KALPESH B JAIN, MUMBAI V. ITO 14(1)(2), MUMBAI

ITA 4282/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8104 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 08-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2015
• Court: TRIBUNAL
• Keywords: Business income; Reasonable cause
• Section: 133A; 148; 139

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES , C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER, A ND SHR I MANOJ KUMAR AGGARWAL , A CCOUNTANT M EMBER ITA NO . 4282 /MUM/2015 ASSESSMENT YEAR: 20 08 - 09 SHRI KALPESH B JAIN C/O. M/S. RAJASTHAN CORPORATION NO.62/63, VITHALWADI, 2 ND FLOOR, KALBADEVI ROAD, MUMBAI 400 002 / VS. INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) OFFICER 14(1)(2), MUMBAI ( / REVENUE) ( /ASSESSEE) PAN. NO . A FHPJ5722Q / DATE OF HEARING: 0 8 /0 3 /2017 / DATE OF ORDER : 08 /03 /2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 11/03/2015 OF THE LEARNED FIRST APPELLATE AUTHORITY, MUMBAI CONFIRMING PENALTY OF RS.6,50,640/ - IMPOS ED U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). / REVENUE BY MR. RAJAT MITTAL - DR / ASSESSEE BY NONE ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 2 2. DURING HEARING OF THIS APPEAL, NONE WAS PRESENT FOR THE ASSESSEE WHEREAS SHRI RAJAT MITTAL, LEARNED DR WAS PRESENT FOR THE REVENUE. WE FIND THAT THIS APPEAL WAS FILED BY THE ASSESSEE ON 10/07/2015 AS IS EVIDENT FROM THE ORDER SHEET ENTRY DATED 04/07/2016. THIS APPEAL WAS FIXED FOR HEARING FOR 17/08/2016, WHEREIN THE ASSESSEE SOUGHT ADJOURNMENT AND THE APPEAL WAS ADJOURNED TO 27/09/2016. ON THE NEXT DATE OF HEARING, I.E., 27/09/2016 THE A SSESSEE AGAIN SOUGHT ADJOURNMENT AND THE APPEAL WAS ADJOURNED TO 28/09/2016. AGAIN ON 28/09/2016 THE APPEAL WAS ADJOURNED TO 20/10/2016. AGAIN ON 20/10/2016, AT THE REQUEST OF THE ASSESSEE, THE APPEAL WAS ADJOURNED TO 15/12/2016. TODAY, ON 08/03/2017, THE ASSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE HIS APPEAL. IT IS THE DUTY OF THE ASSESSEE TO MAKE EFFECTIVE REPRESENTATION BEFORE THE BENCH, BUT THAT WAS NOT DON E . THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX - PARTE QUA THE ASSESSEE AND TEND TO DISPOSE OF THIS APPEAL ONLY ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. THE LEARNED DR SHRI RAJAT MITTAL INVITED OUR ATTENTION TO VARIOUS PARAS OF THE IMPUGNED ORDER, PENALTY ORDER, ASSESSMENT ORDER AND FINDING CONTAINED THEREIN BY ASSERTING THAT THE ONUS COST UPON THE ASSESSEE WITH RESPECT TO DEPOSIT OF CASH WAS NEVER DISCHARGED AS NO EVIDENCE WAS ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 3 FURNISHED BY THE ASSESSEE EXPLAINING THAT THE CASH BELONGS TO H IS FATHER AND EVEN THE SOURCE OF THE CASH WAS NOT EXPLAINED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LEARNED DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL DECLARED INCOME OF RS.99,811/ - IN HIS RETURN FILED ON 28/01/2009 WHICH WAS PROCESSED US.143(1) OF THE ACT. NOTICE U/S.143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS ACCOUNT AMOUNTING TO RS.19,8 3,400/ - . THE ASSESSEE CLAIMED THAT THE SAID DEPOSIT AMOUNTING TO RS.19,60,000/ - BELONGS TO SHRI JAWAHARLAL JAIN WHO DEPOSITED THE CASH IN HIS BANK ACCOUNT AND THE REMAINING AMOUNT OF RS.24,400/ - IS OUT OF REGULAR BOOKS OF ACCOUNT. IN SUPPORT OF THIS CONTEN TION, THE ASSESSEE FURNISHED AFFIDAVIT FROM S/O. LATE JAWAHARLAL JAIN. NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE LEARNED ASSESSING OFFICER IMPOSED PENALTY OF RS.6,50,640/ - U/S.271(1)(C) OF THE ACT. 5. ON APPEAL BEFORE THE LEARNED CIT(A) THE F ACTUAL MATRIX WAS CONSIDERED AND ULTIMATELY IT WAS OBSERVED THAT NO EVIDENCE IN SUPPORT OF THE CLAIM THAT THE CASH BELONGS TO HIS FATHER WAS ADDUCED. THE SOURCE OF CASH WAS ALSO NOT EXPLAINED. THE ASSESSEE FURNISHED THE COPY OF RETURN FILED IN THE NAME OF HIS FATHER ON 16/12/2010 FOR ASSESSMENT YEAR 2008 - 09 SHOWING BUSINESS INCOME OF RS.1,74,094/ - ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 4 U/S.44AF OF THE ACT. IT WAS ALSO NOT EXPLAINED AS TO HOW SHRI KISHAN J JAIN ACKNOWLEDGED ABOUT THE AFFAIRS OF HIS FATHER AND THE SOURCE OF CASH IN THE HANDS OF LATE JAWAHARLAL JAIN. THE SOURCE AND AVAILABILITY OF CASH IN THE HANDS OF LATE JAWAHARLAL JAIN WAS ALSO NOT EXPLAINED AND ALSO AS TO WHY AND HOW THE CASH WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. CONSIDERING THE TOTALITY OF FACTS, W E FIND MERIT IN THE CONTENTION OF THE LEARNED DR. 6. IN THE LIGHT OF THE FOREGOING DISCUSSION, NOW WE SHALL EXAMINE THE RELEVANT PROVISION OF SECTION 271 (1) (C) OF THE ACT WHICH IS REPRODUCED HEREUNDER FOR READY REFERENCE AND ANALYSIS: - 271. (1) IF THE ASSESSING OFFIC ER OR THE COMMISSIONER (APPEALS) OR THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON XXXXXXXXXXXXXXXXXXXXX ( C ) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE P ARTICULARS OF SUCH INCOME, OR XXXXXXXXXXXXXXXXXXXXXXXXXX EXPLANATION 1. WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, ( A ) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHIC H IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE 48 [PRINCIPAL COMMISSIONER OR] COMMISSIONER TO BE FALSE, OR ( B ) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO S UBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE ( C ) ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 5 OF THIS SUB - SECTION, BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. XXXXXXXXXXXXXXXXXXX EXPLANATION 2. WHERE THE SOURCE OF ANY RECEIPT, DEPOSIT, OUTGOING OR INVESTMENT IN ANY ASSESSMENT YEAR IS CLAIMED BY ANY PERSON TO BE AN AMOUNT WHICH HAD BEEN ADDED IN COMPUTING THE INCOME OR DEDUCTED IN COMPUTING THE LOSS IN THE ASSESSMENT OF SUCH PERSON FOR ANY EARLIER ASSESSMENT YEAR OR YEARS BUT IN RESPECT OF WHICH NO PENALTY UNDER CLAUSE ( III ) OF THIS SUB - SECTION HAD BEEN LEVIED, THAT PART OF THE AMOUNT SO ADDED OR DEDUCTED IN SUCH EARLIER ASSESSMENT YEAR IMMEDIATELY PRECEDING THE YEAR IN WHICH THE RECEIPT, DEPOSIT, OUTGOING OR INVESTMENT APPEARS (S UCH EARLIER ASSESSMENT YEAR HEREAFTER IN THIS EXPLANATION REFERRED TO AS THE FIRST PRECEDING YEAR) WHICH IS SUFFICIENT TO COVER THE AMOUNT REPRESENTED BY SUCH RECEIPT, DEPOSIT OR OUTGOING OR VALUE OF SUCH INVESTMENT (SUCH AMOUNT OR VALUE HEREAFTER IN THIS EXPLANATION REFERRED TO AS THE UTILISED AMOUNT) SHALL BE TREATED AS THE INCOME OF THE ASSESSEE, PARTICULARS OF WHICH HAD BEEN CONCEALED OR INACCURATE PARTICULARS OF WHICH HAD BEEN FURNISHED FOR THE FIRST PRECEDING YEAR; AND WHERE THE AMOUNT SO ADDED OR DED UCTED IN THE FIRST PRECEDING YEAR IS NOT SUFFICIENT TO COVER THE UTILISED AMOUNT, THAT PART OF THE AMOUNT SO ADDED OR DEDUCTED IN THE YEAR IMMEDIATELY PRECEDING THE FIRST PRECEDING YEAR WHICH IS SUFFICIENT TO COVER SUCH PART OF THE UTILISED AMOUNT AS IS NO T SO COVERED SHALL BE TREATED TO BE THE INCOME OF THE ASSESSEE, PARTICULARS OF WHICH HAD BEEN CONCEALED OR INACCURATE PARTICULARS OF WHICH HAD BEEN FURNISHED FOR THE YEAR IMMEDIATELY PRECEDING THE FIRST PRECEDING YEAR AND SO ON, UNTIL THE ENTIRE UTILISED A MOUNT IS COVERED BY THE AMOUNTS SO ADDED OR DEDUCTED IN SUCH EARLIER ASSESSMENT YEARS. EXPLANATION 3. WHERE ANY PERSON FAILS, WITHOUT REASONABLE CAUSE, TO FURNISH WITHIN THE PERIOD SPECIFIED IN SUB - SECTION (1) OF SECTION 153 A RETURN OF HIS INCOME WHICH HE IS REQUIRED TO FURNISH UNDER SECTION 139 IN RESPECT OF ANY ASSESSMENT YE AR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 1989, AND UNTIL THE EXPIRY OF THE PERIOD AFORESAID, NO NOTICE HAS BEEN ISSUED TO HIM UNDER CLAUSE ( I ) OF SUB - SECTION (1) OF SECTION 142 OR SECTION 148 AND THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) IS SATISFIED THAT IN RESPECT OF SUCH ASSESSMENT YEAR SUCH PERSON HAS TAXA BLE INCOME, THEN, SUCH PERSON SHALL, FOR THE PURPOSES OF CLAUSE ( C ) OF THIS SUB - SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME IN RESPECT OF SUCH ASSESSMENT YEAR, NOTWITHSTANDING THAT SUCH PERSON FURNISHES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF THE PERIOD AFORESAID IN PURSUANCE OF A NOTICE UNDER SECTION 148 . XXXXXXXXXXXXXXXXXXX (5) THE PROVISIONS OF THIS SECTION AS THEY STOOD IMMED IATELY BEFORE THEIR AMENDMENT BY THE DIRECT TAX LAWS ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 6 (AMENDMENT) ACT, 1989 SHALL APPLY TO AND IN RELATION TO ANY ASSESSMENT FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1988, OR ANY EARLIER ASSESSMENT YEAR AND REFERENCES IN THIS SECTION TO THE OTHER PROVISIONS OF THIS ACT SHALL BE CONSTRUED AS REFERENCES TO THOSE PROVISIONS AS FOR THE TIME BEING IN FORCE AND APPLICABLE TO THE RELEVANT ASSESSMENT YEAR. 7. CONSIDERING THE PROVISION OF THE ACT, MATERIAL FACTS AVAILABLE ON RECORD, AND THE RATIO LAID DOWN IN FOLLOWING CASES, IT CAN BE CONCLUDED THAT IT WAS A CONSCIOUS ACT OF THE ASSESSEE TO HID E SOMETHING FROM THE DEPARTMENT AS NEITHER THE SOURCE OF CASH WAS EXPLAINED BY THE ASSESSEE NOR ANY PLAUSIBLE REASONING WAS ADDUCED AT ANY STAGE. I . CIT VS S ATISH MEDICAL AGENCIES 277 ITR 394 (ALL.) II . JYOTI LAXMAN KONKAR VS CIT 292 ITR 163 (BOM.), III . DEEPAK CONSTRUCTION COMPANY VS CIT 293 ITR 285(GUJ.) IV . CIT VS MAHAVIR PRASAD BAJAJ 298 ITR 109(JHAR.) V . D & H SECHERON ELECTRODS PVT. LTD. VS CIT 281 ITR 421 (MP.) VI . SHRI NI THYAKALYANI TEXTILES LTD. VS DCIT 282 ITR 154 (MAD.) VII . LMP PRECISION ENGINEERING COMPANY LTD. VS DCIT (330 ITR 93) (GUJ.) VIII . CIT VS DEEP CHAND 336 ITR 292 (P & H) IX . SETHY INDUSTRIES CORPORATION VS DCIT 338 ITR 243 (P &H) X . B.DAMODAR V.B. JEWELLERS VS JCIT 353 IT R 206 (KARNA.) XI . STANDARD HIND COMPANY VS CIT (2014) 361 ITR 370 (ALL.) XII . BAJRANG GLASS EMPORIUM VS CIT (2014) 361 ITR 376 (ALL.) XIII . INDUS ENGINEERING COMPANY VS ACIT (2010) 323 ITR 302 (BOM.), ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 7 8. THE HON'BLE APEX COURT IN THE CASE OF MAK DATA P. LTD. VS. COMMIS SIONER OF INCOME TAX (2013) 263 CTR (SC) 1 : (2013) 358 ITR 593 (SC) : (2013) 94 DTR (SC) 379 HELD AS UNDER: - 6. WE HAVE HEARD COUNSEL ON EITHER SIDE. WE FULLY CONCUR WITH THE VIEW OF THE HIGH COURT THAT THE TRIBUNAL HAS NOT PROPERLY UNDERSTOOD OR APPRECIA TED THE SCOPE OF EXPLANATION 1 TO SECTION 271(1) (C) OF THE ACT, WHICH READS AS FOLLOWS : 'EXPLANATION 1 WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - (A) SUCH PERSON FAILS TO OFFER AN EXP LANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE COMMISSIONER TO BE FALSE, OR (B)/ - SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB - SECTION, BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED.' THE AO, IN OUR VIEW, SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE 'VOLUNTARY DISCLOSURE', 'BUY PEACE', 'AVOI D LITIGATION', 'AMICABLE SETTLEMENT', ETC. TO EXPLAIN AWAY ITS CONDUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. EXPLANATION TO SECTION 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AO, BETWEEN REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS TAXPUNDIT.ORG PLACED BY THE EXPL ANATION, HAS BEEN DISCHARGED BY HIM, THE ONUS SHIFTS ON THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE INCOME AND NOT OTHERWISE. ASSESSEE HAS ONLY STATED THAT HE HAD SURRENDERED THE ADDITIONAL SUM OF RS.40,74,000/ - WITH A VIEW TO AVOID 7 L ITIGATION, ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 8 BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TOWARDS PRODUCTIVE WORK AND TO MAKE AMICABLE SETTLEMENT WITH THE INCOME TAX DEPARTMENT. STATUTE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES UNDER THE EXPLANATION 1 TO SECTION 271(1)(C) OF THE A CT. IT IS TRITE LAW THAT THE VOLUNTARY DISCLOSURE DOES NOT RELEASE THE APPELLANT - ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HIS CONCEALED INCOME, HE HAD TO BE ABSOLVED FRO M PENALTY. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTION MADE BY THE AO IN THE SEARCH CONDUCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATION , IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOCUMENTS COMPRISING OF SHARE APPLICATION FORMS, BANK STATEMENTS, MEMORANDUM OF ASSOCIATION OF COMPANIES, AFFIDAVITS, CO PIES OF INCOME TAX RETURNS AND ASSESSMENT ORDERS AND BLANK SHARE TRANSFER 8 DEEDS DULY SIGNED, HAVE BEEN IMPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CONDUCTED ON 16.12.2003, IN THE CASE OF A SISTER CONCERN OF THE ASSESSEE. THE SURVEY W AS CONDUCTED MORE THAN 10 MONTHS BEFORE THE ASSESSEE FILED ITS RETURN OF INCOME. HAD IT BEEN THE INTENTION OF THE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE OF ITS INCOME, IT WOULD HAVE FILED THE RETURN DECLARING AN INCOME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERED LATER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. CONSEQUENTLY, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS TRUE INCOME. IT IS THE STATUTORY DUTY OF THE ASSESSEE TO RECORD ALL ITS TRANSACTIONS IN THE BOOKS OF ACCOUNT, TO EXPLAIN THE SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCOME IN THE RETURN OF INCOME FILED BY IT FROM YEAR TO YEAR. THE AO IN OUR VIEW, HAS RECORDED A CATEGORICAL FINDING THAT HE WAS SATISFIED THAT THE ASSESSEE HAD CONCEALED TRUE PARTICULARS O F INCOME AND IS LIABLE FOR PENALTY PROCEEDINGS UNDER SECTION 271 READ WITH SECTION 274 OF THE INCOME TAX ACT, 1961. THE AO HAS TO SATISFY WHETHER THE PENALTY PROCEEDINGS BE INITIATED OR NOT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THE AO IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING. THE SCOPE OF SECTION 271(1)(C) HAS ALSO BEEN ELABORATELY ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 9 DISCUSSED BY THIS COURT IN UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS (2008) 13 SCC 369 AND CIT VS . ATUL MOHAN BINDAL (2009) 9 SCC 589. THE PRINCIPLE LAID DOWN BY THIS COURT, IN OUR VIEW, HAS BEEN CORRECTLY FOLLOWED BY THE REVENUE AND WE FIND NO ILLEGALITY IN THE DEPARTMENT INITIATING PENALTY PROCEEDINGS IN THE INSTANT CASE. WE, THEREFORE, FULLY AGREE WITH THE VIEW OF THE HIGH COURT. HENCE, THE APPEAL LACKS MERI AND IS DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. 9. IN THE LIGHT OF THE FOREGOING DISCUSSION AND THE RATIO LAID DOWN IN THE AFOREMENTIONED CASES, WE FIND THAT THE ASSESSEE WAS WELL AW ARE THAT HE WAS HAVING CASH IN HIS BANK ACCOUNT WHICH WAS NOT DISCLOSED TO THE REVENUE. THE DEPARTMENT GOT INFORMATION THROUGH AIR THAT THE ASSESSEE WAS HAVING BANK ACCOUNT WHEREIN THERE WAS A CASH DEPOSIT OF RS.19,84,400/ - . WE OBSERVE THAT IT WAS A CONSCI OUS AND DELIBERATE ACT ON THE PART OF THE ASSESSEE TO HIDE SOMETHING, CONSEQUENTLY, THE PENALTY WAS RIGHTLY IMPOSED. FOR IMPOSING PENALTY U/S. 171(1)( C) OF THE ACT, EITHER THERE SHOULD BE CONCEALMENT OF INCOME OR FURNISHING THE INACCURATE PARTICULARS OF S UCH INCOME. THE MATERIAL FACTS, AVAILABLE ON RECORD CLEARLY INDICATES THAT THE ASSESSEE DELIBERATELY CONCEALED HIS INCOME/FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, THEREFORE, IN MY VIEW, THE PENALTY WAS RIGHTLY IMPOSED BY THE ASSESSING OFFICER AND C ONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 4282/MUM/2015 SHRI KALPESH B JAIN 10 TH IS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CO NCLUSION OF THE HEARING ON 08 / 03 /201 7. S D/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 08 /0 3 /2017 KARUNA , SR. P.S/. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI , 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI