Shri Zafarulla I.Malek, Anand V. THE Dy.CIT.,Kheda Range, Nadiad

ITA 2994/AHD/2011

• Counselvise Citation: 299420514 RSA 2011
• Duration Of Justice: 3 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: A L THAKKAR
• Keywords: Income from undisclosed sources; Wrong claim
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI G. D. AGRAWAL , VICE PRESIDENT AND SHR I S. S. GODARA , JUDICIAL MEMBER ZAFARULLA I. MALEK, PROP: NEELAM TRANSPORT, C/O. TRAMBAKESHWAR QUARRY WORKS, STATE HIGH WAY, SEVALIA, TA: THASARA. 388245 PAN: ACNPM0803E (APPELLANT) VS DEPUTY COMMISSIONER OF INCOME TAX, KHEDA CIRCLE, NADIAD (RESPON DENT) ASSESSEE BY: SHRI A. L. THAKKAR , A.R. REVENUE BY : S H RI DINESH SINGH , SR. D . R. DATE OF HEARING : 13 - 08 - 2 015 DATE OF PRONOUNCEMENT : 26 - 08 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2005 - 06 , AR ISES FROM ORDER OF THE CIT(A) - IV, BARODA DATED 14 - 09 - 2011 IN APPEAL NO. CAB/IV - N - I T A NO . 2994 / A HD/20 11 A SSESSMENT YEAR 200 5 - 06 I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 2 38/10 - 11 , IN PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE S S O LE SUBSTANTIVE GROUND CHALLENGES LOWER APPELLATE ORDER AFFIRMI NG THE ASSESSING OFFICER S ACTION IMPOSING THE IMPUGNED SEC. 271(1)(C) PENALTY OF R S. 8,63,500/ - . HE IS ENGAGED IN THE BUSINESS(ES) OF TRANSPORT , CONSTR UCTION, PETROLEUM PRODUCT S AND ALSO DERIVES AGRICULTURAL INCOME. THE TRANSPORT BUSINESS IS BEING RUN IN T HE NAME & STYLE OF M/S. NEELAM TRANSPORT. THIS WHOLE EPISODE HAS ARISEN FROM A ROBBERY INCIDE NT DATED 31/03/2005 INVOLVING A SUM OF RS. 20 LACS FROM ASSESSEE/HIS REPRESENTATIVE. THE SAME W A S TO BE DEPOSITED TO A SHROFF NAMELY ; KIRITKUMAR CHAMPA KLAL GASHAWALA AT UMR E TH, DISSTT. ANAND. A COMPLAINT WAS LODGED. THE POLICE RECOVERED THE SAID AMOUNT AND INFORMED THE DEPTT; WHO IN TURN CARRIED OUT A SURVEY DATED 01/04/2005 AT ASSESSEE S BUSINESS PREMISES. HE INTER ALIAS DISCLOSED ADDITIONAL INCOME OF RS. 50 LACS IN TRANSPORT BUSINESS (INCLUDING THE ROBBED/RECOVERED SUM OF RS. 20 LACS). THE AS SESSE E FILED RETURN INCORPORATING TO UNDISCLOSED INCOME FOR RS. 30 LACS ONLY IN PROFIT AND LOSS ACCOUNT. HE JUSTIFIED EXCLUSION OF THE BALANCE RS. 20 LACS SUM . THE SAME WAS STATED TO BE PART OF A WITHDRAWAL AMOUNTING TO RS. 24 LACS FROM HIS BANK ACCOUNT ON 24/03/2005 AND ROBBED THEREAFTER. THE ASSESSING OFFICER FRA MED A REGULAR ASSESSMENT ON 28/12/2007 INTER ALIA PLACING A HEAVY RELIANCE O N ASSESSEE S SURVEY STATEMENT AND ADDED THIS REMAINING SUM FOR RS . 20 LACS U/S. 69A OF THE ACT. HE ALSO INITIATED SEC. 271(1) (C) PENALTY PROCEEDINGS ALLEGING CONCEALMENT AND FURNI SHING OF I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 3 INACCURATE PARTICULARS OF INCOME. THE CIT(A) AFFIRMED THE SAID ADDITION IN ORDER DATED 11 - 05 - 2009. THE ASSESSEE FILED ITA 2120/AHD/2009 BEFORE THE TRIBUNAL. A CO - ORDINATE BENCH IN ITS ORDER DATED 21/09/2012 UPHELD ADDITION IN QUESTION OF RS. 20 LACS AS UNDER: - 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT A SURVEY U/S 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF ASSESSEE ON 01.04.2005 DURING WHICH ADDITIONAL INCOME OF RS.50/ - LACS WAS DISCLOSED BY T HE ASSESSEE WHICH INCLUDED A SUM OF RS.20/ - LACS ROBBED FROM THE EMPLOYEE OF THE ASSESSEE ON 31.3.2005 WHEN HE WAS GOING TO DEPOSIT THIS AMOUNT TO THE ACCOUNT OF SOME SHROFF AT UMRETH. THE ASSESSEE'S EXPLANATION THAT CASH OF RS.20/ - LACS ROBBED FROM HIS EMPLOYEE WAS OUT OF WITHDRAWAL OF RS.24/ - LACS FROM BANK ACCOUNT OF M/S NEELAM CONSTRUCTION ON 25.3.2005 WAS NOT ACCEPTED BY THE A.O. ON THE GROUND THAT WHEN HIS STATEMENT WAS RECORDED DURING THE SURVEY PROCEEDINGS, HE ADMITTED THAT THIS AMOUNT WAS OUT OF HIS UNACCOUNTED INCOME. THE OTHER GROUND FOR NOT ACCEPTING THE ASSESSEE'S EXPLANATION WAS THAT IN THE BOOKS OF ACCOUNT IMPOUNDED AT THE TIME OF SURVEY THERE WAS NO ACCOUNT OF SHROFF AT URNRETH. ASSESSEE HOWEVER, DURING THE APPELLATE PROCEEDI NGS WAS ABLE TO SHOW THAT SHROFF WAS ASSESSEE'S CREDITOR AND THE TOTAL BORROWINGS DURING THE YEAR WAS RS.82,83,279/ - AND THE ASSESSEE'S EMPLOYEE WAS GOING TO DEPOSIT THE SUM OF RS.20/ - LACS IN THE ACCOUNT OF - SHROFF AT UMRETH. THIS SUBMISSION OF THE ASSESSEE WAS NOT ACCEPTABLE TO THE ID. CIT(A) AS HE WAS ALSO OF THE VIEW THAT ALL THESE EXPLANATION ARE AFTERTHOUGHT AS AT THE TI ME OF SURVEY THE ASSESSEE HAD ACCEPTED THAT THE AMOUNT ROBBED ON 31.3.20 05 WAS OUT OF ASSESSEE' UNACCOUNTED INCOME AND THE ASSESSEE COULD NOT ESTABLISH THAT THIS AMOUNT WAS OUT OF AN AMOUNT OF RS.24/ - LACS WITHDRAWN ON 25.3.2005. WE ARE INCLINED TO AGREE WITH THIS VIEW OF ID. CIT(A) ON ACCOUNT OF TWO REASONS: (1) IF ASSESSEE WAS TO PAY ANY SUM TO MR. SHROFF, HE COULD HAVE PAID THE SAME THROUGH CHEQUE AS BOTH THE PARTIES WERE HAVING THEIR BANK ACCOUNTS AND THERE WAS NO NEED TO WITHDRAW ANY SUM IN CASH AND THEN DEPOSIT THE SAME TO THE ACCOUNT OF MR. SHROFF. (2 ) IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED THAT THIS AMOUNT OF RS.20/ - LACS WAS OUT OF RS.24/ - LACS I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 4 WITHDRAWN FROM THE BANK ON 25.3.2005, THE REMAINING AMOUNT OF RS.4/ - LACS OR PART OF IT SHOULD HAVE BEEN FOUND AT THE TIME OF SURVEY ON 01.04.2005 WHIC H WAS NOT FOUND AS NO CASH WAS FOUND DURING THE SURVEY. WE FURTHER FIND THAT THE CASE LAWS RELIED BY THE ASSESSEE AR E DISTINGUISHABLE IN FACT. IN THOSE CASES THE AMOUNT DISCLOSED AT THE TIME OF SURVEY WAS NOT SHOWN IN THE RETURN FILED BY T HE ASSESSEE ON THE BASIS OF CONCRETE EVIDENCE TO SHOW THAT ASSESSEE WAS WRONG IN DISCLOSING THE SAME AT THE TIME OF SURVEY. IN THE INSTANT CASE THE ASSESSEE HAS FAILED TO GIVE ANY COGENT EVIDENCE IN SUPPORT OF HIS CO NTENTION THAT A SUM OF RS.20/ - LACS RO BBED ON 31.3.2005 WAS ACTUALLY OUT OF MONEY WITHDRAWN FROM THE BANK ON 25.3.2005. THEREFORE, THE RATIO AS LAID DOWN IN THOSE CASE LAWS IS NOT APPLIC ABLE TO THE FACTS OF THIS CASE. 3. THE ASSESSEE DOES NOT SEEM TO HAVE EXERCISED HIS FURTHER REMEDIES CHA LLENGING THE ABOVE EXTRACTED FINDINGS. WE INFER IN THESE CIRCUMSTANCES THAT QUANTUM PROCEEDINGS ACCORDINGLY ATTAINED FINALITY. 4. T HE ASSESSING OFFICER TOOK UP PENALTY PROCEEDINGS. HE QUOTED CHRONOLOGY OF ROBBERY, SURVEY AND ASSESSEE S STATEMENT FOR C OMING TO A CONCLUSION THAT HIS CASE ATTRACTED BOTH COMPONENTS OF SECTION. 271(1)(C) PENALTY I.E. CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME FOR IMPOSING THE IMPUGNED SECTION 271(1) PENALTY OF RS. 8,63,500/ - ARISING FROM THE ABVOESTATED UNEXPLAINED CASH ADDITION OF RS. 20 LACS IN ORDER DATED 25 - 03 - 2010. 5. THE COMMISSIONER OF INCOME TAX(A) HAS AFFIRMED T HE ASSESSING OFFICER S ACTION IMPOSING PENALTY IN QUESTION AS FOLLOWS: - 8. WITH REGARD TO LEVY OF PENALTY U /S 271(1) ( C) ON ADDIT ION OF RS. 20,00,000/ - AS MADE BY THE A.O. U/S 69A OF THE IT ACT, THE ABOVE SUBMISSION OF THE APPELLANT IS NOT FOUND TO BE TENABLE. THE ENTIRE I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 5 FACTS CLEARLY PROVE THAT THE APPELLANT HAD NOT FILED CORRECT PARTICULARS OF INCOME IN RESPECT OF SUCH AMOUNT OF R S 20,00,000/ - BEFORE THE A.O. DURING THE COURSE OF APPELLATE PROCEEDING. THIS IS ALSO EVIDENT FROM THE FACT THAT THE LD. CIT (A) IV, H AS CONFIRMED THIS ADDITION OF RS. 20,00,000/ - AS MADE BY THE A.O. U/S 69A OF THE IT ACT. IN THIS REGARD, IT WOULD BE VERY R ELEVANT TO REPRODUCED THE ABOVE ORDER OF CIT(A) IV, BARODA HERE UNDER: 'I HAVE CONSIDERED THE SUBMISSIONS. THE ASSESSING OFFICER MADE THE ADDITION BY NOT ACCEPTING APPELLANT'S CLAIM DURING THE ASSESSMENT PROCEEDINGS THAT THE CASH OF RS. 20,00,000/ - ROBBED FROM HIS EMPLOYEE WAS O UT OF WITHDRAWAL OF RS.24,00,000 / - FROM BANK BY M/S. NEELAM CONSTRUCTION ON 25.3.2005. THE ASSESSING OFFICER OBSERVED THAT NO SUCH PLEA WAS TAKEN AT THE TIME OF SURVEY. THE ASSESSING OFFICER RELIED UPON THE STATEMENT U/S.133A OF THE APPELLANT ACCEPTING THE CASH OF RS. 20,00,000/ - ROBBED FROM HIS EMPLOYEE TO BE OUT OF HIS UNACCOUNTED INCOME. APPELLANT'S CONTENTION IS THAT IN THE SECOND STATEMENT RECORDED AT THE TIME OF SURVEY, IT HAD BEEN MENTIONED THAT CASH WAS WITHDRAWN ON 25.3.2005 FROM BANK OF BARODA. THOUGH IT IS CORRECT THAT APPELLANT HAD BEEN QUESTIO NED ABOUT CASH WITHDRAWAL OF RS. 20,00,000 / - FROM BANK OF BARODA ON 25.3.2005 IN THE STATEMENT U/S.133A, HOWEVER, IN HIS REPLY, THE APPELLANT HAD NOT CLAIMED THE ROBBED CASH TO BE OUT OF CASH WITHDRAWN FROM THE BANK. ON THE CONTRARY, WHILE IN Q.NO.6 OF THE STATEMENT U/S.133A, WITHDRAWAL FROM THE BANK WAS ASKED ABOUT, IMMEDIATELY THEREAFTER IN REPLY TO Q.NO.7, APPELLANT ADMITTED THE ROBBED CASH TO BE HIS UNACCOUNTED INCOME. THERE WAS NO REASON FOR THE APPELLANT TO HAVE NOT MENTIONED THE VITAL FACT REGARDING THE STOLEN CASH TO BE OUT OF CASH WITHDRAWN FROM THE BANK. IN THE OTHER STATEMENT U/S.133A, IN ANSWER TO Q.NO.35, APPELLANT AGAIN ACCEPTED THE ROBBED CASH TO BE REPRESENTING HIS UNACC OU NTED INCOME. IN THIS SITUATION, CLAIMING THE ROBBED CASH TO BE OUT OF CASH WITHDRAWN FROM THE BANK AT THE TIME OF ASSESSMENT PROCEEDINGS IS NOT ACCEPTABLE. ASSESSING OFFICER'S OBSERVATION THAT THERE WAS NO ACCOUNT OF SHROFF AT UMRETH IN APPELLANT'S BOOKS OF ACCOUNTS TO WHOM THE CASH WAS CLAIMED TO BE TAKEN FOR PAYMENT AND APPELLANT'S CONTENTION THAT THERE WAS INDEED AN ACCOUNT OF THE UMRETH SHROFF IN HIS BOOKS, IS COMPLETELY IRRELEVANT FOR DECIDING WHETHER THE CASH ROBBED FROM APPELLANT'S EMPLOYEE WAS UNA CCOUNTED OR NOT AT THE TIME OF STATEMENT U/S. 133A ITSELF, APPELLANT HAD SUBMITTED THAT THE CASH WAS BEING TAKEN FOR PAYMENT TO SHRI KIRITKUMAR CHAMPAKLAL GABHAWALA. THIS ONLY INDICATES THE DESTINATION OF THE CASH AND HAS I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 6 NO BEARING ON ITS SOURCE. THE APPE LLANT COULD NOT EXPLAIN SOURCE OF THE CASH IN HIS POSSESSION, WHICH WAS ROBBED AND ADMITTED IT TO BE REPRESENTING HIS UNACCOUNTED INCOME. ON TOTALITY OF FACTS AND CIRCUMSTANCES, THE CONTENTION REGARDING ROBBED CASH BEING OUT OF WITHDRAWAL FROM THE BANK SIX DAYS BACK, IS NOT ACCEPTABLE DUE TO APPELLANT NOT MAKING SUCH A SUBMISSION AT THE TIME OF SURVEY THOUGH THE FACT ABOUT CASH WITHDRAWAL FROM THE BANK WAS VERY MUCH IN HIS KNOWLEDGE. ADDITION OF RS. 20,00,000/ - IS CONFIRMED.' 9. FROM THE ABOVE ORDER OF L D. CIT(A) - IV, BARODA, AS WELL AS ALSO FROM THE FACTS ON RECORD, IT CAN BE SEEN THAT THE APPELLANT DURING THE COURSE OF SURVEY PROCEEDING VERY WELL AD MITTED THAT THE ABOVE CASH OF RS. 20,00,000/ - ROBBED FROM HIS EMPLOYED WAS OUT OF UNACCOUNTED INCOME. THE APPELLANT IN HIS STATEMENT U/S 133A HAD NOT CLAIMED THAT THE ROBBED CASH WAS OUT OF CASH WITHDRAWN FROM THE BANK. ON THE CONTRARY WHILE IN QUESTION NO. 6 OF THE STATEMENT U/S 133A , WITHDRAWAL FROM THE BANK WAS ASKED ABOUT , IMMEDIATELY THEREAFTER IN REPLY TO QUESTION NO. 7, THE APPELLANT ADMITTED THE ROBBED CASH TO BE HIS UNACCOUNTED INCOME. IT IS RIGHTLY OBSERVED BY THE LD. CIT(A) THAT THERE WAS NO REASON FOR THE APPELLANT TO HAVE NOT MENTIONED THE VITAL FACT REGARDING THE STOLEN CASH TO B E OUT OF CASH WI THDRAWN FROM THE BANK. IN THE OTHER STATEMENT U/S 133A IN ANSWER TO QUESTION NO. 35, APPELLANT AGAIN ACCEPTED THE ROBBED CASH TO BE REPRESENTING HIS UNACCOUNTED INCOME. IN THIS SITUATION, CL AIMING THE ROBBED CASH TO BE OUT OF CA SH WITHDRAWN FROM THE BANK AT THE TIME OF ASSESS MENT PROCEEDING WAS NOT ACCEPTABLE AS THE APPELLANT HAD MADE WRONG CLAIM. THIS FACT CLEARLY GOES TO PROVE THAT THE APPELLANT HAD MADE FALSE CLAIM BY CHANGING HIS VERSION BEFORE THE A.O. D URING THE COURSE OF ASSESSMENT PROCEEDINGS AND SUCH FALSE CLAIM CLEARLY AMOUNT TO FILING OF INAC CURATE PARTICULARS OF INCOME. THUS THE PROVISIONS OF SECTION 271(1)(C) OF THE IT ACT ARE CLEARLY ATTRACTED IN THE CASE OF APPELL ANT SO FAR AS THE ADDITION OF RS. 20,00,000/ - AS MADE BY THE A.O. U/S 69A OF THE IT ACT IS CONCERNED. 10. CONSIDERING ALL THESE FACTS, I HOLD THAT THE A.O. HAS CORRECTLY LEVIED THE PENALTY U/S 271(L) (C) OF THE ACT ON ADDITION OF RS. 20,00,000 / - AS MADE U/S 69A OF THE IT ACT AND THERE FORE THE SAME IS CONFIRMED. I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 7 4. THE ASSESSEE REFERS TO HIS SURVEY STATEMENT INDICATING THAT PENCIL ENTRY OF CASH WITHDRAWA L FROM BANK OF RS. 20 LACS NOT BEING RECORDED IN CASH BOOK OF M/S. NEELAM CONSTRUCTIONS, CASH PAYMENT OF RS . 20 LACS TO BE MADE TO I TS SHROFF ( SUPRA) NOT POSTED IN ANY LEDGER AND ROBBED SUM NOT RECORDED IN BOOKS OF ANY OF HIS CONCERNS. HE DRAWS OUR ATTENTION TO PAGE 13 OF THE PAPER BOOK COMPRISING OF RELEVANT BAN K STATEMENT D EMONSTRATING A SUM OF RS. 24 LACS TO HAVE BEEN WITHDRAWN ON 24/03/2008. IT IS ARGUED THAT DIVERSION OF HIS SUM TO ANY OTHER HEAD HAS NOWHERE BEEN PROVED. THE ASSESSEE CONTENDS THAT THE TRIBUNAL S ORDER CONFIRMING THE I MPUGNED ADDITION IN QUESTION WAS BASED ON ASSUMPTION S AND PRESUMPTION S ONLY. CASE LAW OF (201 3) 3521 ISTR 480 (SC) CI TAX VS. KHA DER KHAN & SONS , (2001) 249 ITR 125 (GUJ) N ATIONAL TEXTILES VS. CIT AND (2010) 322 ITR 158 (SC) CIT VS. RELIANCE PETRO - PRODUCTS PVT. LTD IS QUOTED IN SUPPORT. THE R EVENUE STRONGLY ARGUES IN FAVOUR OF THE IMPUGNED PENALT Y AS PER ASSESSEE S SURVEY STATEMENT AND ASSAIL BOOKS ENTRIES ALREADY PROVED FALSE IN QUANTUM PROCEEDINGS. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH CASE RECORD. THERE IS NO DISPUTE THAT ASSESSEE WITHDRAW A SUM OF RS. 24 LACS ON 24 - 03 - 2005. TH IS WAS FOLLOWED BY THE ROBBERY OF RS. 20 LACS AS ON 31/03/2005. THE IMPUGNED SURVEY WAS CONDUCTED ON 01/04/2005 WHEREIN THE ASSESSEE FAILED TO EXPLAIN HIS PENCIL ENTRIES AND ALSO THE SOURCE OF THE SUM ROBBED. THIS HAS CULMINATED IN THE CORRESPONDING QUAN TUM ADDITION OF RS. 20 LACS WHICH HAS ATTA INED FINALITY. HOWEVER THE FAC T ALSO REMAINS THAT TIME PERIOD BETWEEN THE BANK WITHDRAWAL I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 8 AND ROBB ERY (SUPRA) IS OF A WEEK ONLY. THIS IS NOT THE LOWER AUTHORITIES CASE THAT THE ABOVE - S T AT E D WITHDRAWN SUM STOO D APPROPRIATED ANYWHERE ELSE. THIS IS NOT THE REVENUE S CASE THAT ASSESSEE S SURVEY STA TEMENT IS BEING SUPPORTED BY ANY CORROBORATIVE EVIDENCE. C ASE LAW OF KH ADER KHAN AND SONS (SUPRA ) IS QUOTED IN SUPPORT. THE HON BLE APEX COURT IN R ELIANCE PETRO - PRODU CTS CASE (SU P R A) HOLDS THAT QUANTUM AND PENALTY PROCEEDINGS STAND ON DIFFERENT FOOTINGS . A ND EACH AND EVERY DISALLOWANCE / ADDITION DOES NOT LEAD TO AUTOMATIC IMPOSITION OF SECTION 271(1) (C) PENALTY . WE NOTICE THAT FIRST OF ALL, THE AUTHORITIES BELOW DO NO T PRODUCE ANY MATERIAL MUCH LESS A CORROBORATING ONE TO SUPPORT THE IMPUGNED ADDITION OF RS . 20 LACS EXCEPT THAT OF SURVEY STATEMENT. THE CO - ORDINATE BENCH IN QUANTUM CASE PROCEEDS ON AN ASSUMPTION OF ABSENCE OF A BANKING CHANNEL AND NON - PRODUCTION OF THE BALANCE SUM OF RS. 4 LACS IN SURVEY. THE ASSESSEE S DULY AUDITED BOOKS ARE ALREADY ON RECORD. NO CASE OF DIVERSION OR ABOVE - STATED WITHDRAWN SUM IS BEING MADE OUT IN THE COURSE OF ARGUMENTS. CA SE FILE PAGE 23 & PAGE 39 DEMONSTRATE THE VERY SHROFF TO BE AN UNSECURED LOAN CREDITOR FOR RS. 27,19,423/ - FORMING PA R T OF BALANCE SHEET. WE IN F ER IN THESE FACTS THAT ALTHOUGH ASSESSEE S PLEA WAS DECLINED IN QUANTUM, THE SAME IS A REASONABLE EXPLANATION IN THE INSTANT PENALTY PRO CEEDINGS FOR WANT OF ANY FURTHER EVIDENCE TO THE CONTRARY. WE CONCLUDE IN THESE FACTS THAT THE ASSESSEE HAS SUCCESSFULLY EXPLAINED SOURCE OF THE ROBBED SUM OF RS. 20 LACS TO HIS BANK WITHDRAWAL OF RS. 24 LACS. HIS ARGUMENT S ARE ACCORDINGLY ACCEPTED. THE IMPUGNED PENALTY IS DELETED. I.T.A NO.2994 /AHD/20 11 A.Y. 2005 - 06 PAGE NO ZAFARULLA I. MALEK VS. DCIT 9 6 . THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 26 - 08 - 2015 SD/ - SD/ - ( G.D. AGRAWAL ) ( S. S. GODARA ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD : DATED 26 /08 /20 15 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,