Shri Dilipbhai Kantilal Panchal, Ahmedabad V. The Income Tax Officer, Ward-3(3)(6), Ahmedabad

ITA 2362/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5170 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: PRITESH L SHAH
• Keywords: Gift; Corroborative evidences
• Section: 271(1)(c); 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.2362/AHD/2016 (ASSESSMENT YEAR : 2012-13 DILIPBHAI KANTILAL PANCHAL PROP. OF PACKMECH ENGINEERS PLOT NO.377, GIDC ROAD NO.9, KATHWADA AHMEDABAD-382 430 VS. THE INCOME TAX OFFICER WARD-3(3)(6) AHMEDABAD [PAN NO. AEAPP 9367 H] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI PRITESH L. SHAH, AR RESPONDENT BY : SHRI VILAS V.SHINDE, SR.DR DATE OF HEARING 12/07/2018 DATE OF PRONOUNCEMENT 04/ 10 /2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE BEFORE US AGAINST THE ORDER DATED 28.04.2016 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS)-5, AHMEDABAD [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2012 -13 ARISING OUT OF THE ASSESSMENT ORDER DATED 10.11.2014 PASSED BY THE ITO, WARD-3(1 ), AHMEDABAD WITH THE FOLLOWING GROUND: 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE PENALTY OF RS.2,79,960/- IMPOSED BY AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, WHICH IS REQUESTED TO BE DELETED. 2. IN THIS PARTICULAR CASE THE ASSESSEE HAS CHA LLENGED THE PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT'). THE ASSESSEE IS AN INDIVIDUAL WHO HAS FILED THE RETURN THROUGH ELECTRONIC MEDIA ON 30.08.2012 DECLARING THE TOTAL - 2 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 INCOME AT RS.7,10,790/-. UPON SCRUTINY, NOTICE U/ S.143(2) OF THE ACT DATED 06.08.2013 FOLLOWED BY NOTICE U/S.142(1) OF THE ACT DATED 01.0 8.2014 WAS DULY SERVED ALONG WITH QUESTIONNAIRE UPON THE ASSESSEE. DURING THE ASSESS MENT PROCEEDINGS, IN RESPONSE TO A NOTICE U/S.133(6) OF THE ACT, THE BRANCH MANAGER, A XIS BANK LTD., LAW GARDEN BRANCH, AHMEDABAD FORWARDED THE BANK STATEMENT OF ACCOUNT N O.003010100278010 IN THE NAME OF THE ASSESSEE WHEREFROM IT WAS FOUND DEPOSITS IN CAS H TO THE TUNE OF RS.10,05,500/- WAS MADE BY THE ASSESSEE. THE PLEA OF THE ASSESSEE WAS THIS THAT CASH WAS BROUGHT BY HIS WIFE AGAINST THE SETTLEMENT OF PROPERTY DISPUTE. IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT THE SAME, THE ASSESSEE OFFERED THE SAME FOR TAXATION FO R PEACE OF MIND. THE EXPLANATION, HOWEVER, WAS NOT SATISFACTORY AS OBSERVED BY THE LD .AO AND THE ENTIRE AMOUNT OF RS.10,05,500/- WAS ADDED TO THE INCOME OF THE ASSES SEE U/S.68 OF THE ACT FOLLOWED BY PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT WHICH W AS SEPARATELY INITIATED ON 10.11.2014 ON THE GROUND THAT THE ASSESSEE HAS CONCEALED HIS I NCOME TO THE TUNE OF RS.10,05,500/-. 3. THE LD. ASSESSING OFFICER ULTIMATELY LEVIED PENA LTY AGAINST THE ASSESSEE TO THE TUNE OF RS.2,79,960/- WHICH WAS CONFIRMED BY THE LD. CIT (A) AND HENCE THE INSTANT APPEAL. 3.1. THE LD.REPRESENTATIVE OF THE ASSESSEE AT THE T IME OF HEARING OF THE APPEAL SUBMITTED BEFORE US THAT THE LD. ASSESSING OFFICER LEVIED P ENALTY U/S.271(1)(C) OF THE ACT WITHOUT MENTIONING ANY SPECIFIC CHARGE. HE RELIED UPON THE RELEVANT PARAGRAPH OF THE LD. ASSESSING OFFICER WHERE THE LD. ASSESSING OFFICER HAS CONCLUDED BY LEVYING BOTH THE CHARGES I.E. FURNISHING INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED INCOME. ACCORDINGLY, THE LD. REPRESENTATIVE OF THE ASSESSEE VEHEMENTLY ARGUED FOR QUASHING OF THE PENALTY ORDER IN THE ABSENCE OF ANY SPECIFIC CHARG E LEVELED AGAINST THE ASSESSEE. 3.2. ON THE CONTRARY, LD. DR VEHEMENTLY OPPOSED THE SUBMISSIONS MADE BY THE LD. AR. HE FURTHER ADDED THAT THE ASSESSEE SHOULD NOT ABSOL VED FROM THE PENALTY EVENTHOUGH BOTH - 3 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 THE LIMBS OF CHARGES HAVE BEEN LEVELED AGAINST THE ASSESSEE IN THE ORDER OF PENALTY. HE FURTHER RELIED UPON THE ORDER PASSED BY THE AUTHORI TIES BELOW. 3.3. WE HAVE HEARD THE RIVAL CONTENTIONS MADE BY TH E RESPECTIVE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 4. DURING THE PENALTY PROCEEDING, A SHOW-CAUSE NOT ICE DATED 10.11.2014 U/S.274 R.W.S. 271(1)(C) OF THE ACT WAS ISSUED AGAINST THE ASSESSE E FOR FURNISHING INACCURATE PARTICULARS OF INCOME LEADING THEREBY CONCEALMENT. FURTHER TH AT, BY AND UNDER A LETTER DATED 07.04.2015, THE ASSESSEE WAS ASKED TO FURNISH REPLY ON SUCH PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT, IN RESPONSE THEREOF THE ASSESSEE MADE THE FOLLOWING SUBMISSIONS: IN OUR CASE BANK ACCOUNT OF AXIS BANK WAS NOT SHOW N IN BOOKS OF ACCOUNTS DUE TO THAT SUCH AMOUNT WHICH WERE CREDITED IN SAVING ACCO UNT WAS RECEIVED FROM HIS WIFE AS SETTLEMENT OF FAMILY DISPUTES. SINCE ACCOUNTANT OF THE FIRM FORGOT TO TAKE SUCH BANK ACCOUNT IN THE BOOKS OF ACCOUNTS AND SUCH AMOU NT CAME FROM FAMILY MEMBERS AND SETTLEMENT AND HAD DEPOSITED IN SAVING ACCOUNT. INTENTION FOR NOT TAKEN INTO ACCOUNT WAS NOT MALAFIDE. AS DISCUSSION WITH ASSES SING OFFICER HE ADDED SUCH INCOME AS UNDISCLOSED INCOME HENCE FOR SHAKE OF PEA CE OF MIND WE AGREE TO PAY TAX ON SUCH AMOUNT AND WE HAVE ALREADY PAID SUCH AX WIT HOUT ANY ARGUMENTS SINCE OUR INTENTION WAS BONAFIDE. IN OTHER WORD WE CAN SAY T HAT NO MALAFIDE INTENTION OR ELEMENT OF CONCEALMENT IS INVOLVED IN THIS CASE, SO IT OUT OF THE AMBIT OF PENAL PROVISIONS CONTAINED IN SECTION 271(1)(C) OF THE AC T. 4.1 HOWEVER, THE SUBMISSIONS MADE BY THE ASSESSEE W AS NOT FOUND ACCEPTABLE AND THE LD. ASSESSING OFFICER HAS FORMED AN OPINION OF FURN ISHING OF INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALMENT OF INCOME BY THE ASS ESSEE. THE CASE LAW RELIED UPON BY THE ASSESSEE WAS ALSO NOT FOUND APPLICABLE BY THE L D. ASSESSING OFFICER. BUT WHILE IMPOSING THE PENALTY, THE LD. ASSESSING OFFICER OBS ERVED AS FOLLOWS: IT IS CLEAR FROM THE PRECEDING PARAGRAPHS THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEA LED HIS INCOME. THUS, I AM - 4 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 SATISFIED THAT THE ASSESSEE HAS FURNISHED INACCURAT E PARTICULARS OF INCOME IN RESPECT OF ALL THE ISSUES DISCUSSED IN THE ASSESSMENT ORDER AND IT IS A FIT CASE FOR THE LEVY OF PENALTY UNDER SECTION 271(1)(C). THE INCOME IN RESPECT OF WHICH INACCURATE PARTICULA RS HAVE BEEN FURNISHED IS RS.10,05,500/-. THEREFORE, PENALTY LEVIABLE U/S.27 1(1)(C) OF THE ACT IS WORKED OUT AS UNDER: A. ASSESSED INCOME : RS.17,16,790 B. TAX ON ASSESSED INCOME : RS. 3,78,052 C. ASSESSED INCOME MINUS CONCEALED INCOME : RS. 7, 10,790 D. TAX ON [C] AS ABOVE : RS. 98,094 E. DIFFERENCE OF TAX [ B-D] : RS.2,79,958 F. TAX SOUGHT TO BE EVADED @ 100% : RS.2,79,958 G. TAX SOUGHT TO BE EVADED @ 300% : RS.8,39,874 5. MINIMUM PENALTY LEVIABLE U/S.271(1)(C) IS RS.2, 79,958/- AND THE MAXIMUM PENALTY LEVIABLE IS RS.8,39,874/-. I HEREBY DIRECT THE ASSESSEE TO PAY MINIMUM PENALTY OF RS.2,798,958/- I.E. RS.2,79,960/- (AS RO UNDED OFF U/S.288A OF THE ACT). 4.2. ASSESSEE PREFERRED AN APPEAL AGAINST THE ORDER PASSED BY THE LD. AO WHICH WAS DISMISSED ON MERIT. 5. WE FIND THAT IN THE ASSESSMENT ORDER, THE LD. ASSESSING OFFICER CAME TO A FINDING OF CONCEALMENT OF INCOME BY THE ASSESSEE TO THE TUNE O F RS.1,05,000/- WHILE INITIATING THE PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. THE THIRD PARA OF THE NOTICE U/S.274 R.W.S.271(1)(C) OF THE ACT SPEAKS ABOUT THE CONCEAL MENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME BY THE ASSESSEE. ADMITTEDLY, THE SAME HAS NOT LEVELED ANY SPECIFIC CHARGE AGAINST THE ASSESSE E. THE PENALTY ORDER AT THE VERY ONSET OF IT SPEAKS AS FOLLOWS: ACCORDINGLY, PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT WERE INITIATED BY ISSUING NOTICE U/S.274 R.W.S.271(1)(C) OF THE ACT ON 10.11 .2014 FOR FURNISHING INACCURATE PARTICULARS OF INCOME LEADING THEREBY CONCEALMENT. - 5 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 5.1. THUS, BOTH THE ELEMENTS OF INACCURATE PARTICUL ARS AND CONCEALMENT OF INCOME ARE PRESENT. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, THE LD. ASSESSING OFFICER MADE OBSERVATION THAT THE ASSESSEE HAS FUR NISHED INACCURATE PARTICULARS OF INCOME, THEREBY CONCEALED HIS INCOME. THE SAME IS APPEARIN G AT PARA-3 OF THE PENALTY ORDER. THE SAME IS ALSO REITERATED IN THE PENULTIMATE PARAGRA PH TWICE. BUT FINALLY, THE LD. ASSESSING OFFICER RECORDED HIS SATISFACTION ON THE POSITIVE FINDING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF ALL THE ISSUES DISCUSSED IN THE ASSESSMENT ORDER AND ACCORDING TO HIM IT IS A FIT CASE FOR LEV Y OF PENALTY U/S.271(1)(C) OF THE ACT AND HE THUS LEVIED PENALTY UPON THE ASSESSEE AS MENTIONED IN THE FOREGOING PARAGRAPH. 6. IN APPEAL, THE LD. CIT(A) WHILE DISMISSING THE A PPEAL OBSERVED AS FOLLOWS :- 4. DECISION : I HAVE GONE THROUGH THE FACTS MENTIONED IN THE PENALTY ORDER AND SUBMISSIONS OF THE APPELLANT CAREFULLY. THE APPELL ANT HAS CLAIMED THAT THE IMPUGNED AMOUNT HAS COME FROM HIS WIFE WHO HAS GOT THE CONSENT AMOUNT ON FAMILY SETTLEMENT. THE FACT TO BE NOTED IS THAT THE WIFE PURPORTEDLY HAD RECEIVED CASH WHICH SHE HAD NOT DEPOSITED IN HER ACCOUNT. INSTEA D IT IS CLAIMED THAT THE SAME AMOUNT HAS BEEN DEPOSITED IN APPELLANTS ACCOUNT. THERE IS NO INDEPENDENT CORROBORATIVE EVIDENCES AS PER LAW SUCH AS NOTARIZE D AGREEMENT OR NOTARIZED AFFIDAVIT OR NOTARIZED GIFT DEED OR BANK ACCOUNT OR INCOME TAX RECORD OF WIFE TO SUBSTANTIATE THE CLAIM MADE BY THE APPELLANT. IN T HE CIRCUMSTANCES, IT IS CONCLUDED THAT THE APPELLANT HAS SUBMITTED SELF-SERVING STATE MENT TO AVOID TAX LIABILITY. THERE WAS NO SUCH MENTION OF CREDITS IN BANK ACCOUNT ON O R BEFORE FILING OF THE RETURN OF INCOME. THE FACT OF CASH DEPOSITS HAS COME TO LIGH T MUCH LATER THAN THE FILING OF RETURN OF INCOME BY THE APPELLANT. THE APPELLANT HAS RELIED ON A FEW CASES BUT RATIO I N THOSE CASES IS NOT APPLICABLE SO FAR AS PECULIAR FACTS OF CASE ARE CONCERNED. THIS IS NOT INADVERTENT MISTAKE OR A SILLY MISTAKE. THE APPELLANT IN THIS CASE HAS NO T COME OUT CLEARLY WITH IMPORTANT FACTS TILL WHILE FILING RETURN OF INCOME SO AS TO S HOW THE LACK OF MENS REA. I FEEL THE MISTAKE CLAIMED BY APPELLANT IS INTENTIONAL AND UND ERTAKEN WITH PURPOSE BY NOT SHOWING CERTAIN BANK DEPOSITS WHILE RETURN OF INCOM E. IT MAY BE MENTIONED THAT MORE THAN 90% OF THE RETURNS ARE NOT SCRUTINIZED AN D ENCLOSURES WHICH ARE VOLUNTARY TO BE FILED, ARE NOT NECESSARILY CHECKED. AS PER VARIOUS PRONOUNCEMENTS BY THE DIFFERENT COURTS, PENALTY OF CONCEALMENT CAN NOT BE IMPOSED BECAUSE THE ASSESSEE HAS TAKEN A PARTICULAR STAND OR HAD PREFER RED AN INTERPRETATION WHICH WAS - 6 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 PLAUSIBLE AND REASONABLE, BUT HAS NOT BEEN ACCEPTED , UNLESS THE ASSESSEE HAD NOT DISCLOSED FACTS BEFORE THE AUTHORITIES. SUCH CASES HAVE TO BE DISTINGUISHED FROM CASES WHERE THE CLAIM OF THE ASSESSEE IS FARCICAL O R FARFETCHED. DUBIOUS AND FANCIFUL CLAIMS UNDER THE GARB OF INTERPRETATION, ARE A MERE PREFERENCE AND NOT BONAFIDE. SIMILARLY, THE APPELLANT CANT GET BENEFIT OR LAND MARK SUPREME COURT JUDGMENT IN THE CASE OF RELIANCE PETRO PRODUCTS LTD., 322 ITR 1 58 (SC) WHEREIN IN THE LAST PARA OF JUDGMENT IT HAS BEEN STATED, . WHEREIN THER E IS NO FINDINGS BY THE ASSESSING OFFICER FOR THE INACCURATE PARTICULARS OR CONCEALME NT OF INCOME. IN FACT, SAME RATIO IS REITERATED BY HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT AHD-IV VS. WHITEFORD INDIA LTD.- 38 TAXMANN.COM 15 (GUJ.) WHER EIN THE RELIEF TO THE ASSESSEE WAS GRANTED WITH FOLLOWING COMMENTS. . WHERE NO CLEAR FINDING WAS RECORDED BY ASSESSING OFFICER WHETHER ASSESSEE WAS GUILTY OF CONCEALING INCOME AND/OR FURNISHING INACCURATE PARTICULARS OR INCOME,... THEREFORE, COURTS HAVE CONSISTENTLY HELD THAT THERE NEED TO BE FINDINGS OF A.O. IF THE PENALTY ORDER IS TO BE CONFIRMED. IN INSTANT CASE, THERE IS SPECIFIC FIND ING BY THE A.O. IN A RECENT JUDGMENT DATED 31.10.2013 IN THE CASE OF MAK DATA P VT.LTD. VS. CIT, 38 TAXMANN.COM 448 (SC), THE HONBLE SUPREME COURT HAS RULED, VOLUNTARY DISCLOSURE DOES NOT ABSOLVE ASSESSEE, BONAFIDE EXPL ANATION OF INCOME REQUIRED. THE FACTS OF THE CASE ALSO MAKE IT AMENABLE TO THE JUDGMENT AGAINST IT IN THE CASE OF K.P. MADHUSUDHANAN VS. CIT 251 ITR 99 (SC). FURTHE R, AS PER JUDGMENTS, ADDITIONAL INCOME IN RESPONSE TO NOTICE U/S.148 PEN ALTY ON ADDITIONAL INCOME CONFIRMED IN THE CASE LAWS PC JOSEPH & BROS. VS. CIT 243 ITR 818 (KER.) NARAIN DAS SURAJ BHAN VS. CST 21 STC 104 (SC) THE DICTIONARY MEANING OF THE WORD CONCEALMENT IS T O HIDE, TO KEEP SECRET. THE EXPLANATION TO SECTION 271 (1)(C) DOES NOT ALTER OR EXTEND THIS MEANING. IT ONLY ASSUMES THE CONCEALMENT TO EXIST IF THE ASSESSEE FA ILS TO PROVE THAT THE NON DISCLOSURE WAS NOT DUE TO FRAUD OR WILLFUL CONDUCT, HELD BY ALLAHABAD HIGH COURT IN THE CASE OF MOHAMMAD IBRAHIM AZIMULLA 131 ITR 680 ( ALL.). CONCEALMENT MEANS AN ATTEMPT TO HIDE AN ITEM OF INCOME OR A PORTION T HEREOF FROM THE KNOWLEDGE OF THE INCOME TAX AUTHORITIES, HELD IN CASE OF CIT VS. MAH ABIT PRASAD BAJAJ 298 ITR 109 (JHAR). THE A.O. HAS INITIATED PENALTY PERFECTLY AS PER PRO VISIONS OF THE I.T.ACT, 1961 AND HAS ONLY IMPOSED PENALTY OF 100% OF AMOUNT PAYABLE ON CONCEALED INCOME FOR WHICH INACCURATE PARTICULARS HAVE BEEN FURNISHED. IT IS NOT THE CASE WHERE APPELLANT MADE CERTAIN CLAIMS IN THE RETURN OF INCO ME WHICH WERE FOUND TO BE NOT ALLOWABLE SUBSEQUENTLY DURING ASSESSMENT PROCEEDING S, RATHER IT IS A CASE WHERE ADDITIONS HAVE BEEN MADE ON CERTAIN FACTS WHICH CAM E TO SURFACE ONLY DURING THE EXAMINATION OF RECORD BY THE ASSESSING OFFICER. TH E EXPLANATION OF THE APPELLANT IS WITHOUT CREDIBLE INDEPENDENT EVIDENCES, HENCE CORRE CTLY REJECTED BY THE ASSESSING - 7 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 OFFICER. IN VIEW OF FACTS OF THIS CASE AND THE CAS E LAWS QUOTED ABOVE, I CONCLUDE THAT PENALTY ORDER U/S.271(1)(C) OF IT ACT, 1961 IS VERY FAIR AND NEED NOT TO BE INTERFERED. 6.1. IT IS TRUE THAT IN APPEAL THE LD. CIT(A) H AS NOT DEALT WITH AS TO WHETHER THE ACT AND/OR CONDUCT/ AND/OR CHARGE AGAINST THE ASSESSEE IS OF CONCEALMENT OF PARTICULARS OF INCOME OR WHETHER FURNISHING INACCURATE PARTICULAR S OF INCOME, BUT ON MERIT CONFIRMED THE ORDER PASSED BY THE LD. ASSESSING OFFICER. 7. IN THIS REGARD, WE WOULD LIKE TO RELY UPON THE JUDGEMENT PASSED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SNITA TRAN SPORT PVT. LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED IN 42 TAXMANN.C OM 54 HAS HELD THAT PENALTY CANNOT BE IMPOSED WITHOUT MENTIONING THE SPECIFIC CHARGE. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW: 9. REGARDING THE CONTENTION THAT THE ASSESSING OFFIC ER WAS AMBIVALENT REGARDING UNDER WHICH HEAD THE PENALTY WAS BEING IM POSED NAMELY FOR CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS, WE MAY RECORD THAT THOUGH IN THE ASSESSMENT ORDER THE ASSESSING OFFICE R DID ORDER INITIATION OF PENALTY ON BOTH COUNTS, IN THE ULTIMATE ORDER OF PE NALTY THAT HE PASSED, HE CLEARLY HELD THAT LEVY OF PENALTY IS SUSTAINED IN VIEW OF T HE FACT THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF INCOME. THUS INSOFAR A S FINAL ORDER OF PENALTY WAS CONCERNED, THE ASSESSING OFFICER WAS CLEAR AND PENA LTY WAS IMPOSED FOR CONCEALING PARTICULARS OF INCOME. IN LIGHT OF THIS, WE MAY PERUSE THE DECISION OF THIS COURT IN CASE OF MANU ENGINEERING WORKS (SUPRA ). IN THE SAID DECISION, THE DIVISION BENCH CAME TO THE CONCLUSION THAT LANGUAGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOTICE FOR PENALTY, BUT IT WAS INCUMBE NT UPON THE ASSESSING AUTHORITY TO COME TO A POSITIVE FINDING AS TO WHETHER THERE W AS CONCEALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF SUCH INCOME HAD BEEN FURNISHED BY THEM. IF NO SUCH CLEAR CUT FINDING IS REACHED BY THE AUTHORITY, PENALTY CANNOT BE LEVIED. IT WAS A CASE IN WHICH IN FINAL C ONCLUSION THE AUTHORITY HAD RECORDED THAT 'I AM OF THE OPINION THAT IT WILL HAV E TO BE SAID THAT THE ASSESSEE HAD CONCEALED ITS INCOME AND/OR THAT IT HAD FURNISHED I NACCURATE PARTICULARS OF SUCH INCOME.' IT WAS IN THIS RESPECT THE BENCH OBSERVED THAT 'NOW THE LANGUAGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOTICE AS TO PE NALTY ORDER OR FRAMING OF CHARGE IN A CRIMINAL CASE OR A QUASI-CRIMINAL CASE, BUT IT WAS INCUMBENT UPON THE IAC TO COME TO A POSITIVE FINDING AS TO WHETHER THE RE WAS CONCEALMENT OF INCOME - 8 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULA RS OF SUCH INCOME HAD BEEN FURNISHED BY THE ASSESSEE. NO SUCH CLEAR CUT FINDIN G WAS REACHED BY THE IAC AND, ON THAT GROUND ALONE, THE ORDER OF PENALTY PASSED B Y THE IAC WAS LIABLE TO BE STRUCK DOWN.' 7.1. THEREFORE, WHETHER THE LD. ASSESSING OFFICER HAS COME TO A CLEAR CUT FINDING WHILE IMPOSING/LEVYING PENALTY AGAINST THE ASSESSEE IS TO BE CONSIDERED FINALLY IN TERMS OF THE RATIO OF THE JUDGMENT CITED ABOVE. 7.2. IT APPEARS IN THE CASE IN HAND THAT THOUGH L D. ASSESSING OFFICER INITIATED PENALTY PROCEEDING ON BOTH THE LIMBS OF FURNISHING INACCURA TE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME AS WELL BUT ULTIMATELY HAVIN G BEEN SATISFIED ON SPECIFIC LIMB ON THE COUNT OF FURNISHING OF INACCURATE PARTICULARS O F INCOME IN RESPECT OF THE ISSUES INVOLVED LEVIED THE PENALTY AGAINST THE ASSESSEE. NEEDLES S TO MENTION THAT THE RATIO OF THE JUDGMENT LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT HAS RIGHTLY BEEN FOLLOWED BY THE LD. ASSESSING OFFICER IN THE INSTANT CASE. 7.3. WE NOW PROCEED TO DEAL WITH THE MERIT OF THE M ATTER. THE CASE OF THE ASSESSEE IS THIS THAT THE IMPUGNED AMOUNT WHICH WAS FOUND TO BE DEPOSITED IN HIS ACCOUNT TO THE TUNE OF RS.10,05,500/- WAS RECEIVED FROM HIS WIFE WHICH WAS ACQUIRED OUT OF FAMILY SETTLEMENT WHICH SHE DID NOT DEPOSIT IN HER OWN ACCOUNT. HOWE VER, NO INDEPENDENT CORROBORATIVE EVIDENCES HAS BEEN PRODUCED IN THE FORM OF NOTARIZE D AGREEMENT AND/OR AFFIDAVIT OR DEED OF GIFT OR A BANK ACCOUNT OR INCOME TAX RECORD OF HIS WIFE TO SUBSTANTIATE HIS CLAIM. IT IS NEEDLESS TO MENTION THAT IF THE MONEY BELONGS TO TH E WIFE OF THE ASSESSEE THAT OUGHT TO HAVE BEEN DEPOSITED IN HER ACCOUNT OR THAT THE SAME CAN ALSO BE DEPOSITED IN THE ACCOUNT OF THE ASSESSEE WITH HER CONSENT. BUT SUCH CONSENT MUST B E SUPPORTED WITH CERTAIN DOCUMENTS WHICH HAS SANCTIONED IN THE EYE OF LAW IN THE FORM OF AN EVIDENCE AS MENTIONED HEREINABOVE. NONE OF SUCH EVIDENCE HAS BEEN SUBMIT TED BY THE ASSESSEE EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE US. IN THE ABSENCE OF THE SAME, WE CAN CONCLUDE THAT SUCH A - 9 - ITA NO.2362/AHD/2016 DILIPBHAI KANTILAL PANCHAL VS. ITO ASST.YEAR 2012-13 STATEMENT HAS BEEN MADE BY THE ASSESSEE IN ORDER TO EVADE TO TAX LIABILITY. FURTHERMORE, THIS PARTICULAR FACT OF DEPOSITS OF CASH HAS COME T O THE LIGHT MUCH AFTER THE FILING OF RETURN OF INCOME BY THE APPELLANT AS RIGHTLY BEEN OBSERVED BY THE LD. CIT(A). IN VIEW OF THAT MATTER, WE ARE OF THE CONSIDERED OPINION THAT THIS IS NOTHING BUT CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE IN WHICH PENALTY IS REQUIR ED TO BE IMPOSED IN TERMS OF LAW WHICH THE AUTHORITIES BELOW HAS RIGHTLY PERFORMED. TAKIN G INTO CONSIDERATION THE ENTIRE ASPECTS OF THE MATTER PARTICULARLY THE FACTS OF THE CASE AND T HE RECORDS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF PENALTY MADE BY THE LD. ASSESSING OFFI CER, CONFIRMED BY THE LD.CIT(A) AND THUS DISMISS THE APPEAL PREFERRED BY THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 04/ 10 /2018 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 04/ 10 /2018 .., . ../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-3, AHMEDABAD 5. !'# , $ , / DR, ITAT, AHMEDABAD 6. #() *+ / GUARD FILE. / BY ORDER, ! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD