S. Gurpal Singh, New Delhi V. DCIT, New Delhi

ITA 3870/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2697 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-02-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHA NGTHU
• Assessee Lawyers: A L SEHGAL
• Keywords: Reasonable cause
• Section: 143(3); 153A

Judgement Text

ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO.3870/DEL/2012 ASSTT. YEAR: 2004-05 SHRI S. GURPAL SINGH, VS DY .COMMISSIONER OF INCOME TAX, C/O A.L. SEHGAL & CO., CA, CENTRAL CIRCLE-19, 1102, PRAKASH DEEP BUILDING, ARA CEN TRE, JHANDEWALA, 7, TOLSTOY MARG, NEW DELHI. NEW DELHI-110001 (PAN: AAKPS7128K) (APPELLANT) (RESP ONDENT) APPELLANT BY: SHRI A.L. SEHGAL RESPONDENT BY: SHRI DAVID Z. CHA NGTHU O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A)-XXXIII, NEW DELHI DATED 28.06.2012 IN APPEAL NO. 1/10-11/149 BY WHICH THE COMMISSIONER OF INCOME TAX(A) CONFIRMED T HE PENALTY ORDER DATED 26.03.2010 PASSED BY THE ASSESSING OFFICER U/ S 271(1)(C) OF THE INCOME TAX ACT, 1961(FOR SHORT THE ACT). 2. THE GROUNDS RAISED IN THIS APPEAL BY THE ASSESSE E READ AS UNDER:- ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 2 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE ASSESSING OFFICER HAS ERRED IN IMPOSING ILLEGAL PEN ALTY OF RS. 99,000/- U/S 271(1)(C) OF THE INCOME TAX ACT, FOR A LLEGED FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAS FURNISHED CORRECT PARTICULARS OF THE CASH DEPOS IT OF RS. 3,00,000/ - BY HIS ATTORNEY HOLDER IN ASSESSEE'S BA NK ACCOUNT WITH REASONS FOR DELAY IN DEPOSIT OF CASH ADVANCE R ECEIVED BY HIM AGAINST SALE OF ASSESSEE'S AGRICULTURE LAND. 2. THAT THE MERE FACT OF NOT GOING IN APPEAL TO B UY PEACE AGAINST ADDITION MADE BY ASSESSING OFFICER IN HIS O RDER U/S 153A DATED 15-05-2009 TREATING THE CASH DEPOSIT OF RS. 3,00,000/- IN ASSESSEE'S BANK ACCOUNT AS INCOME FRO M UN- DISCLOSED SOURCES CANNOT IPSO FACTS LEADS TO INFERE NCE THAT THERE HAS BEEN A CONCEALMENT OF INCOME OR FURNISHING OF I NACCURATE PARTICULARS OF INCOME. THE ASSESSEE IN RESPONSE TO NOTICE U/S 143(2)/142 FOR ASST. YEAR. 2004-2005 HAD FURNISHED THE SOURCES OF EVIDENCES SUCH ON SALE DEED OF AGRI. LAND, CASH STATEMENT SHOWING DEPOSIT OF RS. 3,00,000/ - IN THE BANK WITH HOUSE HELD EXPENSES TO THE SATISFACTION OF THE ASSESSING OFFIC ER WHO PASSED ORDER U/S 143(3) DATED 31-09-2006 AFTER ACCEPTING A SSESSEE'S RETURNED INCOME OF RS. 23,98,020/ -. THERE IS NO UN -DISCLOSED CASH DEPOSIT OF RS. 3,00,000/ - IN ASSESSEE BANK. 3. THAT THE ASSESSEE HAS DISCHARGED HIS ONUS TO T HE ASSESSING OFFICER WITH EVIDENCE FOR DELAYED DEPOSIT OF CASH R S. 3,00,000/ - BY LATE S. ]ASBIR SINGH WHO WAS LOOKING AFTER THE A SSESSEE'S AFFAIRS FOR MORE THAN 25 YEARS. THE SALE DEED OF AG RICULTURE LAND WAS EXECUTED BY THE ATTORNEY OF THE ASSESSEE AND HE HAD HIMSELF RECEIVED CASH ADVANCE IS AND DEPOSITED RS. 3,00,000 /- IN ASSESSEE'S BANK ACCOUNT. WHICH HAS BEEN DISCONCERED AS UN- DISCLOSED CASH DEPOSIT FOUND DURING PROCEEDINGS U/S 153C OF ACT. 4. THAT THE ASSESSMENT PROCEEDING ARE DISTINCT FR OM PENALTY PROCEEDINGS WHICH ARE QUASI - CRIMINAL IN NATURE. T HE FINDINGS ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 3 RECORDED IN THE ASSESSMENT ORDER DO NOT CONSTITUTE A SUFFICIENT EVIDENCE FOR LEVY OF PENALTY AND IT CANNOT BE SAID THAT THE ASSESSEE IS GUILTY OF CONCEALMENT AND FURNISHING OF INACCURA TE PARTICULARS OF INCOME AFTER HAVING PASSED ORDER U/S 143(3) DT 31-09-2006. 5. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE IT IS PRAYED PENALTY OF RS. 99,000/-LEVIED U / S 271 (1 )(C) MAY BE CANCELLED. 6. THAT THE APPELLANT CRAVES BEEN TO ADD, TO ALTE R OR AMEND THE AFORESAID GROUNDS OF APPEAL AT THE TIME OF HEARING OF APPEAL. 3. BRIEF FACTS GIVING RISE TO THIS APPEAL ARE THAT THE ASSESSING OFFICER ISSUED A NOTICE U/S 153A OF THE ACT ON 02.07.2008 R EQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME FOR THE ASSESSMENT YEAR U NDER CONSIDERATION I.E. 2004-05 BEING ONE OF THE SIX ASSESSMENT YEARS PRECE DING TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED AND IN RESPECT OF WHICH THE ASSESSEE WAS ASSESSABLE AS AN INDIVIDUAL. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED A RETURN DECLAR ING TAXABLE INCOME OF RS.23,98,023/- AND AGRICULTURAL INCOME OF RS.1,10,0 00 ON 16.07.2008. THE ASSESSING OFFICER ISSUED NOTICES U/S 143(2) AND 142 (1) OF THE ACT ALONG WITH QUESTIONNAIRE. THE ASSESSING OFFICER NOTICED THERE IS CASH DEPOSIT OF RS . 3,00,000 ON 04.09.2003 IN THE BANK ACCOUNT OF THE A SSESSEE. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THA T THE SOURCE OF SAID CASH DEPOSIT WAS RECEIPTS FROM SALE PROCEEDS OF AGRICULT URAL LAND AND THE SALE DEED WAS REGISTERED ON 23.09.2002 WHEREAS THE CASH WAS DEPOSITED ON ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 4 04.09.2003 I.E. ABOUT ONE YEAR AFTER THE DATE OF SA LE. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE POWER OF ATTO RNEY SHRI JASBIR SINGH WAS ILL AND CASH WAS KEPT BY HIM IN THE INTERVENIN G PERIOD. THE ASSESSING OFFICER OBSERVED THAT THERE IS NO DOCUMENTARY EVIDE NCE, CONFIRMATION OR AFFIDAVIT FROM SHRI JASBIR SINGH, THEREFORE, THE AS SESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND THE CASH DEPOSIT AM OUNT WAS BROUGHT TO TAX AS INCOME FORM UNDISCLOSED SOURCES. NO APPEAL WAS FILED BY THE ASSESSEE AGAINST THE ABOVE ASSESSMENT ORDER, THEREFORE, THE ASSESSMENT ATTAINED FINALITY. 4. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED PE NALTY PROCEEDINGS AND AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE A SSESSEE, THE ASSESSING OFFICER LEVIED A PENALTY OF RS.99,000 U/S 271(1)(C) OF THE ACT ON THE ASSESSEE. BEING AGGRIEVED BY THE ABOVE PENALTY ORD ER, THE ASSESSEE FILED THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(A) WHI CH WAS ALSO DISMISSED WITH AN OBSERVATION THAT THE ASSESSEE HAS NOT PRODUCED ANY DEFINITE EVIDENCE WHATSOEVER TO CONTRADICT THE FIND INGS OF THE ASSESSING OFFICER EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE PENALTY PROCEEDINGS. NOW, THE AGGRIEVED ASSESSEE IS BEFORE THIS TRIBUNAL IN THIS SECOND APPEAL WITH THE GROUNDS AS MENTIONED HEREINA BOVE. ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 5 5. WE HAVE HEARD RIVAL ARGUMENTS OF BOTH THE PARTIE S AND CAREFULLY PERUSED THE RECORD. THE ASSESSEES REPRESENTATIVE SUBMITTED THAT THE ASSESSEE DID NOT AGITATE FURTHER THE ASSESSMENT ORDER AND IT BECAME FINAL. THE ASSESSEE ACCEPTED THE ASSESSMENT ORDER TO AVOID FUR THER LITIGATION AND TO BUY MENTAL PEACE BUT IT DOES NOT MEAN THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF HIS INCOME OR HAS FURNISHED WRONG PARTICULARS. THE AR FURTHER SUBMITTED THAT DURING THE PENALTY PROCEEDINGS THE ASSESSING O FFICER HAS IGNORED THE CONTENTION OF THE ASSESSEE THAT THE CASH DEPOSIT OF RS. 3 LAKH BY THE ATTORNEY HOLDER OF THE ASSESSEE SHRI JASBIR SINGH TO THE BAN K ACCOUNT OF THE ASSESSEE WAS BASED ON REASONABLE CAUSE BECAUSE THE ATTORNEY HOLDER WAS SUFFERING FROM PROLONGED ILLNESS AND EVENTUALLY HE DIED BECAU SE OF IT. THEREFORE, THE ASSESSEE HAS NO INTENTION TO CONCEAL THE PARTICULAR S OF INCOME OR TO FURNISH INACCURATE PARTICULARS OF HIS INCOME. 6. THE AR VEHEMENTLY CONTENDED THAT THE ASSESSEE HA S DISCHARGED HIS ONUS BEFORE THE ASSESSING OFFICER WITH EVIDENCE FOR DELAY IN DEPOSIT OF CASH BY LATE SHRI JASBIR SINGH WHO WAS LOOKING AFTER THE ASSESSEES AFFAIRS FOR MORE THAN 25 YEARS. LD. AR FURTHER SUBMITTED THAT THE SALE DEED OF AGRICULTURAL LAND WAS EXECUTED BY ATTORNEY OF THE A SSESSEE AND HE HAD HIMSELF RECEIVED CASH ADVANCE AND DEPOSITED TO THE ASSESSEES BANK ACCOUNT WHICH HAS BEEN CONSIDERED AS UNDISCLOSED CASH DEPOS IT FOUND DURING THE ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 6 PROCEEDINGS U/S 153C OF THE ACT. THE AR PLACED HIS RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. VS. COMMISSIONER OF INCOME TAX (2010) 322 ITR 158 (SC) AND FOLLOWING CITATIONS OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI, HONBLE HIGH COURT OF PUNJAB & HARYANA AN D HONBLE HIGH COURT OF KARNATAKA:- 1. C.I.T. VS RAVI KANT JAIN 250 ITR 141(DELHI) 2. DANG AND COMPANY PVT. LTD. VS DCIT(2005) 277 IT R (AT)190(DELHI) 3. C.I.T. VS CHHABRA EMPORIUM 264 ITR 249(DELHI) 4. C.I.T. VS SAS PHARMACEUTICALS (2011) 335 ITR 25 9 (DELHI) 5. C.I.T. VS HARSH TALWAR (2011) 335 ITR 200(DELHI ) 6. C.I.T. VS BHANDARI SILK STORE (2011) 337 ITR 15 3 (P&H) 7. C.I.T. VS CAREERS EDUCATION & INFOTECH PVT. LTD . (2011) 336 ITR 257 (P&H) 8. C.I.T.& ANOTHER VS S.L.N. TRADERS (NO.2) (2012) 341 ITR 235(KARN.) 7. REPLYING TO THE ABOVE, LD. DR SUBMITTED THAT THE ASSESSEE FILED PARTICULARS OF RECEIPTS FROM SALE OF AGRICULTURAL L AND ON THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 153A OF THE ACT. THE AR FURTHER SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS ON VERIFICATION O F THE BANK STATEMENT, IT ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 7 WAS FOUND THAT THERE WAS A CASH DEPOSIT OF RS. 3 LA KH ON 04.09.2003 AND WHEN THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE O F THIS CASH DEPOSIT, THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THA T THIS WAS THE SALE PROCEED OF AGRICULTURAL LAND AT RAJA SANSI VILLAGE, DISTRICT AMRITSAR. THE DR FURTHER SUBMITTED THAT IT WAS MALAFIDE ON THE PART OF THE ASSESSEE THAT HE DID NOT DISCLOSE THE PARTICULARS OF HIS INCOME AND RECE IPT OF SALE PROCEED RECEIVED FROM SALE OF LAND OF THE ASSESSEE SITUATED IN RAJA SANSI VILLAGE, AMRITSAR. THE DR SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW AND SUBMITTED THAT THE PENALTY IMPOSED ON THE ASSESSEE IS JUSTIFIED AND THE CONTENTION OF THE ASSESSEE ARE NOT SUSTAINABLE. THE DR PLACED RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF UNION OF INDIA VS DHARMENDER TEXTILE PROCESSORS (2008) 306 I TR 277(SC). 8 . ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSIONS A ND CITATIONS PLACED BEFORE US AND TAKING CARE OF THE FACTUAL MAT RIX OF THE PRESENT CASE, WE OBSERVE THAT DURING THE COURSE OF ARGUMENT BEFORE T HIS TRIBUNAL, THE COUNSEL OF THE ASSESSEE SUBMITTED A COPY OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT WHEREIN THE ASSESSING OFFICER HAS ACCEPT ED TOTAL INCOME OF THE ASSESSEE AS PER RETURN OF INCOME WITHOUT MAKING ANY ADDITION OR DISALLOWANCE. WE ALSO OBSERVE THAT THE ASSESSEE FI LED RETURN FOR ASSESSMENT YEAR UNDER CONSIDERATION ON 23.07.2004 AND ALSO ENC LOSED A DETAILED ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 8 STATEMENT OF TAXABLE INCOME. WE ALSO OBSERVE THAT AS PER THIS STATEMENT OF TAXABLE INCOME, THE ASSESSEE HAS EARNED AGRICULTURA L INCOME OF RS. 1,10,000 IN ADDITION TO THE TAXABLE INCOME OF RS.23,98,023. FROM THE FOOTNOTES NO. 2 & 3, WE ALSO OBSERVE THAT THE ASSESSEE HAS DECLARED A RECEIPT OF RS.2,88,000 FROM SALE OF AGRICULTURAL LAND AT VILLAGE RAJA SANS I, DISTRICT AMRITSAR AND ASSESSEE HAS SOUGHT EXEMPTION FROM CAPITAL GAIN ACC RUED FORM THE SALE OF SAID AGRICULTURAL LAND U/S 2(14)(III) OF THE ACT. THE DR HAS NOT DISPUTED THIS FACT THAT THE ASSESSEE HAD FURNISHED PARTICULARS OF SALE PROCEED RECEIVED FROM SALE OF AGRICULTURAL LAND SITUATION AT VILLAGE RAJA SANSI, DISTRICT AMRITSAR BY THE ASSESSEE AND DR HAS NOT DISPUTED THIS FACT THAT THE ASSESSEE CLAIMED EXEMPTION FROM CAPITAL GAIN ON THE SAID SALE OF AGR ICULTURAL LAND. 9. THE AR HAS DRAWN OUR ATTENTION TOWARDS LETTER TO ASSESSING OFFICER SUBMITTING THE EXPLANATION TO SHOW CAUSE NOTICE U/S 271(1)( C) OF THE ACT AND SUBMITTED THAT THE ASSESSEE HAS NOT CONCEALED THE P ARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF ITS INCOME BEFO RE THE ASSESSING OFFICER. THE AR FURTHER SUBMITTED THAT THE CASH RECEIVED ON SALE OF AGRICULTURAL LAND ON 23.09.2002 HAD BEEN DECLARED TO THE ASSESSING OF FICER WHO EXAMINED THE BANK ACCOUNT OF THE ASSESSEE AND FINALIZED THE ASSE SSMENT U/S 143(3) OF THE ACT. THE AR FURTHER SUBMITTED THAT THE TRANSACTION DATE OF THE SALE OF AGRICULTURAL LAND CAME TO THE KNOWLEDGE OF THE ASSE SSEE ON SCRUTINY OF THE ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 9 BANK ACCOUNT AT THE TIME OF FILING OF ITR. THE AR VEHEMENTLY CONTENDED THAT THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE, LATE SHRI JASBIR SINGH DIED ON 22.01.2007. THEREFORE, THE ASSESSEE COULD NOT S UBMIT HIS AFFIDAVIT OR ANY OTHER EVIDENCE TO THE FACT THAT THE ASSESSEE HAD NO KNOWLEDGE THAT THE CASH WAS RECEIVED ON 23.09.2002 AND THIS FACT CAME TO TH E KNOWLEDGE OF THE ASSESSEE WHEN THE AMOUNT OF RS. 3 LAKH WAS DEPOSITE D BY SHRI JASBIR SINGH ON 04.09.2003. THE AR SUBMITTED THAT THE PENALTY C AN BE LEVIED ONLY WHEN THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INA CCURATE PARTICULARS OF INCOME WHICH CANNOT BE ATTRIBUTED TO THE PRESENT AS SESSEE. 10. ADMITTEDLY, THE ASSESSEE FILED DETAILS PERTAINI NG TO THE PROCEED RECEIVED ON SALE OF AGRICULTURAL LAND SITUATION AT VILLAGE RAJA SANSI, DISTRICT AMRITSAR AND APPENDED THE DETAIL TO THE RETURN OF I NCOME IN THE ASSESSMENT YEAR UNDER CONSIDERATION. NOTES NO. 2 AND 3 MENTIO NED IN THE STATEMENT OF TAXABLE INCOME CLEARLY SHOWS THAT THE ASSESSEE HAS FURNISHED PARTICULARS OF RECEIPTS FROM SALE OF AGRICULTURAL LAND AND ALSO CL AIMED EXEMPTION THEREON U/S 2(14)(III) OF THE ACT. COMING TO THE ISSUE OF LATE DEPOSIT OF THE AMOUNT TO THE BANK, WE OBSERVE THAT THE ASSESSING OFFICER HAS NOT CONTROVERTED THE STATEMENT OF THE ASSESSEE THAT THIS AMOUNT WAS DEPO SITED TO THE BANK ACCOUNT OF THE ASSESSEE SHRI GURPAL SINGH AFTER A LAPSE OF TIME DURING THE YEAR UNDER CONSIDERATION AND THIS FACT CAME TO THE KNOWLEDGE O F THE ASSESSEE WHEN HE ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 10 CHECKED THE BANK PASS BOOK AND ACCOUNTS SUBMITTED B Y HIS POWER OF ATTORNEY S. GURPAL SINGH. IT IS NOT IN DISPUTE THAT THE AMO UNT SO RECEIVED FROM PROCEED OF SALE OF AGRICULTURAL LAND WAS EXEMPTED A ND ASSESSING OFFICER ALSO ACCEPTED THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/ S 2(14)(III) OF THE ACT. IN THIS SITUATION, WE ARE UNABLE TO ACCEPT THIS CONTEN TION OF THE AUTHORITIES BELOW THAT THE ASSESSEE HAS EITHER FURNISHED INACCU RATE PARTICULARS OF HIS INCOME OR HAS CONCEALED PARTICULARS OF HIS INCOME. FROM THE IMPUGNED ORDER, WE OBSERVE THAT THE COMMISSIONER OF INCOME T AX(A) HAS HELD THAT THE ASSESSEE HAS NOT FILED ANY APPEAL AGAINST ASSESSMEN T ORDER, THEREFORE, THE ASSESSMENT ATTAINED FINALITY AND THE SUBMISSIONS OF THE ASSESSEE CHALLENGED THE ASSESSMENT ITSELF WHICH COULD NOT BE CHALLENGED COLLATERALLY IN THE PENALTY PROCEEDINGS. THE COMMISSIONER OF INCOME TA X(A) HAS RELIED ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF DH ARMENDER TEXTILE 306 ITR 277(SC). IN THIS CASE, THE HONBLE APEX COURT HAS HELD THAT PENALTY U/S 271(1)(C) OF THE ACT IS A CIVIL LIABILITY AND THE S AID SECTION HAS BEEN ENACTED TO PROVIDE A REMEDY FOR A LOSS OF REVENUE AND THAT WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING LIABILITY. WE RESPECTFULLY HOLD THAT BENEFIT OF THE RATIO OF THIS JUDGMENT IS NOT AVAILA BLE TO THE REVENUE IN THE PRESENT CASE BECAUSE WE ARE UNABLE TO SEE ANY WILLF UL CONCEALMENT OF INCOME BY THE ASSESSEE IN THE PRESENT CASE. ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 11 11. FOR LEVYING PENALTY U/S 271(1)(C) OF THE ACT, I T IS THE DUTY OF THE ASSESSING OFFICER TO BRING INCRIMINATING FACT THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF ITS INCOME AND/OR FURNISHED INACCURA TE PARTICULARS OF ITS INCOME BUT THE ASSESSING OFFICER MERELY CONSIDERED THE ISS UE IN A CRYPTIC MANNER. THE ASSESSING OFFICER FINALLY JUMPED TO THE CONCLUS ION THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME AND HAS FURNISH ED INACCURATE PARTICULARS OF HIS INCOME TO THE EXTENT OF RS. 3 LAKH. THE FIR ST APPELLATE AUTHORITY ALSO WRONGLY APPLIED RATIO OF JUDGMENT OF HONBLE SUPREM E COURT AND CONFIRMED THE PENALTY WITHOUT CONSIDERING THE MAIN ISSUE OF C ONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME. TO SUM UP, WE HOLD THAT THE FINDINGS OF THE AUTHORITIES BELOW ARE NOT SUSTAINABLE IN THE LIGHT OF FACTUAL MATRIX OF THE PRESENT CASE BECAUSE WE AR E UNABLE TO SEE ANY ACT ON THE PART OF THE ASSESSEE THAT HE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF SUCH INCOME . 12. FINALLY, RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF HARSH TALWAR (SUPRA); HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF COMMISSIONER OF INCOME TA X VS S.L.N. TRADERS (SUPRA) AND HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CAREERS EDUCATION & INFOTECH PVT. LTD.(SUPRA), WE HOLD THAT IN VIEW OF ABOVE FACTUAL MATRIX, THE PENALTY IS NOT IMPOSABLE ON THE ASSESSE E AND WE HOLD THAT ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 12 FINDINGS AND OBSERVATIONS OF THE AUTHORITIES BELOW ARE NOT SUSTAINABLE ON LEGAL GROUNDS AND THE SAME DESERVE TO BE SET ASIDE AND WE SET ASIDE THE SAME BY CANCELLING THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX(A). 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30.4.2013. SD/- SD/- (J.SUDHAKAR REDDY) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JU DICIAL MEMBER DT. 30TH APRIL 2013 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR ITA NO.3870/DEL/2012 ASSTT.YEAR: 2004-05 13