Shri Virendra Singh Thakur, Indore V. THE ACIT 3(1), Indore

ITA 29/IND/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6470 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-04-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 24-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: C P RAWKA; VEENASRAWKA CAS
• Keywords: Unexplained investment; Business income; Additional evidence; Cost of acquisition; Wrong claim
• Section: 271(1)(c); 143(3); 54B; 142(1); 69; 145

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.28/IND/2017 ASSESSMENT YEAR: 2012-13 SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. / VS. ACIT, 3(1) INDORE ( APPELLANT ) (RE VENUE) PAN:AGOPS3983Q ITA NO.52/IND/2017 ASSESSMENT YEAR: 2012-13 DCIT - 3(1) INDORE / VS. SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. ( REVENUE ) ( RESPONDENT) PAN:AGOPS3983Q ITA NO. 29/IND/2017 ASSESSMENT YEAR: 2012-13 SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. / VS. ACIT, 3(1) INDORE ( APPELLANT ) (RE VENUE) PAN:AGOPS3983Q VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 2 ITA NO.53/IND/2017 ASSESSMENT YEAR: 2012-13 DCIT - 3(1) INDORE / VS. SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. ( REVENUE ) ( RESPONDENT) PAN:AGOPS3983Q ITA NO.262/IND/2017 ASSESSMENT YEAR: 2013-14 SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. / VS. ACIT, 3(1) INDORE ( APPELLANT ) (RE VENUE) PAN: AGOPS3983Q ITA NO. 253/IND/2017 ASSESSMENT YEAR: 2013-14 DCIT - 3(1) INDORE / VS. SHRI VIRENDRA SINGH THAKUR 125/126, PATNIPURA, INDORE M.P. ( REVENUE ) ( RESPONDENT ) PAN: AGOPS3983Q APPELLANT BY SHRI C.P. RAWKA & VEENASRAWKA, CAS REVENUE BY SHRI K.G. GOYAL, SR. DR DATE OF HEARING: 16.04.2019 DATE OF PRONOUNCEMENT: 08.05.2019 VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 3 / O R D E R PER MANISH BORAD, A.M: THE ABOVE CAPTIONED CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS) -I INDORE, (IN SHORT CIT(A)), DATED 28.10.2016, 23.12 .2016& 28.10.2016 WHICH IS ARISING OUT OF THE ORDER U/S 143(3)&271(1)(C)OF THE INCOME TAX ACT 1961(HEREINAFT ER CALLED AS THE ACT) FRAMED ON 23.03.2015, 16.03.2015 28.09.2015 BY ACIT,3(1) INDORE. 2. AS THE ISSUES RAISED IN THESE BUNCH OF APPEALS REL ATES TO SAME ASSESSEE AND ARE COMMON IN NATURE, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF LIQUOR CONTRAC TOR. REGULAR RETURN OF INCOME WAS FILED FOR A.YS. 2012-13 & 2013-14 WHICH WERE SELECTED FOR SCRUTINY ASSESSMENT THROUGH CASS FOLLOWED BY SERVING OF NOTICES U/S U/S 143(2) & 142(1) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDING LEARNED ASSESSING OFFICER (IN SHORT LD. A O) OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED PROPER QUANTITATIVE AS WELL AS SALES DETAILS. HE ACCORDINGLY REJEC TED THE BOOKS OF ACCOUNTS AND AFTER GIVING REFERENCE TO O THER VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 4 BUSINESSMEN CARRYING OUT SAME BUSINESS ACTIVITY ESTIM ATED NET PROFIT @ 3.5% OF THE TOTAL TURNOVER AND MADE THE ADDITION FOR DIFFERENCE BETWEEN THE ESTIMATED NET PRO FIT @ 3.5% AND NET PROFIT DECLARED BY THE ASSESSEE. OTHER ADDITIONS WERE ALSO MADE. PENALTY ALSO LEVIED U/S 271(1 )(C) OF THE FOR A.Y. 2012-13 WHICH IS UNDER APPEAL BEFORE US. 4. WE FIRST TAKE UP CROSS APPEAL FOR A.Y. 2012-13 WHE REIN FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ASSESSEE AND REVENUE: ITANO.28/IND/2017 BY ASSESSEE 1 .THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ACTION OF ASSESSING OFFICER IN REJECTING THE BOOKS OF ACCOUNT S WITHOUT POINTING OUT ANY MATERIAL DEFECT IN THE CORRECTNESS AND COMPLETENESS OF BOOKS OF ACCOUNTS. 2. THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ADDI TION OF RS.41,49,521/- OUT OF THE TOTAL ADDITION MADE BY TH E LD. AO OF RS.1,02,07,172/- FOR LOW PROFIT WITHOUT APPRECIATIN G FULL FACTS. 3. THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ACTI ON OF ASSESSING OFFICER IN REJECTING THE CLAIM OF ASSESSE E UNDER SECTION 54B WITHOUT CONSIDERING THE LEGAL POSITION. ITANO.52/IND/2017 BY REVENUE I. WHETHER ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN RESTRICTING THE NET PROFIT RATE AT 2.16% AS AGAINST NET PROFIT RATE OF 3.5% ADOPTED BY THE AO. II. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD. CIT(A) HAS ERRED IN APPLYING RATIO ON THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF TRILOK CHAND GI RDHARIALA& PARTY VS. ITO-WARD-1, SAWAIMADHOPUR IN ITANO.577/20 09 VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 5 DATED 21.01.2014 IN APPROPRIATE MANNER AS IN THAT C ASE HON'BLE HIGH COURT HAS HELD TO ADOPT AVERAGE NET PR OFIT RATE WHICH AHS BEEN UPHELD BY THE CIT(A) AND I.T.A.T., W HILE IN PRESENT CASE THE 3(THREE) RATE WERE APPLIED FOR NET RATE DECLARED BY THE ASSESSEE HIMSELF WHICH HAS NOT BEEN UPHELD B Y EITHER CIT(A) OR I.T.A.T. III.WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE STATEMENT O F THE ASSESSEE RECORDED ON 19.03.2015 DURING THE COURSE O F ASSESSMENT PROCEEDINGS IN WHICH IN THE REPLY OF QUE STION NO.6,7, & 8 HE HAS ACCEPTED NET PROFIT RATE OF 3.5% IN VIEW OF DEFECTS IN HIS BOOKS OF ACCOUNTS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE FIRST ISSUE IN CHALLENG E BEFORE US BY BOTH THE PARTIES RELATES TO ESTIMATION OF NET PR OFIT WHEREIN LD. AO ESTIMATED NET PROFIT @ 3.5% AGAINST TH E NET PROFIT OF 1.06% DECLARED BY THE ASSESSEE. LD. CIT(A) HAS RESTRICTED THE ADDITION APPLYING NET PROFIT RATE OF 2. 16% BEING THE AVERAGE OF NET PROFIT RATE OF 5 YEARS. 6. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE SUB MISSION MADE BEFORE THE LOWER AUTHORITIES SUBMITTED THAT THE B OOKS OF ACCOUNTS WERE REGULARLY MADE AND ARE BEING AUDITED. SALE HAS INCREASED DUE TO WHICH NET PROFIT RATE DECREAS ED. 7. WE FIND THAT DURING THE COURSE OF APPELLATE PRECEDI NG THE DETAILS OF TURNOVER OF PROFIT OF THE 3 YEARS ARE SHOW N IN THE FOLLOWING MANNER: VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 6 SR. NO. PARTICULARS A.Y.2011-12 A.Y. 2012-13 A.Y. 2013-14 1. SALES: FOREIGN LIQUOR COUNTRY LIQUOR 37834548 148333082 94456239 357607272 71435987 295898023 TOTAL 186167630 452063511 367334010 2 NET PROFIT LESS: COMMISSION INCOME 5159409 (1039861) 5615050 (822969) 5646475 (1000366) NET PROFIT BEFORE COMMISSION INCOME 4119548 4792081 4646109 3 NET PROFIT RATIO(WITHOUT COMMISSION) 2.21 1.06 1.26 4 NET PROFIT RATIO (WITH COMMISSION) 2.77 1.24 1.54 5 NUMBER OF SHOPS: FOREIGN LIQUOR COUNTRY LIQUOR IN BURHANPUR IN JABALPUR IN INDORE 1 0 0 8 4 1 4 8 4 1 4 6 8 13 11 TOTAL SHOPS 9 17 15 8. FROM THE PERUSAL OF THE ABOVE TABLE IT IS NOTEWORTH Y THAT NET PROFIT RATE DECLINED DRASTICALLY IN A.Y. 2012-13. DURING A.Y. 2011-12 NET PROFIT INCLUDING COMMISSION OF RS. 51,59,409/- HAS BEEN SHOWN ON THE GROSS TURNOVER OF RS.18.62 CRORES BUT SURPRISINGLY DURING THE A.Y. 20 12-13 TURNOVER HAS INCREASED TORS. 45.20 CRORES AND PROFITS TO RS.56,15,050/-. IT SHOWS THAT NET PROFIT OF RS. 4,55 ,641/- HAS ONLY INCREASED ON THE INCREASED SALES OF RS.26.59 CORERS. THE NUMBER OF SHOPS HAS ALSO INCREASED 17 FROM 9. IN THE TAX AUDITED REPORT QUANTITATIVE DETAILS ARE NOT SHOWN. NO REGULAR SALE BILLS ARE ISSUED. NO PLAUSIBLE VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 7 REASONS HAVE BEEN GIVEN BY THE ASSESSEE FOR SHARP DECR EASE IN THE NET PROFIT RATE. 9. IN THESE GIVEN FACTS AND IN THE LIGHT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. GEN DALAL HAZARILAL AND CO. 263 ITR 679 LAYING DOWN A RATIO THAT THE DOCTRINE OF RES JUDICATA IS NOT APPLICABLE BUT CONSISTENCY HAS TO BE MAINTAINED UNLESS THERE IS A MANIFEST DISTINGUISHABLE FEATURE AND ON APPLYING THIS PRINCIPLE ON THE INSTANT CASE, WE FIND THAT THOUGH FACTS OF EVERY YE AR ARE SEPARATE AND ONE JUST CANNOT APPLY RESULTS OF PRECEDING YEAR ON THE CURRENT YEAR BUT LOOKING TO THE FACT THAT T YPE OF BUSINESS IS THE SAME AND THERE IS NO FUTURE THRUST TO THE ASSESSEES BUSINESS AS THE SALES HAVE INCREASED DRASTICALL Y AND NO EVIDENCE HAVE BEEN PLACED ON RECORD TO PROVE AS TO WHY THERE IS A SHARP DECREASE IN THE NET PROFIT EVEN W HEN OTHER ASSESSEES RUNNING SIMILAR TYPE OF BUSINESS ARE SHOWNING BETTER NET PROFIT RATE. 10. WE FIND THAT THE LD. CIT(A) HAS REFERRED AND RELIE D ON JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE O F TRILOK CHAND GIRDHARILAL & PARTY VS. ITO IN ITANO.577/2009 DATED 21.01.2014 CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF REJECTING THE TRADING RESULT S AND INVOKING THE PROVISIONS OF SECTION 145(3) OF THE AC T, AS NO VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 8 PROPER SALE VOUCHERS WERE MAINTAINED AND FAIRLY ESTIMAT ED THE NET PROFIT. HON'BLE COURT CONFIRMED THE VIEW TAK EN BY THE LD. AO ADOPTING AVERAGE GROSS PROFIT RATE WHICH W AS UPHELD BY LD. CIT(A) AND ITAT. WE THEREFORE FIND MERIT IN THE FINDING OF LD. CIT(A ) CALCULATING NET PROFIT RATE 2.16% BEING AVERAGE OF NET P ROFIT RATE DECLARED BY ASSESSEE FOR 5 YEARS AT 2.77%, 1.33%, 1.54%, 1.77% AND 3.5% THEREBY DELETING THE ADDITION O F RS.60,57,651/-. WE UPHOLD THE SAME AND DISMISS THE ASSESSES GROUND NOS.1 & 2 AND ALSO DISMISS REVENUES GROUND NOS. NO.1,2 & 3 FOR A.Y. 2012-13. 11. NOW WE TAKE UP ASSESSEES GROUND NO.3 CHALLENGING THE REJECTION OF CLAIM U/S 54B OF THE ACT WITHOUT CONSI DERING LEGAL POSITION. 12. BRIEF FACTS RELATING TO THIS GROUND ARE THAT THE AS SESSEE SOLD LAND AND RECEIVED SALE CONSIDERATION OF RS.14,32,0 00/- THEREON. COST OF ACQUISITION OF THE LAND AND TRANSFER EXPENSES WERE SHOWN AT RS.8,14,555/-. THE SHORT TERM CAPITAL GAIN IS ARISING AT RS.6,17,445/-. THE ASSESSEE MAD E A CLAIM OF EXEMPTION U/S 54B OF THE ACT AT RS.6,17,445 /- BUT NO EVIDENCE PLACED IN SUPPORT THEREOF BEFORE BOT H THE LOWER AUTHORITIES. EVEN DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL ASSESSEE HAS NOT MADE ANY SUBMISSIONS WIT H VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 9 REGARD TO CLAIM OF DEDUCTION U/S 54B OF THE ACT AT RS.6,17,445/-. 13. IN THESE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THERE SEEMS NO REASON TO INTERFERE IN THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION. GROUND NO.3 RAISED BY THE ASSESSEE DESERVES TO BE DISMISSED. 14. AS A RESULT, CROSS APPEAL FOR A.Y. 2012-13 STANDS DISMISSED. NOW WE TAKE CROSS APPEAL FOR A.Y. 2013-14 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. THE FOLLOWING GROUNDS OF AP PEAL HAVE BEEN RAISED. ITANO.253/IND/2017ASSESSEES APPEAL FOR A.Y. 2013-14 I. WHETHER ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN RESTRICTING THE NET PROFIT RATE AT 2.16% AS AGAINST NET PROFIT RATE OF 3.5% ADOPTED BY THE AO. II. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD. CIT(A) HAS ERRED IN APPLYING RATIO ON THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF TRILOK CHAND GI RDHARIALA& PARTY VS. ITO-WARD-1, SAWAIMADHOPUR IN ITANO.577/20 09 DATED 21.01.2014 IN APPROPRIATE MANNER AS IN THAT C ASE HON'BLE HIGH COURT HAS HELD TO ADOPT AVERAGE NET PR OFIT RATE WHICH AHS BEEN UPHELD BY THE CIT(A) AND I.T.A.T., W HILE IN PRESENT CASE THE 3(THREE) RATE WERE APPLIED FOR NET RATE DECLARED VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 10 BY THE ASSESSEE HIMSELF WHICH HAS NOT BEEN UPHELD B Y EITHER CIT(A) OR I.T.A.T. III. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE STATEME NT OF THE ASSESSEE RECORDED ON 19.03.2015 DURING THE COURSE O F ASSESSMENT PROCEEDINGS IN WHICH IN THE REPLY OF QUE STION NO.6,7, & 8 HE HAS ACCEPTED NET PROFIT RATE OF 3.5% IN VIEW OF DEFECTS IN HIS BOOKS OF ACCOUNTS. IV. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE U/S 69 OF THE I.T. ACT OF RS.60,19,920/- ON THE BASIS OF ADDITION AL EVIDENCE FILED BY THE ASSESSEE AND ALSO IN NOT FOLLOWING THE PROVISIONS OF RULE 46A OF THE I.T. RULES 1962. ITANO.262/IND/2017 REVENUES APPEAL FOR A.Y. 2013-14 1. THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ACTI ON OF ASSESSING OFFICER IN REJECTING THE BOOKS OF ACCOUNT S WITHOUT POINTING OUT ANY MATERIAL DEFECT IN THE CORRECTNESS AND COMPLETENESS OF BOOKS OF ACCOUNTS. THE ACTION OF AO WHICH IS CONFIRMED BY THE CIT(A) I S TOTALLY WRONG AND ILLEGAL ON THE FACTS OF THE CASE IN REJEC TION OF BOOKS OF ACCOUNTS. 2. THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ADDI TION OF RS.23,19,364/- OUT OF THE TOTAL ADDITION MADE BY TH E LD. AO OF RS.72,10,215/- FOR LOW PROFIT WITHOUT APPRECIATING FULL FACTS. 3. THAT THE LD. CIT(A) ERRED AND CONFIRMED THE ACTI ON OF ASSESSING OFFICER IN MAKING ADDITION ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN U/S 68 AT RS.47,77,000/- WITHOUT APP RECIATING FULL FACTS AND REASONING AND WITHOUT AFFORDING PROP ER OPPORTUNITY. VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 11 16. FIRST COMMON ISSUE RELATES TO ESTIMATION OF PROFI TS. THE ASSESSEE HAD DISCLOSED NET PROFIT RATE @ 1.54% OF LD. AO ESTIMATED AT 3.5%. LD. CIT(A) RESTRICTED THE ADDITION TO 2.16%. 17. THESE SET OF FACTS ALREADY STANDS ADJUDICATED BY US IN THE ASESSEES CASE FOR A.Y.2012-13 IN THE PRECEDING PARAGRAPHS. 18. WE, THEREFORE, CONSISTENTLY TAKING SAME VIEW CONF IRM THE FINDING OF LD. CIT(A) TAKING AVERAGE NET PROFIT RAT E BEING AVERAGE NET PROFIT RATE OF 5 YEARS AT 2.16%. WE ACCORDING LY FIND NO REASON TO INTERFERE IN THE FINDING OF THE LD . CIT(A) AND HOLD THAT THE NET PROFIT IN THE CASE OF ASSESSEE TO BE COMPUTED 2.16% OF THE TOTAL TURNOVER. HOWEVER, THIS FINDING AS WELL AS FINDING FOR A.Y. 2012-13 SHOULD NO T BE TAKEN AS BASIS IN THE SUBSEQUENT YEARS AND IN CASE SIMILAR ISSUE COMES IN FUTURE IT SHOULD BE DECIDED ON THE B ASIS OF FACTS AND FIGURE FOR THE YEAR UNDER APPEAL. IN THE RESUL T THIS COMMON ISSUE OF ESTIMATION OF NET PROFIT RAISED BY BO TH ASSESSEE AND REVENUE STANDS DISMISSED. 19. NOW WE TAKE GROUND NO.3 OF ASSESSEES APPEAL FOR A. Y. 2013-14 FOR ADDITION OF UNEXPLAINED UNSECURED LOAN U/ S 68 OF THE ACT AT RS.47,77,000/-. VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 12 20. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. DURING THE COURSE OF ASSESS MENT PROCEEDING LD. AO OBSERVED THAT A SUM OF RS.47,77,000 /- HAS BEEN TAKEN AS UNSECURED LOAN FROM SIX DIFFERENT PARTIES. ASSESSEE WAS UNABLE TO FURNISH ANY EVIDENCE T O ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUINEN ESS IN RESPECT OF LOAN CREDITORS. ADDITION WAS MADE U/S 68 O F THE ACT BY THE LD. AO. THEREAFTER BEFORE THE LD. CIT(A) ASSESSEE COULD FILE CONFIRMATION OF ACCOUNT BUT NO OTHER SATISF ACTORY EVIDENCE WAS FILED DUE TO WHICH ADDITION OF RS.47,77, 000/- MADE U/S 68 OF THE ACT WAS CONFIRMED BY LD. CIT(A) OBSERVING AS FOLLOWS: GROUND NO.3:THIS GROUND OF THE APPELLANT IS DIRECT LY AGAINST THE ADDITION U/S 68 OF THE ACT OF RS.47,77,000/-. T HE DETAILED FACTS OF THE CASE AS PER THE ASSESSMENT ORDER WERE REPRODUCED AT PARA NO.2 ABOVE AND THE DETAILED SUBMISSION OF T HE APPELLANT ARE REPRODUCED AT PARA NO.3 ABOVE. 7.1 THE AMOUNT OF RS.47,77,000/- WAS RECEIVED BY TH E APPELLANT FROM SIX PERSONS. DURING THE COURSE OF AS SESSMENT PROCEEDINGS THE APPELLANT DID NOT DISCHARGE THE ONU S CAST ON IT U/S 68 OF THEACT EVEN THOUGH SEVERAL OPPORTUNITIES WERE PROVIDED TO THE APPELLANT AS DETAILED IN PARA4.1 OF THE ASSESSMENT ORDER. DURING THE APPELLATE PROCEEDINGS THE APPELLANT FILED CONFIRMATIONS IN RESPECT OF 4 PERSO NS AS ADDITIONAL EVIDENCE UNDER RULE 46A AND REQUESTED FO R ADMISSION OF THE SAME ON THE GROUND THAT THESE COUL D NOT BE PRODUCED BEFORE THE AO AS THE ACCOUNTANT PASSED AWA Y AND THE ACCOUNTS WERE ON A COMPUTER WITH HIM. THE REASO NS GIVEN BY THE APPELLANT ARE FOUND TO BE WITHOUT SOUND BASI S AND IT WAS POINTED OUT TO THE APPELLANT VIDE ORDER SHEET DATED 19.12.2016 VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 13 THAT THE ACCOUNTANT HAD PASSED AWAY IN THE PRECEDIN G FINANCIAL YEAR. AS APPELLANT HAS FAILED TO PLACE ON RECORD RE ASONABLE CAUSE FOR NON FURNISHING OF THE EVIDENCES AT THE ST AGE OF ASSESSMENT SUCH EVIDENCE CANNOT BE ADMITTED AS IT D OES NOT SATISFY THE REQUIREMENT OF RULE 46A. THE APPELLANT HAS ALSO NOT MADE ANY FURTHER SUBMISSIONS TO EXPLAIN THE CIRCUMS TANCES. IN VIEW OF THE ABOVE AS THE APPELLANT HAS FAILED TO DI SCHARGE THE ONUS U/S 68 OF THE ACT AND KEEPING IN VIEW THE LEGA L POSITION AS BROUGHT OUT BY THE AO IN THE ASSESSMENT ORDER THE A DDITION IS CONFIRMED IN APPEAL. THIS GROUND OF THE APPELLANT I S THEREFORE DISMISSED. 21. DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL NO OTHER EVIDENCES HAVE BEEN PUT FORTH BY THE LD. COUNS EL FOR THE ASSESSEE IN ORDER TO PROVE IDENTITY, CREDITWORTH INESS AND GENUINENESS OF THE ALLEGED UNSECURED LOAN OF RS.47,77,000/-. WE, THEREFORE, FIND NO REASON TO INT ERFERE IN THE FINDING OF THE LD. CIT(A) CONFIRMING THE ADDI TION OF RS.47,77,000/-. ACCORDINGLY GROUND NO.4 OF THE ASSES SEE,S APPEAL IS DISMISSED. 22. AS A RESULT, ASSESSEES APPEAL FOR A.Y. 2013-14 IS DISMISSED. 23. NOW WE TAKE GROUND NO.4 RAISED BY THE REVENUE RELATING TO DELETION OF ADDITION OF RS. 60,19,920/- MADE BY THE AO U/S 69 OF THE ACT. 24. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. LD. AO OBSERVED THAT THE ASS ESSEE VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 14 HAS PURCHASED A FLAT AT SHEHNAI RESIDENCY OF RS.60,19,920/- AND CALLED FOR THE COPY OF PURCHASES DOCUMENTS BUT THE QUERY REMAIN UNEXPLAINED. THEREAFTER BEFORE THE LD. CIT(A) ASSESSEE FILED THE DETAILS ALONG WITH PROOF OF TAKING HOUSE LOAN OF RS.42,50,000/- FOR THE PURCHASE OF FLAT. LD. DEPARTMENTAL REPRESENTATIVE (DR) FAILED TO REBUT THE FINDING OF THE LD. CIT(A). 25. WE THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, ARE OF THE VIEW THAT THE ALLEGED PURCHASE OF F LAT OF RS.60,19,200/- CANNOT BE CATEGORIZED UNDER THE UNEXPLAINED INVESTMENTS U/S 69 OF THE ACT AS THE SAME HAVE BEEN RECORDED IN THE REGULAR BOOKS OF ACCOUNTS AL ONG WITH HOUSING LOAN TAKEN FOR FINANCING THE PURCHASE OF T HE FLAT. NO INTERFERENCE IS THEREFORE, CALLED FOR IN THE FINDING OF THE LD. CIT(A) DELETING THE ADDITION OF RS.60,19,920 /-. ACCORDINGLY, GROUND NO.4 OF REVENUES APPEAL STANDS DISMISSED. 26. NOW WE TAKE UP ASSESSEES APPEAL IN ITANO.29/IND/2017 & REVENUE APPEAL IN ITANO.53/IND/2017 FOR A.Y. 2012-13. THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ASSESSEE AND REVENUE: VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 15 ITANO.29/IND/2017 BY ASSESSEE THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE PENALTY LEVIED UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT,1961 ON RS.6,17,445/-. THE ACTION OF LD. CIT(A) IS TOTALLY WRONG, ARBITRARY AND ILLEGAL AND ON THE FACTS OF THE CASE. ITANO.53/IND/2017 BY REVENUE WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY ON THE ADD ITION MADE BY THE ASSESSING OFFICER TO HIS BUSINESS INCOME, WHICH WAS BASED ON ASSESSEES OWN STATEMENT AND FACTS MENTIONED IN THE ASSESSMENT ORDER. 27. BOTH ASSESSEE AND REVENUE ARE IN APPEAL AGAINST THE LEVYING OF PENALTY U/S 271(1)(C) OF THE ACT. 28. BRIEF FACTS RELATING TO THIS CROSS APPEALS ARE THAT VARIOUS ADDITIONS WERE MADE BY THE LD. AO IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT ON 23.03.2015. PENALTY PROCEEDINGS WERE INITIATED. DURIN G THE COURSE OF PENALTY PROCEEDING NECESSARY SUBMISSIONS WE RE FILED. LD. AO LEVIED PENALTY OF RS.33,50,000/- ON TH E ADDITIONS FOR ESTIMATED PROFITS AT RS.1,02,07,172/- AND INCORRECT CLAIM OF EXEMPTION U/S 54B AT RS.6,17,445/- . VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 16 29. THE ASSESSEE TOOK UP THE MATTER BEFORE THE LD. CI T(A) AND PARTLY SUCCEEDED AS THE PENALTY LEVIED ON THE ESTIM ATED PROFITS WAS DELETED AND PENALTY LEVIED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME MAKING WRONG CLAIM U/S 54B OF THE ACT WAS CONFIRMED. 30. NOW BOTH THE ASSESSEE AND REVENUE ARE IN APPEAL AGAINST THE ORDER OF LD. CIT(A). 31. LD. COUNSEL FOR THE ASSESSEE RELYING ON THE SUBM ISSIONS MADE BEFORE THE LOWER AUTHORITIES CONTENDED THAT LD. A O ERRED IN LEVYING THE PENALTY ON ESTIMATED PROFITS WIT HOUT BRINGING ANY ADVERSE MATERIAL ON RECORD. AS REGARDS TH E PENALTY LEVIED ADDITION OF RS.6,17,445/- ON ACCOUNT O F REJECTION OF CLAIM U/S 54B OF THE ACT, LD. COUNSEL FOR THE ASSESSEE FAILED TO DEMONSTRATE ANY BONAFIDE REASON FOR MAKING THE INACCURATE CLAIM. 32. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING TH E ORDER OF LD. ASSESSING OFFICER. 33. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. BOTH ASSESSEE AND REVENUE ARE IN VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 17 APPEAL RAISING IN THE GROUND RELATING TO LEVYING OF PEN ALTY U/S 271(1)(C) OF THE ACT AT RS.33,50,000/-. PENALTY U /S 271(1)(C) OF THE ACT IS LEVIABLE IF THE ASSESSEE CONC EAL THE PARTICULARS OF INCOME OR FURNISHES INACCURATE PARTICULARS OF INCOME. 34. IN THE INSTANT APPEAL PART OF THE PENALTY IS LEVIE D ON THE ESTIMATED PROFITS OF RS.1,08,24,617/- MADE BY THE AO BY APPLYING NET PROFIT RATE OF 3.5% ON THE SALES DISC LOSED BY THE ASSESSEE. FROM GOING THROUGH THE ASSESSMENT ORDER IT IS DISCERNABLE THAT LD. AO REJECTED THE BOOKS U/S 145 (3) OF THE ACT FOR NOT MAINTAINING QUANTITATIVE RECORDS AND SALES VOUCHERS. NO DOUBT HAS BEEN RAISED FOR THE PURCHASE MAD E BY THE ASSESSEE FROM THE EXCISE DEPARTMENT. IT IS WEL L ESTABLISHED FACT THAT THE ASSESSEE ENGAGED IN THE LIQUOR CONTRACTOR BUSINESS HAVE TO PREPARE REGULAR QUANTITATIVE DETAILS TO BE FURNISHED TO THE EXCISE AUTHORITY. 35. THE REGULAR STOCK IS TAKEN. NO ANOMALY HAS BEEN FOUN D IN THE AUDITED BOOKS OF ACCOUNT. ADDITION HAS BEEN MAD E ONLY BY ESTIMATING PROFITS. NO ADVERSE FINDING HAS BE EN GIVEN FOR ANY INSTANCES WHICH COULD PROVE THAT ASSESSEE VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 18 HAS CONCEALED INCOME OR FURNISH INACCURATE PARTICULARS OF INCOME. 36. IN THESE GIVEN FACTS AND CIRCUMSTANCES LEVYING PEN ALTY ON THE ESTIMATED PROFITS WAS NOT JUSTIFIED AND IS UNC ALLED FOR. THEREFORE, LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE ADDITION FOR ESTIMATED PROFITS AND NO INTERFERENCE IS THEREFORE CALLED FOR. ACCORDINGLY, GROUND NO.1 OF THE REVENUES APPEAL STAND S DISMISSED. 37. AS REGARDS THE PENALTY LEVIED ON INCORRECT CLAIM U /S 54B OF THE ACT AT RS.6,17,445/- IT REMAINS A UNDISPUT ED FACT THAT IN THE INCOME TAX RETURN FILED BY THE ASSESS EE INACCURATE PARTICULARS OF INCOME WERE FURNISHED IN ORDE R TO CLAIM DEDUCTION/EXEMPTION 54B OF THE ACT. TILL THE H EARING BEFORE THE TRIBUNAL LD. COUNSEL FOR THE ASSESSEE HAS B EEN UNABLE TO PROVE WITH ADEQUATE MATERIAL THAT CLAIM MADE WAS A BONAFIDE CLAIM. 38. WE, THEREFORE, IN THE TOTALITY OF FACTS HOLD THAT AS THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF INCOME, MAKING AN INCORRECT CLAIM U/S 54B OF THE ACT, LD. AO W AS VIRENDRA SINGH THAKUR ITANOS.28 & OTHERS/IND/2017 19 JUSTIFIED IN LEVYING PENALTY U/S 271(1)(C) OF THE AC T AND THIS ACTION WAS RIGHTLY CONFIRMED BY THE LD. CIT(A). GROUN D NO.1 OF ASSESSEES APPEAL STANDS DISMISSED. 39. IN THE RESULT, ALL THESE CROSS APPEALS I.E. ITANO.29/IND/2017 & ITANO.53/IND/2017, ITANO.28/IND / 2017 & ITANO.52/IND/2017 AND ITANO.262/IND/2017 & ITANO.253/IND/2017 STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 08.05.20 19. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 08/05/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR