Shri P.M. Chordia, Aurangabad V. Jt. Comm. of Income-tax, Aurangabad

CO 64/PUN/2011

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8389 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-11-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 19-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNITA RAO
• Keywords: Search and seizure
• Section: 27; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.943/PN/2011 AND ITA NO.944/PN/2011 (ASSESSMENT YEAR :2004-05) INCOME TAX OFFICER, CENTRAL, AURANGABAD. .. APPELLANT VS. P.M. CHORDIA, PLOT NO. 10, AHINSA NAGAR, OPP. AKASHWANI, JALNA ROAD, AURANGABAD. .. RESPONDENT PAN NO.AAHPC1004H CO NO.64/PN/2011 AND CO NO.65/PN/2011 (ARISING OUT OF ITA NO. 943/PN/2011 AND ITA NO.944/P N/2011) P.M. CHORDIA, PLOT NO. 10, AHINSA NAGAR, OPP. AKASHWANI, JALNA ROAD, AURANGABAD. .. APPELLANT PAN NO.AAHPC1004H VS. JT. COMM. OF INCOME TAX, CENTRAL, NASHIK. .. RESPONDENT A SSESSEE BY: SHRI SUNIL GANOO RESPONDENT BY: SMT. SUNITA RAO DATE OF HEARING : 13-03-2013 DATE OF PRONOUNCEMENT : 21-03-2013 ORDER PER R.S. PADVEKAR, JM:- THIS BATCH OF 2 APPEALS AND 2 CROSS OBJECTIONS ARE AR ISING OUT OF THE PENALTIES LEVIED BY THE ASSESSING OFFICER U/S.271D AND 271E OF THE INCOME-TAX ACT FOR THE A.Y. 2004-05. 2. WE FIRST TAKE THE REVENUES APPEAL BEING ITA NO. 944/PN/2011 IN RESPECT OF THE PENALTIES LEVIED BY THE ASSESSING OFFICER U/ S.271D OF THE ACT WHICH WAS DELETED BY THE LD.CIT(A). THE REVENUE HAS TAKEN FOLLOWING GROUNDS IN THE APPEAL: 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A), AURANGABAD ERRED IN DELETING PENALTY U/S 271D OF RS.4 ,00,000/- 2 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 2 WHEN THE ASSESSEE HAS ADMITTED THE SAID CASH LOAN IN T HE STATEMENT RECORDED U/S 132(4). 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED I NOT APPRECIATING THE FACT THAT AM OUNT REFLECTED IN PENALTY ORDER HAS NO RELEVANCE WITH ADDITION MADE U/S 6 9D. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN PLACING RELIANCE ON THE RATIO O F THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF C.I.T. VS. ST ANDARD BANKS LTD. 285 ITR (295) DELHI. 3. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER . THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF CIVIL CO NSTRUCTION, HIRING OF MACHINERY AND ALSO OPERATES THE PETROL PUMP. A SEARCH AND SEIZURE ACTION WAS CARRIED OUT U/S.132 OF THE ACT ON 02 -02-2006 AGAINST THE CHORDIA GROUP. IN THE STATEMENT RECORDED U/S.132 (4) OF THE ACT, THE ASSESSEE ADMITTED THAT CERTAIN ENTRIES IN THE SEIZED MA TERIAL REPRESENT LOAN ACCEPTED AND REPAID IN CASH WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER HAS THEREFORE LEVIED PENALTY U/S.271D AND 271E OF THE ACT IN RESPECT OF THE SAID LOANS ACCEPTE D AND REPAID. SO FAR AS THE A.Y. 2004-05 IS CONCERNED WHICH IS BEFORE US THE DETAILS OF THE ALLEGED ACCEPTANCE OF THE LOAN AND THE REPAYMENT OF THE LOAN ARE AS UNDER: A.Y LOAN ACCEPTED & PENALTY LEVIED U/S. 271D DATE OF LOAN ACCEPTED NAME OF THE LENDER LOAN REPAID & PENALTY LEVIED U/S. 271E DATE/YEAR OF REPAYMEN T NAME OF THE LENDER 2004-05 4,00,000 05/11/03 P.P. SURANA (DELETED) 11,00,000 F.Y. 03-04 DR. JAINENDRA CHALLANI (DELETED) TOTAL 4,00,000 --------------- ------------- 11,00,000 -------------- --------------- 4. SO FAR AS THE PENALTY U/S. 271D IS CONCERNED THE ASSE SSEE CONTENDED THAT IN THE SEIZED DOCUMENT A HUNDI PAPER WA S FOUND WHICH WAS INTERPRETED BY THE ASSESSING OFFICER AS A HUNDI TRANS ACTION AND THE SAME HAS BEEN ADDED U/S.69D BY THE ASSESSING OFFICER AT RS.4,00,000/- FOR THE A.Y.2004-05. THE ASSESSING OFFICER HAS MADE THE ADDITION BY MAKING THE OBSERVATION THAT THE PAPER ITSELF IS EVIDENT T HAT THE ASSESSEE HAS ACCEPTED THE LOAN FROM SHRI P.P. SURANA AND REPAID T HE SAME AND 3 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 3 GOT THE HUNDI DOCUMENT RELEASED AND HENCE, FOR THE SAID REASON ONLY THAT THE HUNDI WAS FOUND TO BE IN POSSESSION OF THE ASS ESSEE. THE ASSESSEE ALSO CONTENDED THAT THE HUNDI AND THE CHEQUES RELAT ED TO HUNDI WERE FOUND IN THE POSSESSION OF THE ASSESSEE. THE SAME COULD NOT BE MATERIALIZED AS TRANSACTION AGAINST THE SAID HUNDI FOR THE REASON THAT WHENEVER THE HUNDI TRANSACTION IS COMPLETED THE HUNDI PA PERS HAVE TO BE CANCELLED. FURTHER, THE ASSESSEE TOOK FURTHER CONTEN TION THAT NEITHER THE MONEY WAS RECEIVED BY HIM IN CASH NOR THE SAID AMOU NT WAS RETURNED TO SHRI P.P. SURANA BY HIM. THE EXPLANATION OF T HE ASSESSEE WAS NOT FOUND FAVOUR BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS PLACED RELIANCE ON THE STATEMENT OF THE ASSESSEE RECORD ED U/S.132(4) OF THE ACT ON 03-02-2006 IN WHICH IN ANSWER TO QUESTION NO .33 HE HAS ADMITTED THAT HE HAS TAKEN LOAN FROM SHRI P.P.SURANA OF RS .4,00,000/- ON 05-11-2003. THE ASSESSEE HAS ALSO CONTENDED THAT THE ADDITION OF RS.4,00,000/- HAS MADE U/S. 69D OF THE ACT AND HENCE, N O PENALTY CAN BE LEVIED U/S.271D. THE ASSESSING OFFICER WAS NOT IMPRESSE D WITH THE EXPLANATION OF THE ASSESSEE AND LEVIED THE PENALTY OF RS.4,00,000/-. 5. THE MATTER WAS CARRIED BEFORE THE LD. CIT(A). THE ASS ESSEE HAS FILED THE AFFIDAVIT OF SHRI P.P. SURANA CONFIRMING THAT NEITHER A NY LOAN THROUGH HUNDI WAS GIVEN TO THE ASSESSEE NOR ANY REPAY MENT WAS MADE BY THE ASSESSEE. THE LD.CIT(A) IS OF THE OPINION THAT AS REGARDS THE AMOUNT OF LOAN ACCEPTED IN CASH OF RS.4,00,000/- THE SAME IS ASSESSED AS INCOME OF THE ASSESSEE U/S.69D OF THE ACT IN THE A.Y. 2 004-05 AND THEREFORE THE ASSESSEE CANNOT BE AGAIN PENALIZED U/S.2 71D OF THE ACT. THE LD.CIT(A) PLACED HIS RELIANCE IN THE CASE OF CIT VS. STA NDARD BRANDS LTD. 285 ITR 295 AND DELETED THE ADDITION. 6. NOW THE REVENUE IS IN APPEAL BEFORE US. WE HAVE HEA RD RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL SUBMITS THAT THE ADDITION HAS BEEN SET-ASIDE TO THE FILE O F THE ASSESSING 4 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 4 OFFICER. HE ALSO PLACED RELIANCE ON THE DECISION OF THE STAND ARD BRANDS LTD. (SUPRA). 7. WE HAVE ALSO HEARD THE LD. DR. IN THE CASE OF STAND ARD BRANDS LTD. (SUPRA) THE SAID ASSESSEE HAD RECEIVED AN AMOUNT O F RS.3,00,000/- FROM ONE M/S. D.S. IMPORT. ACCORDING TO THE ASSESSING OFFICE R THE AMOUNT REPRESENTED UNDISCLOSED INCOME IN THE HANDS OF T HE ASSESSEE. WHILE ACCORDING TO THE ASSESSEE IT WAS DEPOSIT MADE BY M /S. D.S. IMPORTS. IN THE PRESENT CASE RS.4,00,000/- WAS CONSIDER ED BY THE ASSESSING OFFICER U/S.69D AND THE ISSUE HAS BEEN SET ASIDE TO FILE OF THE ASSESSING OFFICER WHICH IS PENDING. WE THEREFORE CONSIDER IT APPROPRIATE TO SET ASIDE THE MATTER OF PENALTY TO THE FILE OF THE ASSE SSING OFFICER TO DECIDE THE SAME DE NOVO AFTER DECIDING THE FAITH OF THE QU ANTUM IN THE LIGHT OF THE PRINCIPLES LAID DOWN IN THE CASE OF STANDARD BRA NDS LTD. (SUPRA). ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE ALLOWED FOR THE STATISTICAL PURPOSE. 8. NOW WE TAKE UP THE ASSESSEES CROSS OBJECTION BEIN G CO NO. 65/PN/2011. THE ASSESSEE HAS TAKEN FOLLOWING THE GROUND S IN THE CROSS-OBJECTIONS (C.O.): 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A), AURANGABAD ERRED IN DELETING PENALTY U/S 271D OF RS. 4 ,00,000/- WHEN THE ASSESSEE HAS ADMITTED THE SAID CASH LOAN IN T HE STATEMENT RECORDED U/S 132(4). 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A), AURANGABAD ERRED IN NOT APPRECIATING THE FACT THAT A MOUNT REFLECTED IN PENALTY ORDER HAS NO RELEVANCE WITH ADDITION MADE U/S 6 9D. 3. IN THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A), AURANGABAD ERRED IN PLACING RELIANCE ON THE RATIO OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF C.I.T. VS. STANDARD BANK LTD 285 ITR (295) DELHI. 9. THE ASSESSEE HAS ALSO FILED THE APPLICATION FOR ADMISSION OF THE FOLLOWING ADDITIONAL GROUNDS: SINCE THE IMPUGNED PENALTY HAS BEEN LEVIED AFTER INO RDINATE DELAY FROM THE DATE OF KNOWLEDGE BY THE DEPARTMENT A BOUT THE 5 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 5 ALLEGED DEFAULT COMMITTED BY THE ASSESSEE, THE IMPUGNED PENALTY IS BAD IN LAW, VOID AB INITIO AND NULL AND VOI D AND WITHOUT JURISDICTION AND HENCE THE SAME MAY PLEASE B E ANNULLED. 10. SO FAR AS THE ORIGINAL GROUNDS ARE CONCERNED THESE ARE ONLY SUPPORTING THE ORDER OF THE LD.CIT(A). WE HAVE SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE MATTER DE NOVO. HENCE, AT THIS STAGE, WE KEEP THE ADDITIONAL GROUND OPEN. THE ASSESSEE IS AT LIBERTY TO TAKE THE PLEA BEFORE THE ASSESSING OFFICER. ACCORDINGLY, GRO UNDS TAKEN IN THE CROSS OBJECTIONS ARE DISMISSED. 11. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICA L PURPOSE AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 12. NOW WE TAKE UP ITA NO. 943/PN/2011 . THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN DELETING PENALTY U/S. 271E OF RS.11,00,000/- WHEN THE ASSESSEE HAS ADMITTED THE SAID C ASH LOAN IN THE STATEMENT RECORDED U/S132(4). 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN NOT APPRECIATING THE FACT THAT ON CE THE ASSESSEE HAS ADMITTED THE CONTENTS OF THE PAPER THEN IT HAS NO RELEVANCE WITH THE SAID AUTHOR OF PAPER SEIZED. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN NOT APPRECIATING THE FACT THAT THERE IS NO RELEVANCE OF LIKING THE PROOF OF CASH RECEIPT O F LOAN WITH THE REPAYMENT OF LOAN FOR LEVY OF PENALTY U/S 271E. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN NOT APPRECIATING THE FACT THAT SHRI KISHOR P. CHORDIA, THE AUTHOR OF THE IMPUGNED DIARY IS THE SON AND EMPLOYEE OF THE ASSESSEE AND IS SUPERVISING THE CONSTRUCTION BUSINESS OF THE ASSESSEE, AND HENCE THE CONTENTS OF THE DIARY OUGHT TO BE IN THE KNOWLEDGE OF THE ASSESSEE. 13. THE FACTS WHICH ARE REVEALED FROM RECORD AS UNDER. DURING THE COURSE OF THE SEARCH AND SEIZURE OPERATION, DIARY WAS FO UND SHOWING THE REPAYMENT OF LOAN OF RS.11,00,000/- TO ONE DR. JAINENDRA CH ALLANI. THE ASSESSING OFFICER FURTHER OBSERVED THAT IN THE STATEMENT RECORDED 6 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 6 U/S.132(4) DURING THE COURSE OF SEARCH AND SEIZURE OPERA TION, THE ASSESSEE HAS ADMITTED THAT THE ENTRY FOUND IN THE DIARY IS IN RESPECT OF REPAYMENT OF LOAN TO DR. JAINENDRA CHALLANI. THE ASSESSING OFFICER, THEREFORE, LEVIED THE PENALTY U/S.271E FOR PAYMENT OF LOAN IN CASH IN ALLEGED CONTRAVENTION OF PROVISIONS OF SECTION 269T OF THE A CT. THE ASSESSEE CHALLENGED THE PENALTY LEVIED BY THE ASSESSING O FFICER OF RS. 11,00,000/- BEFORE LD. CIT(A). 14. BEFORE THE LD. CIT(A), THE ASSESSEE PLEADED THAT THE DIARY WAS SEIZED FROM THE CUPBOARD OF SHRI KISHORE P. CHORDIYA, SON OF THE ASSESSEE AND THE SAME WAS NOT FOUND IN POSSESSION OF TH E ASSESSEE. THE ASSESSEE FURTHER STATED THAT THE NOTINGS IN THE DIARY W ERE MADE BY SHRI KISHORE P. CHORDIYA AND HENCE, HE WAS NOT AWARE OF EXAC T NATURE OF THE ENTRY MADE BY SHRI KISHORE P. CHORDIYA, SON OF THE ASSES SEE. THE ASSESSEE FURTHER POINTED OUT THAT NO NOTINGS OR EVIDEN CE IN RESPECT OF ACCEPTANCE OF ALLEGED LOAN RECEIVED FROM DR. JAINENDRA CHALLA NI WAS FOUND IN THE SEARCH ACTION. THE LD. CIT(A) DELETED THE PE NALTY BY GIVING THE FOLLOWING REASONS: I HAVE CONSIDERED FACTS OF THE CASE, PENALTY ORDERS OF THE A.O., SUBMISSIONS OF THE APPELLANT AND RELEVANT EVIDENCES ON RECORD. ON PERUSAL OF THE SAME, THE FACTS OF THIS CASE ARE DIFFEREN T FROM THE FACTS OF OTHER CASES IN RESPECT OF LOAN RECEIVED AND REPAID ON TWO COUNTS I.E. IN THIS CASE THE APPELLANT HAS CLAIMED THAT THE AMOUN T REPRESENTS EXPENDITURE WHICH IS RECORDED IN THE BOOKS OF ACCOU NTS AND NOT LOAN REPAYMENT. SECONDLY, IN THIS CASE NO EVIDENCE IN RE SPECT OF LOAN RECEIPT FROM DR.CHALLANI HAS BEEN FOUND IN THE SEIZED MATERI AL. IT HAS BEEN NOTICED THAT THE A.O. HAS LEVIED THE PENALTIES U/S 2 7 IE ON THE BASIS OF TWO REASONS I.E. - (1) THE STATEMENT OF SHRI P.M. CHORDIA RECORDED U/S 132(4) OF THE ACT. (2) THE NOTINGS FOUND IN THE SEIZED DIARIES. AS REGARDS THE FIRST REASON, THE APPELLANT HAS SUBM ITTED THAT AS THE DIARY WAS WRITTEN BY SHRI KISHORE CHORDIA, HE D ID NOT KNOW THE EXACT NATURE OF THE ENTRY IN THE DIARY. IT IS WELL ESTABLISHED LAW THAT THE ENTRIES IN THE PAPERS AND DIARIES CAN BE EXPLAI NED ONLY BY THE AUTHOR OF THE PAPER DAIRY. THIS PROPOSITION OF LAW IS SUPPORTED BY THE DECISION IN THE CASE OF C1T VS. S.M. AGGARWAL 162 T AXMAN 3( DELHI HC). 7 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 7 IT IS UNDISPUTED FACT THAT THE DIARY HAS BEEN WRITT EN BY SHRI KISHORE CHORDIA AND HENCE THE APPELLANT'S CONTENTIO N THAT HE WAS NOT AWARE ABOUT EXACT NATURE OF TRANSACTION APPEARS TO ME TO BE REASONABLE AND HENCE ACCEPTED. THE FIRST REASON STA TED BY THE A.O. IS SUCCESSFULLY REVERTED BY THE APPELLANT. THE SECOND REASON STATED BY THE A.O. IS THAT THE ENTR Y ABOUT REPAYMENT OF LOAN HAS BEEN FOUND NOTED IN THE DIARY SEIZED. IN THIS REGARD, THE APPELLANT HAS POINTED OUT THAT THE SAID DI ARY WRITTEN BY SHRI KISHORE CHORDIA HAS BEEN FOUND IN THE CUPBOARD OF S HRI KISHORE CHORDIA AND HAS NOT BEEN FOUND IN POSSESSION OF THE APPELLANT. IT IS SETTLED LAW THAT THE PROVISIONS OF SECTION 132(4A) AB OUT PRESUMPTION THAT THE SEIZED PAPERS BELONGS TO THE PERSON SEARCHE D AND THE CONTENTS OF THE PAPERS ARE TO BE REGARDED AS TRUE I S APPLICABLE ONLY IN CASE WHERE THE SEIZED MATERIAL IS FOUND IN POSSESSIO N OF PERSON SEARCHED. THIS PROPOSITION OF LAW IS SUPPORTED BY F OLLOWING DECISIONS (1) CIT VS. S.M. AGGARWAL 162 TAXMAN 3( DELHI HC). (2) ASHWANI KUMAR VS. INCOME TAX OFFICER. 39 ITD 183 (DEL- TRIE D BENCH) (3) JAYA S. SHETTY VS. ASSISTANT COMMISSIONER OF INCOME TAX 69 ITD 336 (MUMBAI D BENCH) CONSIDERING THE ABOVE FACTS, THE CONTENTIONS RAISED BY THE APPELLANT ARE ACCEPTED. THE APPELLANT HAS, THEREFORE, SU CCESSFULLY REVERTED THE SECOND REASON OF THE A.O. FOR LEVYING PEN ALTY U/S 271E OF THE ACT. IT HAS ALSO BEEN NOTICED THAT NO EVIDENCE IN RESPECT OF RECEIPT OF LOAN OF RS.11,00,000/- FROM DR.CHALLANI HAS B EEN FOUND IN THE SEIZED MATERIAL. THE A.O. HAS NOT PROVED THE RE PAYMENT OF ALLEGED LOAN OF RS.11,00,000/- TO DR.CHALLANI. IN VIEW OF THE TOTALITY OF THE FACTS AND ABOVE DISCUSSION AND IN VIEW OF RATIO LAID DOWN BY THE DECISIONS REFERRED TO ABOVE, I AM OF THE CONSIDERED VIEW THAT THE A.O. IS NOT JUSTIFIED IN LEVYING PENALTY OF RS.11,00,0 00/- U/S 271E IN RESPECT OF ALLEGED LOAN REPAYMENT. IN THE RESULT, T HE PENALTY OF RS.11,00,000/- U/S 271E OF THE I.T. ACT IS, THEREFO RE, CANCELLED. NOW THE REVENUE IS APPEAL IN BEFORE US. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AN D PERUSED THE RECORD. AS RIGHTLY POINTED OUT BY THE LD. COUNSEL NO EVIDENCE WAS FOUND SHOWING THE RECEIPT OF THE ALLEGED LOAN BY THE ASSE SSEE FROM DR. JAINENDRA CHALLANI. UNLESS THERE IS AN EVIDENCE TO SHOW T HAT THE ASSESSEE HAS IN FACT RECEIVED LOAN, THEN ONLY THE SUBSEQ UENT EVENT CAN BE PRESUMED AS A REPAYMENT OF THE SAID LOAN. MOREOVER , THOUGH THE ASSESSEE STATED IN THE STATEMENT RECORDED U/S.132(4) TH AT THE SAID ENTRY WAS IN RESPECT OF REPAYMENT OF LOAN TAKEN FROM DR. JAINEND RA CHALLANI BUT THE FACT REMAINED THAT THE ASSESSEE IS NOT THE AUT HOR OF THE SAID ENTRY IN THE DIARY AND NOTHING IS ON RECORD TO SUGGES T THAT THE EXPLANATION OF SHRI KISHORE P. CHORDIYA WAS SOUGHT ON TH E ENTRY IN 8 CO NOS. 64 & 65/PN/11 & ITA NOS.943 & 944, P.M. CHO RDIA, AURANGABAD 8 ALLEGED REPAYMENT OF LOAN. IN OUR OPINION, THE LD. CIT(A) HA S RIGHTLY DELETED THE PENALTY AND NO INTERFERENCE IS CALLED FOR AND A CCORDINGLY ALL THE GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. 16. NOW WE TAKE UP C.O. NO. 64/PN/2011 . THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS IN THE CROSS OBJECTION: 1. THE ORDER OF THE CIT (APPEAL), AURANGABAD MAY KINDLY B E CONFIRMED AS THE SAME IS BASED ON THE FACTS OF THE CASE HAND HAVING SOUND FOOTING OF JUDICIAL MERITS. 2. THAT THE PENALTY LEVIED BY THE A.O. TO THE TUNE OF RS. 11,00,000/- DELETED BY THE CIT (APPEAL), THE ORDER OF CIT (APPEAL) MAY KINDLY BE CONFIRMED. 17. THE ABOVE GROUNDS ARE ONLY SUPPORTING THE ORDER O F THE LD. CIT(A) AND HENCE BOTH ARE INFRUCTUOUS. THE ASSESSEE HAS ALSO FILED APPLICATION WITH PRAYER FOR ADMISSION OF ADDITIONAL GROUND. THE LEARNED COUNSEL SUBMITS THAT HE IS NOT PRESSING THE APPLICATION FOR THE AD MISSION OF THE ADDITIONAL GROUND. ACCORDINGLY, ADDITIONAL GROUND IS NOT ADMITTED. 18. IN THE RESULT, THE REVENUES APPEAL BEING ITA NO.943 /PN/2011 AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2013 SD/- SD/- (G.S. PANNU) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER RK/PS PUNE, DATED: 21 ST MARCH, 2013 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT (A) , AURANG ABAD 4 THE CIT , AURANGABAD 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. // TRUE COPY // BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, PUNE