Sh. Dinesh Chand Gupta, Agra V. Dy.C.I.T., Cir.4(1), Agra

ITA 169/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0474 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-07-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 25-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Assessee Lawyers: K C AGARWAL
• Keywords: Unexplained cash credit; Set aside
• Section: 271(1)(c); 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 169/AGRA/2012 ASSTT. YEAR : 2003-04 SHRI DINESH CHAND GUPTA, VS. D.C.I.T., CIRCLE 4(1 ), PROP. SHRI SHAMBHU DAL MILL, AGRA. LANE GAUSHALA, BELANGANJ, AGRA(PAN:ABWPG7619N). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCATE RESPONDENT BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 17.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 26.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II, AGRA DATED 17.02.2012 FOR THE ASSESSMENT YEAR 2003- 04, CHALLENGING THE CONFIRMATION OF PENALTY U/S. 271(1)(C) OF THE IT AC T. 2. EARLIER, THE APPEAL OF THE ASSESSEE WAS DECIDED VIDE ORDER DATED 14.09.2012 DISMISSING THE APPEAL OF THE ASSESSEE BECAUSE OF NO N-APPEARANCE ON THE PART OF THE ASSESSEE. THE ASSESSEE MOVED MISCELLANEOUS APPLICAT ION NO. 34/AGRA/2012 EXPLAINING THE REASONS FOR NON-APPEARANCE. THE TRIB UNAL WAS SATISFIED WITH THE ITA NO. 169/AGRA/2012 2 EXPLANATION OF THE ASSESSEE, THEREFORE, EARLIER ORD ER DATED 14.09.2012 WAS RECALLED AND APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON MERITS. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE AGAINST THE ORDER OF THE AO IN APPEAL PREFERRED BY THE ASSESSEE, THE LD. CIT(A) -II VIDE ORDER DATED 22.08.2008 HAS CONFIRMED THE AOS ACTION OF DISALLOWANCE OF LO SS OF RS.10,29,960/- AND ALSO CONFIRMED THE ADDITION OF UNSECURED LOAN OF RS.11,8 7,358/-. WHILE IMPOSING THE PENALTY, THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE EXPLANATION OFFERED AND FAILED TO PROVE THAT SUCH E XPLANATION IS BONA FIDE. THE REPLY OF THE ASSESSEE WAS NOT FOUND CONVINCING. THE ASSESSEE FAILED TO PROVE LOSS AS WELL AS GENUINENESS OF THE CREDITS IN THE MATTER. T HEREFORE, THE AO HELD THAT ASSESSEE HAD CONCEALED PARTICULARS OF INCOME AND HA S IMPOSED THE PENALTY U/S. 271(1)(C) OF THE IT ACT. THE ASSESSEE CHALLENGED TH E PENALTY ORDER BEFORE THE LD. CIT(A) AND HIS WRITTEN SUBMISSION IS REPRODUCED IN THE APPELLATE ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT THE LD. CIT(A) REMANDED THE MATTER TO THE AO FOR FILING REMAND REPORT AT QUANTUM PROCEEDINGS, BU T THE AO DID NOT FILE ANY REMAND REPORT. THE ASSESSEE FURNISHED PARTICULARS O F LOSS AS WELL AS CASH CREDITS. IT WAS ALSO SUBMITTED BEFORE THE AO ON 16.03.2007 THAT EVIDENCE OF FIRE BROKE OUT IN THE PREMISES OF THE ASSESSEE AND THE BUSINESS STOCK DESTROYED, WAS FURNISHED. FIR LODGED WITH THE POLICE STATION, AND FIRE DEPARTMENT AND NEWSPAPER CUTTING WERE ITA NO. 169/AGRA/2012 3 ALSO FILED. COMPLETE DETAILS IN THE AUDIT REPORT AN D CONFIRMATORY LETTERS WERE FILED WITH THE REQUEST TO SUMMON THE CREDITORS U/S. 131 O R 133(6) FOR VERIFICATION OF THE LOAN, BUT THE AO DID NOT MAKE ANY VERIFICATION AND DID NOT SEND ANY REMAND REPORT. IT WAS EXPLAINED THAT THE EXPLANATION OF THE ASSESS EE CANNOT BE FOUND TO BE FALSE AND MERELY BECAUSE ADDITIONS HAVE BEEN MADE BY THE AO AND THE LD. CIT(A), ARE NOT ENOUGH TO LEVY PENALTY. 4. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF TH E ASSESSEE HELD THAT THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM WITH REGA RD TO BUSINESS LOSS. IN THE DOCUMENTS PRODUCED REGARDING FIRE IN THE BUSINESS P REMISES, THERE IS NO INDICATION AS TO WHAT WAS THE MAGNITUDE OF LOSS AND WHAT WAS T HE STOCK IN HAND ON THE DATE OF FIRE. FURTHER, THE ASSESSEE SIMPLY FILED CONFIRMATO RY LETTERS WITHOUT PROVING THE IDENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS A ND GENUINENESS OF THE TRANSACTION. THEREFORE, PENALTY WAS RIGHTLY IMPOSED. THE LD. CIT (A) ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE HAS REFERRED TO THE ORDER OF THE LD. CIT(A) ON QUANTUM DATED 22.08.2008 (PB-7) IN WHICH THE LD. CIT(A) FOUND THA T EXPARTE ASSESSMENT ORDER WAS NOT JUSTIFIED IN THE MATTER BECAUSE NO REASONAB LE OPPORTUNITY WAS GIVEN TO THE ITA NO. 169/AGRA/2012 4 ASSESSEE AT THE ASSESSMENT STAGE. THE REMAND REPORT , CALLED FOR FROM THE AO ON THE DOCUMENTS FURNISHED BY THE ASSESSEE AT THE APPELLAT E STAGE, WAS NOT FILED BY THE AO. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO FURTHER APPEAL ON QUANTUM HAS BEEN FILED BEFORE THE TRIBUNAL. THEREFORE, THE ORDER OF THE LD. CIT(A) DATED 22.08.2008 HAS BECOME FINAL. PB-19 ARE THE DETAILS OF SEVEN CASH CREDITORS TOTALING TO RS.11,87,358/-, FOR WHICH ADDITION WAS MADE AND SUBMITTED THAT ALL THE CREDITORS ARE ASSESSED TO TAX AND THEIR CONFIRMATIONS AND COP Y OF LEDGER ACCOUNT HAVE BEEN FILED. EVIDENCES ARE FILED IN THE PAPER BOOK FROM P AGES 20 TO 33. PB-17 IS LETTER DATED 16.03.2007 FILED BEFORE THE AO AT THE REMAND PROCEEDINGS, IN WHICH THE ASSESSEE REQUESTED THE AO TO SUMMON THE CREDITORS U /S. 131 OR 133(6) FOR THE PURPOSE OF THEIR EXAMINATION, BUT THE AO DID NOT SU MMON ANY OF THE PERSONS ON THE REQUEST OF THE ASSESSEE. HE HAS, THEREFORE, SUB MITTED THAT IN ABSENCE OF ISSUE OF SUMMONS EVEN THE ADDITION ON QUANTUM WAS NOT JUSTIF IED AND RELIED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF NATHU RAM PREM CHAND VS. CIT, 49 ITR 561, IN WHICH IT WAS HELD THAT IT W AS THE DUTY OF THE ITO TO ENFORCE ATTENDANCE OF WITNESSES IF THE EVIDENCE IS MATERIAL , IN EXERCISE OF POWERS UNDER THE ACT. HE HAS ALSO REFERRED TO PB-58 TO 60 WITH REGAR D TO THE BUSINESS LOSS AND THE QUANTITATIVE DETAILS ARE MENTIONED IN THE AUDIT REP ORT, WHICH IS ALSO SUPPORTED BY PAGES A & B OF THE PAPER BOOK. FIRE BROKE OUT I N THE PREMISES OF THE ASSESSEE, THEREFORE, REPORTS WERE LODGED WITH THE FIRE BRIGAD E, LOCAL POLICE STATION AND NEWS ITA NO. 169/AGRA/2012 5 ITEMS TO SHOW THE FIRE BROKE OUT, COPIES OF WHICH A RE AT PAGES 35 TO 41 OF THE PAPER BOOK. HE HAS SUBMITTED THAT THE ASSESSEE FURNISHED ALL THE PARTICULARS AND EVIDENCES. THEREFORE, THERE IS NO CONCEALMENT OF IN COME ON THE PART OF THE ASSESSEE OR FILING INACCURATE PARTICULARS OF INCOME. CONTENT ION OF THE ASSESSEE WAS NOT FOUND TO BE FALSE. HE HAS SUBMITTED THAT ON ALL THESE FAC TS, EVEN IF QUANTUM ADDITION HAS BEEN SUSTAINED, PENALTY SHOULD NOT HAVE BEEN IMPOSE D AGAINST THE ASSESSEE. IN SUPPORT OF THE CONTENTION, HE HAS RELIED UPON DECIS ION OF GUJRAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES VS. CIT, 164 CTR 209 IN W HICH IT WAS HELD IN ORDER TO JUSTIFY LEVY OF PENALTY FOR ADDITION OF CASH CREDITS, THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADIN G TO REASONABLE CONCLUSION THAT THE AMOUNT DOES REPRESENT ASSESSEE S INCOME AND THE CIRCUMSTANCES MUST SHOW THAT THERE WAS CONSCIOUS CO NCEALMENT OR ACT OF FURNISHING OF INACCURATE PARTICULARS; EXPLN. 1 D OES NOT MAKE THE ASSESSMENT ORDER CONCLUSIVE EVIDENCE THAT THE AMOUN T ASSESSED WAS IN FACT THE INCOME OF THE ASSESSEE. HE HAS ALSO RELIED UPON THE DECISION OF SUPREME COU RT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD., 322 ITR 158 (SC) IN WHICH IT WAS HELD AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME- TAX ACT, 1961, SUGGEST THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF PARTICULARS OF THE INCOME OF THE ASS ESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICU LARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS USED IN SECTI ON 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INA CCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PART ICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY ITA NO. 169/AGRA/2012 6 THE PROVISION, THE PENALTY PROVISION CANNOT BE INVO KED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAM OUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY TH E ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSE E CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS AR E FOUND TO BE INACCURATE, THE LIABILITY WOULD ARISE. TO ATTRACT P ENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EX ACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTIO N OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHIN G INACCURATE PARTICULARS. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER S OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. IT IS ADMITTED FACT THAT THE ASSESSEE HAS D ISCLOSED ALL THE PARTICULARS OF INCOME BEFORE THE AUTHORITIES BELOW AND THE DETAILS OF BUSINESS LOSS AND CASH CREDITS WERE ALSO DISCLOSED BEFORE THE AUTHORITIES BELOW. THE LD. CIT(A) CONFIRMED BOTH THE ADDITIONS ON QUANTUM VIDE HIS ORDER DATED 22.08.2008. THE ASSESSEE DID NOT PREFER ANY APPEAL BEFORE THE TRIBUNAL ON QUANTU M. THE LD. CIT(A) IN THE QUANTUM ORDER HAS SPECIFICALLY MENTIONED THAT EXPAR TE ASSESSMENT ORDER WAS NOT JUSTIFIED AND THAT THE EXPLANATION OF THE ASSESSEE AND ANNEXURES WERE FORWARDED TO THE AO FOR FILING THE REMAND REPORT, BUT THE AO DID NOT FILE ANY REMAND REPORT. THE ITA NO. 169/AGRA/2012 7 LD. CIT(A) WITH REGARD TO TRADING LOSS OF RS.10,29, 968/- HELD THAT IN THE ABSENCE OF THE DETAILS REQUIRED BY THE AO, NO VERIFICATION COU LD BE DONE OF THE BUSINESS LOSS. SIMILARLY, WITH REGARD TO THE UNEXPLAINED CASH CRED ITS OF RS.11,87,358/-, IT WAS HELD THAT THE ASSESSEE FILED CONFIRMATORY LETTERS A ND PAN, BUT THESE HAVE NOT BEEN VERIFIED BY THE AO. IN THE QUANTUM ORDER, THE LD. C IT(A) DID NOT HOLD THAT THE ASSESSEE FAILED TO OFFER ANY EXPLANATION OR THE EXP LANATION FILED BY THE ASSESSEE WAS FALSE. THE ASSESSEE EXPLAINED THAT DUE TO FIRE BROK E OUT IN HIS PREMISES ON 19/20.02.2003, THERE WAS SUBSTANTIAL LOSS OF ABOUT 2600 QUINTALS OF GAINS AND DAL, FOR WHICH FIR WAS LODGED, COPIES OF WHICH ARE FILED IN THE PAPER BOOK. THE DETAILS OF BUSINESS LOSS ARE MENTIONED IN THE AUDIT REPORT AND THE ASSESSEE PRODUCED QUANTITATIVE TALLY. DUE TO FIRE BROKE OUT IN THE PR EMISES OF THE ASSESSEE, HE WAS NOT ABLE TO FURNISH CERTAIN DETAILS IN SUPPORT THE CLAI M OF LOSS AND AT THE APPELLATE STAGE, WHEN THE DETAILS WERE FILED, THE AO DID NOT FILE AN Y REMAND REPORT. THE LD. CIT(A) SPECIFICALLY NOTED THAT THE EXPARTE ASSTT. ORDER WA S NOT JUSTIFIED BECAUSE NO REASONABLE OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT THE ASSESSMENT STAGE. THEREFORE, THERE WAS NO FAULT ON THE PART OF THE AS SESSEE FOR NOT FURNISHING THE DETAILS AT THE ASSESSMENT STAGE. WHATEVER DETAILS W ERE FILED AT THE APPELLATE STATE WERE NOT VERIFIED BY THE AO. THEREFORE, IT IS DIFFI CULT TO BELIEVE THAT THE ASSESSEE HAS NOT OFFERED ANY EXPLANATION OR WAS NOT ABLE TO SUBSTANTIATE HIS EXPLANATION WITH REGARD TO THE BUSINESS LOSS. FURTHER ON THE ADDITIO N MADE FOR CASH CREDITS, THE ITA NO. 169/AGRA/2012 8 DETAILS ARE FILED AT PAGE 19 OF THE PAPER BOOK IN R ESPECT OF SEVEN PARTIES, IN RESPECT OF THEM ADDITION OF RS.11,87,358 HAS BEEN MADE. ALL THE CREDITORS ARE ASSESSED TO TAX AND HAVE DISCLOSED THEIR PAN. THE SAME IS SUPPO RTED BY THE LEDGER ACCOUNT. ALL THE LOANS WERE GIVEN THROUGH BANKING CHANNEL. C ONFIRMATIONS AND LEDGER ACCOUNT ARE FILED IN THE PAPER BOOK FROM PAGES 20 T O 33. DUE TO THE FIRE IN THE PREMISES OF THE ASSESSEE, THE ASSESSEE WAS NOT ABLE TO PROVE CASH CREDITS AT THE ASSESSMENT STAGE AS NO PROPER OPPORTUNITY WAS GIVEN TO HIM. THE MATTER WAS REMANDED BY THE LD. CIT(A) TO THE AO FOR REMAND REP ORT ON THIS ISSUE ALSO AND THE ASSESSEE FILED LETTER BEFORE THE AO DATED 16.03.200 7 (PB-17) REQUESTING THE AO TO SUMMON THE CREDITORS U/S. 131 OR 133(6) DIRECTLY FO R COLLECTING EVIDENCES FROM THEM FOR CONFIRMATION OF THE LOANS. THE AO DID NOT SUMMON THE CREDITORS ON THE REQUEST OF THE ASSESSEE AND ALSO DID NOT FILE ANY R EMAND REPORT ON THE CONFIRMATION LETTERS AND LEDGER ACCOUNT FILED BY THE ASSESSEE AT THE APPELLATE STAGE. HONBLE M.P. HIGH COURT IN THE CASE OF CIT VS. RAMESH CHAND SHUK LA (MAIT NO. 71 OF 2003 DECIDED ON 01.04.2005) 10 ITJ 286 HELD IT IS NOW W ELL SETTLED THAT WHERE ASSESSEE REQUESTS THE AO TO ISSUE SUMMONS TO ENFORCE ATTENDA NCE OF THE CREDITORS TO ESTABLISH THE GENUINENESS AND CAPACITY OF THE CREDI TORS, IT IS THE DUTY OF THE AO TO ENFORCE ATTENDANCE OF THE CREDITORS BY ISSUING SUMM ONS. IF THE AO DOES NOT CHOSE TO ISSUE SUMMONS AND EXAMINE THE CREDITORS, HE CANN OT SUBSEQUENTLY TREAT THE LOANS STANDING IN THE NAME OF SUCH CREDITORS AS NON-GENUI NE NOR ADD THE AMOUNT THEREOF ITA NO. 169/AGRA/2012 9 TO THE ASSESSEES INCOME. HONBLE ALLAHABAD HIGH C OURT IN THE CASE OF MANNA LAL MURLIDHAR, 79 ITR 540 AND RADHEY SHYAM JAGDISH PRAS AD, 117 ITR 186 HELD THAT WHEN THE AO REFUSED TO SUMMON CREDITORS ON REQUEST OF ASSESSEE, IT VITIATES ASSESSMENT. SINCE IN THIS CASE THE LD. CIT(A) HELD THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT THE ASSESSMENT STAGE AND T HE AO DID NOT FILE ANY REMAND REPORT ON THE DOCUMENTS FILED BY THE ASSESSEE, THER EFORE, NO FAULT COULD BE FOUND WITH THE EXPLANATION OF THE ASSESSEE OF GENUINE CRE DITS. FURTHER THE AO DID NOT ISSUE SUMMONS TO THE CREDITORS TO ENFORCE THEIR ATT ENDANCE TO EXAMINE GENUINENESS OF THE CREDITS IN THE REMAND PROCEEDINGS. THEREFORE , AS PER ABOVE DECISION, EVEN NO ADDITION COULD BE MADE OF UNEXPLAINED CREDITS. FURT HER, CONSIDERING THE FACTS AND CIRCUMSTANCES AND DISCUSSION ABOVE, AT LEAST, IT IS CLEAR THAT NO PENALTY IS LEVIABLE IN VIEW OF THE ABOVE FINDINGS. IT IS ALSO CLEAR THA T THE ASSESSEE DISCLOSED ALL THE PARTICULARS AT THE ASSESSMENT STAGE. THE ASSESSEE F ILED EVIDENCES OF FIRE BROKE OUT IN HIS PREMISES AND COMPLETE QUANTITATIVE DETAILS OF B USINESS LOSS. THEREFORE, IT MAY NOT BE A FIT CASE FOR LEVY OF PENALTY. IT IS WELL S ETTLED LAW THAT IT IS NOT NECESSARY THAT IN EACH AND EVERY CASE, PENALTY IS TO BE IMPOSED WI THOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. IN ORDER TO JUSTIFY LEVY OF PENALTY THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADING TO REASONABLE CON CLUSION THAT THE AMOUNT IN QUESTION DOES REPRESENT ASSESSEES INCOME AND THE C IRCUMSTANCES MUST SHOW THAT THERE WAS CONSCIOUS CONCEALMENT OR ACT OF FURNISHIN G OF INACCURATE PARTICULARS. IN ITA NO. 169/AGRA/2012 10 THIS CASE, THERE IS NOTHING ON RECORD THAT THE DETA ILS SUPPLIED BY THE ASSESSEE WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. THEREF ORE, THERE IS NO QUESTION OF LEVY OF PENALTY U/S. 271(1)(C) OF THE IT ACT AGAINST THE ASSESSEE. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE IT ACT. WE MAY NOTE HERE THAT THE FINDINGS GIVEN IN THIS ORDER ARE WITH REGARD TO PENALTY MATTER ONLY AND SHALL NOT IN ANY WAY INFLUENCE OR AFFECT THE FINDINGS OF FACT RECORDED BY THE LD. CIT(A) IN QUAN TUM ORDER DATED 22.08.2008. WE, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORIT IES BELOW AND CANCEL THE PENALTY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY