The ITO,S.K. Ward-3,, Himatnagar v. Chatrabhuj Hinduji Spni,, Himatnagar

ITA 620/AHD/2008 | 2005-2006
Pronouncement Date: 14-05-2010 | Result: Dismissed

Appeal Details

RSA Number 62020514 RSA 2008
Assessee PAN ACUPS2221H
Bench Ahmedabad
Appeal Number ITA 620/AHD/2008
Duration Of Justice 2 year(s) 2 month(s) 29 day(s)
Appellant The ITO,S.K. Ward-3,, Himatnagar
Respondent Chatrabhuj Hinduji Spni,, Himatnagar
Appeal Type Income Tax Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 14-05-2010
Date Of Final Hearing 11-05-2010
Next Hearing Date 11-05-2010
Assessment Year 2005-2006
Appeal Filed On 15-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' [BEFORE SHRI T K SHARMA JM AND SHRI A N PAHUJA AM] ITA NO.620/AHD/2008 (ASSESSMENT YEAR:-2005-06) THE INCOME-TAX OFFICER S K WARD-3 HIMATNAGAR V/S CHATRABHUJ HINDUJI SONI PROP. OF SONI CHATRABHUJ HINDUJI & SONS JUNA BAZAR HIMATNAGAR [PAN:ACUPS2221H] [APPELLANT] [RESPONDENT] REVENUE BY :- SMT. NEETA SHAH DR ASSESSEE BY:- SHRI TUSHAR P HEMANI AR O R D E R A N PAHUJA: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AN ORDER DATED 16-11-2007 OF THE LD. CIT(APPEALS)-X A HMEDABAD CANCELLING PENALTY OF RS.3 45 015/- LEVIED BY THE A O U/S 271(1)(C) OF THE INCOME-TAX ACT 1961[HEREINAFTER REFERRED TO AS THE ACT.] 2 FACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT THE RETURN DECLARING INCOME OF RS.2 39 020/- FILED ON 27-07- 2005 WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER THE AS SESSING OFFICER[AO IN SHORT] RECEIVED INFORMATION FROM THE CIB REGARDING DEPOSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE WITH HIMATNAGAR NAGARIK SAHAKARI BANK LTD. HIMATNAGAR [ ACCOUNT NO . C/A GEN 3285]. THE TOTAL TRANSACTIONS IN THE SAID BANK ACCO UNT WERE OF THE ORDER OF RS.30 88 900/- DURING THE PERIOD 01-04-200 4 TO 31-03-2005 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION WHILE IN THE RETURN OF INCOME FILED FOR THE AY 2005-06 THE TOT AL TURNOVER/ TRANSACTIONS SHOWN BY THE ASSESSEE WERE RS.20 52 16 0/-.THEREBEING DIFFERENCE OF RS.10 36 740/- SUMMONS U/S 131 OF TH E ACT WERE ISSUED AND STATEMENT OF SHRI PRAVINCHANDRA CHATRABH UJ SONI SON OF THE ASSESSEE WAS RECORDED ON 11-10-2005. IN HIS STA TEMENT SHRI PRAVINCHANDRA AFTER GOING THROUGH HIS BOOKS OF ACC OUNTS COULD NOT ITA NO.620/AHD/2008 2 FURNISH ANY REPLY FOR THE DIFFERENCE AND AGREED TO SUBMIT REVISED RETURN SHOWING ADDITIONAL INCOME OF RS.10 25 000/-. CONSEQUENTLY THE ASSESSEE FILED THE REVISED RETURN OF INCOME ON 29-11-2005 SHOWING ADDITIONAL TAXABLE INCOME OF RS.10 24 998/- . LATER A NOTICE U/S 148 OF THE ACT WAS ISSUED ON 18.1.2006. THE ASS ESSEE VIDE LETTER DATED 28.3.2006 REQUESTED TO TREAT THE RETUR N FILED ON 29.11.2005 AS THE RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT. DURING THE COURSE OF REASSESSMENT PROCEEDINGS IN R ESPONSE TO A SHOWCAUSE NOTICE DATED 26.9.2006 ISSUED BY THE AO SEEKING TO ADD SUPPRESSED TURNOVER THE ASSESSEE REPLIED THAT THE DIFFERENCE OF RS. 10 36 740/- HAD ALREADY BEEN DISCLOSED IN THE RETUR N FILED ON 29.11.2005 BEFORE ISSUE OF NOTICE U/S 148 OF THE AC T AND CORRESPONDING TAX HAD ALSO BEEN PAID. THEREFORE NO FURTHER ADDITION COULD BE MADE.HOWEVER SINCE THE AMOUNT HAD NOT BEE N DISCLOSED IN THE ORIGINAL RETURN THE AO ADDED THE AMOUNT OF RS. 10 25 000 BESIDES DISALLOWING 25% OF THE EXPENSES OUT OF TOTA L ADDITIONAL EXPENSES OF RS. 77 300 CLAIMED IN THE REVISED RETUR N AND COMPLETED THE ASSESSEMENT ON AN INCOME OF RS.12 83 340/-. INT ER ALIA PENALTY PROCEEDINGS U/S 271(L)(C) OF THE ACT WERE ALSO INIT IATED. THE ASSESSEE DID NOT PREFER ANY APPEAL AGAINST THE AFOR ESAID ASSESSMENT ORDER. SUBSEQUENTLY IN RESPONSE TO A SH OWCAUSE NOTICE DATED 16-11-2006 AND 08-05-2007 THE ASSESSEE CONTE NDED IN THEIR WRITTEN SUBMISSIONS DATED 24-01-2007 AND 16-05-2007 THAT:- (A) THE REVISED RETURN OF INCOME DATED 29-09-2005 I S VOLUNTARILY FILED. (B) THE STATEMENT OF PRAVINBHAI C. SONI DOES NOT BI ND THE ASSESSEE. (C) THE ASSESSEE RELIED UPON VARIOUS CASE LAWS TO S UPPORT HIS CLAIM THAT PENALTY U/S. 271(1)(C) OF THE I.T. ACT CAN NOT BE L EVIED. 2.1 HOWEVER THE AO DID NOT ACCEPT THE CONTENTION S OF THE ASSESSEE ON THE GROUND THAT THE RETURN WAS REVISED ONLY AFTER THE S TATEMENT OF SHRI PRAVINBHAI SONI WAS RECORDED ON 11-10-2005 WHEREIN IN REPLY T O QUESTION NO. 6 HE HAD AGREED TO DISCLOSE UNACCOUNTED INCOME OF RS.10 25 0 00/-.THUS RETURN WAS NOT ITA NO.620/AHD/2008 3 REVISED VOLUNTARILY. AS REGARDS SUBMISSION THAT THE STATEMENT OF SHRI PRAVINBHAI C. SONI RECORDED U/S. 131 OF THE ACT WAS NOT BINDIN G ON THE ASSESSEE THE AO OBSERVED THAT SHRI PRAVINBHAI IN REPLY TO QUESTION NO. 3 OF HIS STATEMENT ADMITTED THAT HIS FATHER BEING AGED AND NOT KEEPING GOOD HEA LTH HE ALONE LOOKED AFTER THE DAY TO DAY BUSINESS OF HIS FATHER. AS REGARDS RELIA NCE ON THE DECISION IN THE CASE OF CIT V/S GURU RAMDAS FRUITS & VEGETABLE AGENCY (1998) 67 ITD 1 (CHD) HOLDNG THAT FOR THE ADDITION AL INCOME DISCLOSED IN THE REVISED RETURN FILED INDEPENDENTL Y TO PURCHASE PEACE PENALTY U/S 271(L)(C) OF THE ACT CAN NOT BE IMPOSED THE AO OBSERVED THAT THE DECISION WAS NOT APPLICABLE AS TH E REVISED RETURN IN THE INSTANT CASE WAS FILED ONLY AFTER DETECTION OF CONCEALED INCOME OF RS.10 25000/- ON THE BASIS OF INFORMATION RECEIVED FROM THE C.I.B SECTION. THE AO ALSO REJECTED THE CONTENT IONS OF THE ASSESSEE SEEKING TO RELY ON THE DECISION IN THE CAS E OF JOHREE SAREE HOUSE V/S I.T.O (2004) 4 SOT 938 (JODH) AND SURESHC HANDRA MITTAL (2001) 251 ITR 9 / 119 TAXMAN 433 (SC).ACCORDINGLY THE AO IMPOSED A PENALTY OF RS.3 45 015/- @ 100% OF THE TAX SOUGHT TO BE EVADED ON THE INCOME OF RS.10 25 000/-. 3. ON APPEAL THE ASSESSEE REITERATED THEIR CONTEN TIONS BEFORE THE AO AND POINTED OUT THAT THE A.O. HAD ALREADY VERI FIED THE SOURCES OF CASH DEPOSITED IN THE AFORESAID BANK VIS--VIS BOOKS OF ACCOUNTS AND NO DISCREPANCY WAS FOUND IN THE BOOKS OF ACCOUNTS. EVEN WHEN TH E DIFFERENCE OF RS.1036740/- WAS NOT ENTIRELY INCOME THE SON OF THE ASSESSEE SU RRENDERED THE AMOUNT. THE ASSESSEE BEING 78 YEARS OLD WAS NOT IN POSITION T O GIVE ANY STATEMENT AND SHRI PRAVINCHANDRA SONI SON OF THE ASSESSEE BEING ONLY 9TH STD. PASS HAD NO KNOWLEDGE OF ACCOUNTING AND THEREFORE AGREED TO RE VISE HIS RETURN OF INCOME SHOWING ADDITIONAL INCOME OF RS.1024998. IF AN ASSE SSEE UNDER A MISTAKE MISCONCEPTION OR ON NOT BEING PROPERLY INSTRUCTED I S OVER-ASSESSED THE AUTHORITIES UNDER THE ACT ATE REQUIRED TO ASSIST HI M AND ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLECTED[ S. R. KOSHTI 2 76 ITR 165 (GUJ)] THE ASSESSEE ADDED. THE ASSESSEE FURTHER ARGUED THAT THE ASSESSM ENT PROCEEDINGS AND ITA NO.620/AHD/2008 4 PENALTY PROCEEDINGS BEING DISTINCT AND INDEPENDENT IT IS SETTLED LAW THAT BEFORE LEVYING PENALTY UNDER SECTION 271(1)(C) IT HAS TO BE HELD THAT THE ASSESSEE EITHER CONCEALED THE PARTICULARS OF INCOME OR FURNISHED I NACCURATE PARTICULARS OF INCOME. IN THE LIGHT OF THESE SUBMISSIONS THE LD . CIT(A) CANCELLED THE PENALTY IN THE FOLLOWING TERMS:- 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE AUTHORIZED REPRESENTATIVE. BASICALLY THE ADDITION HAS BEEN MAD E ON ACCOUNT OF REVISED RETURN FILED IN WHICH DIFFERENCE BETWEEN TO TAL TRANSACTIONS IN THE BANK ACCOUNT AND TOTAL TURNOVER SHOWN IN TRADING AC COUNT WAS TAKEN TO BE INCOME OF THE ASSESSEE ON THE BASIS OF ADDITIONAL I NCOME OFFERED IN THE REVISED RETURN OF INCOME. THIS IN ITSELF DOES NOT P ROVE THAT ENTIRE INCOME IS CONCEALED BECAUSE IN BANK ACCOUNT THERE CAN BE DEP OSITS THROUGH SEVERAL SOURCES I.E. OUT OF OWN CASH BALANCE OR OUT OF NEW LOANS TAKEN. HOWEVER AS THE ASSESSEE HAD ITSELF REVISED ITS RET URN OF INCOME THE SAME HAS TO BE TREATED AS INCOME OF THE ASSESSEE BUT AT THE SAME TIME IT DOES NOT ESTABLISH THAT ENTIRE INCOME SO OFFERED WAS CO NCEALED INCOME BECAUSE AS PER THE ASSESSEE EVEN THIS SURRENDER WAS MADE BECAUSE HE HAD NO ACCOUNTING KNOWLEDGE. AS DISCUSSED EARLIER THE ENTIRE ADDITION IS BASED ON THE REVISED INCOME WHICH WAS OFFERED BY TH E ASSESSEE. IT IS THUS CLEAR THAT THE ADDITION HAS BEEN MADE PURELY ON THE BASIS OF REVISED RETURN FILED BY THE ASSESSEE AND AS SUCH IT CANNOT BE SAID THAT THERE WAS INTENTIONAL CONCEALMENT OF INCOME AS HELD IN THE CA SE OF K.C. BUILDERS VS. ACIT REPORTED IN 265 ITR PAGE 362. IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF SURESHCHANDRA MITTAL ( 2001) 251 ITR 9 (SC) THAT WHEN ASSESSEE OFFERS INCOME EVEN AFTER A SEARC H IN RESPONSE TO NOTICE U/S.148 TO AVOID LITIGATION AND TO BUY PEACE NO PENALTY FOR CONCEALMENT SHOULD BE LEVIED. THE HON'BLE SUPREME C OURT HAS IN FACT CONFIRMED THE ORDER OF M. P. HIGH COURT REPORTED IN 241 ITR PAGE 124 IN WHICH HON'BLE HIGH COURT HAD HELD THAT IN THIS CASE THE SURRENDER WAS MADE AFTER PERSISTENT QUERIES MADE BY THE A O. STIL L IT WAS HELD BY THE COURT THAT NO PENALTY SHOULD BE LEVIED. THEREFORE IN VIEW OF THE DECISIONS DISCUSSED ABOVE NO PENALTY SHOULD BE LEVIED IN ASS ESSEE'S CASE AND THE SAME IS CANCELLED. 4. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR SUPPORTED TH E ORDER OF THE AO AND SUBMITTED THAT THE ASSESSEE FILED REVISED RETU RN ONLY AFTER DETECTION OF CONCEALED INCOME. ON THE OTHER HAND T HE LD. AR ON BEHALF OF THE ASSESSEE SUPPORTED THE ORDER OF THE L EARNED CIT(A) INTER ALIA THE DECISIONS IN THE CASE OF ADDL. CIT VS. PREM CHAND ITA NO.620/AHD/2008 5 GARG (2009) 31 SOT 97 (DELHI) (TM) AND CIT VS. SHA NKERLAL NEBUMAL UTTAMCHANDANI 311 ITR 327(GUJ) WERE RELIED UPON. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE AS ALSO THE DECISIONS RELIED UPON. IT IS WELL SETTL ED THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT A ND AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF ANANTHRAMAN VEERASINGH AIAH & CO. VS. CIT - 123 ITR 457; THE FINDING IN THE ASSESSMENT PROCEEDINGS CANNOT BE REGARDED AS CONCLUSIVE FOR THE PURPOSES OF THE PENALTY PROCEEDI NGS. IT IS THEREFORE NECESSARY TO REAPPRECIATE AND RECONSIDER THE MATTER SO AS TO FIND OUT AS TO WHETHER THE ADDITION MADE IN THE QUANTUM PROCEEDINGS ACTUALLY R EPRESENTS THE CONCEALMENT ON THE PART OF THE ASSESSEE AS ENVISAGED IN SEC. 27 1(1 )(C) OF THE ACT AND WHETHER IT IS A FIT CASE TO IMPOSE THE PENALTY BY I NVOKING THE SAID PROVISIONS. IT IS ALSO WELL SETTLED THAT THE CRITERION AND YARDSTICKS FOR THE PURPOSE OF IMPOSING PENALTY U/S 271(1)(C) OF THE ACT ARE DIFFERENT THA N THOSE APPLIED FOR MAKING OR CONFIRMING THE ADDITIONS. IN THE INSTANT CASE ON R ECEIPT OF INFORMATION FROM THE CIB THE AO SOUGHT TO RECONCILE THE TRANSACTION S IN THE BANK ACCOUNT VIS--VIS BOOKS OF ACCOUNT. HOWEVER SON OF THE ASSESSEE HAVING NO KNOWLEDGE OF ACCOUNTING IN HIS STATEMENT RECORDED U/S 131 OF THE ACT SURRENDERED THE DIFFERENCE BETWEEN TRANSACTIONS IN THE BANK ACCOUNT [RS.30 88 900] AND TURNOVER REFLEC TED IN THE BOOKS[RS.20 52 160] AND ACCORDINGLY AGREED TO PAY T HE TAX ON THE DIFFERENCE. CONSEQUENTLY THE ASSESSEE FILED THE RE VISED RETURN OF INCOME ON 29-11-2005 SHOWING ADDITIONAL TAXABLE INC OME OF RS.10 24 998/-. LATER THE SAID RETURN WAS REGULAR IZED WITH THE ISSUE OF NOTICE U/S 148 OF THE ACT AND DURING THE REASSESSMENT PROCEEDINGS THE ASSESSEE RECONCILED THE TRANSACTI ONS IN THE BANK ACCOUNT VIS--VIS BOOKS OF ACCOUNTS. APPARENTLY AN AMOUNT OF RS. 10 36 740/- HAD ALREADY BEEN DISCLOSED IN THE RETUR N FILED ON 29.11.2005 BEFORE THE ISSUE OF NOTICE U/S 148 OF T HE ACT AND CORRESPONDING TAX HAD ALSO BEEN PAID. UNDISPUTEDLY THE A.O. HAS VERIFIED THE SOURCES OF CASH DEPOSITED IN THE AFORE SAID BANK VIS--VIS BOOKS OF ITA NO.620/AHD/2008 6 ACCOUNTS AND NO DISCREPANCY WAS FOUND IN THE BOOKS OF ACCOUNTS. IN THESE CIRCUMSTANCES EVEN WHEN THE DIFFERENCE OF RS.1036 740/- WAS NOT ENTIRELY INCOME OF THE ASSESSEE THE SON OF THE ASSESSEE SUR RENDERED THE AMOUNT. IN SUCH CIRCUMSTANCES WHEN IT HAD NOT BEEN ESTABLISHE D THAT THE ENTIRE AMOUNT REPRESENTED INCOME MUCH LESS THE CONCEALED INCOME WE ARE OF THE OPINION THAT PENALTY U/S 271(1)(C) COULD NOT BE IMPOSED.. THE HO NBLE MADRAS HIGH COURT IN THE CASE OF CIT V. JAYARAJ TALKIES [1999] 239 ITR 914 HELD THAT MERE AGREEMENT TO ADDITION OF INCOME OR SURRENDER OF INCOME DID NO T IMPLY CONCEALMENT OF INCOME WHERE THE ASSESSEE SURRENDERED CERTAIN AMOU NT TO ASSESSMENT BECAUSE IT WAS UNABLE TO SUBSTANTIATE ITS CLAIMS WITH NECES SARY VOUCHERS. THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. M. GEORGE & BROS. [1986] 160 ITR 511 HELD THAT WHERE THE ASSESSEE FOR ONE REASON OR THE OTHER AGREES OR SURRENDERS CERTAIN AMOUNTS FOR ASSESSMENT THE IMPOSITION OF P ENALTY SOLELY ON THE BASIS OF THE SURRENDER WILL NOT BE WELL-FOUNDED. HONBLE PU NJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V. SURAJ BHAN [2007] 159 TAXMAN 26 WHILE FOLLOWING THE DECISION IN CIT V. SURESH CHANDRA MITTAL [2001] 251 ITR 9 (SC) HELD THAT WHEN AN ASSESSEE FILES A REVISED RETURN SHOWING HIGHER I NCOME AND GIVES AN EXPLANATION THAT HE OFFERED HIGHER INCOME TO BUY PE ACE OF MIND AND AVOID LITIGATION PENALTY CANNOT BE IMPOSED MERELY ON ACC OUNT OF HIGHER INCOME HAVING BEEN SUBSEQUENTLY DECLARED. THE HONBLE APEX COURT IN CASE OF CIT V. SURESH CHANDRA MITTAL [2001] 251 ITR 9/119 TAXMAN 433 U PHELD THE DECISION OF THE MADHYA PRADESH HIGH COURT RENDERED IN THE CASE OF C IT VS. SURESH CHANDRA MITTAL [2000] 241 ITR 124 WHERE IN SIMILAR CIRCUMS TANCES IT WAS HELD THAT THE INITIAL BURDEN LIES ON THE REVENUE TO ESTABLISH THA T THE ASSESSEE HAD CONCEALED THE INCOME HAD FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS TO OFFER AN Y EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH IS FOUND TO B E FALSE BY THE ASSESSING OFFICER. IN THE INSTANT CASE IN PURSUANCE OF THE N OTICE UNDER SECTION 148 TH ASSESSEE STATED THAT THEY HAD ALREADY FILED REVISED RETURN OF INCOME IN WHICH THE ENTIRE INCOME WAS SURRENDERED. THE REVISED ASSESSME NT WAS REGULARIZED BY THE REVENUE. THE AO HAD FAILED TO TAKE ANY OBJECTION TH AT THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN OR HIS E XPLANATION WERE NOT BONAFIDE. ITA NO.620/AHD/2008 7 IN THESE CIRCUMSTANCES THERE APPEARS TO BE NO BAS IS FOR IMPOSITION OF PENALTY ON THE GROUND THAT THE ASSESSEE CONCEALED THE PARTICUL ARS OF INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF ESPECIALLY WHEN IT COULD NOT BE CONCLUSIVELY ESTABLISHED THAT THE AMOUNT SURRENDERED BY THE ASSE SSEE REPRESENTED HIS INCOME WHILE UNDISPUTEDLY THE ASSESSEE RECONCILED T HE TRANSACTIONS IN THE BANK ACCOUNT WITH THE ENTRIES IN HIS BOOKS OF ACCOUNT. 5.1 IN THE CASE OF SHANKERLAL NEBUMAL UTTAM CHANDANI(SUPRA) RELIED UPON ON BEHALF OF THE ASSESSEE WE FIND THAT FACTS WERE DIFFERENT. HONBLE JURISDICTIONAL HIGH COURT IN THA T CASE UPHELD THE FINDINGS OF THE ITAT CANCELING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE GROUND THAT THE SAME INCOME NAMELY THE AMOUNTS IN THE BANK ACCOUNTS ALONG WITH INTEREST THEREON HAD BEEN ASSESSED IN THE HANDS OF THE ASSESSEE AS WELL AS DIFFERENT FAMILY MEMBERS. T HUS WHEN THE DEPARTMENT WAS NOT CERTAIN AS TO THE RIGHT PERSON WHO IS AMENA BLE TO TAX QUA THE SAID INCOME. NO PENALTY WAS EXIGIBLE UNDER THE PROVISIO NS OF SECTION 271(1) (C) OF THE ACT WHEN THE TRIBUNAL HAS FOUND THAT ADMITTEDLY TH E FAMILY MEMBERS HAVE NOT BEEN TREATED AS BENAMIDARS OF THE ASSESSEE NOR HAVE THE FAMILY MEMBERS STATED THAT THEY ARE THE BENAMIDARS HONBLE HIGH COURT CO NCLUDED. THEREFORE RELIANCE ON THIS DECISION IS MISPLACED. 5.2 IN ADDL. CIT VS. PREMCHAND GARG (SUPRA) RELIED ON ON BEHALF OF THE ASSESSEE THIRD MEMBER REITERATED THAT MERELY BECAU SE AN ASSESSEE HAD AGREED TO THE ASSESSMENT THAT CAN NOT BRING IN AU TOMATIC LEVY OF PENALTY. 5.3 AS ALREADY POINTED OUT IN THE INSTANT CAS E UNDISPUTEDLY TRANSACTIONS MENTIONED IN THE BANK ACCOUNT WERE RECONCILED WITH THE BOOKS OF ACCOUNTS AND UNDISPUTEDLY NO DISCREPANCY WAS FOUND. THUS AVAIL ABILITY OF CASH DEPOSITED IN THE BANK IS FULLY SUPPORTED BY ENTRIES OF BOOKS OF ACCOUNTS. THE SURRENDER OF INCOME MADE IN THE REVISED RETURN HAS ALREADY BEEN EXPLAINED AND THE LD. CIT(A) IN OUR OPINION RIGHTLY ACCEPTED THE EXPLANATION OF THE ASSESSEE. THERE IS THEREFORE NOTHING ON RECORD TO SHOW THAT EXPLANATI ON OF ASSESSEE RELATING TO EXCESS AMOUNT SURRENDERED BY THE ASSESSEE WAS NOT BONA FIDE OR FALSE AND THE ITA NO.620/AHD/2008 8 CHARGE OF CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF INCOME HAS NOT BEEN ESTABLISHED. AS POINTED OUT BY THE LD. CIT(A) THERE IS NOTHING TO SUGGEST THAT THE ENTIRE INCOME SO OFFERED WAS CONC EALED INCOME BECAUSE AS PER THE ASSESSEE EVEN THIS SURRENDER WAS MADE BECAUSE H E HAD NO ACCOUNTING KNOWLEDGE. 5.4 IN VIEW OF THE FOREGOING ESPECIALLY WHEN PE NALTY HAS BEEN IMPOSED MERELY ON THE REVISED INCOME WHICH WAS OFFERED BY THE ASSESS EE AND NO MATERIAL HAS BEEN BROUGHT TO OUR NOTICE BY THE REVENUE CONTROVERTING THE FINDINGS OF THE LD. CIT(A) NOR ANY CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTIC E WE HAVE NO ALTERNATIVE BUT TO UPHOLD THE FINDINGS OF THE LD. CIT(A) CANCELING THE PENALTY LEVIED UNDER SECTION 271 (1)(C) OF THE ACT . THEREFORE GROUND NO.1 IS DISMI SSED.. 6. GROUND NOS.2 & 3 BEING GENERAL IN NATURE DO NO T REQUIRE ANY SEPARATE ADJUDICATION AND ARE THEREFORE DISMISSED 7. IN THE RESULT APPEAL IS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT TODAY ON 14-05-2 010 SD/- SD/- (T K SHARMA) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 14 -05-2010 COPY OF THE ORDER FORWARDED TO : 1. CHATRABHUJ HINDUJI SONI PROP. OF SONI CHATRABHUJ HINDUJI & SONS JUNA BAZAR HIMATNAGAR 2. THE ITO S K WARD-3 HIMATNAGAR 3. CIT CONCERNED 4. CIT(A)-X AHMEDABAD 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITA NO.620/AHD/2008 9 ITAT AHMEDABAD