Shri Babubhai Haji S.Kapadia, Navsari V. The Income tax Officer,Ward-1, Navsari

ITA 2443/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0227 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-10-2009
• Assessment Year: 1991-1992
• Appeal Filed On: 18-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY RAI
• Keywords: Unexplained cash credit; Gift
• Section: 271(1)(c); 68; 27

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, JUDICIAL MEMBER ) I.T.A. NO. 2443/AHD./2009 ASSESSMENT YEAR : 1991-1992 BABUBHAI HAJI S. KAPADI, NAVSARI -VS.- INCOM E TAX OFFICER, WARD-1, NAVSARI (P.A. NO. ABVPK 6348 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARDIK VORA RESPONDENT BY : SHRI SANJAY RAI O R D E R THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 03-06-2009 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -I, SURAT CONF IRMING THE PENALTY OF RS.61,624/- LEVIED BY THE A.O. UNDER SECTION 271(1)(C) FOR THE ASSESSMENT YEAR 1991-92. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL (RESIDENT). THE A.O. IN THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR UNDER APPE AL MADE AN ADDITION OF RS.1,58,000/- UNDER SECTION 68 IN RESPECT OF UNEXPLAINED CASH CREDIT ST ATED TO HAVE BEEN BORROWED FROM SHRI SABBIRBHAI PATEL. THE SAID ADDITION WAS CONFIRMED U P TO TRIBUNAL. ACCORDING TO THE A.O., THERE WAS NO WAY TO VERIFY THE GENUINENESS OF CONFIRMATIO N BECAUSE DEPOSITORS CONFIRMATION DID NOT BEAR COMPLETE ADDRESS AND DATE AND ALSO THE DEPOSIT OR WAS NOT PRODUCED FOR EXAMINATION. SUBSEQUENTLY, THE A.O. LEVIED THE PENALTY OF RS.61, 624/- IN RESPECT OF THIS ADDITION. 3. ON APPEAL AGAINST THE ORDER OF ASSESSING OFFICER IMPOSING THE PENALTY U/S. 271(1)(C), BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEA LS), IT WAS CONTENDED THAT SHRI SABBIRBHAI PATEL IS AN AGRICULTURIST HAVING AGRICU LTURE LAND ADMEASURING 14 HECTORS WHICH CAN BE SEEN FROM THE EXTRACT OF 7/12 AND VILLAGE JOGWADS TAL. CHIKHLI TALATIS CERTIFICATE OF CROPS SUBMITTED IN THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS SUBMITTED THAT CONFIRMATION OF SHRI SABBIRBHAI PATEL WAS ALSO SUBMITTED IN THE COURSE O F ASSESSMENT PROCEEDINGS. THUS, THE ASSESSEE HAS PROVED IDENTITY, GENUINENESS AS WELL AS CREDITW ORTHINESS OF CASH CREDIT. MERELY NON- PRODUCTION OF DEPOSITOR BE A GOOD GROUND OF MAKING ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 BUT FOR THIS PENALTY UNDER SECTION 271(1) (C) IS NOT LEVIABLE. AGGRIEVED BY THIS ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), THE AS SESSEE IS IN APPEAL BEFORE US. 2 4. AT THE TIME OF HEARING, ON BEHALF OF ASSESSEE SH RI HARDIK VORA APPEARED BEFORE ME AND VEHEMENTLY CONTENDED THAT IN THE CASE OF ALLARAAKHU BHAI BABUBHAI ON IDENTICAL FACTS PENALTY OF RS.1,11,520/- WAS LEVIED UNDER SECTION 271(1)(C) OF THE ACT. THE SAME WAS CANCELLED BY THE ITAT, SMC BENCH, AHMEDABAD IN ITA NO. 4346/AHD./2 007 VIDE ORDER DATED 24.03.2008. THE COPY OF THE SAID ORDER IS PLACED ON RECORD. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THAT CASE ALSO, LOAN WAS TAKEN FROM SHRI SABBIRBHAI PATE L. THEREFORE, IT CANNOT BE SAID THAT CONFIRMATION FILED BY THE ASSESSEE IS INCOMPLETE OR IT WAS NOT POSSIBLE FOR A.O. TO EXAMINE THE GENUINENESS OF THE CONFIRMATION. SINCE IN THAT CASE , THE PENALTY HAS BEEN CANCELLED, ON THIS GROUND ALONE, PENALTY IN THE CASE OF ASSESSEE MAY B E CANCELLED BECAUSE NECESSARY EVIDENCES WERE FURNISHED. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES VS.- CIT REPORTED IN [20 01] 249 ITR 125 (GUJ.) AND IT WAS CONTENDED THAT PENALTY LEVIED MAY BE DELETED. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THE CASE OF NATIONAL TEXTILES (SUPRA), THE HON'BLE GUJARAT HIGH COURT HELD THAT IN ORDER TO JUSTIFY THE LEVY OF PENALTY, TWO FACTORS MUST CO-EXIST, I.E. (I) THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADING TO THE REASONABLE CONCLUSION THAT AMOUNT DOES REPRE SENT THE ASSESSEES INCOME. IT IS NOT ENOUGH FOR THE PURPOSE OF PENALTY THAT THE AMOUNT HAS BEEN ASSESSED AS INCOME, AND TO THE CIRCUMSTANCES WAS THAT THERE WAS MUST HAVING CONSCIOUS CONCEALMEN T OR FURNISHING OF INACCURATE PARTICULARS OF INCOME OF ASSESSEE. THUS IT WAS CONTENDED BY THE LD . A.R. THAT PENALTY BE DELETED. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE, SHRI SANJAY RAI VEHEMENTLY CONTENDED THAT THE ASSESSEE DID NOT DISCHARGE HIS O NUS IN PROVING THE CASH CREDIT AT THE TIME OF ORIGINAL ASSESSMENT. THE ASSESSEE COULD NOT PRODUCE THE CREDITORS. THE ADDITION MADE UNDER SECTION 68 IS CONFIRMED UP TO TRIBUNAL. THEREFORE, IN VIEW OF THE RECENT JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF UNION OF INDIA & OTHER S VS.- DHARMENDRA TEXTILE PROCESSORS & ORS. (2008) 295 ITR 244 (SC), THE PENALTY UNDER SEC TION 271(1)(C) HAS RIGHTLY BEEN CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). TH EREFORE, THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN THIS REGARD BE UPHELD. 6. I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE RIV AL SUBMISSIONS MADE BEFORE ME AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. SECTION 27 1 (1)(C) OF THE ACT PROVIDES THAT IF THE 3 ASSESSING OFFICER, IN THE COURSE OF THE PROCEEDINGS UNDER THE ACT IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PEN ALTY A SUM WHICH SHALL NOT BE LESS THAN BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TA X SOUGHT TO BE EVADED BY REASONS OF THE CONCEALMENT OF PARTICULARS OF HIS INCOME. EXPLANATI ON I. TO SECTION STATES THAT WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF TOTAL INCO ME OF ANY PERSON UNDER THIS ACT, SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANAT ION WHICH IS FOUND BY THE A.O. FALSE OR SUCH PERSON OFFER AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELA TING TO THE SAME AND MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THE N, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESU LT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION, BE DEEMED TO REPRESENT THE INC OME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. THE EFFECT OF THIS EXPLANATION IS THAT I F THE NECESSARY INGREDIENTS AS STATED HEREIN ARE SATISFIED THEN THE AMOUNT DISALLOWED IN COMPUTING T OTAL INCOME SHALL FOR THE PURPOSES OF CLAUSE (C) OF THIS SECTION, BE DEEMED TO REPRESENT THE INC OME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. THE NECESSARY ELEMENTS FOR ATTRACTING TH IS EXPLANATION ARE THREE FOLD:- A) THE PERSON FAILS TO OFFER HIS EXPLANATION, OR B) HE OFFERS THE EXPLANATION WHICH IS FOUND B Y THE A.O. TO BE FALSE, OR C) THE PERSON OFFERS EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONAFIDE AN D THAT ALL THE FACTS RELATING THE SAME HAVE BEEN DISCLOSED BY HIM. IF THE CASE FALLS IN ANY THREE OF INGREDIENTS, THE N THE DEEMING PROVISION COMES INTO PLAY AND THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL I NCOME IS CONSIDERED AS THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED FOR THE PU RPOSES O CLAUSE (C) OF SECTION 271(1) AND THE PENALTY FOLLOWS. IF THE ASSESSEE SUCCESSFULLY COME? OUT OF THE ABOVE THREE CONSEQUENTS THEN HE CANNOT BE DEEMED TO HAVE CONCEALED HIS PARTICULARS OF INCOME WITH REFERENCE TO THE AMOUNT ADDED OR DISALLOWED IN COMPUTATION OF TOTAL INCOME. WITH THIS BACKGROUND IN MIND, IF WE TEST THE FACTS OF THE CASE ON THE TOUCHSTONE OF THE ABOVE REFERRED THREE INGREDIENTS OF EXPLANATION 1 TO SEC. 271(1)(C) OF THE ACT, WE FIND IN THIS CASE THAT THE ASSESSEE HAS FILED THE AFFIDAVIT OF DONOR. NONE OF THE DONORS WAS EXAMINED BY A.O. EITHER 4 IN ASSESSMENT PROCEEDINGS OR IN PENALTY PROCEEDINGS . THERE IS ALSO NO EVIDENCE TO SHOW THAT MONIES WERE ASSESSEES OWN MONEY BROUGHT IN THE FOR M OF GIFT. THE TOTALITY OF THE FACTS INDICATE THAT THE ASSESSEE IS UNABLE TO PROVE THE G IFT IN THE MANNER REQUIRED BY THE DEPARTMENT. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OR THERE IS A DEEMED C ONCEALMENT FOR ATTRACTING THE EXPLANATION 1 TO SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 7. THE EXPRESSION 'FURNISHING OF INACCURATE PARTICU LARS OF INCOME' HAS NOT BEEN DEFINED IN THE ACT. THE EXPRESSION 'INACCURATE' REFERS TO 'NOT IN CONFORMITY WITH THE FACT OR TRUTH' AND THAT IS THE MEANING WHICH, IS RELEVANT IN THE CONTEXT OF 'F URNISHING OF INACCURATE PARTICULARS'. THE EXPRESSION 'PARTICULARS' REFERS TO 'FACTS, DETAILS, SPECIFICS, OR INFORMATION ABOUT SOMEONE OR SOMETHING'. THEREFORE, THE PLAIN MEANING OF TH E EXPRESSION 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' IMPLIES FURNISHING OF DETAIL S OR INFORMATION ABOUT INCOME WHICH ARE NOT IN CONFORMITY WITH THE FACTS OR TRUTH. THE DETAI LS OR INFORMATION ABOUT INCOME DEAL WITH THE FACTUAL DETAILS OF INCOME AND THIS CANNOT BE EXTEND ED TO AREAS WHICH ARE SUBJECTIVE SUCH AS THE STATUS OF TAXABILITY OF AN INCOME, ADMISSIBILITY OF A DEDUCTION AND INTERPRETATION OF LAW. THE FURNISHING OF INACCURATE INFORMATION THUS RELATES T O FURNISHING OF FACTUALLY INCORRECT DETAILS AND INFORMATION ABOUT T INCOME. IN THE PRESENT CASE, HOWEVER, WHAT HAS BEE N TREATED AS FURNISHING OF INACCURATE -'* PARTICULARS IS MAKING OF A CLAIM WHICH WAS NOT ADMITTED BY THE ASSESSING OFFICER AND THE APPELLANT HIMSELF WITHDREW IF. TH E ADMISSION OR REJECTION OF A CLAIM IS A SUBJECTIVE EXERCISE AND WHETHER A CLAIM IS ACCEPTED OR REJECTED HAS NOTHING TO DO WITH FURNISHING O1 INACCURATE PARTICULARS OF INCOME. THE A.O. HAS APPARENTLY PROCEEDED TO TREAT APPELLANT'S CLAIM FOR BAD DEBT AS FURNISHING OF INA CCURATE PARTICULARS. WHAT IS A CORRECT CLAIM AND WHAT IS AN INCORRECT CLAIM IS A MATTER OF PERCE PTION. IT IS A SETTLED POSITION OF LAW THAT RAISING A LEGAL CLAIM, EVEN IF IT IS ULTIMATELY FOU ND TO BE LEGALLY UNACCEPTABLE, CANNOT AMOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. 'IN ACCURATE', AS NOTED ABOVE, IS SOMETHING FACTUALLY INCORRECT AND INTERPRETATION OF LAW CAN N EVER BE A FACTUAL ASPECT. JUST BECAUSE AN ASSESSING OFFICER DOES NOT ACCEPT AN INTERPRETATIO N, SUCH AN INTERPRETATION IS NOT RENDERED INCORRECT. IN ANY EVENT, AS NOTED ABOVE, THE CONNOT ATION OF EXPRESSION 'PARTICULARS OF INCOME' DO NOT EXTEND TO THE ISSUES OF INTERPRETATION OF LAW A ND AS SUCH MAKING A CLAIM, WHICH IS FOUND TO BE UNACCEPTABLE IN LAW, CANNOT BE TREATED AS FURNIS HING OF INACCURATE PARTICULARS OF INCOME. IN 5 THIS VIEW OF THE MATTER, THE CASE OF THE APPELLANT CANNOT BE SAID TO BE A CASE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', IN ITS NATURAL S ENSE, EITHER. IN THIS REGARD RELIANCE IS PLACED ON THE DECISION OF HON'BLE ITAT, PUNE 'A' BENCH IN THE CASE OF KANBAY SOFTWARE INDIA PVT. LTD VS. DCIT IN ITA NO.30.FJ/PN/07 - A.Y.2002-03. 8. ON IDENTICAL FACTS IN THE CASE OF ALLARAKHUBHAI BABUBHAI KAPADIA (SUPRA), THE PENALTY OF RS.1,11,520/- WAS LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. THE FACTS OF THIS CASE ARE ALMOST IDENTICAL. THE TRIBUNAL VIDE ORDER DATED 24.03.2008 CANCELLED THE PENALTY FOR THE DETAILED REASONS GIVEN IN PARA 6, WHICH ARE RE-PROD UCED HEREUNDER :- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN MY OPINION, IF THE ADDITION HAS BEEN IIUUK : IN THE REGULAR ASSESSMENT PROCEEDINGS THAT V ML NOT AUTOMATICALLY JUSTIFY THE IMPOSITION OF THE PENALTY U/S.271(L)(C). NO DOUBT, AS PER EXPLANATION 1 OF SECTION 271(L)(C) OF THE ACT, THE ONUS IS ON THE ASSESSEE TO REBUT THE PRESU MPTION. ONCE THE ASSESSEE SUBMITS THE EXPLANATION, THE ONUS GETS SHIFTED ON T HE REVENUE TO PROVE THAT THE EXPLANATION OF THE ASSESSEE IS FALSE OR IS NOT BONA FIDE ONE. 1 HAVE GONE THROUGH THE DECISION OF THE HON'BLE SUPREME COURT UNION OF INDIA & ORS. V. DHARMENDRA TEXTILE PROCESSORS AND ORS. (2008) 295 I TR 244(SC), RELIED ON BY THE LEARNED DR. THE SAID DECISION, IN OUR OPINION. DOES NOT ASSIST THE STAND OF THE REVENUE AS THE ASSESSEE BEFORE US HAS NOT RAISE D ANY CONTENTION REGARDING MENS REA. FURTHER, IN THE SAID CASE MAILER AS LO WH ETHER PROVISION CONTAINING IMPOSITION OF MANDATORY PENALTY ON PERSONS WHO EVAD E PAYMENT OF TAX, SHOULD BE READ TO CONTAIN MENS REA AS AN ESSENTIAL REQUIRE MENT, HAS BEEN REFERRED TO A LARGER BENCH OF THE SUPREME COURT IN VIEW OF THE CO NFLICT OF OPINION IN THE JUDGMENTS OF THE DIVISION BENCHES OF THE SUPREME CO URT IN DILIP N. SHROFF -V.- JOINT CIT [2007] 291 ITR 519 AND CHAIRMAN. SEB1 V. SHRIRAM MUTUAL FUND 12006] 131 COMP CAS 591; [2006] 5 SCC 361. WE HAVE ALSO GONE THROUGH THE DECISION IN THE CASE OF NATIONAL TEXTILES V. CIT [2 001] 249 ITR 125 (GUJ.). WHEREIN HON'BLE JURISDICTIONAL HIGH COURT HAS OBSER VED AS UNDER : 'THE PROVISIONS OF SECTION 68 PERMITTING THE ASSESS ING OFFICER TO TREAT UNEXPLAINED CASH CREDIT AS INCOME ARE ENABLIN G PROVISIONS FOR MAKING CERTAIN ADDITIONS WHERE THERE IS FAILURE BY THE ASSESSEE TO GIVE AN EXPLANATION OR WHERE THE EXPLANATION IS NOT TO THE SATISFACTION OF THE ASSESSING OFFICER. HOWEVER, THE ADDITION MADE ON THIS COUNT WOULD NOT AUTOMATICALLY JUSTIFY THE IMPO SITION OF PENALTY UNDER SECTION 271(L)(C) BY RECOURSE ONLY T O EXPLANATION 1 BELOW SECTION 271(L)(C). NO PENALTY CAN BE IMPOSED IF THE FACTS AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOT HESIS THAT THE AMOUNT DOES NOT REPRESENT CONCEALED INCOME AS WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSEE GIVES AN EXPLANATION WHICH IS UNPROVED BUT NOT DISPROVED, I.E., IT IS NOT ACCEPTED BUT CIR CUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSE SSEE 'S CASE IS FALSE, THE EXPLANATION CANNOT HELP THE DEPARTMEN T BECAUSE THERE WILL 6C' NO MATERIAL TO SHOW THAT THE AMOUNT IN QUESTION WAS THE INCOME OF THE ASSESSEE ' 6 CONSIDERING THE FACTS OF THE CASE. 1 AM OF THE VIEW THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF HON'BLE JURIS DICTIONAL HIGH COURT IN THE CASE OF NATIONAL TEXTILES V. C1T (SUPRA). NO CONTRARY DE CISION OF THE SAID DECISION OF HON'BLE JURISDICTIONAL HIGH COURT WAS BROUG HT BEFORE ME. THEREFORE, THE PENALTY OF RS.1,11,520/- IMPOSED U/S.271( 1 )(C) IS DELETED. 9. AS THE FACTS OF THE CASE ARE IDENTICAL WITH THA T OF THE DECISION OF THIS TRIBUNAL IN RESPECT OF OTHER ASSESSEE, I.E. ALLARAKHUBHAI BABUBHAI KAPA DIA (SUPRA), I, FOLLOWING THE SAME, AM OF THE OPINION THAT THERE IS NO JUSTIFICATION FOR THE LEVY OF PENALTY. IT IS AN WELL SETTLED LAW THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE DISTINCT AND FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS, THOUGH CONSTITUTE GOOD EVID ENCE, CANNOT BE CONCLUSIVE IN THE PENALTY PROCEEDINGS. IN PENALTY PROCEEDINGS, THE ENTIRE EVI DENCE IN THE CASE HAS TO UNDERGO A REAPPRAISAL IN ORDER TO ESTABLISH THE GUILT OF THE ASSESSEE AND THAT MERELY BECAUSE THE ADDITION HAS BEEN SUSTAINED BY THE TRIBUNAL, PENALTY UNDER SECTION 27 1(1)(C) IS NOT AUTOMATICALLY LEVIABLE. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL WITH THAT O F THE CASE OF ALLARAKHUBHAI BABUBHAI IN ITA NO. 4346/AHD./2007 (SUPRA) BEING THE SAME LAND RECORD S UBMITTED CONTAINING DETAILS AS WELL AS ADDRESS OF THE CREDITOR, IN VIEW OF THIS, I AM OF T HE OPINION THAT THIS IS NOT A FIT CASE TO LEVY THE PENALTY. THE PENALTY OF RS.61,624/- LEVIED BY THE A .O. UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 IS ACCORDINGLY CANCELLED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 30.10.2009 SD/- (T.K. SHARMA) JUD ICIAL MEMBER DATED : 30 / 10 / 2009 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.