Harish Kumar Sarawgi, Giridih V. DCIT, Central Circle - XI, Kolkata, Kolkata

ITA 1746/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100153 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 20-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT SUBHRA BISWAS
• Assessee Lawyers: D S DAMLE
• Keywords: Loose papers; Document seized; Documents seized
• Section: 234B; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1746 / KOL / 2011 ASSESSMENT YEAR :2008-09 HARISH KUMAR SARAWGI, DUMRI ROAD, WHATTY BAZAR, GIRIDHI 815301 JHARKHAND [ PAN NO.ALDPS 5357 E ] V/S . DCIT, CENTRAL CIRCLE-XI, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA 700 001 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI D.S.DAMLE, FCA /BY RESPONDENT SHRI RAJAT SUBHRA BISWAS, CIT-DR /DATE OF HEARING 29-10-2015 /DATE OF PRONOUNCEMENT 27-11-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, KOLKATA IN APPEAL NO. 90/CC-XI/CIT(A).C- I/10-11 DATED 28.11.2011. ASSESSMENT WAS FRAMED BY DCIT, CENTRAL CIRCLE- XI, KOLKATA U/S 143(3), 153B(B)/153D OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31.1 2.2009 FOR ASSESSMENT YEAR 2008-09. PENALTY LEVIED U/S 271AAA OF THE ACT VIDE ORDER DATED 29.06.2010 BY ASSESSING OFFICER. 2. ONLY ISSUE TO BE DECIDED IN THIS APPEAL OF ASSES SEE IS THAT WHETHER THE FACTS AND CIRCUMSTANCES OF THE ORDER OF LD. CIT(A) HAS JUSTIFIED IN CONFIRMING THE PENALTY LEVIED U/S 271AAA OF THE ACT. ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 2 3. BRIEFLY STATED FACTS ARE THAT A SEARCH AND SEIZU RE OPERATION U/S 132 OF THE ACT WAS CONDUCTED BY THE INVESTIGATION WING OF IT DEPARTMENT ON 24.01.2008 AT THE BUSINESS & AND RESIDENTIAL PREMIS ES OF ASSESSEE. IN THE COURSE OF SEARCH DOCUMENTS, LOOSE PAPERS, BOOKS OF ACCOUNT, COMPUTER HARD DISCS AND PERIPHERALS WERE FOUND, INVENTORIED AND S EIZED. THE STATEMENT U/S 132(4) OF THE ACT WAS RECORDED BY THE AUTHORIZED OF FICERS OF IT DEPARTMENT FROM SHRI HARISH KR. SARAWGI. THE ASSESSEE MADE A D ISCLOSURE OF RS. 12,62,61040.00 AS UNDISCLOSED INCOME FOR THE RELEVA NT YEAR UNDER CONSIDERATION. THE SAID FIGURE OF DISCLOSURE WAS AR RIVED ON ACCOUNT OF THE ADDITION OF THE ITEMS AS ENUMERATED BELOW:- A) UNDISCLOSED BANK ACCOUNTS B) UNDISCLOSED BUSINESS CAPITAL AND ITS PROFIT ON S UCH TRANSACTION C) UNDISCLOSED JEWELLERY ETC., FOR ALL THE ABOVE STATED DISCLOSURE PENALTY PROCEED INGS WERE DULY INITIATED U/S. 271AAA OF THE ACT AGAINST WHICH ASSESSEE MADE THE S UBMISSIONS THAT THE UNDISCLOSED INCOME OFFERED IN THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE DEPARTMENT WITHOUT MAKING ANY FURTHER ADDITION. HOW EVER, THE ASSESSING OFFICER IN HIS PENALTY ORDER DATED 29.06.2010 HAS D ISREGARDED THE SUBMISSIONS OF ASSESSEE ON THE FOLLOWING REASONS:- (I) IT IS A FACT THAT DISCLOSURE WAS MADE IN COURS