Sh. Maninder Singh Prop. M/s Dashmesh Bricks, Bathinda V. The Income-tax Officer, Bathinda

ITA 440/ASR/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8204 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-12-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 30-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Question of law; Tax effect
• Section: 271(1)(c); 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A NO.440/ASR/2017 ASSES SMENT YEAR:2011-12 MANINDER SINGH, PROP. M/S. DASHMESH BRICKS MANUFACTURING, BATHINDA [PAN:ABVPS 1859B] VS. INCOME TAX OFFICER, WARD-2(1), BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIONS RESPONDENT BY: SH. CHARAN DASS (D.R) DATE OF HEARING: 13.12.2018 DATE OF PRONOUNCEMENT: 31.12.2018 ORDER PER SANJAY ARORA, A.M THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS), BATHINDA [(CITA) SHORT F OR] DATED 04.05.2017, DISMISSING THE ASSESSEES APPEAL CONTESTING THE CO NFIRMATION OF THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR ASSESSMENT YEAR (A.Y.) 2011-12 VIDE ORDER DATED 18 /2/2016. 2. THE ASSESSEE-INDIVIDUAL, RUNNING A BRICK KILN, W AS FOUND DURING ASSESSMENT PROCEEDINGS TO BE MAINTAINING A BANK ACCOUNT WITH I NDUS IND BANK (ACCOUNT NO. 0125 K52425 001), WHICH, HAVING A CREDIT BALANC E OF RS.6,97,480/- (AS ON 31.03.2001), WAS NOT DISCLOSED INASMUCH AS THE SAME DID NOT FORM PART OF HIS REGULAR BOOKS OF ACCOUNT. THE SAME BORE CASH DEPOSI TS DURING THE RELEVANT YEAR (I.E., F.Y. 2010-11) AT A TOTAL OF RS.47.60 LACS, QUA WHICH THE ASSESSEE WAS ACCORDINGLY QUESTIONED BY THE ASSESSING OFFICER (AO ). CASH DEPOSITS TO THE EXTENT OF RS.22.10 LACS WERE EXPLAINED TO BE OUT OF CASH A DVANCED BY HIS YOUNGER BROTHER, ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 2 SHRI BABU SINGH, WHO HAD SOLD LANDS FOR RS. 8.51 LA CS DURING OCTOBER/NOVEMBER, 2008 . THE PURPOSE OF THE ADVANCE WAS STATED TO BE SA FE CUSTODY. ANOTHER RS.3 LACS WAS STATED TO BE SIMILARLY RECEIVED FROM SHRI HARJEET SINGH, THE ASSESSEES BROTHER-IN-LAW. BOTH WERE SUMMONED BY THE AO TO VER IFY THE ASSESSEES CLAIMS, AND EXAMINED ON OATH IN THE PRESENCE OF THE ASSESSE E AND HIS COUNSEL (ON 28/ 01/2014), WHO ALSO IDENTIFIED THEM. SHRI BABU SINGH , AN AGRICULTURIST, STATED TO BE MAINTAINING A BANK ACCOUNT (WITH PNB), IN WHICH HE WOULD DEPOSIT RS.3-4 LACS CASH ON THE SALE OF CROP. HE HAD SOLD SOME LANDS DU RING THE YEAR 2010, PROCEEDS OF WHICH WERE USED BY HIM FOR AGRICULTURAL ACTIVITIES, I.E., PURCHASE OF AGRICULTURAL INPUTS; MAINTENANCE; MAKING PAYMENTS TO THE LANDLOR D/S TOWARD LEASE OF LAND. GIVING AND RECEIVING MONEY TO/FROM THE ASSESSEE WAS ADMITTED BY HIM, I.E., AS AND WHEN REQUIRED, WITHOUT CHARGING ANY INTEREST. HE, H OWEVER, DID NOT REMEMBER THE AMOUNT GIVEN BY HIM TO THE ASSESSEE. SH. HARJEET SI NGH, WHO AGAIN HAD A SAVING BANK ACCOUNT, STATED OF HAVING GIVEN MONEY TO THE A SSESSEE DURING THE YEAR FOR PURCHASE OF A TRACTOR, WHICH THOUGH WAS NOT PURCHAS ED, AND THE MONEY RETURNED BACK BY THE ASSESSEE IN FEBRUARY, 2013 . THE ASSESSEES EXPLANATION OF CASH DEPOSITS BEING SOURCED FROM THESE TWO PERSONS WAS, IN VIEW OF THE OBSERVED INCONSISTENCIES, REJECTED BY THE AO, WHO DEEMED THE SAME AS HIS UNEXPLAINED MONEY U/S. 69A. IN APPEAL, THE FIRST APPELLATE AUTH ORITY, WHILE CONFIRMING THE AOS ACTION, I.E., TREATING RS.25.10 LACS, OUT OF THE TO TAL CASH DEPOSITS OF RS. 47.60 LACS IN HIS BANK ACCOUNT BY THE ASSESSEE, AS UNEXPLAINED, A LLOWED THE ASSESSEE TELESCOPING BENEFIT, REDUCING THE SAID INCOME TO RS.12.66 LACS, ON WHICH THE AO, ACCORDINGLY, LEVIED PENALTY U/S. 271(1)(C) OF THE ACT FOR CONCEA LMENT OF PARTICULARS OF INCOME AT 100% OF THE TAX SOUGHT TO BE EVADED. THE SAME BEING CONFIRMED IN FIRST APPEAL, THE ASSESSEE IS IN SECOND APPEAL. ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 3 3. I HAVE HEARD THE PARTY BEFORE ME, AS WELL AS P ERUSED THE ASSESSEES WRITTEN SUBMISSIONS, ON WHICH HE PLACES RELIANCE, I.E., IN PREFERENCE TO VERBAL SUBMISSIONS. AT THE OUTSET, IT MAY BE MENTIONED THAT THE QUANTU M PROCEEDINGS HAVE SINCE ATTAINED FINALITY. WHILE THE ASSESSEE ACCEPTED THE DECISION OF THE FIRST APPELLATE AUTHORITY, THE REVENUES APPEAL THERE-AGAINST WAS D ISMISSED BY THE TRIBUNAL ON ACCOUNT OF BEING A LOW TAX EFFECT MATTER, I.E., IN LIMINE , U/S. 268A (REFER PARA 4 OF THE PENALTY ORDER). THE ASSESSEES CASE BEFORE ME IS THAT THE PENALTY PROCEEDINGS ARE DISTINCT AND INDEPENDENT OF THE ASSESSMENT PROCEEDINGS, SO THAT THE CONFIRMATION OF THE ADDITION IN ASSESSMENT WOULD NOT LEAD TO AN AUTOMATIC LEVY O F PENALTY, ADVERTING TO THE DECISION IN CIT V. AGROCHEMICALS (INDIA) [2007] 288 ITR 149 (P&H). RELIANCE WAS ALSO PLACED ON THE DECISION IN NATIONAL TEXTILES V. CIT [2001] 249 ITR 125 (GUJ), REPRODUCING THERE-FROM. BOTH THE DEPONENTS, I.E., SHRI BABU SINGH AND SHRI HARJEET SINGH, HAD IN THEIR RESPECTIVE STATEMENTS A DMITTED TO HAVE ADVANCED CASH TO THE ASSESSEE, SO THAT THE REJECTION OF THEIR STATEM ENTS, FORMING PART OF THE ASSESSEES EXPLANATION, AS UNSUBSTANTIATED, WAS NOT PROPER. FI NALLY, RELIANCE IS PLACED ON THE DECISION IN SSAS EMRALD MEADOWS CASE [2016] 73 TAXMANN.COM 248 (SC), DISMISSING THE REVENUES SLP. THE DECISIONS BY THE HONBLE KARNATAKA HIGH COURT DELETING THE PENALTY U/S.271(1)(C) LEVIED WIT HOUT SPECIFYING THE LIMB, I.E., CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME, IN THE NOTICE U/S. 274, AS BAD IN LAW, GETS ACCORDINGLY UPHELD. I SHALL TAKE UP THE ASSESSEES LEGAL ARGUMENT FIRS T, WHICH IS TO THE EFFECT THAT THE NOTICE U/S. 274, NOT SPECIFYING THE LIMB UNDER WHIC H THE PENALTY IS BEING PROPOSED, IS INVALID, AND THE CONSEQUENT PENALTY PR OCEEDINGS BAD IN LAW. THE SAID NOTICE IS NOT ON RECORD . HOW COULD IN ITS ABSENCE, THEN, THE ASSESSEES LEG AL PLEA, TAKEN BEFORE THE TRIBUNAL FOR THE FIRST TIME, BE AD MITTED ? REFERENCE IN THIS CONTEXT ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 4 BE MADE TO THE DECISION IN NTPC LTD. V. CIT [1998] 229 ITR 383 (SC), WHEREIN IT STANDS CLARIFIED THAT A LEGAL GROUND COULD BE ADMIT TED BY AN APPELLATE AUTHORITY EVEN IF TAKEN BEFORE IT FOR THE FIRST TIME PROVIDED THE FACTS NECESSARY FOR ITS ADJUDICATION ARE ON RECORD AND NOT DISPUTED. THE LE AST THE ASSESSEE WAS REQUIRED TO DO WAS TO PLACE THE SAID NOTICE ON RECORD, AND T AKE A SPECIFIC GROUND IN ITS RESPECT. THE ASSESSEES PLEA IS, ACCORDINGLY, INADM ISSIBLE. WITHOUT PREJUDICE, THE CLAIM IS UNTENABLE. THE SAT ISFACTION RECORDED BY THE AO IN THE ASSESSMENT PROCEEDINGS, SEPARATELY FOR RS.22 .10 LACS AND RS.3 LACS, TOWARD INITIATING PENALTY PROCEEDINGS U/S.271(1)(C), IS CA TEGORICAL, I.E., FOR CONCEALMENT OF PARTICULARS OF INCOME. IT IS ON THE BASIS OF THIS S ATISFACTION THAT THE AO DERIVES THE NECESSARY JURISDICTION TO INITIATE PENALTY PROCEEDI NGS AND ISSUE THE SHOW CAUSE NOTICE U/S. 274, WHICH ONLY SEEKS TO PUT THE ASSESS EE TO NOTICE AS TO WHY PENALTY U/S. 271(1)(C) IN THE FACTS AND CIRCUMSTANCES OF IT S CASE BE NOT LEVIED. HOW COULD, ONE MAY ASK, THE NOTICE U/S. 274 BE CONSTRUED AS NO T IN TERMS OF THE SAID SATISFACTION ? THE LIMB OF SEC. 271(1)(C) UNDER WHICH THE PENALT Y MAY, WHERE SO, BE FINALLY LEVIED, IS DETERMINED ONLY SUBSEQUENTLY, I. E., UPON CONSIDERING THE ASSESSEES EXPLANATION. HOW COULD THEN THE ABSENCE OF THE SAID SPECIFICATIO N IN THE NOTICE, PARTICULARLY WHERE THE SATISFACTION OF THE AO IN THE ASSESSMENT PROCEEDINGS GIVING RISE TO THE SAID NOTICE, IS NOT UNDER CHALLE NGE, BE FATAL TO THE PROCEEDINGS ? THE DIFFERENCE BETWEEN THE TWO LIMBS, WHICH SIGNIFY OMISSION AND COMMISSION RESPECTIVELY, MAY IN THE FACTS OF A CASE, OR CONSID ERING THE EXPLANATION FURNISHED, BE VERY THIN OR EVEN OVERLAP (REFER: A.M. SHAH V. CIT [1999] 238 ITR 415 (GUJ)). THE PENALTY U/S. 271(1)(C), IT WAS FURTHER EXPLAINE D, COULD IN EITHER CASE BE LEVIED ONLY WHERE THERE IS A FAILURE TO DISCLOSE FULLY AND TRULY PARTICULARS OF HIS INCOME BY THE ASSESSEE, AND THAT THERE COULD BE NO STRAITJACK ET FORMULA FOR ASCERTAINING THE TWO CHARGES. IN THE INSTANT CASE, IN FACT, BOTH THE SATISFACTION AS WELL AS THE LEVY OF ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 5 PENALTY IS QUA CONCEALMENT OF PARTICULARS OF INCOME . A DEFECTIVE NOTICE, EVEN ASSUMING SO, WOULD NOT DEFEAT THE PROCEEDINGS. THE LAW IN THE MATTER IS TRITE, TOWARD WHICH RELIANCE STANDS PLACED BEFORE ME BY TH E REVENUE ON THE DECISION IN KANTAMANI VENKATA NARAYANA & SONS VS. FIRST ADDITIO NAL ITO [1967] 63 ITR 638 (SC) (COPY ON RECORD). THE FACTS OF THE SAID CASE A RE TELLING, THOUGH IT MAY NOT BE NECESSARY TO RECOUNT THEM HERE, WHERE THE INTENT IS TO GIVE AN OVERVIEW OF THE MATTER. THE DECISION IS UNDER THE 1922 ACT, EVEN AS THE NOTICE UNDER THE ACT, EVEN IF CONSTRUED AS DEFECTIVE, IS PROTECTED U/S. 292B O F THE ACT. IN FACT, ON THIS PRECISE ISSUE, I.E., THE LEGAL IMPACT OF THE NON-SPECIFICAT ION OF THE LIMB OF SEC.271(1)(C) IN THE NOTICE U/S. 274, THERE ARE SEVERAL DECISIONS BY THE HONBLE HIGH COURTS, AS IN CIT V. MANU ENGINEERING WORKS [1980] 122 ITR 306 (GUJ); CIT VS. MITHILA MOTORS (P.) LTD. [1984] 149 ITR 751 (PAT); CIT V. CHANDULAL [1985] 152 ITR 238 (AP); CIT VS. KAUSHALYA & ORS . [1994] 216 ITR 660 (BOM), HOLDING IT TO BE OF LITTLE CONSEQUENCE, ALSO CLARIFYING THE IMPORT OF T HE NOTICE U/S. 274. AGAIN, IT MAY BE NOTED THAT THESE DECISIONS ARE EITHER UNDER THE 1922 ACT OR PRIOR TO THE INSERTION OF SECTION 292B ON THE STATUTE-BOOK W.E.F. 1/10/197 5 SAVING ANY OMISSION IN THE NOTICE. FURTHER, REFERENCE IN THIS CONTEXT MAY ALSO BE MADE TO DECISIONS IN H. P. STATE FOREST CORPORATION LTD. V. CIT [2004] 267 ITR 285 (HP) AND CIT V. MAHARAJ KRISHNAN [2000] 246 ITR 327 (DEL), RENDERED WITHOUT NOTICIN G S. 292B. THAT SUBSTANCE IS TO PREVAIL OVER FORM IS EVEN OTHERWISE TRITE LAW. THE DECISION BY THE HONBLE HIGH COURT IN SSAS EMRALD MEADOWS CASE, WHICH STANDS NOT INTERFERED WITH BY THE APEX COURT BY DISMISSING THE REVENUES SLP, IS RENDERED FOLLOWING THE DECISION BY THE SAME COURT IN CIT V. MANJUNATHA COTTON & GAINING FACTORY [2013] 359 ITR 565 (KAR). THE SAME IS, FIRSTLY, WI THOUT REFERENCE TO THE JUDICIAL PRECEDENTS, SOME OF WHICH ARE CITED ABOVE. TWO, AS EXPLAINED BY THE TRIBUNAL IN MANY CASE, AS IN EARTHMOVING EQUIPMENT SERVICE ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 6 CORPORATION VS. DY. CIT (IN ITA NO. 617/MUM/ 2014, DATED 02/5/2017), RELIE D UPON BY THE REVENUE BEFORE ME, THE ASSESSEES APPEA L WAS ALLOWED BY THE HONBLE HIGH COURT IN MANJUNATHA COTTON & GAINING FACTORY (SUPRA) CONSIDERING MULTIPLE FACTORS, AND NOT SOLELY ON THE BASIS OF A DEFECT IN THE NOTICE U/S. 274. THE SAID DECISION, FOLLOWED BY THE HIGH COURT IN THE CASE OF SSAS EMRALD MEADOWS CASE, AS NOTED ABOVE, IS WITHOUT REFERENCE TO JUDICIAL PR ECEDENTS. THE APEX COURT, WHILE DISMISSING THE ASSESSEES SLP HAS CLEARLY STATED TH AT THE FINAL FINDINGS OF THE HONBLE HIGH COURT WHICH STAND CHALLENGED BEFORE IT DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW FOR ITS DETERMINATION. RELIANCE THE REON, THUS, WOULD NOT BE OF MUCH ASSISTANCE TO THE ASSESSEE. AS REGARDS THE ISSUE ON MERITS, WHAT ALL, AS A BAR E READING OF THE RELEVANT PROVISION (S.271(1)(C)) WOULD REVEAL, THE ASSESSEE IS TO DO IS TO RENDER A BONA FIDE EXPLANATION, SUBSTANTIATING IT ( EXPLANATION 1 ). THIS EXPLAINS THE AMBIT OF THE PENALTY PROCEEDINGS U/S. 271(1)(C), ALSO EXHIBITING AS TO HOW THESE ARE, THUS, DIFFERENT FROM THE ASSESSMENT PROCEEDINGS. A PLAUSI BLE EXPLANATION, THUS, SAVES PENALTY. THE REQUIREMENT OF SUBSTANTIATION, IT MAY BE APPRECIATED, IS TOWARD ESTABLISHING THE TRUTH OF THE EXPLANATION FURNISHED . THE BURDEN TO SO EXPLAIN IS THOUGH ON THE ASSESSEE, FAILING WHICH THE ASSESSEE IS DEEMED BY LAW TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME . THE PENALTY WOULD STAND EQUALLY ATTRACTED WHERE THE ASSESSEE FAILS TO GIVE ANY EXPLANATION, O R THAT FURNISHED BY HIM IS FOUND TO BE FALSE BY THE REVENUE. THE LAW IN THE MATTER I S TRITE, EXPLAINED BY THE HONBLE APEX COURT PER A SERIES OF DECISIONS, VIZ. MAK DATA (P.) LTD. VS. CIT [2013] 358 ITR 593 (SC); UNION OF INDIA V. DHARMENDRA TEXTILE PROCESSORS [2008] 306 ITR 277 (SC); K.P. MADHUSUDHANAN VS. CIT [2001] 251 ITR 99 (SC); B.A. BALASUBRAMANIAM AND BROS V. CIT [1999] 236 ITR 977 (SC); ADDL. CIT VS. JEEVAN LAL SHAH [1994] 205 ITR 244 (SC); CIT VS. K. R. SADAYAPPAN [1990] 185 ITR 49 ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 7 (SC), TO CITE SOME, FOLLOWED BY HONBLE HIGH COURTS THROUGHOUT THE COUNTRY, AS BY THE JURISDICTIONAL HIGH COURT IN CIT V. LALCHAND TIRATH RAM [1997] 225 ITR 675 (P&H); PREM PAL GANDHI V. CIT (IN ITA NO. 353 OF 2009, DATED 22/7/2009), THE LATTER ALSO RELIED UPON BY THE REVENUE BEFORE ME. CONTINUING FURTHER, IN MY OPINION, BOTH CLAUSES (A ) AND (B) OF EXPLANATION 1 TO THE SECTION ARE ATTRACTED IN THE PRESENT CASE. LIMB (A) OF EXPLANATION 1 , I.E., WHERE THE ASSESSEE EITHER FAILS TO FURNISH AN EXPLANATION OR RENDERS ONE WHICH IS FOUND FALSE, BECOMES APPLICABLE AS THE ASSESSEE HAS NOT, AT ANY STAGE OF THE PROCEEDINGS, EITHER IN QUANTUM OR PENALTY, EXPLAINED AS TO WHY T HE BANK ACCOUNT WAS NOT DISCLOSED TO THE REVENUE. NONE OF THE TRANSACTIONS FOR NEARLY RS. 50 LACS IN THIS BANK ACCOUNT ARE CLAIMED TO HAVE BEEN REPORTED OR O THERWISE DISCLOSED TO THE REVENUE. THE DISCLOSURE OF THE ACCOUNT IN THE ASSES SMENT PROCEEDINGS CANNOT BE REGARDED AS VOLUNTARY INASMUCH AS THE ASSESSEE KN EW THAT HIS RETURN (FOR THE RELEVANT YEAR) HAS BEEN SUBJECT TO THE VERIFICATION PROCEEDINGS UNDER THE ACT UNDER CASS; THE REVENUE HAVING SPECIFIC INFORMATION ON CA SH DEPOSITS IN HIS BANK ACCOUNT (REFER PARA 1 OF THE ASSESSMENT ORDER). ALL THE CASH TRANSACTIONS ARE THROUGH THIS ACCOUNT, FURTHER SUGGESTING OF BEING TRANSACTI ONS WHICH WERE NOT INTENDED TO BE DISCLOSED TO THE REVENUE. THE EXPLANATION IS, FU RTHER, FALSE. THE ASSESSEE STATES OF HIS BROTHER, BABU SINGH, GIVING HIM MONEY FOR SA FE CUSTODY AS HE DID NOT HAVE A BANK ACCOUNT FOR WANT OF PAN. THE SOURCE OF MONEY I S STATED TO BE THE SALE OF LANDS BY HIS BROTHER IN 2008, I.E., TWO YEARS EARLI ER, ALSO GIVING DETAILS OF THE SALE DEEDS (PG. 3 OF THE ASSESSMENT ORDER). SH. BABU SIN GH, ON THE OTHER HAND, STATES OF HAVING A BANK ACCOUNT IN WHICH HE REGULARLY DEPOSIT S CASH ON SALE OF HIS AGRICULTURAL PRODUCE. THE MONEY REALIZED ON THE SAL E OF LANDS IN 2010, THE RELEVANT PERIOD, HAD NOT BEEN LENT TO THE ASSESSEE BUT UTILI ZED FOR HIS OWN PURPOSES. THE SAME ITSELF IMPLIES THAT THE MONEY RECEIVED BY HIM, SIMILARLY, IN 2008 HAD SINCE ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 8 BEEN INVESTED OR UTILIZED, AND WAS NO LONGER AVAILA BLE. FOR, WHY ELSE WOULD HE SELL HIS LANDS IN 2010 TO FINANCE OR MEET REGULAR EXPEND ITURE? AGAIN, IF THE ASSESSEE INDEED OWED HIM MONEY, HE WOULD NOT SELL HIS LAND/S BUT RECALL HIS MONEY FROM HIM. A GENERAL STATEMENT OF HIS GIVING CASH LOANS T O HIS BROTHER AND, VICE VERSA, RECEIVING CASH FROM HIM, IN TIMES OF NEED, WITHOUT CHARGING INTEREST, CANNOT IN ANY MANNER BE REGARDED AS SUBSTANTIATING THE ASSESSEES CLAIM OF HIS BROTHER HAVING ADVANCED RS. 22.10 LACS TO HIM DURING THE YEAR, THE SOURCE OF WHICH, THEREFORE, IS UNKNOWN. FURTHER, WHERE IS THE QUESTION OF SAFE CUS TODY WHEN THE ASSESSEE HAS NOT RETAINED THAT AMOUNT IN HIS BANK ACCOUNT, BUT WITHD RAWN IT; THE CLOSING BALANCE AS AT THE YEAR-END BEING ONLY AT RS.6.97 LACS, AND WHI CH MAY INCLUDE THAT OUT OF THE OTHER CASH DEPOSITS MADE DURING THE YEAR AS WELL. THE EXPLANATION IS BOTH FALSE AND UNSUBSTANTIATED . THE STATEMENT OF THE ASSESSEES CO-BROTHER IS, AG AIN, IMPUGNING OF THE ASSESSEES CASE. THE AMOUNT HAS NOT BEEN, AS ST ATED, GIVEN FOR SAFE CUSTODY, BUT FOR, AS STATED, PURCHASE OF A TRACTOR, FALSIFYING T HE ASSESSEES EXPLANATION. FURTHER, WHY, THEN, WAS THE TRACTOR NOT PURCHASED, WITH, AGA IN, THE MONEY, RATHER THAN BEING RETURNED BACK IMMEDIATELY OR EVEN IN DUE COURSE, I. E., ON THE NON-FULFILLMENT OF THE PURPOSE FOR WHICH IT WAS GIVEN, UTILIZED BY THE ASS ESSEE FOR HIS PURPOSES? IT IS INCONCEIVABLE THAT AN AMOUNT GIVEN, ASSUMING SO, UN DER TRUST BY A CLOSE RELATIVE FOR A SPECIFIC PURPOSE/NEED, PRESUMABLY URGENT, IS, AS STATED, RETAINED FOR YEARS, FOR WHICH THERE IS AGAIN NO EXPLANATION. WHY DID NOT THE ASSESSEE STATE THE TRUTH ? A TRACTOR, RATHER, COULD BE PURCHASED DIRECTLY BY HIS BROTHER-IN-LAW, EVEN IF BY TAKING GUIDANCE FROM THE ASSESSEE IN THE MATTER, IF THAT W AS THE REASON, OR FROM A DEALER KNOWN TO THE ASSESSEE, WHERE THAT WAS THE CASE. NO PURCHASE OF A TRACTOR IS SHOWN IN THE RELEVANT YEAR OR EVEN SUBSEQUENTLY. IF INDEE D IT WAS FOR THE PURCHASE OF THE TRACTOR, HIS CO-BROTHER WOULD HAVE ASKED BACK THE A MOUNT FOR ACQUIRING IT, RATHER THAN LEAVING IT WITH THE ASSESSEE TO USE THE SAME A ND RETURN IT ON HIS WHIM AND ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 9 FANCY. THE RETURN OF MONEY, AS ITS GIVING, IS WITH OUT EVIDENCE. THE STATEMENTS OF BOTH, THE ASSESSEE AND SHRI HARJEET SINGH, ARE TOTA LLY UNCONVINCING, BESIDES BEING CONTRARY. FINALLY, THE VERY FACT THAT THE ASSESSEE SEEKS A TELESCOPING BENEFIT, WHICH HE IS ALLOWED BY THE FIRST APPELLATE AUTHORITY, AGA IN, STRONGLY SUGGESTS OF THE MONEY DEPOSITED IN THE ACCOUNT BEING KEPT OUT OF BOOKS FO R BEING UTILIZED FOR PERSONAL PURPOSES OR FOR ROTATION IN HIS BUSINESS. THE DECISIONS RELIED UPON ARE NOT APPLICABLE IN TH E FACTS & CIRCUMSTANCES OF THE CASE. IN AGROCHEMICALS (INDIA) (SUPRA) THE HONBLE COURT DECLINED TO INTERFERE AS IN ITS VIEW NO SUBSTANTIAL QUESTION OF LAW AROSE FOR ITS DETERMINATION. IN THE FACTS OF NATIONAL TEXTILES (SUPRA) THE REVENUE HAD NO POSITIVE EVIDENCE, AS IN THE FORM OF STATEMENTS OF THE STATED LENDERS IN THE PRESENT CAS E, THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WAS FALSE, SO THAT THE HONBLE COUR T FOUND IT TO BE A CASE WHERE THE FACTS AND CIRCUMSTANCES WERE EQUALLY CONSISTENT WIT H THE HYPOTHESIS THAT THE CREDITS UNDER REFERENCE WERE ACTUALLY, AS STATED, SUNDRY LO ANS IN SMALL AMOUNTS OBTAINED FROM DIFFERENT PARTIES. ON THE CONTRARY, THE LEVY O F PENALTY IN THE PRESENT CASE IS WHOLLY CONSISTENT WITH SETTLED LAW AS EXPLAINED BY THE APEX COURT AS WELL AS BY THE HONBLE JURISDICTIONAL HIGH COURT, REFERRING TO TWO DECISIONS, CITED SUPRA, BY IT. THE ASSESSEES CLAIM OF THE UNTENABILITY OF THE IM PUGNED PENALTY AS IT IS BASED ON ESTIMATION, RAISED BEFORE THE LD. CIT(A), ONLY N EEDS TO BE STATED TO BE REJECTED. THERE IS NO QUESTION OF ANY ESTIMATION, AND THE PEN ALTY IS QUA CASH FOUND DEPOSITED IN THE ASSESSEES BANK ACCOUNT, THE NATURE AND SOUR CE OF WHICH HE THOUGH IS UNABLE TO EXPLAIN. 4. IN VIEW OF THE FOREGOING, I HAVE NO HESITATION I N CONFIRMING THE LEVY OF PENALTY, WHICH THOUGH COULD BE LEVIED ONLY ON THE ADDITION A S FINALLY SUSTAINED BY THE FIRST APPELLATE AUTHORITY IN QUANTUM. WHILE THE AO STATES IT TO BE AT RS. 12.66 LACS, THE LD. CIT(A) STATES IT TO BE RS. 12.10 LACS, AND THE ASSESSEE HIMSELF STATES IT TO BE AT ITA NO.440/ASR/2017 (A.Y.2011-12) MANINDER SINGH, BATHINDA VS. ITO 10 RS. 13 LACS. THE AO SHALL VERIFY THE SAME FROM HIS RECORD, I.E., THE APPEAL GIVING EFFECT ORDER PASSED ON RECEIVING THE ORDER OF THE F IRST APPELLATE AUTHORITY IN QUANTUM PROCEEDINGS, AND LEVY PENALTY ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2018 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATED: 31.12.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) MANINDER SINGH, PROP. M/S. DASHMESH BRICKS MANUFACTURING, BATHINDA (2) THE INCOME TAX OFFICER, WARD-2(1), BATHINDA (3) THE CIT(APPEALS), BATHINDA (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T. TRUE COPY BY ORDER