Mr. Mahendra Dass, New Delhi V. ITO, New Delhi

ITA 2913/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0188 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Keywords: Salary income; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.2913/DEL./2013 (ASSESSMENT YEAR : 2006-07) SHRI MAHENDRA DASS, VS. ITO, WARD 26 (3), GOLOK DHAM, HAF (B), PART 1, NEW DELHI. SECTOR 10, DWARKA, NEW DELHI 110 075. (PAN : ADZPD5989K) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI SANJAY KUMAR, CA & AKASH GARG, ADVOCATE REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 07.07.2015 DATE OF PRONOUNCEMENT : 29.07.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DI RECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-X VII, NEW DELHI DATED 28.02.2013. THE RELEVANT ASSESSMENT YEAR I S 2006-07. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AGAINS T THE CONFIRMATION OF THE IMPOSITION OF PENALTY OF RS.1,94,972/- (BEING 1 00% OF TAX DUE ON SHORT-TERM CAPITAL GAIN OF RS.6,89,392/-) UNDER SEC TION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT). ITA NOS.2913/DEL./2013 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME FOR THE A SSESSMENT YEAR UNDER CONSIDERATION ON 12.01.2007 DECLARING TOTAL INCOME AT RS.1,21,662/- WHICH WAS PROCESSED U/S 143(1) OF THE ACT AT THE SAME INC OME. THE AO RECEIVED AN AIR INFORMATION THAT ASSESSEE HAD MADE INVESTMEN T OF RS.5 LAKHS IN HSBC MUTUAL FUND ON 23.02.2006. THEREAFTER, THE CAS E WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE U/S 143(2) DATED 1 8.10.2007 WAS ISSUED TO THE ASSESSEE. THE AO OBSERVED THAT DURING THE YEAR , ASSESSEE DERIVED INCOME FROM SALARY OF RS.23,000/- AND INCOME FROM OTHER SOURCES OF RS.98,262/-. THE AO ASKED THE ASSESSEE TO SUBMIT T HE SOURCE OF INVESTMENT FOR INVESTING RS.5 LAKHS IN HSBC MUTUAL FUND AND ASKED THE ASSESSEE TO PRODUCE DOCUMENTARY EVIDENCE TO SUPPORT HIS CLAIM, IF ANY. IN RESPONSE TO THAT, ASSESSEE SUBMITTED COPY OF STATEM ENT OF HIS ACCOUNT IN AXIS BANK LIMITED. THE AO RAISED QUERIES ON CERTAIN CREDIT ENTRIES APPEARING IN THE BANK STATEMENT OF THE ASSESSEE. T HE ASSESSEE SUBSEQUENTLY FILED A REVISED COMPUTATION OF INCOME ALONG WITH REVISED BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION AND DECLARED INCOME FROM SALARY AT RS.23,400, INCOME FROM OTHER SOURCES AT R S.98,262/- AND ALSO SHORT TERM CAPITAL GAIN OF RS.6,89,392/- ON SALE OF PROPERTY. THE ASSESSEE SUBMITTED BEFORE THE AO THAT HE HAD PURCHASED A PLO T OF LAND IN KAITHAL FOR RS.98 LAKHS ON 29.09.2004 AND WAS HAVING 1/4 TH SHARE IN THIS LAND AND FURTHER SUBMITTED THAT SOME OF THE PORTION OF THIS LAND WAS SOLD DURING THE ITA NOS.2913/DEL./2013 3 YEAR. THE ASSESSEE SUBMITTED THAT IN THE SAID PR OCESS OF SALE OF LAND, HE MADE SHORT TERM CAPITAL GAIN OF RS.6,89,392/- AND T HE TAX ON THE SAME WAS WORKED OUT TO BE RS.3,12,413/- WHICH WAS DEPOSITED BY THE ASSESSEE ON 14.11.2008. THE ASSESSEE SUBMITTED THE DOCUMENTS I N SUPPORT OF PURCHASE AND SALE OF LAND BEFORE THE AO. THE AO OBSERVED TH AT ASSESSEE MADE SHORT TERM CAPITAL GAIN ON SALE OF PROPERTY BUT THE SAME WAS NOT DECLARED WHILE FILING THE ORIGINAL RETURN OF INCOME ON 12.01.2007 . THE AO FURTHER OBSERVED THAT WHEN THE CASE WAS SELECTED FOR SCRUTI NY AND QUERIES WERE RAISED ON CERTAIN ENTRIES IN ASSESSEES BANK STATEM ENT, THEN ONLY THE ASSESSEE COME FORWARD TO DECLARE THE SHORT TERM CAP ITAL GAIN OF RS.6,89,392/-. THE SCRUTINY ASSESSMENT WAS ACCORDI NGLY COMPLETED AT TOTAL INCOME OF RS.8,11,054/-. THE AO RECORDED IN THE AS SESSMENT ORDER THAT PENALTY PROVISIONS UNDER SECTION 271(1)(C) OF THE A CT FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME WERE SQUARELY ATTRACTED IN THIS CASE. 3.1 THEREAFTER, DURING THE PENALTY PROCEEDINGS, THE AO ISSUED A NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT ON 1 0.12.2008 FIXING THE CASE FOR 24.12.2008. IN RESPONSE TO THE SAID NOTIC E, THE ASSESSEE REQUESTED FOR AN ADJOURNMENT TO 09.01.2009 VIDE REPLY DATED 2 4.12.2008, BUT, ON 09.01.2009, THE ASSESSEE DID NOT FILE HIS SUBMISSIO N. FURTHER, A SHOW CAUSE NOTICE U/S 271(1)(C) WAS ISSUED TO THE ASSESSEE AND THEREAFTER, ANOTHER OPPORTUNITY WAS OFFERED TO THE ASSESSEE VIDE LETTER DATED 16.06.2009 FIXING ITA NOS.2913/DEL./2013 4 THE HEARING FOR 19.06.2009. IN RESPONSE TO THIS NO TICE, THE ASSESSEE FILED HIS REPLY ON 22.06.2009 AND SUBMITTED AS UNDER :- THE ASSESSEE HAD ENTERED INTO ALL THE SALE THROUGH DULY REGISTERED POWER OF ATTORNEY IN FAVOUR OF SHRI MURU ARI LAL GERA. ALL DOCUMENTS HAVE BEEN GIVEN DURING ASSESSM ENT. SINCE SALE WAS EXECUTED THROUGH POA, IT IS WITHIN H UMAN PROBABILITIES THAT THE ASSESSEE DID NOT KNOW THERE WAS A REGISTERED SALE. SECONDLY, ALL THE SALES WERE SETT LED BY WAY OF CASH. DD AND CHEQUES WERE NOT ISSUED BY THE BUYERS . THE ASSESSEE FURTHER SUBMITTED BEFORE THE AO THAT W HILE HE WAS ARRANGING PAPERS FOR ANSWERING THE QUERIES POSED DURING ASSES SMENT PROCEEDINGS, IT CAME TO THE NOTICE OF THE ASSESSEE THAT THE CASH RE CEIVED BY HIM WAS NOT ON ACCOUNT OF ADVANCE AS HE THOUGHT BUT IT WAS SALE CO NSIDERATION OF SOME PORTION OF THE LAND WHICH WAS SOLD DURING THE RELEV ANT ASSESSMENT YEAR. THE AO CONSIDERED THE SUBMISSIONS OF THE ASSESSEE A ND OBSERVED THAT THE SAME WAS NOT TENABLE AND HELD THAT IT IS A FIT CASE FOR IMPOSITION OF PENALTY U/S 271(1)(C) BECAUSE, ACCORDING TO THE AO, IF THE CASE HAD NOT BEEN SELECTED FOR SCRUTINY ASSESSMENT AND QUERIES WOULD NOT HAVE BEEN RAISED ON THE CREDIT ENTRIES IN THE BANK STATEMENT OF THE ASS ESSEE, THE SAID SHORT-TERM CAPITAL GAIN WOULD NEVER HAVE BEEN DECLARED BY THE ASSESSEE AND OFFERED FOR TAX. THEREFORE, HE OBSERVED THAT THIS ACT/ OMI SSION OF THE ASSESSEE ITSELF SHOWED THAT THE ASSESSEE HAD CONCEALED THE INCOME. ACCORDINGLY, THE AO IMPOSED MINIMUM PENALTY OF RS.1,94,972/- AT THE RA TE OF 100% TAX SOUGHT TO BE EVADED. ITA NOS.2913/DEL./2013 5 3.2 AGAINST THE ORDER OF PENALTY IMPOSED U/S 271(1) (C) OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT (A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. THE RE LEVANT FINDING OF THE CIT (A) READS AS FOLLOWS :- 4.3 THE ABOVE EXPLANATION OF THE APPELLANT WAS NOT ACCEPTED BY THE AO AND THE AO IN THE PENALTY ORDER HAD CLEARLY STATED THAT IT WAS ONLY WHEN QUERIES WERE RAISED ABOUT THE BANK STATEM ENT OF THE APPELLANT THAT THE APPELLANT CAME FORWARD WITH REVI SED COMPUTATION OF SHORT TERM CAPITAL GAINS OF RS.6,89,392/-. THE EVENTS MENTIONED ABOVE IN THIS APPELLATE ORDER, CLEARLY INDICATES TH AT THE APPELLANT HAD NO OPTION BUT TO FILE A REVISED RETURN WHEN THE AO ASKED HIM ABOUT THE SOURCE OF CREDITS IN HIS BANK ACCOUNT IN THE RE VISED COMPUTATION FILED ON 07.11.2008, THE APPELLANT HAD NOT MADE ANY EXPLANATION REGARDING THIS OMISSION OF SHORT TERM CAPITAL GAIN WHILE FILING THE ORIGINAL RETURN OF INCOME. THE EXPLANATION THAT TH E APPELLANT WAS MISLEAD BY THE POWER OF ATTORNEY HOLDER THAT THE AM OUNT RECEIVED WERE ADVANCES AND NOT SALE WAS FURNISHED ONLY DURIN G THE PENALTY PROCEEDINGS. THIS CAN BE ONLY AN AFTERTHOUGHT, AS IF THE SAME WAS A GENUINE ERROR IT SHOULD HAVE BEEN MENTIONED CLEARLY IN THE LETTER FILED WHILE SUBMITTED THE REVISED COMPUTATION. AS PER TH E RECORDS, THE APPELLANT HAD PURCHASED SUBSTANTIAL PROPERTY AT KAI THAL FOR RS.98,00,000/- AND SOLD 28 PLOTS OF LAND DURING THE YEAR UNDER CONSIDERATION. THEREFORE, THE APPELLANTS EXPLANAT ION THAT HE WAS MISLED BY THE POWER OF ATTORNEY HOLDER CANNOT BE AC CEPTED AS BONAFIDE. MOREOVER, THE APPELLANT IS RESPONSIBLE F OR THE ACTIONS OF POWER OF ATTORNEY HOLDER AND HE HAD RECEIVED SUBSTA NTIAL AMOUNT OF MONEY DURING THE YEAR FROM THE POWER OF ATTORNEY HO LDER. NOTHING PREVENTED THE APPELLANT FROM MENTIONING THE OMISSIO N OR ERROR WHILE SUBMITTED THE REVISED COMPUTATION OF INCOME DURING THE ASSESSMENT PROCEEDINGS. IF THE ERROR OR OMISSION WAS GENUINE, THE APPELLANT SHOULD HAVE MENTIONED THE SAME WHILE FILING THE REV ISED COMPUTATION OF INCOME INSTEAD OF WAITING TILL THE P ENALTY PROCEEDINGS ARE INITIATED. IT APPEARS THAT THE APP ELLANT WAS AWARE THAT ONLY FEW CASES ARE SELECTED FOR SCRUTINY AND P ROBABLY ASSUMED THAT PENALTY PROCEEDINGS WILL NOT BE PURSUED BY THE DEPARTMENT AFTER THE ASSESSMENT IS COMPLETED. IN THIS CONNECTION, I T IS PERTINENT TO NOTE THE OBSERVATIONS OF THE HONBLE DELHI HIGH COU RT IN THE CASE OF ZOOM COMMUNICATION (P) LTD. REPORTED IN 327 ITR 510 . THE RELEVANT PORTION IS AS FOLLOWS :- THE COURT CANNOT OVERLOOK THE FACT THAT ONLY A SMA LL PERCENTAGE OF THE INCOME TAX RETURNS ARE PICKED UP FOR ITA NOS.2913/DEL./2013 6 SCRUTINY. IF THE ASSESSEE MAKES A CLAIM WHICH IS NO T ONLY INCORRECT IN LAW BUT IS ALSO WHOLLY WITHOUT ANY BAS IS AND THE EXPLANATION FURNISHED BY HIM FOR MAKING SUCH A CLAI M IS NOT FOUND TO BE BONAFIDE, IT WOULD BE DIFFICULT TO SAY THAT HE WOULD STILL NOT BE LIABLE TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IF WE TAKE THE VIEW THAT A CLAIM WHICH IS WHOLLY UNTENABLE IN LAW AND HAS ABSOLUTELY NO FOUNDATION O N WHICH IT COULD BE MADE, THE ASSESSEE WOULD NOT BE LIABLE TO IMPOSITION OF PENALTY, EVEN IF HE WAS NOT ACTING BONAFIDE WHIL E MAKING A CLAIM OF THIS NATURE, THAT WOULD GIVE A LICENCE TO UNSCRUPULOUS ASSESSEES TO MAKE WHOLLY UNTENABLE AND UNSUSTAINABL E CLAIMS WITHOUT THERE BEING ANY BASIS FOR MAKING THEM, IN T HE HOPE THAT THEIR RETURN WOULD NOT BE PICKED UP FOR SCRUTI NY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF ASSESSMENT UNDER SECTION 143(1) OF THE ACT AND EVEN IF THEIR C ASE IS SELECTED FOR SCRUTINY, THEY CAN GET AWAY MERELY BY PAYING THE TAX, WHICH IN ANY CASE, WAS PAYABLE BY THEM. THE CONSEQUENCE WOULD BE THAT THE PERSONS WHO MAKE CLAI MS OF THIS NATURE, ACTUATED BY A MALAFIDE INTENTION TO EV ADE TAX OTHERWISE PAYABLE BY THEM WOULD GET AWAY WITHOUT PA YING THE TAX LEGALLY PAYABLE BY THEM, IF THEIR CASES ARE NOT PICKED UP FOR SCRUTINY. THIS WOULD TAKE AWAY THE DETERRENT EFFECT, WHICH THESE PENALTY PROVISIONS IN THE ACT HAVE. THEREFORE, I AM OF THE VIEW THAT THE APPELLANT SHOU LD NOT BE ALLOWED TO ESCAPE WITH THE PAYMENT OF TAX ALONE AND PENALTY IS REQUIRED TO BE LEVIED AS A DETERRENT. 4.4 THE APPELLANT HAS RAISED THE ISSUE OF MENS REA IN GROUND NO.3 & 4. HOWEVER, IN VIEW OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF M/S. DHARMENDRA TEXTILES REPORTED IN 30 6 ITR 277 (SC), MENS REA IS NOT REQUIRED TO BE PROVED ANY MORE IN P ENALTY PROCEEDINGS. 4.5 FURTHER, THE APPELLANTS AR WAS ASKED SPECIFICA LLY TO SUBSTANTIATE THE EXPLANATION OFFERED BY THE APPELLA NT DURING THE PENALTY PROCEEDINGS. AS PER EXPLANATION 1 TO 271(1 )(C), IF THE APPELLANT FAILS TO OFFER AN EXPLANATION OR OFFERS A N EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE THEN THE AMOUNT ADDE D TO DISALLOWED IS DEEMED AS CONCEALMENT OF INCOME. IN THIS CASE, THE APPELLANT HAD NOT OFFERED ANY EXPLANATION DURING THE ASSESSMENT P ROCEEDINGS AND THE EXPLANATION OFFERED DURING THE PENALTY PROCEEDI NGS WAS NOT SUBSTANTIATED. IN SPITE OF SPECIFIC DIRECTIONS, TH E APPELLANTS AR DID NOT SUBSTANTIATE THE EXPLANATION OFFERED BY THE APP ELLANT DURING THE PENALTY PROCEEDINGS. THEREFORE, THIS IS A CASE WHE RE CLAUSE (B) OF EXPLANATION (1) TO SECTION 271(1)(C) IS CLEARLY ATT RACTED. AS PER ITA NOS.2913/DEL./2013 7 EXPLANATION (1) OF 271(1)(C), ANY AMOUNT ADDED OR D ISALLOWED IN THE ASSESSMENT PROCEEDINGS IS DEEMED TO REPRESENT THE I NCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. CLAUSE ( B) IS ATTRACTED IN THIS CASE AS THE APPELLANT IS NOT ABLE TO SUBSTANTI ATE THE EXPLANATION OFFERED BY HIM DURING THE PENALTY PROCEEDINGS. SIN CE THE DEEMING PROVISIONS OF EXPLANATION (1) TO SECTION 271(1)(C) IS ATTRACTED IN THIS CASE THE APPELLANT IS DEEMED TO HAVE CONCEALED PART ICULARS OF INCOME. HENCE, PENALTY OF RS.1,94,972/- LEVIED BY THE AO IS HEREBY UPHELD AND THE GROUNDS OF APPEAL NO.1 TO 12 RAISED BY THE APPELLANT ARE REJECTED. 4. AGAINST THE CONFIRMATION OF PENALTY IMPOSED U/S 271(1)(C) OF THE ACT, ASSESSEE IS IN APPEAL BEFORE US. 5. ON MERITS, THE LD. COUNSEL FOR THE ASSESSEE REIT ERATED THE SUBMISSIONS MADE BEFORE THE INCOME-TAX AUTHORITIES. HE SUBMITT ED THAT THE SHORT TERM CAPITAL GAINS WERE ACCIDENTLY LEFT OUT AND THE DISC LOSURE WAS MADE BEFORE THE DETECTION OF THE CONCEALMENT. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE WAS MISLED BY MR. MURAR I LAL GERA (GPA HOLDER) WHO TOLD HIM THAT THE FUNDS THAT WAS PASSED ON TO HIM (ASSESSEE) WAS ONLY THE ADVANCE FOR THE LAND; AND IT WAS DUE T O THIS LACK OF KNOWLEDGE THAT THE ASSESSEE DID NOT INCLUDE THE CONSIDERATION OF SALE OF LAND IN HIS ORIGINAL RETURN OF INCOME. HE SUBMITTED THAT ONLY WHEN THE ASSESSEE WAS ARRANGING THE PAPERS FOR ANSWERING THE QUERIES RAIS ED BY THE AO, DURING THE SCRUTINY PROCEEDINGS, HE STUMBLED ACROSS PAPERS , WHICH SHOWED THAT THE FUNDS TRANSFERRED TO HIM WAS NOT ADVANCES COLLE CTED BUT INFACT IT WAS SALE CONSIDERATION. UPON KNOWING THIS FACT, IMMEDI ATELY THE ASSESSEE PREPARED THE REVISED COMPUTATION AND ACCORDINGLY, T AX WAS DEPOSITED. THE LD. COUNSEL SUBMITTED THAT THERE WAS A REASONABLE C AUSE DUE TO WHICH THE ITA NOS.2913/DEL./2013 8 ASSESSEE DID NOT INCLUDE SHORT-TERM CAPITAL GAINS I N HIS ORIGINAL RETURN OF INCOME. HE FURTHER SUBMITTED THAT THERE WAS NO SPE CIFIC OR PRECISE DETECTION OF CONCEALED INCOME BY THE AO AND ACCORD ING TO HIM, IT IS A WELL SETTLED LAW THAT IF DISCLOSURE IS MADE BEFORE DETECTION OF CONCEALMENT, IT MAY NOT ATTRACT PENALTY U/S 271(1)(C) OF THE ACT . IN THE SAID FACTS AND CIRCUMSTANCES, THE LD. COUNSEL PLEADED THAT THE ORD ERS OF THE LOWER AUTHORITIES BE SET ASIDE AND PENALTY BE DELETED. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS O F THE INCOME-TAX AUTHORITIES BELOW AND DOES NOT WANT US TO INTERFERE IN THE ORDER OF THE LD. CIT (A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. WE FIND THAT THE ORIGINAL RETURN FOR THE RELEVANT ASSE SSMENT YEAR WAS FILED ON 12.01.2007 DECLARING RS.1,21,662/-. BASED ON AIR I NFORMATION, THE ASSESSEES CASE WAS TAKEN FOR SCRUTINY. THE AO ASK ED THE ASSESSEE TO PRODUCE HIS PASSBOOK AND WHEN THE AO ASKED THE ASSE SSEE TO EXPLAIN CERTAIN CREDIT ENTRIES IN HIS FINANCIAL STATEMENT, THAT THE ASSESSEE FILED THE REVISED COMPUTATION OF SHORT TERM CAPITAL GAIN OF R S.6,89,392/- AND DEPOSITED TAX OF RS.3,12,413/- ON 14.11.2008. WE F IND THAT THE ASSESSEE WAS LEFT WITH NO OPTION BUT TO FILE THE REVISED RET URN WHEN THE AO ASKED HIM ABOUT THE SOURCE OF CREDITS IN HIS BANK ACCOUNT . WE ALSO FIND THAT THE ASSESSEE HAD NOT MADE ANY EXPLANATION REGARDING THE OMISSION OF SHORT TERM CAPITAL GAIN WHILE FILING THE REVISED RETURN O F INCOME. WE FURTHER FIND ITA NOS.2913/DEL./2013 9 THAT THE EXPLANATION OF THE ASSESSEE THAT HE WAS MI SLED BY THE POWER OF ATTORNEY HOLDER OF THE PROPERTY THAT THE AMOUNT REC EIVED WAS ONLY AN ADVANCE FOR SALE OF PROPERTY AND NOT ON ACCOUNT OF SALE CONSIDERATION OF PROPERTY, WAS FOR THE FIRST TIME TAKEN AS DEFENCE T HAT TOO DURING THE PENALTY PROCEEDINGS, WHICH THE CIT (A) HAD RIGHTLY HELD TO BE AN AFTERTHOUGHT. IN CASE, THIS ADVANCE STORY WAS GENUINE AND MISTAKE HA PPENED BECAUSE OF THAT, THEN ASSESSEE SHOULD HAVE MENTIONED THIS FACT CLEARLY IN THE LETTER WHICH HE FILED WHILE SUBMITTING THE REVISED COMPUTA TION. THE CIT (A) RELIED ON THE JUDGMENT OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF ZOOM COMMUNICATION (P) LTD. REPORTED IN 327 ITR 510 TO HOLD THAT THE ASSESSEE SHOULD NOT BE ALLOWED TO ESCAPE WITH THE P AYMENT OF TAX ALONE AND PENALTY IS REQUIRED TO BE LEVIED AS A DETERRENT . FURTHER, WE FIND THAT THE LD. CIT (A) HAS TAKEN NOTE OF THE FACT THAT ASSESSE E HAS NOT SUBSTANTIATED BY ADDUCING EVIDENCES TO PROVE THE EXPLANATION GIVEN D URING THE PENALTY PROCEEDINGS. SIMPLY BY MAKING AN ASSERTION, WITHOU T CORROBORATING THE SAME BY EVIDENCES, CANNOT HELP THE ASSESSEE. WE FI ND ON A PERUSAL OF PAGE 4 OF PAPER BOOK THAT DURING THE RELEVANT ASSESSMEN T YEAR, DATE OF SALE OF PROPERTIES COMMENCED FROM 27.07.2005 TO 24.03.2006 AND THERE WAS ALTOGETHER 28 SALE TRANSACTIONS, WHICH CANNOT PER-S E SUPPORT OR JUSTIFY THE EXPLANATION OF THE ASSESSEE, THAT THE GPA HOLDER HA D MISLED HIM BY STATING THAT THE FUNDS GIVEN TO THE ASSESSEE WAS ONLY AN AD VANCE OF THE SAID 28 TRANSACTIONS AND THAT IS HOW HE WAS MISLED AND DID NOT REFLECT IN THE ITA NOS.2913/DEL./2013 10 ORIGINAL RETURN OF INCOME IS FARFETCHED AND CANNOT BE BELIEVED UNLESS HE CORROBORATES THE SAME BY ADDUCING SOME EVIDENCES. WE FIND THAT THE ASSESSEE FAILED TO CORROBORATE HIS EXPLANATION WHIC H HE GAVE DURING PENALTY PROCEEDINGS BEFORE THE AO AND CIT (A) AND SO WE FU RTHER FIND THAT THE CIT (A) HAS RIGHTLY HELD THAT CLAUSE (B) OF EXPLANA TION (1) TO SECTION 271(1)(C) IS CLEARLY ATTRACTED AS THE ASSESSEE IS N OT ABLE TO SUBSTANTIATE THE EXPLANATION OFFERED BY HIM DURING THE PENALTY PROCE EDINGS. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A) AND THE SAME IS ACCORDINGLY CONFIRMED. ACCORDINGLY, THE GR OUND IS REJECTED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF JULY, 2015. SD/- SD/- (R.S. SYAL) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF JULY, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.