ACIT, Trichy V. M/s. Saudha Associates, Karaikal

ITA 1099/CHNY/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73697 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAM
• Assessee Lawyers: S SRIDHAR
• Keywords: Search and seizure; Reasonable cause
• Section: 273B; 133A

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI. . , . !' !' !' !' , # # # # $ $ $ $ BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ./ I.T.A.NO.1099/MDS/2010 # ' %' / ASSESSMENT YEAR :2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II, TIRUCHIRAPALLI. VS. M/S. SAUDHA ASSOCIATES, 113, THIRUNALLAR ROAD, KARAIKAL. [PAN : AATFS7124C] ( &' &' &' &' / APPELLANT ) ( ()&' ()&' ()&' ()&' / RESPONDENT ) &' * + / APPELLANT BY : SHRI GURU BHASHYAM, JCIT ()&' * + / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE * , / DATE OF HEARING : 20.01.2014 -% * , /DATE OF PRONOUNCEMENT : 17.02.2014 . . . . / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), TIRUCHIRAPPAL LI, DATED 22.03.2010 RELEVANT TO THE ASSESSMENT YEAR 2007-08. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A FIRM CONSTITUTED WITH S/SHRI ABDUL AZEEZ, HAJA MOHAIDEEN AND ABDUL BASITH ARE PARTNERS OF THE FIRM. A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT WAS CONDUCTED IN I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 2 THE BUSINESS PREMISES OF M/S. SAUDHA ASSOCIATES ALO NG WITH SEARCH AND SEIZURE OPERATIONS CARRIED OUT ON 09.11.2006 AT THE RESIDENCE OF SHRI A. ABDUL KADER AND SHRI A. HAJA MOHIDEEN. THE ASSESSEE FIRM FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON 04.09.200 8 ADMITTING TOTAL LOSS OF ` .8,325/-. THEREAFTER, THE ASSESSING OFFICER, AFTER FOLLOWING DUE PROCEDURES ASSESSMENT WAS COMPLETED UNDER SECTION 1 43(3) OF THE ACT ON 31.12.2008 AND FOLLOWING ADDITIONS WERE MADE. 1. UNACCOUNTED CASH : ` . 10,300 2. STOCK DIFFERENCE FOUND DURING PHYSICAL VERIFICATION OF STOCK ON 09.11.2006 : ` . 6,73,696 3. GROSS PROFIT ADDITION @8% ON SUPPRESSED SALES TURNOVER : ` . 1,20,938 THE ABOVE ADDITIONS MADE BY THE ASSESSING OFFICER W ERE NOT CONTESTED IN APPEAL AND HAS LED TO THE ASSESSING OFFICER TO INIT IATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND ASKED THE AS SESSEE AS TO WHY THE PENALTY SHOULD NOT BE IMPOSED ON THE ABOVE ADDITION S. 3. THE ASSESSEE HAS EXPLAINED BEFORE THE ASSESSING OFFICER DURING THE PENALTY PROCEEDINGS THAT: THE ASSESSEE HAS NOT REGULAR MAINTAINING DAY-TODAY STOCK REGISTRAR, THOUGH DAY BOOK AND LEDGERS ARE MAINTAINED IN COMPU TER. AS NO REGULAR MAINTENANCE OF REGULAR STOCK BOOK IS KEPT, THE ASSESSEE COULD NOT CARRY THE PHYSICAL STOCK WITH THAT OF THE STOCK BOOK AT THE TIME OF SEARCH AND THE DEPARTMENT HAS TAKEN THE PHYSICAL ST OCK BY COMPUTING I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 3 THE PURCHASE AND SALES EFFECTED UPTO THAT DATE OF S EARCH. THE ASSESSEE FOR THE YEAR ENDED 31.07.2007 HAD DISCLOSE D A STOCK OF ` .4.26 LAKHS ON PHYSICAL VERIFICATION ON THAT DATE. IT IS A SURPRISE HOW THE SALES FIGURES VARIES WITH THAT OF THE SALES TAX RETURN FIGURES AS THE DAY BOOK AND LEDGER PRINTOUTS WERE TAKEN ONLY FROM THAT COMPUTER AND WHICH HAS BEEN BROUGHT TO THE NOTICE OF THE ACIT AT THE TIME OF COMPLETING THE ASSESSMENT. DUE TO IGNORANCE OF THE ASSESSEE, THE TECHNICAL DEFAULTS IN COMPUTER COULD NOT BE DECIPHE RED AND TO OBVIATE THE DEFECTS, WE PROPOSED TO CHANGE THE SOFTWARE ITS ELF. HOWEVER, TO PURCHASE PEACE WITH THE DEPARTMENT THE ASSESSEE AGR EED TO FOR THE ABOVE ADDITIONS. THERE IS NO WILLFUL OR DELIBERATE ACT OR IN DEFIANC E OF LAW OR GUILTY OF CONDUCT, CONTUMACIOUS OR DISHONEST OR ACTED IN CONS CIOUS DISREGARD TO HIS OBLIGATION. CONSIDERING THE ABOVE, IT IS REQUESTED THAT THE PEN AL PROCEEDINGS INITIATED MAY KINDLY BE DROPPED AND RENDER JUSTICE . 4. THE ASSESSING OFFICER, AFTER CONSIDERING THE EX PLANATION GIVEN BY THE ASSESSEE, HAS OBSERVED THAT THE MATERIAL GATHERED F ROM THE SURVEY THAT THERE WAS UNACCOUNTED CASH, DIFFERENCE BETWEEN THE PHYSICAL STOCK AND BOOK STOCK AND ALSO SUPPRESSION OF SALES. THE ABOVE EXPLANATION WOULD NOT AMOUNT TO REASONABLE CAUSE WITHIN THE MEANING OF SE CTION 273B OF THE ACT SO AS TO AVOID LEVY OF PENALTY. THE FACT THAT THE A SSESSEE AGREED TO THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 4 ADDITIONS DOES NOT EXONERATE THE ASSESSEE FROM HAVI NG UNACCOUNTED CASH, EXCESS STOCK AND SUPPRESSION OF SALES. FURTHER, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS CONCEALED THE INCOME WITHIN THE MEANING OF SECTION 271(1)(C) AND THE PROVISIONS OF SECTION 271 (1)(C) ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. ACCORDINGLY, H E HAS LEVIED PENALTY UNDER SECTION 271(1)(C). 5. BEFORE THE LD. CIT(APPEALS), IT WAS SUBMITTED T HAT THE CASH OF ` .10,300/- FOUND AT THE TIME OF SURVEY, THAT AMOUNT REPRESENTS SALES RECEIPT OF GOODS OF PREVIOUS DAY. IN SO FAR AS STOCK DIFFER ENCE IS CONCERNED, IT WAS SUBMITTED THAT THE ASSESSEE COULD NOT CONCILE THE D IFFERENCES, THE DIFFERENCE DUE TO NON-MAINTENANCE OF STOCK REGISTER AND SO FAR AS ESTIMATION OF SUPPRESSION OF SALES IS CONCERNED, IT WAS SUBMITTED BEFORE THE LD. CIT(APPEALS) THAT THERE WAS MALFUNCTIONING IN THE S YSTEM AND THE SAME WERE REPORTED TO THE SALES TAX DEPARTMENT ALSO OUT OF PROFIT GENERATED FROM THE SYSTEM. IT WAS FURTHER SUBMITTED THAT OMISSION IN REPRESENTING SALES TO SALES TAX DEPARTMENT WAS DUE TO TECHNICAL PROBLEM I N THE SOFTWARE, WHICH THE ASSESSEE CAME TO KNOW THAT ONLY AFTER THE SURVE Y AND THE SAME WAS BONAFIDE. THE LD. CIT(APPEALS), AFTER CONSIDERING T HE DETAILED EXPLANATION GIVEN BY THE ASSESSEE AND ALSO BY FOLLOWING VARIOUS CASE LAW RELIED ON BY HIM, DELETED THE ADDITIONS MADE BY THE ASSESSING OF FICER. THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(APPEALS) IS EXT RACTED AS UNDER: I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 5 12. I HAVE CAREFULLY CONSIDERED THE CONTENTIONS R AISED ON BEHALF OF THE APPELLANT CHALLENGING THE PENALTY IMPOSED U/S.2 71(1)(C). THE REPRESENTATIVE HAS SOUGHT TO PLACE RELIANCE ON SEVE RAL DECISIONS. 13. IT WOULD APPEAR FROM THE FACTS ENUMERATED IN T HE EARLIER PARAS THAT ALL THE THREE ADDITIONS IE., CASH OF RS.10,300 /- FOUND AT THE TIME OF SURVEY, STOCK DIFFERENCE OF RS.6,73,696/- AND GROSS PROFIT OF RS.L,20,938/- ON SALES SUPPRESSION HAVE BEEN ACCEPT ED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS REPRESENTED THAT THE ADDITIONS WERE CONCEDED FOR BUYING PEACE WITH THE DEPARTMENT AND AVOID PROLONGED LITIGATION AND THIS SHOULD NOT BE CONSTRU ED AS ON ACCOUNT OF CONCEALMENT OF INCOME. ON GOING THROUGH THE RECORDS IT IS OBSERVED THAT ADDITION ON ACCOUNT OF CASH HAS BEEN MADE DISB ELIEVING THAT IT REPRESENTS THE SALE PROCEEDS OF THE PREVIOUS DAY. THE ASSESSING OFFICER HAS STATED IN THE ASSESSMENT ORDER FOR THE A.Y 2007 -08 THAT SALES WERE ENTERED IN COMPUTER. BUT HE HAS NOT GIVEN ANY FINDI NG THAT THIS EXPLANATION ABOUT PREVIOUS DAY SALES IS NOT FACTUAL LY CORRECT. 14. COMING TO THE STOCK DIFFERENCE THE APPELLANT I S DEALING IN NUMEROUS ITEMS. ACCORDING TO THE APPELLANT THIS HAS MADE IT DIFFICULT TO MAINTAIN STOCK REGISTER AND THE STOCK DIFFERENCE HA S BEEN ACCEPTED TO CO-OPERATE WITH THE DEPARTMENT AND AVOID LITIGATION SO THAT IT COULD CONCENTRATE ON ITS BUSINESS. SIMILARLY THE APPELLAN T IS SAID TO HAVE OF ACCEPTED THE GROSS PROFIT ADDITION OF RS.1,20,938/- FOR THE WHOLE YEAR EVEN THOUGH THE SURVEY WAS IN THE MIDDLE OF THE YEA R TO ONLY WITH A VIEW TO CO-OPERATE WITH THE DEPARTMENT. 15. THE FACT THAT THE APPELLANT HAS NOT CONTESTED THE ADDITIONS WOULD BE A DEMONSTRATION OF ITS EARNESTNESS IN CO-OPERATI ON. IT IS TRUE THAT THE ASSESSING OFFICER HAS MADE ADDITION AND IT IS NOT C ONTESTED IN APPEAL. IT WOULD APPEAR THAT THE APPELLANT HAS ACCEPTED THE TH REE ADDITIONS AS A MEASURE OF CO-OPERATION WITH THE DEPARTMENT AND TO AVOID LITIGATION. 16. NOW THE QUESTION FOR CONSIDERATION IS WHETHER THE ADDITIONS MADE IN THE ASSESSMENT PRE-JUSTIFIES THE IMPOSITION OF PENALTY. 17. IT IS CLEAR THAT THE ADDITIONS ON CASH AND STO CK HAVE BEEN MADE UNDER THE DEEMING OF SEC. 69A AND 69B AND GROSS PRO FIT ADDITION ON ESTIMATE BASIS. AS STATED EARLIER, THE APPELLANT HA S RELIED ON SEVERAL DECISIONS. BUT IT WOULD BE APPRECIATE TO REFER THE DECISIONS WHICH WOULD BE SUFFICE TO ADJUDICATE ON WHETHER OR NOT THE IMPO SITION OF PENALTY IS JUSTIFIED. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 6 18. IT IS LAID DOWN IN THE CASE OF CIT VS BARODA T IN WORKS (1996) 226 ITR 661 (GUJ) THAT MADE ADDITION MADE BY VIRTUE OF THE DEEMING PROVISIONS OF SEC. 69A SEC.69B CAN NOT FORM THE FOU NDATION FOR IMPOSITION OF PENALTY U/S. 271(1)(C). 19. THE MADRAS HIGH COURT HAS HELD IN THE CASE OF CIT V S NELLAI TRADING AUTOMOBILES AGENCY (2007) 288 ITR 557 THAT LACK OF RECONCILIATION OF STOCK DIFFERENCE BY ITSELF WOULD NOT JUSTIFY ADDITION. SO IT WOULD BE CLEAR THAT IT CAN NOT BE HELD AGAINST T HE APPELLANT TO IMPOSE PENALTY U/S.271(1)(C). 20. THE ANDHRA PRADESH HIGH COURT HAS HELD IN THE CASE OF CIT VS C.V.C. MINING CO 102 ITR 830 (AP) THAT AN ASSESSEE AGREED TO BE ASSESSED TO BE HIGHER INCOME THAN RETURNED IS NOT P ROOF OF CONCEALMENT I FIND THAT ABOVE DECISIONS CLEARLY STRENGTHEN THE CASE OF THE APPELLANT THAT THE IMPOSITION OF PENALTY OF RS.2,46,000/- IS NOT JUSTIFIED IN LAW. THE DECISION OF THE MADRAS HIGH COURT IN THE CASE O F CIT VS PARIPUSPHAM (2001) 249 ITR 550 THAT AGREEING FOR AD DITION DOES NOT MEAN THAT THERE HAS BEEN EITHER FRAUD OR WILFUL NEG LECT TO JUSTIFY PENALTY. THE JUDICIAL DECISIONS REFERRED TO ABOVE L EAD TO THE INEVITABLE CONCLUSION THAT THE LEVY OF PENALTY U/S.271(1)(C) I N THE CASE OF THE APPELLANT IS NOT SUSTAINABLE IN LAW. 21. FOR THE REASONS DISCUSSED ABOVE I HOLD THAT TH ERE IS NO CASE FOR LEVY OF PENALTY FOR CONCEALMENT IN THE CASE OF THE APPELLANT AND THE PENALTY OF RS.2,46,400/- IS LIABLE TO BE CANCELLED ACCORDINGLY IT IS CANCELLED. 6. ON BEING AGGRIEVED, THE REVENUE IS IN APPEAL BE FORE THE TRIBUNAL. 7. THE LD. DR HAS SUBMITTED THAT THE FACT UNDER SE CTION 271(1)(C) OF THE ACT CANNOT BE DELETED ON THE GROUND THAT THE ASSESS EE HAS ADMITTED THE ADDITION. HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MAK DATA (P) LTD. V. CIT [2013] 38 TAXMANN.COM 4 48 (SC) AND STRONGLY SUPPORTED THE ORDER PASSED BY THE ASSESSING OFFICER . 8. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE HAS SUBMITTED THAT DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS GIVEN A I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 7 DETAILED EXPLANATION AND SUBMITTED THAT NO PENALTY CAN BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT. HE ALSO RELIED ON THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. GEM GRANITES (KARNATAKA ) IN TAX CASE (APPEAL) NO. 504 OF 2009 DATED 12.11.2013 AND SUBMITTED THAT THE HONBLE HIGH COURT HAS CONSIDERED THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF MAK DATA (P) LTD. V. CIT (SUPRA) AND DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. HE STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(APPEALS). 9. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. A SURVEY U NDER SECTION 133A OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES OF THREE PARTNERS NAMELY S/SHRI ABDUL AZEEZ, HAJA MOHAIDEEN AND ABDUL BASITH. THE A SSESSEE ORIGINALLY FILED ITS RETURN OF INCOME BY DECLARING A LOSS OF ` .8,325/-. AFTER DUE PROCEDURE AND AFTER DISCUSSING WITH THE ASSESSEE, THE ASSESSM ENT WAS COMPLETED AND ADDITIONS WERE MADE. THE ASSESSEE HAS ALSO AGREED T HE ADDITIONS MADE BY THE ASSESSING OFFICER AND ACCORDINGLY TAXES ALSO PA ID. THE ASSESSEE HAS EXPLAINED BEFORE THE ASSESSING OFFICER DURING THE C OURSE OF PENALTY PROCEEDINGS THAT THE ASSESSEE HAS NOT MAINTAINED RE GULAR STOCK REGISTER THROUGH DAY BOOK AND LEDGER ARE MAINTAINED IN THE C OMPUTER. IT HAS NOT MAINTAINED REGULAR BOOKS OF STOCK REGISTER AND THE ASSESSEE COULD NOT CARRY OUT PHYSICAL STOCK. AT THE TIME OF SEARCH, THE DEPA RTMENT HAS TAKEN PHYSICAL I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 8 VERIFICATION OF STOCK BY COMPUTING THE PURCHASES AN D SALES UPTO THE DATE OF SEARCH. IT WAS ALSO SUBMITTED BEFORE THE ASSESSING OFFICER THAT THERE WAS TECHNICAL DEFECT IN THE COMPUTER AND IT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER AT THE TIME OF COMPLETING THE ASS ESSMENT. HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION GIVEN BY THE ASSESSEE AND OBSERVED THAT THE EXPLANATION WOULD NOT AMOUNT REASONABLE CAUSE AND THEREFORE, LEVIED THE PENALTY. IT IS NOT THE CASE O F THE ASSESSING OFFICER THAT THE ASSESSEE WAS FOUND FALSE. IN SO FAR AS STOCK DI FFERENCE IS CONCERNED, IT WAS SUBMITTED BEFORE THE LD. CIT(APPEALS) THAT THE ASSESSEE WAS DEALING IN NUMEROUS ITEMS AND IT IS DIFFICULT TO MAINTAIN STOC K REGISTER. THEREFORE, HE ACCEPTED THE ADDITION MADE BY THE ASSESSING OFFICER TO AVOID THE LITIGATIONS. IN SO FAR AS ADDITION IN RESPECT OF ` .1,20,938/- WITH REGARD TO GROSS PROFIT IS CONCERNED, THE ASSESSEE HAS ACCEPTED THE GROSS PROF IT ADDITION FOR THE WHOLE YEAR EVEN THROUGH THE SURVEY WAS IN THE MIDDL E OF THE YEAR ONLY WITH A VIEW TO COOPERATE WITH THE DEPARTMENT. CONSIDERING THE EXPLANATION OF THE ASSESSEE, THE LD. CIT(APPEALS) HAS DELETED THE PENA LTY. AFTER CAREFUL CONSIDERATION OF THE PENALTY ORDER PASSED BY THE AS SESSING OFFICER AS WELL AS ORDER OF THE LD. CIT(APPEALS), WE FIND THAT THE ASSESSEE HAS GIVEN A DETAILED EXPLANATION BEFORE THE ASSESSING OFFICER A S WELL AS BEFORE THE LD. CIT(APPEALS). THE ASSESSING OFFICER HAS NOT FOUND A NY FAULT WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE ONLY DISBELIE VED THE EXPLANATION BY OBSERVING THAT THE EXPLANATION WOULD NOT AMOUNT TO REASONABLE CAUSE. THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 9 ASSESSEE HAS ALREADY SUBMITTED THAT THE DIFFERENCE OF STOCK AND SUPPRESSION OF SALES WERE DUE TO TECHNICAL FAULT IN THE COMPUTE R AND DISCHARGED THE ONUS CAST UPON THE ASSESSEE. THE ASSESSING OFFICER HAS N OT INVESTIGATED AND NO MATERIAL WAS BROUGHT ON RECORD WHEN THE ONUS WAS SH IFTED ON THE DEPARTMENT. THEREFORE, UNDER THESE FACTS AND CIRCUM STANCES, WE ARE OF THE OPINION THAT THIS IS NOT A FIT CASE TO IMPOSE PENAL TY UNDER SECTION 271(1)(C) OF THE ACT. 10. IN SO FAR AS CASE LAW RELIED ON BY THE ASSESSE E, ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T V. GEM GRANITES (KARNATAKA) (SUPRA), THE HONBLE HIGH COURT HAS OBS ERVED AS UNDER: 11. IN A RECENT DECISION OF THE HON'BLE SUPREME C OURT IN CIVIL APPEAL NO.9772 OF 2013, DATED 30.10.2013 (MAK DATA P. LTD., VS. COMMISSIONER OF INCOME TAX-II), THE HON'BLE SUPREME COURT WHILE CONSIDERING THE EXPLANATION TO SECTION 271(1), HELD THAT THE QUESTION WOULD BE WHETHER THE ASSESSEE HAD OFFERED AN EXPLAN ATION FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME AND THE EXPLANATION TO SECTIO N 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NO TICED BY THE ASSESSING OFFICER BETWEEN THE REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, B Y COGENT AND RELIABLE EVIDENCE AND WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION, HAS BEEN DISCHARGED BY THE ASSESSEE, THE ONUS SHIFT S ON THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THEIR INCOME AND NOT OTHERWISE. FACTUALLY, WE FIND THAT THE ONUS CAST UP ON THE ASSESSEE HAS BEEN DISCHARGED BY GIVING A COGENT AND RELIABLE EXP LANATION. THEREFORE, IF THE DEPARTMENT DID NOT AGREE WITH THE EXPLANATION, THEN THE ONUS WAS ON THE DEPARTMENT TO PROVE THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. IN THE INSTANT CASE, SUCH ONUS WHICH SHIFTED ON THE DE PARTMENT HAS NOT BEEN DISCHARGED. IN THE CIRCUMSTANCES, WE DO NOT FI ND THAT THERE IS ANY GROUND FOR THIS COURT TO SUBSTITUTE OUR INTERFERE W ITH THE FINDING OF THE TRIBUNAL ON THE ASPECT OF THE BONAFIDE OF THE CONDU CT OF THE ASSESSEE. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1099 1099 1099 1099/M/ /M/ /M/ /M/10 1010 10 10 12. IN THE CIRCUMSTANCES, FOLLOWING THE DECISION O F THE HONBLE SUPREME COURT, WE UPHOLD THE ORDER OF THE TRIBUNAL AND THE TAX CASE APPEAL STANDS DISMISSED. NO COSTS. 11. IN THE ABOVE JUDGEMENT OF THE HONBLE JURISDIC TIONAL HIGH COURT, IT HAS BEEN OBSERVED THAT ONCE THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON THE ASSESSEE BY GIVING COGENT AND RELIABLE EXPLANAT ION AND THE DEPARTMENT HAS NOT FOUND ANY FAULT ON THE EXPLANATION GIVEN BY THE ASSESSEE, THE ONUS LIES ON THE DEPARTMENT TO PROVE THAT THERE WAS A CO NCEALMENT. IN THIS CASE, NO SUCH EFFORTS WERE MADE BY THE DEPARTMENT. THEREF ORE, BY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT A ND KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(APPEALS) AND PENALTY IMPOSED BY THE ASSESSING O FFICER IS DELETED. 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON MONDAY, THE 17 TH OF FEBRUARY, 2014 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 17.02.2014 VM/- TO: THE ASSESSEE/A.O./CIT(A)/CIT/D.R.