Arun Dudeja, Ballabgarh v. DCIT, Faridabad

ITA 5193/DEL/2013 | 2006-2007
Pronouncement Date: 25-04-2014 | Result: Dismissed

Appeal Details

RSA Number 519320114 RSA 2013
Assessee PAN ABCPD3469R
Bench Delhi
Appeal Number ITA 5193/DEL/2013
Duration Of Justice 7 month(s) 11 day(s)
Appellant Arun Dudeja, Ballabgarh
Respondent DCIT, Faridabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-04-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-04-2014
Assessment Year 2006-2007
Appeal Filed On 13-09-2013
Judgment Text
ITA NO. 5190 5191 5192 & 5193/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO S . 5190 5191 5192 & 5193/DEL/2013 A.Y. RS : 2003 - 04 2004-05 2005-06 & 2006-07 SH. ARUN DUDEJA 1352 SECTOR-17 FARIDABAD (PAN: ABCPD3469R) VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-II FARIDABAD HARYANA (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. K. P. GARG CA DEPARTMENT BY : SH. RAMESH CHANDER CIT(DR) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A) CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) FOR THE ASSTT. YEAR 2003-04 TO 2006- 07. SINCE THE ISSUES ARE COMMON AND CONNECTED AND THE APPEALS WE RE HEARD TOGETHER THESE ARE BEING CONSOLIDATED AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE IN THIS CASES HAS APPEALED AGAINS T THE LEVY OF PENALTY U/S. 271(1)(C) AS UNDER:- A.Y. 2003-04 - RS. 2 64 915/- A.Y. 2004-05 - RS. 9 33 207/- A.Y. 2005-06 - RS. 18 810/- ITA NO. 5190 5191 5192 & 5193/DEL/2013 2 A.Y. 2006-07 - RS. 6 732/- 3. SINCE FACTS ARE IDENTICAL WE ARE ADJUDICATING T HE ISSUE WITH REFERENCE TO FIGURES FROM A.Y. 2004-05. 4. IN THIS CASE A SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON 06.8.2008 AT THE RESIDENTIAL /BUSINESS PREMISES OF THE PERSONS ASSOCIATED WITH THE JMD GROUP. AMONG OTHER S RESIDENCE OF SHRI ARUN DUDEJA AND SMT. SANGEETA DUD EJA WERE ALSO SUBJECTED TO SEARCH AND SEIZURE OPERATION AND SOME BOOKS DOCUMENTS CASH JEWELLERY WERE FOUND AND IMPOUNDED DURING THE COURSE OF SEARCH. CONSEQUENT UPON THE ABOVE A SSESSMENT PROCEEDINGS U/S. 153A WERE INITIATED. ASSESSEE MAD E THE FOLLOWING DISCLOSURE OF ADDITIONAL INCOME AS FOLLOW S :- I. UNEXPLAINED CASH RS. 2622450 II. ON ACCOUNT OF RS. 5600000 UNEXPLAINED ENTRIES DISCUSSED ABOVE TOTAL RS. 8222450 THE ABOVE SURRENDER IS VOLUNTARY WITHOUT ANY COERCION OR FORCE BUT WITH A REQUEST THAT NO PENALT Y OR PROSECUTION MAY BE INITIATED AGAINST ME FOR THE SA ID DISCLOSURE. I WILL DULY FILE THE IT RETURN FOR A.Y . 2009-10 IN DUE COURSE. IT IS REQUESTED THAT THE CASH SEIZED FROM ME MAY KINDLY BE ADJUSTED AGAINST THE TAX LIABILITY FO R THE SAID YEAR IN THE FORM OF ADVANCE TAX. ITA NO. 5190 5191 5192 & 5193/DEL/2013 3 5. DURING THE COURSE OF REGULAR SCRUTINY ASSESSEE W AS ASKED TO EXPLAIN HOW HE HAD ACCOUNTED FOR AND PAID TAXES ON THE AMOUNTS SURRENDERED WHICH INCLUDED THIS CASH OF RS. 26 22 450/- AND DIARIES WITH ENTRIES FOUND DURING SEARCH. ASSESSE E SUBMITTED AS UNDER:- DETAILS OF AMOUNTS OFFERED TO TAX UNDER THE NOMENCLATURE INCOME AS SURRENDERED U/S. 132(4) UNDE R THE INCOME TAX ACT 1961. TABLE-A ASSESSMENT YEAR AMOUNT SURRENDERED U/S. 132(4) 2003-04 RS. 8 14 000/ - 2004-05 RS. 25 40 000/ - 2005 - 06 RS. 57 000/ - 2006-07 RS. 20 000/ - 2007-08 RS. 16 20 000/ - 2008-09 RS. 24 10 000/ - 2009 - 10 RS. 6 20 000/ - TOTAL RS. 80 81 000/ - THE DIFFERENCE (RS. 82 22 450 RS. 80 81 000) I.E. RS. 1 41 450/- MAY BE TAKEN INTO CONSIDERATION IN TH E YEAR OF SEARCH I.E. ASSESSMENT YEAR 2009-10. 5.1 AO REFERRED TO THE SEIZED DIARIES OF THE ASSES SEE. HE NOTED THAT ASSESSEE HAS SURRENDERED THE FOLLOWING ENTRIES WHICH SHOW INCOME NOT DISCLOSED TO TAX. ITA NO. 5190 5191 5192 & 5193/DEL/2013 4 TABLE-B ASSESSMENT YEAR INCOME AS EMERGING ON ACCOUNT OF PAGES 60/61/62/63/64/70 INCOME AS EMERGING ON ACCOUNT OF PAGES 28/29/30/31/32/33 2003 - 04 8 14 000/ - 2004 - 05 3 00 000/ - 25 40 000/ - 2005-06 57 000/ - 2006-07 17 200/ - 2007 - 08 16 15 300/ - 2008 - 09 24 05 100/ - 2009-10 6 20 300/ - TOTAL 50 14 900/- 33 54 000 RS. 50 14 900 + RS. 33 54 000 = RS. 83 68 900/- 5.2 AO COMPARED THE ABOVE WITH THE PRECEDING TABLE OF AMOUNT SURRENDERED. HE NOTED FROM THE ABOVE THAT THE ASSE SSEE HAS THUS NOT DISCLOSED THE TOTAL INCOME OF RS. 83 68 90 0 (-) 80 81 000 = RS. 2 87 900/-. REGARDING THIS DIFFERENCE THE AS SESSEE CONCEDED TO THE ADDITION OF THE SAME AMOUNT FOR ASS TT. YEAR 2004-05 SUBJECT TO NO PENAL INFERENCE. ON THE BAS IS OF THIS ASSESSMENT PENALTY PROCEEDINGS WERE INITIATED. I N THE PENALTY PROCEEDINGS THE ASSESSEE EXPLAINED HIS POSITION IN RESPECT OF THE NOTING IN THE DIARIES / LOOSE DOCUMENTS AS FOLLOWS: - I AM A TEXTILE CHEMIST AND HAVE BEEN WORKING IN T HIS FIELD FOR THE LAST 25 YEARS. IT IS VERY IMPORTANT FOR ME TO FIND OUT ALL POSSIBLE WAYS TO REDUCE THE COST OF PRODUCTION. IT BECOMES ESSENTIAL FOR ME TO KNOW AN D ITA NO. 5190 5191 5192 & 5193/DEL/2013 5 RECORD THE COST OF EACH PROCESS IN TEXTILE DYEING A ND PRINTING AREA. SINCE UTILITY EXPENSES CHANGE VERY FREQUENTLY SO COST PER UNITY OF FABRIC ALSO CHANGES ACCORDINGLY. I HAVE TO NOTE DOWN ALL THESE FIGURE S FOR MY PERSONAL RECORD SO AS TO STUDY THESE POINTS AND FIND OUT THE WAY OUT. NEW TECHNOLOGY UPDATION AND THERE COST OF EACH PROCESS HAS TO BE KNOWN TO ME SO I K EEP STUDYING ALL AVAILABLE TECHNICAL UPDATIONS BY ATTEN DING SEMINARS AND NOTE DOWN FOR MY PERSONAL REFERENCES WHICH CAN BE USED FOR ACTUAL PRODUCTION UNIVERSALL Y. THE NOTHINGS IN THE DIARIES AND LOOSE DOCUMENTS SPE AK NOTHING MORE THAN THIS. THAT THE ADDITIONS MADE IN THIS CASE ARE BASED ON MERELY THE STATEMENT GIVEN BY THE ASSESSEE AND HIS COOPERATION WITH THE DEPARTMENT TO BUY PEACE AND NO T TO INVOLVE IN AN UNENDING LITIGATION. HE WAS GIVEN AN UNDERSTANDING AT THE TIME OF SEARCH AND SEIZURE PROCEEDINGS THAT IF HE COOPERATED WITH THE DEPARTM ENT NO PENALTY UNDER SECTION 271(1)(C) WOULD BE LEVIABL E IN HIS CASE. THEREFORE HE SURRENDERED THE INCOME AT A N ESTIMATED FIGURE OF RS. 8222450/- WITH THE SPECIFIC REQUEST AND UNDERSTANDING THAT NO PENALTY U/S. 271(1)(C) WOULD BE LEVIED IN HIS CASE. THAT THE NOTINGS IN THE DIARY SPEAK NOTHING MORE T HAN WHAT HAS BEEN STATED ABOVE THE ASSESSEE. THESE NOTHINGS IN THE DIARIES / LOOSE DOCUMENTS ARE DUMB AND DO NOT SPEAK OF ANY INCOME EARNED BY THE ASSESSEE. IT ITA NO. 5190 5191 5192 & 5193/DEL/2013 6 WAS ONLY AN ESTIMATE THAT THE INCOME TO THE EXTENT OF RS. 8222450/- WAS SURRENDERED. THAT THE CASH FOUND AMOUNTING TO RS. 2622450/- AT TH E TIME OF SEARCH AND SEIZURE PROCEEDINGS ON 6.8.08 CA NNOT BE RELATED TO THE INCOME RETURNED OR ASSESSED FOR T HE ASSESSMENT YEAR MENTIONED ABOVE. THE ASSESSMENT ORDER ALSO SPEAKS NOTHING ABOUT IT. THE ASSESSEE HONORED THE SURRENDER BY REVISING THE RETURNS OF HIS INCOME TO THE EXTENT OF THE AMOUNT O F SURRENDER. HIS RETURNED INCOME HAS BEEN ACCEPTED I N THIS CASE AS THERE WAS NOTHING TO BE ADDED. IT WOULD NOT HAVE BEEN POSSIBLE FOR THE DEPARTMENT TO ASSESS THE SO-CALLED UNDISCLOSED INCOME WITHOUT THE ASSESSEE'S CO-OPERATION. THAT NO PENALTY IS LEVIABLE WHEN UNPROVED INCOME IS OFFERED FOR TAXATION TO PURCHASE PEACE. WE RELY UPO N THE FOLLOWING JUDGMENTS IN THIS REGARD A) SIR SHADI LAL SUGAR& GENERAL MILLS LIMITED VS. COMMISIONER OF INCOME TAX DELHI 168 ITR 705 (S C) B) SUDERSHAN SILK & SAREES VS. CIT DELHI (2008) 169 TAXMAN 321 (SC) C) COMMISIONER OF INCOME TAX VS. SURESH CHAND BANSAL 223 CTR (CAL) 128 ITA NO. 5190 5191 5192 & 5193/DEL/2013 7 D) COMMISIONER OF INCOME TAX VS. RAJEEV GARG 313 ITR 256 (P & H) E) COMMISIONER OF INCOME TAX VS. SURESH CHAND MITTAL 251 ITR 9 (S.C)' 5.3 THE AO DID NOT ACCEPT THE ABOVE CONTENTION OF T HE ASSESSEE. AO REFERRED TO THE EXPLANATION 5(A) APPENDED BELOW TO SECTION 271(1)(C). AO OBSERVED THAT EXPLANATION 5A APPENDED BELOW TO SECTION 271(1)(C) OF THE IT ACT IS APPLICABLE IN TH OSE CASES WHERE ANY INCOME BASED ON ANY ENTRY IN THE BOOKS OF ACCOU NT OR DOCUMENT OR ANY TRANSACTION C1ARIFIED BY THE ASSESS EE TO BE HIS INCOME OR ANY MONEY BULLION JEWELLERY THAT THE AS SESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILI ZING HIS INCOME FOR ANY PREVIOUS YEARS WHICH HAS ENDED BEFOR E THE DATE OF SEARCH THEN NOTWITHSTANDING WHETHER SUCH INCOME IS DECLARED OR NOT DECLARED BY THE ASSESSEE IN THE EARLIER YEARS THIS INCOME IS CONSIDERED AS DEEMED TO BE LIABLE FOR IMPOSITION U/ S 271(1)(C) OF THE I.T. ACT. IN THE ASSESSEE'S CASE THE ADDITIONA L INCOME OF RS.8 14 000/- HAS BEEN CLAIMED BY THE ASSESSEE AS I TS OWN INCOME AND HAS THEREFORE INCLUDED THE SAME IN ITS RETURN OF INCOME FOR A.Y. 2004-05 WHICH IS A PREVIOUS YEAR EN DED BEFORE THE DATE OF SEARCH I.E. 06.08.2008. THEREFORE ONE OF THE PRIMARY CONDITIONS FOR APPLICATION OF EXPLANATION 5A I.E. I NCOME CLAIMED BY THE ASSESSEE SHOULD PERTAIN TO THE PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH HAS BEEN SATISFIED. AO FURTHER REJECTED THE ASSESSEES CONTENTION THAT NOTICE DIA RIES AND THE LETTERS WERE DUMB AND DO NOT SPEAK ANY INCOME OF TH E ASSESSEE AND THAT IT WAS ONLY AN ESTIMATE THAT THE INCOME TO THE EXTENT OF ITA NO. 5190 5191 5192 & 5193/DEL/2013 8 RS. 8222450/- WAS SURRENDERED. AO REFERRED TO THE STATEMENT OF SECTION 132(4) AND HIS CONDUCT BEFORE THE ASSESSME NT ORDER BEFORE THE ASSESSMENT PROCEEDINGS. AO NOTED THAT I T IS AMPLY CLEAR THAT THE ASSESSEE DURING THE COURSE PROCEEDIN GS U/S. 132(3) AS WELL AS DURING ASSESSMENT PROCEEDINGS HAS ACCEPT ED HIS INABILITY TO EXPLAIN THE CASH FOUND MAINTAINED IN T HE LOCKERS AND THE ENTRIES MADE IN THE DIARIES WITH REGULAR BOOKS OF ACCOUNT OR WITH OTHER DOCUMENTARY EVIDENCE. THAT RATHER HE H AS ACCEPTED THE FACT THAT THE ENTRIES PERTAIN TO THE CASH COMMI SSION RECEIVED BY HIM ON SALE OF IMMOVABLE PROPERTY. AO ALSO REJE CTED THE CASE LAW REFERRED BY THE ASSESSEE. HE PLACED RELIANCE U PON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF U OI VS. DHARMENDERA TEXTILE PROCESSORS 306 ITR 227 AND LEVI ED THE PENALTY U/S. 271(1)(C). 6. UPON ASSESSEES APPEAL LD. CIT(A) CONSIDERED THE ISSUE AND AFFIRMED THE PENALTY BY HOLDING AS UNDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND THE IMPUGNED ORDER. THE LD. AO PROCEEDED TO LEVY PENALTY U/S 271 (1) (C) R.W. EXPLANATION 5A ON THE BASIC PREMISE THAT THE ASSESSEE HAD NOT DECLARED THE ACTU AL INCOME IN ITS REGULAR RETURN OF INCOME U/S 139(1) O F THE INCOME TAX ACT 1961 FILED ON 11.10.2004. THE INCOME DECLARED IN THE ORIGINAL RETURN WAS ONLY RS. 6 99 4 00/- AS AGAINST THE RETURN OF RS. 32 39 400/- FILED ON 1.8.2010 IN RESPONSE TO NOTICE U/S 153A. THIS WAS FINALLY ASSESSED AT RS. 35 27 300/- ON 30.12.2010 AF TER MAKING AN ADDITION OF RS. 28 27 900/- ON ACCOUNT OF ITA NO. 5190 5191 5192 & 5193/DEL/2013 9 DIFFERENCE IN THE SURRENDER MADE AND THE. AMOUNT DEDUCED FROM THE SEIZED DOCUMENTS. PENALTY WAS LEVI ED AT THE MINIMUM RATE. ON A PERUSAL OF THE IMPUGNED ORDER IT IS OBSERVED THAT THE ASSESSEE HAD SURRENDERED RS. 82 22 450/- U/ S 132(4) ON ACCOUNT OF CASH FOUND IN LOCKERS AND UNEXPLAINED ENTRIES IN DIARIES AND AS PER BREAK UP THE DISCLOSURE [TABLE-A OF THE ORDER] FOR THE INSTANT YE AR IS RS.25 40 000/-. FURTHERMORE ADDITIONAL INCOME EMERGING FROM SCRUTINY OF EXPLANATION OF ASSESSEE O F THE PAGES OF THE SEIZED DIARY [REFERENCE TABLE-B OF ORD ER AS WELL AS PARA 10 OF THE ASSESSMENT ORDER] AMOUNTED T O RS. 3 00 000/- FOR THE YEAR. THUS IT IS EVIDENT THAT AN AMOUNT OF RS.28 40 000/- PARTLY DISCLOSED AND ALSO ADDED BY THE AO AROSE FROM ASSESSEE'S OWN ADMISSION WHEN CONFRONTED WITH THE SEIZED DOCUMENTS. THE DISCLOSURE IN THE RETURN OF INCOME FURNISHED IN RES PONSE TO NOTICE U/S. 153A NO DOUBT HAS BEEN ACCEPTED BY T HE DEPARTMENT. HOWEVER THE ASSESSEE WAS DUTY BOUND TO ADDUCE SUFFICIENT EXPLANATION FOR THE PREVIOUS OMIS SION WHICH HE HAS MISERABLY FAILED TO DO SO. THE FURTHER ADDITION IN THE COURSE OF ASSESSMENT TOO EMANATED F ROM THE SEIZED MATERIALS. IT WAS THEREFORE ONLY DUE TO THE INCRIMINATING DOCUMENTS FOUND/SEIZED IN THE SEARCH ACTION THAT PERSUADED THE ASSESSEE TO MAKE A CLEAR CUT DECLARATION U/S 132(4). LATER IN THE COURSE OF ASSESSMENT HIS EXPLANATION OF SOME PAGES OF THE DIA RY ENTRIES WERE ALSO FOUND TO BE INCORRECT TO THE EXTE NT ITA NO. 5190 5191 5192 & 5193/DEL/2013 10 ADDED BACK BY THE AO. IN SUCH A BACKDROP THE FACTS OF THE CASES RELIED UPON ARE TOTALLY DIFFERENT. THE SUBMISSIONS OF THE ASSESSEE THAT THE ENTIRE SURREND ER OF INCOME IN THE COURSE OF SEARCH WAS ONLY AN ESTIMATE AND THAT THE DIARIES WERE DUMB DOCUMENTS ARE MERE ASSERTIONS WITHOUT ANY SUBSTANTIATION. THEREFORE CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE I HAVE NO HESITATION IN UPHOLDING THE PENALTY LEVIED BY THE LD. AO. 7. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT IN THESE CASES ASSESSEE HAS SURRENDER ED RS. 82 22 450/- U/S. 153A ON ACCOUNT OF CASH FOUND IN L OCKERS AND UNEXPLAINED ENTRIES IN DIARIES. THIS WAS DONE DU RING THE COURSE OF SEARCH AND SEIZURE OPERATION WHERE SOME BOOKS DOCUMENTS CASH WERE FOUND AND IMPOUNDED DURING THE COURSE OF SEARCH. IN THIS REGARD DURING THE COURSE OF ASSESSMENT PROCEE DINGS ASSESSEE WAS ASKED TO EXPLAIN HOW HE HAD ACCOUNTED FOR AND PAID TAX ON THE AMOUNT SURRENDERED WHICH INCLUDED C ASH OF RS. 26 22 450/- AND DIARIES WITH ENTRIES FOUND DURING S EARCH. IN THIS REGARD ASSESSEE HAS GIVEN BREAKUP OF THE AMOU NT SURRENDERED AS REFERRED IN PARA 5 ABOVE. THE ASSE SSEE HAS ADMITTED THAT THE DIFFERENCE (RS. 82 22 450 RS. 80 81 000) I.E. RS. 1 41 450/- MAY BE TAKEN INTO CONSIDERATION IN T HE YEAR OF SEARCH I.E. ASSTT. YEAR 2009-10. 8.1 THEREAFTER AO HAS FURTHER REFERRED TO THE SEI ZED DIARIES OF THE ASSESSEE AND FROM THE ENTRIES NOTED THEREIN ASS ESSEE WAS ITA NO. 5190 5191 5192 & 5193/DEL/2013 11 CONFRONTED THAT TOTAL INCOME NOT DISCLOSED AMOUNTE D TO RS. 8368900. THUS THERE WAS A DIFFERENCE OF RS. 2 87 900/-. IN THIS REGARD ALSO THE ASSESSEE CONCEDED THAT THIS AMOUNT MAY ALSO BE ADDED TO THE INCOME OF THE ASSESSEE FOR THE ASSTT. YEAR 2004-05. THUS WE FIND THAT ALL ALONG DURING THE COURSE OF SEARCH AS WELL AS DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE HAS NOT DISPUTED THE VERACITY OF THE SEIZED DOCUM ENTS AND HAS ACCEPTED THAT HE HAS NOT DISCLOSED INCOME TO THE EX TENT AS MENTIONED ABOVE. IN THE PENALTY PROCEEDINGS THE AS SESSEE GAVE A TOTAL DIFFERENT STORY. HE CLAIMED THAT THE NOTING S IN THE DIARIES AND LOOSE DOCUMENTS WERE DUMB DOCUMENTS. HE CLAIMED THAT HE WAS A TEXTILE CHEMIST AND HAS BEEN WORKING IN THE FIELD FOR THE PAST 25 YEARS. HE CLAIMED THAT THE NOTINGS WERE M EANT FOR ALL POSSIBLE WAYS TO REDUCE THE COST OF PRODUCTION. T HESE NOTINGS WERE FIGURES FOR HIS PERSONAL RECORD SO AS TO STUD Y THESE POINTS AND FIND OUT THE WAY. THAT THERE WAS A NEW TECHNOL OGY UPDATIONS AND COST OF EACH PROCESS HAS TO BE KNOWN TO HIM. NOW WE FIND THAT THERE IS NO BASIS REGARDING THE AFORE SAID CLAIM OF THE ASSESSEE. ENTRIES IN THE DIARIES AND LOOSE DOCUMEN TS FOUND DURING THE COURSE OF SEARCH WERE DISCUSSED IN THE COURSE OF ASSESSMENT. THE ASSESSEE WAS DULY CONFRONTED AND A SSESSEE HAS ITA NO. 5190 5191 5192 & 5193/DEL/2013 12 ACCEPTED THAT THESE WERE UNDISCLOSED INCOME. NOW TH E ASSESSEES CLAIM THAT THESE WERE HIS JOTTING REGARDING THE COS T OF PRODUCTION ETC. ARE TOTALLY AN AFTER THOUGHT. THERE IS NO BA SIS FOR BELIEVING THE SAME BECAUSE THE ADDITION IN THIS REGARD AROS E FROM ASSESSEES OWN ADMISSION WHEN CONFRONTED WITH SEI ZED DOCUMENTS. THE DISCLOSURE IN THE RETURN OF INCOME F URNISHED IN RESPONSE TO NOTICE U/S. 153A HAS NO DOUBT BEEN ACC EPTED BY THE DEPARTMENT. HOWEVER THE ASSESSEE WAS DUTY BOUND T O ADDUCE SUFFICIENT EXPLANATION FOR THE PREVIOUS OMISSION W HICH HE HAS MISERABLY FAILED TO DO. FURTHER ADDITIONS IN THE COURSE OF ASSESSMENT ALSO EMANATED FROM THE SEIZED MATERIAL. UNDER THE CIRCUMSTANCES WE AGREE WITH THE LD. CIT(A) THAT IT WAS THEREFORE ONLY DUE TO INCRIMINATING DOCUMENTS FOUND / SEIZED IN THE SEARCH ACTION THAT PERSUADED THE ASSESSEE TO MAKE A CLEAR CUT DECLARATION U/S. 132(4). LATER IN THE COURSE OF AS SESSMENT HIS EXPLANATION ON SOME PAGES OF THE DIARIES ENTRIES WE RE ALSO FOUND TO BE INCORRECT AND TO THAT EXTENT WERE ADDED BACK BY THE AO AND THE ASSESSEE HAS CONCEDED TO THE SAME. THUS THE AS SESSEES CLAIM THAT NO PENALTY IS LEVIABLE WHEN UNPROVED INC OME IS OFFERED FOR TAXATION TO PURCHASE PEACE IS NOT AT A LL SUSTAINABLE. WE FIND THAT SECTION 271(1)(C) POSTULATES IMPOSITIO N OF PENALTY FOR ITA NO. 5190 5191 5192 & 5193/DEL/2013 13 FURNISHING OF INACCURATE PARTICULARS AND CONCEALME NT OF INCOME. IN THIS CASE WE FIND THAT ASSESSEE HAS BEEN CLEARLY BE EN GUILTY OF CONCEALMENT AND THE SAME CAME TO THE LIGHT ONLY DU RING SEARCH OPERATION WHERE DIARIES AND DOCUMENTS WERE SEIZED. WE FURTHER FIND THAT EXPLANATION 5A TO SECTION 271(1) (C) CLEARLY COVERS THE SITUATION AS IN THIS CASE. IT HAS BEEN P ROVIDED IN THE SAID EXPLANATION AS UNDER:- EXPLANATION 5A WHERE IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1 ST DAY OF JUNE 2007 THE ASSESSEE IS FOUND TO BE THE OWNER OF - (I) ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND ITA NO. 5190 5191 5192 & 5193/DEL/2013 14 (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN THEN NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH HE SHALL FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB SECTION (1) OF THIS SECTION BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 8. NOW THE INCOME DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME FURNISHED AFTER THE DATE OF SEARCH WAS SOLE LY ON THE BASIS OF CASH FOUND DURING THE SEARCH AND ENTRIES IN DOCUME NTS AND DIARIES SEIZED. THERE IS NO COGENT EXPLANATION AS TO WHY T HESE INCOMES WERE NOT DISCLOSED EARLIER IN THE RESPECTIVE ASSES SMENT YEAR. HENCE ASSESSEE IS CLEARLY LIABLE FOR LEVY OF PENA LTY U/S. 271(1)(C) OF THE I.T. ACT. ITA NO. 5190 5191 5192 & 5193/DEL/2013 15 9. THE CASE LAWS REFERRED BY THE LD. COUNSEL OF TH E ASSESSEE ARE NOT APPLICABLE TO THE FACTS OF THE CASE. IN THE CA SE OF MUMBAI TRIBUNAL DECISION IN MARATHON NEXTGEN REALITY & TEXTILE LTD. VS. DCIT MARATHON NEXTGEN REALITY & TEXTILE LTD. VS. DCIT MARATHON NEXTGEN REALITY & TEXTILE LTD. VS. DCIT MARATHON NEXTGEN REALITY & TEXTILE LTD. VS. DCIT THE ADDITION OF INCOME ON THE BASIS OF FINDING DURI NG THE SEARCH WAS NOT ESTABLISHED. HOWEVER IN THIS CASE IT HAS BEE N CLEARLY ESTABLISHED THAT IT IS ONLY DUE TO CASH FOUND DURI NG THE COURSE OF SEARCH AND ENTRIES IN THE DOCUMENTS AND LOOSE SHEET S THAT THE ASSESSEE HAS MADE THE DISCLOSURE OF INCOME. 9.1 ACCORDINGLY IN THE BACKGROUND OF AFORESAID DIS CUSSION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT( A). HENCE WE AFFIRM THE LEVY OF PENALTY. 10. IN THE RESULT ALL FOUR APPEALS FILED BY THE AS SESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/4/2014. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 25/4/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - SH. ARUN DUDEJA C/O SH. K.C. GUPTA ADVOCATE C-454 CHAWLA COLONY BALLABGARH-121004. HARYANA. 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES