M/s Ajay Salt & Chemicals, Una V. I.T.O., Ward-1(3), Veraval

ITA 296/RJT/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7682 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 18-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Deemed to accrue or arise in india; Set aside
• Section: 271(1)(c); 69C; 69B; 201; 274; 69A; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO . 296 /RJT /2017 / ASSTT. YEAR : 2006 - 20 07 M/S. AJAY SALT & CHEMICALS , OPP. MARKETING YARD , BHAVNAGAR ROAD , UNA . PAN: AALFA1644B VS . I.T .O , WARD - 1(3) , VERAVAL . (APPLICANT) (RESPON D ENT) ASSESSEE BY : WRITTEN SUBMISSION REVENUE BY : SHRI ANIL KUMAR DAS , SR .D R / DATE OF HEARING : 05 / 12 / 201 9 / DATE OF PRONOUNCEMENT: 23 / 01/2020 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 3, RAJKOT DATED 01/08/2017 ( IN SHORT LD.CIT(A) ) ARISING IN THE MATTER OF PENALTY ORDER PASSED UNDER S. 271(1)(C) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DT. 25/06/2014 RELE VANT TO THE ASSESSMENT YEAR 2006 - 2007 . ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 2 2. THE INTERCONNECTED ISSUED RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE PENALTY OF RS. 1,61,568/ - IMPOSED UNDER SECTION 271 (1)(C) OF THE ACT. 3. BRIEFLY STATED FACT S ARE THAT, THE ASSESSEE IS A FIRM AND ENGAGED IN THE BUSINESS OF SUPPLY OF LIME STONE. DURING THE YEAR UNDER CONSIDERATION IT HAS CLAIMED TO HAVE TAKEN UNSECURED LOAN OF RS. 4,80,000/ - FROM 24 DIFFERENT PERSONS IN CASH. HOWEVER THE AO DURING ASSESSMENT PROCEEDINGS TREATED SUCH UNSECURED LOAN AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT, AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE ISSUE TRAVELLED TO THE ITAT RAJKOT. THE HON BLE ITAT SET ASIDE THE FILE TO T HE AO FOR VERIFICATION OF IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE PARTIES/ TRANSACTIONS. BUT THE ASSESSEE FAILED TO APPEAR BEFORE THE AO IN SUCH SET ASIDE PROCEEDINGS . ACCORDINGLY THE AO CONTINUED WITH THE ORIGINAL ADDITION AND INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT, FOR FURNISHING INACCURATE PARTICULAR OF INCOME. 3.1 IN VIEW OF THE ABOVE THE AO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT. BUT THE ASSESSEE AGAIN FAILED TO SUBMIT OR FURNISHED ANY REPLY BE FORE THE AO. THEREFORE THE AO IN ABSENCE OF ANY REPLY OR SUBMISSION HELD THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULAR OF INCOME AND IMPOSED PENALTY OF RS. 1,61,568/ - BEING 100% OF TAX SOUGHT TO BE EVADED. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A) WHO CONFIRMED THE PENALTY IMPOSED BY THE AO BY HOLDING AS UNDER: 6.3 IT IS APPARENT THAT EVEN DURING PENALTY PROCEEDING THE APPELLANT IS ONLY RAISING FINGER ON AO FOR NOT MAKING INQUIR IES IN RESPECT OF THE UNSECURED LOANS. HE HAS NOT SUBMITTED ANY EXPLANATION AS TO WHY IT HAS FAILED TO SUBMIT EVIDENCES REGARDING IDENTITY, CREDITWORTHINESS AND GENUINENESS. NON FURNISHING OF SUCH EXPLANATION MAKES THE APPELLANT FULLY LIABLE TO THE PENALTY U/S. 271(1)(C). ON MERIT I DO NOT FIND ANY FAULT IN AO'S ACTION OF IMPOSING PENALTY IN RESPECT OF UNEXPLAINED CASH CREDIT U/S. 68. 6.4 THE APPELLANT HAS ALSO RAISED ISSUE OF ABSENCE OF SPECIFIC SATISFACTION NOTED (BEFORE INITIATING PENALTY PROCEEDING) IN THE ASSESSMENT ORDER. THIS CONTENTION IS FACTUALLY INCORRECT. IN ORDER DTD. 24/12/2013 PASSED U/S. 143(1 ) RWS 254 OF THE IT ACT, 1961, I N PARA 8 THE AO HAS CLEARLY MENTIONED THAT THEREFORE PENALTY PROCEEDINGS ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 3 U/S.271(1)(C) OF THE ACT ARE INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT - A, THE ASSESSEE IS IN AP PEAL BEFORE US. 5. THE LD. AR BEFORE US SUBMITTED AS UNDER: 2.1 THE PENALTY ORDER PAGE NO 2 PARA 6 MENTIONS AS UNDER : THE A.O. HAS INITIATED PENALTY PROCEEDINGS U/S. 274 R.W.S. 271(L)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME TO THE ABOVE EXTENT. 2.2 THUS THE PENALTY ORDER DOES NOT SPECIFY THE CHARGE FOR WHICH INITIATION IS SPECIFIC. IT IT SETTLED LAW THAT INITIATION HAS TO BE SPECIFIC. THE ABOVE LINE SHOWS THAT BOTH THE CHARGES VIZ. FURNISHING OF INA CCURATE PARTICULARS AND ALSO OF CONCEALMENT IS THERE. THE JUDICIAL PRONOUNCEMENTS REQUIRES SPECIFIC CONCLUSION OF CHARGE INITIATED. 3.1 PARA NO 8 PAGE NO 2 OF THE PENALTY ORDER ALSO MENTION AS UNDER: IN VIEW OF THE ABOVE FACTS, IT IS HELD THAT THE ASS ESSEE HAS FURNISHED INACCURATE PARTICULAR OF INCOME FOR WHICH THE ASSESSEE IS LIABLE FOR PENALTY U/S. 271(L)(C) OF THE ACT. THEREFORE, IT IS CLEARLY ESTABLISHED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. THE ACT OF THE ASSESSEE IS NOTING BUT WILLFUL ATTEMPT ON HIS PART TO CONCEAL THE INCOME WITH A VIEW TO EVADE THE TAX. BY DOING SO THE ASSESSEE HAS SQUARELY RENDERED HIMSELF LIABLE FOR PENAL ACTION U/S. 271 (L)(C) OF THE IT ACT. 3.2 THUS THE CONCLUDING PARA ALSO DOES NOT SPECIFY A SPECIFIC CHARGE AND IT MENTION BOTH THE CHARGES. THE HON. GUJARAT HIGH COURT HAS SPECIFICALLY REQUIRED TO ARRIVE AT A CHARGE SPECIFICALLY. 3.3 IN VIEW OF THE ABOVE IT IS HUMBLY SUBMITTED THAT PROVISIONS UNDER WHICH PENALTY IMPOSABLE SHOULD BE CLEARLY STATED WHERE THERE IS NO CLEAR CUT FINDING RECORDED BY THE ASSESSING OFFICER ON THE POINT WHETHER HE INTENDS TO LEVY PENALTY FOR ASSESSEE 'S CONCEALING THE PARTICULARS OF INCOME OR FOR HIS FURNISHING INACCURATE PARTICULARS OF SUCH INCOME, THE ORDER OF PENALTY IS LIABLE TO BE STRUCK DOWN. IT IS FOR THE ASSESSING OFFICER TO CLEARLY SAY AS TO UNDER WHICH PROVISION HE IS GOING TO IMPOSE PENALTY. - VIDE CIT V. MANU ENGINEERING WORKS ( 1980) 122 ITR 306 (GUJ) AND CIT V. LAKHDIR LALJI (1972) 85 ITR 77 (GUJ). SEE ALSO NAVI NBHAI M. PATEL V. ITO (1988) 27 ITD 411 (AHD - TRIB). 4 IN VIEW OF THE ABOVE LEGAL POSITION THE PENALTY LEVIED BEING NOT SUSTAINABLE IN THE EYE OF LAW MAY KINDLY BE CANCELLED. 5 AS REGARDS MERITS OF THE CASE IT MAY BE SUBMITTED AS UNDER : 5.1.1 THE ADMITTED POSITION BY THE LD. A.O. AS PER PARA 5 OF THE ASSESSMENT ORDER IS THAT THAT THE ASSESSEE HAS SHOWN UNSECURED LOAN OF RS. 9,70,0007 - OUT OF WHICH RS. 4,90,0007 - PERTAINS TO 26 PERSONS IS OLD LOAN PERTAINING TO EARLIER YEARS. WHEN THE LD. A.O. HAS A CCEPTED IDENTICAL POSITION FOR EARLIER YEARS, THE LOAN RECEIVED DURING THIS YEARS OUGHT TO HAVE BEEN ACCEPTED AS GENUINE TRANSACTION. ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 4 5.1.2 THUS THE LD. A.O. ALSO DOES NOT CONSIDER THE BUSINESS NECESSITY AND REGULARITY ALTHOUGH HE ACCEPT THAT EVEN IN EARL IER YEAR SUCH TRANSACTIONS ARE THERE AND ACCEPTED. 5.2 THE LD. A.O. MADE NO EFFORTS TO CALL OR EXAMINED ANY OF THE PERSONS SINCE HE HAS NOT CONSIDERED TO CALL ANY PERSONS BY ISSUANCE OF SUMMONS. MORE EVER HE MADE THE ADDITION IN LUMP SUMP FOR ALL THE PERS ONS. HE OUGHT TO HAVE JUSTIFIED HIS ACTION BY SPECIFYING DETAILS FOR EACH OF PERSONS. MORE EVER HE ALSO SHOULD HAVE CONSIDERED THE CAPACITY OF EACH OF THE PERSONS_BEFORE MAKING ADDITION. 5.3 IN VIEW OF THIS AND AS DESCRIBED IN THE STATEMENT OF FACTS FILED WITH YOUR HONOUR, THE ACTION OF THE LD. A.O. EVEN WITHOUT SPECIFICALLY MENTIONING HOW THE PERSON CONCERN HAS NO CAPACITY TO GIVE LOAN OF SUCH' SMALL AMOUNT OF LESS THEN RS. 20,0007 - AND IF THERE IS NO CAPACITY OF SUCH SMALL AMOUNT THEN WHAT IS THE CAPACIT Y OF EACH OF THE PERSONS FOR LESSER AMOUNT. NOT ONLY THIS EVEN THE LD. A.O. OVER LOOK THE POSITION OF SIMILAR TRANSACTION IN EARLIER YEARS WHICH IS ALSO A CONCLUSIVE PART OF GENUINE TRANSACTION IN THE LINE OF BUSINESS OF THE ASSESSEE. 5.4 IN VIEW OF THE A BOVE IT IS HUMBLY SUBMITTED THAT PENALTY LEVIED ON ADDITION MADE OF RS. 4,80,000/ - MAY KINDLY BE DELETED IF NECESSARY BY ASKING THE LD. A.O. TO CALL ALL THE PERSONS BY ISSUING SUMMONS AND TO EXAMINE THEM OR BY CONDUCTING INQUIRING THROUGH INSPECTOR IN REMA ND PROCEEDINGS. THE ASSESSEE ALSO RELY ON THE FOLLOWING JUDICIAL PRONOUNCEMENT WITH PROVIDES GUIDELINES THAT WHEN THERE IS LACK OF PROPER INQUIRY BY A.O., HE SHOULD CARRY OUT THE NECESSARY INQUIRY OR ISSUE SUMMONS WITHOUT THAT THE ADDITION IS NOT SUSTAINAB LE. 1. 274 ITR 575 (RAJ) - NEK KUMAR V/S. ACIT 2. 267 ITR 308 (P & H) - CIT V/S. JAWAHAR OSWAL 3. 227 ITR 900 (GAU.) - KHANDELWAL CONSTRUCTIONS V/S. CIT 6. THUS IT IS EVIDENCE THAT WHEN ADDITION MADE IS WITHOUT CONSIDERING THE PROPER INQUIRY IN SPITE OF DECISIONS OF THE HON. HIGH COURTS IT IS SETTLED LAW THAT WHEN ADDITION IS MADE WITHOUT CONDUCTING PROPER INQUIRY AND PENALTY IS LEVIED WITHOUT CONDUCTING ANY INQUIRY, THE BASE OF ADDITION ITSELF IS NOT SUSTAINABLE, THE LEVY OF PENALTY SUBSEQUENT THERETO, REPEATING TO MAKE NO INQUIRY NOR CALLING ADDRESSED OF THE ASSESSEE'S, CASH CREDITORS THE SAME IS ALSO NOT SUSTAINABLE IN VIEW OF THE FOLLOWING JUDICIAL GUIDELINES 1. 204 ITR 462(BOM.) DHARAMCHAND L. SHAH 2. 142ITR747(MAD.) SAUBHAGMAL MAHAVEERCHAND 3 . 16 TTJ 491 (AHD.) SHARADCHANDRA C. PATEL 7. MORE EVER ALSO WHEN THERE IS NO SPECIFIC SATISFACTION IN ORIGINAL AS WELL AS REASSESSMENT ORDER, NOTICE ISSUED CONSEQUENTLY ITSELF: 1. 277 ITR 337(DEL.) VIKAS PROMOTERS PVT. LTD. 2. 278 ITR 32(DEL .) AUTO LAMPES LTD. 3. 41 TAXMAN 496(KAR.) M. W. PVT. LTD. 8. IT IS THEREFORE SUBMITTED THAT PENALTY LEVIED MAY KINDLY CANCELLED. 6. ON THE OTHER HAND THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 5 7. W E HAVE HEARD THE LEARNED DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE PRESENT CASE THE PENALTY HAS BEEN LEVIED WITH RESPECT TO THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. AS SUCH THE ASSESSEE FAILED TO SUBSTANTIATE THE C ASH CREDIT OF RS. 4 .80 LAKHS BASED ON IDENTITY , CREDITWORTHINESS OF THE PARTIES AND GENUINENESS OF THE TRANSACTION IN PURSUANCE TO THE PROVISIONS OF SECTION 68 OF THE ACT. ACCORDINGLY THE AO DURING THE PENALTY PROCEEDINGS HELD THAT THE ASSESSEE HAS FURNISH ED INACCURATE PARTICULAR OF INCOME WITH RESPECT TO SUCH UNEXPLAINED CASH CREDITS. THUS THE PENALTY WAS LEVIED BY THE AO FOR RS. 1,61,568/ - WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LEARNED CIT (A). 7.1 NOW THE CONTROVERSY BEFORE US ARI S ES SO AS TO ADJUDICATE WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME WITH RESPECT TO THE CASH CREDIT WHICH WERE TREATED AS UNEXPLAINED UNDER SECTION 68 OF THE ACT. THE TERM INACCURATE PARTICULAR OF IN COME HAS NOT BEEN DEFINED UNDER THE PROVISIONS OF SECTION 271( 1 )(C) OR ELSEWHERE IN THE ACT THE ACT. HOWEVER, THE MEANING OF THE TERM INACCURATE HAS BEEN DISCUSSED BY THE HON BLE SUPREME C OURT IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD REPORTED IN 189 TAXMAN 322 WHEREIN IT WAS HELD THAT THE TERM I NACCUR ATE SIGNIFIES DELIBERATE ACT OR OMISSION ON THE PART OF THE ASSESSEE. AS SUCH, THE DETAILS/INFORMATIONS CONTAINED IN THE RETURN OF INCOME /FINANCIAL STATEMENTS /AUDIT REPORT WHICH ARE NOT CORRECT ACCORDING TO TRUTH , AND WERE FURNISHED BY THE ASSESSE E WITH THE DISHONEST INTENT SHALL BE TREATED AS INACCURATE PARTICULARS. IN HOLDING SO, WE FIND SUPPORT AND GUIDANCE FROM THE JUDGEMENT OF HON BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD (SUPRA) . WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA . HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A MATTER OF FACT, THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBSTER'S DICTIONARY, THE WORD 'INACCURATE' HAS BEEN DEFINED AS : 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH; ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT.' WE HAVE ALREADY SEEN THE MEANING OF THE WORD 'PARTICULARS' IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS IN CONJUNCTION, THEY MUST MEAN THE DETAILS SUPPLIED IN TH E RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS O R FALSE ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 6 7.2 NOW, IF WE ANALYSES THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE ABOVE STATED DISCUSSION, WE FIND THAT THE ASSESSEE HAS FAILED TO FURNISH THE BASIC DETAILS OF THE PARTIES SUCH AS IDENTITY, CREDITWORTHINESS OF THE PARTIES AND GENUINENESS O F THE TRANSACTIONS DESPITE THE NECESSARY OPPORTUNITIES WERE PROVIDED TO IT. AS SUCH, IT IS THE 2 ND ROUND OF APPEAL BEFORE US. ON THE EARLIER OCCASION THE ITAT IN ITA NUMBER 322/RJT/2012 V IDE ORDER DATED 30 - 08 - 2012 HAS RESTORED THIS ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION WITH THE DIRECTION TO THE ASSESSEE TO FURNISH THE NECESSARY DETAILS ABOUT THE PARTIES FROM W HOM IT HAS TAKEN LOAN. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED AS UNDER: THE ASSESSEE SHOULD PRODUCE THE LOAN CREDITORS BEFORE T HE AO AS REQUIRED BY THE AO. THE ASSESSEE SHOULD ALSO PRODUCE THE DOCUMENTARY EVIDENCE REGARDING REPAYMENT OF THE LOAN IN THE SUBSEQUENT PERIOD. THE ASSESSEE WILL ALSO PRODUCE THE EVIDENCE ABOUT IDENTITY AND THE CREDITWORTHINESS OF THE LOAN CREDITORS AS WE LL AS THE GENUINENESS OF TRANSACTIONS AND THEREFORE, THE AO WILL PASS AS ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7.3 BUT THE ASSESSEE FAILED TO FURNISH THE NECESSARY DETAILS. THUS IT IS TRANSPIRED THAT THE ASSESSEE WITH THE MALA - FIDE INTENT HAS FURNISHED THE INACCURATE PARTICULARS OF CASH CREDIT IN THE GUISE OF LOAN FROM THE PARTIES. 7.4 WE ARE ALSO CONSCIOUS TO THE FACT THAT THE ADDITION IN THE PRESENT CASE HAS BEEN MADE UNDER THE PROVISIONS OF SECTION 68 OF THE ACT, REPRESENTING THE SUM CREDITED IN THE BOOKS OF ACCOUNTS BUT THE ASSESSEE OFFERS NO EXPLANATION ABOUT IN NATURE AND SOURCE TH EREOF AS DISCUSSED ABOVE. ACCORDINGLY SUCH SUM CREDITED IN THE BOOKS OF ACCOUNTS WAS DEEMED AS INCOME OF THE ASSESSEE. BUT SUCH ADDITION DURING THE ASSESSMENT PROCEEDINGS BEING DEEMED INCOME DOES NOT AUTOMATICALLY ATTRACT THE PENALTY PROVISIONS AS ENVISAGE D UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. AS SUCH, THE ONUS, IN THE CASE OF DEEMED INCOME AS SPECIFIED UNDER SECTION 68 OF THE ACT, LIES ON THE REVENUE TO PROVE THAT SUCH DEEMED INCOME IS THE REAL INCOME OF THE ASSESSEE IN ORDER TO ATTRACT TH E PENALTY PROVISIONS SPECIFIED UNDER SECTION 271(1)(C) OF THE ACT. IN HOLDING SO WE FIND SUPPORT AND ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 7 GUIDANCE FROM THE JUDGMENT OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. BARODA TIN WORKS BOX REPORTED IN 221 ITR 661 WHEREIN IT WAS HELD AS UNDER: SECTIONS 68, 69, 69A, 69B AND 69C ARE ALL PART OF THE SAME SCHEME WHERE CERTAIN AMOUNTS THOUGH NOT PROVED TO BE THE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR CONCERNED ARE FOR THE PURPOSE OF CHARGING TO TAX ARE DEEMED TO BE SO BY CREATING LEGAL FICTION A BSOLVING THE DEPARTMENT FROM ITS INITIAL DUTY TO PROVE THAT ANY SUCH IS THE INCOME OF THE ASSESSEE. BUT FOR THESE PROVISIONS, IT WAS FOR THE REVENUE TO PROVE THAT ANY SUM, NOT DISCLOSED BY THE ASSESSEE BUT WHICH IS SOUGHT TO BE TAXED AS INCOME OF THE ASSES SEE, IS THE INCOME OF THE ASSESSEE FOR THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. 7.5 HOWEVER, WE NOTE THAT THE PRINCIPLES LAID DOWN BY THE HON BLE GUJARAT HIGH COURT IN THE CASE AS DISCUSSED ABOVE DO NOT APPLY TO T HE PRESENT FACTS OF THE CASE. I T IS BECAUSE THE ASSESSEE FAILED TO EXPLAIN OR FURNISH THE BASIC DETAILS OF THE PARTIES FROM WHOM IT HAS TAKEN LOAN DURING THE YEAR. THUS IN THE ABSENCE OF EXPLANATION/ DOCUMENTARY EVIDENCE AND THE ASSISTANCE FROM THE SIDE OF THE ASSESSEE, THE REVENUE CANN OT BE HELD GUILTY IN NOT DISCHARGING ITS ONUS IN THE PRESENT FACTS AND CIRCUMSTANCES. 7.6 IT IS WELL - SETTLED LAW THAT AN OBLIGATION GETS DISCHARGED DUE TO IMPOSSIBILITY OF PERFORMANCE. THE LAW OF IMPOSSIBILITY OF PERFORMANCE DOES NOT NECESSARILY REQUIRE ABSOLUTE IMPOSSIBILITY, BUT ALSO ENCOMPASS THE CONCEPT OF SEVERE IMPRACTICABILITY. IN OUR HUMBLE OPINION, THE DOCTRINE OF IMPOSSIBILITY OF PERFORMANCE APPLIES IN THIS CASE. DUE TO UNCONTROLLABLE CIRCUMSTANCES, THE PERFORMANCE OF THE OBLIGATION TO VERIFY TH E LOAN CREDITORS WAS NOT POSSIBLE BY THE REVENUE AS NO DETAILS WERE FURNISHED BY THE ASSESSEE. THUS T HE IMPOSSIBILITY OF PERFORMANCE RELEASES THE REVENUE FROM ITS OBLIGATION TO VERIFY SUCH LIABILITY IN THE PRESENT FACTS AND CIRCUMSTANCES . A DEFAULT OCCURS ONLY WHEN AN OBLIGATION IS NOT PERFORMED. WE ALSO FIND SUPPORT FROM THE LEGAL MAXIM LEX NON COGIT AD IMPOSSIBILIA MEANING THEREBY THAT THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. IN HOLDING SO WE FIND SUPPORT & GUIDANCE FROM THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF KRISHNA SWAMY S. PD. & ANR VS. UNION OF INDIA & ORS REPORTED IN 281 ITR 305 WHEREIN IT WAS HELD THAT : ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 8 THE OTHER RELEVANT MAXIM IS, LEX NON COGIT AD IMPOSSIBILIA THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. THE LAW ITSELF AND ITS ADMINISTRATION IS UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL APHORISMS, ALL INTENTION OF COMPELLING IMPOSSIBILITIES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEPTION IN THE CONSIDERATION OF PARTICULAR CASES. [SEE : U.P.S.R.T.C. VS. IMTIAZ HUSSAIN 2006 (1) SCC 380, SHAIKH SALIM HAJI ABDUL KHAYUMSAB VS. KUMAR & ORS. 2006 (1) SCC 46, MOHAMMOD GAZI VS. STATE OF M.P. & ORS. 2000 (4) SCC 342 AND GURSH ARAN SINGH VS. NEW DELHI MUNICIPAL COMMITTEE 1996 (2) SCC 459 ]. THUS IN VIEW OF ABOVE WE HOLD THAT THE REVENUE WOULD BE DISCHARGED FROM SUCH AN OBLIGATION AND HENCE CANNOT BE HOLD A DEFAULTER. 7.7 IN VIEW OF THE ABOVE, WE FIND THAT THE ASSESSEE HAS NOT FURNISHED THE BASIC DETAILS ABOUT THE PARTIES THEREFORE WE HOLD THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. IN HOLDING SO, WE ALSO DRAW THE SUPPORT AND GUIDANCE FROM THE JUDGMENT OF H ON BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. AGRAWAL REFIGRATION REPORTED IN 35 TAXMANN.COM 436 WHEREIN IT WAS HELD AS UNDER: IN OUR CONSIDERED OPINION IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION GIVEN BY THE ASSESSEE FOR NOT INCORPORATING THE PAYMENT OF RS.37,000/ - MADE BY BANK DRAFT IN THE REGULA R BOOKS OF ACCOUNT, NECESSARY INFERENCE IS THAT HE HAS CONCEALED PARTICULARS OF HIS INCOME. THE AMOUNT HAVING BEEN ADDED UNDER SECTION 69A OF THE ACT NONETHELESS IS TO BE TREATED AS INCOME OF THE ASSESSEE AND THE BURDEN WAS UPON THE ASSESSEE TO PROVE THAT THERE WAS NO CONCEALMENT OF INCOME. THE TRIBUNAL WAS, THEREFORE, NOT JUSTIFIED IN DELETING THE PENALTY ONLY ON THE GROUND THAT THE ADDITION WAS MADE UNDER SECTION 69A OF THE ACT WHICH IS A DEEMING PROVISION. 7.8 REGARDING THE CONTENTION OF THE LEARNED AR FOR THE ASSESSEE THAT THERE WAS NO SPECIFIC CHARGE LEVIED BY THE AO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULAR OF INCOME , I N THIS REGARD WE NOTE THAT THE AO HAS MENTIONED THE SPECIFIC CHARGE IN THE PENALTY ORDER BY STATING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDINGLY WE HOLD THAT, THE ASSESSEE CANNOT GET THE BENEFIT OF IMMUNITY FROM THE PENALTY MERELY THERE WAS NO SPECIFIC CHARGE IN THE PENALTY NOTICE ISSUED UNDER SECTION 274 OF THE ACT OR IN THE ASSESSMENT ORDER. WE, IN THIS REGARD, DRAW SUPPORT AND GUIDANCE FROM THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT ITA NO.296/RJT/2017 ASSTT. YEAR 2006 - 07 9 IN THE CASE OF SNITA TRANSPORT PVT. LTD. VS. ASSISTANT COMMISSI ONER OF INCOME TAX REPORTED IN 42 TAXMANN.COM 54 WHEREIN IT WAS HELD THAT PENALTY CANNOT BE IMPOSED WITHOUT MENTIONING THE SPECIFIC CHARGE. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW: 9. REGARDING THE CONTENTION THAT THE ASSESSING OFFICER WAS AMBIVALENT REGARDING UNDER WHICH HEAD THE PENALTY WAS BEING IMPOSED NAMELY FOR CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS, WE MAY RECORD THAT THOUGH IN THE ASSESSMENT ORDER THE ASSESSING OFFICER DID ORDER INITIATION OF PENALT Y ON BOTH COUNTS, IN THE ULTIMATE ORDER OF PENALTY THAT HE PASSED, HE CLEARLY HELD THAT LEVY OF PENALTY IS SUSTAINED IN VIEW OF THE FACT THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF INCOME. THUS INSOFAR AS FINAL ORDER OF PENALTY WAS CONCERNED, THE AS SESSING OFFICER WAS CLEAR AND PENALTY WAS IMPOSED FOR CONCEALING PARTICULARS OF INCOME. IN LIGHT OF THIS, WE MAY PERUSE THE DECISION OF THIS COURT IN CASE OF MANU ENGINEERING WORKS ( SUPRA ). IN THE SAID DECISION, THE DIVISION BENCH CAME TO THE CONCLUSION TH AT LANGUAGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOTICE FOR PENALTY, BUT IT WAS INCUMBENT UPON THE ASSESSING AUTHORITY TO COME TO A POSITIVE FINDING AS TO WHETHER THERE WAS CONCEALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF SU CH INCOME HAD BEEN FURNISHED BY THEM. IF NO SUCH CLEAR CUT FINDING IS REACHED BY THE AUTHORITY , PENALTY CANNOT BE LEVIED . IT WAS A CASE IN WHICH IN FINAL CONCLUSION THE AUTHORITY HAD RECORDED THAT 'I AM OF THE OPINION THAT IT WILL HAVE TO BE SAID THAT THE ASSESSEE HAD CONCEALED ITS INCOME AND/OR THAT IT HAD FURNISHED INACCURATE PARTICULARS OF SUCH INCOME.' IT WAS IN THIS RESPECT THE BENCH OBSERVED THAT 'NOW THE LANGUAGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOTICE AS TO PENALTY ORDER OR FRAMING OF CHARGE I N A CRIMINAL CASE OR A QUASI - CRIMINAL CASE, BUT IT WAS INCUMBENT UPON THE IAC TO COME TO A POSITIVE FINDING AS TO WHETHER THERE WAS CONCEALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF SUCH INCOME HAD BEEN FURNISHED BY THE ASSESSE E. NO SUCH CLEAR CUT FINDING WAS REACHED BY THE IAC AND, ON THAT GROUND ALONE, THE ORDER OF PENALTY PASSED BY THE IAC WAS LIABLE TO BE STRUCK DOWN.' 7.9 THUS THE PENALTY IN THE PRESENT CASE WAS CORRECTLY LEVIED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED B Y THE LEARNED. HENCE, W E DO NOT FIND ANY REASON TO INTERFERE IN THE FINDING OF THE LEARNED CIT (A). ACCORDINGLY, THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 23 /01 / 2020 AT AHMEDABAD. - SD - - SD - (RAJPAL YADAV ) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 23 / 01/2020 MANISH