JASWINDER SINGH BAJAJ, MUMBAI v. C.I.T,(APPEALS) CENTRAL VIII, MUMBAI

ITSSA 71/MUM/2008 | misc
Pronouncement Date: 30-04-2010 | Result: Allowed

Appeal Details

RSA Number 7119916 RSA 2008
Assessee PAN AERPB2252G
Bench Mumbai
Appeal Number ITSSA 71/MUM/2008
Duration Of Justice 1 year(s) 10 month(s) 6 day(s)
Appellant JASWINDER SINGH BAJAJ, MUMBAI
Respondent C.I.T,(APPEALS) CENTRAL VIII, MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 30-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 30-04-2010
Date Of Final Hearing 22-04-2010
Next Hearing Date 22-04-2010
Assessment Year misc
Appeal Filed On 24-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD (AM) IT(SS)A NO.71/MUM/2008 ASSESSMENT YEAR : BLOCK PERIOD : 01.04.89 TO 10.12.98 JASWINDER SINGH BAJAJ 622 DURGA NIWAS KHAR PALI ROAD KHAR (W) MUMBAI-400 052. ..( APPELLANT ) P.A. NO. (AERPB 2252 G) VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-33 MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI K.K. LALKAKA RESPONDENT BY : SHRI N. K. BALODIA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 28.4.2008 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR PERTAINING TO BLOCK PERIOD 1.4.1989 TO 10.12.19 98 SUSTAINING THE LEVY OF PENALTY IMPOSED BY THE AO U/S.158 BFA(2) OF THE IT ACT 1961 (THE ACT) AMOUNTING TO RS.3 10 096/-. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL DERIVES INCOME FROM MANUFACTURING AND SALE OF PANEER AND IT(SS)A NO.71/M/08 A.Y:BP 2 OTHER MILK PRODUCTS. THE ASSESSEE WAS ALSO A PARTNER IN TH E FIRM M/S. PUNJAB SINDH PANEER CENTRE ALONG WITH HIS MOTHER LAT E MRS. HARJEET KAUR BAJAJ WHICH STOOD DISSOLVED ON 6.9.97 ON ACCOUNT OF DEATH OF MRS. HARJEET KAUR BAJAJ. ON DISSOLUTION OF THE FIRM THE ASSE SSEE TOOK OVER THE BUSINESS OF THE SAID FIRM AS PROPRIETOR. ON 10.12. 98 A SEARCH AND SEIZURE OPERATION WAS CONDUCTED AT THE BUSINESS AND RESIDE NTIAL PREMISES OF THE ASSESSEE AND HIS BROTHER SHRI SWARNJIT SI NGH BAJAJ. DURING THE COURSE OF SEARCH BOOKS OF ACCOUNT AND OTHER DO CUMENTS WERE SEIZED. IN RESPONSE TO NOTICE ISSUED U/S.158 BC OF THE ACT THE ASSESSEE FILED RETURN FOR THE BLOCK PERIOD DECLARING UNDI SCLOSED INCOME AT RS.3 39 693/- ON ACCOUNT OF LOAN GIVEN TO SHRI V.D. MOPERKAR AMOUNTING TO RS.1 60 000/- AND PROFIT OF RS.1 79 693/ - ON UNRECORDED SALE FOR THE PERIOD FROM 1.11.1998 TO 10.12.98. HOWEV ER THE ASSESSMENT WAS COMPLETED AT AN UNDISCLOSED INCOME OF RS.76 60 000/- VIDE ORDER DATED 29.12.2000 PASSED U/S.158 BC OF THE ACT. ON APPEAL THE LD. CIT(A) WHILE CONFIRMING THE UNDISCL OSED INCOME DETERMINED BY THE AO FOR THE BLOCK PERIOD PERTAINING TO THE ASSESSMENT YEAR 1999-2000 UP TO 10.12.2000 RS.8 56 518/- DELETED THE ADDITION OF RS.68 03 482/- AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. ON FURTHER APPEAL BY THE ASSESSEE AND REVENUE BEFORE THE TRIBUNAL THE TRIBUNAL IN BATCH OF APPEALS INCLUDING THE APPEALS PERTAINING TO THE ASSESSEE BEFORE US IN ACIT VS. SHRI JA SWINDER SINGH IT(SS)A NO.71/M/08 A.Y:BP 3 BAJAJ AND VICE VERSA IN IT(SS)A NO.270 & 252/MUM/2001 AND OTHERS FOR THE BLOCK PERIOD 1.4.89 TO 10.12.98 VIDE ORDER D ATED 21.5.2007 HAS UPHELD THE ORDER PASSED BY THE LD. CIT(A). ON FURTHER APPEAL BY THE REVENUE BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. JASWINDER SINGH BAJAJ THEIR LORDSHIPS VIDE JUDGMENT IN INCOME TAX APPEAL NO.1310 OF 2007 AND 1311 OF 2007 DATED 21.7. 2008 HAS UPHELD THE ORDER OF THE TRIBUNAL BY HOLDING THAT THE TRIBU NAL HAS RIGHTLY OBSERVED THAT ONCE THE ASSESSEE HAS IMMEDIATELY RETRACTED HIS EARLIER STATEMENT UNLESS THERE IS SOME OTHER CORROBORATIVE EVIDEN CE TO THE CONTRARY THE SAME CANNOT BE RELIED UPON. FURTHER THEIR LORDSHIPS HAVE UPHELD THE ORDER OF THE TRIBUNAL WHEREIN THE TRIBUN AL HAS CONFIRMED THE ORDER OF THE LD.CIT(A) HOLDING THAT THE ADDITIO N OF RS.75.00 LACS BY THE AO AS UNDISCLOSED INCOME AND NET PROFIT ON SUPPRESSED SALE ON THE BASIS OF THE STATEMENT WAS FOUND UNJUSTIFIED AND THE SAM E WAS DELETED. 3. WHILE COMPLETING THE ASSESSMENT THE AO ALSO INITIATED PENALTY PROCEEDING U/S.158BFA OF THE ACT. IN RESPONSE TO NOTICE TO SHOW CAUSE AS TO WHY PENALTY U/S.158BFA(2) SHOULD NOT BE IMPO SED IT WAS INTERALIA SUBMITTED BY THE ASSESSEE THAT THE ASSESSMENT IS BASED ON ESTIMATE INASMUCH AS OF SUPPRESSION OF SALES WAS FOUND FOR 40 DAYS FROM 1.11.1998 TO 10.12.1999 PROFIT RELATING THERE TO OF RS.1 79 693/- IT(SS)A NO.71/M/08 A.Y:BP 4 HAS ALREADY BEEN DISCLOSED. HOWEVER THE MULTIPLICATION F ORMULA HAS BEEN ADOPTED FOR THE ASSESSMENT YEAR 1999-00 AND THE AD DITION OF RS.8 56 518/- HAS BEEN MADE BY APPLYING THE MULTIPLICA TION FORMULA WHICH IS PURELY ON ESTIMATE BASED ON CONJECTURE AND GUESS WORK. IN COURSE OF SEARCH NO MATERIAL SHOWING SUPPRESSION OF THE SA LES FOR THE ENTIRE AND COMPLETE BLOCK PERIOD WAS FOUND. THE ASSESSEE AFTER RELYING ON CERTAIN DECISIONS FOR THE PROPOSITION THAT THE ASSESSMEN T COULD BE MADE ON THE BASIS OF EVIDENCE DOCUMENTS MATERIAL OR I NFORMATION FOUND DURING THE SEARCH AND NO PENALTY CAN BE IMPOSED WHEN THE ASSESSMENT IS BASED ON THE BASIS OF ESTIMATES REQUESTED TO DRO P THE PENALTY. HOWEVER THE AO WHILE RELYING ON THE OBSERVA TIONS MADE IN THE ASSESSMENT ORDER IN THE ORDER OF THE LD. CIT(A) AN D BY THE TRIBUNAL IN THE QUANTUM APPEAL WAS OF THE VIEW THAT THE ASSESSEE'S CONTENTION THAT THE ADDITION IS MADE PURELY ON ESTIMAT E BASIS IS NOT ACCEPTABLE AND IT IS A FIT CASE FOR PENALTY IMPOSED PEN ALTY OF RS.3 10 096/- VIDE ORDER DATED 26.12.2007 PASSED U/S.15 8BFA(2) OF THE ACT. ON APPEAL THE LD. CIT(A) WHILE OBSERVING T HAT THE STATEMENTS OF VARIOUS PERSONS RECORDED AT THE TIME OF SEARCH REPRODU CED BY THE AO IN PARA 4 TO 20 OF THE ASSESSMENT ORDER ALSO SHOW THAT THE APPELLANT WAS INDULGING IN UNRECORDED SALES IN THE BOO KS OF ACCOUNT THEREFORE IT CAN NOT BE SAID THAT THE AO MADE THE AD DITION PURELY ON ESTIMATE BASIS AND FURTHER THE ITAT HAS HELD THAT THE ADDITION MADE BY IT(SS)A NO.71/M/08 A.Y:BP 5 THE AO IS ON THE BASIS OF MATERIAL FOUND DURING THE BA SIS OF SEARCH UPHELD THE PENALTY IMPOSED BY THE AO. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SU STENANCE OF PENALTY IMPOSED BY THE AO RS.3 10 096/-. 5. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE TH E AO AND THE LD. CIT(A) DISTINGUISHED THE DECISIONS RELIED ON BY THE TRIBUNAL IN QUANTUM APPEAL IN CST VS. H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271(SC) AND DR. SURENDERNATH REDDY VS. ACIT (2000) 6 8 TTJ (HYD.) 384. HE FURTHER SUBMITS THAT THE TRIBUNAL IN VARIOUS CA SES HAS CONSISTENTLY HELD THAT UNDER THE BLOCK ASSESSMENT THE UN DISCLOSED INCOME SHALL BE COMPUTED ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SEARCH. SINCE IN THE ASSESSEE'S CASE EXCEPT THE MATER IAL FOUND IN RESPECT OF UNRECORDED SALES FOR THE PERIOD 1.1 1.1998 TO 10.12.98 NO OTHER MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND THE ASSESSEE ON THE BASIS OF THE SAID MATERIAL HAS DISCLOSED THE UNDISCLOSED INCOME OF RS.1 79 693/- AND LOAN OF RS.1 60 000/- IN THE BLOCK RETURN FILED BY THE ASSESSEE THEREFORE THERE IS NO CONCEALMENT ON THE PART OF THE ASSESSEE. HE FURTHER SUBMITS THAT THE ESTIMATION OF IT(SS)A NO.71/M/08 A.Y:BP 6 INCOME BY APPLYING THE MULTIPLICATION FORMULA FOR THE SAID PERIOD IS PURELY ON ESTIMATE BASIS HAVING TWO OPINIONS THEREFORE NO PENALTY IS LEVIABLE. THE LD. COUNSEL FOR THE ASSESSEE WITHOUT SHOWI NG AS TO HOW THE UNDERNOTED DECISIONS ARE APPLICABLE IN THE CASE OF TH E ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS: A) SAMRAT BEER VS. ASSTT. COMMISSIONER OF INCOME TAX 75 ITD 19(PUNE) (TM) B) R.M.L. MEHTROTA VS. ASSTT. COMMISSIONER OF INCOME TAX (1999) 68 ITD 288 (ALL.) C) JAYA SHETTY 69 ITD 336 (MUMBAI) E) CIT VS. RAM SINGANI DAL MILLS 254 ITR 264 (MP) F) CIT VS. DHILLON RICE MILLS 256 ITR 447 (PUNJ) G) CIT VS. METAL PRODUCTS 150 ITR 714 (PUNJAB) H) CIT VS. SUBHAS TRADING CO. 221 ITR 110 (GUJARAT) I) CIT VS. INDIAN BANKERS 240 ITR 443 (MADRAS) J) MALA DAYANITHI VS. DCIT 270 ITR (AT) 56 (BANG.) HE THEREFORE SUBMITS THAT THE PENALTY IMPOSED BY THE A O AND SUSTAINED BY THE LD. CIT(A) BE DELETED. 6. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE AO AND THE LD.CIT(A) FURTHER SUBMITS THAT SINCE THE ASSESSE E HAS FAILED TO DISCLOSE HIS CORRECT INCOME AS DETERMINED BY THE AO CONF IRMED BY THE LD. CIT(A) AND THE TRIBUNAL THE ASSESSEE IS LIABLE TO PENALTY U/S.158 BFA(2) OF THE ACT. THE RELIANCE WAS ALSO PLACED ON THE FOLLOWING DECISIONS : A) UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS (2 008) 306 ITR 277 (SC) IT(SS)A NO.71/M/08 A.Y:BP 7 B) B.A. BALASUBRAMANIAM AND BROS. CO. VS. CIT (1999) 2 36 ITR 977 (SC) 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS THE PENALTY U/S.158BFA(2) WAS IMPOSED BY THE AO ON THE AMOUNT OF ADDITION OF UNDISC LOSED INCOME OF RS.5 16 827/- (INCOME FINALLY ASSESSED RS.8 56 518 RS.3 39 693 UNDISCLOSED INCOME SHOWN). WE FURTHER FIND THAT THE AB OVE ADDITION WAS MADE ON ACCOUNT OF UNACCOUNTED SALES OF RS.8 98 466/- F OR THE PERIOD 1.11.1998 TO 10.12.1998 FOUND DURING THE CO URSE OF SEARCH. ON THE BASIS OF SAID SALES ADMITTED BY THE ASSESSEE THE AO WORKED OUT THE SUPPRESSED SALES FOR THE ASSESSMENT YEAR 1999-00 AT RS.39 26 978/- BY MULTIPLYING THE RECORDED SALES BY THE FACTOR OF 2.44 TO ARRIVE AT THE ALLEGED ACTUAL SALES AND THEREAFTER H E APPLIED NET PROFIT RATIO OF 20% AND DETERMINED THE UNDISCLOSED INCOME OF RS.8 56 518/-. ON APPEAL THE SAME HAS BEEN CONFIRMED BY THE LD. CIT(A ) BY RELYING ON THE DECISIONS IN CST VS. H.M. ESUFALI H.M. ABDULALI ( 1973) 90 ITR 271(SC) AND DR. SURENDERNATH REDDY VS. ACIT (2000) 6 8 TTJ (HYD.) 384 AND ALSO UPHELD BY THE TRIBUNAL. AT THIS STAGE THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ABOVE DECISIONS ARE DISTINGUISHA BLE AND NOT APPLICABLE TO THE FACTS OF THE ASSESSEE'S CASE. HOWEVER WE FIND THAT THE TRIBUNAL IN THE QUANTUM APPEAL AFTER CONSI DERING THE ABOVE IT(SS)A NO.71/M/08 A.Y:BP 8 DECISIONS HAS UPHELD THE ORDER OF THE LD. CIT(A) AND TH E QUANTUM DETERMINED BY THE TRIBUNAL HAS BECOME FINAL. WITH RE GARD TO LEVY OF PENALTY ON THE ABOVE UNDISCLOSED INCOME WE FIND THAT T HERE IS NO DISPUTE THAT THE ASSESSEE HAS DISCLOSED HIS UNACCOUNTED SALES AND INCOME THEREON IN THE BLOCK RETURN. THE AO HAS FURTHE R ESTIMATED THE ASSESSEE'S SALES AND APPLIED MULTIPLICATION FORMULA TO DETE RMINE THE UNDISCLOSED INCOME. HENCE IT IS A CASE OF ESTIMATION OF IN COME. IT IS SETTLED LAW THAT UNDER THE BLOCK ASSESSMENT THE UNDISCLOSED INCOME SHALL BE COMPUTED ON THE BASIS OF MATERIAL FOUND DURIN G THE COURSE OF SEARCH. THIS VIEW ALSO FINDS SUPPORT FROM THE RECENT DECISI ON OF THE HONBLE ALLAHABAD HIGH COURT IN CIT VS. R.M.L. MEHROTR A (2010) 320 ITR 403(ALLD.) WHEREIN THEIR LORDSHIPS WHILE HOLDING THAT THE PRINCIPLE LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 IS NOT APPLICABLE TO THE F ACTS OF THE PRESENT CASE HELD THAT THE BEST JUDGMENT ASSESSMENT WHICH HAD BE EN MADE ON THE BASIS OF SEARCH ALONE COULD NOT HAVE BEEN MADE AS THE BLOCK ASSESSMENT IN THE CASE OF SEARCH HAS TO BE CONFINED TO INCOME ATTRIBUTABLE TO THE MATERIAL AND EVIDENCE FOUND THER EIN OR OTHER INFORMATION AVAILABLE WITH THE AO RELATING TO SUCH MA TERIALS. FURTHER IT IS ALSO SETTLED LAW THAT PENALTY UNDER SECTION 271(1)(C) IS A CIVIL LIABILITY AND THE REVENUE IS NOT REQUIRED TO PROVE W ILLFUL CONCEALMENT AS HELD BY THE HONBLE SUPREME COURT IN CASE THE OF UNION OF INDIA VS. IT(SS)A NO.71/M/08 A.Y:BP 9 DHARMENDRA TEXTILES AND PROCESSORS (2008) 306 ITR 277(SC ). HOWEVER EACH AND EVERY ADDITION MADE IN THE ASSESSMENT CA NNOT AUTOMATICALLY LEAD TO LEVY OF PENALTY FOR CONCEALMENT OF INCOME. A CASE FOR IMPOSITION OF PENALTY HAS TO BE EXAMINED IN TE RMS OF THE PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C). SECON DLY IT IS ALSO A SETTLED LEGAL POSITION THAT PENALTY PROCEEDINGS ARE DI FFERENT FROM ASSESSMENT PROCEEDINGS. THE FINDING GIVEN IN THE ASSESSMENT THOUGH IS GOOD EVIDENCE BUT THE SAME IS NOT CONCLUSIVE IN PENALTY PROCEEDINGS. 8. IN B.A. BALASUBRAMANIAM AND BROS. CO. (SC) (SUPRA) IT HAS BEEN HELD (PAGE -977 HEADNOTES) : HELD AFFIRMING THE DECISION OF THE HIGH COURT THAT THE HIGH COURT WAS CORRECT IN HOLDING THAT AS THE INCOME RETURNED WAS LESS THAN 80 PER CENT. OF INCOME ASSES SED THE EXPLANATION TO SECTION 271(1)(C) BECAME APPLICA BLE AND THE INCOME-TAX OFFICER WAS JUSTIFIED IN IMPOSIN G PENALTY BECAUSE THE ASSESSEE HAD NOT BEEN ABLE TO DISCHARGE THE ONUS WHICH WAS ON IT UNDER THE EXPLAN ATION TO SECTION 271(1)(C). WHEREAS IN THE CASE BEFORE US THE PENALTY WAS IMPOSED ON ESTIMATION OF INCOME AND IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS OR THE EXPLANATION FURNISH ED BY THE ASSESSEE WAS FOUND TO BE FALSE OR UNTRUE THEREFORE THE DECISION RELIED ON BY THE LD. DR IS DISTINGUISHABLE AND NOT APPLICABL E TO THE FACTS OF THE CASE. IT(SS)A NO.71/M/08 A.Y:BP 10 9. IN A RECENT DECISION OF THE HONBLE APEX COURT IN C IT VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 158 (SC) THEIR LORDSHIPS AFTER CONSIDERING VARIOUS DECISIONS INCLUDING DILIP N. SHROFF V S. JCIT (2007) 291 ITR 519(SC) AND UNION OF INDIA VS. DHARAMENDRA T EXTILE PROCESSORS (2008) 306 ITR 277(SC) HAVE OBSERVED AND HEL D (PAGE 158 HEADNOTES) AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) O F THE INCOME- TAX ACT 1961 SUGGESTS THAT IN ORDER T O BE COVERED BY IT THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDL Y THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS USED IN SECTION 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS F OUND TO BE INCORRECT OR INACCURATE THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN OR DER TO EXPOSE THE ASSESSEE TO PENALTY UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION THE PENALTY PROVISION CAN NOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING A N INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHI NG WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSE E CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUC H PARTICULARS ARE FOUND TO BE INACCURATE THE LIABILI TY WOULD ARISE. TO ATTRACT PENALTY THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE NOT EXACT OR CORRECT NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLI ED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCOR RECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDI NG THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE R ETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 10. APPLYING THE RATIO OF THE ABOVE DECISIONS TO THE F ACTS OF THE IT(SS)A NO.71/M/08 A.Y:BP 11 PRESENT CASE WE FIND THAT IT IS NOT THE CASE OF THE REVEN UE THAT THE ASSESSEE HAS NOT DISCLOSED HIS INCOME ON THE UNDISCLOSED SALES OR THE ASSESSEE HAS NOT DISCLOSED THE TOTAL SALES AND MERELY BECAUSE T HE SALES DISCLOSED BY THE ASSESSEE HAVE BEEN ENHANCED BY THE AO BY APPLYING MULTIPLICATION FORMULA WHICH HAS NO BASIS IN T HE EYE OF LAW WE ARE OF THE VIEW THAT THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS NOT SUSTAINABLE IN LAW AND ACCORDINGLY THE SAME IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. 11. IN THE RESULT THE ASSESSEE'S APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.4.2010. SD/- SD/- (T.R. SOOD) ( D. K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 30.4.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. IT(SS)A NO.71/M/08 A.Y:BP 12 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 22.4.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 23.4.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 30.4.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 30.4.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER