Sh. Devinder Singh Lamba, Paonta Sahib V. ITO, Nahan

ITA 284/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64087 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 29-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AMRINDER SINGH
• Keywords: Reasonable cause; Non compliance; Assessment record
• Section: 143(3); 142(1); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 280 & 281/CHD/2012 (ASSESSMENT YEARS : 2006-07 & 2007-08) SMT.MANMOHAN KAUR LAMBA, VS. THE INCOME TAX OFFI CER, PROP.M/S LAMBA CELEBRATIONS RESORT, NAHAN. BATTA BRIDGE, PAONTA SAHIB. PAN: AAVPL4083B ITA NOS. 282 TO 284 & 286/CHD/2012 (ASSESSMENT YEARS : 2005-06,2006-07, 2006-07 & 2007 -08) ITA NO. 285/CHD/2012 (ASSESSMENT YEAR : 2006-07) SH.DEVINDER SINGH LAMBA, VS. THE INCOME TAX OFFI CER, PROP.M/S MODERN TENT HOUSE &, NAHAN. GLASS PLACE, MAIN ROAD , PAONTA SAHIB. PAN: AAVPL4082A AND ITA NOS. 287 & 288/CHD/2012 (ASSESSMENT YEARS : 2006-07 & 2007-08) M/S LAMBA CELEBRATIONS RESORT VS. THE INCOME TAX OFFICER, BATTA BRIDGE, PAONTA SAHIB. NAHAN. PAN: AACFL8622R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMRINDER SINGH RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 03.12.2012 DATE OF PRONOUNCEMENT : 06.12.2012 O R D E R PER SUSHMA CHOWLA, J.M, : OUT OF THESE NINE APPEALS, EIGHT APPEALS ARE FILED BY DIFFERENT ASSESSEES AGAINST THE ORDER/S OF THE COMMISSIONER O F INCOME-TAX 2 (APPEALS) IN UPHOLDING PENALTY LEVIED U/S 271 (1)(B ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), AS DETAILED UNDER: ITA NO . NAME OF ASSESSEE ASST. YEAR DATE OF ORDER PENALTY LEVIED CIT (APPEALS) U/S 271(1)(B) 280/CHD/2012 SMT.MANMOHAN KAUR 2006-07 26.12.2011 RS.10,000/ - LAMBA 281/CHD/2012 SMT.MANMOHAN KAUR 2007-08 26.12.2011 RS.10,000/ - LAMBA 282/CHD/2012 SH.DEVINDER SINGH 2005-06 28.12.2011 RS.10,00 0/- LAMBA 283/CHD/2012 SH.DEVINDER SINGH 2006-07 28.12.2011 RS.10,00 0/- LAMBA 284/CHD/2012 SH.DEVINDER SINGH 2006-07 28.12.2011 RS.10,00 0/- LAMBA 286/CHD/2012 SH.DEVINDER SINGH 2007-08 28.12.2011 RS.10,00 0/- LAMBA 287/CHD/2012 M/S LAMBA CELEBRA- 2006-07 19.12.2011 RS.10,00 0/- TIONS RESORT 288/CHD/2012 M/S LAMBA CELEBRA- 2007-08 19.12.2011 RS.10,00 0/- TIONS RESORT 2. THE APPEAL IN ITA NO.285/CHD/2012 IS AGAINST THE ORDER OF CIT (APPEALS) DATED 26.12.2011 RELATING TO ASSESSMENT Y EAR 2006-07 AGAINST THE ORDER OF PENALTY PASSED UNDER SECTION 271A OF T HE ACT. 3. ALL THE ABOVE SAID NINE APPEALS RELATING TO DIFF ERENT ASSESSEES BUT ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. TH E FACTS IN ALL THE CASES ARE IDENTICAL, HOWEVER, REFERENCE IS BEING MA DE TO THE FACTS IN ITA NO.280/CHD/2012 FOR ADJUDICATING THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. IDENTICAL GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ASSESSEE IN ALL THE CAPTIONED APPEALS EXCEPT ITA NO.285/CHD/2012 AND THE SAME READ AS UNDER: 1. THAT THE ORDER PASSED UNDER SECTION 250(6) BY T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA IN APPEAL NO.IT/27/09-10/SML, DATED 26.12.2011 IS CONTRARY TO LAW AND FACTS OF THE CASE. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 3 GRAVELY ERRED IN UPHOLDING PENALTY UNDER SECTION 271(1)(B) OF I.T. ACT, 1961 AMOUNTING TO RS.10000/- MADE BY THE LD. ASSESSING OFFICER. 4. THE BRIEF FACTS OF THE CASE ARE THAT SURVEY UNDE R SECTION 133A OF THE ACT WAS CONDUCTED AT THE PREMISES OF THE ASSESS EE ON 9.3.2007. THEREAFTER NOTICES WERE ISSUED UNDER SECTION 142(1) AND 143(2) OF THE ACT ON VARIOUS DATES. HOWEVER, NO COMPLIANCE WAS M ADE BY THE ASSESSEE TO THE SAID NOTICES ISSUED FROM TIME AND AGAIN BY T HE ASSESSING OFFICER. THE ASSESSEE WAS SHOW CAUSED AS TO WHY PENALTY SHOU LD NOT BE LEVIED UNDER SECTION 271(1)(B) OF THE ACT. THE ASSESSEE F AILED TO FURNISH ANY REPLY TO THE SAID NOTICES, THOUGH VARIOUS OPPORTUNI TIES WERE GIVEN BY THE ASSESSING OFFICER. THE ASSESSING OFFICER THUS IMPO SED PENALTY OF RS.10,000/- UNDER SECTION 271(1)(B) OF THE ACT. DU RING THE COURSE OF APPELLATE PROCEEDINGS, THE CONTENTION OF THE ASSESS EE WAS THAT THE PROCEEDINGS WERE BEING UNDERTAKEN BY SHRI D.S.LAMBA , WHO IS THE HUSBAND OF THE ASSESSEE, WHO IN TURN WAS SUFFERING FROM A RHYTHMIC DISORDER OF HEART. THE MEDICAL CERTIFICATE IN LIEU THERE OF WAS FURNISHED BEFORE THE CIT (APPEALS).. THE PLEA OF THE ASSESSE E WAS THAT THERE WAS SUFFICIENT AND REASONABLE CAUSE FOR NON-COMPLIANCE OF THE STATUTORY NOTICES ISSUED BY THE ASSESSING OFFICER AND THE LEV Y OF PENALTY SHOULD HAVE BEEN EXERCISED LIBERALLY. THE CIT (APPEALS) C ALLED FOR THE ASSESSMENT RECORDS AND NOTED VARIOUS DATES ENTERED IN THE ORDER SHEET IN RESPECT OF THE PROCEEDINGS CARRIED ON BEFORE THE AS SESSING OFFICER. THE SAID DATE-WISE ENTRIES ARE INCORPORATED AT PAGES 3 AND 4 OF THE APPELLATE ORDER AND THE OBSERVATIONS OF THE CIT (APPEALS) IN THIS REGARD ARE AS UNDER: THUS THE ENTIRE HISTORY OF THE CASES IS MARKED WIT H A SERIES OF REQUEST FOR ADJOURNMENT ON EACH DATE AND ALSO WITH THE FAILURE TO ATTEND ON MANY OCCASIONS. FINA LLY THE LD.A.O. PROCEEDED TO COMPLETE THE ASSESSMENT ON THE BASIS OF THE INFORMATION AVAILABLE ON RECORD AND TH E PART INFORMATION MADE AVAILABLE BY THE APPELLANT. 4 5. THE CIT (APPEALS) VIDE PARA 5.1 HELD AS UNDER: 5.1 IT IS THEREFORE EVIDENT FROM ABOVE THAT THE APPELLANT WAS A HABITUAL DEFAULTER IN THE MATTER OF COMPLIANCE WITH THE STATUTORY NOTICES ISSUED BY THE LD.A.O. FROM TIME TO TIME. IT WAS ONLY FOR THREE D AYS THAT THE MEDICAL OFFICER HAD RECOMMENDED THE REST T O THE HUSBAND OF THE APPELLANT ON MEDICAL GROUND AS P ER THE CERTIFICATE FURNISHED BY THE APPELLANT. THROUG HOUT THE ASSESSMENT PROCEEDINGS THE APPELLANT KEPT ON DELAYING THE FURNISHING OF THE REQUISITE INFORMATIO N WITH THE VIEW TO AVOIDING FURTHER INVESTIGATION AND ENQUIRY AT THE END OF THE A.O. EVEN WHEN THE ASSESSMENT WAS ABOUT TO GET BARRED BY LIMITATION OF TIME, THE APPELLANT FAILED TO ATTEND THE PROCEEDING S. SO MUCH SO THAT NO REPLY WAS FURNISHED BY THE APPELLAN T TO THE LD. A.O. EVEN IN RESPONSE TO THE NOTICE ISSUED U/S 271(1)(B). KEEPING IN VIEW THE CONDUCT OF THE APPELLANT THROUGHOUT, THE PENALTY LEVIED BY THE LD. A.O. U/S 271(1)(B) APPEARS TO BE FULLY JUSTIFIED. THER E IS NOTHING TO SHOW ON THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE THAT THE APPELLANT WAS PREVENTED BY ANY REASONABLE OR SUFFICIENT CAUSE FROM MAKING COMPLIAN CE WITH THE NOTICES ISSUED BY THE LD. A.O. THE DELIBE RATE MANNER IN WHICH THE APPELLANT CHOSE NOT TO COMPLY W ITH THE STATUTORY NOTICES DOES NOT WARRANT ANY LIBERAL EXERCISE OF THE DISCRETION TO IMPOSE PENALTY. THER E IS NO GROUND AT ALL TO INTERFERE WITH THE ACTION OF TH E LD.A.O. ACCORDINGLY THE PENALTY LEVIED U/S 271(1)( B) IS HEREBY UPHELD. 6. THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ABOVE SAID ORDER OF THE CIT (APPEALS). THE CONTENTION OF THE LEARNED A .R. FOR THE ASSESSEE IS THAT THE TAXATION MATTERS WERE BEING LOOKED AFTE R BY THE HUSBAND OF THE ASSESSEE WHO HAD A HEART PROBLEM AND CONSEQUENTLY T HERE WAS NON COMPLIANCE ON CERTAIN DATES. HOWEVER, THEREAFTER T HERE WAS COMPLIANCE AND THE ASSESSEE APPEARED AND FILED THE REPLIES AND HENCE THERE WAS NO MERIT IN THE SAID LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. 7. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF THE CIT (APPEALS). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE L EVY OF PENALTY U/S 271(1)(B) OF THE ACT. SECTION 271(1)(B) OF THE ACT READ AS UNDER: 5 IF THE ASSESSING OFFICER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY P ERSON HAS FAILED TO COMPLY WITH A NOTICE UNDER SUB SECTI ON (1) OF SECTION 142 OR SUB-SECTION 2 OF SECTION 143 OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB SECTION 2A OF SECTION 142, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM OF TEN THOUSAND RUPEE S FOR EACH SUCH FAILURE. 9. UNDER THE PROVISIONS OF SECTION 271(1)(B) OF THE ACT, WHERE THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S HAD FAILED TO COMPLY WITH THE NOTICE ISSUED UNDER SECTION 142(1) OR SECTION 143(2) OF THE ACT OR FAILED TO COMPLY WITH THE DIRECTIONS ISS UED UNDER SECTION 142 (2A) OF THE ACT, THEN THE ASSESSING OFFICER MAY IMP OSE PENALTY OF A SUM OF RS.10,000/- FOR EACH SUCH FAILURE, WHICH SHALL B E PAYABLE IN ADDITION TO TAXES, IF ANY, TO BE PAID BY THE ASSESSEE. 10. COMING TO THE FACTS OF THE PRESENT CASE AND THE VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER, IT TRANSPIRES THAT THE ASSESSEE HAD FAILED TO COMPLY WITH THE NOTICES ISSUED U//S 142(1)/143(2 ) OF THE ACT ON 30.6.2008 AND 16.7.2008/17.7.2008. SHOW CAUSE NOTI CE WAS ISSUED ON 21.7.2008 FOR COMPLIANCE ON 25.7.2008. THE ASSESSE E HAD SOUGHT ADJOURNMENT ON 4.8.2008 TO APPEAR ON 22.8.2008 BUT NONE APPEARED ON 22.8.2008 AND ALSO ON 27.8.2008. THEREAFTER VARIOU S REQUESTS WERE MADE BY THE CHARTERED ACCOUNTANT SHRI HARISH VAISH FOR A DJOURNMENT FROM DATE TO DATE AND ON SOME DATES REPLIES WERE RECEIVE D. THE LAST DATE WAS FIXED FOR 24.11.2008 AND THE ASSESSEE FAILED TO FUR NISH INFORMATION AND AS SUCH THE ASSESSMENT WAS COMPLETED ON THE BASIS O F INFORMATION AVAILABLE ON RECORD. THE ASSESSEE HAD DEFAULTED IN NOT COMPLYING WITH THE NOTICES ISSUED UNDER SECTION 142(1) AND OR UNDE R SECTION 143(2) OF THE ACT ON VARIOUS OCCASIONS. HOWEVER, THE ASSESSI NG OFFICER HAD IMPOSED PENALTY U/S 271(1)(B) OF THE ACT ONLY AT R S.10,000/-. WE FIND NO MERIT IN THE PLEA RAISED BY THE ASSESSEE THAT TH E HUSBAND OF THE 6 ASSESSEE WAS NOT KEEPING WELL SPECIALLY IN VIEW OF THE MEDICAL CERTIFICATE ISSUED FOR THREE DAYS AND THREE DAYS BE D REST AS REFERRED TO BY THE CIT (APPEALS) AND FURTHER PROCEEDINGS BEING ATT ENDED BY THE CHARTERED ACCOUNTANT. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE UPHOLD THE LEVY OF PENALTY U/S 271(1)( B) OF THE ACT. IN VIEW THEREOF, WE DISMISS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 11. THE FACTS IN ITA NO.281/CHD/2012 ARE IDENTICAL TO THE FACTS RAISED IN ITA NO.280/CHD/2012 AND ACCORDINGLY, OUR DECISIO N IN ITA NO.280/CHD/2012 SHALL APPLY MUTATIS MUTANDIS TO THE FACTS IN ITA NO.281/CHD/2012. 12. SIMILARLY, IN THE CASE OF SHRI DEVINDER SINGH L AMBA, ITA NOS.282,283 AND 286/CHD/2012, THE CIT (APPEALS) HAS TABULATED THE VARIOUS DATES OF THE PROCEEDINGS BEFORE THE ASSESSI NG OFFICER, THE PERUSAL OF WHICH TRANSPIRES THE ASSESSEE TO HAVE FA ILED TO COMPLY WITH VARIOUS NOTICES ISSUED UNDER SECTION 142(1)/143(2) OF THE ACT ON SEVERAL DATES. THE ASSESSEE HAD NOT COMPLIED WITH THE NOTI CES ISSUED FROM TIME TO TIME AND HAD ALSO FAILED TO FURNISH COMPLETE INF ORMATION AND THE ASSESSMENT WAS COMPLETED ON THE BASIS OF THE INFORM ATION AVAILABLE ON RECORD AND PART INFORMATION MADE AVAILABLE BY THE A SSESSEE. THE ABOVE SAID FACTS AND CIRCUMSTANCES IN ITA NOS.282,283 & 2 86/CHD/2012 ARE IDENTICAL TO THE FACTS REFERRED IN ITA NO.280/CHD/2 012 AND OUR DECISION IN ITA NO.280/CHD/2012 SHALL APPLY MUTATIS MUTANDIS TO THE FACTS IN ITA NOS.282,283 & 286/CHD/2012. 13. FROM THE PERUSAL OF THE MEMO OF APPEAL IN ITA N O.284/CHD/2012 IT TRANSPIRES THAT PENALTY U/S 271(1)(B) OF THE ACT HA S BEEN LEVIED BY THE ASSESSING OFFICER VIDE ORDER DATED 23.3.2009 RELATI NG TO ASSESSMENT YEAR 2006-07. THE ASSESSING OFFICER HAD INITIALLY LEVIE D PENALTY U/S 7 271(1)(B) OF THE ACT VIDE ORDER DATED 5.5.2008 RELA TING TO ASSESSMENT YEAR 2006-07, WHICH HAS BEEN APPEALED AGAINST BY TH E ASSESSEE VIDE ITA NO.283/CHD/2012. WE HAVE ALREADY UPHELD THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEAR 2 006-07 IN ITA NO.283/CHD/2012. HOWEVER, WE FIND NO MERIT IN THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT RELATING TO THE SAME ASSESSME NT YEAR I.E. 2006-07 AGAIN BY THE ASSESSING OFFICER IN ITA NO.284/CHD/20 12. CONSEQUENTLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENAL TY LEVIED U/S 271(1)(B) OF THE ACT VIDE ORDER DATED 23.3.2009. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.284/CHD/2012 ARE THUS ALLOWE D. 14. THE APPEALS IN ITA NOS.287 & 288/CHD/2012 RELAT E TO M/S LAMBA CELEBRATIONS RESORT , POANTA SAHIB AGAINST PENALTY LEVIED U/S 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEAR 2006-07 AND 2007-08. THE CIT (APPEALS) HAS ENUMERATED VARIOUS NOTICES ISSUED UND ER SECTION 142(1)/143(2) OF THE ACT I.E. DATED 19.3.2008, 7.4. 2008 AND 12.6.2008 AFTER WHICH THE SHOW CAUSE NOTICE U/S 271(1)(B) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 21.7.2008, FOR COMPLIANCE ON 25.7.2 008. THE ASSESSEE FAILED TO COMPLY EVEN TO THE SAID SHOW CAUSE NOTICE AND FURTHER NOTICES UNDER SECTION 142(1)/143(2) OF THE ACT WERE ISSUED ON 25.8.2008 AND THEREAFTER ON 31.10.2008. THE ASSESSEE FAILED TO A PPEAR ON MANY DATES OF HEARING AND ALSO PART INFORMATION WAS FILED BY T HE ASSESSEE. THEREAFTER ASSESSMENT WAS COMPLETED BY THE ASSESSIN G OFFICER. THE FACTS IN ITA NOS.287 & 288/CHD/2012 ARE IDENTICAL T O THE FACTS IN ITA NO.280/CHD/2012 AND CONSEQUENTLY, WE UPHOLD THE LEV Y OF PENALTY U/S 271(1)(B) OF THE ACT. OUR DECISION IN ITA NO.280/C HD/2012 SHALL APPLY MUTATIS MUTANDIS TO THE FACTS IN ITA NOS.287, & 288 /CHD/2012. 15. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.285/CHD/2012 ARE AS UNDER: 8 1. THAT THE ORDER PASSED UNDER SECTION 250(6) BY T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA IN APPEAL NO.IT/53/08-09/SML, DATED 26.12.2011 IS CONTRARY TO LAW AND FACTS OF THE CASE. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELY ERRED IN UPHOLDING PENALTY UNDER SECTION 271A OF I.T. ACT, 1961 AMOUNTING TO RS.25000/- MADE BY THE LD. ASSESSING OFFICER. 16. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAIN ST LEVY OF PENALTY 271A OF THE ACT. THE ASSESSEE WAS CARRYING ON THE BUSINESS UNDER THE NAME AND STYLE OF M/S MODERN TENT HOUSE & GLASS PAL ACE, PAONTA SAHIB. A SURVEY OPERATION UNDER SECTION 133A OF THE ACT WA S CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 9.3.2007. THE ASSESSIN G OFFICER SPECIFICALLY ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT. IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY OPERATION, THE ASSESSEE HAD ADMITTED TO HAVE NOT MAINTAINED ANY BOOKS OF ACCOUN T IN RESPECT OF BUSINESS CARRIED ON BY THE ASSESSEE. THE PENALTY P ROCEEDINGS UNDER SECTION 271A OF THE ACT WERE INITIATED AND THE ASSE SSEE WAS SHOW CAUSED AS TO WHY PENALTY BE NOT IMPOSED FOR NON-MAINTENANC E OF BOOKS OF ACCOUNT. THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER NOR FURNISHED ANY EXPLANATION AND CONSEQUENTLY PENALTY UNDER SECTION 271A OF THE ACT WAS LEVIED AT RS.25,000/-. 17. BEFORE THE CIT (APPEALS) THE CONTENTION OF THE ASSESSEE WAS THAT IT HAD MAINTAINED A DIARY IN WHICH ALL THE TRANSACTION S OF INCOMING AND OUTGOING WERE ENTERED FROM WHICH HE PREPARED ITS PR OFIT & LOSS ACCOUNT AND BALANCE SHEET AND FILED RETURN OF INCOME. THE PLEA RAISED BY THE ASSESSEE BEFORE THE CIT (APPEALS) WAS THAT IT WAS U NAWARE OF THE PROPER PROCEDURE OF MAINTAINING BOOKS OF ACCOUNT IN ANY PA RTICULAR FORMAT. FURTHER CONTENTION OF THE ASSESSEE WAS THAT THE REQ UIREMENT OF LAW WAS 9 THAT ACCOUNTS SHOULD BE CAPABLE OF ENABLING A PERSO N TO ARRIVE AT THE CORRECT PROFIT. THE FINDINGS OF CIT (APPEALS) ARE AS UNDER: 4. THE RIVAL SUBMISSIONS HAVE BEEN CAREFULLY CONSIDER ED WITH REFERENCE TO THE FACTS OF THE CASE, THE RELEVANT DOCUMENT INCLUD ING THE ASSESSMENT RECORD AND THE CASE LAWS RELIED UPON IN PARAS 3 & 4 OF THE APPELLANT'S WRITTEN SUBMISSIONS. IT IS NOTED THAT IN HIS STATE MENT RECORDED DURING THE COURSE OF SURVEY ACTION U/S 133A (1), THE APPELLANT WAS QUESTIONED ABOUT THE BOOKS OF ACCOUNT PERTAINING TO HIS BUSINESS. IN RESPONSE TO THE QUESTION NO. 3, THE APPELLANT STATED THAT HIS BOOKS OF ACCOUNT WERE AVAILABLE WITH SH. VAISH, C.A. ON BEING CONFRONTED M THIS REGARD, SH. HARISH VAISH, C.A., STATED IN THE PRESENCE OF THE A PPELLANT THAT NO BOOKS OF ACCOUNT OF ANY KIND WERE EVER MAINTAINED IN RESP ECT OF THE BUSINESS OF THE APPELLANT. THEREAFTER THE APPELLANT SUBMITTED ( REFERENCE QUESTION AND ANSWER NO.6) THAT DUE TO HIS BUSINESS PREOCCUPA TIONS, CONSTRUCTION OF BUILDING AND OTHER FAMILY PROBLEMS, HE HAD NOT BEEN ABLE TO MAINTAIN ANY PROPER BOOKS OF ACCOUNT FOR HIS BUS INESS. WHEN AGAIN INTERROGATED THROUGH QUESTION NO. 7 AS TO HOW, IN T HE ABSENCE OF ANY BOOKS OF ACCOUNT, THE BALANCE SHEET AND THE INCOME AND EXPENDITURE ACCOUNT FURNISHED ALONG WITH THE RETURN OF INCOME W ERE PREPARED, THE APPELLANT SUBMITTED THAT ALL THE VOUCHERS RELATED T O THE EXPENSES AND THE RECEIPTS RELATED TO THE INCOME HAD GOT DESTROYED DU E TO TERMITE IN HIS SHOP AND THEREFORE, ALL THE DOCUMENTS UPTO THE YEAR 2006 HAD BEEN DISPOSED OF BY HIM. ONCE AGAIN IN RESPONSE TO QUESTIONS NO. 13, 16 & 18 , IT WAS REITERATED BY THE APPELLANT THAT NO PROPER RECORDS WERE MAINTAINED BY HIM AND, THEREFORE, HE WAS NOT IN A POSITION TO STATE THE STOCK POSITION A ND DRAW THE TRADING ACCOUNT PERTAINING TO A!! HIS BUSINESS CONCERNS. 4.1 IT IS FURTHER NOTED THAT DURING THE COURSE OF A SSESSMENT PROCEEDINGS THE APPELLANT WAS REQUIRED VIDE LETTER NO. 563 DATE D 15/9/2008 TO PRODUCE THE BOOKS OF ACCOUNT. HOWEVER, NO SUCH BOOKS OF ACC OUNTS WERE PRODUCED BEFORE THE ID. A.O. IT HAS BEEN DULY RECORDED BY TH E A.O. IN THE ASSESSMENT ORDER PASSED U/S 143(3) THAT NO DOCUMENT WAS PRODUC ED IN SUPPORT OF THE CLAIM OF INCOME AND EXPENDITURE MADE BY THE ASSESSE E. 4.2 FROM THE FACTS GIVEN ABOVE IT IS CLEAR THAT TH E APPELLANT HIMSELF HAD ADMITTED THE FACT OF NON-MAINTENANCE OF BOOKS OF ACCOUNT REPEATEDLY IN HIS STATEMENT RECORDED DURING THE COU RSE OF SURVEY ACTION U/S 133A(1). EVEN HIS COUNSEL, (CA) WHO HAD BEEN ATTEN DING TO HIS INCOME-TAX MATTERS FOR MANY YEARS, HAD STATED THAT NO BOOKS AN D RECEIPTS HAD BEEN DESTROYED BY THE TERMITE. EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS NO BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE LD. A, O. THUS IT IS A CLEAR CASE OF NON-MAINTENANCE OF BOOKS OF ACCOUNT OF ANY KIND WHICH COULD ENABLE THE A.O. TO COMPUTE THE TOTAL INCOME OF THE APPELLA NT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. ACCORDINGLY THERE IS A FAILU RE ON THE PART OF THE APPELLANT WITHIN THE MEANING OF SECTION 44AA OF THE ACT. THE APPELLANT HAS NOT BEEN ABLE TO GIVE ANY REASONABLE EXPLANATION FO R SAID FAILURE. ON THE CONTRARY HE HAS, BEEN CONTINUOUSLY TRYING TO HOODWI NK THE INCOME-TAX AUTHORITIES BY CONCOCTING ALL SORTS OF STORIES. THE RE IS THUS FULL JUSTIFICATION FOR LEVYING THE PENALTY U/S 271 A OF THE ACT. THE CASE LAWS RELIED UPON BY THE APPELLANT DO NOT COME TO HIS HELP ON THE GIVEN FACT S AND CIRCUMSTANCES OF HIS CASE. ACCORDINGLY THE PENALTY LEVIED U/S 271 A IS H EREBY UPHELD. THE APPELLANT FAILS ON THIS GROUND OF APPEAL. 10 18. THE LEARNED A.R. FOR THE ASSESSEE HAS FAILED TO CONTROVERT THE FINDINGS OF CIT (APPEALS) IN WHICH IT HAS BEEN STAT ED THAT NO STOCK POSITION AND NO BOOKS OF ACCOUNT WERE PRODUCED BEFO RE THE SURVEY TEAM OR BEFORE THE ASSESSING OFFICER AND EVEN THE SO-CAL LED DIARY CONTAINING THE RECORD OF INCOMING AND OUTGOING WERE NOT PRODUC ED. FURTHER VOUCHERS AND RECEIPTS WERE DESTROYED BY TERMITES AN D THE SAME WERE NOT AVAILABLE WITH THE ASSESSEE. IN THE ABSENCE OF ANY RECORD EVEN THE SO CALLED DIARY, BEING NOT PRODUCED BY THE ASSESSEE, W E ARE IN AGREEMENT WITH THE ORDERS OF THE AUTHORITIES BELOW IN HOLDING THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE WITHIN THE MEANING OF P ROVISIONS OF SECTION 44AA OF THE ACT. IN THE ABSENCE OF ANY REASONABLE EXPLANATION BEING FURNISHED BY THE ASSESSEE, WE UPHOLD THE LEVY OF PE NALTY UNDER SECTION 271A OF THE ACT AT RS.25,000/-. THUS GROUNDS OF AP PEAL RAISED BY THE ASSESSEE ARE DISMISSED. 19. IN THE RESULT, OUT OF NINE APPEALS RELATING TO DIFFERENT ASSESSEES BEING ITA NOS.280 & 288/CHD/2012, ALL THE APPEALS O F THE ASSESSEE ARE DISMISSED EXCEPT ITA NO.285/CHD/2012, WHICH IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH DAY OF DECEMBER, 2012. SD/- SD/- (T.R.SOOD) (SUSHMA CHOW LA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6 TH DECEMBER, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 11