Income Tax Officer Ward-55(4), Kolkata, Kolkata V. Shri Jay Kumar Khemka, Kolkata

ITA 2411/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4645 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 03-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2013
• Court: TRIBUNAL
• Department Lawyers: G HUKUGA SEMA
• Keywords: Gift; Avoidance of tax; Revised return; Bonafide mistake
• Section: 143(3)

Judgement Text

1 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI K. NARASIMHA CHARY, JM] I.T.A NO. 2411/KOL/2013 ASSESSMENT YEAR: 2009-10 INCOME-TAX OFFICER, WD-55(4), KOLKATA VS. SHRI J AY KUMAR KHEMKA (PAN: AFQPK4825C) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 03.08.2016 DATE OF PRONOUNCEMENT: 10.08.2016 FOR THE APPELLANT: SHRI G. HUKUGA SEMA, JCIT, SR. DR FOR THE RESPONDENT: SHRI RAJEEVA KUMAR, ADVOCA TE ORDER PER SHRI K. NARASIMHA CHARY, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXXVI, KOLKATA VIDE APPEAL NO. 69/CIT(A)-XXXVI/KOL/WD.55(4)/2012-13/663 DATED 31.07.2013. ASSESSMENT WAS FRAMED BY ITO, WARD-55(4), KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2009- 10 VIDE HIS ORDER DATED 23.12.2011. PENALTY IMPOSED BY ITO, WD-55(4), KOLKATA U/S. 271( 1)(C) OF THE ACT VIDE HIS ORDER DATED 21.06.2012. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL HAVING MULTIPLE SOURCES OF THE INCOME. THE ASSESSEE DURING THE FY RECEIVED A S UM OF RS.73,77,914/- FROM M/S. GRASIM INDUSTRIES LTD. ON 11.06.2009 I.E. DURING FY 2008-0 9 RELEVANT TO AY 2009-10. TAX DEDUCTION OF RS.9,39,238/- WAS MADE FROM THE SAID C OMMISSION PAYMENT BY GRASIM INDUSTRIES LTD. IN THE YEAR 2008-09 CORRESPONDING T O AY 2009-10. AS PER THE MERCANTILE SYSTEM OF ACCOUNTING, THE ASSESSEE SHOULD HAVE INCL UDED THIS INCOME IN THE RELEVANT ASSESSMENT YEAR BUT UNDER THE MISTAKEN IMPRESSION O N ACTUAL RECEIPT BASIS THEY HAVE INCLUDED THE SAME IN THE INCOME OF NEXT YEAR. HOWE VER, ON COMING TO KNOW OF THIS LAPSE, THE ASSESSEE CLAIMS TO HAVE FILED A REVISED COMPUTA TION OF INCOME VOLUNTARILY AND EVEN BEFORE THE AO DETECTED THE SAID LAPSE. HOWEVER, TH E AO INITIATED PENALTY PROCEEDINGS HOLDING THAT THE ACT OF THE ASSESSEE AMOUNTS TO DEL IBERATE AVOIDANCE OF TAX PAYMENT, AND IMPOSED PENALTY ON THE ADDITION OF RS.73,77,914/- T OWARDS COMMISSION INCOME FOR 2 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 DELIBERATE CONCEALMENT OF INCOME. AGGRIEVED BY THE SAID PENALTY ORDER ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT(A), WHO VIDE PARA 5.2 R EACHED TO A CONCLUSION THAT THE ASSESSEE NEVER INTENDED TO CONCEAL THE RECEIPT AS ALLEGED BY THE AO BUT IT IS ONLY A MATTER OF SHOWING THE INCOME IN THE SUBSEQUENT YEAR DUE TO BONA FIDE MISTAKE. ON THIS PREMISE, THE LD. CIT(A) DELETED THE PENALTY. 3. CHALLENGING THE SAID ORDER OF THE CIT(A) THE REV ENUE CAME IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE, LD CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS 25,06,868/- IMPOSED U/S 271(1)( C) OF INCOME-TAX ACT 1961 ON ACCOUNT OF CONCEALMENT OF COMMISSION INCOME AS PER IT RETURN . 2. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES O F THE CASE, THE ASSESSEE DID NOT VOLUNTARILY AND IN GOOD FAITH DISCLOSE THE COMMISSION RECEIVED FROM THE GRASIM INDUSTRIES LTD IN HIS TAX- RETURN. 3. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES O F THE CASE, THE ASSESSEE SURRENDERED THE COMMISSION EARNED FROM GRASIM INDUSTRIES LTD, ONLY AFTER THE AO DETECTED IT. 4. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES O F THE CASE, THE ASSESSEE DID NOT EVEN FILE ANY REVISED RETURN TO OFFER THE COMMISSION AMOUNT, IF I T HAD BEEN A BONAFIDE MISTAKE ON HIS PART TO REPORT THE SAME IN THE ORIGINAL RETURN. 5. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES O F THE CASE, LD CIT(A) HAS ERRED IN LAW IN RELYING ON CERTAIN OLD JUDGMENTS WHICH CALL FOR EST ABLISHING THE MENS REA OF THE ASSESSEE WHICH ARE REVERSED BY THE HON'BLE SUPREME COURT IN SUBSEQUENT JUDGMENTS AND HOLDING PENALTY U/S 271 (1 )( C) AS OF CIVIL LIABILITY. 6. THAT, ON THE FACTS AND UNDER THE CIRCUMSTANCES O F THE CASE, LD CIT(A) HAS ERRED IN LAW IN NOT APPRECIATING THE TRUE IMPORT OF SECTION 271 (1) ( C) WHICH IS TO SPREAD DETERRENT EFFECT AND BRING FISCAL DISCIPLINE AMONGST THE ASSESSEES. 4. IT IS THE ARGUMENT OF THE LD. DR THAT THE ASSESS EE DID NOT DISCLOSE THE INCOME VOLUNTARILY AS CLAIMED BY THE ASSESSEE BUT THE DISC LOSURE TOOK PLACE ONLY AFTER THE LAPSE WAS DETECTED BY THE AO AND HAVING NO OTHER OPTION THE A SSESSEE DECLARED THE SAME, AS SUCH, THE MERE PLEA OF THE ASSESSEE THAT THE INCOME WAS CALCU LATED ON CASH BASIS IS NOT SUFFICE TO DROP THE PENALTY PROCEEDINGS. ACCORDING TO THE LD. DR, U/S. 271(1)(C) OF THE ACT IT IS NOT THE MERE CONCEALMENT BUT FURNISHING OF INACCURATE PARTI CULARS OF INCOME, WHICH WOULD ALSO ATTRACT PENAL PROCEEDINGS AND FOR THIS PURPOSE, MEN S REA IS NOT AN ESSENTIAL INGREDIENT. HE FURTHER SUBMITTED THAT THE ACT OF THE ASSESSEE FOR OMITTING THIS PARTICULAR ITEM OF INCOME IN THE ORIGINAL RETURN BUT DECLARING THE SAME ONLY IN THE REVISED COMPUTATION AFTER BEING CONFRONTED WITH THE SAME AMOUNTS TANTAMOUNT TO FURN ISHING INACCURATE PARTICULARS OR CONCEALMENT OF INCOME AND FOR THESE REASONS, THE CO NCLUSION REACHED BY THE CIT(A) ARE NOT AT ALL ACCEPTABLE. ACCORDING TO LD. CIT(A), DETERE NCY IS ONE OF THE MODES OF ENFORCEMENT OF LAW WITHOUT WHICH IT WILL NOT BE POSSIBLE FOR TH E REVENUE TO IMPLEMENT THE PROVISIONS OF 3 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 THE ACT AND TO OBTAIN THE DESIRED RESULTS. FOR THES E REASONS, HE PRAYED BEFORE US TO HOLD WANT OF BONA FIDES ON THE PART OF THE ASSESSEE AND TO RE STORE THE PENALTY IMPOSED BY THE AO. 5. ON THE OTHER HAND, IT IS THE ARGUMENT OF THE LD . AR THAT THERE IS A BONA FIDE MISTAKE FOR NOT INCLUDING THE PARTICULAR INCOME IN THE RETU RN OF INCOME FOR THE RELEVANT YEAR AND IT IS EVIDENT FROM THE FACT THAT NOT ONLY IN THE NEXT YEA R INCOME IT WAS INCLUDED BUT ALSO THAT THE MOMENT THE ASSESSEE CAME TO KNOW OF THIS LAPSE, WIT HOUT ANY DEMUR HE OFFERED THE SAME TO TAX. FOR THE SAKE OF DETERRENCE, THE BONA FIDE WR ONG DOERS CANNOT BE PUNISHED AND IT IS NOT THE INTENT OF THE PENALTY PROCEEDINGS. 6. BASING ON THE ABOVE FACTS AND CONTENTIONS THE IS SUE THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE CIT(A) IS JUSTIFIED IN DELETING THE PENALTY IMPOSED BY THE AO ON THE PREMISE THAT THE ASSESSEE DELIBERATELY CONCEALED THE INCOME ? 7. ABSOLUTELY THERE IS NO DISPUTE IN THE FACTS THAT THOUGH THE ASSESSEE FAILED TO INCLUDE THE COMMISSION INCOME IN QUESTION IN THE RETURN SUB MITTED IN RESPECT OF THE AY 2009-10 BUT, AS A MATTER OF FACT, HE INCLUDED THE SAME IN T HE RETURN OF INCOME FOR AY 2010-11. THE ASSESSEE CLAIMS IT TO BE A BONA FIDE MISTAKE DONE U NDER THE BELIEF THAT THE INCOME WILL BE INCLUDED IN THE RETURN ON RECEIPT BASIS AND THAT IS THE REASON WHY THE SAME WAS INCLUDED IN THE RETURN IN THE SUBSEQUENT YEAR. ACCORDING TO TH E LD. DR IT IS A DELIBERATE ATTEMPT TO CONCEAL THE INCOME ON THE PART OF THE ASSESSEE. 8. THE LD. CIT(A) HAD EXTENSIVELY GONE INTO THIS QU ESTION AND DISCUSSED VARIOUS FACTORS INVOLVING IN THIS MATTER. HE REFERRED TO THE LETTE R DATED 18.11.2011 RECEIVED BY THE AO ON 21.11.2011 WHEREUNDER THE ASSESSEE ACKNOWLEDGED HIS MISTAKE IN OMITTING THE INCOME IN RESPECT OF THE AY 2009-10 AND PRAYED TO INCLUDE THE SAME IN THE RETURN. THE LD. CIT(A) ALSO NOTICED THAT THE LETTER OF AO CALLING UPON THE ASSESSEE TO EXPLAIN THE OMISSION FOR THIS INCOME IN THE RETURN WAS DATED 30.11.2011. IT GOES WITHOUT SAYING THAT EVEN BEFORE THE AO QUESTIONED THE ASSESSEE ABOUT THE ALLEGED LAPSE OF OMITTING THE COMMISSION INCOME IN THE RETURN, THE ASSESSEE CAME FORWARD WITH HIS ACKNOWLE DGMENT OF MISTAKE AND OFFERED FOR INCLUSION OF THE SAME IN THE RETURN BY FILING REVIS ED COMPUTATION OF INCOME ON 21.11.2011. IT IS ALSO SUBMITTED THAT WHILE PAYING THE COMMISSI ON, AN AMOUNT OF RS.9,39,238/- WAS 4 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 DEDUCTED AS TAX BY GRASIM INDUSTRIES LTD. IN THAT E VENT, IT IS VERY DIFFICULT TO UNDERSTAND HOW THE ASSESSEE STANDS TO GAIN BY NOT SHOWING THIS PAR TICULAR INCOME IN THE RETURN. 9. THE LD. CIT(A) HAS CALLED FOR THE RECORD RELATIN G TO AY 2009-10 AND 2010-11 FOR VERIFICATION AND ON VERIFICATION HE RECORDED A FIND ING THAT THE RECORD CORROBORATES THE CONTENTION OF THE ASSESSEE THAT THE COMMISSION AMOU NT OF RS.73,77,914/- WAS RECEIVED IN JUNE, 2009, IT OUGHT TO HAVE BEEN SHOWN IN THE FY 2 008-09 ON ACCRUAL BASIS BUT IT WAS SHOWN IN THE NEXT YEAR ON CASH BASIS. ON THIS VERIF ICATION, THE LD. CIT(A) OPINED THAT IT IS A CASE OF SHOWING THE INCOME IN THE SUBSEQUENT YEAR D UE TO THE RECEIPT OF THE SAME DURING THE SUBSEQUENT FY AND CERTAINLY IT IS A BONA FIDE MISTA KE. THE LD. CIT(A) ALSO FOUND THAT SINCE THE ASSESSEE RECTIFIED THE MISTAKE VOLUNTARILY OFFE RING THE INCOME IN THE AY 2009-10 AND NOT CHALLENGING THE ADDITION MADE BY THE AO IN APPEAL, A LENIENT VIEW IS TO BE TAKEN AND ACCORDINGLY, DELETED THE PENALTY. 10. WE FIND THAT THE ASSESSEE BY MAKING AN ADDITION AL DISCLOSURE OF INCOME OF RS. 73,77,914/- FOR THE ASST YEARS 2009-10 BEFORE ANY D ETECTION BY THE DEPARTMENT IN ORDER TO MEET THE DEFICIENCIES, IF ANY, ON THE OUTFLOWS OF T HE ASSESSEE, HAD SOUGHT TO GENUINELY RECTIFY THE OMISSION OR MISDEED WHICH HAD BEEN MADE IN THE ORIGINAL DISCLOSURE STATEMENT U/S 132(4) OF THE ACT. ON THIS POINT WE PROFITABLY MAK E REFERENCE TO THE THIRD MEMBER DECISION OF THE CO-ORDINATE BENCH OF DELHI TRIBUNAL IN THE C ASE OF ADDL CIT VS PREM CHAND GARG REPORTED IN (2009) 31 SOT 97 (DELHI) (TM ) DATED 11 .5.2009 , WHEREIN IT WAS HELD THAT :- 19. THE FACT , WHETHER THERE IS CONCEALMENT OF INC OME OR WHETHER INACCURATE PARTICULARS THEREOF HAVE BEEN FURNISHED IS ESSENTIALLY A QUESTI ON OF FACT. TO FIND OUT THAT OR TO DECIDE WHICH, ALL THE ATTENDING CIRCUMSTANCES HAVE TO BE T AKEN INTO ACCOUNT. THE QUESTION IS AT WHAT POINT OF TIME THIS MATERIAL FACT IS TO BE FOUND OUT . GENERALLY IT IS WITH REFERENCE TO THE RETURN OF INCOME AND AT THAT TIME IT IS TO BE SEEN WHETHER THERE WAS CONCEALMENT OF INCOME FROM OR FURNISHING OF INACCURATE PARTICULARS THEREOF IN THE RETURN OF INCOME CHARGEABLE TO TAX. BUT THERE MAY BE CASES, WHERE AN INCOME IS NOT DECLARE D IN THE RETURN OR THE PARTICULARS OF INCOME SHOWN INACCURATELY IN THE RETURN BUT ASSESSE E ON REALIZATION OF MISTAKE, OMISSION OR MISDEED RECTIFIES THAT AND CORRECT HIMSELF AND CLEA NS HIS BREAST, CAN HE STILL BE ACCUSED OF CONCEALMENT THOUGH IN THE RETURN THERE HAS BEEN THE OMISSION? BY THE TIME THE ASSESSING OFFICER TAKES UP THE ISSUE AND COMES ACROSS THE INF ORMATION IN HIS POSSESSION, IF THE ASSESSEE MAKES UP THE DEFICIENCY AND OFFERS THE INCOME OR FU RNISHES ACCURATE PARTICULARS HE, IN OUR OPINION, CANNOT BE HELD GUILTY OF CONCEALMENT OF IN COME OR FURNISHING OF INACCURATE PARTICULARS OF HIS INCOME. ANY ACTION RECTIFIED RE LATES BACK TO ORIGINAL ACT AND TO THE DATE AND TIME OF FILING THE RETURN. WHEN THE ASSESSING OFF ICER STARTS SCRUTINY OF THE RETURN AND INITIATE ASSESSMENT PROCEEDINGS THERE IS NOTHING CONCEALED A ND THE INACCURACY, IF ANY, DISAPPEARED. THEREFORE THE ASSESSEE CANNOT BE HELD GUILTY OF CON CEALMENT. 5 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 20. A PERUSAL OF THE PROVISION OF SECTION 271(1)(C ) READ WITH EXPLANATION 1 CLEARLY SHOW THAT IT IS IN THE COURSE OF ANY PROCEEDINGS UNDER THE AC T, ASSESSMENT PROCEEDINGS IN THIS CASE, THAT THE ASSESSING OFFICER IS TO BE SATISFIED THAT THE A SSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME . IT IS THUS TO BE JUDGED AT THIS STAGE AND IF AT THIS STAGE HE HAS DECLARED THE CORR ECT INCOME AND / OR FURNISHED ACCURATE PARTICULARS OF HIS INCOME THEN THERE IS NO SCOPE, I N OUR OPINION, TO ARRIVE AT THE SATISFACTION BY THE ASSESSING OFFICER BECAUSE AT THAT STAGE THERE I S NO SUCH CONCEALMENT. IT DISAPPEARED BY AN ACTION OF THE ASSESSING OFFICER. IN THIS CASE T HE ASSESSEE HAS NO DOUBT DID NOT SHOW THE AMOUNTS RECEIVED AS ALLEGED GIFTS AS HIS INCOME,BUT NO DETAILS OF LOANS ARE GIVEN IN THE RETURN NOR ANY OTHER PARTICULARS THEREOF GIVEN BY THE ASSE SSEE AT THAT STAGE, NOT TO SPEAK OF INACCURATE ONE. WHEN THE ASSESSMENT WAS TAKEN UP A ND A GENERAL ENQUIRY WAS MADE BY THE ASSESSING OFFICER REQUIRING HIM TO FURNISH DETAILS OF ANY LOANS / GIFTS, IF ANY, THE ASSESSEE OFFERED THE AMOUNTS RECEIVED AS ALLEGED GIFTS AS HI S INCOME AND BEFORE IT COULD BE DETECTION BY THE ASSESSING OFFICER. THERE WAS THUS NO CONCEALME NT OF THE PARTICULARS OF HIS INCOME NOR THERE REMAINED FURNISHING OF ANY INACCURATE PARTICU LARS OF HIS INCOME. IT VANISHED BEFORE IT COULD BE DETECTED. 21. THE CORRECT AND ACCURATE DISCLOSURE MAY BE BY F ILING THE REVISED RETURN OR BY FURNISHING THE PARTICULARS OF SUCH INCOME BEFORE THE DETECTION BY THE ASSESSING OFFICER. THE MERE FACT THAT THE ASSESSEE HAD NOT REVISED THE RETURNS OR TH AT THE OFFER WAS BY LETTER TO AVOID HARASSMENT TO THE ASSESSEE AND THE DONORS WHO WERE NON-RESIDENT PERSONS, IT CANNOT CONVERT AN OFFER TO TAX AS CONCEALMENT OF INCOME. THEREFOR E, IN MY OPINION THE ASSESSEE HAS NOT FURNISHED INACCURATE PARTICULARS OF THE INCOME IN T HE RETURNS. 22. THEREFORE, MERE OMISSION OF THE SURRENDERED INC OME FROM THE RETURN OF AN ITEM OF RECEIPT DOES NEITHER AMOUNT TO CONCEALMENT NOR FURNISHING O F INACCURATE PARTICULARS OF INCOME UNLESS AND UNTIL THERE IS SOME EVIDENCE TO SHOW EXIST OR S OME CIRCUMSTANCES FOUND FROM WHICH IT CAN BE GATHERED THAT THE OMISSION WAS ATTRIBUTABLE TO A N INTENTION OR A DESIRE ON THE PART OF THE ASSESSEE TO HIDE OR CONCEAL THE INCOME SO AS TO AVO ID THE IMPOSITION OF TAX THEREON. APART FROM THE SURRENDER THERE WAS NOTHING MORE ON RECORD TO HOLD THE ASSESSEE GUILTY OF OFFERING THE SAID AMOUNT ON DETECTION OF THE CONCEALMENT. EV EN IN ASSESSMENT ORDER THERE IS NOTHING OF THAT SORT. IN THE ASSESSMENT PROCEEDINGS THE ASSES SING OFFICER HAS RAISED SOME SPECIFIC QUESTION NOT BASED UPON INFORMATION IN THE POSSESSI ON OF THE REVENUE. THESE ARE : SR.NO. 4 BANK STATEMENT OF ALL BANK ACC OUNTS MAINTAINED BY YOU INDIVIDUALLY OR JOINTLY WITH ANY OTHER PERSON DURING THE FINA NCIAL YEAR ALONG WITH NARRATION OF EACH DEBIT / CREDIT ENTRY. SR.NO. 9 CASH FLOW STATEMENT FOR THE FINANCIAL Y EAR UNDER CONSIDERATION. SR.NO.10-HAD YOU TAKEN / GIVEN ANY LOAN / GIFT DUR ING THE FINANCIAL YEAR UNDER CONSIDERATION ? IF YES, PLEASE FURNISH DETAILS . 23. ON A PERUSAL OF THE QUESTIONNAIRE, IT IS EVIDEN T IS GENERAL IN NATURE WITHOUT SPECIFYING THE NAMES OF THE DONOR OR ANY OTHER SUCH DETAILS ON THE BASIS WHICH IT COULD BE PRESUMED THAT THE ASSESSING OFFICER HAD INFORMATION TO CALL FOR SPECI FIC INFORMATION. THE QUERY HAD YOU TAKEN / GIVEN ANY LOAN / GIFT DURING THE FINANCIAL YEAR U NDER CONSIDERATION ? ITSELF SUGGESTS THAT THE REVENUE WAS NOT SURE ENOUGH WHETHER ANY GIFT WAS TH ERE. MERE ASKING OF A QUESTION OR SIMPLY RAISING OF AN ENQUIRY WITHOUT ANYTHING FURTHER DOES NOT TANTAMOUNT TO DETECTION OF CONCEALMENT. THERE WAS NEITHER ANY DETECTION, NOR ANY INFORMATION IN THE POSSESSION OF THE REVENUE, NOR THE MANNER OF ITS COMMUNICATION TO THE ASSESSEE WHICH MIGHT LEAD TO A DETECTION OF CONCEALMENT. 24. THERE WAS NO SPECIFIC PROVOCATION OR AN APPREHE NSION OF DETECTION PREVAILING AT THE TIME WHEN THE OFFER WAS MADE AND IN THE ABSENCE OF ANY S UCH IMMINENT FEAR FROM THE SIDE OF THE REVENUE, IF THE ASSESSEE CAME FORWARD AND PAID THE TAX THEREON BY ADDING THE SAME IN THE RETURNED INCOME, IT HAS TO BE TAKEN AS A VOLUNTARY OFFER TO TAX. ON THE FACE OF THE EVIDENCE IN 6 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 THE SHAPE OF CONFIRMATION LETTERS, BANK ACCOUNTS, P ASSPORT ETC., IN THE HANDS OF THE ASSESSEE, IT MIGHT BE VALID GIFT THAT WOULD HAVE CONVINCED A REA SONABLY MINDED PERSON, SPECIALLY A PERSON EXERCISING A JUDICIAL FUNCTION. THE ACCEPTED POSIT ION OF LAW IS THAT MERELY BECAUSE AN ASSESSEE HAD AGREED TO THE ASSESSMENT THAT CANNOT B RING IN AUTOMATIC LEVY OF PENALTY. 25. THE FACTS AND CIRCUMSTANCES AND THE MERITS OF T HE CASE AND THE COGENT EVIDENCES PLACED ON RECORD ARE SUCH AS TO EXONERATE THE ASSESSEE FROM C ONCEALMENT PENALTY. THE CIT(A) IN MY OPINION IS RIGHT IN DELETING THE PENALTY, HIS ORDER IS AFFIRMED AND THE APPEALS OF THE REVENUE ARE DISMISSED. WE FIND THAT THIS DELHI TRIBUNAL DECISION (I.E PREM CHAND GARG CASE) HAS BEEN CONSIDERED AND APPROVED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RAM ESH CHAND GOYAL IN G.A.NO. 2347 OF 2010 IN ITAT NO. 181 OF 2010 DAT ED 11.8.2010 WHILE ADJUDICATING THE IMPUGNED ISSUE. 11. IT IS A JUDICIALLY ACKNOWLEDGED FACT THAT THE T AX LAWS OF THIS COUNTRY ARE COMPLEX AND COMPLICATED AND OFTEN REQUIRES FOR COMPLIANCE THERE WITH, THE ASSISTANCE OF A TAX PRACTITIONER SPECIALIZING IN THIS FIELD. IT IS POSSIBLE THAT MI STAKE COULD HAPPEN BY IMPROPER UNDERSTANDING OF THE LAW AND PRACTICE. VIEWING FRO M THIS ANGLE COUPLED WITH THE FACT OF THE VOLUNTARY RECTIFICATION OF THE MISTAKE BY THE ASSES SEE BESIDES HE IS DECLARING THE INCOME IN THE RETURN OF NEXT YEAR, WE FIND THAT THE BREACH IS ONLY VENIAL IN NATURE. WITH THIS VIEW OF THE MATTER, WE DO NOT PROPOSE TO INTERFERE WITH THE FINDING OF THE LD. CIT(A) AND SUSTAIN THE SAME. WE, THEREFORE, ANSWER THE ISSUE IN THE AFFIR MATIVE HOLDING THAT THE DELETION OF PENALTY BY THE CIT(A) DOES NOT SUFFER ANY ILLEGALITY OR IRR EGULARITY. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.08.2016 SD/- SD/- (M. BALAGANESH) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED : 10 TH AUGUST, 2016 JD.(SR.P.S.) 7 ITA NO.2411/KOL/2013 SHRI JAY KUMAR KHEMKA, AY 2009-10 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-55(4), KOLKATA 2 RESPONDENT SHRI JAY KUMAR KHEMKA, 48, CHITTARANJAN AVENUE, KOLKATA-700 012. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .