Shri Atul M. Bhagat, Pune V. Income-tax Officer, Pune

ITA 1512/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4341 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: VIPIN GUJRATHI
• Keywords: Capital asset; Document seized; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.1512, 1513, 1514, 1515, 1516/PN/2011 (ASSESSMENT YEARS 2001-02, 2002-03, 2004-05, 2005-0 6, & 2007-08) ATUL M. BHAGAT, 191, M.G. ROAD, PUNE 411001. PAN NO. AGSPB 2578C .. APPELLANT VS. INCOME TAX OFFICER, CENTRAL-II, PUNE. .. RESPONDENT ASSESSEE BY : SRI VIPIN GUJRATHI REVENUE BY : MS. ANN KAPTHUAMA DATE OF HEARING : 26-04-2013 DATE OF PRONOUNCEMENT : 14-05-2013 ORDER PER R.K. PANDA, AM : THE ABOVE 5 APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 28-09-2012 OF THE CIT(A)-CENT RAL, PUNE RELATING TO ASSESSMENT YEARS 2001-02, 2002-03, 2004-05, 2005-06 AND 2007-08 RESPECTIVELY CONFIRMING LEVY OF PENALTY U/S.271(1) (C) MADE BY THE ASSESSING OFFICER. SINCE IDENTICAL GROUNDS HAVE BE EN TAKEN BY THE ASSESSEE IN ALL THESE APPEALS, THEREFORE, THESE WERE HEARD T OGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. SINCE FACTS ARE IDENTICAL IN ALL THE APPEALS EXC EPT FIGURES, THEREFORE, WE FIRST TAKE UP ITA NO. 1512/PN/2011. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ALSO AN ARCHITECT AND A PARTNER IN VARIOUS CONSTRUCTION FIRMS. DURING THE COURSE OF SEARCH AN D SEIZURE ACTION AT THE RESIDENTIAL PREMISES OF SRI CHANDRAKANT KANKARIA, A REAL ESTATE BROKER, ON 14-02-2007 CERTAIN DOCUMENTS NUMBERED FROM 1 TO 42 IN LOOSE PAPER BUNDLE NO.2 WERE SEIZED. SINCE CERTAIN DOCUMENTS B ELONGING TO THE 2 ASSESSEE WERE SEIZED FROM THE SEARCHED PERSON, THER EFORE, THE ASSESSING OFFICER INITIATED PROCEEDINGS U/S.153C OF THE INCOM E TAX ACT. IN RESPONSE TO NOTICE U/S.153C ON 10-10-2008 THE ASSESSEE FILED HIS RETURN OF INCOME ON 10-11-2008 DECLARING TOTAL LOSS OF RS.5,20,420/-. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE SEIZED PAPERS RELATE TO THE TRANSFER OF LAND AT SURVEY NO. 208/1/1, LOHEGAON, PUNE AND TRANSFER OF CERTAIN RIG HTS OF CONSTRUCTION TERMED AS COVENANT RIGHTS UPON THE SAID LAND. THE LAND CONSISTED OF A NUMBER OF PLOTS OWNED BY VARIOUS MEMBERS OF LOHEGAO N CO-OP. HOUSING SOCIETY. THE COVENANT RIGHTS WERE OWNED BY SRI SUR ESH M. TALERA AND HIS SISTER-IN-LAW SMT. SUMANDEVI C. TALERA. THE PURCHA SER OF THE PLOTS AND THE COVENANT RIGHTS IS M/S. LUNKAD REALTY THROUGH ITS P ARTNER SRI KANTIALAL LUNKAD. THE ASSESSEE WAS A FACILITATOR IN THE SALE AND PURCHASE OF SOME OF THE PLOTS FOR WHICH HE WAS TO RECEIVE COMMISSION FR OM M/S. LUNKAD REALTY. THE PAYMENTS TO THE ASSESSEE SRI ATUL BHAGAT HAS BE EN MADE FROM A.Y. 2001-02 ONWARDS. THE FIRM M/S. LUNKAD REALTY CAME INTO EXISTENCE ON 10- 07-2005. PRIOR TO THIS DATE THE NEGOTIATIONS FOR P URCHASE WERE MADE BY M/S. LUNKAD DEVELOPERS, A PROPRIETARY CONCERN OF SRI KAN TILAL LUNKAD (HUF). UPON ANALYSING THE SEIZED DOCUMENTS THE ASSESSING O FFICER NOTED THAT LUNKAD GROUP, I.E. LUNKAD HOUSING, LUNKAD DEVELOPER S AND LUNKAD REALTY HAVE PAID AN AMOUNT OF RS.71,50,000/- BY CHE QUE TO THE ASSESSEE FROM TIME TO TIME. THIS IS ON ACCOUNT OF ASSESSEE S COMMISSION FOR FACILITATING SALE OF 25 PLOTS AT SURVEY NO. 208/1/1 , LOHEGAON, PUNE, THE DETAILS OF SUCH PAYMENTS ARE AS UNDER : DATE CHEQUE NO. AMOUNT (RS.) RELEVANT A.Y. 17-01-2001 100060 1,00,000/- 2001-02 05-09-2001 109661 1,00,000/- 2002-03 19-09-2001 108698 1,40,000/- 2002-03 3 18-02-2004 164095 20,00,000/- 2004-05 24-11-2004 164681 8,00,000/- 2005-06 14-12-2004 164719 15,10,000/- 2005-06 15-01-2007 337163 25,00,000/- 2007-08 3.1 SINCE THE ASSESSEE HAD NOT SHOWN THE ABOVE RECE IPTS AS HIS INCOME IN ANY OF THE YEARS, THE ASSESSING OFFICER ASKED THE A SSESSEE TO SHOW CAUSE AS TO WHY THE AMOUNTS SHOULD NOT BE ADDED TO HIS INCOM E FOR THE RELEVANT ASSESSMENT YEARS. THE ASSESSEE EXPLAINED THAT THE AMOUNTS WERE RECEIVED BY HIM AS ADVANCE AGAINST HIS COMMISSION IN CONNECT ION WITH FACILITATING THE PURCHASE OF THE PLOTS OF LAND BY SRI LUNKADS C ONCERNS. SINCE ALL THE FORMALITIES RELATED TO THE PURCHASE OF THE PLOTS SU CH AS FULL PAYMENT TO THE PLOT OWNERS AND REGISTRATION OF THE DEED HAD NOT BE EN COMPLETED THE ASSESSEE TREATED THE AMOUNTS RECEIVED AS ADVANCE TO WARDS HIS FINAL COMMISSION. IT WAS EXPLAINED THAT M/S. LUNKAD REAL TY ALSO HAS SHOWN THE AMOUNT PAID TO THE ASSESSEE AS ADVANCE ONLY. 4. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT T HE MONEY RECEIVED BY THE ASSESSEE WAS TOWARDS FACILITATING THE PURCHASE OF T HE PLOTS BY LUNKAD BECAUSE THE ASSESSEE HIMSELF WAS NOT THE OWNER OF A NY OF THE PLOTS. MERELY BECAUSE THE REGISTRATION FOR PURCHASE OF THE PLOTS HAS BEEN DONE AT A LATER DATE DOES NOT MEAN THAT THE MONEY RECEIVED BY THE A SSESSEE IS OF THE CHARACTER OF ADVANCE. HE OBSERVED THAT THE NEGOTIA TIONS FOR PURCHASE OF THE PLOTS WAS AN ON-GOING PROCESS OVER A NUMBER OF YEAR S. PAYMENTS TO THE PLOT OWNERS WERE MADE FROM TIME TO TIME SINCE 19-03-2004 . SERVICES PROVIDED BY THE ASSESSEE OVER THE YEARS IN THIS REGARD CANNO T BE TERMED TO BE OF NO VALUE IN THE RELEVANT YEARS. THEREFORE, THE PAYMEN TS MADE TO THE ASSESSEE IN THE RELEVANT YEARS ARE INDICATIVE OF THE VALUE PAID FOR THE SERVICES ALREADY 4 RENDERED IN THE CONCERNED YEAR. HENCE, THE ASSESSI NG OFFICER WAS OF THE OPINION THAT THE PAYMENTS MADE FROM TIME TO TIME CA N ONLY BE TERMED AS THE ASSESSEES INCOME FROM COMMISSION IN THE RELEVANT Y EARS. 5. REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE THE ASSESSING OFFICER HELD THAT REPRESENTATION IN THE ACCOUNTS IS ONLY ON E OF THE FORM WHEREAS IN SUBSTANCE THE AMOUNTS RECEIVED BY THE ASSESSEE ARE NOTHING BUT INCOME. HE ACCORDINGLY MADE ADDITION TO THE INCOME OF THE ASSE SSEE ON ACCOUNT OF UNDISCLOSED COMMISSION, THE DETAILS OF WHICH ARE AS UNDER : ASSESSMENT YEAR AMOUNT 2001-02 RS.1,00,000/- 2002-03 RS.2,40,000/- 2004-05 RS.20,00,000/- 2005-06 RS.23,10,000/- 2007-08 RS.25,00,000/- TOTAL RS.71,50,000/- 6. THE ASSESSEE DID NOT CHALLENGE THE ADDITION MADE BY THE ASSESSING OFFICER. THEREAFTER THE ASSESSING OFFICER INITIATE D PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT. THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE DURING ASSESSMENT PROCEEDINGS A ND SUBMITTED THAT SINCE THE WORK WAS NOT COMPLETED IN RESPECT OF ALL THE PLOTS THE ASSESSEE HAD TREATED THE AMOUNT AS ADVANCE IN THE BALANCE SHEET. IT WAS SUBMITTED THAT THE ENTIRE AMOUNT WILL BE TAXABLE AS COMMISSION IN THE YEAR IN WHICH IT BECOMES FINAL. IT WAS SUBMITTED THAT THE ONLY DISP UTE IS REGARDING THE YEAR OF TAXABILITY. RELYING ON A NUMBER OF DECISIONS IT WAS SUBMITTED THAT WHEN 2 VIEWS ARE POSSIBLE ON THE ADDITION MADE BY THE AS SESSING OFFICER NO PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT IS LEVI ABLE. THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF VEGETABLE PROD UCES REPORTED IN 88 ITR 192 WAS RELIED UPON BY THE ASSESSEE FOR THIS PU RPOSE. 5 7. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND LEVIED PENALT Y U/S.271(1)(C) FOR DIFFERENT YEARS WHICH IS AS UNDER: ASSESSMENT YEAR AMOUNT 2001-02 RS.10,100/- 2002-03 RS.48,000/- 2004-05 RS.6,25,600/- 2005-06 RS.7,88,000/- 2007-08 RS.7,81,500/- 8. THE ASSESSEE REITERATED THE SAME ARGUMENTS BEFOR E THE CIT(A). HOWEVER, THE CIT(A) ALSO WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE PENALTY LEVIED BY THE A SSESSING OFFICER U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 BY HOLDIN G AS UNDER : I HAVE CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. THE APPELLANTS CONTENTION THAT THE AMOUNTS RECEIVED BY HIM IN VARI OUS YEARS WERE ADVANCES IS NEITHER CORROBORATED NOR SUBSTANTIATED BY ANY EVIDE NCE. THE APPELLANT NEVER FILED HIS RETURN BEFORE ISSUANCE OF NOTICE U/S.153C OF I.T. ACT. UNDER THE CIRCUMSTANCES, I FIND FORCE IN THE CONTENTION OF TH E ASSESSING OFFICER THAT SERVICES WERE PROVIDED BY THE APPELLANT IN ALL THESE YEARS A ND THESE PAYMENTS WERE RECEIVED BY HIM IN LIEU OF THESE SERVICES. THEREFO RE, THESE AMOUNTS REPRESENTED HIS INCOME FOR ALL THESE YEARS. AS HE DID NOT DISC LOSE HIS INCOME HE CONCEALED THE SAME. TREATMENT OF THESE AMOUNTS IN THE BOOKS OF M/S. LUNKAD REALTY IS NOT MATERIAL IN THE DETERMINATION OF INCOME OF THE APPE LLANT. UNDER THE CIRCUMSTANCES, ASSESSING OFFICERS ACTION IN IMPOSI NG PENALTY IN RESPECT OF THIS AMOUNT IS UPHELD. 8.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US BY TAKING VARIOUS GROUNDS WHICH IN SUBSTA NCE RELATE TO LEVY OF PENALTY U/S.271(1)(C) BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). 9. THE ASSESSEE HAS ALSO TAKEN IDENTICAL ADDITIONAL GROUND IN ALL THE APPEALS WHICH READ AS UNDER : ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.153C OF THE I.T. ACT IS ILL EGAL AND IS BAD IN LAW AS THE ASSESSING OFFICER OF THE SEARCHED PERSON (SHRI CHAN DRAKANT KANKARIA) HANDED OVER THE DOCUMENTS FOUND IN THE PREMISES OF THE SAI D SHRI CHANDRAKANT KANKARIA WHICH ARE NEITHER IN THE HANDWRITING OF THE APPELLA NT NOR THE SAME BELONG TO THE APPELLANT. FOR ASSUMING JURISDICTION U/S.153C OF T HE I.T. ACT MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS OF ACCOUNTS OR DOCUMENTS 6 SEIZED ETC. SHOULD BELONG TO THE PERSON WHO WAS NOT SEARCHED. AS THE DOCUMENTS FOUND AND SEIZED DO NOT BELONG TO THE APPELLANT THE ASSESSMENT FRAMED U/S.143(3) R.W.S. 153C IS BAD IN LAW. SINCE THE ASSESSMENT IS BAD IN LAW CONSEQUENTLY THE LEVY OF PENALTY U/S.271(1)(C) IS ILLEGAL AND BAD IN LAW. THE APPELLANT HEREBY REQUEST YOUR HONOUR TO KINDLY QUASH THE PENALTY ORD ER AND OBLIGED 10. AFTER HEARING BOTH THE SIDES THE ADDITIONAL GRO UND RAISED BY THE ASSESSEE BEING A LEGAL ONE IS ADMITTED FOR ADJUDICA TION IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NA TIONAL THERMAL POWER CORPORATION REPORTED IN 229 ITR 383. 11. BEFORE PROCEEDING FURTHER WE DEEM IT PROPER TO ADJUDICATE THE LEGAL GROUND FIRST. FROM THE PAPER BOOK FURNISHED BY THE ASSESSEE AT PAGE NOS. 59 TO 61 AND 64 TO 66 WE FIND THE DOCUMENTS SEIZED FROM SRI CHANDRAKANT KANKARIAS PREMISES CONTAIN THE DETAILS OF PLOT NO. , NAME OF THE OWNER, AREA, RATE, AMOUNT, AMOUNT RECEIVED AND BALANCE AMO UNT RECEIVABLE. SIMILARLY, THE SEIZED DOCUMENTS ALSO CONTAIN THE AM OUNT PAID AND PAYABLE TO SRI ATUL BHAGAT. 12. THE PROVISIONS OF SECTION 153(C) READ AS UNDER : 153C. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWEL LERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR RE QUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED T O IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH O THER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME O F SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. [PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE RE FERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUIS ITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACC OUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON:] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 13. SINCE IN THE INSTANT CASE DOCUMENTS CONTAINING PAYMENTS MADE AND TO BE MADE TO THE ASSESSEE ON ACCOUNT OF LAND TRANSACT IONS WERE FOUND FROM THE PREMISES OF SRI CHANDRAKANT KANKARIA DURING THE COURSE OF SEARCH, THEREFORE, THE PROCEEDINGS INITIATED BY THE ASSESSI NG OFFICER U/S.153C BEING IN CONFORMITY WITH THE SAID PROVISIONS ARE LEGALLY JUSTIFIED. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS THEREFORE DISMISSE D. 14. NOW COMING TO THE MERIT OF THE CASE THE LD. COU NSEL FOR THE ASSESSEE REFERRING TO PAGE 50 OF THE PAPER BOOK DREW THE ATT ENTION OF THE BENCH TO THE AMOUNT OF RS.3,40,000/- FROM LUNKAD HOUSING, RS .43,10,0000/- FROM LUNKAD DEVELOPERS AND RS.25 LAKHS FROM LUNKAD REALT Y SHOWN BY THE ASSESSEE UNDER THE HEAD LOANS AND ADVANCES CURRE NT LIABILITIES AS PER ANNEXURE-D. REFERRING TO PAGE 18 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE AMOUNT OF RS.20 LAKHS RECEIVED BY THE ASSESSEE FROM LUNKAD DEVELOPERS ON 19-02-2004 WHICH HAS BEEN SHOW N AS INTEREST FREE. REFERRING TO PAGE 9 OF THE PAPER BOOK THE LD. COUNS EL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE DETAILS OF BANK A CCOUNTS OF MR. ATUL BHAGAT WHICH INCLUDES THE S.B. ACCOUNT NO.11259 MAI NTAINED WITH BANK OF INDIA, WANOWRIE BRANCH, PUNE. HE SUBMITTED THAT THE ENTIRE AMOUNT RECEIVED BY THE ASSESSEE ON ACCOUNT OF ADVANCE RECE IVED FOR LAND TRANSACTIONS HAVE BEEN DEPOSITED IN THE SAID BANK A ND THE ENTIRE AMOUNT HAS BEEN RECEIVED BY CHEQUE. HE SUBMITTED THAT SINCE T HE FORMALITIES FOR TRANSFER OF THE ENTIRE AREA WAS NOT COMPLETED, THER EFORE, THE ASSESSEE HAD SHOWN THE SAME AS ADVANCE. 15. REFERRING TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF METAL ROLLING WORKS LTD. VS. CIT REPORTED I N 339 ITR 373 HE 8 SUBMITTED THAT WHEN THE ASSESSEE HAS SHOWN THE AMOU NT RECEIVED ON ACCOUNT OF COMMISSION AS ADVANCE AND THE DEPARTMENT ASSESSED THE SAME AS INCOME THEN IN THAT CASE PENALTY U/S.271(1)(C) IS N OT JUSTIFIED. REFERRING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. REPORTED IN 322 ITR 158 HE SUBMITTED THAT MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LA W, BY ITSELF, WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS REGA RDING THE INCOME OF THE ASSESSEE. HE SUBMITTED THAT SINCE THE ENTIRE AMOUN T HAS BEEN RECEIVED BY CHEQUE AND DEPOSITED IN THE DISCLOSED BANK ACCOUNT AND SINCE THE AMOUNT WAS REFLECTED IN THE BALANCE SHEET UNDER THE HEAD LOANS AND ADVANCES- CURRENT LIABILITIES, THEREFORE, THERE IS CLEAR DIS CLOSURE AND THEREFORE NO PENALTY U/S.271(1)(C) IS LEVIABLE. HE ACCORDINGLY SUBMITTED THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE C IT(A) SHOULD BE DELETED. HE ALSO RELIED ON THE FOLLOWING DECISIONS : 1. VIJAYBHAI N. CHANDRANI VS. ACIT 333 ITR 436 (GUJ ) 2. ACIT VS. SMT. SURINDER KAUR 120 TTJ 618 (LUCKNO W) 3. P. SRINIVAS NAIK VS. ACIT 114 TTJ 856 (BANG.) 4. MEGHMANI ORGANICS LTD. VS. DCIT 129 TTJ 255 (AH MEDABAD) 5. CIT VS. TEK RAM 300 ITR 354 (P & H) 6. CIT VS. SOHAN PAL (HUF) 302 ITR 262 7. CIT VS. HARIHARAN 67 DTR 172 (DELHI) 8. CIT VS. HARYANA WAREHOUSING CORPORATION 314 ITR 215 (P & H) 16. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND RELIED ON PAGE 4 OF THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HAS GIVEN THE YEAR-WISE RECEIPT OF UNDISCLOSED COMMISSION BY THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAS NOT CHALLENGED THE ADDITION A ND HAS ACCEPTED THE ADDITION WHICH SHOWS THAT IT IS A CLEAR CASE OF CON CEALMENT AND THE CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENALTY LEVIED BY TH E ASSESSING OFFICER. 9 17. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOIND ER SUBMITTED THAT MERELY BECAUSE THE ASSESSEE HAS NOT CONTESTED THE A DDITION MADE BY THE ASSESSING OFFICER IT DOES NOT MEAN THAT THE PENALTY IS AUTOMATIC. HE SUBMITTED THAT THE ASSESSEE DURING PENALTY PROCEEDI NGS CAN ARGUE THE CASE AFRESH. 18. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.71,50,000/- AS COMMISS ION FROM A.Y. 2001- 02 TO 2007-08, THE DETAILS OF WHICH ARE GIVEN AT PA RA 5 OF THIS ORDER. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ABOVE AMOUN TS HAVE BEEN RECEIVED BY CHEQUE AND DEPOSITED IN THE SAVINGS ACCOUNT MAINTAI NED WITH BANK OF INDIA WANOWRIE BRANCH, PUNE. THERE IS ALSO NO DISP UTE TO THE FACT THAT THE ASSESSEE HAS NOT OFFERED TO TAX THE COMMISSION INCO ME IN THE RESPECTIVE ASSESSMENT YEARS AND SHOWN THE ENTIRE AMOUNT IN TH E BALANCE SHEET UNDER THE HEAD LOANS AND ADVANCES-CURRENT LIABILITIES. IT IS THE CASE OF THE REVENUE THAT THE ASSESSEE, BY NOT OFFERING THE COMM ISSION RECEIVED IN RESPECTIVE ASSESSMENT YEARS TO TAX, HAS CONCEALED T HE PARTICULARS OF INCOME AND FURNISHED INACCURATE PARTICULARS AND THEREFORE PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT IS LEVIABLE. IT IS THE CASE OF THE ASSESSEE THAT SINCE THE TRANSFER OF ALL THE PLOTS ARE YET TO BE COMPLETED, THEREFORE, THE ASSESSEE HAS TREATED THE AMOUNT RECEIVED UNDER THE HEAD COMMISS ION AS ADVANCE AND THE SAME WILL BE OFFERED TO TAX IN THE YEAR WHEN AL L THE PLOTS ARE TRANSFERRED AND THEREFORE NO PENALTY IS LEVIABLE. 10 18.1 WE FIND FROM THE DETAILS FURNISHED BY THE ASSE SSEE AT PAPER BOOK PAGE NOS.62 AND 63 THAT THE ASSESSEE HAS DONE WORK AS FACILITATOR FOR THE FOLLOWING PLOTS : DETAILS OF PLOTS AT S. NO. 208/1/1, VIMANNAGAR, PUN E. SR. NO. PLOT NO. NAME OF THE PARTY AREA DATE OF REGISTRATION 1 7 POONA GRAFIKON UNIT III 3902 13.09.2006 2 13 CHOICE 4037 13.09.2006 3 20 ROSARY GRAFIKON 5288 13.09.2006 4 70 ANGLES 3714 13.09.2006 5 72 GOODWILL DEVELOPERS 3165 13.09.2006 6 76 GOODWILL PROMTOERS 3824 13.09.2006 7 10 GRAFIKON UNITED 3902 13.09.2006 ' 8 49 HEMANAT SHAH 3504 27.11.2007 9 67 SUHAS PINGLE 3714 27.11.2007 10 79 AJITKATTI 3824 27.11.2007 11 80 SATISH TALIM 3824 27.11.2007 12 55 AMRISH SHAH 3714 27.11.2007 13 43 ASHOK MHATRE 3936 27.11.2007 14 40 LATA VIRKUD 3774 14.01.2008 15 6 GRAFIKON DEVELOPERS UNIT II 3902 14.01.2008 16 51 THE GRAFIKON 3498 21.01.2008 17 45 ANJALI BHAGAT 4016 29.10.2009 18 66 CHARU DESHPANDE 3714 TOTAL AREA IN SQ. FT. 69252 TOTAL AREA IN SQ. MTRS. 6433.67 DETAILS OF PLOTS AT S. NO. 208/1/2, VIMANNAGAR, PUN E. SR. NO. PLOT NO. NAME OF THE PARTY AREA DATE OF REGISTRATION 1 54 NALINI PADATE 3833 19.12.2007 2 12 VINOD OSWAL 3939 3 13 NITIN OSWAL 3962 4 53 VILAS KELSHKAR 3983 TOTAL AREA IN SQ. FT. 15717 TOTAL AREA IN SQ. MTRS. 1460.14 11 DETAILS OF PLOTS AT S. NO. 208/1/2, VIMANNAGAR, PUN E. SR. NO. PLOT NO. NAME OF THE PARTY AREA DATE OF REGISTRATION 1 2 SAJANI PURSNANI 3962 19.12.2007 2 11 B. B. PANDYA 3912 20.12.2007 3 1 VIVEK DARNE 3935 05.03.2008 TOTAL AREA IN SQ. FT. 11809 TOTAL AREA IN SQ. MTRS. 1097.08 18.2 FROM THE ABOVE DETAILS WE FIND THE FOLLOWING P LOTS HAVE BEEN SOLD DURING A.Y. 2007-08. SR.NO. PLOT NO. NAME OF THE PARTY AREA DATE OF REGISTRATION 1 7 POONA GRAFIKON UNIT III 3902 13-09-2006 2 13 CHOICE 4037 13-09-2006 3 20 ROSARY GRAFIKON 5288 13-09-2006 4 70 ANGLES 3714 13-09-2006 5 72 GOODWILL DEVELOPERS 3165 13-09-2006 6 76 GOODWILL PROMOTERS 3824 13-09-2006 7 10 GRAFIKON UNITED 3902 13-09-2006 18.3 PAGE 64 OF THE PAPER BOOK WHICH WAS SEIZED FRO M THE RESIDENCE OF SRI CHANDRAKANT KANKARIA SHOWS THE FOLLOWING NOTING : 15717 X 190 = 29,86,230/- TO BE PAID TO BHAGAT AFT ER DEAL & FORMATION & TRANSFER OF PLOTS FROM SMT+CMT. 18.4 SINCE THE ASSESSEE WAS DUE TO RECEIVE COMMISSI ON ON THE BASIS OF SALE OF PLOTS AND SINCE 7 PLOTS HAVE BEEN SOLD DURING TH E F.Y. 2006-07 RELEVANT TO A.Y. 2007-08, THEREFORE, THE ASSESSEE WAS SUPPOS ED TO OFFER COMMISSION INCOME ON ACCOUNT OF SALE OF THE ABOVE PLOTS. THER EFORE, BY NOT OFFERING THE COMMISSION INCOME ON ACCOUNT OF SALE OF THE ABOVE P LOTS DURING A.Y. 2007-08 THERE IS CONCEALMENT OF PARTICULARS OF INCO ME AND PENALTY IS LEVIABLE ON ACCOUNT OF COMMISSION RELATABLE TO SALE OF THE ABOVE PLOTS. THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT T HE SAME SHALL BE SHOWN ONCE ALL THE PLOTS ARE TRANSFERRED IS NOT A VALID E XPLANATION. ON A POINTED 12 QUERY BY THE BENCH, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT TILL TODAY THE AMOUNT IS BEING SHOWN AS ADVANCE AND HAS NOT BEEN DECLARED AS INCOME. IN OUR OPINION, THE ASSESSEE CANNOT SHIFT THE YEAR OF TAXABILITY OF THE COMMISSION INCOME AFTER THE SALE OF THE PARTICU LAR PROPERTY BY EXPLAINING THAT THE SAME SHALL BE OFFERED TO TAX ON CE ALL THE PLOTS ARE TRANSFERRED. IF THE ABOVE PROPOSITION OF THE ASSES SEE IS ACCEPTED THEN IN THAT CASE AN ASSESSEE CAN INDEFINITELY SHIFT HIS TAX BUR DEN SAY BY NOT TRANSFERRING ONE PLOT OUT OF 1000 PLOTS WHERE 999 PLOTS HAVE BEE N SOLD AND COMMISSION INCOME IS RECEIVED. WE, THEREFORE, ARE OF THE OPIN ION THAT THE ASSESSEE WAS SUPPOSED TO HAVE DECLARED COMMISSION INCOME OF PLOT S WHICH WERE SOLD AFTER DUE REGISTRATION. BY NOT OFFERING THE COMMIS SION INCOME THE ASSESSEE IN OUR OPINION HAS FURNISHED INACCURATE PARTICULARS OF INCOME FOR WHICH PENALTY U/S.271(1)(C) IS LEVIABLE. WE, THEREFORE, ARE OF THE OPINION THAT MINIMUM PENALTY BEING 100% OF THE TAX SOUGHT TO BE EVADED ON ACCOUNT OF NON-DISCLOSURE OF COMMISSION INCOME ON ACCOUNT OF S ALE OF THE ABOVE PLOTS SHOULD BE LEVIED. WE HOLD AND DIRECT ACCORDINGLY. THE ASSESSING OFFICER SHALL VERIFY THE ABOVE DETAILS INCLUDING ANY LEFT O VER ITEM AND COMPUTE THE COMMISSION INCOME RELATABLE TO SALE OF THESE PLOTS, CALCULATE THE TAX ON THAT AND LEVY THE PENALTY U/S.271(1)(C) OF THE INCOME TA X ACT. 19. SO FAR AS THE BALANCE PLOTS ARE CONCERNED WE FI ND THEY ALL RELATE TO F.Y. 2007-08, 2008-09 AND 2009-10 AND DO NOT RELATE TO ANY OF THE YEARS UNDER APPEAL. THEREFORE, MERELY BECAUSE THE ASSESS EE HAS RECEIVED THE COMMISSION INCOME IN THE PRECEDING YEARS WHICH HAS BEEN SHOWN AS ADVANCE PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT , IN OUR OPINION, SHOULD NOT BE LEVIED SINCE THE REGISTRATION OF THE PLOTS, WHICH IS A PRE- CONDITION FOR GETTING THE COMMISSION, IS YET TO BE DONE. 13 20. THE VARIOUS DECISIONS RELIED ON BY THE LD. CO UNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND ARE NOT APPLICABLE TO THE PRESENT CASE. WE, THEREFORE, ARE OF THE CONSIDERED OPINION THAT NO PE NALTY IS LEVIABLE FOR A.Y. 2001-02, 2002-03, 2004-05 AND 2005-06 WHEREAS PENAL TY IS LEVIABLE FOR A.Y. 2007-08 AS DISCUSSED IN THE PRECEEDING PARAGRA PH. 21. IN THE RESULT, THE APPEAL FOR A.Y. 2007-08 IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES AND APPEAL FOR OTHER YEARS ARE ALLOWED. PRONOUNCED IN THE OPEN ON THIS THE 14 TH DAY OF MAY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED : 14 TH MAY 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A) CENTRAL, PUNE 4. THE CIT CENTRAL, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.