Jasbir Singh Saini, V. Income Tax Officer Ward-1, Kurukshetra

ITA 349/CHANDI/2015

• Counselvise Citation: 34921514 RSA 2015
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 09-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SIDHU
• Assessee Lawyers: ASHOK GOYAL SH SUDHIR SAHGAL
• Section: 147; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH SMC CHANDIGARH BEFORE SHRI H.L.KARWA, HON,BLE VICE PRESIDENT ITA NO.349/CHD/2015 (ASSESSMENT YEAR : 2005-06 ) JASBIR SINGH SAINI VS. INCOME TAX OFFICER, S/O. SH. DHARAM PAL, WARD-1, KURUKSHETRA. RES. OF VILLAGE SAINSA, P.O URNAI, TEHSIL, PEHOWA, DISTRICT- KURUKSHETRA. PAN: ARFPS2652C (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ASHOK GOYAL, SH. SUDHIR SAHGAL RESPONDENT BY : SH. D.S. SIDHU, DR DATE OF HEARING : 29.07.2015 DATE OF PRONOUNCEMENT :31.07.2015 O R D E R PER SHRI H.L.KARWA, (VP) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), KARNAL DATED 06.03.2014, CONFIRMING THE PENALTY AMOUNT ING TO RS.27,860/- LEVIED BY A.O UNDER SECTION 271(1) (C) OF THE ACT. FOR THE A.Y.2005-06. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME UNDER THE HEADS SALARY AND INCOME FROM THE OTHER SOURCES. THE RETURN OF INCOME DECLARING INCOME OF RS.75,342 /- WAS FILED ON 21 ST JULY, 2005. AN INFORMATION WAS RECEIVED FROM THE ITO, WAR D-3, YAMUNANAGAR VIDE HIS OFFICE LETTER NO.2761 DATED 7 TH DECEMBER, 2007 THAT THE ASSESSEE HAD GIVEN A LOAN OF RS.4 LACS TO BAJR ANG BALI RICE MILLS DHOLARA, RADAUR IN THE FINANCIAL YEAR 2004-05, THROUGH DD OF RS.1.25 LACS ON 3 RD JUNE 2004 AND RS.2.75 LAKHS ON 14 TH JUNE, 2004. ON THE BASIS OF THIS, THE A.O. AFTER RECORDING THE REASONS, REOPEN ED THE 2 ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT BY ISSUING NOTICE U/S 148, DATED 30.07.2008. THE A.O ON THE BASIS THAT THE INFORMATION OF GIVING LOAN WAS NOT VERIFIABLE FROM THE INCOME, FORMED A BELIEF THAT DUE TO OMISSION ON THE PART OF THE ASSESSEE, INCOME OF RS.4 LACS H AD ESCAPED ASSESSMENT. ON THE REQUEST OF THE ASSESSEE HE PROVIDED HIM THE COPY OF REASONS RECORDED. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE PLEA OF THE ASSESSEE WAS THAT HE HAD GIVEN LOAN/DEPOSIT THRO UGH D.D TO BAJRANG BALI RICE MILLS OUT OF HIS CAPITAL OF RS. 4,52,894/- AS ON 31 ST MARCH, 2005. THE A.O NOTICED THAT THE ASSESSEE HAD MA DE CASH DEPOSITS IN BANK ACCOUNT NO.183 WITH ORIENTAL BANK OF COMMERCE, PEH OWA BRANCH AS UNDER: 31.05.2004 RS. 1,50,000/- 05.06.2004 RS. 1,89,000/- RS. 3,39,000/- THE STATEMENT OF ASSESSEE WAS RECORDED ON 26.10.2009 BY THE A.O IN WHICH HE STATED THAT THE ABOVE SAID AMOUNTS WERE RE CEIVED FROM HIS FATHER IN CASH. THE ASSESSEE FAILED TO FILE ANY DOCUMENTAR Y EVIDENCE IN THIS REGARD AND THE AO TREATED THE DEPOSITS OF RS.3,39,0 00/- AS UNEXPLAINED UNDER SECTION 69 OF THE ACT AND INCLUDED THE SAME AS INCOME IN THE HANDS OF THE ASSESSEE. THE ADDITION WAS CON FIRMED BY THE CIT(A), HOLDING THAT THE ASSESSEE HAS NOT EXPLAINED THE S OURCES OF THESE DEPOSITS IN THE BANK. THE ASSESSEE CARRIED THE MATTER B EFORE THE ITAT. THE ITAT ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXT ENT OF RS.2,30,000, HOLDING THAT THE DEPOSIT IN THE BANK WAS OUT OF WITHDRAW AL OF RS.2,00,000/-ON 10 TH MARCH, 2004 AND RS. 30,000/- ON 24 TH MARCH, 2004 AND BALANCE ADDITION OF RS. 1,09,000/- WAS UPHELD AS U NEXPLAINED, IN ITA NO.153/CHD/2011 DATED 31 ST MAY, 2011. THOUGH THE ADDITION CONFIRMED WAS RS.1,09,000/-, IT WAS WRONGLY MENTIONED AS RS.1,39,000/- IN THIS ORDER WHICH WAS SUBSEQUENTLY MODIFIED IN THE ORDER OF ITAT DATED 26 TH SEPTEMBER, 2011 IN ITA NO.153/CHD/2011. 3. THE PENALTY PROCEEDINGS U/S. 271(1)(C) WERE INITIATED BY ISSUING THE NOTICE MENTIONING THE ADDITION SUSTAINED BY ITAT AS 1,39,0 00/- IN PLACE 3 OF 1,09,000/-. REPLY TO THE SAID NOTICE WAS FILED BY THE AS SESSEE ON 12 TH MARCH, 2013, WHEREBY, IT WAS CLARIFIED THAT IN THE PENALTY PR OCEEDINGS, THE CONFIRMED ADDITION HAS BEEN MENTIONED AS 1,39,000/- WH ILE THE RIGHT AMOUNT IS 1,09,000/- WHICH ALSO STANDS DULY CORRECTED BY THE ITAT. THE A.O. IN PENALTY ORDER HELD THAT NO EXPLANATION WHATSOEVER HAS BEEN OFFERED IN RESPECT OF THE AMOUNT OF RS.1,09,000/- HELD AS UNEXPLAINED DEPOSITS BY THE ITAT OUT OF TOTAL DEPOSITS IN BANK ACC OUNT NO. 183 WITH OBC . THE A.O HELD THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS AND HAS NOT BEEN ABLE TO SUBSTANTIATE ITS CLA IM OF INCOME RETURNED, HENCE, PENALTY UNDER SECTION 271(1) (C ) AMOUNTIN G TO RS. 27,860/- BEING 100% OF THE TAX SOUGHT TO BE EVADED ON AN INCOME OF RS.1,09,000/- WAS LEVIED. 4. THE ASSESSEE WENT INTO APPEAL BEFORE THE CIT(A) AGAINST THE ORDER OF THE A.O LEVYING PENALTY UNDER SECTION 271(1) ( C). BEFORE THE CIT(A), THE ASSESSEE EXPLAINED THAT HE HAD DEPOSITED THE CAS H OF RS.3,39,000/- IN TWO INSTALLMENTS AND ISSUED THE DD OF RS.2,75,000/- AND RS.1,25,000/- OUT OF HIS CAPITAL ON WHICH HE HAD PAID THE IN COME TAX AND HE HAD ALSO GIVEN STATEMENT TO THE AO THAT THE A BOVE CASH WAS DEPOSITED FROM HIS PREVIOUS AND PAST SAVINGS. IT WAS ALSO CONTENDED THAT THE A.O DID NOT BRING ANY MATERIAL ON RECORD AGAINST HIM & ULTIMATELY HE HAS GOT RELIEF OF RS.2,30,000/- (AROUND 70%) FROM ITAT. IT WA S FURTHER CONTENDED THAT HE HAS NEITHER CONCEALED ANY INCOME NO R FURNISHED INACCURATE PARTICULARS OF INCOME. IT WAS THE ONUS OF THE A.O TO PROVE OTHERWISE BY BRINGING SOME ADVERSE MATERIAL AGAINST THE A SSESSEE ON RECORD. IT WAS ALSO SUBMITTED THAT A.O HAD MADE THE A DDITION IN A MECHANICAL MANNER. MENSREA & MALAFIDE INTENTION BOTH BEING THE ESSENTIAL INGREDIENTS AND THE INITIAL BURDEN OF DISCHARGING T HE ONUS BEING ON THE REVENUE FOR PROOF THAT THE ASSESSEE HAS C ONCEALED HIS INCOME OR FURNISHED INACCURATE PARTICULARS DELIBERATELY, THE PENALTY IS NOT LEVIABLE. IN VIEW OF THIS IT WAS PRAYED BEFORE THE CIT(A) TO DELETE THE PENALTY. 4 5. REJECTING THIS CONTENTION OF THE ASSESSEE CIT (A) CONFIRMED THE PENALTY AMOUNTING TO RS.27,860/- LEVIED BY THE A.O. U/S 271(1)(C). 6. DURING THE COURSE OF HEARING BEFORE ME, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE AO WHILE LEVYING PENALTY HAS NOT BROUGHT ANY MATERIAL ON RECORD AND HAS ONLY RELIED UPON THE CO NFIRMATION OF PART OF ADDITION OF RS.1,09,000/- BY THE ITAT AND THIS ALONE IS NO T SUFFICIENT TO UPHOLD THE LEVY OF PENALTY. AS PER THE AR THE ASSESSE E HAS CONTENDED THAT HE HAS TENDERED THE EXPLANATION WHICH IS NOT FOUND TO BE FALSE AND THEREFORE, PENALTY CANNOT BE LEVIED. FURTHER, IT WAS ARGUED THAT HONBLE BENCH OF THE ITAT AFTER CONSIDERING THE DETAILED SUBMISS IONS FILED BY THE ASSESSEE HAS GIVEN A FINDING IN PARA 8 TO 10 OF THE ORDER AND DELETED THE ADDITION TO THE EXTENT OF RS.2,30,00/- AND THE BALANCE AD DITION OF RS.1,09,000/- WAS CONFIRMED OUT OF TOTAL ADDITION OF RS.3,39,000/- IT WA S CONTENDED THAT THE EXPLANATION OF THE ASSESSEE THAT THE WITHDRA WALS HAVE BEEN MADE IN THE EARLIER YEARS HAD BEEN CONSIDERED BY T HE ITAT IN PARA- 9 OF THE ORDER, BUT THE BENEFIT OF THE SAME HAS NOT BEEN GIVEN BECAUSE ACCORDING TO THE HONBLE BENCH THEY MAY HAVE BEEN UTILIZ ED FOR HOUSE HOLD EXPENSES. IN VIEW OF THE SAME IT WAS SOUGHT THAT TH E PENALTY UNDER SECTION 271(1) (C ) MAY BE DELETED. 7. THE LEARNED DR DEFENDING THE ORDER OF THE CIT(A) SUBM ITTED THAT AFTER THE INSERTION OF THE EXPLANATION TO 271(1)(C), IN VIEW OF THE PROVISIONS OF SECTION 68 FOR TREATING UNEXPLAINED CASH CRED IT IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AS HIS INCOME, THE FURTHER QU ESTION OF PROVING BY THE REVENUE THAT THE ADDITION WAS INCOME OF THE ASSE SSEE FOR THE PURPOSES OF PENALTY, DOES NOT ARISE. 8. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD. THE UNDISPUTED FACTS OF THIS CASE ARE THAT THE A SSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.3,39,000/- IN HIS BANK ACCO UNT. HE GAVE HIS EXPLANATION FOR THE SAME AND OUT OF TOTAL ADDITION OF RS .3,39,000/-, HE WAS ABLE TO CONVINCE TO THE EXTENT OF RS.2,30,000/- T O THE AUTHORITIES UP TO THE LEVEL OF THE ITAT. THE ONLY ISSUE REMAINING BEFO RE ME IS WITH 5 REGARD TO THE PENALTY ON THE REMAINING AMOUNT OF RS.1,09,000/- ADDED IN THE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. BEFORE ANALYZING THE LEGALITY OF THE PENALTY SO LEVIED, ONE MUST UNDERSTAND A FEW FACTUAL ASPECTS OF THE PRESENT CASE. IT CAN BE SEEN FROM THE ORDER OF THE IT AT THAT THE ADDITION OF RS.1,09,000/- OUT OF TOTAL ADDITION OF RS.3,39,00 0/- HAS BEEN SUSTAINED ON AN APPRECIATION OF EXPLANATION AND EVIDE NCES SUBMITTED BY THE ASSESSEE. THE FINDING GIVEN BY THE ITAT AND THE REA SONS FOR THE SAME ARE CLEAR BY THE READING OF PARA 9 & 10 OF THE ORDER, WHICH READ AS UNDER: 9. NOW COMING TO THE FACTS OF THE PRESENT CASE, TH E ONUS WAS UPON THE ASSESSEE TO EXPLAIN THE AVAILABILITY OF CASH IN HIS HANDS WHICH IN TURN WAS UTILIZED FOR MAKING CASH DEPOSITS IN THE BANK A CCOUNT. THE ASSESSEE, ADMITTEDLY IS A SALARIED PERSON AND AS PER DETAILS TABULATED AT PAGE 4 OF THE APPELLATE ORDER, THE TOTAL INCOME OF THE ASSESS EE IN A.Y.2001-02 WAS RS.44,800/-, A.Y 2002-03 WAS RS.59,200/-, A.Y 2003- 04 WAS RS. 68,250/-, A.Y 2004-05 WAS RS.98,500/- AND IN A.Y 20 05-06 WAS RS.1,05,342/-. OUT OF THE SAID INCOME THE ASSESSEE HAD WITHDRAWN IN A.Y 2001-02 RS.22,500/-, IN A.Y2002-03 RS.25,000/-, IN A.Y RS.43,500/-, IN A.Y 2004-05 RS.32,500/- AND IN A.Y 2005-06 RS.36,400/-. THE ASSESSEE HAD CLAIMED CERTAIN BROUG HT FORWARD CASH IN HAND AND HENCE THE ASSESSEE HAD TABULATED THAT IN A .Y 2005-06, THE BROUGHT FORWARD FUNDS AVAILABLE WITH THE ASSESSEE W ERE RS.4,52,894/-. THE ASSESSEE HAD FAILED TO PRODUCE ANY RECORD TO SH OW THAT THE ASSESSEE HAD ACCUMULATED THE AFORESAID FUNDS AND SOURCE OF T HE SAID FUNDS. FROM THE PERUSAL OF THE DETAILS IT TRANSPIRES THAT IN A. Y.2001-02 OUT OF TOTAL INCOME OF RS.44,800, THE ASSESSEE HAD WITHDRAWAL A SUM OF RS.22,500 ONLY WHICH THE ASSESSEE CLAIMS WAS AVAILABLE WITH H IM AND HAS NOT BEEN UTILIZED FOR ANY PURPOSE. IN A.Y 2004-05 OUT OF RS. 98,500/- WITHDRAWAL OF RS.32,500/-, IN A.Y. 2003-04 OUT OF RS.68,250/- WITHDRAWAL OF RS.43,500/-, IN AY 2004-05 OUT OF RS.98,500/- WITHD RAWAL OF RS.32,500 AND IN A.Y 2005-06 OUT OF 1,05,342/- WITHDRAWAL OF RS.36,400/- WERE CLAIMED TO HAVE MADE BY THE ASSESSEE. THE CLAIM OF THE ASSESSEE IS THAT ALL THE WITHDRAWALS WERE MADE BY THE ASSESSEE IN CA SH AND WERE NOT UTILISED AND WERE AVAILABLE WITH HIM AS CASH IN HAN D. LOOKING AT THE QUANTUM OF WITHDRAWAL MADE BY THE ASSESSEE FROM YEA R TO YEAR, I FIND NO SUBSTANCE IN THE EXPLANATION OF THE ASSESSEE THAT O UT OF SUCH WITHDRAWAL, THE ASSESSEE HAD FURTHER SAVING OF FUND S, WHICH IN TURN WERE AVAILABLE WITH THE ASSESSEE FOR DEPOSITING THE SAME IN FINANCIAL YEAR 2004-05. THE HOUSEHOLD EXPENSES MET BY THE FATHER O F THE ASSESSEE OUT OF HIS SOURCES HAS NO RELEVANCE. 6 10. THE ASSESSEE HAD WITHDRAWN CASH OF RS.2.00 LACK S ON 10.3.2004 + RS. 30,000/- ON 24.3.2004, WHICH WAS AVAILABLE FOR MAKING CASH DEPOSITS IN THE BANK ACCOUNT. I FIND MERIT IN THE S AID CLAIM OF THE ASSESSEE. ACCORDINGLY, I DIRECT THE AO TO ALLOW THE BENEFIT OF RS.2,30,000/- AS CASH AVAILABLE WITH THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE BROUGHT ON RECORD, I FIND NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE CASH WAS AVAILABLE WITH HIM OUT OF WITHDRA WAL MADE OVER THE YEARS. I DIRECT THE A.O TO ALLOW THE ADJUSTMENT OF CASH OF RS. 2.30 LAKHS AVAILABLE WITH THE ASSESSEE AND BALANCE ADDITION OF RS. 1,09,000/- IS HEREBY CONFIRMED. THE GROUNDS OF APPEAL RAISED BY T HE ASSESSEE ARE PARTLY ALLOWED. IT WILL ALSO BE FRUITFUL TO GO THROUGH THE PARA 7 OF THE S AME ORDER WHEREBY, THE EXPLANATION REGARDING THESE DEPOSITS GIVEN BY THE ASSESSEE HAS BEEN REFERRED TO: 7. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE A SSESSEE POINTED OUT THAT THE SOURCE OF CASH DEPOSIT WERE DULY EXPLAINED BEFORE THE AUTHORITIES BELOW WHICH HAVE BEEN DIS-BELIEVED. OUR ATTENTION W AS DRAWN TO THE COPY OF THE BANK ACCOUNT FILED IN WHICH THERE WAS CASH W ITHDRAWAL OF RS. 2.00 LAKH ON 30.4.2004 AND RS.30,000/- ON 24.3.2004. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FURTHER M ADE A REFERENCE OF COPY OF ACCOUNT OF THE FATHER OF THE ASSESSEE WITH RANKI RAM ROOP CHAND, PEHOWA PLACED AT PAGE 4 OF THE PAPER BOOK WH ICH REVEALS THE INCOME EARNED FROM AGRICULTURAL BY THE FATHER OF TH E ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE A DMITTED THAT THE HOUSEHOLD EXPENSES WERE BEING MET BY THE FATHER OF THE ASSESSEE AND HIS PERSONAL WITHDRAWAL WAS MEAGER. THE LEARNED DEPARTM ENT REPRESENTATIVE FOR THE REVENUE PLACING RELIANCE ON THE ORDER OF THE LEARNED CIT(A) STRESSED THAT THE ASSESSEE HAD FAILE D TO PRODUCE ANY EVIDENCE TO JUSTIFY THE AVAILABILITY OF CASH WHICH IN TURN WAS DEPOSITED IN THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE, FROM W HICH HE ISSUED DDS TO BAJRANG BALI RICE MILLS. 9. FROM THE READING OF THE ABOVE EXTRACT OF THE ORDER OF ITAT, IT IS CLEAR THAT THIS IS A CASE WHERE THE ASSESSEE HAS OFFERE D AN EXPLANATION EVEN REGARDING THE SUSTAINED PART OF THE ADDITION MADE U NDER SECTION 68, WHICH IS A PLAUSIBLE EXPLANATION. ADMITTEDLY, THE ONUS TO PRO VE THE SAID DEPOSITS LIE ON THE ASSESSEE, THOUGH HE HAS NOT BEEN AB LE TO SATISFY THE AUTHORITIES TO THE EXTENT OF ADDITION UPHELD. 10. AT PRESENT, THIS BENCH IS CONCERNED WITH THE APPEAL AGAINST THE PENALTY LEVIED UNDER SECTION 271(1)(C). CONDITIONS UNDER SECT ION 271(1) 7 (C) MUST EXISTS BEFORE THE PENALTY BE IMPOSED, INDEPENDENT LY OF THE QUANTUM PROCEEDINGS. AS PER THE EXPLANATION TO SECTION 2 71, THE INCOME IS DEEMED TO HAVE BEEN CONCEALED OR PARTICULARS ARE HELD TO BE FURNISHED INACCURATELY IF THE ASSESSEE OFFERS AN EXPLANATION WHICH IS FALSE OR WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SU CH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND M ATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. 11. THIS IS CLEARLY NOT A CASE OF FALSE EXPLANATION AS WE HA VE ALREADY POINTED OUT THAT THE EXPLANATION GIVEN BY THE ASSESEE IS A PLAUSIBLE ONE. EVEN IN THE ORDER OF THE ITAT, SAID EXPLANATION GIVEN BY T HE ASSESSEE HAS BEEN QUOTED EXTENSIVELY. ONCE THE EXPLANATION GIVEN BY THE ASSESSEE IS FOUND NOT TO BE FALSE, TO BRING THE CASE UNDER THE AMBIT OF THE EXPLANATION TO SECTION 271 (1) (C) OF THE ACT, IT HAS TO BE SEEN THAT, WHETHER THE SAME IS SUBSTANTIATED OR NOT. SECTION 68 IS A DEEMING FICTION, WHEREBY AN AMOUNT WHICH THOUGH NOT PROVED TO BE THE INCOME OF THE ASSESSEE IS DEEMED TO BE SO. IN THE PRESENT CASE, THE EXPLANATION OF THE ASSESSEE THOUGH WAS NOT ACCEPTED IN ITS ENTIRETY, T HERE IS NO MATERIAL ON THE BASIS OF WHICH IT WOULD BE HELD THAT THE SAME WAS NOT BONAFIDE. IN OTHER WORDS THE EXPLANATION GIVEN BY THE ASSESSEE HAS NOT BEEN DISPROVED. FROM THE ORDER OF THE AO IN PENALTY, IT IS QUITE APPARENT THAT HE HAS NOT BEEN ABLE TO RECORD ANY FINDING WITH REGARD T O CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME OF THE ASSESSE E. HE HAS NOT EVEN CONSIDERED EXPLANATION GIVEN BY THE ASSESSEE A ND MERELY ON THE BASIS OF ITAT ORDER, HE LEVIED THE PENALTY. THE A.O HAS NOT BROUGHT ANY EVIDENCE TO CONCLUDE THAT THE ASSESSEE HAD FURNISHED INA CCURATE PARTICULARS OF HIS INCOME. IN THE QUANTUM APPEAL, THE TRIBU NAL HAS ACCEPTED EXPLANATION OF THE ASSESSEE TO THE EXTENT OF DEPOSIT OF RS.2,30,000/- AS EXPLAINED AND PARTLY CONFIRMED THE ADDITION STATING THAT EXPLANATION GIVEN BY THE ASSESSEE WAS NOT CONVINCIN G. IN THE ABOVE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED HIS INCOME OR FURNISHED ANY INACCURATE PARTICULARS. WHILE TAKING SUCH A 8 VIEW, I AM FORTIFIED BY THE JUDGMENT OF GUJRAT HIGH COURT IN THE CASE OF CIT VS. SUBHASH TRADING CO. (1996) 221 ITR 110 IN WHICH T HE HONBLE HIGH COURT HELD AS UNDER: COMING TO QEUSTION NO.2, IT IS TO BE NOTICED THAT SO LONG AS PRESUMPTION RAISED IN FAVOUR OF THE REVENUE UNDER THE EXPLN. TO S. 271(1) ( C) STANDS UNREBUTTED AND IS OPERATIVE THE REVENUE NEED NOT LE AD ANY EVIDENCE TO REACH A POSITIVE FINDING THAT THERE WAS CONCEALMENT OF INCOME OF THE PREVIOUS YEAR BY THE ASSESSEE BUT SOON THE PRESUMPT ION RAISED UNDER THE EXPLANATION STANDS REBUTTED, THE REVENUE AUTHORITIE S MUST RECORD A POSITIVE FINDING INDEPENDENT OF PRESUMPTION ABOUT C ONCEALMENT OF INCOME OF THE PREVIOUS YEAR WHICH THE ASSESSEE HAS CONCEALED OR PARTICULARS OF WHICH HAVE BEEN INACCURATELY FURNISH ED BY HIM. AS IN THE PRESENT CASE THE ASSESSEES BURDEN TO REBUT THE PRE SUMPTION RAISED BY THE REVENUE STANDS DISCHARGED ON THE BASIS OF THE M ATERIAL AVAILABLE ON RECORD, THE TRIBUNAL WAS RIGHT TO HOLD THAT PENALTY NEED NOT BE SUSTAINED UNDER SECTION 271(1)(C) OF THE ACT IN ABSENCE OF AN Y EVIDENCE TO CONCLUDE A POSITIVE FINDING THAT THERE WAS CONCEALMENT OF TH E INCOME. WE ACCORDINGLY ANSWER QUESTION NO.2 ALSO IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 12. IN ANOTHER CASE CIT VS. BARODA TRADING WORKS 1996 221 ITR 661, THE HONBLE GUJRAT HIGH COURT HAS HELD THAT EVEN IF THE ADDITION UNDER SECTION 68 WAS MADE ON ADMISSION BY THE ASSESSEE, TRIB UNAL HAVING COME TO A CONCLUSION THAT THE PRESUMPTION UNDER THE E XPLANATION TO SECTION 271 (1) (C ) STOOD REBUTTED, NO PENALTY UNDER SEC TION 271(1) ( C) CAN BE SUSTAINED. 13. IN VIEW OF THE ABOVE, I SET ASIDE THE ORDER OF THE AU THORITIES BELOW AND CANCEL THE PENALTY LEVIED UNDER SECTION 271(1) (C ) OF THE ACT. 9 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 31 ST JULY, 2015. SD/- (H.L. KARWA) VICE PRESIDENT DATED: 31.07.2015. PRAMOD, P.S. COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH