The DCITBharuch Circle,, Bharuch v. Dr.I.A. Khan, Bharuch

ITA 1477/AHD/2010 | 2006-2007
Pronouncement Date: 06-08-2010 | Result: Dismissed

Appeal Details

RSA Number 147720514 RSA 2010
Assessee PAN AEEPK3225M
Bench Ahmedabad
Appeal Number ITA 1477/AHD/2010
Duration Of Justice 3 month(s)
Appellant The DCITBharuch Circle,, Bharuch
Respondent Dr.I.A. Khan, Bharuch
Appeal Type Income Tax Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 06-08-2010
Date Of Final Hearing 16-07-2010
Next Hearing Date 16-07-2010
Assessment Year 2006-2007
Appeal Filed On 06-05-2010
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI MUKUL KUMAR SHRAWAT JM AND D.C.AGRAW AL AM DY. CIT BHARUCH CIRCLE ABOVE BANK OF BARODA STATION ROAD BHARUCH. VS. DR.I.A. KHAN PROP. OF ZAIN BURNS CENTRE PANCHBATTI BHARUCH. PAN AEEPK 3225 M (APPELLANT) .. (RESPONDENT) REVENUE BY :- SHRI SHELLEY JINDAL SR.DR ASSESSEE BY:- SHRI M. K. PATEL AR O R D E R PER D. C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 5.1.2010 WHEREIN HE HAS CANCELLED THE PENALTY OF RS.2 45 160/- LEVIED U/S 271(1)(C) OF THE ACT. 2. THE FACTS OF THE CASE ARE THAT A SURVEY UNDER SE CTION 133A WAS CARRIED OUT ON 22.9.2006 AT THE PREMISES OF ASSESSE E WHO IS A PRACTICING MEDICAL DOCTOR. DURING THE COURSE OF SURVEY ASSESSE E DECLARED UNACCOUNTED INCOME OF RS.8 95 000/-. THE ASSESSEE F ILED RETURN OF INCOME DECLARING INCOME OF RS.12 65 822/- WHEREIN APPARENT LY ASSESSEE HAS DISCLOSED THE UNACCOUNTED INCOME OF RS.8 95 000/- A S DECLARED BY HIM DURING THE COURSE OF SURVEY. THE AO ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) IN RESPECT OF SUM OF RS.8 9 5 000/- DECLARED DURING THE COURSE OF SURVEY. IN RESPONSE TO SHOW CA USE NOTICE ISSUED BY ITA NO.1477/AHD/2010 ASST. YEAR :2006-07 ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 2 THE AO BEFORE LEVY OF PENALTY THE ASSESSEE FURNISHE D FOLLOWING EXPLANATIONS:- 1. THE SURVEY WAS CONDUCTED U/S 133A ON 22/09/ 2006 AND DECLARED INCOME FROM UNDISCLOSED SOURCES AMOUNTING TO RS.8 95 000/- AND THE SAME AMOUNT IS SHOWN AS INCOME IN RETURN OF INCOME. 2. DURING SURVEY THE ASSESSEE HAS DECLARED AND SHOWN INCOME IN RETURN AND PAID TAX ACCORDINGLY. HENCE THERE IS ALSO NO CONCE ALMENT OF INCOME OR FURNISHING INACCURATE INFORMATION. 3. THE ABOVE VIEW IS TAKEN IN FOLLOWING CASES: A) CIT VS. KIRAN & CO. (1996) 217 ITR 326 (BOM) B) AMIR CHAND VS. ITO (1994) 48 TTJ (DEL) 308 C) CIT VS. M. PANCHAMUTHU & ANOTHER (2007) 295 ITR 502 (MAD) THE AO WAS HOWEVER NOT SATISFIED. HE WAS OF THE VI EW THAT DEPARTMENT HAS DISCOVERED CONCEALMENT BY CARRYING OUT SURVEY A ND THEREFORE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME AND FUR NISHING OF INACCURATE PARTICULARS. HE ACCORDINGLY PROCEEDED TO LEVY PENAL TY OF RS.2 45 160/-. 3. THE LD. CIT(A) CANCELLED THE PENALTY ON ACCOUNT THAT - (1) NO MATERIAL IS BROUGHT ON RECORD TO PROVE FRAUD ON THE PART OF THE ASSESSEE. (2) DISCLOSURE OF INCOME WAS NOT CO-RELATED TO ANY INCR IMINATING DOCUMENT OR MATERIAL GATHERED DURING THE COURSE OF SURVEY OR TH EREAFTER. (3) THERE IS NO SPECIFIC FINDING AS TO WHETHER THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. 4. WE HAVE HEARD THE LD. DR AND THE LD. AR. THE LD. DR BASICALLY RELIED ON THE ORDER OF AO AND SUBMITTED THAT IN THE STATEMENT RECORDED ON OATH ASSESSEE HAS ADMITTED THAT RECEIPTS ARE NOT PR EPARED AND ISSUED TO ALL THE PATIENTS. THUS ASSESSEE HAS ADMITTED CONCEALMEN T OF INCOME. MERELY BECAUSE ASSESSEE HAS DISCLOSED DECLARED INCOME IN T HE RETURN OF INCOME WILL NOT BE SUFFICIENT TO PROVE THAT CASE OF THE AS SESSEE DOES NOT FALL UNDER THE PROVISIONS OF SECTION 271(1)(C). ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 3 5. ON THE OTHER HAND LD. AR HAD SUBMITTED THAT PEN ALTY CANNOT BE LEVIED IF IMPUGNED AMOUNT HAS BEEN DECLARED IN THE RETURN OF INCOME. THE PENALTY HAS TO BE CONSIDERED ON THE BASIS OF RETURN FILED BY THE ASSESSEE AND IF NO ADDITION IS MADE OF THE IMPUGNED AMOUNT T HEN THERE IS NO CASE FOR LEVY OF PENALTY. HE REFERRED TO THE MACHINERY S ECTION OF 271(1)(C) WHICH REFERS TO CALCULATION OF PENALTY ACCORDING TO WHICH PENALTY IS LEVIABLE EQUIVALENT 100% TO 300% OF TAX SOUGHT TO B E EVADED AND TAX SOUGHT TO BE EVADED IS A DIFFERENCE BETWEEN TAX LEV IED ON RETURNED INCOME AND TAX LEVIED ON ASSESSED INCOME. SINCE IN THE PRE SENT CASE TAX LEVIED ON RETURNED INCOME AND ON THE ASSESSED INCOME IS THE S AME BARRING FEW MINOR ADDITIONS PENALTY COULD NOT BE LEVIED IN RES PECT OF AMOUNT DECLARED BY THE ASSESSEE IN SURVEY. THE LD. AR THEN REFERRED TO THE FOLLOWING DECISIONS :- - CIT VS. M. PACHAMUTHU & ANOTHER (2007) 295 ITR 50 2 (MAD) - AMIR CHAND VS. ITO (1994) 49 ITD 606 (DEL) - ACIT VS. GANDEVIKAR JEWELLERS P. LTD. - SANTRAM PARMANAND VS. ACIT (2004) 1 SOT 312 (DEL) - BHAGAT & CO. VS. ACIT (2006) 101 TTJ (MUM) 553 - ORIENT PRESS LTD. VS. JCIT (2006) 99 TTJ 1091 (MU MBAI) 6. FOR THE SAKE OF CONVENIENCE WE REPRODUCE SECTION 271(1)(C) AS UNDER :- SEC. 271(1) IF THE ASSESSING OFFICER OR THE COMMISSIONER (APP EALS) [OR THE COMMISSIONER] IN THE COURSE OF ANY PROCEEDINGS UNDE R THIS ACT IS SATISFIED THAT ANY PERSON (A). (B). (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME OR (D) HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY EXPLANATION -1 WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COM PUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT - ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 4 (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER(APPEAL S) OR THE COMMISSIONER TO BE FALSE OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND [FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT A LL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAV E BEEN DISCLOSED BY HIM] THEN THE AMOUNT ADDED OR DISALLOWED IN COMPUTING TH E TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED. FROM THE LAST PORTION OF THE SECTION I.E. THE AMOU NT ADDED OR DISALLOWED IN COMPUTING TOTAL INCOME.. BE DEEMED TO REPRESEN T THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED W OULD INDICATE THAT IT IS ONLY THE ADDITION OR DISALLOWANCE TO THE TOTAL I NCOME THAT WOULD REPRESENT THE INCOME FOR THE PURPOSES OF LEVY OF PE NALTY WITHIN THE MEANING OF EXPLANATION-1 TO SECTION 271(1)(C). IN O THER WORDS IF NO ADDITION OR DISALLOWANCE IS MADE IN COMPUTING TOTAL INCOME THEN THERE WILL NOT BE ANY INCOME WHICH CAN BE DEEMED AS INCOM E IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. CLAUSE (C) T O EXPLANATION-4 TO SECTION 271(1)(C) EXPLAINS THE AMOUNT OF TAX SOUGHT TO EVADE. IT MEANS THE DIFFERENCE BETWEEN TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE AT SUCH TOTAL INCOME IS REDUCED BY THE AMOUNT ADDED. SINCE IN THE PRESENT CASE THE AO HAS NOT MADE ANY ADDITION IN THE RETURNED INCOME QUESTION OF WORKIN G OUT ANY TAX SOUGHT TO BE EVADED WOULD NOT ARISE. FOR THE SAKE OF CONVE NIENCE WE REPRODUCE EXPLANATION-4 TO SECTION 271(1)(C) AS UNDER :- EXPLANATION-4 FOR THE PURPOSES OF CLAUSE (III) OF THIS SUB-SECTION THE EXPRESSION THE AMOUNT OF TAX SOUGHT TO BE EVADED- [(A) IN ANY CASE WHERE THE AMOUNT OF INCOME IN RESP ECT OF WHICH PARTICULARS HAVE BEEN CONCEALED OR INACCURATE PARTICULARS HAVE BEEN FURNISHED HAS THE EFFECT OF REDUCING THE LOSS DECLARED IN THE RETURN OR CONVERT ING THAT LOSS INTO INCOME MEANS THE TAX THAT WOULD HAVE BEEN CHARGEABLE ON THE INCOME I N RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED OR INACCURATE PARTICULARS HAVE BEEN FURNISHED HAD SUCH INCOME BEEN THE TOTAL INCOME;] ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 5 (B) IN ANY CASE TO WHICH EXPLANATION 3 APPLIES ME ANS THE TAX ON THE TOTAL INCOME ASSESSED [AS REDUCED BY THE AMOUNT OF ADVANCE TAX TAX DEDUCTED AT SOURCE TAX COLLECTED AT SOURCE AND SELF-ASSESSMENT TAX PAID BE FORE THE ISSUE OF NOTICE UNDER SECTION 148]; (C) IN ANY OTHER CASE MEANS THE DIFFERENCE BETWEE N THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABL E HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED OR INACCURATE PARTICULARS HAVE BEEN FURNISHED.] THUS IN GENERAL WHERE A CASE DOES NOT FALL WITHIN CLAUSE (A) OR CLAUSE (B) THERE CANNOT BE ANY TAX SOUGHT TO BE EVADED IF TH ERE IS NO ADDITION TO THE RETURNED INCOME. 7. THUS THE BASIS FOR LEVY OF PENALTY IS RETURN OF INCOME. IF ANY AMOUNT HAS BEEN SHOWN IN THE RETURN OF INCOME THEN IT CANNOT BE SAID THAT ASSESSEE HAS CONCEALED ANY PARTICULAR ABOUT THAT IN COME OR FURNISHED INACCURATE PARTICULARS IN RELATION THERETO. THERE C ANNOT BE ANY CONCEALMENT PRIOR TO FILING OF RETURN. QUESTION OF CONSIDERING WHETHER ASSESSEE IS LIABLE FOR ACTION UNDER SECTION 271(1)( C) WOULD ARISE ONLY WHEN RETURN OF INCOME IS SCRUTINIZED BY THE AO AND HE FINDS SOME MORE ITEMS OF INCOME OR ADDITIONAL INCOME OVER AND ABOVE WHAT IS DECLARED IN THE RETURN. IF IT IS SO THE ASSESSEE WOULD BE LIAB LE FOR ACTION UNDER SECTION 271(1)(C) IN RESPECT OF SUCH ITEMS ONLY WHICH ARE D ISCOVERED BY THE AO ON THE SCRUTINY OF RETURN OF INCOME OR AFTER CARRYI NG OUT INVESTIGATION AND DISCOVERING SOME MORE ITEMS OF INCOME NOT FOUND DEC LARED OR MENTIONED IN THE RETURN OF INCOME. PRIOR TO FILING OF RETURN OF INCOME THERE IS NO CONCEPT OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS. 8. THE INITIAL PHRASE USED IN SECTION 271(1)(C) SUG GESTS THAT AO HAS TO FIND IN THE COURSE OF ANY PROCEEDINGS UNDER THIS AC T.THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 6 OF SUCH INCOME. IN FACT THE PROCEEDINGS AGAINST THE ASSESSEE WOULD START ONLY AFTER RETURN OF INCOME IS FILED BY THE ASSESSE E OR AFTER ISSUANCE OF STATUTORY NOTICE AGAINST HIM SUCH AS UNDER SECTION 142(1) OR U/S 143(2). CARRYING OUT SURVEY UNDER SECTION 133A IS NOT AT AL L ANY PROCEEDINGS. PROCEEDINGS AS USED IN SECTION 271(1)(C) ARE STATUT ORY PROCEEDINGS INITIATED AGAINST THE ASSESSEE EITHER BY ISSUANCE O F STATUTORY NOTICE OR AFTER FILING OF RETURN OF INCOME. SURVEY U/S 133A OR SEAR CH UNDER SECTION 132 OR ISSUANCE OF NOTICE U/S 133(6) FOR EXAMPLE ARE O NLY MEANS OF COLLECTING EVIDENCE AGAINST THE ASSESSEE AND ARE NOT EQUIVALEN T TO STATUTORY PROCEEDINGS. ANOTHER CRITERIA OF FINDING OUT AS TO WHETHER PARTICULAR ACTION IS A STATUTORY PROCEEDINGS OR NOT IT IS TO B E SEEN WHETHER IT CAN BE BROUGHT TO A LEGAL CONCLUSION AGAINST THE ASSESSEE BY DETERMINING HIS RIGHT OR LIABILITY. MERELY CARRYING OUT SURVEY UNDER SECT ION 133A DOES NOT CREATE ANY LIABILITY AGAINST THE ASSESSEE WHICH IS CREATED ONLY THROUGH ASSESSMENT PROCEEDINGS OR PENALTY PROCEEDINGS. THER EFORE THE LD. DR IS INCORRECT IN HIS SUBMISSION THAT SURVEY BEING A PRO CEEDINGS AND AO HAS DISCOVERED CONCEALMENT DURING SURVEY THEREFORE TH E ASSESSEE IS LIABLE FOR PENALTY UNDER SECTION 271(1)(C). IN THIS REGARD WE REFER TO SOME COMMON DEFINITIONS OF WORD PROCEEDINGS. PROCEEDINGS PROCEEDINGS HAVE BEEN DEFINED IN VARIOUS WAYS. IT INCLUDES ANY SUIT APPEAL OR APPLICATION. IT INCLUD ES ANY PROCEDURAL MEANS FOR SEEKING REDRESS FROM THE TRIBUNAL OR COURT; THE BUSINESS CONDUCTED BY A COURT OR OTHER OFFICIAL BODY THE TERM PROCEEDIN GS MAY INCLUDE THE INSTITUTION OF ACTION AGAINST DEFENDANT THE SUBMIS SIONS OF DEFENCE AND TRIAL. IT ALSO MEANS A LEGAL ACTION OR PROCESS AND ACT DONE BY AN AUTHORITY OF A COURT OF LAW; ANY STEP TAKEN BY EITHER PARTY I N A LEGAL PROCEEDING AN ACTION OR COURSE OF ACTION BEFORE A COURT. IT IS AL SO A PRESCRIBED MODE OF ACTION FOR CARRYING INTO EFFECT A LEGAL RIGHT. IN I TS ORDINARY ACCEPTANCE ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 7 PROCEEDINGS MEANS FORM AND MANNER OF CONDUCTING JUD ICIAL BUSINESS BY A QUASI JUDICIAL AUTHORITY THE FORM IN WHICH ACTIONS ARE TO BE BROUGHT AND DEFENDED AND THE MODE OF DECIDING SUITS OR OF OPPOS ING JUDGMENTS OR OF EXECUTING THEM. THE WORD PROCEEDINGS ALSO INCLUDE S WITHIN ITS AMBIT ALL MATTERS COMING UP FOR ADJUDICATION. IT IS ALSO A PR ESCRIBED COURSE OF ACTION FOR THE ENFORCEMENT OF LEGAL RIGHT. IT HAS B EEN HELD IN DBS FINANCE SERVICES (P) LTD. VS. SMT. M. GEORGE ITO (1994) 20 7 ITR 1077 (BOM) BY HON. BOMBAY HIGH COURT IN THE CONTEXT OF ACTION U/S 133(6) THAT A PROCEEDING UNDER THE INCOME-TAX ACT BY ITS VERY NAT URE MUST BE SPECIFIC AND IT MUST RELATE TO SPECIFIC INDIVIDUAL OR ENTITY . THE TERM OF PROCEEDINGS USED IN SECTION 133(6) MEANS A PENDING OR EXISTING PROCEEDINGS. IN OTHER WORDS CALLING FOR INFORMATION IN ITSELF IS NOT A PR OCEEDING. SINCE SECTION 133A IS AN ACTION FOR CALLING OF INFORMATION IN IT SELF IT IS NOT A PROCEEDINGS. 9. FURTHER CLAUSE (C) TO SECTION 271(1) MENTIONS A S CONCEALED..OR FURNISHED. THEY ARE PAST TENSE WORDS INDICATING TH AT ASSESSEE HAS COMMITTED CERTAIN ACT ON WHICH PENALTY IS LEVIABLE. THUS THE ACT OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS SHOULD BE VIEWED BY THE AO AS DONE WITH RESPECT TO RETURN OF INCOME. TH E OMISSION OR COMMISSION OR CONTUMACIOUS CONDUCT HAS TO BE VIEWED FROM THE RETURN OF INCOME AND IF CERTAIN THING IS NOT DISCLOSED OR NOT FURNISHED THEREIN ONLY THEN IT CAN BE SAID THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. PRIO R TO THIS ASSESSEE HAS NOT DONE ANY CONTUMACIOUS CONDUCT ON WHICH PENALTY CAN BE LEVIED. MERELY BECAUSE CERTAIN RECEIPTS ARE NOT RECORDED IN THE BOOKS OF ACCOUNT OR RECEIPTS ARE NOT ISSUED TO THE PATIENTS BUT INC OME THEREFROM WAS FINALLY DECLARED IN THE RETURN OF INCOME THEN THERE IS NO CONTUMACIOUS CONDUCT. FOR NOT MAINTAINING BOOKS OF ACCOUNT OR NOT ISSUING RECEIPTS TO THE ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 8 PATIENTS FOR THE AMOUNT RECEIVED BY THE ASSESSEE T HE BOOKS AT THE BEST CAN BE REJECTED BY INVOKING PROVISIONS OF SECTION 1 45(3) AND INCOME CAN BE ESTIMATED IN ACCORDANCE WITH SECTION 144. BUT WH ERE THE AO ACCEPTS THE INCOME DECLARED IN THE RETURN OF INCOME THEN AS SESSEE CANNOT BE CHARGED FOR ANY CONTUMACIOUS CONDUCT. THERE ARE IN FACT SEVERAL JUDGMENTS ACCORDING TO WHICH PENALTY IS NOT LEVIABL E IF ADDITION IS DELETED. HON. PUNJAB & HARYANA HIGH COURT IN CIT VS . PRAKASH INDUSTRIES LTD. (2010) 322 ITR 622 (P & H) HELD TH AT BASIS FOR LEVY OF PENALTY IS RETURNED INCOME. IF ADDITIONS ARE DELETE D IN QUANTUM PROCEEDINGS PENALTY COULD NOT BE IMPOSED. THE HON. HIGH COURT HAS HELD AS UNDER :- A SEARCH SHOWED THAT THE ASSESSEE HAD RECEIVED AMO UNT OF RS.3.5 CRORES FROM THE BANK ACCOUNT OF S. FARIDABAD. IT WAS OBSERVED THAT THE FIRM WAS A BOGUS FIRM AND THE CLAIM OF THE ASSESSEE THAT THE AMOUNT WAS RECEIVED TOWARDS CONSIDERATION FOR SALE OF MATERIAL WAS NOT ACCEPTED. HENCE ADDITION WAS MAD E TO THE DECLARED INCOME. FURTHER ADDITIONS WERE MADE BY HOLDING THAT LEASE R ENT SHOWN TO HAVE BEEN PAID BY THE ASSESSEE HAD NOT BEEN IN FACT BEEN PAID AND THE CLAIM FOR DEPRECIATION COULD NOT BE ALLOWED AS THE MACHINERY WAS NOT IN THE POSSESSI ON OF THE ASSESSEE DURING PHYSICAL VERIFICATION. THE COMMISSIONER (APPEALS) UPHELD THE ADDITION IN RESPECT OF RECEIPTS SHOWN TO HAVE BEEN MADE FROM S BUT DELETED THE ADDI TION TOWARDS LEASE RENT AND DEPRECIATION ALLOWANCE TAKING INTO ACCOUNT ADDITIO NAL EVIDENCE LED BY THE ASSESSEE. ON FURTHER APPEAL THE TRIBUNAL UPHELD THE PLEA OF THE ASSESSEE IN RESPECT OF AMOUNT RECEIVED FROM S BUT DISMISSED THE APPEAL OF THE REV ENUE IN RESPECT OF DELETIONS IN RESPECT OF LEASE RENT AND DEPRECIATION ALLOWANCE. T HE TRIBUNAL CANCELLED THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME-TAX AC T 1961. ON APPEAL TO THE HIGH COURT: HELD DISMISSING THE APPEAL THAT AS REGARDS THE DE LETION BY THE COMMISSIONER (APPEALS) AFTER REFERRING TO THE ADDITIONAL EVIDENC E LED BEFORE HIM THE TRIBUNAL HAD EXAMINED THE MATTER AND RECORDED THAT A REMAND REPO RT WAS DULY SOUGHT AND THUS NO PREJUDICE WAS CAUSED BY CONSIDERING THE ADDITIONAL EVIDENCE. WITH REGARD TO THE AMOUNT RECEIVED FROM S THE MATTER WAS IN THE REALM OF APPRECIATION OF EVIDENCE. EVEN IF IT IS HELD THAT TWO VIEWS ARE POSSIBLE THE INFE RENCE DRAWN BY THE TRIBUNAL BEING THE FINAL FACT FINDING AUTHORITY COULD NOT BE HELD TO BE PERVERSE. THE CANCELLATION OF PENALTY WAS VALID. SIMILAR VIEW HAS BEEN TAKEN IN THE FOLLOWING JUDGME NTS ALSO: ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 9 CIT VS. RELIANCE PETRO PRODUCTS 322 ITR 158 (SC) ADDL. CIT V. BADRI KASHI PRASAD (1993] 200 ITR 0206 (ALL) PRABHAT OIL TRADERS V. ITO(NO. 3) (1996) 218 ITR (A .T.) 0039 ITAT AHD. CITY DRY FISH COMPANY V. CIT (1999) 238 ITR 0063 (A .P.) CIT VS. MOHD. BUX SOKAT ALI (2004) 265 ITR 326 (RAJ ) ACIT VS. VIP INDUSTRIES (2009) 122 TTJ 289 (MUM) 10. OUR VIEW THAT NO PENALTY IS LEVIABLE IF IMPUGNE D AMOUNT IS DISCLOSED IN THE RETURN OF INCOME IS SUPPORTED BY T HE DECISION OF HON. ALLAHABAD HIGH COURT IN THE CASE OF SMT. GOVINDA DE VI VS. CIT (2008) 304 ITR 0340 (ALL). IN THAT CASE ASSESSEE RECEIVED LOTTERY PRIZE MONEY IN JANUARY 1992 AND DISCLOSED THE SAME IN THE RETURN FILED FOR ASST. YEAR 1992-93 AND PAID THE TAXES. THE ASSESSING AUTHORITY PASSED AN EX PARTE ASSESSMENT ORDER AND EX PARTE PENALTY ORDER IN ASST . YEAR 1991-92. IT WAS HELD BY THE HON. COURT THAT ONCE PRIZE MONEY HAS BE EN DISCLOSED IN THE RETURN OF INCOME FOR ASST. YEAR 1992-93 AND ALSO TA XES WERE PAID THEN ASSESSING AUTHORITY HAD APPARENTLY COMMITTED AN ERR OR IN LEVYING THE PENALTY. IN K.C. BUILDERS VS. ACIT (2004) 265 ITR 5 62 (SC) IT WAS HELD BY THE HON. APEX COURT THAT WHERE ADDITIONS ARE MAD E IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED ARE DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY F OR CONCEALMENT. NO PENALTY WOULD SURVIVE IF ADDITION DID NOT SURVIVE. IN CIT VS. ARTHANARISWAMY CHETTIAR (S.S.K.G.) (1982) 136 ITR 1 45 (MAD) HON. MADRAS HIGH COURT HELD THAT PENALTY CAN BE IMPOSED WITH REFERENCE TO THE CONCEALMENT DONE IN THE ORIGINAL RETURN FILED UNDER SECTION 139. IN THE CASE OF SULEMANJI GANIBHAI VS. CIT (1980) 121 ITR 0 373 (M.P.) IT WAS HELD THAT AN ASSESSEE INCURS PENALTY UNDER SECTION 271(1)(C) IF HE FILES INACCURATE PARTICULARS OF HIS INCOME IN THE RETURN OR CONCEALS THE PARTICULARS OF INCOME THEREIN. THERE CAN BE NO CONC EALMENT UNTIL THERE IS A DUTY TO DISCLOSE. THE DUTY TO DISCLOSE PARTICULA RS OF INCOME ARISES AT THE ITA NO.1482/AHD/2010 ASST. YEAR 2006-07 10 TIME WHEN ASSESSEE FURNISHES RETURN OF INCOME UNDER SECTION 139 AND IF IN FILING HIS RETURN HE CONCEALS THE PARTICULARS OF IN COME OR FURNISHES INACCURATE PARTICULARS HE INCURS PENALTY UNDER SECT ION 271(1)(C). IN THE CASE OF PATNA GUINEA HOUSE VS. CIT (2000) 243 ITR 0 274 (PAT) IT IS HELD THAT THERE IS NO CASE FOR LEVY OF PENALTY IF INCOME IS DISCLOSED IN THE RETURN OF INCOME BUT ASSESSEE HAS REFUSED TO DISCLOSE SOUR CE OF INCOME. 11. THUS WHERE RETURNED INCOME IS ACCEPTED THERE I S NO CASE FOR LEVY OF PENALTY. 12. ACCORDINGLY WE UPHOLD THE ORDER OF LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. 13. IN THE RESULT APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 6/8/2010 SD/- SD/- (MUMUL KR. SHRAWAT) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD DATED : 6/8/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD