Shri Prashant Hota, Ahmedabad V. The Income Tax Officer,Ward-14(1), Ahmedabad

ITA 3529/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8134 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Unexplained investment; Source of fund; Onus to prove

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD , , BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.3529/AHD/2015 ( / ASSESSMENT YEAR : 2009-10) PRASHANT HOTA C-702, SAFAL PARIVESH OPP. AUDA GARDEN PRAHLAD NAGAR AHMEDABAD 380 015 / VS. THE ITO WAARD-14(1) AHMEDABAD ' ./ ./ PAN/GIR NO. : AALPH 2238 J ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : MR. TEJ SHAH, AR &''%)( / RESPONDENT BY : MS. SONIA KUMAR, SR.DR *+), / DATE OF HEARING 17/05/2018 -./0), / DATE OF PRONOUNCEMENT 11/ 06/2018 / O R D E R PER MS. MADHUMITA ROY - JM: BEING AGGRIEVED BY AND/OR DISSATISFIED WITH THE ORD ER DATED 20.10.2015 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS), AHMEDABAD-5 [LD.CIT(A) IN SHORT] ARISING OUT OF THE ORDER PASSED BY THE ITO WARD-14(1) AHMEDABAD DATED 20.03.2014 FOR THE ASSESSMENT ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 2 - YEAR (AY) 2009-10 UNDER SECTION 271(1)(C) OF THE AC T, THE INSTANT APPEAL HAS BEEN FILED BEFORE US BY THE ASSESSEE WITH THE FOLLOWING GROUND:- 1. THAT THE LD.CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO IN LEVYING PENALTY OF RS.3,20,300/- U/S.271(1)(C) OF T HE ACT. 2. THE SOLE ISSUE RELATES TO THE PENALTY OF RS.1, 45,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSE SSEE HAS PURCHASED A PROPERTY OF AN AMOUNT OF RS.56,26,300/- ON 07.10.20 08 UNDER THE OFFICE OF THE SUB-REGISTRAR PALDI ZONE, AHMEDABAD. DURING THE ASSESSMENT PROCEEDINGS, THE DETAILS OF EVIDENCES WERE CALLED F OR IN RESPECT OF THE FUND INVESTED AMOUNTING TO RS.10,26,300/- OUT OF TH E TOTAL AMOUNT OF RS.56,26,300/-. THE LD.AO WAS NOT SATISFIED REGARD ING THE EXPLANATION GIVEN BY THE ASSESSEE ON CERTAIN AMOUNT PARTICULARL Y OF RS.1,45,000/- INVESTED BY THE ASSESSEE IN THE ABSENCE OF EVIDENCE IN SUPPORT OF THE SAME. THE ASSESSING OFFICER (AO) ULTIMATELY TREAT ED THE SAME AS UNEXPLAINED INVESTMENT DEEMED TO BE THE INCOME OF T HE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE PENALTY PROCEEDINGS WAS PROPOSED TO BE INITIATED U/S.271(1) (C) OF THE ACT ON THE GROUND OF CONCEALMENT OF INCOME AND FURNISHING OF I NACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 3 - 4. BEFORE THE AO, THE ASSESSEE HAS FURNISHED A WRI TTEN SUBMISSION ON 03.11.2011 EXPLAINING THE PARTICULARS ON DIFFERENT HEADS TO MAKE THE TOTAL CONSIDERATION OF RS.56,26,300/- ALONG WITH THE SUPP ORTING EVIDENCES. HOWEVER, NO EVIDENCE OF SAVING AND KVPS IN REGARD T O THE PARTICULAR AMOUNT OF RS.1,45,000/- COULD BE FURNISHED BY THE A SSESSEE AND THE SAME WAS TREATED AS UNEXPLAINED IN THE ABSENCE OF ANY SU PPORTING EVIDENCE FURNISHED BY THE ASSESSEE. 5. THE PENALTY PROCEEDING WAS INITIATED U/S.271(1)( C) OF THE ACT CONSEQUENTLY. 6. IN THE PENALTY PROCEEDINGS, THE ITO, WARD-14(1), AHMEDABAD WHILE IMPOSING PENALTY ON 20.3.2014 U/S.271(1)(C) O F THE ACT MADE THE FOLLOWING OBSERVATIONS:- MOREOVER, CIT(A) HAS UPHELD THE VIEW TAKEN BY THE AO AND CONFIRMED THE ADDITION OF RS.2,44,000/-, RS.1,36,00 0, RS.1,45,000/- AND RS.4,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT AND UNEXPLAINED INVESTMENT. THEREFORE IT ESTABLISHES BEYOND DOUBT THE ASSESSEE HAS CONCEALED INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME TO THAT EXTENT AND PENAL PROVISIONS U/S.271(1)(C) ARE CLEARLY ATTRACTED. AS THE ASSESS EE OPTED NOT TO ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 4 - REPLY OF THE SHOW CAUSE NOTICE ISSUED BY UNDERSIGNE D AFFIRMS THE FACT THAT HE HAS NO OBJECTION FOR THE LEVY OF THE P ENALTY AND CONCURRED WITH THE CONTENTS OF THE SHOW CAUSE AS SU CH. THEREFORE IT ESTABLISHES BEYOND DOUBT THAT THE ASSESSEE HAS C ONCEALED INCOME AND PENALTY PROVISIONS U/S.271(1)(C) ARE CLEARLY AT TRACTED. 6.1. AGAINST THE SAID ORDER DATED 20.03.2014, THE A SSESSEE WENT UPTO THE APPELLATE FORUM BUT THE CIT(A) UPHELD THE ORDER PASSED BY THE AUTHORITIES BELOW CONFIRMING THE PENALTY WHICH IS IMPUGNED BEFORE US. 7. ON THE OTHER HAND, AGAINST THE ORIGINAL ASSESSME NT ORDER DATED 26.12.2011 AN APPEAL HAS BEEN PREFERRED BEFORE THE CIT(A) BY THE ASSESSEE BUT WITHOUT ANY SUCCESS. THEREAFTER, FURT HER APPEAL HAS BEEN PREFERRED BY THE ASSESSEE BEFORE THIS LD.TRIBUNAL A GAINST THE ORDER DATED 11.09.2012 PASSED BY THE CIT(A)-XXI, AHMEDABAD. TH E SAID MATTER WAS DISPOSED OF BY THE CO-ORDINATE BENCH OF THIS TR IBUNAL ALLOWING THE APPEAL OF THE ASSESSEE UPON SETTING ASIDE THE ORDER S PASSED BY THE AUTHORITIES BELOW. THE LD.TRIBUNAL WAS PLEASED TO RESTORE THE ISSUES TO THE FILE OF THE AO FOR READJUDICATION. 7.1. IN COMPLIANCE OF THE SAID ORDER PASSED BY THIS LD.TRIBUNAL A FURTHER ASSESSMENT ORDER DATED 01.12.2017 WAS PASSE D BY THE ITO WARD- 5(1)(1), AHMEDABAD ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 5 - 8. AT THE TIME OF HEARING OF THE MATTER, THE LD.REP RESENTATIVE OF THE ASSESSEE STRONGLY URGED THAT THE PENALTY PROCEEDING CANNOT BE INITIATED ON THE BASIS OF THE ADDITION OF RS.1,45,000/- SINCE TH ERE IS NO CONCEALMENT ON THE PART OF THE ASSESSEE. THE LD.AR RELIED UPO N THE JUDGEMENT OF HONBLE APEX COURT IN THE CASE OF DILIP N.SHROFF VS . JT.CIT & ANR. (2007) 291 ITR 519 (SC). 9. THE LD.REPRESENTATIVE OF THE DEPARTMENT RELIED U PON THE CONCURRENT FINDINGS OF THE LOWER AUTHORITIES ON THE PREMISE THAT THE ASSESSEE HAS INDEED CONCEALED THE INCOME AND FURNIS HED INACCURATE PARTICULARS OF INCOME. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE B Y THE PARTIES. WE HAVE PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE MAIN ISSUE IS REQUIRED TO BE EXAMINED AS TO WHETHER THE PENALTY CAN BE IMPOSED IN RESPECT OF ADDITION OF RS.1,45,000/- ON THE MERE OBSERVATION THAT THERE IS CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. WE HAVE GON E THROUGH THE ASSESSMENT ORDER, THE ORDER PASSED U/S.271(1)(C) OF THE ACT AND THE ORDER OF THE LD.CIT(A) AS WELL. NONE OF THESE AUTHORITIE S HAVE MADE ANY DELIBERATION ON THE FINDING THAT THERE HAD BEEN ANY CONSCIOUS ACT ON THE ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 6 - PART OF THE ASSESSEE IN FURNISHING INACCURATE PARTI CULARS WITH AN INTENTION TO EVADE TAX. 11. CONSIDERING THE STATUTE, WE FIND TWO CONDITION S ARE TO BE SATISFIED IN ORDER TO INVOKE SECTION 271(1)(C) OF THE ACT. THE FIRST CONDITION REFERS TO CONCEALMENT OF INCOM E AND THE SECOND CONDITION REFERS TO FURNISHING OF INACCURATE PARTICULARS THEREOF. IN THIS PARTICULAR CASE, THE AO FAILED TO ESTABLISH T HAT THERE WAS ANY CONSCIOUS ACT ON THE PART OF THE ASSESSEE IN FURNIS HING INACCURATE PARTICULARS TO EVADE TAX. THE ASSESSEE FURNISHED D OCUMENTS INCLUDING THE WITHDRAWAL RECEIPTS FOR A CONSIDERABLE PERIOD OF TI ME TO ESTABLISH THE SOURCE OF AMOUNT IN QUESTION AND THIS CANNOT BE SA ID TO HAVE THE REQUISITE MENS REA WHICH IS SINE QUA NON FOR IMPOSI TION OF PENALTY FOR CONCEALMENT OF INCOME. NO DELIBERATE ATTEMPT HAD B EEN MADE ON THE PART OF THE ASSESSEE IN PROVIDING INACCURATE PARTICULARS . NEITHER IT IS SEEN THAT THE ASSESSEE HAD CONSCIOUSLY CONCEALED THE PARTICUL ARS OF THE INCOME OR HAD DELIBERATELY OR WILLFULLY FURNISHED INACCURATE INCOME. 11.1 SIMILAR ISSUE HAS EARLIER BEEN EXAMINED BY TH E HONBLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF VS. JT.CIT & A NR.(2007) 291 ITR 519(SC). THE RELEVANT PORTION OF THE SAID JUDGEMEN T IS NARRATED HEREINBELOW: ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 7 - 43. THE EXPRESSION 'CONCEAL' IS OF GREAT IMPORTANC E. ACCORDING TO LAW LEXICON, THE WORD 'CONCEAL' MEANS: 'TO HIDE OR KEEP SECRET. THE WORD 'CONCEAL' IS CON+ CELARE WHICH IMPLIES TO HIDE. IT MEANS TO HIDE OR WITHDRAW FROM OBSERVATION; TO COVER OR KEEP FROM SIGHT; TO PREVEN T THE DISCOVERY OF; TO WITHHOLD KNOWLEDGE OF. THE OFFENCE OF CONCEALMENT IS, THUS, A DIRECT ATTEMPT TO HIDE AN I TEM OF INCOME OR A PORTION THEREOF FROM THE KNOWLEDGE OF THE INCO ME TAX AUTHORITIES.' IN WEBSTER'S DICTIONARY, 'INACCURATE' HAS BEEN DEFI NED AS: 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH; ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRAN SCRIPT.' 44. IT SIGNIFIES A DELIBERATE ACT OR OMISSION ON THE PART OF THE ASSESSEE. SUCH DELIBERATE ACT MUST BE EITHER FOR THE PURPOSE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. 45. THE TERM 'INACCURATE PARTICULARS' IS NOT DE FINED. FURNISHING OF AN ASSESSMENT OF VALUE OF THE PROPERTY MAY NOT BY ITSE LF BE FURNISHING OF ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 8 - INACCURATE PARTICULARS. EVEN IF THE EXPLANATIONS AR E TAKEN RECOURSE TO, A FINDING HAS TO BE ARRIVED AT HAVING REGARD TO CLAUS E (A) OF EXPLANATION 1 THAT THE ASSESSING OFFICER IS REQUIRED TO ARRIVE AT A FINDING THAT THE EXPLANATION OFFERED BY AN ASSESSEE, IN THE EVENT HE OFFERS ONE, WAS FALSE. HE MUST BE FOUND TO HAVE FAILED TO PROVE THAT SUCH EXPLANATION IS NOT ONLY NOT BONA FIDE BUT ALL THE FACTS RELATING TO TH E SAME AND MATERIAL TO THE INCOME WERE NOT DISCLOSED BY HIM. THUS, APART F ROM HIS EXPLANATION BEING NOT BONA FIDE, IT SHOULD HAVE BEEN FOUND AS O F FACT THAT HE HAS NOT DISCLOSED ALL THE FACTS WHICH WAS MATERIAL TO THE C OMPUTATION OF HIS INCOME. 46. THE EXPLANATION, HAVING REGARD TO THE DECISIONS OF THIS COURT, MUST BE PRECEDED BY A FINDING AS TO HOW AND IN WHAT MANNER HE FURNISHED THE PARTICULARS OF HIS INCOME. IT IS BEYOND ANY DOUBT O R DISPUTE THAT FOR THE SAID PURPOSE THE INCOME TAX OFFICER MUST ARRIVE AT A SATISFACTION IN THIS BEHALF. [SEE COMMISSIONER OF INCOME TAX V. RAM COMM ERCIAL ENTERPRISES LTD., 246 ITR 568 AND DIWAN ENTERPRISES V. COMMISSIONER OF INCOME TAX, 246 ITR 571]. 47. IT IS FURTHERMORE OF SOME SIGNIFICANCE THAT THE COMMISSIONER IN ITS ORDER DATED 30.11.2000 MADE A TERSE COMMENT THAT TH E ASSESSEE CANNOT SHIFT THE BURDEN OF CONCEALMENT TO ANY OTHER PERSON , MEANING THEREBY, ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 9 - THE REGISTERED VALUER. HE, FURTHERMORE, MADE A COMM ENT THAT THE REGISTERED VALUER HAD ADOPTED A STRANGE WAY OF VALU ING ALTHOUGH NO REASON, FAR LESS THAN SUFFICIENT OR COGENT REASON, HAS BEEN ASSIGNED IN SUPPORT THEREOF. THE SAID COMMENTS WERE UNWARRANTED . 48. PRIMARY BURDEN OF PROOF, THEREFORE, IS ON THE R EVENUE. THE STATUTE REQUIRES SATISFACTION ON THE PART OF THE ASSESSING OFFICER. HE IS REQUIRED TO ARRIVE AT A SATISFACTION SO AS TO SHOW THAT THERE I S PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED THE AMOUN T OR FURNISHED INACCURATE PARTICULARS AND THIS ONUS IS TO BE DISCH ARGED BY THE DEPARTMENT. [SEE D.M. MANASVI V. COMMISSIONER OF IN COME TAX, GUJARAT,-II [(1973) 3 SCC 207] 49. WHILE CONSIDERING AS TO WHETHER THE ASSESSEE HA S BEEN ABLE TO DISCHARGE HIS BURDEN, THE ASSESSING OFFICER SHOULD NOT BEGIN WITH THE PRESUMPTION THAT HE IS GUILTY. 50. ONCE THE PRIMARY BURDEN OF PROOF IS DISCHARGED, THE SECONDARY BURDEN OF PROOF WOULD SHIFT ON THE ASSESSEE BECAUSE THE PROCEEDING UNDER SECTION 271(1)(C) IS OF PENAL NATURE IN THE S ENSE THAT ITS CONSEQUENCES ARE INTENDED TO BE AN EFFECTIVE DETERR ENT WHICH WILL PUT A STOP TO PRACTICES WHICH THE PARLIAMENT CONSIDERS TO BE AGAINST THE PUBLIC INTEREST AND, THEREFORE, IT WAS FOR THE DEPARTMENT TO ESTABLISH THAT THE ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 10 - ASSESSEE SHALL BE GUILTY OF THE PARTICULARS OF INCO ME. [SEE ANWAR ALI (SUPRA) AND M/S KHODAY ESWARSA (SUPRA)]. 51. THE ORDER IMPOSING PENALTY IS QUASI-CRIMINAL IN NATURE AND, THUS, BURDEN LIES ON THE DEPARTMENT TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED HIS INCOME. SINCE BURDEN OF PROOF IN PENALTY PROCEE DINGS VARIES FROM THAT IN THE ASSESSMENT PROCEEDING, A FINDING IN AN ASSESSMENT PROCEEDING THAT A PARTICULAR RECEIPT IS INCOME CANNOT AUTOMATI CALLY BE ADOPTED, THOUGH A FINDING IN THE ASSESSMENT PROCEEDING CONST ITUTE GOOD EVIDENCE IN THE PENALTY PROCEEDING. IN THE PENALTY PROCEEDIN GS, THUS, THE AUTHORITIES MUST CONSIDER THE MATTER AFRESH AS THE QUESTION HAS TO BE CONSIDERED FROM A DIFFERENT ANGLE. [SEE ANANTHARAM VEERASINGHAIAH & CO. V. C.I.T., ANDHRA PRADESH, 1980 SUPP SCC 13]. 67. 'CONCEALMENT OF INCOME' AND 'FURNISHING OF INAC CURATE PARTICULARS' ARE DIFFERENT. BOTH CONCEALMENT AND FURNISHING INACCURA TE PARTICULARS REFER TO DELIBERATE ACT ON THE PART OF THE ASSESSEE. A MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERATE ACT OF SUPPRESSIO VERI OR SUGGESTIO FALSI. ALTHOUGH IT MAY NOT BE VERY ACCURATE OR APT BUT SUP PRESSIO VERI WOULD AMOUNT TO CONCEALMENT, SUGGESTIO FALSI WOULD AMOUNT TO FURNISHING OF INACCURATE PARTICULARS. ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 11 - 12. IT APPEARS FROM THE RECORDS THAT THE ASSESSEE FURNISHED THE BANK STATEMENT AND PARTICULARS OF CASH WITHDRAWAL FROM T IME TO TIME AS REFLECTED FROM THE STATEMENT AT PAGE 18 TO 20 OF TH E PAPER-BOOK IN ORDER TO ESTABLISH THE SOURCE OF RS.1,45,000/- AS FINANCE D FROM PERSONAL SAVINGS INCLUDING PIN AMOUNT OVER A PERIOD OF TIME. IT AL SO APPEARS THAT WHILE THE TOTAL INVESTMENT IS AN AMOUNT OF RS.56,26,300/- , THE AMOUNT IN QUESTION OF RS.1,45,000/- IS A VERY NEGLIGIBLE ONE AND SINCE THE ASSESSEE HAS FILED HER RETURN FOR A LONG TIME, IT CAN BE WEL L PRESUMED THAT THIS AMOUNT HAS BEEN SHOWN AS AN INCOME OF THE ASSESSEE IN THE EARLIER ASSESSMENT YEARS. NEITHER THE CONDUCT OF THE ASSE SSEE IN FURNISHING THE ABOVE DOCUMENTS IN SUPPORT OF THE SAID AMOUNT OF I NVESTMENT, CANNOT BE SAID TO HAVE THE REQUISITE MENS REA OF EVASION OF T AX WHICH IS SINE QUA NON FOR IMPOSITION OF PENALTY. THE EXPLANATION OFF ERED BY THE ASSESSEE SEEMS TO BE BONAFIDE. NO DELIBERATE AND/OR WILLFUL ATTEMPT HAD BEEN MADE EITHER BY THE ASSESSEE IN PROVIDING INACCURATE PARTICULARS. THERE IS NO CONSCIOUS CONCEALMENT OF PARTICULARS OF THE INCO ME OF THE ASSESSEE NEITHER HE DELIBERATELY FURNISHED INACCURATE INCO ME AND THEREFORE NO PENALTY PROCEEDINGS WAS LIABLE TO BE INITIATED AGA INST THE ASSESSEE IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE, AND FU RTHER THAT NO PENALTY CAN BE IMPOSED ON THE BASIS OF THE FINDING MADE IN THE ORDER IMPUGNED. 13. WHILE DEALING WITH THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT, THE AUTHORITIES MADE A SPECIFIC OBSERVATION TH AT THE CIT(A) HAS ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 12 - UPHELD THE VIEW TAKEN BY THE AO AND CONFIRMED THE A DDITION OF RS.1,45,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH C REDIT AND UNEXPLAINED INVESTMENT. IT IS AN ADMITTED FACT THA T THE SAID ORDER DATED 11.09.2012 PASSED BY THE CIT(A) HAS BEEN SUBSEQUENT LY QUASHED BY THE CO-ORDINATE BENCH OF THIS LD.TRIBUNAL ON 08.08.2016 UPON WHICH A FURTHER ORDER OF ASSESSMENT WAS PASSED DE NOVO ON 0 1.12.2017. THEREFORE, IN OUR OPINION, THE OBSERVATION MADE BY THE AO HAS NO EFFECT AND THE OPINION ON THAT BASIS FORMED IN THE ORDER I MPUGNED IS ALSO HAVING NO FORCE IN VIEW OF THE FRESH ORDER OF ASSES SMENT DATED 01.12.2017. 14. IN THE INSTANT CASE, IT APPEARS THAT THE ASSESS EE HAS FURNISHED DOCUMENTS IN SUPPORT OF THE SOURCE OF FUND OF RS.1, 45,000/-. ACCORDING TO THE AUTHORITIES BELOW THIS CAN BE INSUFFICIENT TO PROVE THE CLAIM OF THE ASSESSEE BUT THE FACT CANNOT BE TERMED AS CONCEALM ENT OF INCOME IF THE RATIO OF THE ABOVE JUDGEMENT IS APPLIED NEITHER THE AUTHORITIES BELOW CAME TO A FINDING THAT THE EVIDENCE ADDUCED IS FALS E. WE, THEREFORE, TAKING INTO CONSIDERATION OF THE ENTIRE FACTS OF TH E CASE, FIND THAT THE PENALTY IMPOSED BY THE AUTHORITIES BELOW IS HARSH AND IMPROPER INDEED WITHOUT CONSIDERATION OF THE CONDUCT OF THE ASSESS EE OF MAKING GENUINE ATTEMPTS TO PROVE THE SOURCE OF INVESTMENT OF RS.1, 45,000/- AS DISCUSSED ABOVE AND APPLYING THE RATIO OF THE JUDGEMENT PASSE D BY THE HONBLE APEX COURT, WE FIND THAT THE IMPUGNED ORDER OF PENA LTY IS NOT SUSTAINABLE ITA NO.3529/AHD /2015 PRASHANT HOTA VS. ITO ASST.YEAR 2009-10 - 13 - IN LAW. WE, THEREFORE, SET ASIDE THE ORDER OF THE PENALTY AND ALLOW THE APPEAL PREFERRED BY THE ASSESSE. 15. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 11 / 0 6 /201 8 SD/- SD/- ( ) ( ) ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/ 06 /2018 2,..*,.*../ T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 34 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A)-AHMEDABAD-5 5. 89:&*4 , ,40 , 3 / DR, ITAT, AHMEDABAD 6. :;<=+ / GUARD FILE. / BY ORDER, '8& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD