DCIT, New Delhi V. Sh. Ashish Jain, New Delhi

ITA 4235/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2913 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: V K AGGARWAL
• Keywords: Business income; Search and seizure; Revised return
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI O. P. KANT, ACCOUNTANT MEMBER I.T.A. NO.4235/DEL/2013 ASSESSMENT YEAR: 2009-10 DY.CIT, CIRCLE-11(1), NEW DELHI. V. SHRI ASHISH JAI N, A-5, MALCHA MARG, NEW DELHI. TAN/PAN:AAAPJ 0458P (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. APARNA KARAN, CIT(DR) RESPONDENT BY: SHRI V.K. AGGARWAL, AR DATE OF HEARING: 11 12 2017 DATE OF PRONOUNCEMENT: 14 12 2017 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 30/04/2013 PASSED BY TH E LD. CIT (APPEALS)-XIII, NEW DELHI IN RELATION TO PENALTY PR OCEEDINGS U/S.271(1)(C) FOR THE ASSESSMENT YEAR 2009-10. 2. THE REVENUE IS MAINLY AGGRIEVED BY DELETION OF PE NALTY OF RS.3,59,84,728/- BY LD. CIT (APPEALS) WHICH WAS DEC LARED BY THE ASSESSEE IN HIS REVISED RETURN OF INCOME. 3. THE BRIEF FACTS QUA THE ISSUE INVOLVED ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHO HAS FILED HIS RETURN OF INCOME U/S.139(1) ON 30 TH SEPTEMBER, 2009 DECLARING TOTAL INCOME OF RS.69,26,801/-. AFTER THE PERIOD OF THREE MONTHS, THE A SSESSEE I.T.A. NO.4235/DEL/2013 2 SUO-MOTTO FILED A REVISED RETURN OF INCOME ON 18.01.2010 DECL ARING TOTAL INCOME OF RS.11,38,33,301/-, THEREBY SHOWING ADD ITIONAL INCOME OF RS.10,69,06500/-. THE ASSESSING OFFICER, HAS ACCEPTED THE REVISED RETURN, HOWEVER INITIATED THE PENALTY PROCE EDINGS U/S.271(1)(C) ON THE GROUND THAT ASSESSEE HAS SURREN DERED THE AMOUNT OF RS.10,69,06,500/- AFTER THE SEARCH OPERATION IN THE CASE OF N. SURYANARAYAN GROUP OF CASES. ACCORDINGLY , IN THE PENALTY PROCEEDINGS ALSO ASSESSING OFFICER HAD OBSE RVED THAT IT WAS IN THE WAKE OF SEARCH AND SEIZURE OPERATION CONDU CTED IN THE CASE OF N. SURYANARAYN GROUP ON 09.10.2010, THAT ASS ESSEE HAD OFFERED THE ADDITIONAL INCOME IN THE REVISED RETURN AN D AFTER INCORPORATING THE RELEVANT EXTRACT FROM THE ASSESSMENT O RDER, HE HELD THAT ASSESSEE HAS CONCEALED THE INCOME TO THE EXTE NT OF ADDITIONAL INCOME OFFERED IN THE REVISED RETURN AND AC CORDINGLY, LEVIED THE PENALTY AFTER INVOKING EXPLANATION-1 TO SEC TION 271(1)(C) FOR A SUM OF RS.3,59,84,728/-. 4. BEFORE LD. CIT(A), THE ASSESSEE HAD SUBMITTED TH AT THE ADDITIONAL INCOME WHICH HAS BEEN OFFERED WAS ALREADY ACCOUNTED FOR IN BOOKS OF ACCOUNT BY THE ASSESSEE AS THE INCOME FROM BUSINESS FOR THE NEXT YEAR ASSESSMENT YEAR 2010-11 AT RS.10,09,06,500/- AND IN FACT FIRST INSTALLMENT OF ADVA NCE TAX OF RS.80 LAKHS WAS ALSO PAID ON 29.10.2009 FOR THE ASSE SSMENT YEAR 2010-11. WHEN THE ORIGINAL RETURN WAS FILED ON 30.09. 2009 FOR ASSESSMENT YEAR 2009-10, THE ASSESSEE HAD NOT INCLUDE D THE SAID SUM ON THE GROUND THAT ASSESSEE HAS ACCOUNTED THE SAME IN THE NEXT YEAR. SUBSEQUENTLY THE ASSESSEE SHIFTED THIS AMOU NT TO BE TAXED IN THE ASSESSMENT YEAR 2009-10 AND A REVISED RETU RN WAS FILED VOLUNTARILY ON 18.01.2010 AND THE CREDIT FOR ADV ANCE TAX OF RS.80 LAKHS WAS ALSO CLAIMED FOR THE ASSESSMENT YEAR 2009-10, I.T.A. NO.4235/DEL/2013 3 WHICH HAS BEEN DULY ALLOWED BY THE ASSESSING OFFICE R. THE BRIEF FACTS PERTAINING TO ADDITIONAL INCOME OFFERED IN THIS Y EAR WERE STATED IN THE FOLLOWING MANER:- 3. SEARCH U/S 132 WAS CONDUCTED IN THE CASE OF N. SURYANARAYANAN GROUP OF CASES ON 09/10/2009. DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE FOUND. ONE OF THE DOCUMENTS IS THE AGREEMENT DATED 11/11/2008 BETWEEN ADVITIYA FABRICS PVT. LTD. AND NEW IDEA ASIA, A PRO PRIETARY CONCERN OF THE APPELLANT ACCORDING TO WHICH RS. 4,2 7,62,600/- WERE RECEIVED AS ADVANCE BY M/S NEW IDEA ASIA BY WA Y OF CH. NO. 410911 DT. 11/11/2008 DRAWN ON HDFC BANK. M /S NEW IDEA ASIA WAS TO PROVIDE, AT ITS COST AND EXPEN SE, VARIOUS SERVICES TO THE OTHER PARTY LIKE OBTAINING REQUISITE LICENSES, PERMISSIONS, SANCTIONS AND APPROVALS OF A LL THE CONCERNED STATUTORY AND OTHER AUTHORITIES FOR THE D EVELOPMENT, CONSTRUCTION, COMPLETION AND SALE OF THE RESIDENTIA L PROJECT TO BE CONSTRUCTED BY THE OTHER PARTY. IN THE NEXT YEAR , SOME DISPUTES AROSE BETWEEN THE TWO PARTIES AND THE AMOU NT WAS FORFEITED. THE OTHER DOCUMENT WAS AN MOU DATED 17/1 1/2008 BETWEEN M/S NEW IDEA ASIA AND M/S CHANDRAGUPTA TRAD ERS PVT. LTD. ACCORDING TO WHICH M/S NEW IDEA ASIA WILL BE CONSTRUCTING 38 BUNGALOWS TO BE PURCHASED BY THE OT HER PARTY FOR A CONSIDERATION OF RS.42,46,00,000/-. THE PURCH ASER PAID RS.6443900/- TO M/S. NEW IDEA ASIA AS EARNEST MONEY VIDE CHEQUE NO.432365 DATED 11.11.2008 DRAWN ON HDFC BAN K. THE MOU ALSO PROVIDED THAT IN CASE THE PURCHASER RE SCINDS THE MOU, THE VENDOR SHALL FORFEIT THE EARNEST MONEY . THERE WAS ANOTHER MOU BETWEEN M/S. NEW IDEA ASIA AND M/S. CHANDRAGUPTA TRADERS PVT. LTD. SIGNED IN THE NEXT Y EAR VIDE WHICH THE ABOVE MOU DATED. 17.11.2008 WAS CANCELLED AND THE AMOUNT OF RS.64143900/- WAS FORFEITED. THIS FAC T WAS CONFIRMED VIDE LETTER DATED 24.11.2009 WRITTEN BY M /S. NEW IDEA ASIA TO M/S. S. CHANDRAGUPTA TRADERS PVT. LTD. CONFIRMING THE RESCISSION OF THE MOU DATED 17.11.20 08 WHICH WAS DULY SIGNED BY BOTH THE PARTIES. IN VIEW OF THE SE FACTS, BOTH THE AMOUNTS ACCRUED IN THE F.Y. 2009-10 PERTAI NING TO I.T.A. NO.4235/DEL/2013 4 A.Y.2010-11. THEREFORE, THE ASSESSEE ACCOUNTED FOR THE INCOME OF RS.10,09,06,500/- (42762600 + 64143900) I N A.Y. 2010-11 AND PAID ADVANCE TAX THEREON. 5. IT WAS FURTHER SUBMITTED THAT NO SEARCH AND SURVEY AC TION WAS UNDERTAKEN IN THE CASE OF THE ASSESSEE AND ASSESSE E HIMSELF HAS ACCOUNTED FOR THE ENTIRE AMOUNT IN THE BOOKS OF ACCO UNT OF M/S. NEW IDEA ASIA, A PROPRIETORSHIP CONCERN OF THE A SSESSEE, AS BUSINESS INCOME IN THE FINANCIAL YEAR 2009-10. IN T HE REVISED RETURN THE ASSESSEE HAD MADE FOLLOWING DISCLOSURE. IN RESPECT OF ABOVE SAID MATTER, IT IS STATED THAT I HAVE ALREADY OFFERED CERTAIN ADVANCES AS INCOME FOR THE PURPOSE OF TAXATION FOR THE YEAR ENDED 31/03/2009 INSTEAD OF T HE SAME BEING REFLECTED AS INCOME FOR THE IMMEDIATELY SUCCE EDING YEAR. UNDOUBTEDLY, THE SAID ADVANCES WERE RECEIVED THROUG H NORMAL BANKING CHANNEL AND WERE DULY REFLECTED IN THE BOOK S OF ACCOUNTS. NOTHING WAS HIDDEN OR VEILED AS SUCH AND ONLY TAXATION OF SUCH RECEIPT, INSTEAD OF HAVING BEEN OF FERED IN THE FINANCIAL YEAR 2009-10 WAS VOLUNTARILY OFFERED BY M E IN THE IMMEDIATELY PRECEDING FINANCIAL YEAR I.E. 2008-09. IT IS THEREFORE REQUESTED THAT NEITHER ANY PENALTY NOR ANY OTHER PUNITIVE ACTION OF ANY NATURE WHATSOEVER WILL EITHE R BE INITIATED OR IMPOSED AGAINST ME OR ANY OF MY CONCER NS CONSEQUENT TO THE OFFER MADE AS STATED ABOVE. 6. IT WAS FURTHER SUBMITTED THAT MUCH AFTER THE FILING OF REVISED RETURN, FIRST NOTICE U/S. 143(2) WAS ISSUED ON 25.08.2010 AND SHOW CAUSE NOTICE ON THIS POINT WAS ISSUED ON 09. 12.2011 BY THE ASSESSING OFFICER. THUS, THE REVISED RETURN WAS FI LED VOLUNTARILY MUCH BEFORE THE INVESTIGATION WAS STARTED OR QUERY WAS RAISED BY THE ASSESSING OFFICER ON 09.12.2011. THERE AFTER, ASSESSEE HAD RELIED UPON VARIOUS JUDGMENTS AND CASE LAWS WHICH I.T.A. NO.4235/DEL/2013 5 HAS BEEN DEALT AND INCORPORATED BY THE LD. CIT (A) IN HIS ORDER FROM PAGES 5 TO 11 OF THE APPELLATE ORDER. 7. LD. CIT(A), HAS DELETED THE SAID PENALTY A FTER TAKING NOTE OF THE FACTUAL BACKGROUND AND HELD THAT HERE THE RETURN HAS BEEN REVISED BY OFFERING THE ADDITIONAL INCOME MUCH BEFORE THE ISSUANCE OF NOTICE U/S.143(2), I.E., PRIOR TO THE SELECTION OF THE CASE FOR SCRUTINY WHICH WAS ON 28.05.2010 AND THE FIRST SHOW CAUSE NOTICE BY THE ASSESSING OFFICER WAS ISSUED ON 09.12.2011. HE HELD THAT IN SUCH FACTS AND CIRCUMSTANCES THE REVISED RETURN IS NOT O NLY VOLUNTARILY BUT ALSO NO PENALTY U/S. 271(1)(C) CAN BE LEVIED FOR CONCEALMENT OF INCOME. HE ALSO TOOK NOT OF THE FACT THAT NO SURVEY OR SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE, ALBEIT IT WAS IN THE CASE OF THE THIRD PARTY AND THE ADDITIONAL INCOM E WHICH IS SUBJECT MATTER OF THE LEVY OF PENALTY THE ASSESSEE HAS REFLECTED IN THE BOOKS AS HIS BUSINESS INCOME IN THE SUBSEQUENT ASS ESSMENT YEAR AND ASSESSEE HAS MERELY SHIFTED THE INCOME FROM ASSESSMENT YEAR 2010-11 TO 2009-10 AND HENCE THERE IS NO CASE OF CONCEALMENT OF INCOME. WHILE COMING TO HIS CONCLUSIO N HE ALSO REFERRED AND ALSO RELIED UPON CATENA OF DECISIONS AS CITED BY HIM IN HIS ORDER. 7. BEFORE US LD. D.R. STRONGLY RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE VERY FACT THAT THE REVISED RETURN OF INCOME WAS FILED WHEN DOCUMENTS AND MATERIAL FOUND IN THE COURSE OF A SEARCH OF A THIRD PARTY WHICH WAS CO NDUCTED PRIOR TO THE FILING OF THE REVISED RETURN AND IT WAS BASED TH IS EVENT THAT THE ASSESSEE WAS FORCED TO OFFER THIS ADDITIONAL INCOM E IN THE REVISED RETURN AND HENCE SAME CANNOT BE TREATED AS VOL UNTARILY I.T.A. NO.4235/DEL/2013 6 AND ASSESSING OFFICER HAS RIGHTLY LEVIED THE PENALTY ON SUCH ADDITIONAL INCOME OFFERED IN THE REVISED RETURN OF INC OME. 8. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSE E AFTER REITERATING THE OBSERVATIONS MADE BY THE LD. CIT(A) IN THE IMPUGNED APPELLATE ORDER, SUBMITTED THAT HEREIN IN THIS C ASE IT CANNOT BE DISPUTED THAT, FIRSTLY, NO SEARCH AND SURVEY ACTION WAS TAKEN IN THE CASE OF THE ASSESSEE WHICH COULD BE SAI D TO HAVE PERSUADED THE ASSESSEE FOR OFFERING THE ADDITIONAL IN COME AND THE REVISED RETURN OF INCOME; SECONDLY, REVISED RETURN WAS FILED ON 18.01.2010 MUCH BEFORE THE ASSESSEES CASE WAS SELEC TED FOR SCRUTINY WHICH IS EVIDENT FROM THE FACT THAT NOTICE U/S.1 43(2) WAS ISSUED AFTER THE PERIOD OF EIGHT MONTHS AND SHOW CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFICER ALMOST AFTER THE TWO Y EARS FROM THE DATE OF FILING OF REVISED RETURN; AND LASTLY, THIS INCOME WAS ALREADY ACCOUNTED FOR AS BUSINESS INCOME IN THE BOOKS OF ACCO UNT OF THE ASSESSEE TO BE OFFERED IN THE ASSESSMENT YEAR 2010-11 FOR WHICH ALREADY ADVANCED TAX WAS PAID. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE HELD THAT ASSESSEE HAD TRIED TO EITHER CONCEAL THE INCOME OR THE INCOME WHICH HAS BEEN OFFER ED IN THE REVISED RETURN WAS NOT VOLUNTARILY. THUS, ORDER OF THE LD. CIT (A) IN DELETING THE PENALTY SHOULD BE SUSTAINED. 9. WE HAVE HEARD THE RIVALS SUBMISSIONS, PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDER AS WELL AS THE MATERIAL REFERRED TO BEFORE US AT THE TIME OF HEARING. GOING BY SEQUENCE OF EVENTS AS PER THE FACTS NARRATED ABOVE, F OLLOWING CHRONOLOGY OF EVENT CAN BE DRAWN. I.T.A. NO.4235/DEL/2013 7 DATE EVENT 30.09.2009 THE ASSESSEE HAS FILED ORIGINAL RETURN OF INCOME U/S.139(1) DECLARING AN INCOME OF RS.69,26,801/- 09.10.2009 A SEARCH AND SEIZURE ACTION U/S.132 WAS CONDUCTED IN THE CASE OF N. SURYANARAYAN GROUP. IN ONE OF THE DOCUMENTS FOUND IN THE SEARCH, WAS AN AGREEMENT DATED 11.11.2008 BETWEEN ADVITIYA FABRICS PVT. LTD. AND NEW IDEA ASIA, (A PROPRIETARY CONCERN OF THE ASSESSEE) ACCORDING TO WHICH RS. 4,27,62,600/- WERE RECEIVED AS ADVANCE BY M/S NEW IDEA ASIA BY WAY OF CH. NO. 410911 DT. 11/11/2008 DRAWN ON HDFC BANK. M/S NEW IDEA ASIA WAS TO PROVIDE, AT ITS COST AND EXPENSE, VARIOUS SERVICES TO THE OTHER PARTY LIKE OBTAINING REQUISITE LICENSES, PERMISSIONS, SANCTIONS AND APPROVALS OF ALL THE CONCERNED STATUTORY AND OTHER AUTHORITIES FOR THE DEVELOPMENT, CONSTRUCTION, COMPLETION AND SALE OF THE RESIDENTIAL PROJECT TO BE CONSTRUCTED BY THE OTHER PARTY. IN THE NEXT YEAR, SOME DISPUTES AROSE BETWEEN THE TWO PARTIES AND THE AMOUNT WAS FORFEITED. THE OTHER DOCUMENT WAS AN MOU DATED 17/11/2008 BETWEEN M/S NEW IDEA ASIA AND M/S CHANDRAGUPTA TRADERS PVT. LTD. ACCORDING TO WHICH M/S NEW IDEA ASIA WILL BE CONSTRUCTING 38 BUNGALOWS TO BE PURCHASED BY THE OTHER PARTY FOR A CONSIDERATION OF RS.42,46,00,000/-. THE PURCHASER PAID RS.6443900/- TO M/S. NEW IDEA ASIA AS I.T.A. NO.4235/DEL/2013 8 EARNEST MONEY VIDE CHEQUE NO.432365 DATED 11.11.2008 DRAWN ON HDFC BANK. THE MOU ALSO PROVIDED THAT IN CASE THE PURCHASER RESCINDS THE MOU, THE VENDOR SHALL FORFEIT THE EARNEST MONEY. THERE WAS ANOTHER MOU BETWEEN M/S. NEW IDEA ASIA AND M/S. CHANDRAGUPTA TRADERS PVT. LTD. SIGNED IN THE NEXT YEAR VIDE WHICH THE ABOVE MOU DATED. 17.11.2008 WAS CANCELLED AND THE AMOUNT OF RS.64143900/- WAS FORFEITED. THIS FACT WAS CONFIRMED VIDE LETTER DATED 24.11.2009 WRITTEN BY M/S. NEW IDEA ASIA TO M/S. S. CHANDRAGUPTA TRADERS PVT. LTD. CONFIRMING THE RESCISSION OF THE MOU DATED 17.11.2008 WHICH WAS DULY SIGNED BY BOTH THE PARTIES. THE ASSESSEE ACCORDINGLY HAD ACCOUNTED FOR THIS AMOUNT ACCRUED IN THE FINANCIAL YEAR 2009-10 PERTAINING TO ASSESSMENT YEAR 2010- 11 ON WHICH ADVANCE TAX OF RS.80 LAKHS WAS PAID. 18.01.2010 THE ASSESSEE FILED REVISED RETURN OF INCOME DECLARING INCOME OF RS.11,38,33,301/- WHICH INCLUDED THE SAID ADDITIONAL INCOME OF RS.10,69,06,500/-. IN THE REVISED RETURN OF INCOME ASSESSEE HAD CLEARLY DISCLOSED THAT, ALREADY THIS AMOUNT HAS BEEN OFFERED AS INCOME FOR THE PURPOSE OF TAXATION IN THE BOOKS OF ACCOUNT IN THE FINANCIAL YEAR 2009-10 AND THESE ADVANCES HAD BEEN RECEIVED THROUGH NORMAL BANKING CHANNEL DULY REFLECTED IN THE BOOKS OF ACCOUNT AND ONLY TAXATION OF RECEIPT HAS BEEN SHIFTED IN THIS YEAR WHICH IS I.T.A. NO.4235/DEL/2013 9 PURELY VOLUNTARILY AND THEREFORE NO PENALTY OR ANY OTHER PUNITIVE ACTION OF ANY NATURE SHOULD BE INITIATED. 25.08.2010 NOTICE U/S. 143(2) HAS BEEN ISSUED BY THE ASSESSING OFFICER FOR SCRUTINY. 09.12.2011 THE FIRST SHOW CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFICER WHEREBY THIS ISSUE WAS RAISED BY THE ASSESSING OFFICER. 30.12.2011 ASSESSMENT ORDER U/S.143(3) HAS BEEN PASSED, WHEREIN THE REVISED RETURN FILED BY THE ASSESSEE HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE FOLLOWING MANNER: IN RESPONSE, ASSESSEE FILES VARIOUS DETAILS THROUG H ITS AUTHORIZED REPRESENTATIVE, WHICH ARE PLACED ON RECORD. SHRI ASHISH JAIN HAS ALREADY ACCEPTED RS. 10,69,06,500/- AS ADDITIONAL INCOME. THE CONTENTION OF SHRI ASHISH JAIN IS ACCEPTABLE. SHRI ASHISH JAIN BEEN ACCOUNTED IN THE BOOKS OF M/S NEW IDEA ASIA (PROPRIETARY MR. ASHISH JAIN) AS BUSINESS INCOME AND SAME HAS BEEN OFFERED TO TAX FOR THE ASSESSMENT YEAR 2009-10. SHRI ASHISH JAIN HAS REVISED HIS RETURN AND DEPOSITED TAX BY DECLARING INCOME OF RS.106906500/-. NO FURTHER ADDITION ON THIS ISSUE IS BEING MADE AND REVISED RETURN OF THE ASSESSEE IS ACCEPTED. I.T.A. NO.4235/DEL/2013 10 10. FROM THE AFORESAID FACTS AND EVENTS, IT IS QUITE APP ARENT THAT:- FIRSTLY, NO SEARCH AND SURVEY WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ALBEIT IT WAS IN THE CASE OF THE THIRD PARTY FROM WHERE IT WAS FOUND FROM THE DOCUMENTS THAT ONE OF THE PURCHASER HAD PAID AMOUNT TO THE PROPRIETORSHIP CONCER N OF THE ASSESSEE, WAS IN THE FORM OF EARNEST MONEY RECEIV ED THROUGH CHEQUE DRAWN ON AN HDFC BANK AND THERE WAS A CLEAR CUT PROVISION IN THE MOU THAT IN CASE THE PURCHA SER RESCINDS THE MOU THE VENDOR SHALL FORFEIT THE EARNEST M ONEY AND LATER ON THE AMOUNTS AGGREGATING TO RS.10,69,06,500 /- STOOD FORFEITED WHICH ASSESSEE HAD TREATED IS AS BUSI NESS INCOME IN THE BOOKS OF ACCOUNT IN THE FINANCIAL YEAR 2009-10 RELEVANT FOR THE ASSESSMENT YEAR 2010-11; SECONDLY, THE ASSESSEE BY WAY OF REVISED RETURN FILED ON 18.01.2010 HAS DECIDED TO OFFER THIS RECEIPT IN THE FI NANCIAL YEAR 2008-09, I.E., IN THE ASSESSMENT YEAR 2009-10 AN D ALSO REQUESTED THAT ADVANCE TAX PAID FOR SUM OF RS.80 LAKHS ON 29.10.2009 SHOULD BE TREATED ALLOWED AS CREDITED ON THIS INCOME FOR THE ASSESSMENT YEAR 2009-10 WHICH HAS BEEN ALLOWED BY THE ASSESSING OFFICER; LASTLY, NO INQUIRY OR NOTICE IN THE CASE OF THE ASSESSEE WA S CARRIED OUT PRIOR TO THE FILING OF THE REVISED RETUR N. THE FIRST SHOW CAUSE NOTICE IN THIS REGARD WAS ISSUED BY THE AS SESSING OFFICER ALMOST AFTER A GAP OF TWO YEAR AND THUS, IT C AN BE RECKONED THAT THE FILING OF REVISED RETURN IS PURELY V OLUNTARILY AND NOTHING HAS BEEN PRODUCED ON RECORD. I.T.A. NO.4235/DEL/2013 11 11. THE INCOME TAX DEPARTMENT OR INVESTIGATION WING NE VER ASKED THE ASSESSEE ABOUT THE ALLEGED ADDITIONAL INCOME ON ACCOUNT OF FORFEITURE OF EARNEST MONEY PRIOR TO THE FILING OF R EVISED RETURN. THUS, THE OBSERVATION AND THE FINDING OF THE LD. CIT(A) WHILE DELETING THE SAID ADDITIONS ARE UPHELD, BECAUSE AT NO P OINT OF TIME ASSESSEE WAS CORNERED BY THE DEPARTMENT WHICH WOULD C OMPELLED THE ASSESSEE FOR FILING OF REVISED RETURN. IT WAS PURE LY A VOLUNTARILY ACT AND THAT TO BE IT WAS A BUSINESS INCOME WHICH WAS A CCOUNTED FOR IN THE BOOKS OF ACCOUNT FOR THE SUBSEQUENT YEAR AND ASSESSEE HAS MERELY SHIFTED THE TAXABILITY IN THIS YEAR; AND HEN CE; THERE COULD NOT BE A REMOTEST CASE FOR LEVY OF PENALTY EITHE R FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF ANY INACC URATE PARTICULARS. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DECEMBER, 2017. SD/- SD/- [O.P. KANT] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14 TH DECEMBER, 2017 PKK: