Mrs. Kuntal Paliwal, Agra v. The ITO, Agra

CO 21/AGR/2009 | 2001-2002
Pronouncement Date: 21-01-2011 | Result: Dismissed

Appeal Details

RSA Number 2120323 RSA 2009
Assessee PAN AGIPP1593P
Bench Agra
Appeal Number CO 21/AGR/2009
Duration Of Justice 1 year(s) 5 month(s) 16 day(s)
Appellant Mrs. Kuntal Paliwal, Agra
Respondent The ITO, Agra
Appeal Type Cross Objection
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 21-01-2011
Date Of Final Hearing 12-01-2011
Next Hearing Date 12-01-2011
Assessment Year 2001-2002
Appeal Filed On 04-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO. 155/AGRA/2009 ASSTT. YEAR : 2001-02 INCOME-TAX OFFICER VS. SMT. KUNTAL PALIWAL 1(2) AGRA. 8-CHURCH ROAD AGRA. C.O. NO. 21/AGRA/2009 (IN ITA NO. 155/AGR./2009) ASSTT. YEAR : 2001-02 SMT. KUNTAL PALIWA VS. INCOME-TAX OFFICER 8-CHURCH ROAD AGRA. 1(2) AGRA. (PAN AGIPP 1593 P) (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI VINOD KUMAR JR. D.R. FOR RESPONDENT : NONE (APPLICATION REJECTED) ORDER PER H.S. SIDHU J.M. : THE DEPARTMENT HAS FILED THIS APPEAL AGAINST THE O RDER DATED 12.02.2009 OF LEARNED CIT(A)-I AGRA ON THE FOLLOWING GROUNDS AND THE ASSESSEE HAS ALSO FILED CROSS OBJECTION AGAINST THE SAME ORDER OF CIT(A) : 1.(A) THAT THE CIT(APPEALS)-1 AGRA HAS ERRED IN L AW AND ON FACTS IN DELETING THE PENALTY OF RS.2 06 770/- LEVIED U/S. 2 71(1)(C) OF I.T. ACT 1961 WITHOUT PROPERLY APPRECIATING THE FACTS OF TH E CASE; (B). IN DOING SO THE CIT(APPEALS)-1 AGRA HAS ERRED IN LAW AND ON FACTS AS THE ASSESSEE FAILED TO DISCHARGE HIS ONUS OF PROVING THE 2 CLAIMED SHARE TRANSACTION AS GENUINE AND HENCE ADMI TTEDLY SURRENDERED THE SAME IN CONSEQUENCE TO PROCEEDINGS U/S. 147/148 OF THE IT ACT 1961 INITIATED BY THE ASSESSING OFFICER WHICH RESULTED IN LEVY OF AFORESAID PENALTY. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) OF APPEAL DURING T HE APPELLATE PROCEEDINGS. 3. THAT THE ORDER OF THE CIT (APPEALS)-1 AGRA BEIN G ERRONEOUS IN LAW AND ON FACTS BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED. THE ISSUES INVOLVED IN THE APPEAL AS WELL AS CROSS OBJECTION ARE ALMOST COMMON THEREFORE FOR THE SAKE OF CONVENIENCE WE ARE DISP OSING OF THE SAME BY PASSING ONE CONSOLIDATED ORDER. 2. BRIEF FACTS IN RELATION TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE ADDITIONAL DIT (INV.) AGRA REGARDING BOGUS ENTRIES OF LONG-TERM CAPITAL GAIN FROM M/S. AGARWAL & COMPA NY DELHI BY RECEIVING RS.5 64 400/- BY DRAFT WHICH WAS DEPOSITED BY THE A SSESSEE IN HER BANK ACCOUNT AT AGRA. KEEPING IN VIEW THE SAID INFORMATION THE ASS ESSING OFFICER ISSUED NOTICE U/S. 148 OF THE INCOME-TAX ACT 1961 (HEREINAFTER R EFERRED TO AS THE ACT). IN COMPLIANCE OF THE SAME THE ASSESSEE STATED THAT SH E HAD VOLUNTARILY FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DISPUTE ON 28. 03.2002 AND THE SAME MAY BE TREATED AS A RETURN FILED IN COMPLIANCE OF NOTICE U /S. 148 OF THE ACT. THE ASSESSING OFFICER CALLED VARIOUS EVIDENCES BY ISSUING NOTICE U/S. 142(1) OF THE ACT TO VERIFY 3 THE GENUINENESS OF SHARE TRANSACTIONS IN DISPUTE AN D HE OBSERVED THAT THERE WAS A CASH DEPOSIT OF RS.6 50 000/- IN THE CONCERNED BANK ACCOUNT PRIOR TO PURCHASE OF DRAFT OF RS.5 64 400/- FAVOURING THE ASSESSEE. HE A LSO ISSUED REQUISITION U/S. 133(6) OF THE ACT ON 22.08.2006 TO THE BROKER M/S. AGARWA L & COMPANY NEW DELHI CALLING FOR THE DETAILED EVIDENCE IN SUPPORT OF HIS TRANSACTIONS WITH THE ASSESSEE. THE ASSESSING OFFICER ALSO ISSUED SUMMONS U/S. 131 OF THE ACT TO THE BROKER ON 22.08.2006 REQUIRING HIM TO ATTEND HIS OFFICE PERSO NALLY. BUT BOTH THE NOTICES RETURNED UN-SERVED WITH THE REMARK LEFT WITHOUT AD DRESS. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED A LETTER DATED 10.11.2006 STATING THAT THE ASSESSEE HAS BEEN UNABLE TO TRACE OUT HIS INCOME-TA X RECORD FOR THE ASSESSMENT YEAR 2001-02 AND HENCE UNABLE TO FURNISH COMPLETE DETAI LS REGARDING LONG-TERM CAPITAL GAINS ARISING OUT OF THE SALE OF SHARES AND THAT IN SPITE OF HER REQUEST FOR CERTIFIED COPIES OF THE RECORDS WHICH WAS AVAILABLE WITH THE DEPARTMENT THE DEPARTMENT HAD ALSO BEEN UNABLE TO SUPPLY THE REQUISITE DOCUMENTS BUT TO AVOID LITIGATION AND SALE TRANSACTION OF THE SHARE AMOUNTING TO RS.5 64 400/- OFFERED FOR TAX AS INCOME FROM OTHER SOURCES SUBJECT TO THE CONDITION THAT NO PENA LTY U/S. 271(1)(C) BE INITIATED AND LEVIED. AFTER GOING THROUGH THE RECORD THE ASSESSI NG OFFICER HELD THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE SHAR E TRANSACTION AND CONSEQUENTLY HER CLAIM OF LONG-TERM CAPITAL GAINS IN HER RETURN OF INCOME WAS NOT ACCEPTED AND HE TREATED THE RECEIPT OF RS.5 64 400/- AS UNEXPLAI NED AND COMPLETED THE 4 ASSESSMENT ON 30.11.2006. THE ASSESSING OFFICER ALS O INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT BY ISSUING A SHOW CAUSE NOTICE DATED 30.11.2006 FOR COMPLIANCE ON 26.12.2006. THE ASSESS ING OFFICER ALSO ISSUED REMINDER ON 17.04.2007. NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE D ID NOT HAVE ANYTHING TO SAY ON THE ISSUE IN DISPUTE THAT THE SHARE TRANSACTIONS WE RE NOT GENUINE. IT WAS ONLY AFTER THE DETECTION OF SUCH BOGUS ENTRIES THE ASSESSEE H AS SURRENDERED THE LONG-TERM CAPITAL GAIN FOR TAX AS INCOME FROM OTHER SOURCES THEREBY FORTIFYING THE FINDING THAT THE LONG-TERM CAPITAL GAIN HAD BEEN CLAIMED IN THE RETURN OF INCOME IN ORDER TO AVOID TAX. ACCORDINGLY HE CONCLUDED THAT THE ASSES SEE HAD FURNISHED INACCURATE PARTICULARS OF HER INCOME AND WAS THEREFORE LIABL E FOR PENALTY U/S. 271(1)(C) OF THE ACT WHICH HE IMPOSED @ 100% OF THE TAX SOUGHT TO BE EVADED IN RESPECT OF THE IMPUGNED INCOME. AGGRIEVED BY THE SAME THE ASSESSE E FILED AN APPEAL BEFORE THE LEARNED FIRST APPELLATE AUTHORITY WHO VIDE IMPUGNE D ORDER DATED 12.02.2009 CANCELLED THE PENALTY IN DISPUTE BY ALLOWING THE AP PEAL OF THE ASSESSEE. HENCE THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IM PUGNED ORDER DATED 12.02.2009. 3. NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY REGISTERED POST ACKNOWLEDGMENT DUE FOR 12.01.2011. IN RESPONSE TO T HE SAME SHRI P.K. SEHGAL ADVOCATE COUNSEL FOR THE ASSESSEE FILED A LETTER D ATED 11.01.11 REQUESTING FOR 5 ADJOURNMENT ON THE GROUND THAT ON ACCOUNT OF SOME U NAVOIDABLE AND URGENT NATURE OF WORK HE HAS TO RUSH TO DELHI AND HE WILL RETUR N BACK ON 13.01.2011 LATE EVENING AND THEREFORE HE WILL NOT BE ABLE TO ATTEN D THE HEARING OF THE PRESENT APPEAL AND CROSS OBJECTION ON THE DATE FIXED I.E. 12.01.2011 AND REQUESTED FOR ADJOURNMENT OF THE HEARING TO THE LAST WEEK OF JAN. 2011 BUT THE BENCH HAS REJECTED THE REQUEST OF THE ASSESSEE AFTER CONSIDER ING THE CONTENTS OF THE APPLICATION FOR ADJOURNMENT FILED BY THE LD. COUNSEL FOR THE AS SESSEE AND PROCEEDING EXPARTE TO DECIDE THE MATTER IN DISPUTE AFTER HEARING THE DEPA RTMENTAL REPRESENTATIVE. 4. AT THE TIME OF HEARING LEARNED DR RELIED UPON T HE ORDER PASSED BY THE ASSESSING OFFICER AND STATED THAT THE IMPUGNED ORDE R PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY IS AGAINST THE LAW AND FACTS ON THE FILE AND WITHOUT PROPERLY APPRECIATING THE RECORD RELATING TO THE ISSUE IN DI SPUTE. HE FURTHER STATED THAT THE ASSESSEE HAS FAILED TO DISCHARGE HER ONUS OF PROVIN G THE CLAIM OF SHARE TRANSACTION AS GENUINE AND SURRENDERED THE AMOUNT OF RS.5 64 40 0/- AS INCOME FROM OTHER SOURCES. THEREFORE THE ASSESSING OFFICER HAS RIGHT LY LEVIED THE PENALTY IN DISPUTE BECAUSE THE ASSESSEE HAD FURNISHED INACCURATE PARTI CULARS OF HER INCOME. HE REQUESTED THAT THE IMPUGNED ORDER BE CANCELLED AND THE PENALTY ORDER PASSED BY THE INCOME-TAX OFFICER DATED 16.05.2007 MAY BE UPHELD. 6 5. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSING THE RELEVANT RECORD AVAILABLE WITH US AS WELL AS THE GR OUNDS RAISED BY THE ASSESSEE IN HER CROSS OBJECTION WE ARE OF THE VIEW THAT THE AS SESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S. 143(3)/147 OF THE ACT ON 30.11. 2006 BY ACCEPTING THE OFFER OF RS.5 64 400/- ON ACCOUNT OF SALE CONSIDERATION OF S HARES IN DISPUTE AS INCOME FROM OTHER SOURCES. AS PER THE IMPUGNED ORDER THE LEARN ED FIRST APPELLATE AUTHORITY IN PARA NO. 3 PAGE 3 HAD DISCUSSED THE DETAILED ARGUME NTS OF THE ASSESSEE AS WELL AS THE LETTER DATED 05.10.2006 AND 10.11.2006 WHICH I S SUPPORTED BY VARIOUS DECISIONS RENDERED BY HONBLE HIGH COURT AS WELL AS THE TRIBUNAL ESPECIALLY THE JURISDICTIONAL TRIBUNAL AND HAS GIVEN THE FINDING I N PARA NO. 4 PAGE 5 & 6 OF THE IMPUGNED ORDER. FOR THE SAKE OF CONVENIENCE THE PL EADING OF THE ASSESSEE AS WELL AS THE FINDING GIVEN BY THE LEANED FIRST APPELLATE AUTHORITY IN PARA NO. 3 AND 4 PAGE 3 TO 6 ARE REPRODUCED AS UNDER :- 3. AGGRIEVED THE APPELLANT HAS FILED THE PRESENT APPEAL. IN THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPE LLANT CITED SEVERAL JUDGMENTS OF THE HON'BLE ITAT AGRA BENCH AGRA WHE REIN ON SIMILAR FACTS AND CIRCUMSTANCES AS IN THE APPELLANT'S CASE GENUINENESS OF THE LONG TERM CAPITAL GAINS HAS BEEN UPHELD. IN ADDITIO N THERETO THE LD. AR OF THE APPELLANT HAS FILED THE FOLLOWING : LETTER DATED 05.10.2006 ADDRESSED TO THE AO IN WHIC H THE APPELLANT HAS SOUGHT CERTIFIED COPIES OF HER INCOME-TAX RETUR N AND VARIOUS ANNEXURES FILED THERE WITH FOR A.Y. 2001-02 IN ORDE R TO FILE A RETURN IN RESPONSE TO NOTICE U/S.148 OF THE ACT. LETTER DATED 10.11.2006 STATING THEREIN THAT THE AP PELLANT HAS BEEN UNABLE TO TRACE OUT HER INCOME-TAX RECORDS FOR ASSE SSMENT YEAR 2001- 7 02 AND HENCE UNABLE TO FURNISH COMPLETE DETAILS REG ARDING THE LONG TERM CAPITAL GAINS ARISING ON SALE OF SHARES. IT WA S REITERATED THAT IN SPITE OF ALL EFFORTS THE APPELLANT HAD FAILED TO T RACE OUT HER INCOME-TAX RECORDS AND THAT IN SPITE OF HER REQUEST FOR CERTIF IED COPIES OF THE RECORDS AVAILABLE WITH THE DEPARTMENT THE DEPARTME NT HAD ALSO BEEN UNABLE TO SUPPLY THE REQUISITE DOCUMENTS. THE APPEL LANT FURTHER STATED THAT THE PURCHASE AND SALE OF SHARES OF SUPERIOR FI NLEASE LTD. ARE VERIFIABLE WITH REFERENCE TO PURCHASE AND SALE BILL S OF THE SHARE BROKER SHARE CERTIFICATES ETC. HOWEVER TO AVOID L ITIGATION THE SALE CONSIDERATION OF THE SHARES AMOUNTING TO RS.5 64 40 0/- WAS OFFERED FOR TAX AS 'INCOME FROM OTHER SOURCES' SUBJECT TO T HE CONDITION THAT NO PENALTY U/S.271( 1)( C) BE INITIATED AND LEVIED. TH E RELEVANT PARAGRAPH IS REPRODUCED BELOW:- '4. THAT AS YOUR HONOUR HAS ASKED THE ASSESSEE TO F URNISH THE COMPLETE DETAILS REGARDING LONG TERM CAPITAL GAINS ARISING ON SALE/TRANSFER OF SHARES OF SUPERIOR FINLEASE LTD. WHICH ON ACCOUNT OF REASONS STATED ABOVE AND EARLIER IS HUMA NLY IMPOSSIBLE DUE TO PREVALENT CIRCUMSTANCES OF ASSESS EE'S CASE THEREFORE KEEPING INTO MIND ALL POSSIBLE AND IMPOS SIBLE FACTORS AFTER ASCERTAINING THE GROUND REALITIES AN D FURTHER AFTER MATURE DELIBERATIONS AND DISCUSSIONS WITH CONCERNED AUTHORITIES THE ASSESSEE TO PURCHASE PEACE OF MIND AND TO AVOID ANY LITIGATION HEREBY OFFER FOR TAXATION THE SALE CONSIDERATION OF RS.5 64 400/- WITH REGARD TO SHARE S OF SUPERIOR FINLEASE LTD. AS INCOME FROM OTHER SOURCES SUBJECT TO THE CONDITION THAT NO PENALTY U/S.271(1J(C) AND / O R NO PENAL ACTION OF WHATSOEVER NATURE BE KINDLY INITIATED AGA INST THE ASSESSEE WITH REGARD TO THE SAME. ' COPY OF APPELLATE ORDER OF C.I.T.(A)- I AGRA INA. NO.182/CIT(A)- I/ITO- 1(.2)/ AGRA/2006-07 /1456 DAT ED 22.12.2008 IN THE CASE OF MANOJ SARIN -HUF - A.Y. 2000-01 WHEREIN ON SIMILAR FACT AND CIRCUMSTANCES PENALTY I MPOSED U/S.271(1)(C) OF THE ACT HAS BEEN DELETED. COPY OF APPELLATE ORDER OF HON'BLE ITAT AGRA BENCH AGRA IN THE CASE OF DR. RAJEEV GOYAL WHEREIN ON SIMILAR FAC TS PENALTY IMPOSED U/S.271(1)(C) HAS BEEN DELETED BY THE ITAT AGRA SMC BENCH AGRA VIDE ORDER DATED 27.11.2008. 8 THE AR OF THE APPELLANT HAS ALSO RELIED ON THE FOLL OWING JUDGMENTS: CIT VS. SARAN KHANDSARI SUGAR WORKS 246 ITR 216 (AL L.) CIT VS. S. SANKARAN 241 ITR 825 (MAD.) CIT VS. AGGARAWAL PIPE CO. 114 TAXMAN 199 (DEL.) CIT VS. JAYARAJ TALKIES 239 ITR 914 (MAD.) CIT VS. M. P. NARAYANAN 149 CTR 1 CIT VS. C. J. RATHNASWAMY 140 CTR 143 (MAD.) INDER SINGH SHANKLA VS. ITO 68 ITJ 463 (JD.) ITO VS. MANJIT SINGH BALDEV SINGH COMMISSION AGENTS 69 ITD 197 (ASR) DCIT VS. JAI NARAIN RADHEY SHYAM & CO. 65 ITJ 761 ( DEL.) VIDE SUBMISSION FILED ON 28.01.2009 THE APPELLANT HAS STATED AS UNDER: 'THE ASSESSEE FURTHER WISHES TO INVITE YOUR HONOUR' S KIND ATTENTION TO THE FOLLOWING DECISION OF HON 'BLE ITA T PARTICULARLY JURISDICTIONAL HON 'BLE ITAT AGRA BENCH AGRA WHERE IN UNDER THE SIMILAR FACTS AND CIRCUMSTANCES ALIKE THAT OF I N ASSESSEE'S CASE THE GENUINENESS OF LONG TERM CAPITAL GAINS DEC LARED BY CONCERNED ASSESSEES WERE UPHELD/ACCEPTED: - A. ITO VS. RAJIV AGGARWAL 139 TAXMAN 170 ITAT DEL HI BENCH (SMC-1) B. SHRI GOPAL PRASAD AGARWAL VS. ACIT ITA NO.128/AG R/2004 - A. Y. 2000-01 HON'BLE ITAT AGRA BENCH AGRA. C. SMT. MEMO DEVI VS. ACIT-4 AGRA - ITA NO.396/ AG R/2004 A. Y. 2001- 02 HON 'BLE ITAT AGRA BENCH AGRA D. VINEET KHERA VS. ITO-1(4) AGRA - ITA NO.255/AGR /2004 - A. Y. 1996 97 - HON'BLE ITAT AGRA BENCH AGRA E. ASHOK KUMAR AGARWAL VS. ACIT-CC AGRA ITA NO.129 /AGR/2004 - A. Y. 2000-01 - HON'BLE ITAT AGRA BENCH AGRA F. ASHOK KUMAR LAVANIA VS. ACIT-4(1) AGRA - ITA NO .112/AGR/2004 - A. Y. 2000-01 - HON'BLE ITAT AGRA BENCH AGRA IN VIEW OF THE AFOREMENTIONED DECISIONS OF HON'BLE ITAT PARTICULARLY OF THE JURISDICTIONAL HON'BLE ITAT AGRA BENCH AGR A IT IS BEYOND DOUBT EVIDENT THAT NOW THE MATTER ALIKE OF THE ASSE SSEE HAS BEEN PROPERLY SETTLED AND NOW THERE REMAINS NO DIFFERENC E OF OPINION WHAT TO TALK ABOUT ANY DISPUTE / LITIGATION. THE DECISIO N OF JURISDICTIONAL HON'BLE ITAT AGRA BENCH AGRA BEING BINDING UPON YO UR HONOUR 9 THEREFORE IT. IS PRAYED THAT YOUR HONOUR BE KIND E NOUGH TO DECIDE THE ASSESSEE'S MATTER UNDER CONSIDERATION KEEPING IN MI ND THE PRINCIPLES LAID DOWN AND DECISIONS ARRIVED AT BY THE HON'BLE I TAT IN THE AFORE CITED DECISIONS WHICH ARE SQUARELY AND COMPLETELY A PPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE'S CASE FROM ALL THE POSSIBLE ANGLES AND ASPECTS. 4. ON CONSIDERATION OF THE RELEVANT FACTS I FIND T HAT THE APPELLANT HAD DECLARED LONG TERM CAPITAL GAINS ON SALE OF SHA RES OF SUPERIOR FINLEASE LTD. IN THE ORIGINAL RETURN. HOWEVER FACE D WITH INQUIRIES IN THE COURSE OF PROCEEDINGS U/S.147 OF THE ACT THE A PPELLANT SURRENDERED THE IMPUGNED AMOUNT FOR TAX WITHOUT MAK ING ANY EFFORT TO FURNISH ANY EVIDENCE TO SUBSTANTIATE HER ORIGINAL C LAIM. IT IS WELL- KNOWN THAT SEVERAL ASSESSEES HAD TAKEN ENTRIES OF B OGUS LONG TERM CAPITAL GAINS FROM VARIOUS BROKERS AS WAS DETECTED BY THE INVESTIGATION WING AND ADMITTED BY SEVERAL BROKERS AS WELL AS ASSESSEE/BENEFICIARIES. HOWEVER IN THE PRESENT CAS E THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE LONG TERM CAPIT AL GAINS SHOWN BY THE APPELLANT WAS NOT GENUINE IN SO MUCH THAT IT IS NOT KNOWN AS TO WHETHER THE COMPANY OF WHICH THE APPELLANT HAD PURC HASED THE SHARES WAS NON-EXISTENT OR THAT THE APPELLANT HAD NOT PURC HASED THE SHARES AT ALL OR THAT THE APPELLANT HAD NOT SOLD THE SHARES A T ALL OR THAT THE MONEY RECEIVED BY THE APPELLANT WAS UNEXPLAINED IN THE HANDS OF THE BROKER OR THAT THE BROKER HAD DENIED SUCH TRANSACTI ON AND CONFESSED TO HAVING GIVEN THE SAID AMOUNT BY CHEQUE OUT OF UN EXPLAINED SOURCES. THUS THE PENALTY HAS BEEN IMPOSED SOLELY ON THE BASIS OF THE APPELLANTS SURRENDER. ON THE OTHER HAND IT IS SEE N THAT THE APPELLANT HAS STATED THAT THE IMPUGNED AMOUNT WAS OFFERED BY HER FOR TAX AS SHE WAS UNABLE TO TRACE OUT THE RECORDS OF THE RELEVANT PERIOD AND SUCH CLAIM OF THE APPELLANT HAS NOT BEEN PROVED TO BE FA LSE BY THE AO BY POINTING OUT ANY EVIDENCE OR MATERIAL TO THE CONTRA RY. THEREFORE PROVISIONS OF SECTION 271(1)(C) OF THE ACT ARE NOT APPLICABLE TO THE APPELLANTS CASE IN SO MUCH THAT FURNISHING OF INAC CURATE PARTICULARS OF THE IMPUGNED INCOME IS NOT ESTABLISHED BY ANY IN DEPENDENT EVIDENCE. SIMILARLY THE PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C) ARE NOT APPLICABLE AS THE FALSITY OF THE APPELLANTS CLAIM HAS NOT BEEN ESTABLISHED BY ANY COGENT MATERIAL OR EVID ENCE. THEREFORE PENALTY U/S. 271(1)(C) IMPOSED ON THE APPELLANT IS NOT SUSTAINABLE AND HENCE DELETED. 10 6. WE HAVE ALSO FOUND PAPER BOOK HAVING 44 PAGES W HICH CONTAINS COPY OF WRITTEN SUBMISSION FILED BEFORE THE AO DATED 5.10.0 6 AND 10.11.2006 AT PAGES 1 TO 4 COPY OF STATEMENT OF TOTAL INCOME AT PAGES 5-6 COPY OF ACKNOWLEDGEMENT RECEIPT REGARDING FILING OF INCOME-TAX RETURN FOR A .Y. 2001-02 AT PAGE 7 COPY OF SHOW CAUSE NOTICE FOR PENALTY U/S. 271(1)(C) DATED 30.11.2006 AT PAGE 8 COPY OF REASSESSMENT ORDER U/S. 143(3)/147 DATED 30.11.2006 AT PAGE 9 COPY OF APPELLATE ORDER IN THE CASE OF MR. MANOJ SARIN (HUF) IN APPEA L NO. 182 DATED 22.12.2008 FOR A.Y. 2000-01 AT PAGE 16-21 COPY OF ORDER OF ITA T IN THE CASE OF DR. RAJEEV GOYAL VS. ITO IN ITA NO. 623/AGR./2008 FOR A.Y. 200 1-02 AT PAGE 22 25 AND COPIES OF VARIOUS CASE LAWS RELIED UPON AT PAGES 26 -44. WE HAVE ALSO THOROUGHLY PERUSED THE SAME ALONGWITH THE IMPUGNED ORDER PASSE D BY THE LEARNED FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS ATTACHED A CO PY OF ORDER DATED 22.12.2008 OF COMMISSIONER OF INCOME-TAX (APPEALS) IN THE CASE OF MR. MANOJ SARIN (HUF) VS. ASSESSING OFFICER FOR ASSESSMENT YEAR 2000-01 WHIC H IS AT PAGE NO. 16-21 DELETING THE SIMILAR PENALTY U/S. 271(1)(C) OF THE INCOME-TAX ACT. WE HAVE ALSO PERUSED THE ORDER OF ITAT AGRA BENCH AGRA IN THE CASE OF DR. RAJEEV GOYAL VS. ITO 2 (4) AGRA PASSED IN ITA NO. 623/AGR./2008 FOR THE ASSESSMENT YEAR 2001-02 DATED 27.11.2008 ON THE SIMILAR ISSUE DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. THIS ORDER IS ENCLOSED AT PAGE 22 TO 25 OF THE ASSESSEES PAPER BOOK. FOR 11 THE SAKE OF CONVENIENCE THE RELEVANT PORTION OF TH E SAME I.E. PARA 5 TO 8 IS REPRODUCED BELOW : 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PE RUSED THE ENTIRE MATERIAL ON RECORD. 6. IT WAS SUBMITTED THAT THE ASSESSEE IS A DOCTOR AND DURING THE RELEVANT PERIOD WAS DERIVING INCOME FROM SALARY ONLY AND WAS NET DOING ANY PRIVATE PRACTICE. IT WAS SUBMITTED THAT THE ASSESSE E HAD ALREADY FILED RETURN OF INCOME WHICH WAS NOT EVEN EXAMINED BY TH E AO AND HE CONTINUED TO ISSUE QUERIES WHICH WERE APTLY REPLIE D BY THE ASSESSEE BUT BY IGNORING THEM ALL THE IMPUGNED PENALTY HAS B EEN LEVIED. IT WAS SUBMITTED THAT THE CASE OF THE REVENUE IS BASED ON SHEER SURMISES AND CONJECTURES AS THE ASSESSEE NEVER RECEIVED ANY CAP ITAL GAINS ON THE SALE OF SHARES AS HAS BEEN ALLEGED BY THE REVENUE THE OFFER FOR TAXATION OF THE IMPUGNED AMOUNT WAS ONLY WITH A CO NDITION TO BUY PEACE AND WITH FURTHER CONDITION THAT IN CASE ANY F URTHER QUERIES REMAINED THE SAME COULD BE MADE FROM THE ASSESSEE. ON THE OTHER HAND THE ID. A.R. HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS VIS-A-V IS THE AVAILABLE MATERIAL ON RECORD AND AFTER CONSIDERING THE WRITTE N SUBMISSIONS FILED BEFORE THE BENCH I AM OF THE CONSIDERED OPINION TH AT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S. 271(L)(C) OF THE ACT. THE QUERIES MADE BY THE REVENUE ARE ON DIFFERENT ASPECTS WHICH ARE NOT FOUND TO BE CORRECT AS PER RECORDS. THE AO HAS NOT EVEN GIVEN C LEAR FINDING WITH REGARD TO THE DEFAULT COMMITTED BY THE ASSESSEE U1S . 271(1)(C) OF THE ACT. HE HAS MAINLY RE1IED UPON EXPLANATION L ATTACH ED TO THIS SECTION WHICH SPEAKS OF THE HEAVY ONUS ON THE ASSESSEE. THE EXPLANATION 'IS ATTRACTED ONLY ONCE THE AO GIVES CLEAR FINDING AS T O WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FILED INACCURATE PARTICULARS OF SUCH INCOME. BEFORE DOING THAT THE RELIANCE ON THE EXPLANATION TO SECTION 271 (L)( C) IS MISPLA CED. NO INDEPENDENT ENQUIRY WAS CONDUCTED BY THE ASSESSEE TO ARRIVE AT THE TRUTH OF THE GENERAL INFORMATION PASSED ON BY DDIT(INV.) AGRA THAT THE ASSESSEE HAD RECEIVED BOGUS ENTRIES OF RS.1 51 000/- RELATIN G TO SALE PROCEEDS OF SHARES. IT WAS FOUND THAT DURING THE YEAR NEITHE R THE ASSESSEE HAD PURCHASED NOR SOLD ANY SHARES AND THERE COULD BE NO OCCASION TO RECEIVE SALE PROCEEDS AS HAS BEEN ALLEGED BY THE RE VENUE. RELIANCE 12 WAS PLACED ON THE DECISION OF HON'BLE DELHI HIGH CO URT IN THE CASE OF CIT VS. ASHOK THAKKAR REPORTED IN (2008) 170 TAXMAN 470 (DELHI). IN THIS CASE IT HAS BEEN HELD THAT DURING THE ASSESSM ENT PROCEEDINGS THE ASSESSEE SURRENDERED CERTAIN AMOUNT FOR TAXATION AN D SUBMITTED THAT THE SAME WAS DONE IN ORDER TO BUY PEACE AND WHEN IT WAS FOUND THAT BESIDES FACTUM OF SURRENDER MADE BY THE ASSESSEE T HE AO HAS FAILED TO BRING ANY OTHER MATERIAL TO SHOW THAT THE SURREN DERED INCOME WAS CONCEALED INCOME PENALTY WAS NOT WARRANTED IN LAW. THE RATIO OF THIS DECISION IS CLEARLY APPLIED TO THE CASE IN HAND TH EREFORE IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE DECISION (SUPRA) RELIED I ORDER TO DELETE THE ENTI RE PENALTY IN THIS CASE. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 7. WE ALSO FOUND THAT THE ASSESSEE HAS CITED VARIOU S DECISIONS IN SUPPORT OF HER CONTENTION CITED BEFORE THE REVENUE AUTHORITIES AS WELL AS BEFORE US WHICH IS AT PAGE NO. 26 TO 44 OF THE ASSESSEES PAPER BOOK. TH E MAIN CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE HAD AGREED TO A HIGHE R ASSESSMENT ON THE CONDITION THAT NO PENALTY WOULD BE IMPOSED WAS A FINDING OF FACT AND THE FINDING THAT NO ACTUAL CONCEALMENT WAS ESTABLISHED WAS ALSO A FINDING OF FACT AND THEREFORE IT COULD BE HELD THAT THE ASSESSEE HAS DISCHARGED THE ONUS UNDE R EXPLANATION TO SECTION 271(1)(C) OF THE ACT. THEREFORE THE PENALTY IN DIS PUTE DESERVES TO BE CANCELLED. SECONDLY WHEN THERE IS NO MATERIAL AVAILABLE WITH THE DEPARTMENT TO SHOW THAT THE INCOME HAD BEEN CONCEALED BY THE ASSESSEE MERE ADD ITION TO THE INCOME AT THE INSTANCE OF ASSESSEE WOULD NOT WARRANT A FINDING OF CONCEALMENT OR LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. VARIOUS HONBLE HIGH COU RTS HAVE ALSO UPHELD SUCH 13 FINDING RECORDED BY THE TRIBUNALS BECAUSE SUCH FIND ING RECORDED BY THE TRIBUNAL WERE PURE FINDING OF FACT AND COULD NOT BE SAID TO BE PERVERSE OR UNREASONABLE AND NO QUESTION OF LAW FIT FOR REFERENCE AROSE FROM THE TRIBUNAL ORDER. THE ASSESSEE HAS ALSO REFERRED VARIOUS DECISIONS IN HER WRITTEN SUBM ISSIONS ESTABLISHING THAT WHEN A ASSESSEE WAS AGREEABLE TO SURRENDER AND IF THE SAME SURRENDER WAS SUBJECT TO NO PENALTY FOR CONCEALMENT THEN THE ASSESSING OFFICER SHOULD HAVE EITHER ACCEPTED THE TOTAL OFFER OR HE SHOULD HAVE WRITTEN AND INFORMED THE ASSESSEE THAT HER SURRENDER WAS NOT ACCEPTED AND INVESTIGATE THE MATTER AS WAS CALLED FOR UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE PRESENT CASE ALSO THE ASSESSEE MADE THE SURRENDER SPECIFICALLY ON THE CONDITION THAT NO PENALTY WILL BE LEVIED WITH A VIEW TO BUY PEACE OR AVOID HARASSMENT OF LITIGATION. 8. KEEPING IN VIEW OF THE LETTER DATED 05.10.2006 A ND 10.11.2006 ADDRESSED TO THE ASSESSING OFFICER REFERRED BY THE LEARNED FIRS T APPELLATE AUTHORITY IN PARA 3 PAGE 3 OF THE IMPUGNED ORDER WE FIND THAT THE ASSE SSEE REQUESTED FOR SUPPLY OF CERTIFIED COPY OF INCOME-TAX RETURN AND VARIOUS ANN EXURES FILED FOR THE ASSESSMENT YEAR IN DISPUTE IN ORDER TO FILE A WRITTEN RESPONSE TO NOTICE U/S. 148 OF THE ACT. LATER ON A LETTER DATED 10.11.2006 WAS ALSO GIVEN STATING THAT THE ASSESSEE HAS BEEN UNABLE TO TRACE OUT HER INCOME TAX RETURN FOR THE A SSESSMENT YEAR 2001-02 WHICH IS IN DISPUTE AND HENCE UNABLE TO FURNISH COMPLETE DE TAILS REGARDING LONG-TERM 14 CAPITAL GAIN ARISING ON THE SALE OF SHARES AND TO A VOID LITIGATION SHE MADE A SURRENDER OF RS.5 64 400/- AND OFFERED FOR TAX AS I NCOME FROM OTHER SOURCES SUBJECT TO THE CONDITION THAT NO PENALTY U/S. 271(1)(C) BE INITIATED AND LEVIED AND THE ASSESSING OFFICER HAS ACCEPTED THE SAME. HE HOWEVE R LATER ON LEVIED THE PENALTY IN DISPUTE. 9. AFTER GOING THROUGH THE VARIOUS DECISIONS CITED BY THE ASSESSEE IN HER WRITTEN SUBMISSIONS MENTIONED ABOVE AND ESPECIALLY THE ORDE R DATED 27.11.2008 PASSED BY THE JURISDICTIONAL BENCH REPRODUCED IN PARA 6 OF TH IS ORDER WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE IN DISPUTE HAS AL READY BEEN ADJUDICATED BY VARIOUS BENCHES INCLUDING THE JURISDICTIONAL BENCH (SUPRA) AND DECIDED THE SAME IN FAVOUR OF THE ASSESSEE BY DELETING THE SIMILAR PENA LTY WHICH IS IN DISPUTE BEFORE US. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE DECISION RENDERED BY THE JURISDICTIONAL BENCH (SUPRA) WE AR E OF THE VIEW THAT UNDER THE SIMILAR FACTS AND CIRCUMSTANCES VARIOUS BENCHES HA VE DELETED THE PENALTY IN DISPUTE. RESPECTFULLY FOLLOWING THE SAME WE DELETE THE PENALTY IN DISPUTE BY UPHOLDING THE IMPUGNED ORDER PASSED BY THE LD. FIRS T APPELLATE AUTHORITY. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSE D. 10. AS REGARDS TO THE CROSS OBJECTION FILED BY THE ASSESSEE KEEPING IN VIEW THE FINDING GIVEN IN THE DEPARTMENTAL APPEAL NO. 155/AG RA/2009 WHICH WE HAVE 15 DISMISSED BY PASSING THE ORDER OF THE EVEN DATE WE FIND THAT THE CROSS OBJECTION FILED BY THE ASSESSEE IS ONLY SUPPORTING IN NATURE AND THE SAME HAS BECOME INFRUCTUOUS. 11. IN THE RESULT THE APPEAL OF THE REVENUE AND TH E CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.01.20 11. SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST JANUARY 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY