ACIT Circle 46 (1), v. A.Prasad Babu,

ITA 69/DEL/2007 | 2001-2002
Pronouncement Date: 30-07-2010 | Result: Dismissed

Appeal Details

RSA Number 6920114 RSA 2007
Bench Delhi
Appeal Number ITA 69/DEL/2007
Duration Of Justice 3 year(s) 6 month(s) 25 day(s)
Appellant ACIT Circle 46 (1),
Respondent A.Prasad Babu,
Appeal Type Income Tax Appeal
Pronouncement Date 30-07-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 30-07-2010
Date Of Final Hearing 19-07-2010
Next Hearing Date 19-07-2010
Assessment Year 2001-2002
Appeal Filed On 04-01-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL ITA NO.69(DEL)/2007 ASSESSMENT YEAR: 2001-02 ASSISTANT COMMISSIONER OF INCOME SHR I A. PRASAD BABU TAX CIRCLE 46(1) NEW DELHI. VS. C-3A/10-B JANAKPURI NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K. CHAND SR. DR RESPONDENT BY: NO NE ORDER PER K.G. BANSAL : AM IN THIS CASE THE TRIBUNAL HAD PASSED THE ORD ER ON 26.10.2007 IN WHICH THE APPEAL OF THE REVENUE WAS DISMISSED ON THE GROUND THAT THE AO DID NOT HAVE JURISDICTION TO LEVY PENALTY U/S 2 71(1)(C) OF THE INCOME-TAX ACT 1961 AS REQUISITE SATISFACTION FOR INITIA TION OF PENALTY WAS NOT RECORDED IN THE ASSESSMENT ORDER. IN PARTICULA R THE DECISION IN THE CASE OF CIT VS. RAM COMMERCIAL ENTERPRISES LTD. 24 6 ITR 558 AND DEWAN ENTERPRISES VS. CIT AND OTHERS 246 ITR 5 71 WAS FOLLOWED. THE REVENUE FILED APPEAL BEFORE HONBLE HIGH COURT AT DELHI. THE HONBLE HIGH COURT REMANDED THE MATTER BACK TO THE TRIBUN AL FOR DECISION ON ITA NO. 69(DEL)/2010 2 MERITS IN ITA NO. 1266/2008 DATED 9.3.2009 WITH THE FOLLOWING REMARKS:- IN VIEW OF THE AMENDMENTS CARRIED OUT VIDE FINANC E BILL 2008 W.E.F. 01.04.1989 BY INSERTION OF SECTION 271(1B) THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RE MANDED BACK TO THE TRIBUNAL FOR DECISION ON MERITS. PARTIES TO APPEAR BEFORE THE TRIBUNAL ON 05.05.2009. 2. NONE ATTENDED BEFORE THE TRIBUNAL ON BEHALF OF THE ASSESSEE ON 5.5.2009 AS DIRECTED BY THE HONBLE COURT. THE REFORE THE CASE WAS AGAIN FIXED FOR HEARING ON 24.8.2009 WHEN THE L D. COUNSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT. THE MATTER WAS POSTED FO R HEARING ON 29.9.2009 WHEN THE LD. COUNSEL AGAIN SOUGHT ADJOURNMENT. ON 27.01.2010 THE LD. DR SOUGHT ADJOURNMENT AND THE CASE WAS ADJOUR NED TO 28.1.2010 WHEN THE LD. COUNSEL FOR THE ASSESSEE SOUGHT ADJOU RNMENT. THE CASE WAS AGAIN POSTED FOR HEARING ON 27.4.2010 THE CASE WAS ADJOURNED TO 14.06.2010 AT THE REQUEST OF THE LD. COUNSEL F OR THE ASSESSEE. FINALLY THE CASE WAS FIXED FOR HEARING ON 19.7.2010 WHEN AN APPLICATION FOR ADJOURNMENT WAS FILED BUT NONE ATTENDED ON BEHAL F OF THE ASSESSEE. HOWEVER THE FACTS OF THE CASE WERE EXPLAINED BY THE LD. SENIOR DR. HE ALSO FILED A PAPER BOOK CONTAINING 10 PAGES. A S THE ASSESSEE HAS BEEN A HABITUAL DEFAULTER AND DID NOT EVEN OBEY THE ORDER OF HONBLE DELHI ITA NO. 69(DEL)/2010 3 HIGH COURT FOR MAKING APPEARANCE BEFORE THE TR IBUNAL ON 5.5.2009 WE THINK IT FIT TO DISPOSE OFF THE CASE ON MERITS. 3. THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAD FILED THE RETURN OF INCOME ON 20.3.2002 DECLARING TOTAL INCOME OF RS . 26 54 580/-. THE ASSESSMENT WAS COMPLETED ON 29.03.2004 AT TOTAL I NCOME OF RS. 39 35 680/- BY MAKING AN ADDITION OF RS. 12 81 099/- TO THE RETURNED INCOME. THE ADDITION WAS MADE U/S 69A IN RESPECT OF A CR EDIT ENTRY APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH H SBC LTD. IT APPEARS THAT THE ASSESSEE FILED A BELATED APPEAL AGAI NST THE ADDITION MADE BY THE AO. HOWEVER THE APPEAL WAS WITHDRAWN A ND A PETITION WAS MADE TO THE LD. COMMISSIONER OF INCOME-TAX U/S 2 64 OF THE ACT FOR GRANT OF APPROPRIATE RELIEF. THIS PETITION WAS REJECTED B Y THE LEARNED COMMISSIONER OF INCOME-TAX WITH THE FOLLOWING REMARKS:- ON PERUSAL OF THE ASSESSMENT RECORDS FOR THE YEA R UNDER CONSIDERATION I FIND THAT NO DETAILS PERTAINING TO THE SALE OF SHARES OF M/S DATACRAFT DURING THE YEAR HAVE BEE N FILED. IF THE FACTS AS STATED BY THE ASSESSEE ARE TAKEN T O BE THE CORRECT HE SHOULD HAVE FILED THE DETAILS LEADING TO T HE SHORT-TERM CAPITAL LOSS OF RS. 1 04 809/- AS CLAIMED BY HI M IN THE PROCEEDINGS U/S 264. AS PER CLAUSE (2AA) OF SU B-SECTION (1) OF SECTION 49 THE COST OF ACQUISITION OF SHARE S THE VALUE OF WHICH HAS BEEN TAKEN INTO ACCOUNT WHILE COMPUTI NG THE VALUE OF THE PERQUISITES U/S 17(2) IS TO BE THE VALUE OF SUCH SHARES UNDER THAT CLAUSE I.E. THE MARKET VALUE OF SHARES TAKEN FOR THE PURPOSE OF COMPUTATION OF PERQUISITE U/S 17(2). ITA NO. 69(DEL)/2010 4 THE ASSESSEE CLAIMS THAT THE PERQUISITE VALUE OF THESE SHARES WAS TAKEN BY THE EMPLOYER AT RS. 25 00 253/- FO R THE PRECEDING ASSESSMENT YEAR. NO EVIDENCE IN THIS RESPECT HAS BEEN FILED. THE ASSESSEE HAS FILED A LETTER DA TED 26.06.2000 OF M/S DATACRAFT WHICH CONFIRMS THAT CONSEQUENT TO THE EXERCISE OF STOCK OPTIONS BY THE ASSESSEE THE DI FFERENCE BETWEEN THE OPTION PRICE AND THE MARKET PRICE O N THE DATE OF OPTION WAS TAKEN AS PERQUISITE AND ADDED TO THE GROSS SALARY. THE ACTUAL AMOUNT ADDED ON THIS ACCOU NT OR THE ACTUAL AMOUNT OF PERQUISITE COMPUTED ON THIS AC COUNT IS NOT MENTIONED IN THIS CERTIFICATE. IN THESE CIRCUMST ANCES THE ASSESSEE HAS COMPLETELY FAILED TO PROVE THAT THE MARKET VALUE OF THE SHARES HAS BEEN TAKEN INTO ACCOUNT WHILE COMPUTING THE VALUE OF PERQUISITE UNDER CLAUSE (II) OF SE CTION 17 IN HIS HANDS IN THE PRECEDING YEAR. IN THE CIRCUMSTANCE S THE PETITION U/S 264 IS DISMISSED. 3.1 THE AO HAD ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. THESE PROCEEDINGS WERE DISPOSED OFF ON 31 .5.2005 BY LEVYING PENALTY OF RS. 4 49 666/-. THIS ORDER OF PENALTY IS BASED ON THE ORDER PASSED BY THE LD. COMMISSIONER U/S 264 OF THE AC T. WE HAVE ALREADY REPRODUCED THE RELEVANT PORTION OF THE ORDER OF TH E LD. CIT WHICH HAS ALSO BEEN QUOTED BY THE AO IN THE PENALTY ORDER. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(APPEALS)-XXX NEW DELHI WHO DISPOSED OFF THE SAME ON 27.10.2006 IN APPEAL NO. 290/05-06 DEL ETING THE PENALTY. THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(APPEA LS) IS REPRODUCED BELOW FOR READY REFERENCE:- I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE REASONING OF THE AO AND THE SUBMISSIONS OF THE ITA NO. 69(DEL)/2010 5 ASSESSEE. AFTER CONSIDERING THE SAME I AM OF TH E OPINION THAT THE ASSESSEE HAD GOT THE STOCK OPTION PROCEEDS TAXED AS PERQUISITE IN ASSESSMENT YEAR 2000-01 AND THE DETAILS OF THE SAME ARE AS UNDER:- SALE PROCEED RS. 23 97 544/- LESS AMOUNT DEDUCTION: COST OF SHARES 4 19 602/- INTEREST 5 679/- D.D. CHARGES 3 855/- TDS ON PERQ. 6 87 308/- RS. 11 16 644/- BALANCE AMOUNT RS. 12 81 100/- IT IS THE ABOVE PROCEEDS WHICH HAVE BEEN DEPOSIT ED IN THE BANK ACCOUNT AND IN MY OPINION THE SAME STAN D DULY EXPLAINED. AS SUCH THE ORDER OF THE AO LEVYING PENALTY IS BAD TO THIS EXTENT AS THE ENTIRE TRANSACTION H AD BEEN DISCLOSED TO THE DEPARTMENT. 4. THE CASE OF THE LD. DR BEFORE US IS THAT THE AM OUNT OF RS. 12 81 099/- CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE ON 29.05.2000 HAS NOT BEEN SATISFACTORILY EXPLAINED WHILE ONUS FOR SUCH EX PLANATION WAS ON THE ASSESSEE. IN THIS CONNECTION A COPY OF THE BANK ACCOUNT WAS PLACED BEFORE US AT PAGE NO. 4 OF THE PAPER BOOK. PAGE NO. 10 OF THE PAPER BOOK SHOWS THAT IN FINANCIAL YEAR 1999-00 A SUM OF R S. 20 82 751/- WAS SHOWN TO BE THE PERQUISITE VALUE OF EMPLOYEE STOCK OPT ION. HOWEVER THIS PAGE HAS NOT BEEN SIGNED BY A RESPONSIBLE PERSON ON BEHALF OF THE EMPLOYER DATACRAFT RPG LTD. MUMBAI. THE TOTAL I NCOME OF RS. 25 79 653/- COMPUTED AFTER TAKING THE AFORESAID PERQUISITE INTO ACCOUNT ITA NO. 69(DEL)/2010 6 WAS SHOWN TO BE THE GROSS SALARY FOR ASSESSMENT YEAR 2000-01 ON WHICH TAX AMOUNTING TO RS. 7 96 913/- WAS DEDUCTED. TH IS CERTIFICATE HAS BEEN DULY SIGNED BY MR. GIRISH JUNEJA HEAD-FINANCE & ACCOUNTS. THE CERTIFICATE HAS BEEN PLACED IN THE PAPER BOOK ON PAGE NOS. 6 AND 7. FURTHER PAGE NO. 8 OF THE PAPER BOOK SHOWS THAT 7000 SHARES OF DATACRAFT RPG LTD. WERE SOLD THROUGH DBS SECURITIES SINGAP ORE PTE LTD. ON 4.4.2000 FOR A CONSIDERATION OF US$ 55300. AFTE R MAKING VARIOUS DEDUCTIONS THE AMOUNT OF US$ 54995.85 WAS PAYAB LE TO THE ASSESSEE. PAGE NO. 9 OF THE PAPER BOOK SHOWS THE COMPUTATI ON OF PERQUISITE ON EXERCISING STOCK OPTION IN FINANCIAL YEAR 1999-0 0. IT IS SEEN THAT THE ASSESSEE EXERCISED OPTION TO PURCHASE 7000 SHAR ES AT US$ 1.375 PER SHARE AT THE TOTAL COST OF US$ 9625 (INR 4 19 602 /-). THE MARKET PRICE OF THE SHARE ON THE DATE OF EXERCISE OF OPTION ON 17.03.2000 WAS US$ 8.2 PER SHARE AND THUS THE VALUE OF 7000 SHARES AMOUNTED TO US$ 57400/-. THE DIFFERENCE BETWEEN THE PRICE PAID AND THE MARKET PRICE WAS WORKED OUT AT RS. 20 82 751/-. AS MENTIONED EARLIER TH IS AMOUNT HAS BEEN TAKEN INTO CONSIDERATION FOR THE PURPOSE OF TAX DEDUC TION AT SOURCE FOR ASSESSMENT YEAR 2000-01. ITA NO. 69(DEL)/2010 7 4.1 THE PAPER BOOK FILED BY THE LD. DR CONTAINS THE WRITTEN EXPLANATION OF THE ASSESSEE DATED 25.5.2005 FURN ISHED BEFORE THE AO. IT IS MENTIONED THAT IN FINANCIAL YEAR 1999-00 ON 17.3.2000 OPTION WAS EXERCISED TO PURCHASE 7000 SHARES OF DATACRAFT AT A TOTAL VALUE OF US$ 9625. THIS AMOUNT WAS ARRANGED AS A LOAN F ROM DBS SECURITIES SINGAPORE PTE LTD. BY THE EMPLOYER OF THE ASSESSE E. THE MARKET VALUE OF THE SHARES ON THE DATE OF EXERCISE OF OPTION WAS US$ 57400/-. THE DIFFERENCE BETWEEN THE MARKET VALUE AND THE OP TION PRICE AMOUNTING TO RS. 20 82 751/- WAS INCLUDED IN THE SALARY AND TAX @ 30% THEREON AMOUNTING TO RS. 6 87 308/- WAS PAID. THIS AMOUN T IS INCLUDED IN THE TDS CERTIFICATE. THE SHARES WERE SOLD ON 7.4.2000 F OR US$ 54995.85. THE SHARES WERE SOLD THROUGH DBS SECURITIES SINGAP ORE PTE LTD. FROM THE SALE PROCEEDS THIS BANK DEDUCTED THE COST OF A CQUISITION OF SHARES- RS. 4 19 602/- INTEREST THEREON- RS. 5 679/- TDS AMO UNT- RS. 6 87 308/- AND DEMAND DRAFT CHARGESRS. 3 855/-. THE BALANCE A MOUNT OF RS. 12 81 099/- WAS TRANSFERRED TO THE ASSESSEES ACCOUNT WITH HSBC LTD. ON 29.5.2000. THE SALE RESULTED INTO LOSS OF R S. 1 04 977/-. THUS THERE IS NO QUESTION OF CONCEALING ANY INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. ACCORDINGLY IT WAS SUBMITTED THAT T HE PENALTY MAY BE DROPPED. ITA NO. 69(DEL)/2010 8 4.2 THE CASE OF THE LD. DR IS THAT THERE ARE CER TAIN GAPS IN THE EVIDENCES FILED IN THE COURSE OF ASSESSMENT OR PENALTY PROCEEDINGS. THERE IS NO EVIDENCE ON RECORD THAT THE AMOUNT OF RS. 1 2 81 099/- CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE REPRESENTED NET AM OUNT REMITTED BY DBS SECURITIES SINGAPORE PTE LTD. FURTHER THERE IS N O EVIDENCE THAT PERQUISITE AMOUNT OF RS. 20 82 751/- WAS OFFERED FOR TAXATI ON AS THE TDS CERTIFICATE DOES NOT SHOW THIS AMOUNT SEPARATELY AND THE AN NEXURE FILED IN THIS BEHALF HAS NOT BEEN SIGNED BY ANY RESPONSIBLE PERSON OF THE EMPLOYER- COMPANY. THE ONUS TO SATISFACTORILY PROVE T HE NATURE AND SOURCE OF THE CREDIT IN THE BANK ACCOUNT LIES ON THE ASSESSE E AS HELD IN THE CASE OF CIT VS. A. SREENIVASA PAI (2000) 242 ITR 29 (KER ALA) AND CIT VS. GURBACHAN LAL (2001) 250 ITR 157 (DEL). THEREFOR E IT IS URGED THAT THE ORDER OF THE LD. CIT(APPEALS) MAY BE SET ASIDE A ND THAT OF THE AO MAY BE RESTORED. 5. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IT IS A MATTER OF FACT ON RECORD THAT THE ASSESSEE WAS PAID SALARY OF RS. 4 95 175/- IN THIS YEAR AGAINST SAL ARY OF RS. 25 79 653/- PAID IN FINANCIAL YEAR 1999-00. THE HUGE DIFFERENCE IN THESE AMOUNTS CAN BE ATTRIBUTED ONLY TO PERQUISITE ARISING FROM THE EXERCISE OF STOCK OPTION. ITA NO. 69(DEL)/2010 9 THEREFORE EVEN IN ABSENCE OF SIGNATURES OF ANY RESPONSIBLE PERSON OF THE EMPLOYER IT CAN BE REASONABLY INFERRED THAT TH E PERQUISITE HAS BEEN INCLUDED IN THE SALARY OF RS. 25 79 653/- OFFERE D FOR TAXATION IN THE IMMEDIATELY PRECEDING YEAR. FURTHER THERE IS EVIDENCE ON RECORD THAT 7000 SHARES WERE SOLD THROUGH DBS SECURITIES SINGAPORE PTE LTD. AND THE NET AMOUNT PAID TO THE ASSESSEE AFTER DEDUCTING BROKERAGE WAS US$ 54995.85. THERE IS A FURTHER GAP IN THE E VIDENCE IN AS MUCH AS THERE IS NO CERTIFICATE FROM THIS BANK THAT PURC HASE CONSIDERATION WAS PAID BY IT. HOWEVER THE ASSESSEE HAS FURNISHED FULL CALCULATION LEADING TO NET AMOUNT OF RS. 12 81 099/- BECOMING PAYABLE TO HIM AFTER DEDUCTING LOAN INTEREST AND DD CHARGES. IN SPITE OF A VERY C LEAR EXPLANATION THE AO DID NOT MAKE ANY ENQUIRY FROM THE BANKERS OF THE ASSESSEE ABOUT THE SOURCE OF CREDIT OF RS. 12 81 099/-. SUCH AN ENQ UIRY WOULD HAVE CLEARLY SHOWN THE SOURCE OF THE RECEIPT. ON THE OTHER HA ND THE ASSESSEE HAD LEFT THE EMPLOYMENT OF DATACRAFT RPG LTD. IN THIS Y EAR AND JOINED JUNIPER NETWORK INDIA PVT. LTD. THEREFORE IT WAS DIF FICULT FOR HIM TO OBTAIN CONNECTING DOCUMENTS AND CLARIFICATION REGARDIN G INCLUSION OF PERQUISITE VALUE IN THE GROSS SALARY FOR FINANCIAL YEAR 1999-00 AND ARRANGEMENT OF LOAN BY IT FROM DBS SECURITIES SINGAPORE PTE L TD. ON PERUSAL OF VARIOUS EVIDENCES FILED BY THE ASSESSEE BEFORE THE AO THE EXPLANATION ITA NO. 69(DEL)/2010 10 TENDERED ON 26.5.2005 APPEARS NOT ONLY TO BE PLAUSIBLE BUT ALSO CORRECT. 5.1 IN THE CASE OF A.SREENIVASA PAI (SUPRA) T HE FACTS WERE QUITE DIFFERENT. THE ASSESSEE FIRM WAS CARRYING ON THE BUSINESS IN RICE SUGAR ETC. THE RETURN OF INCOME FOR ASSESSMENT YEAR 1987-88 WAS FILED ON 29.6.1987. IN THE COURSE OF HEARING SEVERAL BOOKS OF ACCOUNT WERE IMPOUNDED IN ORDER TO ASCERTAIN THE CORRECTNESS O F ENTRIES MADE THEREIN. SUMMONS WERE ISSUED TO VARIOUS PERSONS AND ALSO REPORT OF THE INSPECTOR WAS OBTAINED IN RESPECT OF THE TRANSACTIONS SHO WN IN THE BOOKS OF ACCOUNT. IT WAS AT THIS STAGE THAT THE AS SESSEE FILED A REVISED RETURN OFFERING ADDITIONAL INCOME OF RS. 3 24 650/- FOR TAXATION UNDER THE HEAD OTHER SOURCES. THE AO LEVIED PENALTY ON THIS AMOUNT. THE HONBLE COURT MENTIONED THAT ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE THE SECOND RETURN BY THE ASSESSEE COULD NOT BE C ONSIDERED TO BE A REVISED RETURN AS SUCH A RETURN CAN BE MADE ONLY TO CORRECT OMISSION OR WRONG STATEMENT IN THE ORIGINAL RETURN. A REVISED RET URN CANNOT BE FILED TO DISCLOSE THE CONCEALED INCOME. IT WAS HELD THAT THE ONUS TO SHOW THAT OMISSION OR WRONG STATEMENT WAS DISCOVERED SUB SEQUENT TO FILING THE ORIGINAL RETURN IS ON THE ASSESSEE WHICH CAN B E DISCHARGED ONLY WITH ITA NO. 69(DEL)/2010 11 REFERENCE TO EVIDENCE ON RECORD. THE FACTS OF THE CASE SHOW THAT THE FILING OF REVISED RETURN WAS ONLY AN ATTEMPT TO PLUG THE LOOPHOLES AFTER THEIR DETECTION. THUS THE LEVY OF PENALTY WAS CONFIRMED. THE INSTANT CASE DOES NOT INVOLVE ANY REVISED RETURN. ON T HE OTHER HAND THE EVIDENCE ON RECORD SUGGESTS CLEARLY THAT SUBSTAN TIAL AMOUNT WAS OFFERED FOR TAXATION IN ASSESSMENT YEAR 2000-01 WHI CH COULD BE ONLY ON ACCOUNT OF PERQUISITE ARISING FROM EXERCISE OF THE OPTION. THERE IS ALSO EVIDENCE ON RECORD TO SHOW THE SALE OF SHARES. THE SALE PROCEEDS HAVE NOT BEEN CREDITED TO ANY OTHER ACCOUNT OF THE ASSESSE E WHICH ALSO LEADS TO A CLEAR INFERENCE THAT THE NET AMOUNT OF RS. 12 81 099/- WAS RECEIVED IN RESPECT OF SALE OF SHARES. 5.2 IN THE CASE OF GURBACHAN LAL (SUPRA) THE FACTS ARE THAT THE ASSESSEE FILED RETURN OF INCOME SHOWING TOTAL IN COME OF RS. 5 000/- FOR ASSESSMENT YEAR 1966-67. IN THE COURSE OF SEARC H A SUM OF RS. 48 500/- WAS RECOVERED FROM HIS HOUSE. THE MONEY WAS S OUGHT TO BE EXPLAINED AS LOANS FROM SHRI BABU LAL AND JAIN BULLION COMP ANY AND SALE PROCEEDS OF SILVER COINS. THE AO DID NOT ACCEPT THIS EXPLANATION AND ADDED THE AMOUNT TO THE INCOME OF THE ASSESSEE. THE AAC C ONFIRMED THE ADDITION. HOWEVER THE TRIBUNAL GRANTED A RELIEF OF RS. 2 3 374/- IN RESPECT OF SALE ITA NO. 69(DEL)/2010 12 OF SILVER COINS AS IT WAS SUPPORTED BY ORA L AND DOCUMENTARY EVIDENCES. PENALTY UNDER SECTION 271(1)(C) WAS LEVIED. THE TRIBUNAL DELETED THE PENALTY BY SAYING THAT THE ONUS TO P ROVE CONCEALMENT OF INCOME WAS ON THE REVENUE. HOWEVER THE HONBLE COURT REVERSED THIS DECISION BY REFERRING TO THE DECISION INTER-ALIA IN THE CASE OF CIT VS. MUSSADILAL RAM BHAROSEY (1987) 165 ITR 14. IT W AS HELD THAT THE PRINCIPLE ENUNCIATED IN THE CASE OF ANWAR ALI (1970) 76 ITR 696 (SC) IS NOT APPLICABLE TO THE CASES WHERE THE PROVI SION CONTAINED IN THE EXPLANATION IS ATTRACTED AS HELD IN THE CASE OF MUSSADILAL RAM BHAROSEY. THE ASSESSEE HAS FURNISHED AN EXPL ANATION WHICH HAD TO BE CONSIDERED BY THE REVENUE AUTHORITIES. THE EXP LANATION WAS CONSIDERED AND WAS NOT FOUND TO BE SATISFACTORY. THEREFORE THE MATTER WAS REMANDED TO THE TRIBUNAL TO DEAL WITH THE MERIT S ON AFORESAID PRINCIPLES. THE FACTS OF THE INSTANT CASE ARE DISTINGUISHA BLE AS NO MONEY HAS BEEN FOUND IN POSSESSION OF THE ASSESSEE. IN ANY CASE THE ASSESSEE HAS FURNISHED AN EXPLANATION. WHAT IS TO BE SEEN IS WHETHER THE EXPLANATION IS SATISFACTORY. WE FIND THAT EVIDENCE REG ARDING SALE OF 7000 SHARES OF DATACRAFT IS ON RECORD. THE QUESTION WHICH NATURALLY ARISES IS WHERE HAS THE MONEY GONE? THE CASE OF THE ASSES SEE IS THAT AFTER DEDUCTING PURCHASE CONSIDERATION INTEREST TAX DD CHARGES ETC. DBS ITA NO. 69(DEL)/2010 13 SECURITIES SINGAPORE PTE LTD. REMITTED NET AMOUNT OF RS. 12 81 099/- TO THE ASSESSEE CREDITED IN HIS BANK ACCOUNT W ITH HSBC LTD. ACCORDING TO US THIS EXPLANATION IS BONA-FIDE AS NO EVI DENCE TO THE CONTRARY EXISTS ON RECORD THAT THE SALE PROCEEDS WERE DEPOSI TED ELSEWHERE. THEREFORE WE ARE ALSO OF THE VIEW THAT THIS IS NOT A FI T CASE FOR LEVY OF PENALTY. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS D ISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 TH JULY 2010. SD/- SD/- (C.L. SETHI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 30TH JULY 2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- SHRI A. PRASAD BABU NEW DELHI. ACIT CIRCLE 46(1) NEW DELHI. CIT(A) CIT THE DR ITAT NEW DELHI. ASSISTANT REGISTRAR.