeated opportunities failed to reconcile the figures with the impounded documents. 3.6 Accordingly, through the show-cause notice issued dated 26/03/2022, the Appellant was asked to justify the claim with proper reconciliation of the cash and cheque receipts for the period from A.Y. 2014-15 to 2017-18. In response, the Appellant furnished his explanation on 29/03/2022 along with reconciliation chart of sales receipt for the requisite period. The reconciliation chart as well as the explanation furnished by the Appellant was considered by the AO, in view of the material and information provided by the Investigation Wing. On perusal of the reconciliation statement, the appellant had given the chart reconciling the project wise figure of sale made in cash and cheques vis- a-vis sales receipt shown in the books of account, duly highlighting the duplication entries as appearing in the impounded material. Accordingly, the Appellant reconciled the sales receipt of Rs.11,44,553/- pertaining to A.Y. 2014-15 over and above the earlier offered sale receipts. The Appellant explained that after considering all the duplication entries in the impounded material, the gross receipt comes to Rs.1,75,18,759/- against which he had already offered the sale receipt to the tune of Rs.2,44,06,563/-. However, the appellant could not justify as to how he has offered more sales in the survey undertaken in 2017 as compared to those which were offered in 2019. This stand taken by the appellant is not justifiable from the records collected during the course of survey action and therefore the same is not acceptable. Therefore, it was held that the appellant had not offered receipts to sale amounting to Rs.1,30,23,386/- for taxation. Further, in his submission the appellant stated that, the Net Profit of his receipts should be calculated @ 19.98% whereas on perusal of the statements recorded during the course of the first Survey action and the assessment conducted afterwards, the Net Profit of the appellant was estimated @25%. Therefore, the claim of the appellant was rejected. Accordingly, it was concluded that as the appellant received the Gross receipts of Rs.1,30,23,386/- additionally for the year under consideration, the net profit on the same comes to Rs.32,55,846/- being 25% of the sales receipt. 3.7 During the appellate proceedings, the appellant has not been able to support his claim with any supporting. In fact, when it was brought to the notice of the appellant that if the appellant is claiming that same the estimation of profit @ 25% is not justified for all of the AYs under consideration and the actual profits for the AYs under consideration would be 19.98% based on the actual audited books of accounts instead of 25%as held by the AO then how come even in the audited books, the profit for all the years is being arrived at a common magical figure of 19.98%. The appellant again changed his stand and submitted that 19.98% is a typing mistake and the real figure is 25% only. This stand of the appellant is nothing but an afterthought to dodge the taxes. This stand of changing the profit disclosed from 1st survey to second survey and again further during the appellate proceedings cannot be appreciated being without any supporting and deserves to be rejected in toto. In fact even in the Grounds of appeal and Statement of facts, the appellant had claimed the actual profits to be @19.98% and now the appellant is again changing his stand that the profits for the impugned AYs 2014-15 to 2018-19 are 25%, 6.93%, 25%, 25% and 20.07% which is nothing but an afterthought. It is absurd to note 9 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 that if the stand of the appellant that the profits now claimed to be the correct profits is allowed then for the AYs 2014-15 and AY 2016-17 the grounds of appeal raised by the appellant would be rendered infructuous However, the appellant is taking this stand so as to reduce his profit for AY 2015-16 substantially i.e. from 25% to 6.93%. Hence, this afterthought of the appellant being without any basis cannot be entertained at this level. 3.8 It is also pertinent to note that the estimate was not made by the AO, but as the appellant had not maintained books of accounts and had failed to disclose the true picture of his income, he himself had disclosed the estimated income from the undisclosed transactions in land business. This estimation was done twice during the two surveys and not once. Hence, the submission of the appellant that the addition on estimate basis is not justified is contradictory to the appellant's own stand. The appeal proceedings for the AYs 2014-15 to 2017-18 in respect of the assessment orders passed in consequence to the first Survey action u/s 133A dated 28.09.2017 are also pending and are separately being dealt with by this office. As there was no proper reply submitted by the appellant, the AO in his wisdom, has adhered to the estimated profit at 25% as declared by the appellant after considering host of circumstances such a quality of evidence of the impounded documents, discrepancies noticed, the net profit ratio declared and net profit ratio determined by the Assessing Officer etc. The law has not invented any straight jacket formula to judge such estimations precisely. Such estimations are in the realm of probabilities. There is nothing conclusive about it. The estimations carried out by the Assessing Officer cannot be said to be marred by any kind of perversity. The estimates of profits by the Assessing Officer are not fanciful or whimsical but appear to be guided by the principles of objectivity, fairness and consideration of justice and maintain some sort of equilibrium. I am therefore, not inclined to interfere and re-estimate the estimations made by the AO in the absence of any palpable overreach on this score. Hence, as the appellant has not been able to bring on record any supporting evidence contrary to the finding of the Assessing Officer, the addition made by the AO of Rs.32,55,846/- is UPHELD. The Grounds No. 1 to 4 of the appeal are, therefore, DISMISSED.” 8. Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds: 1. On the facts and in the circumstances of the case and in law the Ld. DCIT, (Central) Circle-2(3), Pune (the Assessing Officer) erred in making addition of Rs.32,55,846/ on account of net profit considering the net profit @ 25% merely on the basis of statement recorded during survey action u/s.133A of the Act and not based on any incriminating documents found and impounded during survey and without bringing any materials on record for such addition ignoring and without appreciating the facts that the appellant had truly and correctly declared the net profit @15.10% which could be the maximum profit from such land transaction business after incurring expenses for acquisition of land and incurring other incidental expenses. The addition so made being arbitrary, illegal and bad- in-law be deleted. 10 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 2. On the facts and in the circumstances of the case and in law, the Ld. DCIT, (Central) Circle-2(3), Pune (the Assessing Officer) erred in initiating penalty proceedings u/s. 274 r.ws. 270A of the IT Act, 1961. The penalty proceedings so initiated may be quashed. 3. The appellant craves leave to add, alter, delete, amend, withdraw, modify, change or substitute any ground or grounds of appeal or to add any new ground or grounds of appeal during or before the hearing of the appeal. 9. The Ld. Counsel for the assessee at the outset submitted that the assessee has disclosed more sales / receipts during the course of first survey action which was based on estimate basis. Further, in the second survey report, the Investigation Officer has time and again stated that there are lot of duplicate entries which must be ruled out while arriving at the correct figure of unrecorded / under-reported sales / receipts. He drew the attention of the Bench to para 6 of the assessment order and submitted that the assessee has explained that after considering all the duplicate entries in the impounded material, the gross receipt comes to Rs.1,75,18,759/- against the sale receipt to the tune of Rs.2,44,06,563/- offered earlier after the first survey which was on estimate basis. However, the Assessing Officer disbelieved the same on the ground that there is no reason for the assessee to disclose such higher figure during the course of first survey that was conducted in 2017. He submitted that during the course of first survey the assessee had declared such sales / receipts on estimate basis, has honoured the same and paid the taxes. However, merely because the assessee has declared the higher receipts during the course of first survey, the same cannot be a ground to make addition on the basis of duplicate entries found during the second survey. He submitted that the assessee has duly reconciled and has proved before the Assessing Officer that 11 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 the gross receipts / sales offered in the return in response to the notice issued u/s 148 of the Act on the basis of first survey was higher than the actual sales / receipts found during the course of second survey. Further, there are a lot of duplicate entries and the Assessing Officer without properly analyzing the material in hand has made the addition which is not justified. Further, the Ld. CIT(A) is also equally unjustified in sustaining the addition made by the Assessing Officer. He accordingly submitted that the addition made by the Assessing Officer and sustained by the Ld. CIT(A) should be deleted. 10. The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A). He submitted that the assessee could not explain with cogent reasons regarding the excess turnover / sales found by the Assessing Officer to the extent of Rs.1,30,23,386/-. Since the Assessing Officer has estimated the profit @ 25% which was declared by the assessee as the profit rate of the unaccounted sales / receipts during the first survey, therefore, the Assessing Officer was justified in making addition of Rs.32,55,846/- to the total income of the assessee. 11. We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) and the paper book filed on behalf of the assessee. It is an admitted fact that the assessee was not maintaining regular books of account and on the basis of first survey conducted on 28.09.2017 the 12 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 assessee had declared the additional income of Rs.61 lakhs being 25% of the estimated gross receipts of Rs.2,44,06,563/- for assessment year 2014-15. We find during the course of second survey conducted on 13.09.2019 the Assessing Officer found that gross receipts to the tune of Rs.1,30,23,386/- was suppressed over and above the amount of Rs.2,44,06,563/- declared by the assessee during the course of first survey for which he made the addition of Rs.32,55,846/- being the profit @ 25% of such suppressed sales / receipts. It is the submission of the Ld. Counsel for the assessee that the assessee has already declared more receipts / sales in the return filed in response to the notice issued u/s 148 of the Act after the first survey which was on estimate basis and therefore, the addition made by the Assessing Officer by estimating the profit @ 25% on the suppressed turnover of Rs.1,30,23,386/- is not justified. Further, the Ld. CIT(A) without appreciation of the facts properly has sustained the addition which is also not justified. 12. A perusal of the assessment order shows that the assessee had given a chart reconciling the project-wise figure of sales made in cash and cheque vis-à-vis sale receipts shown in the books of account duly highlighting the duplication of entries as appearing in the impounded material. Although the assessee had explained that the gross receipts as per the impounded material comes to Rs.1,75,18,759/- as against the amount already offered to the tune of Rs.2,44,06,563/-, however, we find the Assessing Officer disbelieved the same on the ground that the assessee has not justified as to why he has offered more sales / receipts in the first survey 13 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 undertaken in 2017. It is an admitted fact that the receipts / sales were disclosed on estimate basis on the basis of first survey action. Merely because the assessee had offered more sales / receipts as against actual receipts the assessee in our opinion cannot be penalized for declaring higher figure. It is the settled proposition of law that no addition can be made merely based on assumption, suspicion, guesswork or conjuncture or irrelevant inadmissible material. In our opinion, the income which is to be estimated should be based on the actual receipts / sales especially when the assessee has reconciled the same and has given the actual receipts / sales as per the impounded material by excluding the duplicate entries. Even the survey team had also accepted that there are lot of duplicate entries which must be ruled out while arriving at the right figure of un-recorded or under-reported sale receipts. Under these circumstances, the action of the Assessing Officer in rejecting the reconciliation statement submitted by the assessee is not justified. The Ld. CIT(A) also is equally unjustified in upholding the action of the Assessing Officer. Since the matter requires thorough verification, therefore, considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to make accurate computation of the receipts / sales year-wise removing duplicate entries, find out the gross receipts / sales declared in the return filed in response to the first notice issued u/s 148 of the Act and only if there remains any suppressed sales / receipts, then estimate the profit on the same @ 25% as has been done. Needless to say the Assessing Officer shall provide due opportunity of being heard to the assessee and 14 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 decide the issue as per fact and law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. ITA No..1038/PUN/2024 (A.Y. 2015-16) 13. After hearing both sides, we find the grounds raised by the assessee in ITA No.1038/PUN/2024 are identical to the grounds raised in ITA No.1582/PUN/2024. We have already decided the issue and restored the same to the file of the Assessing Officer for fresh adjudication, therefore, following similar reasonings, we restore the issue to the file of the Assessing Officer for fresh adjudication. The grounds raised by the assessee are accordingly allowed for statistical purposes. ITA No.1581/PUN/2024 (A.Y. 2014-15) 14. The assessee in the instant case has challenged the order of the Ld. CIT(A) in confirming the penalty of Rs.15,66,960/- levied by the Assessing Officer u/s 271(1)(c) of the Act. 15. After hearing both parties, we find we have already restored the quantum addition to the file of the Assessing Officer for fresh adjudication. Therefore, the issue of levy of penalty u/s 271(1)(c) of the Act is also restored to his file for fresh adjudication after completion of the assessment. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 15 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 ITA No.1577/PUN/2024 (2016-17) 16. The assessee in the instant case has challenged the order of the Ld. CIT(A) in confirming the levy of penalty of Rs.58,88,200/- u/s 271(1)(c) of the Act. 17. After hearing both sides, we find the Ld. CIT(A) confirmed the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act by following his order for assessment year 2014-15. Since the order of the Ld. CIT(A) sustaining the penalty has been restored to the file of the Assessing Officer for fresh adjudication, therefore, this issue is also restored to the file of the Assessing Officer for fresh adjudication. The grounds raised by the assessee are accordingly allowed for statistical purposes. ITA No.1583/PUN/2024 (A.Y. 2018-19) 18. After hearing both sides, we find the grounds raised by the assessee in ITA No.1583/PUN/2024 are identical to the grounds raised in ITA No.1582/PUN/2024. Since we have already decided the issue and restored the same to the file of the Assessing Officer for fresh adjudication, therefore, following similar reasonings, we restore the issue to the file of the Assessing Officer for fresh adjudication. We 16 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 19. In the result, all the appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open Court on 27th May, 2025. Sd/- Sd/- (ASTHA CHANDRA) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; दिन ांक Dated : 27th May, 2025 GCVSR आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपीलार्थी / The Appellant; 2. प्रत्यर्थी / The Respondent 3. 4. The concerned Pr.CIT, Pune DR, ITAT, ‘B’ Bench, Pune 5. गार्ड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune 17 ITA Nos.1582, 1038, 1581, 1577 & 1583/PUN/2024 S.No. Details Date Initials Designation 1 Draft dictated on 19.05.2025 Sr. PS/PS 2 Draft placed before author 20.05.2025 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order "