E OF SEARCH BUT THE DISCLOSURE WAS NOT MADE IN THE NAME OF ANY PERSON. MOREOVER, THE ASSESSEE DID NOT DISCLOSE ANY UNDISCLOSED INCOME IN THE STATEMENT RECORDED U/S 132(4) IN COURSE OF SEARCH. (II) THERE IS NO PROVISION IN THE ACT TO ALLOW CRED IT OF TAX PAID BY OTHER PERSONS. THEREFORE, THE ASSESSEES CONTENTION THAT CREDIT OF TAX WAS NOT ALLOWED, IS NOT TENABLE. (III) INSPECTION OF SEIZED DOCUMENTS WAS ALLOWED SU BSEQUENT TO SEARCH & SEIZURE OPERATION. THEREFORE, THE PLEA OF THE ASS ESSEE THAT CORRECT UNDISCLOSED INCOME COULD NOT BE QUANTIFIED, HAS NO BASIS. (IV) AS STATED EARLIER, THAT THERE IS NO PROVISION IN THE IT ACT TO ALLOW CREDIT OF THE TAX PAID BY THE OTHERS IN THEIR INDIV IDUAL CAPACITY. (V) INTEREST U/S. 234A, 234B & 234C HAS BEEN CALCUL ATED CORRECTLY AS THERE IS NO PROVISION IN THE IT ACT TO TREAT THE SE IZED CASH AS ADVANCE TAX. SEIZED CASH CAN BE ADJUSTED AGAINST THE EXISTI NG LIABILITY. ON THE DATE OF SEIZURE, THERE WAS NO EXISTING LIABILITY ON ACCOUNT OF TAX. THEREFORE, THE ASSESSEES CONTENTION ON THIS CUNT I S NOT TENABLE AND THE SAME IS SUMMARILY REJECTED. ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 3 (VI) IT IS A FACT THAT THE ASSESSEE STATED THE MANN ER IN WHICH THE UNDISCLOSED INCOME WAS EARNED, BUT FAILED TO SUBSTA NTIATE THE SAME. TO SUM UP, THE ASSESSEE IS NOT ENTITLED TO IMMUNITY FROM PENALTY PROVIDED IN SUB-SEC. 2 OF SEC. 271AAA OF IT ACT, 19 61 AS ALL THE CONDITIONS LAID DOWN IN THAT SECTION HAVE NOT BEEN SATISFIED. 6. IN VIEW OF THE ABOVE, I AM SATISFIED THAT IT IS A FIT CASE FOR IMPOSING OF PENALTY U/S. 271AAA OF THE IT ACT, 1961. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO CONFIRMED THE ACTION OF ASSESSING OFFICER AS PER VIDE PARA 4.5 OF HIS ORDER WHICH IS REPRODUCED BELOW:- 4.5 NOW THE QUESTION UNDER CONSIDERATION IS WHETHE R THE DISCLOSURE MADE BY SRI SANTOSH KR. SARAWG CAN BE TREATED AS DI SCLOSURE MADE ON BEHALF OF HIS BROTHER SRI HARISH KR. SARAWGI FOR TH E PURPOSE OF CLAIMING IMMUNITY UNDER SECTION 271AAA OF THE ACT. IN SUPPOR T OF THE CLAIM THE LD. AR HAS RELIED ON THE DECISION OF THE HON'BLE HI GH COURT OF ALLAHABAD IN THE CASE OF CIT V. PRAMOD KUMAR MAHESH WARI, 294 ITR 175 (ALL). IN THE SAID CASE THE SURRENDER WAS MADE BY THE ASSESSEES FATHER AND NO ENQUIRIES WERE MADE FROM THE ASSESSEE . WHERE AS IN THE CASE UNDER CONSIDERATION THE DOCUMENTS RELATED TO T HE UNACCOUNTED BUSINESS WAS NOT ONLY SEIZED FROM THE POSSESSION OF THE ASSESSEE IN THE PREMISES LOCATED IN DIFFERENT CITY AND BUT ALSO DETAIL ENQUIRIES WERE MADE FROM HIM DURING THE CURSE OF SEARCH PROCEEDING . HOWEVER INSTEAD OF ADMITTING AND SURRENDERING THE UNDISCLOSED INCOM E, HE MISGUIDED THE SEARCH PARTY STATING THAT THE DOCUMENTS REFLECTS TH E UNDISCLOSED TRANSACTION CARRIED OUT BY THE COMPANY M/S BIR STEE L PVT. LTD. MOREOVER EVEN OTHERWISE IN THE STATEMENT RECORDED UNDER SECT ION 132(4), SRI SANTOSH KR. SARAWGI HAD NOT ADMITTED ANY UNACCOUNTE D MANUFACTURING BUSINESS BEING CARRIED OUT BY HIM OR HIS FAMILY MEM BERS. HENCE FROM THE ABOVE IT IS APPARENT THAT THE APPELLANT IN THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT HAD NEITHER ADMITTE D ANY UNDISCLOSED INCOME NOR SPECIFIED THE MANNER IN WHICH SUCH INCOM E HAS BEEN EARNED. ACCORDINGLY, IT IS HELD THAT THE BASIC AND PRIMARY CONDITION FOR CLAIMING IMMUNITY UNDER SECTION 271AAA IS NOT SATIS FIED. ACCORDINGLY, IT IS HELD THAT THE ASSESSEE IS LIABLE FOR PENALTY UND ER SECTION 271AAA OF THE INCOME TAX ACT 1961. HENCE THE PENALTY OF RS.1, 26,26,104/- IMPOSED BY THE AO IS CONFIRMED. NOW, BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) ASS ESSEE PREFERRED SECOND APPEAL BEFORE US ON THE FOLLOWING GROUND:- ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 4 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(APPEALS)ERRED IN UPHOLDING THE PENALTY LEVI ED BY THE ASSESSING OFFICER UNDER SECTION 271AAA OF THE I.T. ACT, 1961 . 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE CIT(APPEALS)ERRED IN NOT APPRECIATING THAT THE APPELLANT HAD FULFILLED THE CONDITIONS PRESCRIBED IN SECTION 271AAA(2) OF T HE IT ACT, 1961`. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE CIT(APPEALS) ERRED IN HOLDING THAT THE APPELLAN T DID NOT DISCLOSE INCOME IN THE STATEMENT RECORDED UNDER SECTION 132( 4) AND THEREBY HOLDING THAT THE PRIMARY CONDITION PRESCRIBED IN SE CTION 271AAA WAS NOT FULFILLED. 4. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE CIT(APPEALS)ERRED IN NOT APPRECIATING THAT THE APPELLANT HAD COMPLIED WITH THE SUBSTANTIVE CONDITIONS PRESCRIBED IN SECTION 271AAA AND THE DEFAULTS AS ALLEGED BY THE AO WERE BY NATUR E TECHNICAL AND PROCEDURAL LATCHES. 5. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE PENALTY LEVIED UNDER SECTION 271AAA AND CONFIRM ED BY THE CIT(APPEALS) BE CANCELLED. SHRI D.S. DAMLE, LD. AUTHORIZED REPRESENTATIVE APPE ARING ON BEHALF OF ASSESSEE AND SHRI RAJAT SUBHRA BISWAS, LD. DEPARTME NTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 4. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. LD. AR SUBMITTED THE PAPER BOOK CONTAINING PAGES 1 TO 56 AND FURTHER SUBMITTED SUPPLEMENTARY PAPER BOOK RUNNING PAGES FR OM 1 TO 32. THE LD.AR SUBMITTED THAT INCOME DECLARED AT THE TIME OF SEARC H BY ASSESSEE WAS DULY ACCEPTED BY AO IN HIS ASSESSMENT ORDER AND NO ADDIT ION QUA DECLARATION WAS MADE BY THE AO. LD. AR DREW OUR ATTENTION AT PAGE 4 6 OF PAPER BOOK, WHERE THE DECLARATION WAS GIVEN BY ASSESSEE STATING THAT THE TRIAL BALANCE, BALANCE SHEET CONTAINED DETAILS OF TRANSACTIONS CARRIED OUT IN ITS STEEL WIRES MISC. ROLL & NAILS ETC., IT IS ALSO OBSERVED FROM THE ASSESSMENT ORDER THAT SEIZED PAPERS IDENTIFIED AS SC-1 TO SC-9 WHICH ARE PLACED ON PAGE NO. 15 OF ID-SC-3 ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 5 CONTAIN THE PRICE LIST FOR NAILS OF DIFFERENT SIZE AND QUALITIES AND THE SAID PAPER GIVE PARTICULARS OF INDICATIVE MAXIMUM RETAIL PRICE AT WHICH NAILS CAN BE SOLD IN THE RETAIL MARKET. THE SEIZED DOCUMENTS IDENTIFIED SC-3 AND SC-9 GIVES PARTICULARS REGARDING THE RECEIPT AND CONSUMPTION O F COILS. FINALLY, LD. AR REQUESTED THAT THE MANNER FOR DRIVING THE INCOME FR OM THE DOCUMENTS IMPOUNDED AT THE TIME OF SEARCH HAS BEEN DULY SPECI FIED BEFORE THE AUTHORITIES BELOW AND PRAYED NOT TO LEVY THE PENALTY IMPOSED BY AO U/S 271AAA. FROM THE AFORESAID DISCUSSION, WE FIND THAT PENALTY U/S 271AAA OF THE ACT CAN BE LEVIED ONLY IF THE FOLLOWING CONDITIONS ARE SATISFI ED AS SPECIFIED UNDER SECTION 271AAA WHICH READS AS UNDER :- 271AAA. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANY THING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, I N A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1 ST DAY OF JUNE, 2007 [BUT BEFORE THE 1 ST DAY OF JULY 2012], THE ASSESSEE SHALL PAY BY WAY O F PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMP UTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PRE VIOUS YEAR. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPL Y IF THE ASSESSEE,- (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UND ER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES TH E MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLO SED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT O F THE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1). WE UNDERSTAND FROM THE READING OF THE PROVISIONS OF SEC. 271AAA PENALTY WILL BE WAIVED IF THE ASSESSEE GIVE A STATEMENT U/S 132( 4) OF THE ACT RECORDING THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHIC H SUCH INCOME HAS BEEN DERIVED AND SUBSTANTIATES THE SAME AND PAID THE TAX TOGETHER WITH INTEREST IN RESPECT OF UNDISCLOSED INCOME. IN THE INSTANT CASE, ASSESSEE HAD GIVEN THE STATEMENT U/S. 132(4) OF THE ACT BY DECLARING THE U NDISCLOSED INCOME AND HAS ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 6 PAID TAX DUE ALONG WITH INTEREST. HOWEVER, IF WE AN ALYSIS THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED, WE FIND THAT TH E ASSESSEE CLAIMED THE BUSINESS OF COILS AS SUGGESTED FROM THE SEIZED DOCU MENTS MARK SC-1 TO SC-9 AND THE SAME WAS NOT OFFERED TO TAX. THESE DOCUMENT S INCLUDE COMPUTER PRINTOUT WHICH CONTAIN STOCK REGISTER, DETAILS OF P URCHASES, TRIAL BALANCE AND BALANCE SHEETS ETC. A PEN DRIVE WAS ALSO RECOVERED FROM THE POSSESSION OF ASSESSEE MARKED AS PD-1. THE STATEMENT OF THE ASSES SEE WAS RECORDED UNDER SECTION 132(4) WHERE INTER ALIA THE ASSESSEE STATED THAT THE SEIZED DOCUMENTS ARE THE DETAILS OF NO. 2 ACCOUNTS WHICH W AS NEVER DISCLOSED TO THE GOVERNMENT AUTHORITIES. WE ALSO FIND FROM THE ASSES SMENT ORDER OF THE AO THE MANNER IN WHICH THE ASSESSEE OFFERED THE UNDISCLOSE D INCOME BEFORE HIM. THE RELEVANT EXTRACT OF THE ASSESSMENT ORDER IS REP RODUCED BELOW:- 6. SEIZED DOCUMENTS SC-3 TO SC-9 - IN COURSE OF SEARCH & SEIZURE OPERATION, DOCUMENTS MARKED AS SC-1 TO SC-9 WAS FOUND AND SEIZED FROM THE SAID PREMISES. DOCUME NTS MARKED AS SC-3 TO SC-9 WHICH WERE SEIZED FROM THE SAID PREMISES ARE T HE COMPUTER PRINT OUTS WHICH CONTAIN STOCK REGISTERS, DETAILS OF PURCHASES , TRIAL BALANCES, BALANCE SHEETS ETC., IT IS PERTINENT TO MENTION THAT THE PE N DRIVE MARKED AS PD-1 WAS SEIZED FROM THE POSSESSION OF SRI HARISH KR. SARAWG I. THE STATEMENT OF THE ASSESSEE WAS RECORDED IN COURSE OF SEARCH & SEIZURE OPERATION. SRI HARISH KR. SARAWGI ADMITTED THAT ENTRIES CONTAINED IN THE DOCUMENTS REFERRED ABOVE AS SC-6 TO SC-9 ARE UNDISCLOSED ACCOUNTS OF M/S BIR STEELS PVT. LTD. IN THIS CONTEXT, THE RELEVANT PORTION OF THE STATEMENT ARE REPRODUCED BELOW: QS 13:- PLEASE GO THROUGH THE LOOSE BUNCH OF COMPU TER PRINT OUTS BEARING ID MARK SC/3 AND EXPLAIN THE SAME. ANS:- THE PAGE NO. 1 TO 7 IS TRIAL BALANCE, P/L A/C , BALANCE-SHEET, SALES ACCOUNT AND PURCHASE ACCOUNT MAINTAINED BY ME UNDER THE CODE NAME, ABC. THESE ARE THE DETAILS OF NO. 2 ACCOUNTS WHIC H IS NOT DISCLOSED TO THE GOVT. AUTHORITIES. ALL THE EXPENDITURES DEBITED IN THE P/L ACCOUNT ARE ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT OF M/ S BIR STEELS PVT. LTD. PAGES 8 TO 13 ARE DETAILS OF UNACCOUNTED STOCK OF WIRES ALONG WITH DETAILS OF PURCHASE AND SALE OF THE SAME. ALL THE QUANTITATIVE FIGURES ARE 25 KGS. EACH. FOR EXAMPLE, IN PAGE 8, ON 1-12-07 PRODUCTION OF MA CHINE NO. 1 WAS 53 BUNDLES OF 20 GAUGE WIRE EACH WEIGHING 25 KGS. PAGE NO. 14 IS THE DETAIL OF UNACCOUNTED PURCHASE O F COIL AND UNACCOUNTED PRODUCTION OF NAILS AND WIRES OF M/S BIR STEELS PVT . LTD. ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 7 QS.14:- PLEASE GO THROUGH COMPUTER PRINT-OUTS BEARI NG ID MARK SC/4 FOUND AND SEIZED FROM YOUR RESIDENCE AND EXPLAIN THE SAME . ANS.:- THIS BUNCH OF COMPUTER PRINT-OUTS TAKEN FROM MY PEN-DRIVE ARE DETAILS OF SALES AND PURCHASE OF COILS. ALL MOST ALL THE RE CEIPTS AND PAYMENTS MADE IN THESE TRANSACTIONS ARE IN KACHHA IN CASH. MOST OF THE COIL PURCHASED IN CASH ARE FROM A) SHIVAN INDIA RE-ROLLING MILL, DURGAPUR, B) M/S. SUPER SMELTERS, DURGAPUR AND C) M/S. ADHUNIK STEEL, KOLKATA THROUGH THEIR BROKER / COMMISSION AGENT, SHRI NARENDRA AGARWAL (NAVINDER B ABU) (PAGE NO. 31 TO 34 ARE DETAILS OF PURCHASE OF NAILS, MISROLL, PLATE AND WIRE). QS.15:- PLEASE GO THROUGH THE COMPUTER PRINT-OUTS B EARING ID MARK SC/5 FOUND AND SEIZED FROM YOUR RESIDENCE AND EXPLAIN TH E SAME. ANS:- THIS BUNCH OF COMPUTER PRINT-OUTS TAKEN FROM MY PEN-DRIVE ARE THE CASH BOOK AND BANK BOOK. CONTAINING THE DETAILS OF PURCH ASE AND SALE OF COIL WHICH IS UNDISCLOSED FOR THE PERIOD 01-4-07 TO 31-07-07. QS.16:- IT IS SEEN FROM THE PEN DRIVE THAT THE ACCO UNT MAINTAINED UNDER THE CODE NAME ABC IS ONLY UPTO 31-07-07. YOU HAVE ALR EADY ACCEPTED THAT THE ACCOUNT OF ABC IS THE NO. 2 ACCOUNT OF M/S BIR ST EELS PVT. LTD., ANOTHER ACCOUNT UNDER THE CODE NAME XYZ IS ALSO FOUND TO BE MAINTAINED IN OUR PEN DRIVE FROM 01-08-07 TO 31-12-07. PLEASE EXPLAIN THE SAME. ANS:- THE ACCOUNT OF XYZ IS ALSO NO. 2 ACCOUNT OF M/S BIR STEELS PVT. LTD, TUNDI ROAD, MOHANPUR, GIRIDHI FOR THE REMAINING PER IOD UPTO 31-12-07. QS. 26:- PLEASE GO THROUGH THE LOOSE BUNCH WITH ID MARK SC/9 AND EXPLAIN THE SAME. ANS:- PAGE NO. 1 TO 36 CONTAINS DETAILS OF UNACCOUN TED STOCK OF NAILS, PRODUCTION, SALE AND BALANCE STOCK OF NAILS OF 25 K G. BAG EACH FOR THE PERIOD 01-01-07 TO 31-12-07.PAGES 37 TO 54 ARE DETAILS OF UNACCOUNTED STOCK OF WIRE, UNIT IS A BUNDLE OF 25 KG. EACH. PAGE NO. 55 TO 57 ARE DETAILS OF STOCK OF COIL IN M.T. FOR THE PERIOD 01-10-07 TO 01-12-07. WE FIND FROM THE ABOVE DETAILS THAT THE EXPLANATION OF THE ASSESSEE HAS BEEN ACCEPTED BY THE AO WITHOUT MAKING ANY ADDITION. IT SHOWS THAT THE MANNER TO SUBSTANTIATE THE INCOME HAS BEEN DULY EXPLAINED BY ASSESSEE BEFORE AO. WE ARE ALSO RELYING IN THE FOLLOWING JUDGMENTS OF ITAT . 1) SPS STEEL & POWER LTD. V. ACIT IN ITA NO. 1391 & 1414/KOL/2011 DT.30.06.15 2-3) M/S CASTALA EXTRUSION PVT. LTD V. JCIT IN ITA NO. 1269/KOL/12 & M/S BECO INDS. PVT. LTD. V. JCIT IN ITA NO. 1 270/KOL/12 DATED 24.09.15 ITA NO. 1746/KOL/2011 A.Y. 2008-09 HARISH KR. SRAWGI V. DCIT CC-XI, KOL. PAGE 8 4) SH NARESH CH. AGARAWALLA V. ACIT IN ITA NO. 1773 -1774/KOL/12 DT.20.08.15 5-6) DCIT VS. NARESH KR. AGARWAL IN ITA NO. 1289-12 90/KOL/12 DT.17.01.14 7-8) DCIT V. BISHNU KR AGARWAL IN ITA NO. 1291-1292 DATED 17.01.2014 9-10) DCIT C. PRADIP KR. SANTHALIA IN ITA NO.1293-1 294/KOL/12 DT. 17.01.14 IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES, W E OBSERVE THAT THE ASSESSEE HAS SATISFIED THE CONDITIONS AS LAID DOWN IN SECTION 271AAA(2) OF THE ACT. THEREFORE THE PENALTY ORDER PASSED BY ASSE SSING OFFICER AND SUBSEQUENTLY CONFIRMED BY LD. CIT(A) IS QUASHED. AC CORDINGLY, GROUND RAISED BY ASSESSEE IS ALLOWED. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 27/ 11/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 27/ 1 1 /2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-HARISH KR. SARAWGI, WHATTY BAZAR, GIRI DHI -815301, JHARKHAND 2. / RESPONDENT-DCIT, C.C.-XI, PODDAR COURT, 18, RABI NDRA SARANI, KOL-01 3. * +, - - . / CONCERNED CIT KOLKATA 4. - - .- / CIT (A) KOLKATA 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,