M/s. Shivam Corporation, Ahmedabad V. The Income tax Officer, Ward-9(1), Ahmedabad

ITA 1560/AHD/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6128 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 01-06-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 15-06-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Assessee Lawyers: P M PATEL
• Keywords: Income from undisclosed sources; Document seized; Retraction; Documents seized
• Section: 11

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M SHIVAM CORPORATION, C/O P. M. PATEL & CO., 2, THIRD FLOOR SAHAYOGA, OPP. DINBAI TOWER, LAL DARWAJA 380 001. V/S . INCOME-TAX OFFICER, WARD 9(2), VASUPUJYA BUILDING, ASHRAM ROAD, AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI P. M. PATEL, AR RESPONDENT BY:- SMT. NEETA SHAH, SR. DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS OF LD. CIT(A) 27.02.2004 AND DATED 31.03.200 6. SINCE BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE THESE ARE TAKE N UP TOGETHER FOR THE SAKE OF CONVENIENCE. ITA NO.2137/AHD/2004 ASST. YEAR 1998-99: 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XLL AHMEDABAD IS NOT JUSTIFIED ON FACTS AND EVEN ON LAW TO CONFIRM THE ITA NO.2137/AHD/2004 & ITA NO.1560/AHD/2006 ASST. YEAR :1998-99 2 ADDITION OF RS. 11,90,000 ON ACCOUNT OF SEVEN TENA MENTS ALLOTTED TO AHUJA GROUPS, IN THE HANDS OF M/S. SHIVAM CORPOR ATION. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XII, AHMEDABAD OUGHT TO HAVE CONSIDERED VARIOUS FACTS WH ICH HAVE NOT BEEN CONSIDERED BEFORE CONFIRMING ADDITION OF RS. 1 1,90,000 ON ACCOUNT OF SEVEN TENAMENTS ALLOTTED TO AHUJA GROUPS IN THE HANDS OF M/S. SHIVAM CORPORATION. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XII, AHMEDABAD IS NOT JUSTIFIED ON FACTS AND EVEN ON LAW TO CONFIRM THE ADDITION OF RS. 2,16,120 ON ACCOUNT OF EXTRA LAND O F TWO FLATS IN THE HANDS OF M/S, SHIVAM CORPORATION, 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XII. AHMEDABAD IS NOT JUSTIFIED ON FACTS AND EVEN ON LAW TO CONFIRM RS. 22,10,000 SO CALLED UNACCOUNTED MONEY RECEIVED FROM 13 MEMBERS OF THE SOCIETY OTHER THAN AHUJA GROUPS IN THE HANDS OF M/S, SHIVAM CORPORATION WITHOUT ANY REMOTE EVIDENCES. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XII, AHMEDABAD BEFORE CONFIRMING RS, 22,10,000 SO CALLED UNACCOUNTED MONEY RECEIVED FROM 13 MEMBERS OF THE S OCIETY OTHER THAN AHUJA GROUPS WITHOUT VERIFYING THE DATE OF BEC OMING MEMBER IN THE ASSESSMENT YEAR 1998-199, AS IN MANY CASES T HEY WERE NOT MEMBERS OF THE SOCIETY IN ASSESSMENT YEAR 1998-99, AS APPEARED FROM THE CHART ATTACHED WITH ASSESSMENT ORDER. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM IS A BUILDER AND DURING THE YEAR UNDER CONSIDERATION IT HAS CARRIED OUT DEVELOPMENT AND CONSTRUCTION WORK OF TENEMENTS FOR THE SOCIETY NAME LY SANT NIRANKARI CO-OP. HOUSING SOCIETY LTD. AT NARODA, AHMEDABAD. T HE ORIGINAL ASSESSMENT UNDER SECTION 143(1)(A) WAS COMPLETED ON 2.8.1999 ON AN INCOME OF RS.6781/-. BUT SUBSEQUENTLY NOTICE UNDER SECTION 147/148(1) WAS GIVEN TO THE ASSESSEE ON THE BASIS OF DOCUMENTS SEIZED DURING THE COURSE OF SEARCH ON SUPER GROUP OF INDUSTRIES ON 19 .12.1997. DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHRI KARAMCHAN D GANGVANI, MANAGER OF SUPER INDUSTRY, ONE DIARY A-4 WAS SEIZED WHICH S HOWED THAT SUPER 3 GROUP HAD PURCHASED SEVEN TENEMENTS FROM THE ASSESS EE FIRM BUILT IN RADHEY SCHEME FOR THE SANT NIRANKARI SOCIETY. THE A MOUNTS IN THE DIARY WERE WRITTEN IN CODE AND SHRI JANAK V. PATEL, MANAG ING PARTNER OF THE ASSESSEE FIRM HAD SIGNED THIS DIARY TO CERTIFY THE RECEIPT OF CASH. THE SUMMARY OF CASH PAYMENTS AS REPRODUCED BY THE AO IN HIS ORDER IS AS UNDER :- STATEMENT OF SHRI JANAK V. PATEL WAS RECORDED ON OA TH ON 24.12.1997 AS WELL AS ON 18.3.1998 WHEREIN THE FACT OF RECEIPT OF CASH FROM SUPER GROUP WAS ADMITTED. SHRI JANAK V. PATEL ADMITTED AS UNDER :- THE WRITING ON PAGE 1 TO 3 ETC. IS IN MY HAND AND I HAVE MENTIONED RECEIPT OF VARIOUS AMOUNTS FOR SALE OF VARIOUS TENE MENTS. THESE TENEMENTS HAVING NO.3,12,15,18,25,26 & 29 (TOTAL 7) WERE SOLD TO SH. SHANKER AHUJA OF SUPER BAKERS. THE DIARY CONTAINS DETAILS O F RECEIPT OF BOTH THE CASH AND CHEQUE FROM HIM. HE CONFIRMED THAT RECEIPT OF AMOUNT IN CASH WAS WRI TTEN IN CODE AFTER REMOVING TWO ZEROS (00) AND THAT SIGNATURES ON THE PAGES OF THE DIARY WERE MADE BY HIM TO CONFIRM THE RECEIPT OF CASH. HE UNEQUIVOCALLY DATE CODE AMOUNT 08.09.87 400.00 40,000/- 09.09.97 1000.00 1,00,000/- 10.09.97 2000.00 2,00,000/- 13.09.97 1000.00 1,00,000/- 29.09.97 5000.00 5,00,000/- 28.09.97 1000.00 1,00,000/- 04.10.97 600.00 60,000/- 07.10.97 2500.00 2,50,000/- 14.10.97 2500.00 2,50,000/- 18.10.97 500.00 50,000/- 24.10.97 1500.00 1,50,000/- 29.10.97 500.00 50,000/- TOTAL 18,50,000/- 4 ADMITTED TO HAVE RECEIVED CASH OF RS.18,50,000/- IN RESPECT OF SEVEN TENEMENTS SOLD TO SHRI SHANKER AHUJA AND OTHER PERS ONS ON HIS DIRECTION. SO FAR AS THE PRESENT APPEAL IS CONCERNED THERE IS NO DISPUTE ON THE ISSUE THAT ENTRIES IN THE DIARY A-4 FOUND FROM THE POSSES SION OF SHRI KARAMCHAND GANGVANI, MANAGER OF SUPER INDUSTRIES WE RE WRITTEN BY SHRI JANAK V. PATEL. THEY WERE IN CODE BY REMOVING TWO Z EROS (00) AND THAT A CASH OF RS.18,50,000/- WAS RECEIVED BY SHRI JANAK V . PATEL FOR THE SALE OF SEVEN TENEMENTS TO SUPER GROUP OR CONCERNS UNDER IT S CONTROL. THE COST OF EACH TENEMENT IN THE BOOKS WAS RECORDED AT RS.2, 81,000/- WHEREAS ACTUAL COST OF EACH TENEMENT WAS DETERMINED AT RS.4 ,51,000/- ON THE BASIS OF CODE ALL DEA WRITTEN ON PAGE 1 OF DIARY A-4 WH ICH MEANT 451 AND WHICH FURTHER MEANT RS.4,51,000/-. THE ASSESSING AU THORITIES DETERMINED AND IT WAS ACCEPTED WITHOUT DISPUTE THAT CODIFICATI ON OF NUMERIALS INTO ENGLISH ALPHABETS WERE ON THE BASIS OF FOLLOWING FO RMULA:- FIGURE 1 2 3 4 5 6 7 8 9 0 ALPHABETS A B C D E F G H I Z THUS ALL DEA MEANT ALL FLATS WERE PURCHASED AT 4, 51,000 I.E. RS.4,51,000/- EACH. THE TOTAL AMOUNT OF SEVEN FLATS WERE WORKED OUT AT RS.31,51,000/-. IN ADDITION TO THIS SHRI JANAK V. P ATEL ADMITTED TO HAVE RECEIVED A FURTHER SUM OF RS.1,56,120/- AND RS.60,0 00/- FOR EXTRA LAND SOLD BY HIM FOR TENEMENTS NO.3 & 18 AS STATED BY HI M. SINCE A SUM OF RS.2,81,000/- WAS RECORDED IN THE BOOKS AS SALE PRI CE OF EACH TENEMENTS THEN THE DIFFERENCE BETWEEN RS.4,51,000/- AND RS.2, 81,000/- I.E. RS.1,70,000/- WAS WORKED OUT AS CASH COLLECTED BY S HRI JANAK V. PATEL ON BEHALF OF THE ASSESSEE FIRM BEING OVER AND ABOVE SA LE CONSIDERATION RECORDED IN THE BOOKS OF SANT NIRANKARI SOCIETY. TH E TOTAL OF SUCH UNRECORDED SALE CONSIDERATION FOR SEVEN TENEMENTS W AS WORKED OUT TO 5 RS.11,90,000/-(I.E. 7 X RS.1,70,000/-). THE AO ISSU ED SHOW CAUSE NOTICE TO THE ASSESSEE TO SHOW WHY NOT THE SUM OF RS.11,90 ,000/- BEING THE SUM REALIZED/RECEIVED/COLLECTED FROM SHRI AHUJA OVER AN D ABOVE THE SALE CONSIDERATION RECORDED IN THE REGULAR BOOKS OF THE SOCIETY BE NOT TAXED IN THE HANDS OF THE FIRM ON SUBSTANTIVE BASIS. NO REPL Y WAS FURNISHED TO THE AO IN RESPONSE TO THE SHOW CAUSE NOTICE AND ACCORDI NGLY AO PROPOSED THIS SUM AS AN ADDITION ON SUBSTANTIVE BASIS. HE AL SO PROCEEDED TO TAX THIS SUM ON PROTECTIVE BASIS IN THE HANDS OF SHRI JANAK V. PATEL. 4. THE AO THEREAFTER NOTICED THAT THE FIRM HAS IN F ACT SOLD 28 TENEMENTS DURING TWO YEARS. THE 13 TENEMENTS WERE B OOKED FOR SALE IN ADDITION TO SEVEN TENEMENTS SOLD TO SUPER GROUP. TH E AO INFERRED THAT ASSESSEE MUST HAVE COLLECTED SIMILAR AMOUNT OF ON MONEY ON SALE OF 13 TENEMENTS. HE ACCORDINGLY WORKED OUT THAT @ 1,70,00 0/- ASSESSEE MUST HAVE COLLECTED FURTHER SUM OF RS.22,10,000/-, EVEN THOUGH NO DOCUMENTARY EVIDENCE WAS FOUND IN RESPECT OF SALE O F THESE 13 TENEMENTS. THE AO ACCORDINGLY ADDED THE SUM OF RS.22,10,000/- AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES. THE AO FURTHER FOU ND THAT ASSESSEE HAD RECEIVED A SUM OF RS.1,56,120/- AND RS.60,000/- FROM SUPER GROUP FOR SALE OF TENEMENTS NO.3 & 18 IN RESPECT OF ADDIT IONAL LAND ATTACHED WITH THOSE TENEMENTS. HE ACCORDINGLY PROPOSED FURTH ER ADDITION OF RS.2,16,120/-. 5. THE LD. CIT(A) CONFIRMED THE ADDITION OF RS.11,9 0,000/- AND RS.2,16,120/- BY OBSERVING AS UNDER :- 2.4 I HAVE CONSIDERED THE FACTS OF THE CASE, THE O RDER OF THE AO AND THE SUBMISSIONS MADE BY THE APPELLANT. IT IS CLEARLY BR OUGHT OUT IN THE ASSESSMENT ORDER BASED ON THE SEIZED DOCUMENTS IN T HE CASE OF SUPER GROUP, ON THE BASIS OF STATEMENT OF SHRI KARAMCHAND GANGVANI, 6 MANAGER OF SUPER GROUP, TWO STATEMENTS OF SHRI JANA K V. PATEL, PARTNER OF THE FIRM RECORDED BY THE DEPARTMENT AND THE ENTR IES IN THE SEIZED DOCUMENTS AS WELL AS IN THE BOOKS OF ACCOUNTS OF NI RANKARI CO-OP. HSG. SOCIETY, THERE REMAINS NO DOUBT THAT THE APPELLANT FIRM RECEIVED CASH OVER AND ABOVE THE AGREEMENT PRICE AND THE QUANTUM OF SU CH MONEY HAS BEEN CLEARLY ADMITTED BY SHRI JANAK V. PATEL AND KARAMCH AND GANGVANI, THERE REMAINS NOTHING MORE TO PROVE THAT BOTH THE A MOUNTS OF RS.11,90,000/- AND RS.2,16,120/- REPRESENT UNACCOUN TED INCOME OF THE APPELLANT RECEIVED OUT OF BOOKS OF ACCOUNTS. DURING THE COURSE OF HEARING BY AO HAD CLEARLY ISSUED A SHOW CAUSE NOTICE TO THE APPELLANT AS TO WHY THE SALE CONSIDERATION OF RS.11,90,000/- RECEIVED F ROM SHRI AHUJA AND NOT RECORDED IN REGULAR BOOKS OF ACCOUNTS MAY NOT BE AD DED TO THE TOTAL INCOME OF THE FIRM ON SUBSTANTIVE BASIS. HOWEVER, T HERE WAS NO REPLY FROM THE APPELLANT ON THIS QUERY. THE AO THEREFORE, CONCLUDED THAT THE ASSESSEE HAD NOTHING TO SAY IN THE MATTER AND AMOUN TS TO ADMISSION THAT THIS AMOUNT REPRESENTED THE INCOME OF THE FIRM. THE AO IN HIS ORDER, IN PARA 8 FURTHER STATED THAT THOUGH IT IS MENTIONED T HAT ASSESSEE FIRM AS A SUPERVISOR OF THE PROJECT AND THE RECEIPTS FROM THE MEMBERS THE AND THE PAYMENTS FOR CONSTRUCTION AND LABOUR ARE RECORDED I N THE BOOKS OF THE SOCIETY, THE ADDITIONS HAVE BEEN MADE IN CASE OF FI RM ON SUBSTANTIVE BASIS AS THE ENTIRE FINANCIAL AND MANAGERIAL CONTROL OF T HE SOCIETY WAS IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE DEVELOPME NT AGREEMENT MADE BY THE FIRM WITH SOCIETY AND FURTHER THE ASSESSEE ITSE LF HAS ALSO MADE DISCLOSURE UNDER VDIS 97 SCHEME IN ASST. YEAR 1997 -98 IN RESPECT OF UNDISCLOSED INCOME ARISING FROM BUSINESS OF SUPERVI SION OF BUILDING CONSTRUCTION WORK OF SOCIETIES. I, THEREFORE, CONFI RM THE TWO ADDITIONS MADE BY THE AO IN THE HANDS OF THE APPELLANT FIRM. 6. HE ALSO CONFIRMED THE ADDITION OF RS.22,10,000/- BY OBSERVING AS UNDER :- 3.3 I HAW CONSIDERED THE FACTS OF THE CASE , THE ORDER OF THE AO AND THE SUBMISSION MADE BY THE APPELLANT. FROM THE DISCUSSI ON IN THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT, I AM IN CLINED TO AGREE WITH THE FINDINGS GIVEN BY THE AO IN HIS ORDER. THE DECI SIONS RELIED UPON BY THE APPELLANT ARE MOSTLY APPLICABLE TO A CASE IN WH ICH SEARCH AND ACTION TOOK PLACE AND NO EVIDENCE OF ANY ON MONEY WAS FOUN D. IN THIS CASE IT HAS BEEN ESTABLISHED THAT THE APPELLANT FIRM WAS IN TOT AL CONTROL OF ENTIRE FINANCIAL AND MANAGERIAL CONTROL OF THE SOCIETY FOR THE SALE OF TENEMENTS. IN THE APPELLANT'S CASE THERE WAS NO SEARCH AND HEN CE IT CANNOT BE SAID THAT THE ON MONEY ESTIMATED BY THE AO OF RS.22,10,0 00 WAS NOT DETECTED 7 FROM ANY DOCUMENT DURING THE COURSE OF SEARCH. IN T HIS CASE THERE IS AMPLE EVIDENCE THAT THE APPELLANT FIRM VRE RECEIVI NG ON MONEY IN RESPECT OF TENEMENTS SOLD BY THEM TO VARIOUS PARTIE S. DURING THE YEAR TOTAL OF 20 TENEMENTS WERE SOLD AND IN REAPED OF 7 TENEMENTS THERE HAS BEEN ESTABLISHED FACT THAT ON MONEY WAS RECEIVED FR OM AHUJA GROUP. IN RESPECT OF THESE 7 TENEMENTS FOR THE SAKE OF THEIR OWN CONVENIENCE AHUJA GROUP WAS RECORDING THE PAYMENT OF CASH IN ADDITION TO THE AGREEMENT VALUE FROM WHERE THE RECEIPT OF CASH BY THE APPELLA NT WAS DETECTED. IT CANNOT BE SAID THAT IN RESPECT OF THE REMAINING 13 TENEMENTS, THE APPELLANT HAD FORGONE THE ADDITIONAL CONSIDERATION OF RS 1,70,000 AND THAT THE APPELLANT WAS CHARITABLE WITH THE BUYER OF THESE 13 TENEMENTS. THE ON MONEY RECEIVED WAS NOT RECORDED BY THE APPEL LANT IN THE CASE OF 7 TENEMENTS SOLD TO AHUJA GROUP AND HENCE NATURALLY T HE APPELLANT DID NOT RECORD THE ON MONEY RECEIVED IN RESPECT OF 13 REMAI NING TENEMENTS. ON THE BASIS OF THE PRINCIPLE OF PREPONDERANCE IT IS E STABLISHED THAT APPELLANT RECEIVED ON MONEY IN RESPECT OF SALE OF 13 TENEMENT S ALSO. SEVERAL COURTS HAVE HELD THAT WHEN THERE IS EVIDENCE IN RESPECT OF CERTAIN TRANSACTIONS THAT ASSESSEE HAS RECEIVED ON MONEY OR ASSESSEE HAS RECEIVED HIGHER SALES CONSIDERATION, THE NATURAL CONCLUSION IS THAT DURING THE YEAR UNDER SIMILAR CIRCUMSTANCES, THE ASSESSES WAS ALSO RECEIV ING SIMILAR KIND OF SALE CONSIDERATION, UNLESS THE FACTS ARE DRASTICALL Y DIFFERENT FROM THE FACTS IN THE CASE WHERE RECEIPT OF EXTRA MONEY HAS BEEN F OUND. IT IS ALSO A COMMON PRACTICE AND UNIVERSAL TRUTH THAT BUILDERS A RE CHARGING ON MONEY AT THE TIME OF SALE OF FLAT/TENEMENTS AND THI S FACT CANNOT BE DENIED. THE COURTS HAVE HELD THAT A UNIVERSAL TRUTH CANNOT BE IGNORED. 1, THEREFORE, AGREE WITH THE FINDINGS OF THE AO THAT A PPELLANT FIRM HAS RECEIVED ON MONEY IN RESPECT OF THE REMAINING 13 TE NEMENTS ALSO, BOOKED DURING THE YEAR. ACCORDINGLY, I CONFIRM THE ADDITIO N MADE BY THE AO. 7. BEFORE US, LD. AR FOR THE ASSESSEE SUBMITTED THA T ASSESSEE WAS ONLY AN AGENT/EMPLOYEE OF SANT NIRANKARI SOCIETY ON WHOS E BEHALF IT WAS WORKING, CONSTRUCTING, DEVELOPING THE TENEMENTS. TH EREFORE, IT COULD NOT BE THE OWNER OF MONEY RECEIVED. THE AMOUNT RECEIVED IN CHEQUE I.E RS.2,81,000/- HAS BEEN RECORDED IN THE BOOKS OF NIR ANKARI SOCIETY AND, THEREFORE, OTHER SUM RECEIVED IN CASH SHOULD ALSO B E CONSIDERED AS PART OF THE SALE PROCEEDS AND SHOULD BE TAXED IN THE HANDS OF THE SOCIETY. ALTERNATIVELY, IT IS SHRI JANAK V. PATEL WHO HAS RE CEIVED THE CASH, THEREFORE, HE SHOULD ONLY BE TAXED. THE FIRM AS SU CH HAS NOTHING TO DO 8 AND NO LIABILITY CAN BE FIXED ON THE FIRM IN RESPEC T OF CASH RECEIVED. HE FURTHER SUBMITTED THAT OUT OF SEVEN TENEMENTS SOLD TO SUPER GROUP FIVE TENEMENTS WERE SOLD IN THE CURRENT YEAR AND TWO TEN EMENTS IN ASST. YEAR 1999-2000. HE SUBMITTED THAT TENEMENTS NO.3,12,15,1 8 & 29 WERE BOOKED DURING ASST. YEAR 1998-99 WHEREAS TENEMENTS NO.25 & 26 WERE BOOKED IN ASST. YEAR 1999-2000. A SUM OF RS.8,95,00 0 HAS BEEN SHOWN TO HAVE RECORDED IN THE BOOKS OF NIRANKARI SOCIETY. HE SUBMITTED THAT IN RESPECT OF FIVE TENEMENTS A TOTAL SUM OF RS.21,50,0 00/- WAS RECEIVED, OUT OF WHICH RS. 3,00,000/- WAS BY CHEQUE AND RS.18,50, 000/- WAS BY CASH. SINCE SUM OF RS.8,95,000/- WAS SHOWN TO HAVE BEEN R ECORDED IN THE BOOKS OF THE SOCIETY THEN IT IS ONLY THE REST OF TH E SUM I.E. RS.12,55,000/- REMAINED FROM BEING ACCOUNTED IN THE BOOKS OF THE S OCIETY. THEREFORE, THE EXTRA SUM COULD ONLY BE TAXED IN THE HANDS OF NIRAN KARY SOCIETY AND NOT IN THE HANDS OF ASSESSEE FIRM. THE LD. AR SUBMITTED THAT THERE WAS AN AGREEMENT FOR SUPERVISION BETWEEN THE ASSESSEE FIRM AND NIRANKARI SOCIETY EXECUTED ON 8.9.96 THEREBY ASSESSEE FIRM WA S ENTRUSTED WITH WORK OF CONSTRUCTION, SUPERVISION ETC. THEREFORE, ADDITI ONAL MONEY SHOULD NOT BE TAXED IN THE HANDS OF ASSESSEE FIRM. 8. ON THE OTHER HAND LD. DR POINTED OUT THAT SHRI J . V. PATEL IS A PARTNER OF THE FIRM AND IS CARRYING OUT ALL THE ACT IVITIES OF CONSTRUCTION, DEVELOPMENT AND SALE ON BEHALF OF THE FIRM. HE IS R ECEIVING AND PAYING MONEY ON BEHALF OF THE FIRM. THEREFORE, WHATEVER HE IS RECEIVING ON SALE OF TENEMENTS WOULD ALSO BE ON BEHALF OF THE FIRM. S ECONDLY LD. DR SUBMITTED THAT NO EVIDENCE WAS FURNISHED BEFORE AO AND THEREFORE, ASSESSMENT WAS MADE EX PARTE. LD. DR THEN SUBMITTED THAT THERE IS A CLEAR ADMISSION OF RECEIPT OF MONEY FROM SUPER GROUP BUT THEREAFTER THERE IS NO EVIDENCE AS TO WHERE THIS MONEY HAS GONE. SINCE THE ASSESSEE FIRM IS CARRYING ON ALL THE ACTIVITIES OF CONSTRUCTION, DEV ELOPMENT, ALLOTMENT, SALE 9 THEN CASH RECEIVED WOULD ALSO BE ASSESSEES INCOME. SHE SUBMITTED THAT ALLEGED SUPERVISION AGREEMENT IS AN AFTER THOUGHT A ND IT WAS NEVER SUBMITTED BEFORE THE LOWER AUTHORITIES. 9. IN RESPECT OF ADDITION OF RS.22,10,000/- LD. AR SUBMITTED THAT NO EVIDENCE HAS BEEN FOUND IN THE SEARCH SO AS TO SHOW THAT ANY CASH PORTION HAS BEEN RECEIVED ON THEIR SALE. NO ENQUIRY HAS BEE N CARRIED OUT FROM THE PURCHASERS AS TO WHETHER THEY HAVE PAID ANY CASH MO NEY FOR PURCHASE OF TENEMENTS. EVEN IN THE STATEMENT RECORDED SHRI J. V . PATEL HAS NOWHERE ADMITTED TO HAVE RECEIVED ANY CASH ON SALE OF OTHER TENEMENTS. THE INFERENCE DRAWN BY LD. AO & THE LD. CIT(A) IS INCOR RECT AND ADDITION HAS BEEN MADE ONLY ON THE BASIS OF ASSUMPTION AND PRESU MPTION. 10. THE LD. DR ON THE OTHER HAND, RELIED ON THE ORD ERS OF AUTHORITIES BELOW. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW ADDITION OF RS.11 ,90,000/- AND RS.2,16,120/- DESERVE TO BE CONFIRMED. THE REASONS ARE THAT FIRSTLY THERE IS NO DISPUTE THAT ENTRIES IN THE DIARY A4 WERE MADE BY SHRI J. V. PATEL AS ADMITTED BY HIM IN THE STATEMENT RECORDED ON OATH. NO CONTRADICTORY EVIDENCE OR RETRACTION OF SUCH STATEMENT HAS BEEN M ADE. THERE IS A CLEAR ADMISSION THAT SHRI J. V. PATEL HAD RECEIVED CASH O F RS.18,50,000/- ON SALE OF TENEMENTS TO SUPER GROUP. THERE IS NO DISPU TE ABOUT CODE AND THE AMOUNTS. THE ONLY DISPUTE IS WHETHER THIS AMOUNT SH OULD BE ASSESSED IN THE HANDS OF THE ASSESSEE FIRM OR IN THE HANDS OF S HRI J.V.PATEL OR IN THE HANDS OF SOCIETY. WE HAVE EXAMINED THE SUPERVISION AGREEMENT AND IT PROVIDES COMPLETE AUTHORITY TO ASSESSEE FIRM TO REG ISTER THE MEMBERS FOR DWELLING HOUSE, SHOPS, TO EXCHANGE NEW MEMBERS IN P LACE OF OLD 10 MEMBER, TO COLLECT CONTRIBUTION FROM THE MEMBERS, I SSUE RECEIPTS FOR RECEIPT OF MONEY, TO ARRANGE FINANCE, TO SUPERVISE CONSTRUCTION, OR GIVE TECHNICAL ADVICE OR TO DO ALL TYPES OF ADMINISTRATI VE WORK. > THE ASSESSEE FIRM IS AUTHORISED TO MAKE PLAN FOR CONSTRUCTION OF THE HOUSES AND SHOPS, TO SUPERVISE THE SCHEME OF CONSTR UCTION TO REGISTER THE MEMBERS FOR THE HOUSES AS WELL AS THE SHOPS. > TO DETERMINE THE LUMP SUM FINANCIAL CONTRIBUTION AND MAINTENANCE DEPOSITS. > THE ASSESSEE FIRM IS AUTHORISED TO COLLECT LOAN C ONTRIBUTION, CONSTRUCTION CONTRIBUTION, SUPERVISION CHARGES, OTH ER DEPOSITS, MISCELLANEOUS EXPENSES ETC. > TO MAKE ALLOTMENT TO VARIOUS PERSONS, TO COMPLETE THE LEGAL FORMALITIES ETC. > IN RETURN OF THIS, THE ASSESSEE FIRM IS PROVIDED 5% ON TOTAL CONTRIBUTION RECEIVED FROM THE MEMBERS. 12. EVEN THOUGH ON PAPER ASSESSEE FIRM IS PROVIDED ONLY 5% AS SUPERVISION CHARGES BUT IT IS NOT PROVED THAT MONEY SO COLLECTED BY THE FIRM THROUGH SHRI J. V. PATEL HAS BEEN PASSED ON TO THE SOCIETY. ONCE THE FACTUM OF RECEIPT OF MONEY IS ESTABLISHED AND ASSES SEE FIRM IS AUTHORISED TO FIX THE CHARGES IN RESPECT OF SALE OF TENEMENTS THEN IT IS DIFFICULT TO BELIEVE IN ABSENCE OF ANY EVIDENCE THAT MONEY SO CO LLECTED HAS BEEN PASSED ON TO THE SOCIETY. WHAT IS PASSED ON IS ONLY THE AMOUNT IN CHEQUE. IN ABSENCE OF EVIDENCE OF TRANSFERRING MONEY TO THE SOCIETY MONEY SO 11 RECEIVED AND ADMITTED BY SHRI J. V. PATEL WILL BE T HE INCOME OF THE ASSESSEE. THE SECOND REASON IS THAT ASSESSEE FIRM I S DE FACTO ACTING AS OWNER OF ENTIRE DEVELOPMENT, CONSTRUCTION AND SALE EXCEPT TRANSFERRING RECORDED SUM RECEIVED IN CHEQUE TO THE SOCIETY. WE HAVE NOT BEEN PROVIDED WITH ANY CONSTITUTION OF NIRANKARI SOCIETY OR THEIR OFFICE BEARERS SO AS TO APPRECIATE THE STAND OF THE ASSESSEE THAT IT IS ACTING ONLY IN FIDUCIARY CAPACITY. TO US, THE SOCIETY IS ONLY A CO VER WHEREAS REAL OWNER IS THE FIRM AND THE RECEIPTS ARE ACCORDINGLY DIVIDE D BETWEEN THE TWO I.E. THE RECORDED PRICE ARE TRANSFERRED IN THE BOOKS OF SOCIETY WHEREAS UNRECORDED RECEIPTS ARE POCKETED BY THE FIRM. IN VI EW OF THIS, WE CONFIRM THE ORDER OF LD. CIT(A) IN SUSTAINING THE ADDITION OF RS.11,90,000/- AND RS.2,16,120/- BEING ADDITIONAL RECEIPTS ON SALE OF TENEMENTS TO SUPER GROUP AND ITS CONCERNS. THE ARGUMENT OF LD. AR IS T HAT PROCEEDS IN RESPECT OF FIVE TENEMENTS BE TAXED IN THE CURRENT Y EAR IS NOT ACCEPTABLE BECAUSE NO EVIDENCE TO THIS EFFECT HAS BEEN PROVIDE D. THE BOOKS OF ACCOUNT OF THE SOCIETY ARE NOT PRODUCED OR THAT OF THE FIRM SO AS TO SHOW THAT CASH AMOUNTS FROM SUPER GROUP WERE RECEIVED IN RESPECT OF SALES MADE IN ASST. YEAR 1999-2000. AS PER THE DIARY A-4 ENTIRE SUM IS RECEIVED IN F.Y.1997-98 RELEVANT TO ASST. YEAR 1998 -99. THEREFORE, THEY ARE RIGHTLY TAXED IN THE CURRENT ASST. YEAR I.E. 19 98-99. AS A RESULT GROUND NOS.1,2 & 3 IN ASSESSEES APPEAL ARE REJECTED. 13. HOWEVER, THE SAME IS NOT TRUE IN THE CASE OF RE CEIPT OF ON MONEY OF RS.22,10,000/-. THE ONLY BASIS FOR MAKING ADDITI ON IS THAT SHRI J. V. PATEL HAS SO STATED DURING PROCEEDINGS UNDER SECTIO N 132(4). HOWEVER, WE FIND THAT NO SUCH STATEMENT IS GIVEN BY HIM. THE RE LEVANT QUESTIONS AND ANSWERS ARE QUESTION NO.2 IN THE STATEMENT DATED 18 .3.1998 AND QUESTION NO.12 IN THE STATEMENT DATED 24.12.1997 WHICH ARE A S UNDER :- 12 Q.2 I AM SHOWING YOU PAGE NO.1(ONE) OF DIARY NO.A- 4 (PAGES 1 TO 12) SEIZED FROM THE RESIDENCE OF SHRI KARAMCHAND GANGWA NI. YOU HAVE SIGNED ON THIS PAGE AND YOU HAVE ALSO WRITTEN ALL DEA. WHAT DOES IT STAND FOR ? ANS.2 ACTUALLY THIS HAS BEEN WRITTEN IN CODE LANGUA GE WHICH IS GENERALLY USED. IN THIS LANGUAGE THE FIGURES ARE REPLACED BY ALPHABET AS UNDER : FIGURES 1 2 3 4 5 6 7 8 9 0 ALPHABET A B C D E F G H I Z Q. 12 WHAT IS THE SELLING RATE OF VARIOUS TE NEMENTS IN THIS SCHEME ? ANS. 12 EACH TENEMENT IS OF AROUND 165 SQ.YARD PL OT ON WHICH PLINTH AREA IS 85 SQ.YD. THE RATE IS AROUND RS.1200 PER SQ .YD. IT IS IMPORTANT TO NOTE THAT PLOT NO.18 IS OF LARGER AREA AND HENCE RATE IS MORE THESE TWO QUESTION-ANSWERS DO NOT INDICATE THAT ASS ESSEE FIRM OR SHRI J. V. PATEL HAD RECEIVED ANY ON MONEY IN RESPECT OF SALE OF OTHER TENEMENTS. EVEN THOUGH A CONSEQUENTIAL INFERENCE CA N BE DRAWN THAT IF ASSESSEE FIRM IS RECEIVING ON MONEY ON SALE OF TE NEMENTS TO SUPER GROUP INDUSTRIES THEN WHY IT SHOULD NOT BE RECEIVIN G SUCH ON MONEY IN RESPECT OF SALE OF TENEMENTS TO OTHERS. THIS SEEMS TO BE THE ONLY BASIS FOR MAKING ADDITION WHICH IN OUR CONSIDERED VIEW IS NOT SUFFICIENT TO CAST A TAX LIABILITY ON THE ASSESSEE FIRM. THERE SHOULD BE CLEAR EVIDENCE EITHER IN THE FORM OF STATEMENT OR OTHERWISE THAT ASSESSEE FI RM HAD RECEIVED ON MONEY ON SALE OF OTHER TENEMENTS. THERE CANNOT BE A PRESUMPTION OF ILLEGAL COLLECTION OF ON MONEY. THERE IS ALSO NO CASE FOR ESTIMATION OF SUCH RECEIPTS AS IT IS NOT SO MADE OUT BY THE AO. T HERE CAN BE ONLY A SUSPICION THAT ASSESSEE MIGHT BE COLLECTING ON MON EY FROM OTHERS AS WELL BUT IT CANNOT BE A BASIS FOR MAKING ADDITION. THE AO HAS NOT ENQUIRED FROM ANY OTHER PERSONS INCLUDING ALLEGED P URCHASERS WHETHER 13 ANY ONE OF THEM PAID ANY CASH TO THE ASSESSEE. IN A BSENCE OF ANY EVIDENCE FOR HOLDING THAT ASSESSEE HAD RECEIVED ON MONEY O N SALE OF OTHER TENEMENTS, ADDITION OF RS.22,10,000/- CANNOT BE SUS TAINED. ACCORDINGLY THIS ADDITION IS DELETED. 14. THIS APPEAL FILED BY ASSESSEE IS PARTLY ALLOWED . ITA NO.1560/AHD/2006 FOR ASST. YEAR 1998-99 15. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAI NST THE ORDER OF CIT(A) CONFIRMING LEVY OF PENALTY UNDER SECTION 271 (1)(C). THE AO HAD LEVIED PENALTIES IN RESPECT OF ADDITION OF RS.11,90 ,000/- AND RS.2,16,120/- BEING CASH MONEY RECEIVED ON SALE OF TENEMENTS TO S UPER GROUP OF INDUSTRIES AND AN ADDITION OF RS.22,10,000/- BEING ON MONEY THOUGHT TO HAVE BEEN RECEIVED ON SALE OF OTHER 13 TENEMENTS. 16. THE FACTS OF THE CASE ARE RECORDED BY US IN THE ABOVE QUANTUM APPEAL OF THE ASSESSEE. THE AO ISSUED PENALTY NOTIC E BUT ASSESSEE DID NOT FURNISH ANY REPLY EXCEPT PRAYING THAT PROCEEDINGS B E KEPT IN ABEYANCE TILL THE DISPOSAL OF QUANTUM APPEAL. SUBSEQUENTLY WHEN T HE CIT(A) CONFIRMED THE ADDITION THE AO ISSUED FURTHER NOTICE AND THEN IN RESPONSE THERETO ALSO THE ASSESSEE REQUESTED TO KEEP THE PRO CEEDINGS IN ABEYANCE TILL THE DISPOSAL OF QUANTUM APPEAL. HOWEVER, THE A O PROCEEDED TO LEVY PENALTY AS ASSESSEE DID NOT FURNISH ANY EXPLANATION ON MERIT. HE ACCORDINGLY LEVIED THE PENALTY OF RS.12,65,642/-. 17. THE LD. CIT(A) CONFIRMED THE PENALTY BY OBSERVI NG AS UNDER :- 4. I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHOR ISED REPRESENTATIVE CAREFULLY AND I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO IN THE 14 PENALTY ORDER. I FIND THAT A DIARY MARKED AS A-4 WA S SEIZED DURING THE SEARCH PROCEEDINGS IN THE PREMISES OF SUPER GROUP O F INDUSTRIES. THIS DIARY CONTAINED TRANSACTIONS RECORDS IN CODES SHOWI NG RECEIPT OF ON MONEY BY THE APPELLANT FIRM WHO WAS ENTRUSTED THE W ORK OF DEVELOPMENT AND SUPERVISION OF TENEMENTS. THE ON MONEY TO THE T UNE OF RS.18,50,000/- HAS BEEN RECEIVED ON SALE OF 7 TENEMENTS TO AHUJA G ROUP. THIS HAS BEEN ADMITTED BY PARTNER OF THE APPELLANT FIRM SHRI JANA K PATEL. THE APPELLANTS CONTENTION IS THAT CONTRIBUTIONS FROM M EMBERS WERE DIRECTLY CREDITED IN THE BOOKS OF CO-OP. SOCIETY I.E. SANT N IRANKARI CO-OP HOUSING SOCIETY LTD., THEREFORE, ON MONEY GIVEN BY AHUJA GR OUP ON SALE OF 7 TENEMENTS IS THE UNACCOUNTED INCOME OF THE SOCIETY. THIS CONTENTION OF THE APPELLANT FIRM HAS NOT BEEN ACCEPTED BY THE CIT (A)-XII IN HIS ORDER DATED 27.02.2004 IN QUANTUM APPEAL IN THE CASE OF T HE APPELLANT. WHILE DECIDING THE QUANTUM APPEAL, THE CIT(A) HAS HELD TH AT THE APPELLANT FIRM HAS RECEIVED CASH OVER AND ABOVE THE AGREEMENT PRIC E AND THE QUANTUM OF SUCH MONEY HAS BEEN CLEARLY ADMITTED BY SHRI JAN AK V. PATEL AND KARAMCHAND GANGVANI MANAGER OF SUPER GROUP AND THER EFORE, THE CIT(A) HAS UPHELD THE ADDITION OF RS.11,90,000/- AN D RS.2,16,120/- AS REPRESENTING UNACCOUNTED INCOME OF THE APPELLANT RE CEIVED OUTSIDE THE BOOKS OF ACCOUNTS. IT HAS ALSO BEEN HELD THAT THE E NTIRE FINANCIAL AND MANAGERIAL CONTROL OF THE SOCIETY WAS IN THE HANDS OF THE APPELLANT FIRM ON THE BASIS OF DEVELOPMENT AGREEMENT MADE BY THE F IRM WITH THE CO- OPERATIVE HOUSING SOCIETY AND FURTHER THE APPELLANT ITSELF HAS MADE DISCLOSURE UNDER VDIS97 SCHEME IN ASST. YEAR 1997- 98 IN RESPECT OF UNDISCLOSED INCOME ARISING FROM BUSINESS OF SUPERVI SION OF BUILDING CONSTRUCTION WORK OF THE SOCIETY. THE CIT(A) HAS AL SO HELD THAT THE APPELLANT FIRM HAS RECEIVED ON MONEY IN RESPECT OF THE REMAINING 13 TENEMENTS DURING THE YEAR. THEREFORE, THE APPELLANT FIRM WAS IN TOTAL CONTROL OF ENTIRE FINANCIAL AND MANAGERIAL CONTROL OF THE SOCIETY FOR THE SALE OF TENEMENTS AND AS THE APPELLANT HAS NOT ACCO UNTED THE SAID ON MONEY, IT IS A CLEAR CASE OF CONCEALMENT OF INCOME. THEREFORE, FROM A READING OF THE ASSESSMENT ORDER, THE APPELLATE ORDE R OF CIT(A), THE SEIZED DOCUMENTS, THE STATEMENT OF PARTNER SHRI JANAK PATE L AND KARAMCHAND GANGVANI, MANAGER OF SUPER GROUP, I CONCLUDE THAT T HERE IS DIRECT EVIDENCE OF RECEIPT OF ON MONEY BY THE APPELLANT FI RM AS THE DEVELOPER. THE ADDITION OF ON MONEY HAS BEEN CONFIRMED IN FIRS T APPEAL. HENCE I AM OF THE VIEW THAT IT IS A CLEAR CASE OF CONCEALMENT OF INCOME BY THE APPELLANT. HENCE I CONFIRM THE LEVY OF PENALTY. 18. IN BRIEF, THE LD. CIT(A) HELD THAT (I) THE RECE IPT OF ON MONEY HAS BEEN ADMITTED BY THE PARTNER OF THE FIRM SHRI JANAK V. PATEL; (II) IT IS 15 REFLECTED BY THE SEIZED DOCUMENTS, SEIZED DIARY-A-4 WHICH CONTAINED THE SIGNATURE OF SHRI JANAK V. PATEL. THE CONTENTION OF THE ASSESSEE FIRM THAT THIS MONEY BELONG TO SANT NIRANKARI SOCIETY HAS NOT BEEN ACCEPTED IN APPEAL PROCEEDINGS; AND (III) THE ENTIRE FINANCIAL AND MANAGERIAL CONTROL IS IN THE HANDS OF ASSESSEE FIRM. THE ASSESSEE FIRM HA D MADE DISCLOSURE IN ASST. YEAR 1997-98 IN RESPECT OF UNDISCLOSED INCOME ARISING FROM BUSINESS OF CONSTRUCTION AND THEIR SUPERVISION. 19. BEFORE US, BOTH THE PARTIES RELIED ON THE SUBMI SSIONS MADE BY THEM DURING THE COURSE OF QUANTUM PROCEEDINGS. 20. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW NO PENALTY IN RES PECT OF SUM OF RS.22,10,000/- CAN BE LEVIED AS THIS AMOUNT IS DELE TED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS. OUR VIEW IS SUPPORTED BY T HE DECISIONS OF ITAT, MUMBAI BENCH IN THE CASE OF ACIT VS. VIP INDU STRIES (2009) 122 TTJ 289, HON. ALLAHABAD HIGH COURT IN ADDL. CIT VS. BADRI PRASAD KASHI PRASAD (1993) 200 ITR 206 (ALL), HON. RAJASTH AN HIGH COURT IN CIT VS. MOHD. BUX (2004) 265 ITR 326 (RAJ) AND CALC UTTA HIGH COURT IN CIT VS. BENGAL JUTE MILLS CO. LTD. (1988) 174 ITR 4 02 (CAL). 21. HOWEVER, THE SAME VIEW CANNOT BE TAKEN IN RESPE CT OF ADDITIONS OF RS.11,90,000/- AND RS.2,16,120/-. IT IS BECAUSE FAC TUM OF RECEIPT OF CASH BY SHRI JANAK V. PATEL HAS BEEN PROVED BUT NO EXPLA NATION HAS BEEN FURNISHED AS TO WHETHER THIS MONEY IS RECORDED. AS NO EXPLANATION IN RESPECT OF THESE ADDITIONS OR EXPLANATION IN RESPON SE TO SHOW CAUSE NOTICE BEFORE LEVY OF PENALTY HAS BEEN FURNISHED, THE CASE OF THE ASSESSEE IS CLEARLY COVERED WITHIN THE MEANING OF EXPLANATION 1 (A) TO SECTION 271(1)(C). ACCORDING TO THIS CLAUSE IF ASSESSEE FAI LS TO FURNISH ANY 16 EXPLANATION THEN THE ADDITION MADE BY THE AO WOULD BE DEEMED TO BE INCOME WHICH HAS BEEN EITHER CONCEALED OR IN RESPEC T OF WHICH INACCURATE PARTICULARS HAVE BEEN FURNISHED. EVEN OTHERWISE THE CASE OF THE ASSESSEE IS COVERED WITHIN THE MEANING OF EXPLANATION 1(B) A LSO. IF WE TREAT THE EXPLANATION FURNISHED BEFORE LD. CIT(A) IN RESPECT OF ADDITION WE NOTICE THAT IT IS NOT SHOWN BY THE ASSESSEE WERE THE MONEY HAS GONE AFTER RECEIVING FROM SUPER GROUP OF INDUSTRIES. THE FACTU M OF RECEIPT OF ON MONEY IS PROVED BUT ITS FURTHER DESTINATION IS NOT ESTABLISHED BY THE ASSESSEE. NO EVIDENCE AS TO ITS OUTFLOW OR UTILIZAT ION OR ANY DESTINATION HAS BEEN FURNISHED. THE EXPLANATION THAT THIS WOULD BELONG TO THE SOCIETY IS ALSO NOT SUBSTANTIATED INASMUCH AS BOOKS OF THE SOCIETY, CONSTITUTION OF THE SOCIETY ETC. WERE NOT PRODUCED BEFORE THE LOWER AUTHORITIES OR BEFORE US. THE CLAIM THAT ON MONEY WOULD BELONG TO THE S OCIETY IS APPARENTLY NOT BONA FIDE AS ASSESSEE HAS BEEN AUTHORISED TO CA RRY ON ALL THE ACTIVITIES INCLUDING DEVELOPMENT, CONSTRUCTION ALLOTMENT AND R ECOVERY OF FUNDS. IT HAS BEEN HELD IN THE ABOVE QUANTUM PROCEEDINGS THAT ASSESSEE IS DE FACTO IN CONTROL AND MANAGEMENT OF FINANCIAL TRANSACTIONS IN RESPECT OF CONSTRUCTION ACTIVITIES AND, THEREFORE, NEITHER THE EXPLANATION IS BONA FIDE NOR IT IS SUBSTANTIATED. THUS WE CONFIRM THE PENALT Y IN RESPECT OF SUMS OF RS.11,90,000/- AND RS.2,16,120/-. THIS APPEAL OF TH E ASSESSEE IS ALSO PARTLY ALLOWED. 21. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 04/06/2010 SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 04/06/2010 17 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD