Smt. Alka Khurana,, Amritsar. v. The Dy. Commissioner of Income-tax, Amritsar.

ITA 364/ASR/2012 | 1999-2000
Pronouncement Date: 10-10-2013 | Result: Allowed

Appeal Details

RSA Number 36420914 RSA 2012
Assessee PAN ABSPK4311K
Bench Amritsar
Appeal Number ITA 364/ASR/2012
Duration Of Justice 1 year(s) 1 month(s) 5 day(s)
Appellant Smt. Alka Khurana,, Amritsar.
Respondent The Dy. Commissioner of Income-tax, Amritsar.
Appeal Type Income Tax Appeal
Pronouncement Date 10-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 10-10-2013
Date Of Final Hearing 09-10-2013
Next Hearing Date 09-10-2013
Assessment Year 1999-2000
Appeal Filed On 05-09-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P.JAIN ACCOUNTANT MEMBER I.T.A. NOS.359 & 360(ASR)/2012 ASSESSMENT YEARS: 1998-99 & 1999-2000 PAN :ABSPK4311K SH. VINOD KHURANA VS. DY.COMMR. OF INCOME TAX AMRITSAR. CIRCLE IV AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NOS.361 & 362(ASR)/2012 ASSESSMENT YEARS: 1998-99 & 1999-2000 PAN :ABDPK6675R SH. ZUBIN KHURANA VS. DY.COMMR. OF INCOME TAX AMRITSAR. CIRCLE IV AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NOS.363 & 364(ASR)/2012 ASSESSMENT YEARS: 1998-99 & 1999-2000 PAN :ACHPK5165D SMT. ALKA KHURANA VS. DY.COMMR. OF INCOME TAX AMRITSAR. CIRCLE IV AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.PADAM BAHL CA RESPONDENT BY:SH.TARSEM LAL DR ITA NO.S. 359 TO 364(ASR)/2012 2 DATE OF HEARING:09/10/2013 DATE OF PRONOUNCEMENT:10/10/2013 ORDER PER BENCH ; THESE SIX APPEALS OF THREE DIFFERENT ASSESSEES ARI SE FROM THREE CONSOLIDATED ORDERS OF CIT(A) AMRITSAR EACH DATED 10.07.2012 FOR THE ASSESSMENT YEARS 1998-99 & 1999-2000. 2. THE FACTS IN ALL THE SIX APPEALS OF THREE DIFFER ENT ASSESSEES AS MENTIONED HEREINABOVE ARE IDENTICAL AND THE ASSESSE ES HAVE RAISED THE IDENTICAL GROUNDS IN ALL THE SIX APPEALS AS MENTION ED HEREINABOVE. ACCORDINGLY WE TAKE UP THE APPEALS IN THE CASE OF SH. VINOD KHURANA FOR THE ASSESSMENT YEARS 1998-99 & 1999-2000 AND OUR DE CISION HEREIN BELOW SHALL BE APPLICABLE IDENTICALLY IN ALL THE REST OF THE APPEALS MENTIONED HEREINABOVE. 3. THE GROUNDS IN ITA NOS.359(ASR)/2012 & 360(ASR)/ 2012 IN THE CASE OF SH. VINOD KHURANA FOR THE ASSESSMENT YEARS 1998- 99 & 1999-2000 ARE REPRODUCED HEREIN BELOW: 1. THAT LD. CIT(A) IN VIEW OF FACTS AND CIRCUMSTA NCES OF THE CASE GROSSLY ERRED IN LAW AND ON FACTS IN CONFIRMING L EVYING OF ITA NO.S. 359 TO 364(ASR)/2012 3 PENALTY OF RS.3 04 500/- U/S 271(1)(C) OF INCOME TAX ACT 1961 BY LD. DCIT AMRITSAR. 2. THAT LD. CIT(A) AMRITSAR HAS FAILED TO APPRECIATE THAT PENALTY WAS WRONGLY INITIATED AND WRONGLY LEVIED FOR CONCEA LMENT OF PARTICULARS OF INCOME AS INCOME WAS DULY DECLARED I N THE ORIGINAL RETURN FILED BY THE APPELLANT. 3. THAT LD. CIT(A) AMRITSAR HAS FAILED TO APPRECIATE THAT REVISED/SECOND RETURN WAS FILED BY APPELLANT VOLUNT ARILY AND IN GOOD FAITH AND AMOUNT IN QUESTION WAS OFFERED AS IN COME WITHOUT ANY NOTICE HAVING BEEN RECEIVED FROM THE DE PARTMENT AND WITHOUT ANY KNOWLEDGE OF DETECTION BY THE DEPAR TMENT. 4. THAT BOTH LD. CIT(A) AND DCIT OF HAVE NOT PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE EVIDENCE PLACED O N RECORD AND IMPOSITION OF PENALTY IS NOT JUSTIFIED BY ANY M ATERIAL ON RECORD. 5. THAT THE MATERIAL AND EVIDENCE RELIED UPON BY ASSES SING OFFICER WAS NO ADMISSIBLE EVIDENCE FOR IMPOSITION O F PENALTY AND THE SAME WAS WRONGLY REFERRED TO AND WRONGLY RE LIED UPON. 6. THAT LD. CIT(A) AMRITSAR HAS GROSSLY ERRED IN CONF IRMING THE ORDER OF PENALTY PASSED BY THE A.O. IN WHICH SHE AG AIN RELIED UPON THE STATEMENTS OF SH. VIVEK KAPOOR IN CLEAR VI OLATION OF THE DIRECTIONS OF THE HONBLE ITAT GIVEN IN THE SET ASIDE ORDER. 7. THAT LD. CIT(A) AMRITSAR HAS GROSSLY ERRED IN CONC LUDING THAT RELIANCE BY A.O. ON STATEMENTS OF SH.VIVEK KAPOOR W ERE IN THE SHAPE OF PASSING REMARKS AND THAT HER DECISION WAS NOT INFLUENCED BY THESE STATEMENTS. 8. THAT LD. CIT(A) AMRITSAR HAS GROSSLY ERRED IN SIDE STEPPING THE SUBMISSION REGARDING GROSS JUDICIAL INDISCIPLIN E OF THE LD. A.O. TO SPECIFIC DIRECTIONS OF THE HONBLE ITAT AM RITSAR BENCH. ITA NO.S. 359 TO 364(ASR)/2012 4 9. THAT LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE PENALTY ON THE ADDITION ON ACCOUNT OF COMMISSION. 4. THE BRIEF FACTS ARE THAT THE ASSESSEE WAS FOUND INVOLVED IN BOGUS EXPORT ENTRY SCAM WHEREIN THE ASSESSEE HAD TAKEN CE RTAIN ACCOMMODATING ENTRIES TO BRING HIS UNACCOUNTED MONEY IN HIS REGUL AR BOOKS OF ACCOUNT DURING THE ACCOUNTING PERIOD RELEVANT TO A.Y.1998-9 9 &1999-2000. THE ORIGINAL RETURN FOR A.Y.1998-99 FILED ON 29.10.98 D ECLARING INCOME OF RS.5 76 000/- WAS PROCESSED U/S 143(1) ON 31.3.99. SIMILARLY FOR THE ASSTT YEAR 1999-2000 THE ORIGINAL RETURN FILED ON 31.12.1 999 DECLARING INCOME OF RS.6 23 707/- WAS PROCESSED ON 25.2.2000 U/S 143(1) . THE ASSESSEE IS AN INDIVIDUAL WHO DERIVES INCOME FROM SALARY BUSINESS HOUSE PROPERTY AND INTEREST INCOME. THE ASSESSEE IS A DIRECTOR IN M/S. KHURANA OLEO CHEMICALS (P) LTD. AND HAS DECLARED INCOME FROM THE FIRMS NA MELY KHURANA SYNDETS & CHEMICALS MRZ EXPORTS AVR & CO. AND A.G. EXPORTS . LATER ON INFORMATION WAS RECEIVED FROM INVESTIGATION WING OF IT DEPTT. THAT HE IS IN FACT NOT A PARTNER IN M/S. A.G. EXPORTS AND HE HAS SIMPLY ARRANGED ACCOMMODATION ENTRY FROM SH. VIVEK KAPOOR CA A MAS TERMIND BEHIND THE ENTIRE EPISODE. IN RESPONSE TO NOTICE U/S 148 DATED 28.03.2002 THE ASSESSEE FILED A REPLY DATED 22.4.2002 STATING THEREIN THAT HE HAD ALREADY FILED A REVISED RETURN ON 27.12.2001 DECLARING ADDITIONAL I NCOME OF RS. 10 LACS FOR ITA NO.S. 359 TO 364(ASR)/2012 5 AY 1998-99 AND RS.18 LACS FOR AY 1999-2000 BUT THE SAME WAS NOT ACCEPTED BEING INVALID AND NON-EST. THE ADDITIONAL INCOME WAS FOUND CREDITED BY WAY OF CERTAIN CHEQUES IN ASSESSEES SB A/C NO.01150083076 IN STATE BANK OF INDIA MAIN BRANCH TOWN HALL AMRITS AR. THE AO HAS INCORPORATED DETAILS OF BACKGROUND FACTS POST SEAR CH INVESTIGATION MODUS OPERANDI OF THE EXPORT SCAM VARIOUS STATEMENTS OF THE ASSESSEE DATED 20.12.2002 19.02.2003 & 03.03.2003 AND THAT OF S.A VTAR SINGH SH. VIVEK KAPOORT DATED 15 TH 18 TH 19 TH JANUARY 2002 AND THAT OF SH. ASHWANI MITTAL DATED 14.2.2002. IN THE SECOND INNING OF INITIATION OF REASSESSMENT PROCEEDINGS ON THE BASIS OF ADMITTED STATEMENT FURN ISHED BY SH.VIVEK KAPOOR CA BEFORE THE SETTLEMENT COMMISSION NEW DE LHI THAT HE GAVE CERTAIN ACCOMMODATING ENTRIES TO CERTAIN AMRITSAR P ARTIES BY CHARGING COMMISSION @ 5% BUT AS PER RE-ASSTT. ORDER FINALIZ ED ON 28.03.2003 COMMISSION @ 1.5% HAS BEEN DETERMINED. IN RESPONSE TO SECOND NOTICE U/S 148 HE FILED RETURN DECLARING ADDITIONAL INCOME OF RS. 1O LAKHS AND RS.18 LAKHS FOR AYS 1998-99 & 1999-2000 RESPECTIVELY ON 2 7.12.2001 WHICH WAS TREATED AS NON-EXISTENT IN THE EYE OF LAW BEING NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 139(4) OR 139(5) OF I.T.ACT 1961. THE PENALTY ORDERS IN QUESTION WERE PASSED AFRESH IN COMPLIANCE WITH T HE DIRECTIONS CONTAINED IN THEIR ORDER DATED 31.10.2008 OF THE ITAT AMRITS AR WHEREIN THE BENCH ITA NO.S. 359 TO 364(ASR)/2012 6 HAD SET ASIDE THE FORMER PENALTY ORDER TO BE PASSED AFRESH WITHOUT TAKING INTO CONSIDERATION THE STATEMENT OF SH.VIVEK KAPOOR. IN THE CONCLUDING PART OF HER PENALTY ORDER THE A.O. HAS ELABORATELY DISCUSS ED THE SEQUENCE OF EVENTS/FACTS ON THREADBARE BASIS AND ALSO DEALT WI TH THE CASE LAWS CITED BY THE ASSESSEE IN HIS FAVOUR AND FINALLY LEVIED THE M INIMUM LEVIABLE PENALTY OF RS.3 04 500/- FOR AY 1998-99 AND RS.5 59 291/- FOR AY 1999-2000. 5. THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. FOR BOTH THE ASSESSMENT YEARS FOR MINIMUM CONCEALMENT OF PENALTY U/S 271(1)(C) OF THE ACT AT RS.3 04 500/- AND RS.5 59 291/- FOR THE ASSE SSMENT YEARS 1998-99 & 1999-2000. 6. THE LD. COUNSEL FOR THE ASSESSEE MR. PADAM BAHL CA RELIED UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) WHICH AR E DATED 4.6.2012 AND ARE ON RECORD AND ARGUED THAT THE ASSESSEE ATTACHED A DETAILED NOTE THAT THE REVISED RETURN FILED ON 27.12.2001 GIVING CIRCUMSTA NCES UNDER WHICH ADDITIONAL INCOME WAS DECLARED WHICH IS AVAILABLE A T PB 1-2. THE ASSESSEE IN THE NOTE ATTACHED TO THE REVISED RETURN HAS MENTION ED THAT ALL THE TAXES AS PER REVISED RETURN HAS BEEN PAID AND THE RETURNS FOR TH ESE YEARS ARE BEING FILED VOLUNTARILY AND TO BUY PEACE OF MIND FOR THE REASON S THE AMOUNT OF EXPORT PROFIT WAS NOT SHOWN AS TAXABLE INCOME IN THE ORIGI NAL RETURN WHICH WAS RECEIVED FROM M/S. A.G.EXPORTS. THE REASON FOR NOT DISCLOSING WAS THAT THE ITA NO.S. 359 TO 364(ASR)/2012 7 CHARTERED ACCOUNTANT WHO HAS BEEN AUDITING THE ACC OUNTS HAD PROMOTED THE ASSESSEE TO BECOME PARTNER IN THE FIRM NAMED M /S. A.G.EXPORTS WHICH WAS HAVING FIVE ERSTWHILE PARTNERS AND WAS MADE TO MAKE AN INVESTMENT IN THE SAID EXPORT BUSINESS. INSPITE OF BEST EFFORTS OF THE ASSESSEE SH. VIVEK KAPOOR CA HAS NOT SUPPLIED THE AUTHENTICATED BALANC E SHEETS AND PROOF OF FILING OF THE INCOME TAX RETURNS OF M/S. A.G. EXP ORTS AND ASSESSMENT ORDERS OF THE SAID FIRM CONSISTING OF 11 PARTNERS AS MENTIONED IN THE PARTNERSHIP DEED DATED 01.04.1996 FOR THE SAID ASSE SSMENT YEARS. BECAUSE OF RECENT CHANGE IN BEHAVIOUR AND NON-COOPERATIVE ATT ITUDE HAS GIVEN RISE TO DOUBTS IN MY MIND ABOUT THE GENUINENESS OF THE COPI ES OF ACCOUNT SUPPLIED BY HIM. ACCORDINGLY THE ASSESSEE REVISED THE RETUR NS FOR ALL THE YEARS I.E. A.YS 1997-98 1998-99 AND 1999-2000 VOLUNTARILY AND IN GOOD FAITH. IT WAS ALSO MENTIONED THAT PROPER ENQUIRY MAY BE GOT MADE BY THE INCOME TAX DEPARTMENT TO VERIFY THE FACTUAL POSITION AND IN C ASE ANY INGENUINITY IS FOUND THEN THE AMOUNTS RECEIVED BY THE ASSESSEE MA Y BE ASSESSED AS HIS INCOME FOR THE RELEVANT YEARS WITHOUT ANY PENAL CO NSEQUENCES AND RETURNS FOR THOSE YEARS MAY BE DEEMED TO HAVE BEEN REVISED VOLUNTARILY TO THAT EXTENT. THE ASSESSEE UNDERTOOK TO CO-OPERATE THE IN COME TAX DEPARTMENT FOR ANY INQUIRY OR INVESTIGATION IN THIS REGARD. ITA NO.S. 359 TO 364(ASR)/2012 8 7. LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUED THAT THE RETURNS WERE REVISED ON 27.12.2001 MUCH BEFORE DETECTION OF ANY CONCEALMENT BY THE A.O. EVEN THE STATEMENT OF SH. VIVEK KAPOOR CA AL LEGED TO HAVE BEEN RECORDED ON 15.01.2002 MUCH AFTER THE NOTICES UNDER SECTION 148 WERE ISSUED AFTER FILING OF THE REVISED RETURN. THE STAT EMENT OF SH. VIVEK KAPOOR IS UNAUTHENTICATED THE SIGNATURES DO NOT TALLY WIT H HIS SIGNATURES ATTESTED BY THE BANK THE NAME OF THE PERSON WHO RECORDED THE STATEMENT IS NOT THERE. THE ASSESSEE WAS NOT CROSS EXAMINED . THE APPEAL OF THE ASSESSEE HAS BEEN DISPOSED OFF BY THE ITAT AGAINST LEVY OF PENALTY UN DER SECTION 271(1)(C) VIDE ORDER DATED 31.10.2008 IN WHICH THE ITAT HAS H ELD THAT THE STATEMENT OF SH. VIVEK KAPOOR SHOULD NOT HAVE BEEN MADE THE B ASIS FOR LEVY OF PENALTY. THE AVERMENTS OF THE ASSESSEE ARE FOUND TO CARRY FORCE THAT ONCE SH. VIVEK KAPOOR CA WAS NOT AVAILABLE FOR CROSS-EX AMINATION THE ASSESSEE DID NOT HAVE ANYTHING IN THEIR POWER TO FORCE THE ATTENDANCE FOR THE PURPOSE OF CROSS-EXAMINATION AND THEREFORE THE MATTER NEED S TO BE RESTORED TO THE FILE OF THE A.O. FOR DECISION AFRESH WITHOUT TAKING INTO CONSIDERATION THE STATEMENT OF SH. VIVEK KAPOOR. THOUGH THE RETURN WA S FILED OUT OF TIME U/S 139(5) BUT IT WAS FILED BEFORE THE ISSUE OF NOTICE U/S 148 OF THE ACT. THE LD. COUNSEL ARGUED THAT THE AO AND THE LD. CIT(A) HAVE MADE THE BASIS FOR LEVY OF PENALTY. THE STATEMENT OF SH. VIVEK KAPOOR IS C LEAR VIOLATION OF THE ITA NO.S. 359 TO 364(ASR)/2012 9 DIRECTION OF THE ITAT IN WHICH IT HAS CLEARLY BEEN DIRECTED THAT THE DECISION SHOULD BE MADE BY THE AO WITHOUT TAKING INTO CONSID ERATION THE STATEMENT OF SH. VIVEK KAPOOR. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW WHICH ARE IN SU PPORT OF HIS ARGUMENTS. 8. THE LD. DR SH. TARSEM LAL ON THE OTHER HAND RE LIED UPON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PREMPAL GANDHI VS. COMMISSIONER OF INCOME TAX REPOR TED IN (2011) 335 ITR 23 IN WHICH IT HAS BEEN HELD THAT THE REVISED R ETURN SHOWING HIGHER INCOME PURSUANT TO NOTICE U/S 148 IT COULD NOT BE HELD THAT THE ASSESSEE WANTED TO BUY PEACE OF MIND AND THERE WAS NO EVIDEN CE OF CONCEALMENT WHICH CALLED FOR PENALTY. THIS IS NOT A CASE WHERE PENALTY HAS BEEN IMPOSED ONLY BECAUSE ASSESSEE DISCLOSED HIGHER INCOME VOLUN TARILY BUT A CASE OF CLEAR CONCEALMENT WHERE THE ASSESSEE HAVING FOUND NO OTHE R WAY OUT WAS FORCED TO SURRENDER UNDISCLOSED INCOME. THEREFORE PENALTY WAS RIGHTLY LEVIED FOR CONCEALMENT 8.1. THE LD. DR FURTHER RELIED UPON THE ORDERS OF BOTH THE AUTHORITIES BELOW AND PRAYED TO CONFIRM THE ORDER OF THE LD. CI T(A). 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AT THE OUTSET IT IS A SET-ASIDE MATTER BY THE ITAT AMRITSAR BENCH VIDE ITS ITA NO.S. 359 TO 364(ASR)/2012 10 ORDER DATED 31.10.2008 IN ITA NOS.229 & 222(ASR)/20 09 FOR THE ASSESSMENT YEARS 1998-99 & 1999-2000 WHICH IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: 11. THE NEXT CONTENTION RAISED ON BEHALF OF THE AS SESSEES IS THAT THE ASSESSEE HAD DENIED THE CONTENTS OF THE STATEMENT OF SHRI VIVEK KAPOOR AND ASKED FOR HIS CROSS-EXAMINATION; THAT S HRI VIVEK KAPOOR WAS NOT AVAILABLE HAVING GONE ABROAD; AND THAT TH EREFORE THE STATEMENT OF SHRI VIVEK KAPOOR SHOULD NOT HAVE BE EN MADE THE BASIS OF LEVY OF PENALTY. 12. THIS AVERMENT OF THE ASSESSEE IS FOUND TO CARR Y FORCE. ONCE SHRI VIVEK KAPOOR WAS NOT AVAILABLE FOR CROSS-EXAM INATION THE ASSESSEES DID NOT HAVE ANYTHING IN THEIR POWER TO FORCE HIS ATTENDANCE FOR THE PURPOSE OF CROSS EXAMINATION. THAT BEING SO THE STATEMENT OF SHRI VIVEK KAPOOR OUGHT NOT TO HAVE BEEN MADE THE BASIS FOR LEVY OF THE PENALTY IN QUESTION. EVIDENCE PROPOSED TO BE USED AGAINST AN ASSESSEE WHICH IS BEYOND THE CONTROL OF THE ASSES SEE TO REBUT CANNOT BE USED TO THE ASSESSEES DETRIMENT. FOR THIS SOL E REASON IN THE INTEREST OF JUSTICE THE PENALTY ORDER NEEDS TO BE SET-ASIDE AND THE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE A.O . FOR DECISION AFRESH WITHOUT TAKING INTO CONSIDERATION THE STATEMENT OF SHRI VIVEK KAPOOR. WE ORDER ACCORDINGLY. 13. AS NOTED IN THE FIRST PARA OF THIS ORDER THE ISSUE IN ALL THESE APPEALS BEING THE SAME OUR ABOVE OBSERVATION SHAL L PARI PASSU APPLY MUTATIS MUTANDIS TO THE REST OF THE APPEALS ALSO. 14. IN THE RESULT FOR STATISTICAL PURPOSES ALL T HE APPEALS OF THE ASSESSEES ARE TREATED AS ALLOWED. 10. FROM THE READING OF THE AFORESAID ORDER OF ITAT IN ASSESSEES OWN CASE IT IS EVIDENT THAT THE ITAT HAS SPECIFICALLY MENTIONED THAT STATEMENT OF ITA NO.S. 359 TO 364(ASR)/2012 11 SH. VIVEK KAPOOR SHOULD NOT HAVE BEEN MADE THE BASI S FOR LEVY OF PENALTY AND SINCE SH. VIVEK KAPOOR WAS NOT AVAILABLE FOR CR OSS-EXAMINATION THE ASSESSEE DID NOT HAVE ANYTHING IN ITS POWER TO FORC E HIS ATTENDANCE FOR THE PURPOSE OF CROSS EXAMINATION THEREFORE THE MATTER WAS RESTORED TO THE A.O. FOR DECISION AFRESH WITHOUT TAKING INTO CONSIDERATI ON THE STATEMENT OF SH. VIVEK KAPOOR. FROM THE ORDERS OF THE AUTHORITIES BE LOW WE ARE OF THE VIEW THAT THE AO AS WELL AS THE LD. CIT(A) HAS MADE THE BASIS OF STATEMENT OF SH. VIVEK KAPOOR THE VERY BASIS FOR LEVYING AND CONFIR MING THE PENALTY U/S 271(1)(C) OF THE ACT. ONLY ON THIS ACCOUNT THE ORD ER OF THE A.O. IS LIABLE TO BE QUASHED FOR THE REASONS THE CONDUCT OF THE A.O. IS AGAINST THE DIRECTION OF THE ITAT AMRITSAR BENCH IN ASSESSEES OWN CASE WHO HAS VIOLATED THE DIRECTIONS OF THE ITAT AMRITSAR BENCH ON THE ISSU E. 11. AS REGARDS THE MERIT OF THE CASE THE ASSESSEE REVISED THE RETURN OF INCOME U/S 139(5) OF THE ACT. AS PER SECTION 139(5) OF THE ACT THE RETURN IS REVISED IF ANY PERSON HAVING FURNISHED A RETURN UN DER SUB-SECTION (1) OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN HE MA Y FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FR OM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT WHICHEVER IS ITA NO.S. 359 TO 364(ASR)/2012 12 EARLIER. THOUGH IN THE PRESENT CASE THE ASSESSEE H AS REVISED THE RETURN OUT OF TIME PRESCRIBED U/S 139(5) OF THE ACT BUT THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS FILED THE REVISED RETURN SUO-MOTU AND BEFORE DETECTION BY THE INCOME TAX DEPARTMENT OF ANY INCOME NOT DISCLOS ED BY THE ASSESSEE AND ALSO BEFORE ISSUE OF NOTICE U/S 148 OF THE ACT BY T HE DEPARTMENT AND ALL TAXES HAVE BEEN PAID BEFORE FILING THE REVISED RETURN. IN THIS REGARD WE RELY UPON THE DECISION IN THE CASE OF CIT VS. GURU RAM DASS F RUIT & VEGETABLE AGENCIES REPORTED IN (2002) 254 ITR 361 (P&H) WHERE IT HAS BEEN HELD THAT BY DISTINGUISHING THE DECISION OF HONBLE SUPREME C OURT IN THE CASE OF SURESH CHANDRA MITTAL 251 ITR 9 (SC) AS UNDER: THE MAJORITY OF THE MEMBERS HAVE FOUND AS A FACT THAT THE DRAFTS OF THE TOTAL VALUE OF RS.2 50 000 HAD BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. THE ACCOUNTANT OF THE ASSESSEE WAS AN OLD PERSON AND THE NON-ACCOUNTING OF THE DRAFTS ON THE CORRECT DATES WAS SQUARELY ATTRIBUTABLE TO HIM. THE ASSESSEE HAD FILED THE R EVISED RETURN PRIOR TO THE DATE OF ISSUE OF NOTICE U/S 148. THE REVENUE H AD NOT PRODUCED A COPY OF THE STATEMENT MADE BY THE ASSTT. DIRECTOR OF INVESTIGATION AND EVEN THE REPORT WAS WITHHELD. THE PROCEEDINGS U/S 148 WERE INITIATED LONG AFTER THE ASSESSEE HAD FILED THE REVISED RETU RN. IT IS ON THE CUMULATIVE CONSIDERATION OF THESE FACTS THAT THE T RIBUNAL HAS CONCLUDED THAT THE ASSESSEE HAD NOT CONCEALED THE INCOME. CLEARLY THE FINDING IS BASED ON APPRECIATION OF EVIDENCE AND NOT ON THE INTERPRETATION OF THE STATUTORY PROVISION. IN VIEW OF THE ABOVE NO QUESTION OF LAW ARISES WHICH MAY REQUIRE ANY EXPRE SSION OF OPINION BY THE COURT.- K.P. MADHUSUDHANAN VS. CIT (2001) 1 60 CTR (SC) 489 : (2001) 251 ITR 9 (SC) DISTINGUISHED. ITA NO.S. 359 TO 364(ASR)/2012 13 12. WE ALSO RELY UPON THE DECISION IN THE CASE OF C IT VS. V. NARASHIMA PRASAD REPORTED IN (2001) 250 ITR 852 (KAR) WHERE T HE QUESTION OF LAW BEFORE THE HONBLE HIGH COURT WAS AS UNDER: '(1) WHETHER ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE THE INCOME-TAX APPELLATE TRIBUNAL IS JUSTIF IED IN LAW IN CANCELLING THE PENALTY UNDER SECTION 271(1)(C) LEVIED ? (2) WHETHER THE INCOME-TAX APPELLATE TRIB UNAL IS JUSTIFIED ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN COMING TO THE CONCLUSION THAT THE ASSESSEE HAD NOT CONCEALED THE PARTICULARS OF ITS INCOME ?' 13. THE FACTS AND DECISION OF THE ABOVE SAID CASE B Y THE HONBLE HIGH COURT IS AS UNDER: THE ASSESSEE HAD FILED THE ORIGINAL RETURNS FOR THE RESPECTIVE ASSESSMENT YEARS DISCLOSING AN INCOME OF RS. 34 15 0 RS. 62 190 AND RS. 97 370. AFTER THE FILING OF THE RET URN A SURVEY WAS CONDUCTED. AFTER THE SURVEY THE ASSESSEE FILED REVISED RETURNS FOR THE RESPECTIVE YEARS DISCLOSING INCOME OF RS.17 30 350 RS. 3 28 680 AND RS. 11 26 600 RESP ECTIVELY. THE ASSESSING OFFICER FRAMED THE ASSESSMENT ON THE REVISED RETURNS AND SIMULTANEOUSLY ISSUED NOTICE FOR IMPOS ITION OF PENALTY ON THE GROUND THAT THE ASSESSEE WAS GUILTY OF CONCEALMENT OF INCOME. THE PLEA WAS THAT THE REVIS ED RETURNS WERE FILED AFTER THE SURVEY WAS CONDUCTED AND THE REFORE THERE WAS A CONCEALMENT OF INCOME ON THE PART OF THE ASS ESSEE. IN PURSUANCE OF THE NOTICE ISSUED AND AFTER TAKING IN TO CONSIDERATION THE RETURNS FILED THE ASSESSING AUTH ORITY LEVIED PENALTY OF RS. 8 40 000 RS. 6 29 170 AND RS. 5 41 484 FOR THE RESPECTIVE ASSESSMENT YEARS 1986-87 1987-88 AND 1 988-89. THE ASSESSEE BEING AGGRIEVED FILED AN APPEA L BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) WHICH WAS DIS MISSED. ITA NO.S. 359 TO 364(ASR)/2012 14 THE ORDER OF THE ASSESSING OFFICER LEVYING PENALTY WAS CONFIRMED. THE ASSESSEE BEING AGGRIEVED FILED A FU RTHER APPEAL BEFORE THE TRIBUNAL WHICH WAS ALLOWED. IT WAS HELD THAT THERE WAS NO CONCEALMENT ON THE PART OF THE ASSESSEE. TH E ASSESSMENT HAD BEEN FRAMED AS PER THE REVISED RETU RNS FILED BY THE ASSESSEE. THE ORDER LEVYING PENALTY WAS QUASHE D. THE REVENUE FILED A PETITION UNDER SECTION 256(1) REQUESTING THE TRIBUNAL TO REFER THE TWO QUESTIONS OF LAW SAI D TO BE ARISING FROM THE ORDER OF THE TRIBUNAL WHICH HAS BEEN DISM ISSED HOLDING THAT THE FINDING REGARDING CONCEALMENT OF INCOME WAS A FINDING OF FACT AND NO REFERABLE QUESTION OF LAW A RISES. WE HAVE EXAMINED THE ORDER OF THE TRIBUNAL CAREFULLY AND WE ARE IN AGREEMENT WITH THE SAME. IN OUR OPINION TH E FINDING RECORDED BY THE TRIBUNAL IS A FINDING OF FACT AND NO REFERABLE QUESTION OF LAW ARISES. DISMISSED. 14. WE ALSO RELY UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL REPORTED IN (2001) 251 ITR 9 IN WHICH IT HAS BEEN HELD THAT THE ASSESSEE SURRENDER ED INCOME AFTER PERSISTENT QUERIES BY AO. HOWEVER REVISED RETURNS HAVE BEEN R EGULARIZED BY REVENUE AND THE EXPLANATION OF THE ASSESSEE WAS THAT HE HA S DECLARED ADDITIONAL INCOME TO BUY PEACE AND TO COME OUT OF VEXED LITIGA TION COULD BE TREATED AS BONA FIDE PENALTY WAS RIGHTLY CANCELLED HAS BEEN HELD BY THE HONBLE SUPREME COURT AFFIRMING THE DECISION OF THE HONBLE M.P. HIGH COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL (2000) 24 1 ITR 124. ITA NO.S. 359 TO 364(ASR)/2012 15 15. WE ALSO RELY UPON THE DECISION IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD. REPORTED IN (2010) 322 I TR 158 (SC) WHERE IT HAS BEEN HELD AS UNDER: A GLANCE AT THE PROVISION OF SECTION 271(1)(C) WO ULD SUGGEST THAT IN ORDER TO BE COVERED THERE HAS TO BE CONCEALMENT O F THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. PR ESENT IS NOT THE CASE OF CONCEALMENT OF THE INCOME. THAT IS NOT THE CASE OF THE REVENUE EITHER. AS PER LAW LEXICON THE MEANING OF THE WOR D PARTICULAR IS A DETAIL OR DETAILS (IN PLURAL SENSE); THE DETAILS O F A CLAIM OR THE SEPARATE ITEMS OF AN ACCOUNT. THEREFORE THE WORD PARTICUL ARS USED IN THE SECTION 271(1)(C) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM MADE. IT IS AN ADMITTED POSITION IN THE PRE SENT CASE THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE IN CORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR ANY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE ATLEAS T PRIMA FACIE THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACC URATE PARTICULARS. THE WORDS ARE PLAIN AND SIMPLE. IN ORDER TO EXPOS E THE ASSESSEE TO THE PENALTY UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION THE PENALTY PROVISION CANNOT BE INVOKED. BY ANY STRET CH OF IMAGINATION MAKING AN INCORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THEREFORE IT IS OBVIOUS T HAT IT MUST BE SHOWN THAT THE CONDITIONS U/S 271(1)(C) MUST EXIST BEFOR E THE PENALTY IS IMPOSED. THERE CAN BE NO DISPUTE THAT EVERYTHING W OULD DEPEND UPON THE RETURN FILED BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. CIT V S. ATUL MOHAN BINDAL (2009) 225 CTR (SC) 248 : (2009) 28 DTR (SC ) 1 : (2009) 9 SCC 589 FOLLOWED. READING THE WORDS INACCURATE AND PARTICULARS I N CONJUNCTION THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN WHIC H ARE NOT ACCURATE NOT EXACT OR CORRECT NOT ACCORDING TO TRUTH OR ER RONEOUS. IN THIS CASE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY T HE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE THERE WOULD BE NO QUESTION OF INVITING T HE PENALTY U/S ITA NO.S. 359 TO 364(ASR)/2012 16 271(1)(C). A MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO THE INACCURATE PARTICULARS. THE A SSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WE LL AS INCOME IN ITS RETURN WHICH DETAILS IN THEMSELVES WERE NOT FOU ND TO BE INACCURATE NOR COULD BE VIEWED AS THE CONCEALMENT OF INCOME O N ITS PART. IT WAS UP TO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE R ETURN OR NOT. MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE WHICH CLAIM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE THAT BY ITSELF WOULD NOT ATTRACT THE PENALTY U/S 271(1)(C). IF T HE CONTENTION OF THE REVENUE IS ACCEPTED THEN IN CASE OF EVERY RETURN W HERE THE CLAIM MADE IS NOT ACCEPTED BY AO FOR ANY REASON THE ASS ESSEE WILL INVITE PENALTY U/S 271(1)(C). THAT IS CLEARLY NOT THE INT ENDMENT OF THE LEGISLATURE. THE TRIBUNAL AS WELL AS THE CIT(A) AN D THE HIGH COURT HAVE CORRECTLY REACHED THIS CONCLUSION SREE KRIS HNA ELECTRICALS VS. STATE OF TAMIL NADU & ANR. (2009) 23 VST 249 (SC) APPLIED; RELIANCE PETROPRODUCTS (P) LTD. (JUDGMENT DT. 23 RD OCT; 2007 OF THE GUJARAT HIGH COURT IN TAX APPEAL NO.1149 OF 2007) AFFIRMED. MERELY BECAUSE THE ASSESSEE CLAIMED DEDUCTION OF I NTEREST EXPENDITURE WHICH HAS NOT BEEN ACCEPTED BY THE REVENUE PENALT Y U/S 271(1)(C) IS NOT ATTRACTED; MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. 16. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT C ASE THE ASSESSEE HAS SUBMITTED THE REVISED RETURN AND PAID TAXES BEFORE NOTICE OF ASSESSMENT WAS ISSUED AND THERE WAS NO CONCEALMENT OF INCOME. THE INCOME WAS REVISED TO BUY PEACE OF MIND. THE ASSESSEE HAS NOT FURNISHED A NY INACCURATE PARTICULARS OF INCOME. THEREFORE IN VIEW OF THE FACTS AND CIRC UMSTANCES OF THE PRESENT CASE NO PENALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT.. ON REVISING THE RETURNS THOUGH FILED OUT OF TIME U/S 139(5) OF THE ACT IN VIEW OF THE DECISION ITA NO.S. 359 TO 364(ASR)/2012 17 RELIED UPON HEREINABOVE. THEREFORE THE LD. CIT(A) IS DIRECTED TO CANCEL THE PENALTY AND HIS ORDER IS REVERSED ACCORDINGLY. 17. THE DECISION RELIED UPON BY THE LD. DR MR. TAR SEM LAL IN THE CASE OF PREMPAL GANDHI VS. CIT REPORTED IN (2011) 335 IT R 23 (P&H) IS NOT APPLICABLE IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE SINCE THE ASSESSEE IN THE PRESENT CASE HAS NOT BEEN FORCED T O SURRENDER UNDISCLOSED INCOME AND THIS IS A WRONG ALLEGATION AND THEREFORE THE CASE RELIED UPON BY THE LD. DR IN THE CASE OF PREMPAL GANDHI VS. CIT (S UPRA) IS NOT APPLICABLE IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY THE AO IS DIRECTED TO CANCEL THE PENALTY FOR BOTH THE ASSESSM ENT YEARS. THUS THE APPEALS OF THE ASSESSEE IN ITA NO.359 & 360(ASR)/20 12 FOR THE ASSESSMENT YEARS 1998-99 & 1999-2000 ARE ALLOWED. 18. NOW WE TAKE UP THE APPEALS IN THE CASE OF SH. ZUBIN KHURANA IN ITA NOS. 361 & 362(ASR)/2012 AND IN THE CASE OF SMT. AL KA KHURANA IN ITA NOS.363 & 364(ASR)/2012 FOR THE ASSESSMENT YEARS 19 98-99 & 1999-2000. THE FACTS IN ALL THE FOUR APPEALS ARE IDENTICAL TO THE FACTS IN THE CASE OF SH. VINOD KHURANA IN ITA NOS. 359 & 360(ASR)/2012 AS D ECIDED BY US HEREINABOVE . THEREFORE OUR DECISION HEREINABOVE IN THE CASE OF SH. VINOD KHURANA IN ITA NOS. 359 & 360(ASR)/2012 HEREINABOVE IS IDENTICALLY ITA NO.S. 359 TO 364(ASR)/2012 18 APPLICABLE IN THE PRESENT FOUR APPEALS IN THE CASE OF SH. ZUBIN KHURANA AND SMT. ALKA KHURANA IN ITA NOS. 361 & 362 AND IN ITA NOS.363 & 364. ACCORDINGLY ALL THE FOUR APPEALS OF THE ASSESSEES ARE ALLOWED. 19. IN THE RESULT ALL THE SIX APPEALS OF DIFFEREN T ASSESSEES IN ITA NOS. 359 360 361 362 363 & 364(ASR)/2012 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH O CTOBER. 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10TH OCTOBER 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. ALL THE ASSESSEES: I) VINOD KHURANA (II) ZUBIN KHUR ANA & SMT. ALKA KHURANA 2. THE DCIT CIR.IV ASR. 3. THE CIT(A) ASR. 4. THE CIT ASR. 5. THE SR DR ITAT AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.