Sri A.Jagadeshwar, Hyderabad V. DCIT, Hyderabad

ITA 1153/HYD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59266 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-02-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 27-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: V SIVA KUMAR
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER. ITA NO.1153/HYD/2010 (ASSESSMENT YEAR 2000- 01) SHRI A.JAGADESHWAR, HYDERABAD (PAN - ABQPA 5692 R ) V/S DY. COMMISSIONER OF INCOME-TAX, CIRCLE 2(2), HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.SIVA KUMAR RESPONDENT BY : SHRI B.V.PRASAD REDDY DATE OF HEARING 29 2.2012 DATE OF PRONOUNCEMENT 02.03.2012 O R D E R PER D.KARUNAKARA RAO, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2000-01 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER O F INCOME- TAX(APPEALS)-III, HYDERABAD DATED 30.6.2010. 2. SUBJECT MATTER OF APPEAL RELATES TO LEVY OF PEN ALTY UNDER S.271(1)(C) OF THE ACT. GROUNDS RAISED BY THE ASSES SEE IN THIS APPEAL READ AS FOLLOWS- 1. THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APP EALS) III, HYDERABAD, DATED 30.6.2010 IS ERRONEOUS, CONTRARY T O LAW AND FACTS OF THE CASE. 2.(A) THE COMMISSIONER OF INCOME-TAX(APPEALS) GROSS LY ERRED IN LAW INS SUSTAINING THE ACTION OF THE ASSESSING OFFI CER IN LEVYING PENALTY OF RS.6,54,730/- U/S. 271(1)(C) OF THE ACT ON THE GROUND THAT THE DIFFERENCE OF RS.20,78,500 B ETWEEN THE APPELLANTS COST OF CONSTRUCTION AND COST ESTIM ATED BY VALUER APPOINTED BY THE ARBITRATOR IS CONCEALED INC OME WITHOUT CONSIDERING THE DETAILED EXPLANATION FURNIS HED BY THE APPELLANT AS TO WHY PENALTY SHOULD NOT BE IMPOS ED. (B) THE COMMISSIONER OF INCOME-TAX(APPEALS) FAILED TO SEE THAT THE ADDITION WAS MADE ONLY ON THE BASIS OF ESTIMATE D COST OF ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 2 CONSTRUCTION BASED ON THE REPORT OF THE VALUER BUT NOT ON THE BASIS OF ANY SPECIFIC MATERIAL AVAILABLE TO THE ASSESSING OFFICER AND HENCE THERE IS NEITHER CONCEALMENT NOR FURNISHING OF I INACCURATE PARTICULARS BY THE APPEL LANT SO AS TO LEVY PENALTY U/S. 271(1)(C) OF THE ACT. 3. FOR ALL THE ABOVE GROUNDS AND SUCH OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING IT IS MOST RESPECTF ULLY PRAYED THAT THIS HONBLE TRIBUNAL MAY PLEASED TO DI RECT THE RESPONDENT HEREIN TO DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IN THE INTEREST OF JUSTICE. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2000-01 DE CLARING AN INCOME OF RS.2,82,497 AND NET AGRICULTURAL INCOME OF RS.1,37, 760. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF S.147 OF THE ACT, FOR BRINGING TO TAX THE INVESTMENT MADE IN THE CONSTRUCTION OF HIS HOUSE, A ND THE RE-ASSESSMENT WAS COMPLETED, BY MAKING AN ADDITION IN THAT BEHALF . DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTI CED THAT THE ASSESSEE ALONGWITH ONE SHRI D.B.RAMCHANDER ENTERED INTO AN A GREEMENT WITH M/S. TRILEKHA CONSTRUCTIONS AND FINANCE (P) LTD., THE LA NDLORD ON 9.12.2008, FOR CONSTRUCTING A COMMERCIAL COMPLEX ON A SITE MEA SURING 2203 SQ. YARDS LOCATED ON ST. JOHNS ROAD, SECUNDERABAD. AF TER CONSTRUCTION OF A PART OF THE SAID BUILDING, SOME DISPUTE AROSE BETWE EN THE DEVELOPERS, VIZ. THE ASSESSEE AND ANOTHER PERSON NOTED ABOVE, AND TH E LANDLORD, M/S. TRILEKHA CONSTRUCTIONS. THUS, THE MATER WAS REFERR ED TO AN ARBITRATOR. BEFORE THE ARBITRATOR, THE ASSESSEE SUBMITTED THAT HE INVESTED ABOUT RS.1 CRORE IN CONSTRUCTION OF THE SAID BUILDING. ON REFERENCE BY THE ARBITRATOR TO A VALUER FOR DETERMINING THE COST OF CONSTRUCTION IN THE HANDS OF THE ASSESSEE IN THE SAID BUILDING, THE SAI D VALUER, VIDE HIS REPORT SUBMITTED, DETERMINED THE VALUE OF INVESTMENT BY TH E ASSESSEE IN THE CONSTRUCTION OF THE BUILDING AT AN AMOUNT OF RS.88,20,000 . ACCEPTING THE SAID AMOUNT OF INVESTMENT MADE BY THE ASSESSEE IN CONSTRUCTION OF THE SAID BUILDING DURING THE RELEVANT YEAR AND OBSE RVING THAT THE ASSESSEE COLD EXPLAIN THE SOURCE FOR THE INVESTMENT ONLY TO THE EXTENT OF RS.47,41,500, THE ASSESSING OFFICER HELD THE BALANC E AMOUNT OF ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 3 RS.40,78,500, AS REPRESENTING THE UNEXPLAINED INVES TMENT IN THE HANDS OF THE ASSESSEE UNDER S.69 OF THE ACT, AND ACCORDIN GLY ADDED THE SAME TO THE INCOME RETURNED BY THE ASSESSEE. HE FURTHER ADD ED 10% OF THE SAID TOTAL INVESTMENT OF RA.88,20,O000, I.E. RS.8,82,000 , AS ESTIMATED INCOME IN THE HANDS OF THE ASSESSEE ARISING FROM SUCH CONS TRUCTION FOR THE ASSESSMENT YEAR UNDER APPEAL. ADDING BACK BOTH THE ABOVE AMOUNTS, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON A TOTAL INCOME OF RS.43,61,000 VIDE ORDER OF ASSESSMENT DATED 27.12. 2007 PASSED UNDER S.143(3) READ WITH S.148 OF THE ACT. WHILE THUS CO MPLETING THE ASSESSMENT, THE ASSESSING OFFICER ALSO INITIATED TH E PROCEEDINGS FOR LEVY OF PENALTY FOR CONCEALMENT OF INCOME. 4. ON APPEAL AGAINST THE ASSESSMENT, THE CIT(A) U PHELD THE INVESTMENT IN THE CONSTRUCTION OF THE SAID BUILDING IN THE HANDS OF THE ASSESSEE AT RS.88,20,000, AND BASED ON THE NECESSAR Y CONFIRMATION LETTERS FILED BEFORE HIM, THE CIT(A) ACCEPTED THE SOURCES TO THE TUNE OF RS.67,41,500 AND FINALLY UPHELD THE ADDITION ON ACC OUNT OF UNEXPLAINED INVESTMENT ONLY TO THE EXTENT OF RS.20,78,500 (RS. 88,20,000- RS.67,41,500). THE CIT(A) ALSO DELETED THE OTHER A DDITION OF RS.8,82,000, WORKED OUT AT 10% OF THE COST OF CONST RUCTION, MADE BY THE ASSESSING OFFICER. 5. ON RECEIPT OF THE APPELLATE ORDER, THE ASSESSIN G OFFICER ISSUED FRESH SHOW CAUSE NOTICE IN THE PENALTY PROCEEDINGS. IN RESPONSE, THE ASSESSEE PLEADED BEFORE THE ASSESSING OFFICER THAT THE ADDITION WAS MADE BASED ON ESTIMATION OF COST OF CONSTRUCTION AS PER THE REPORT OF THE VALUER. HE ALSO SUBMITTED THAT EVEN THE DIFFERENT IAL INVESTMENT OF RS.20,78,500 SHOULD NOT HAVE BEEN TREATED AS UNEXPL AINED INVESTMENT UNDER S.69 OF THE ACT FOR THE YEAR UNDER CONSIDERAT ION, SINCE THE SAME MAY HAVE BEEN TAXED AS INCOME EARNED FROM CONSTRUCT ION ACTIVITY IN THE YEAR IN WHICH THE AWARD WAS PASSED. WITH THESE SUB MISSIONS, THE ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 4 ASSESSEE CONTENDED THAT HE HAD NEITHER CONCEALED AN Y INCOME NOR FURNISHED ANY INACCURATE PARTICULARS OF INCOME FOR THE ASSESSMENT YEAR 2000-01. THE ASSESSING OFFICER WAS NOT CONVINCED W ITH THE EXPLANATION OF THE ASSESSEE. STATING THAT THE ASSESSEE DID NOT MA INTAIN ANY BOOKS OF ACCOUNT, THE ASSESSING OFFICER REJECTED THE CONTENT ION OF THE ASSESSEE THAT THE ADDITION MADE WAS BASED ON MERE ESTIMATION OF C OST OF CONSTRUCTION. REFERRING TO THE PROCEEDINGS BEFORE THE ARBITRATOR, APPOINTED BY THE HONBLE HIGH COURT OF ANDHRA PRADESH AND OBSERVING THAT THE VALUATION AT THE INSTANCE OF THE ARBITRATOR WAS MADE BY AN INDEP ENDENT CHARTERED ENGINEER AND REGISTERED VALUER, HE HELD THAT THE AC TUAL, INVESTMENT MADE BY THE ASSESSEE IN THE CONSTRUCTION OF THE SAID BUI LDING WAS RS.88,20,000. THE ASSESSING OFFICER CONCLUDING THAT THE DIFFERENT IAL AMOUNT OF RS.20,78,500 CLEARLY REPRESENTED THE CONCEALED INCO ME OF THE ASSESSEE, HELD THAT THE ASSESSEE WAS LIABLE FOR PENALTY IN RE LATION TO THE SAID AMOUNT, AND ACCORDINGLY LEVIED PENALTY OF RS.654,73 0 VIDE ORDER OF PENALTY DATED 9.9.2009 PASSED UNDER S.271(1)(C) OF THE ACT. 6. ON APPEAL, THE CIT(A), OBSERVING THAT THE ASSES SEE HAS FAILED TO PROVE THAT HE HAS NOT MADE FURTHER INVESTMENT TO THE EXTENT OF RS.20,78,500, OVER AND ABOVE THE AMOUNT OF RS.67,41 ,500, TO WHICH EXTENT SOURCE OF INVESTMENT HAS BEEN EXPLAINED, CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. HENCE, ASSESSEE P REFERRED THIS SECOND APPEAL BEFORE US. 7. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE, REITERATING THE CONTENTIONS URGED BEFORE THE LOWER AUTHORITIES SUBM ITTED THAT THERE IS NO JUSTIFICATION FOR THE LEVY OF PENALTY FOR CONCEALME NT IN THE INSTANT CASE. HE SUBMITTED THAT THE ASSESSEE HAS FURNISHED ALL TH E PARTICULARS OF INCOME, AND THE ADDITION WHICH LED TO THE IMPUGNED PENALTY, WAS MADE BASED MERELY ON THE DIFFERENCE BETWEEN THE COST OF CONSTRUCTION DISCLOSED BY THE ASSESSEE AND THE SAME DETERMINED BY THE APP ROVED VALUER. ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 5 SINCE THE ADDITION IN QUESTION WAS ONLY DUE TO DIFF ERENCE OF OPINION AS TO THE COST OF CONSTRUCTION, WHILE ADDITION IN THE ASS ESSMENT MAY BE JUSTIFIED, SUCH ADDITION BY ITSELF COULD NOT LEAD T O THE INFERENCE AS TO CONCEALMENT ON THE PART OF THE ASSESSEE, SO AS TO J USTIFY PENALTY. DISTINGUISHING THE RATIO LAID DOWN BY THE CALCUTTA HIGH COURT IN THE CASE OF SRI LOKNATH CHOUDARY V/S. CIT(155 ITR 291), IT I S SUBMITTED THAT WHILE IN THE CITED CASE, THE ASSESSEE WAS CONFRONTED WITH THE REPORT OF THE DEPARTMENTAL VALUER AND THE ASSESSEE COULD NOT OFFE R ANY EXPLANATION, IN THE INSTANT CASE, THE ADDITION WAS NEITHER MADE ON THE BASIS OF ANY REPORT OF THE DEPARTMENTAL VALUER NOR THE ASSESSEE WAS CON FRONTED WITH ANY REPORT NOR CALLED UPON TO OFFER ANY EXPLANATION, SI NCE THE ASSESSING OFFICER MERELY ADDED THE DIFFERENCE BETWEEN THE ESTIMATION MADE BY THE VALUER AND THE COST SHOWN BY THE ASSESSEE. HE FURTHER SUB MITTED THAT THE ASSESSEE COULD NOT HAVE BEEN EVEN TAXED ON THE DIFF ERENCE BETWEEN THE AMOUNT AWARDED BY THE ARBITRATOR AND THE COST INCUR RED BY THE ASSESSEE IN THE YEAR IN WHICH THE AWARD WAS PASSED, AS IN FA CT, AFTER THE AWARD WAS PASSED, THE AMOUNT WAS DRAWN BY THE ASSESSEE, A ND THE DIFFERENCE BETWEEN THE AMOUNT DRAWN AND THE AMOUNT SPENT ON CO NSTRUCTION WAS OFFERED AS INCOME FOR ASSESSMENT. 8. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS NOT THE CASE OF THE DEPARTMENT THAT THE ASSESSEE HAS SUPPOR TED HIS CLAIM OF HAVING INCURRED AN AMOUNT OF RS.1 CRORE IN CONSTRUC TION OF POLISETY TOWERS WITH ANY EVIDENCE. THE ASSESSING OFFICER UL TIMATELY TREATED THE FIGURE OF ESTIMATE MADE BY THE VALUER APPOINTED BY THE ARBITRATOR AS SACROSANCT AND WORTHY OF FORMING THE BASIS FOR CONC EALMENT PENALTY WITHOUT ANY FURTHER EVIDENCE. HE PLEADED THAT THE ASSESSEE HAS NOT BEEN GIVEN OPPORTUNITY TO REBUT THE ESTIMATE MADE BY THE INDEPENDENT VALUER APPOINTED BY THE ARBITRATOR. THE PROCEEDINGS BEFOR E THE ARBITRATOR ARE ADVERSIAL IN NATURE. THE CLAIMS AND COUNTER CLAIMS WERE BOUND TO BE EXAGGERATED. THE CIT(A), IT IS SUBMITTED, OUGHT NO T TO HAVE PLACED ANY ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 6 RELIANCE ON THE FIGURE OF ESTIMATED COST ARRIVED AT BY THE VALUER FOR CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER. HE DISTINGUISHED THE DECISION OF THE APEX COURT IN THE CASE OF CHUH ARMAL(172 ITR 850) RELIED UPON BY THE LOWER AUTHORITIES, AND SUBMITTED THAT THE CASES RELIED UPON BY THE LOWER AUTHORITIES WERE DECIDED UNDER TH E LAW THAT EXISTED PRIOR TO 1976, WHEREAS THE CASE OF THE ASSESSEE REL ATES TO ASSESSMENT YEAR 2000-01. HE FURTHER SUBMITTED THAT THE BASIS FOR THE ESTIMATE OF THE INDEPENDENT VALUER HAS NOT BEEN BROUGHT ON RECO RD. IT IS NOT ON RECORD WHETHER THE ESTIMATE WAS BASED ON THE QUANTI TIES OBTAINED ON MEASUREMENT OR ON THE BASIS OF PREVAILING RATES. TH E QUALITATIVE ASPECTS OF THE DIFFERENCE BETWEEN THE ESTIMATED COST AND IN VESTMENT ACCEPTED BY THE ASSESSEE WAS NOT AVAILABLE. 9. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT PENALTY PROCEEDINGS ARE INDEPENDENT OF ASSESSMENT P ROCEEDINGS, AND THEREFORE, SOLELY RELYING ON THE FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS, PENALTY CANNOT BE JUSTIFIED. IN THE P ENALTY PROCEEDINGS, THE MATTER HAS TO BE EXAMINED INDEPENDENTLY SO AS TO ES TABLISH EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME BY THE ASSESSEE, IN ORDER TO JUSTIFY AND LEVY PENAL TY UNDER S.271(1)(C) OF THE ACT. 10. IN SUPPORT OF THE ABOVE CONTENTIONS, THE LEARN ED COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE DECISIONS OF TH E HONBLE MARAS HIGH COURT IN THE CASE OF CIT V/S. APSARA TALKIES (155 I TR 303), AND OF THE ITAT (DELHI BENCH) IN THE CASE OF DCT V/S. JMD ADVI SORS LTD. (310 ITR (AT) 280) AND ALSO FURNISHED ELABORATE WRITTEN SUBM ISSIONS. 11. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENT ATIVE STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND S UBMITTED THAT IT IS A FIT A CASE FOR THE LEVY OF PENALTY FOR CONCEALMENT, AND HENCE THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY TH E CIT(A) BE UPHELD. ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 7 DISTINGUISHING THE CASE-LAW RELIED UPON BY THE LEAR NED COUNSEL FOR THE ASSESSEE, THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO PLACED STRONG RELIANCE ON THE DECISION OF THE APEX COURT IN THE C ASE OF CHUHARMAL V/S. CIT(172 ITR 250), AMONG OTHER DECISIONS RELIED UPON BY THE LOWER AUTHORITIES, IN THE IMPUGNED ORDERS, WHICH, ACCORD ING TO HIM, SQUARELY APPLY TO THE FACTS OF THE PRESENT CASE. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE ORDERS OF THE LOWER AUTHORITIES. IT IS AN ADMITTED FACT THAT THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE CONSTRUCTI ON OF THE PROPERTY HAS BEEN MADE BASED ON THE REPORT OF THE VALUER APPOINTED BY THE ARBITRATOR. THE SUM OF RS.20.78,500 IS THE DIFFERENCE BETWEEN THE COST OF CONSTRUCTION DISCLOSED BY THE ASSESSEE AND THE V ALUE DETERMINED BY THE VALUER. THE VALUE DETERMINED BY THE VALUER TOW ARDS THE COST OF CONSTRUCTION, IS BASED ON HIS OWN OPINION MAY BE A N EXPERT OPINION- AS TO THE QUANTITY AND QUALITY OF CONSTRUCTION, IT IS NOTHING BUT AN ESTIMATION, MAY BE AN ESTIMATION BY A MORE QUALIFIED PERSON. THUS, IT MAY BE A CASE OF QUALITY ESTIMATION. IT MAY BE TRUE THAT TH E ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNT IN RESPECT OF THE CONSTRUCTION DONE BY HIM. BUT, WHETHER THE ASSESSEE MAINTAINS BOOKS FOR RECORDING COST OF CONSTRUCTION OR NOT, WHEN THE COST DISCLOSED BY THE ASSESSEE IS COMPARED WITH AN INDEPENDENT ESTIMATION MADE BY ANOTHER PERS ON, HOWEVER QUALIFIED HE MAY BE, THERE IS BOUND TO BE SOME VARI ATION. WHATEVER MAY BE THE SUPERLATIVE QUALITY OF THE VALUATION REP ORT, IT SHALL NEVER REPLACE THE DIRECT EVIDENCE INDICATING CONCEALMENT OF INVESTMENT, I.E. CONCEALMENT OF INCOME. ESTIMATIONS ARE ALWAYS EST IMATIONS, AND THEY ARE NEVER ACTUALS. IT WAS SO HELD BY THE HONBLE H IGH COURT OF MARAS IN THE CASE OF CIT V/S. APSARA TALKIES (SUPRA), WHEREI N IT WAS HELD THAT FINDING OF CONCEALMENT CANNOT BE BASED ON VALUER S ESTIMATE ALONE WITHOUT EVIDENCE TO SHOW THAT THE ASSESSEE HAD UND ERSTATED THE COST OF CONSTRUCTION. BASED ON SUCH VARIATION BETWEEN THE VALUE DISCLOSED BY ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 8 THE ASSESSEE AND THE VALUE DETERMINED ON ESTIMATION BY AN APPROVED VALUER, AN ADDITION IN QUANTUM PROCEEDINGS MAY BE JUSTIFIED. SUCH AN ADDITION CANNOT AUTOMATICALLY LEAD TO CONCEALMENT O F INCOME BY THE ASSESSEE, AND JUSTIFY PENAL ACTION AGAINST THE ASSE SSEE. IT IS A SETTLED PROPOSITION THAT UNLESS THERE IS DIRECT EVIDENCE ON RECORD TO SUGGEST EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACC URATE PARTICULARS OF INCOME BY THE ASSESSEE, THE PENALTY UNDER S.271(1)( C) IS NOT ATTRACTED. IN THE ABSENCE OF ANY SUCH EVIDENCE BROUGHT ON RECO RD BY THE ASSESSING OFFICER, THE PENALTY LEVIED FOR CONCEALMENT CANNOT BE JUSTIFIED. IN THE FACTS OF THE PRESENT CASE, EXCEPT FOR RELYING ON TH E FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SUGGEST THAT THE ASSESSEE HAS INDEE D CONCEALED HIS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF, BY INDEPENDENTLY EXAMINING THE MATTER. THE CASE-LAW, RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US, WHEREIN CANCELLATION OF PENALTY LEVIED BASED ON THE DIFFERENCE IN THE VALUE OF CONSTRUCTION DETE RMINED BY THE VALUATION OFFICER HAS BEEN UPHELD, SQUARELY APPLIES TO THE FA CTS OF THE PRESENT CASE. IN THIS VIEW OF THE MATTER, CONSIDERING TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE ABSENCE OF ANY MATERIAL BROU GHT ON RECORD BY THE REVENUE AUTHORITIES TO SUBSTANTIATE THE ALLEGATION OF EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME BY THE ASSESSEE, WE FIND NO JUSTIFICATION FOR THE IMPUGNED PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). THE SAME IS ACCORDINGLY CANCELLED, ALLOWING THE GROUNDS OF THE ASSESSEE IN THIS APPEAL. 13. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 02.03.2012 SD/- SD/- (SAKTIJIT DEY) (D.KARUNAKARA RAO) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 02.03.2012 ITA NO.1153/HYD/10 SHRI A.JAGADESHWAR, HYDERABAD 9 COPY FORWARDED TO: 1. SHRI A.JAGADESHWAR, 8-2-293/82/A/475, PLOT NO.4 75, ROAD NO.21, JUBILEE HILLS, HYDERABAD 2. DY. COMMISSIONER OF INCOME - TAX CIRCLE 2(2) , HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) III HYDERABAD 4. COMMISSIONER OF INCOME-TAX II, HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S.