Sh. Prithvi Pal Bindra, New Delhi v. ACIT, New Delhi

ITA 4477/DEL/2009 | 2000-2001
Pronouncement Date: 05-02-2010 | Result: Dismissed

Appeal Details

RSA Number 447720114 RSA 2009
Assessee PAN AAGPB4424M
Bench Delhi
Appeal Number ITA 4477/DEL/2009
Duration Of Justice 2 month(s) 10 day(s)
Appellant Sh. Prithvi Pal Bindra, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 05-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 05-02-2010
Date Of Final Hearing 28-01-2010
Next Hearing Date 28-01-2010
Assessment Year 2000-2001
Appeal Filed On 25-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NOS. 4477 & 4478/DEL/2009 ASSESSMENT YEAR : 2000-01 & 2001-02 SHRI PRITHVI PAL BINDRA M/S MOETS BAR-BE-CUE 50 DEFENCE COLONY MARKET NEW DELHI. PAN : AAGPB4424M VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-9 NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI YOGESH KISHORE ADVOCATE REVENUE BY : SHRI H.K. LAL SR. DR. ORDER PER : I.P. BANSAL JUDICIAL MEMBER THESE APPEALS ARE FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE CIT (A) DATED 06.10.2009 FOR A.Y.2000-01 AND 2001- 02. IN BOTH THESE APPEALS THE ASSESSEE IS AGGRIEVED BY THE LEVY OF PENALTY U/S 271(1)(C) WHICH WAS IMPOSED BY THE AO @ 300% OF THE CONCEALED INCOME AND REDUCED BY THE CIT (A) TO 100%. THE ASSESSEE IS AG GRIEVED WITH THE ORDERS OF THE CIT (A) ON THE GROUND THAT IT WAS NOT A CASE WH ERE LEVY OF CONCEALMENT PENALTY WAS WARRANTED. GROUNDS OF APPEAL FOR BOTH THE YEARS READ AS UNDER:- ITA NO.4477/DEL/2009 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENAL TY U/S 271(1)(C) @ 100% AS AGAINST PENALTY OF 300% IMPOSED BY THE AO. 2. THE ORDER OF THE LD. CIT(A) IS AGAINST LAW AND F ACTS OF THE CASE. 3. THE APPELLANT CRAVES THE RIGHT TO ADD AMEND OR WITHDRAW ANY GROUNDS OF APPEAL AT THE TIME OF HEARI NG. ITA NO.4477 & 4478/DEL/2009 2 ITA NO.4478/DEL/2009 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENAL TY U/S 271(1)(C) @ 100% AS AGAINST PENALTY OF 300% IMPOSED BY THE AO. 2. THE ORDER OF THE LD. CIT(A) IS AGAINST LAW AND F ACTS OF THE CASE. 3. THE APPELLANT CRAVES THE RIGHT TO ADD AMEND OR WITHDRAW ANY GROUNDS OF APPEAL AT THE TIME OF HEARI NG. 2. FACTS BRIEFLY STATED ARE THAT A SEARCH AND SEIZ URE U/S 132 OF THE ACT WAS CONDUCTED ON ASSESSEE ON 6 TH DECEMBER 2005. ACCORDINGLY NOTICE U/S 153A WAS ISSUED FOR THE YEARS UNDER CONSIDERATION IN RES PONSE TO WHICH RETURNS OF INCOME WERE FILED BY THE ASSESSEE WHICH DID NOT INC LUDE INTEREST ACCRUED/RECEIVED (ACCRUED FOR ASSESSMENT YEAR 2000- 01 AND RECEIVED FOR ASSESSMENT YEAR 2001-02). THE ASSESSEE HAD A DEPO SIT OF RS.10 LAC WITH M/S AMBIENCE LEASING LTD. ON WHICH INTEREST HAD ACCRUED UPTO ASSESSMENT YEAR 2000-01 AND THE SAID DEPOSIT WAS TO GET MATURED ON 31 ST DECEMBER 2000. FDR IS DATED 31 ST JANUARY 1998 ACCORDING TO WHICH AMOUNT OF DEPOSIT WAS RS.10 LAC INTEREST COMMENCEMENT DATE HAS BEEN MENTIONED AS 1 ST JANUARY 1998 AND IT HAS A MATURITY PERIOD OF 36 MONTHS INTEREST PAYABL E IS 15% PER ANNUM AND AMOUNT OF MATURITY IS STATED AS RS.15 55 500/- ON 3 1 ST DECEMBER 2000. COPY OF THE SAID FDR WAS FILED BY THE LD. AR DURING THE COU RSE OF HEARING BEFORE US AND A COPY WAS ALSO GIVEN TO LD. DR. LD. AR HAS ALSO F ILED COPY OF RETURNS FILED IN REGULAR COURSE FOR ASSESSMENT YEAR 1998-99 AND 1999 -2000. THE RETURN FOR ASSESSMENT YEAR 1998-99 WAS FILED ON 28 TH MARCH 2000 AND RETURN FOR ASSESSMENT YEAR 1999-2000 WAS FILED ON 18 TH APRIL 2000. IN BOTH THESE RETURNS THE ASSESSEE HAS SHOWN ACCRUED INTEREST FROM AMBIEN CE LEASING LTD. AS UNDER:- ASSESSMENT YEAR 1998-99 - RS.37 500/- ASSESSMENT YEAR 1999-2000 - RS.1 64 599/- 3. A CHART IS ENCLOSED WITH THE RETURN OF INCOME FO R ASSESSMENT YEAR 1998-99 FOR ACCRUED INTEREST ETC. A COPY OF WHICH IS PLAC ED BEFORE US READS AS UNDER:- ITA NO.4477 & 4478/DEL/2009 3 P.P. BINDRA 50 DEFENCE COLONY MARKET NEW DELHI [ASSESSMENT YEAR 1998-99] SR. NO. FDR NO. & DATE BANK AMOUN T PERIOD [MONTH] A.Y. INTEREST 1998-99 99-00 (AY) 1. 627151 OF 17.1.98 SB OF 500000/- 15 10150 53235 PATIALA 2. 627152 10150 3. 627153 4. 627150 5. 627154 550000/- 11200 58470 6. 627335 OF 22.4.98 100000/- 12 - 10285 7. 627336 400000/- 12 - 41140 8. 1424 OF 1.1.98 AMBIENCE 1000000/- 36 3750 164599 LEASING LTD. 89300/- 48743 4/- 4. FOR ASSESSMENT YEAR 1999-2000 THE INTEREST WAS DECLARED AS CALCULATED IN THE ABOVE CHART AMOUNTING TO RS.1 64 599/-. AS FDR HAD MATURED ON 31 ST DECEMBER 2000 INTEREST OF RS.2 01 943/- HAD ACCRU ED IN RESPECT OF ASSESSMENT YEAR 2000-01 AND INTEREST FINALLY RECEIVED BY THE A SSESSEE DURING ASSESSMENT YEAR 2001-02 IS RS.1 51 458/- FOR THE PERIOD UPTO 3 1 ST DECEMBER 2000. IN RESPONSE TO NOTICE ISSUED U/S 153A FOR FILING THE R ETURN THE ASSESSEE DID NOT DISCLOSE THE ABOVE MENTIONED INTEREST. HOWEVER DU RING THE COURSE OF ASSESSMENT PROCEEDINGS AS MENTIONED IN THE IMPUGNE D ASSESSMENT ORDER THE ASSESSEE HAD FILED REVISED COMPUTATION OF INCOME IN WHICH SUCH INTEREST INCOME WAS SHOWN. 5. THE CASE OF THE DEPARTMENT IS THAT TO THE EXTENT INTEREST INCOME ACCRUED AND RECEIVED BY THE ASSESSEE DURING THESE YEARS TH E INCOME HAS BEEN CONCEALED BY THE ASSESSEE AND THEREFORE CONCEALME NT PENALTY WAS LEVIABLE ON THAT AMOUNT. DURING THE COURSE OF PENALTY PROCEEDI NGS THE ASSESSEE WAS REQUIRED TO SHOW CAUSE AS TO WHY CONCEALMENT PENALT Y SHOULD NOT BE LEVIED. THE EXPLANATION OF THE ASSESSEE WAS FURNISHED VIDE LETTER DATED 17 TH JUNE 2008 WHICH IS REPRODUCED BY THE AO IN THE PENALTY ORDER AND FOR THE SAKE OF ITA NO.4477 & 4478/DEL/2009 4 CONVENIENCE THE EXPLANATION OF THE ASSESSEE AS GIVE N FOR ASSESSMENT YEAR 2000-01 AND 2001-02 ARE REPRODUCED:- ASSESSMENT YEAR 2000-01 IN THIS CONNECTION IT MAY BE POINTED OUT THAT THE ASSESSEE HAD SHOWN INCOME OF RS. 4 73 670/- IN RESPONSE TO T HE NOTICE U/S 153A OF THE ACT. THE RETURN HAD BEEN FILED WHEN TH E ENTIRE RECORD HAD BEEN SEIZED IN THE CASE OF THE FIRM AND THE ASS ESSEE AND THE PHOTOCOPIES THEREOF HAD BEEN SUPPLIED SUBSEQUENTLY. ON PERUSING THE PHOTOCOPIES OF THE SEIZED RECORD THE ASSESSEE HAD NOTICED THAT THE INTEREST INCOME OF RS. 2 01 943/- FORM AMBIENCE LEASING LTD. HAD BEEN OMITTED. AFTER GOING THROUGH THE PHOTOCOP IES OF THE SEIZED RECORD THE ASSESSEE ON HIS OWN HAD FILED TH E REVISED STATEMENT OF TOTAL INCOME SHOWING THE TOTAL INCOME OF RS. 6 75 613/- INCLUDING THE SAID INTEREST INCOME WHICH HAD BEEN OMITTED IN THE ORIGINAL RETURN. IT WOULD BE APPREC IATED THAT IN CASE THE COPIES OF THE SEIZED RECORD HAD BEEN MADE AVAIL ABLE THE ASSESSEE WOULD HAVE SHOWN THE TOTAL INCOME OF RS. 6 75 613/- AFTER INCLUDING THE SAID INTEREST INCOME OF RS. 2 0 1 943/-. IT WOULD BE FURTHER APPRECIATED THAT THE ASSESSEE HAD FILED THE REVISED STATEMENT OF TOTAL INCOME BEFORE THE ASSESSMENT HAD BEEN TAKEN UP FOR SCRUTINY. FURTHER EVEN AFTER THE SCRUTINY NO OTHER INCOME HAD BEEN FOUND TO BE WITHHELD OR THAT THE SAME HAD NOT BEEN SHOWN IN THE ORIGINAL RETURN OR IN THE REVISED STAT EMENT OF TOTAL INCOME. IN THESE CIRCUMSTANCES THE ASSESSEE HAD N OT CONCEALED OR TRIED TO CONCEAL ANY PART OF HIS INCOME. THE OM ISSION HAD BEEN MADE ON ACCOUNT OF NON-AVAILABILITY OF THE SEIZED R ECORD. FURTHER THE REVISED STATEMENT OF TOTAL INCOME HAD BEEN FILE D BEFORE THE ISSUE OF ANY ENQUIRY OR QUESTIONNAIRE IN RESPECT OF THIS MATTER. THE ASSESSEE IS THEREFORE NOT LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT IN THE LIGHT OF A NUMBER OF HIGH COURT AND SUPREME COURT JUDGMENTS. ASSESSMENT YEAR : 2001-02 IN THIS CONNECTION IT IS SUBMITTED THAT THE ASSESS EE HAD DECLARED INCOME OF RS. 96 000 IN RESPONSE TO THE NO TICE U/S 153A OF THE ACT WHEN THE ASSESSEE DID NOT HAVE THE PHOTO COPIES OF THE ENTIRE SEIZED RECORD. AFTER GOING THROUGH THE PHOT OCOPIES OF THE SEIZED RECORD. AFTER GOING THROUGH THE PHOTOCOPIES OF THE SEIZED RECORD THE ASSESSEE HAD FOUND THREE OMISSIONS. FI RSTLY THE SHORT TERMS CAPITAL GAIN OF RS. 32 675/- HAD BEEN OMITTED IN THE ORIGINAL RETURN. SIMILARLY THE INTEREST INCOME OF RS. 1 78 554/- FROM THE BANK FDR AND THE INTEREST INCOME OF RS. 1 51 4458 F ROM AMBIENCE LEASING LTD. HAD BEEN OMITTED. THE ASSESSEE HAD T HEREFORE FILED REVISED STATEMENT OF TOTAL INCOME AT RS. 4 46 690/- VOLUNTARILY ITA NO.4477 & 4478/DEL/2009 5 BEFORE THE INITIATION OF ANY ENQUIRIES OR ISSUE OF ANY QUESTIONNAIRE. IT WOULD BE APPRECIATED THAT IN CASE OF PHOTOCOPIES SO THE SEIZED RECORD HAD BEEN AVAILABLE AT THE TIME OF FILING THE ORIGINAL RETURN THE ASSESSEE WOULD HAVE FILED THE TOTAL INCOME RS. 4 46 690/- WHICH HAD BEEN SHOWN IN THE REVISED STATEMENT OF TOTAL IN COME ON HIS OWN VOLUNTARILY. IN VIEW OF THIS FACT THE ASSESSE E IS NOT LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT IN THE LIGHT OF TH E FOLLOWING HIGH COURT AND SUPREME COURT JUDGMENT. 6. THE AO AFTER CONSIDERING THE ABOVE EXPLANATIONS OF THE ASSESSEE HAS OBSERVED THAT THE CONTENTION OF THE ASSESSEE IS FAC TUALLY INCORRECT AS THE COPIES OF THE SEIZED MATERIAL WAS HANDED OVER TO THE ASSES SEE BY THE INVESTIGATION WING THEREFORE COPIES OF THE SEIZED MATERIAL WERE AVAILABLE WITH THE ASSESSEE AT THE TIME OF PROCEEDINGS U/S 153A. REFERRING TO THE CONTENTION OF THE ASSESSEE THAT REVISED COMPUTATION OF INCOME WAS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO HAS OBSERVED THAT THE SAME WAS FILED BY THE ASSESSEE PURSUANT TO VARIOUS QUERIES RAISED BY HIM IN THIS R EGARD AND THUS IN SHORT THE CONTENTION OF THE AO IS THAT THE SAID ACT OF THE AS SESSEE WAS ALSO NOT VOLUNTARY. 7. THE AO FURTHER OBSERVED THAT MERE FILING A LETTE R OF REVISED COMPUTATION OF INCOME CANNOT OBVIATE THE NECESSITY OF FILING REVIS ED RETURN FOR WHICH PURPOSE THE AO HAS PLACED RELIANCE ON TWO DECISIONS; GOETZ (IND IA) LTD. VS. CIT 284 ITR 323 (SC) AND MITTAL ALLOYS & STEEL VS. CIT 299 ITR 291 (P&H) (CITATION WRONGLY WRITTEN IN ASSESSMENT ORDER AS 299 ITR 294). THE AO FURTHER OBSERVED THAT THE ASSESSEE OTHERWISE IS ALSO NOT ELIGIBLE UNDER THE L AW TO FILE REVISED RETURN FOR THE RETURN FILED IN PURSUANCE OF NOTICE U/S 153A. IN V IEW OF THE ABOVE DISCUSSION THE AO HAS LEVIED PENALTY @ 300% OF THE TAX SOUGHT TO B E EVADED. 8. IN APPEAL FILED BEFORE THE CIT (A) IT WAS ARGUED THAT COPIES OF SEIZED DOCUMENTS SUPPLIED BY THE DEPARTMENT TO THE ASSESSE E WERE NOT LEGIBLE THEREFORE A LETTER WAS FILED BY THE ASSESSEE WITH THE DEPARTMENT ON 20 TH JANUARY 2007 FOR ISSUANCE OF CLEAR COPIES. SINCE THEY WERE NOT ISSUED IN SPITE OF BEST EFFORTS THE RETURN WAS FILED ON 13 TH MAY 2007 AS THE DEPARTMENT WAS PUTTING PRESSURE ON ASSESSEE TO FILE THE RETURN. THE SEIZE D COMPUTER INCLUDING THE COMPUTER OF M/S MOETS BAR-BE-CUE IN WHICH THE ASSE SSEE IS A PARTNER WAS ITA NO.4477 & 4478/DEL/2009 6 OPENED AND COPIES WERE GIVEN ON 19 TH DECEMBER 2007. THUS THE AO ERRED IN STATING THAT COPIES OF ENTIRE SEIZED MATERIAL WERE SUPPLIED BY THE INVESTIGATION WING. IT WAS SUBMITTED THAT THE ASSESSEE IS A LAW ABIDING CITIZEN AND SINCE THE MISTAKE CAME TO HIS NOTICE THE SAME WAS IMMEDIATEL Y RECTIFIED AND TAX ALONG WITH INTEREST WAS PAID IMMEDIATELY ON 3 RD OCTOBER 2007. IT WAS SUBMITTED THAT EVEN AFTER THE SEARCH THE AO COULD NOT MAKE ANY AD DITION BASED ON SEIZED MATERIAL OR STATEMENTS RECORDED WHICH CLEARLY SHOWS THAT THE ASSESSEE WAS ALWAYS FILING HIS RETURN AND THE MISTAKE DID NOT OC CUR BY AN INTENTION AND IT WAS ONLY DUE TO THE FACT THAT THE ENTIRE SEIZED MATERIA L WAS NOT AVAILABLE. RELIANCE WAS PLACED ON THE DECISION IN THE CASE OF CIT VS. S URESH CHAND BANSAL 223 CTR (CAL) 128 WHERE IN SEARCH U/S 153A THE INCOME WAS R EVISED AND ADDITIONAL INCOME WAS ACCEPTED PENALTY LEVIED WAS HELD NOT JU STIFIED. 9. CONSIDERING ALL THESE SUBMISSIONS THE CIT (A) O BSERVED THAT DISCLOSURE OF INTEREST INCOME EARNED BY THE ASSESSEE FROM M/S AMB IENCE LEASING LTD. HAD NOTHING TO DO WITH THE SEIZED MATERIAL SINCE THE AS SESSEE WAS HAVING AN FDR WITH M/S AMBIENCE LEASING LTD. WHICH WAS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE THEREFORE INTEREST ON THE SAME COULD HAV E BEEN OFFERED IN THE ORIGINAL RETURN ITSELF. HAVING NOT OFFERED THE SAID INTERES T INCOME IN THE ORIGINAL RETURN THE ASSESSEE GOT ANOTHER OPPORTUNITY TO OFFER THE SAME WHILE FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 153A. EVEN IN THA T RETURN THE ASSESSEE DID NOT OFFER SUCH INCOME. THE SAID INCOME WAS OFFERED DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS BY FILING A REVISED COMPUTAT ION OF INCOME. THE AO HAS RIGHTLY POINTED OUT THAT FILING OF REVISED COMPUTAT ION OF INCOME IS NOT EQUIVALENT TO FILING OF REVISED RETURN OF INCOME AND ALSO THAT ON CE RETURN WAS FILED IN RESPONSE TO NOTICE U/S 153A THE SAME CANNOT BE REVISED AS P ROVISIONS OF SECTION 153A DOES NOT PERMIT FILING OF ANY REVISED RETURN. THUS EXPRESSING AGREEMENT WITH THE FINDINGS OF AO IT IS HELD BY CIT (A) THAT NON-DISC LOSURE OF INTEREST INCOME ON THE DEPOSITS WITH AMBIENCE LEASING LTD. IN THE RETURN F ILED IN RESPONSE TO SECTION 153A TANTAMOUNTS TO FURNISHING INACCURATE PARTICULA RS OF INCOME. THE CLAIM OF THE ASSESSEE THAT REVISED COMPUTATION WAS FILED VOL UNTARILY IS ALSO DISPUTED BY THE AO AS THE SAME IS STATED TO BE DONE BY THE AO I N RESPONSE TO VARIOUS ITA NO.4477 & 4478/DEL/2009 7 QUERIES RAISED BY HIM. SO FAR AS IT RELATES TO REL IANCE ON THE DECISION IN THE CASE OF CIT VS. SURESH CHAND BANSAL (SUPRA) LD. CIT (A) HAS OBSERVED THAT THE ISSUE IN THAT CASE WAS WHETHER INCOME OFFERED IN RESPONSE TO SECTION 153A CAN BE SAID AS CONCEALED INCOME LIABLE FOR PENALTY U/S 271 (1) (C) OR NOT AND AS AGAINST THAT IN THE PRESENT CASE THE ISSUE IS THAT WHETHE R THE INCOME WHICH HAS BEEN OFFERED SUBSEQUENT TO THE FILING OF RETURN U/S 153A SUCH PENALTY IS LEVIABLE OR NOT. COMING TO THE QUANTUM OF LEVY OF PENALTY LD. CIT ( A) OBSERVED THAT LEVY OF MAXIMUM PENALTY WAS NOT JUSTIFIED AS THE AO DID NOT BRING ON RECORD ANY SPECIFIC INSTANCE TO SUBSTANTIATE HIS CLAIM THAT REVISED COM PUTATION OF INCOME WAS FILED BY THE ASSESSEE AS A RESULT OF VARIOUS QUERIES RAISED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 10. THE ASSESSEE IS AGGRIEVED BY SUCH CONFIRMATION OF PENALTY TO THE EXTENT OF 100% HENCE HAS FILED THE ABOVE MENTIONED APPEALS. 11. AFTER NARRATING THE FACTS IT WAS VEHEMENTLY PL EADED BY LD. AR THAT THE CONFIRMATION OF PENALTY TO THE EXTENT OF 100% BY CI T (A) IS NOT JUSTIFIED AS IT IS A CASE WHERE NO PENALTY U/S 271(1)(C) WAS LEVIABLE. IT WAS SUBMITTED THAT DESPITE REPEATED REQUESTS THE DEPARTMENT DID NOT PROVIDE T HE ASSESSEE WITH THE LEGIBLE COPIES OF SEIZED DOCUMENTS. THEREFORE THE ASSESSE E WAS UNABLE TO RETURN HIS INCOME CORRECTLY IN RESPONSE TO NOTICE FOR FILING T HE RETURN U/S 153A. REFERRING TO THE REPLY OF THE ASSESSEE FILED BEFORE THE AO IT W AS SUBMITTED THAT IN THE ABSENCE OF LEGIBLE COPIES OF SEIZED MATERIAL THE AS SESSEE COULD NOT FILE CORRECT INCOME AND UPON COMING TO KNOW THAT INTEREST INCOME HAS BEEN OMITTED TO BE FILED A REVISED COMPUTATION OF INCOME WAS FILED VO LUNTARILY AND THEREFORE THERE WAS NO CONCEALMENT ON THE PART OF THE ASSESSEE. IT IS A CASE OF OMISSION ON ACCOUNT OF NON-AVAILABILITY OF SEIZED RECORD AND T HEREFORE LD. CIT (A) WAS NOT RIGHT IN UPHOLDING THE PENALTY TO THE EXTENT OF 100 % OF THE TAX SOUGHT TO BE EVADED. 12. ON THE OTHER HAND IT WAS SUBMITTED BY LD. DR T HAT THE ASSESSEE IN EARLIER YEARS HAS BEEN REGULARLY OFFERING THE INTEREST INCO ME IN RESPECT OF FDR HELD BY HIM FROM M/S AMBIENCE LEASING LTD. FOR THIS PURPOS E HE REFERRED TO THE RETURNS ITA NO.4477 & 4478/DEL/2009 8 OF INCOME FILED BY THE ASSESSEE IN RESPECT OF ASSES SMENT YEAR 1998-99 AND 1999-2000 WHEREIN INTEREST ON ACCRUAL BASIS FROM M/ S AMBIENCE LEASING LTD. WAS DISCLOSED. HE SUBMITTED THAT NO PART OF FDR CO PY CAN BE SAID TO BE ILLEGIBLE. HE REFERRED TO THE COPY OF FDR SUBMITTED BY LD. AR AND CONTENDED THAT IT CANNOT BE SAID THAT THE CONTENTS OF FDR WERE NOT LEGIBLE. HE CONTENDED THAT THE ASSESEE HAS SUBMITTED AN EXPLANATION WHICH HE COUL D NOT SUBSTANTIATE THEREFORE THE AO WAS RIGHT IN LEVYING THE PENALTY. HE SUBMITTED THAT NON- DISCLOSURE OF INTEREST INCOME IN THE RETURN FILED I N RESPONSE TO NOTICE U/S 153A CANNOT BE SAID TO BE ON ACCOUNT OF ILLEGIBLE COPY O F SEIZED DOCUMENTS AS CONTENDED IN THE REPLY FILED BY THE ASSESSEE IN RES PONSE TO SHOW CAUSE NOTICE ISSUED FOR LEVY OF CONCEALMENT PENALTY. THUS IT WA S SUBMITTED THAT ACCORDING TO EXPLANATION 1 TO SECTION 271(1)(C) THE PENALTY WAS LEVIABLE ON ASSESSEE AND THE CIT (A) IS QUITE REASONABLE IN CONFIRMING THE PENAL TY ONLY TO THE EXTENT OF 100%. 13. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE COUL D NOT SHOW THAT HIS ACT OF FILING REVISED COMPUTATION WAS VOLUNTARY. IT WAS A LSO SUBMITTED THAT THERE IS NO PROVISION IN THE SECTION 153A WHICH ALLOWS THE ASSE SSEE TO FILE REVISED RETURN AND THEREFORE ALSO THE AO WAS JUSTIFIED IN LEVYIN G THE PENALTY BY REJECTING THE CONTENTIONS RAISED BY THE ASSESSEE. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE REPLY OF THE ASSESS EE IN RESPONSE TO SHOW CAUSE NOTICE AGAINST LEVY OF CONCEALMENT PENALTY HAVE ALR EADY BEEN REPRODUCED IN PARA 5 OF THIS ORDER. THE RELEVANT PORTION OF STATUTORY PROVISIONS REGULATING LEVY OF CONCEALMENT PENALTY ARE REPRODUCED BELOW FOR THE SA KE OF CONVENIENCE:- 271(1) IF THE ASSESSING OFFICER OR THE COMMISSIONE R (APPEALS) OR THE COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS U NDER 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 ITA NO.4477 & 4478/DEL/2009 9 . EXPLANATION 1 WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE COMMISSIONER TO BE FA LSE OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MA TERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCL OSED BY HIM THEN THE AMOUNT ADDED OR DISALLOWED IN COMPUTING T HE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL FOR THE P URPOSES OF CLAUSE (C) OF THIS SUB-SECTION BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. 15. EXPLANATION 1 TO SECTION 271(1)(C) DESCRIBES TH AT WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF TOTAL INCOME O F ANY PERSON UNDER INCOME-TAX ACT THE ASSESSEE FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE AO TO BE FALSE OR SUCH PERSON OFFERS A N EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH E XPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME WERE DISCLOSED BY HIM IN THAT CIRCUMSTANCES THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PE RSON AS A RESULT THEREOF SHALL FOR THE PURPOSES OF CLAUSE (C) OF SECTION 271(1) BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CO NCEALED. 16. VIEWING THE ABOVE PROVISION IN THE LIGHT OF THE FACTS OF THE PRESENT CASE IT IS OBSERVED THAT IT IS A CASE WHERE THE ASSESSEE HA S OFFERED AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND HE ALSO FA ILS TO PROVE THAT EXPLANATION FURNISHED BY HIM IS BONA FIDE AND ALL FACTS RELATIN G TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME WERE DISCLOSED. ITA NO.4477 & 4478/DEL/2009 10 17. IN THIS APPEAL IT IS THE CASE OF THE ASSESSEE THAT DUE TO NON-AVAILABILITY OF LEGIBLE COPY OF SEIZED DOCUMENTS THE ASSESSEE COUL D NOT DISCLOSE THE RELEVANT INTEREST INCOME IN THE RETURN FILED IN RESPONSE TO SECTION 153A. SUCH AN EXPLANATION OF THE ASSESSEE IS NOT SUBSTANTIATED AS IT COULD NOT BE SHOWN BY THE ASSESEE THAT RELEVANT COPY OF THE INSTRUMENT ACCOR DING TO WHICH THE INTEREST HAS ACCRUED TO THE ASSESSEE WAS IN ANY WAY ILLEGIBLE. MOREOVER THE DISCLOSURE OF INTEREST INCOME DID NOT DEPEND UPON THE LEGIBLE OR ILLEGIBLE COPY OF THE SEIZED DOCUMENT. PRIOR TO THE DATE OF SEARCH IN EARLIER Y EARS THE ASSESSEE HAS BEEN DISCLOSING SUCH INTEREST INCOME. AS DISCUSSED IN T HE ABOVE PART OF THIS ORDER IN THE COPIES OF RETURN FILED IN REGULAR COURSE WITH R ESPECT TO ASSESSMENT YEAR 1998- 99 AND 1999-2000 SUCH ACCRUED INTEREST WAS DISCLOSE D BY THE ASSESSEE. NORMALLY A PERSON WHILE PREPARING THE RETURN WILL L OOK INTO THE RETURN FILED FOR EARLIER YEARS. THEREFORE THE DISCLOSURE OF RELEVA NT INTEREST INCOME WAS NOT DEPENDENT UPON THE COPIES OF SEIZED DOCUMENTS. IT HAS NOT BEEN BROUGHT ON RECORD THAT WHAT IS THE POSITION WITH RESPECT TO RE GULAR RETURNS FILED IN RESPECT OF ASSESSMENT YEARS UNDER CONSIDERATION. HOWEVER IT IS CLEAR THAT IN THE RETURNS OF INCOME FILED FOR THE ASSESSMENT YEARS UNDER CONSIDE RATION IN RESPONSE TO NOTICE U/S 153A SUCH INCOME HAS NOT BEEN DISCLOSED AND TH E REASON FOR SUCH NON- DISCLOSURE IS STATED TO BE NON-AVAILABILITY OF COPY OF LEGIBLE SEIZED DOCUMENTS. THEREFORE THE EXPLANATION FILED BY THE ASSESSEE NE ITHER COULD BE SUBSTANTIATED NOR COULD BE SHOWN TO BE BONA FIDE. WHEN INTEREST INCOME ITSELF IS NOT DISCLOSED THERE IS NO QUESTION OF HOLDING THAT ALL THE FACTS RELATING TO THE INTEREST INCOME AND MATERIAL TO THE COMPUTATION OF INCOME WAS DISCLOSED BY THE ASSESSEE. THUS THE ASSESSEE IN THE PRESENT CASE HAS FAILED TO DISCHARG E OBLIGATIONS LAID UPON HIM BY EXPLANATION 1 TO SECTION 271(1)(C). THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF CIT (A) VIDE WHICH IT HAS BEEN HELD THAT THE ASSESS EE IS LIABLE FOR LEVY OF CONCEALMENT PENALTY. 18. IN THIS VIEW OF THE SITUATION WE DECLINE TO IN TERFERE IN THE ORDER OF THE CIT (A) FOR BOTH THE YEARS AS THE FACTS AND CIRCUMSTANC ES IN BOTH THE YEARS ARE ALMOST IDENTICAL. THERE BEING NO MERITS IN ASSESSE ES APPEAL THE SAME ARE DISMISSED. ITA NO.4477 & 4478/DEL/2009 11 19. IN THE RESULT THE APPEALS ARE DISMISSED. . 20. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05.0 2.2010. SD/- SD/- [B.P. JAIN] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 05.02.2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES