M/s. Bright India Body Builders, New Delhi V. ITO, New Delhi

ITA 4411/DEL/2009

• Counselvise Citation: 441120114 RSA 2009
• Duration Of Justice: 2 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-08-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANADR
• Assessee Lawyers: VIKRAM KAPOOR
• Keywords: Unexplained cash credit; Search and seizure; Tax effect
• Section: 68; 6; 12; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI A BENC H BEFORE SHRI R.K.GUPTA, JM SHRI A.N. PAHUJA, AM ITA NO.4411/DEL/2009 ASSESSMENT YEAR: 2005-06 BRIGHT INDIA BODY BUILDERS 11, SURAT NAGAR G.T.KARNAL ROAD NEW DELHI V/S. ITO, WARD-20(4), VIKAS BHAWAN ,I.P. ESTATE, NEW DELHI [PAN : AAAFB406 7G] (APPELLANT) (RESPONDENT) ASSESSEE BY SH. . VIKRAM KAPOOR,, AR REVENUE BY MRS. ANUSHA KHURANA,DR DATE OF HEARING 09-08-2012 DATE OF PRONOUNCEMENT 05-10-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 18.11.2009 BY THE ASSESSEE A GAINST AN ORDER DATED 31-08-2009 OF THE LD. CIT(A)-XXII, NEW DELHI, RAISES THE FOLLOWING GROUNDS :- 1. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A) WAS JUSTIFIED IN SUSTAINING THE PENALTY AS IMPOSED BY THE I.T.O U/S 271(1)(C) OF THE ACT. 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, IT IS MOST HUMBLY PRAYED THAT THE ORDER IMPOSING THE PENALTY M AY KINDLY BE CANCELLED. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT ASSESSMENT IN THIS CASE WAS COMPLETED ON A LOSS OF ` 22,62,919/- IN PURSUANCE TO RETURN FILED ON 31-10- 2005,DECLARING NIL INCOME. THE ADDITIONS OF ` 31,08,400/- MADE BY THE ASSESSING OFFICER[AO IN SHORT] WERE SET OFF AGAINST B/S LOSS OF ` 53,71,319/- .INTER ALIA, AN AMOUNT OF ` 30,00,000/- ,COMPRISING ` .20,00,000/- ON ACCOUNT OF CAPITAL INTRODUCED IN THE NAME OF SH. SOHAN SINGH AND ` 10,00,000/- INTRODUCED IN THE I.T.A .NO. 4411/DEL/2009 2 NAME OF SH. SWARNJIT SINGH WAS ADDED TO THE INCOME, THE ASSESSEE HAVING FAILED TO EXPLAIN THE SOURCE OF SAID AMOUNT OF RS. 30,00 ,000/- INTRODUCED IN CASH IN THE NAME OF AFORESAID TWO PARTNERS. TO A QUERY BY THE A O VIDE ORDERSHEET ENTRY DATED 12.3.2007, THE ASSESSEE DID NOT EXPLAIN THE S OURCE OF AFORESAID CASH INTRODUCED IN THE NAME OF PARTNERS AND INSTEAD SURR ENDERED THE AMOUNT TO TAX ON 30-03-2007. ACCORDINGLY, THE AO ADDED THE AMOUNT AND INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME-TAX ACT ,19 61[HEREINAFTER REFERRED TO AS THE ACT] FOR CONCEALMENT OF PARTICULARS OF INCOM E. THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE FINDINGS OF THE AO. SUBSEQUEN TLY, IN RESPONSE TO A SHOW CAUSE NOTICE, THE ASSESSEE REPLIED VIDE LETTER DATE D 20.8.2009 FILED ON 17-09- 2007 AS UNDER:- 3. THE MOST ILLUSTRATIVE LEGAL POSITION IN SUCH CA SES IS THAT WHEN THE RETURNED AND ASSESSED INCOME IS NIL, AND NO TAX LIABILITY IS CREATED DESPITE SEVERAL ADDITIONS, PENALTY U/S 271(1)(C) IS NOT IMPOSSIBLE. 4.THAT AS STATED ABOVE, DESPITE THIS, THE INCOME AS SESSED IS AT NIL RATHER, ALLOWS BROUGHT FORWARD LOSSES TO BE CAR RIED FORWARDED TO NEXT YEAR AS STATED HEREINABOVE. 5.THE NOTWITHSTANDING STATED HEREINABOVE, THE ASSES SING OFFICER IN THIS CASE HAS FAILED TO RECORD ITS SATIS FACTION AND IN THIS CONNECTION, KINDLY REFER TO SECTION 271(1)(C) OF TH E ACT, THE EXTRACTS OF THE SAME ARE GIVEN BELOW:- 271(1) IF THE ASSESSING OFFICER OR THE COMMISSIONE R (APPEALS) IS SATISFIED THAT ANY PERSON:- (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 6. THIS IS THE STRICT REQUIREMENT OF LAW, AS TO THE RECORDING OF SATISFACTION AS TO WHY THE PENALTY PROCEEDINGS HAVE TO BE INITIATED AND THIS IS NOT PRESENT IN THE PRESENT CASE . 7, IN THIS CONNECTION, OUR OWN ,HIGH COURT(DELHI) A S REPORTED IN - I) DIWAN ENTERPRISES VS. CIT(ITR VOL.246 PAGE 571) II) CIT VS. RAM COMMERCIAL ENTERPRISES(246 ITR 568),CLEARLY DEMONSTRATE THE LEGAL POSITION COPIES OF THE ABOVE JUDGMENTS ARE ENCLOSED. 8. THAT IN YET ANOTHER CASE,PRITHPAL SIN GH VS. CIT, THE HONBLE SUPREME COURT OF INDIA HAVE TAKEN THE VIEW THAT PEN ALTY CAN NOT BE IMPOSED , IF THE RETURN INCOME AND ASSESSED INCOME IS NIL 2.1. HOWEVER, THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE AND IMPOSED A PENALTY OF ` 10,97,700/- ON THE TAX SOUGHT TO BE EVADED ON THE I.T.A .NO. 4411/DEL/2009 3 AFORESAID AMOUNT OF ` 30,00,000/- RELYING, INTER ALIA, ON THE PROVISIONS OF EXPLANATION 4 TO SECTION 271(1)(C) OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE FINDINGS O F THE AO IN THE FOLLOWING PARA:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE O N BEHALF OF THE APPELLANT AND PERUSED FACTS AND CIRCUMSTANCE S OF THE CASE. THE MAIN PLEA OF THE ASSESSEE IS THAT THE ADDITION TO THE CAPITAL ACCOUNT IS MADE BY THE PARTNERS, SO THIS CANNOT BE ADDED TO THE INCOME OF THE FIRM AND AS THERE IS NO CONCEALMENT O N THE PART OF THE FIRM. SECONDLY, THE ASSESSED INCOME DESPITE ADDITI ONS IS NIL (BECAUSE OF CARRY FORWARD LOSSES) AND THE TAX COULD NOT BE LEVIED, HENCE PENALTY WAS NOT LEVIABLE. THE ARGUMENT PUT F ORTH DOES NOT HOLD GOOD BECAUSE THE CASH AMOUNT IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE FIRM IN THE NAME OF PARTNERS FOR WHI CH NO EXPLANATION OFFERED AND SUBSEQUENTLY SURRENDERED AS UNEXPLAINED CREDIT. THE ULTIMATE BENEFICIARY OF THIS DEPOSIT IS THE FIRM HE NCE A.O HAD VALIDLY TREATED THIS AS CONCEALED INCOME OF THE FIRM U/S 6 8 OF INCOME TAX ACT, 1961 AND NOT OF PARTNERS. IN SO FAR AS RESULT ANT NIL TAX EFFECT WAS CONCERNED, IT DID NOT ABSOLVE FROM LEVY OF PENALTY U/S 271(1)(C). THE SUBMISSION MADE ON BEHALF OF THE ASSESSEE IS MISLEA DING. THE EXPLANATION-4OF SECTION 271(1)(C) DEFINES THE AMOUN T SOUGHT TO BE EVADED. THIS INCLUDED THE CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME WHICH HAS THE EFFE CT OF REDUCING LOSSES. THE PENALTY CAN BE LEVIED FOR CONCEALING INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME IN LOSS CASES ALSO WHERE THERE IS NO TAX. I HOLD THAT THE ASSESSEE HAD CONC EALED THE INCOME AND HE WAS CAUGHT BY THE A.O. I UPHOLD THE PENALTY OF ` 10,97,700/- LEVIED ON ASSESSEE U/S 271(1)(C) READ WITH SECTION 274. 4.. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A) THE LD. AR ON BEHALF OF THE ASSESSE E REITERATED THEIR SUBMISSIONS BEFORE THE LD. CIT(A) WHILE REFERRING TO PARA 11 OF THE ASSESSMENT ORDER AND FURTHER SUBMITTED THAT THE ASSESSEE WAS DOING THE B USINESS OF TRANSPORTATION AND BODY BUILDING OF VEHICLES AND SOME AMOUNT WAS I NTRODUCED BY WAY OF CAPITAL. TO A QUERY BY THE BENCH , THE LD. AR SU BMITTED THAT NO EXPLANATION REGARDING SOURCE OF CASH INTRODUCED IN THE NAME OF PARTNERS WAS SUBMITTED AND I.T.A .NO. 4411/DEL/2009 4 INSTEAD THE AMOUNT WAS SURRENDERED TO TAX IN THE HA NDS OF THE FIRM. ON THE OTHER HAND, THE LD. DR SUPPORTED THE FINDINGS OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE. ADMITTEDLY, THE ASSESSEE DID NOT DISCHARGE THE ONU S REGARDING CREDIT OF CASH IN THE NAME OF TWO PARTNER S IN THE BOOKS OF THE FIRM; INSTEAD, IN RESPONSE TO A QUERY BY THE A O, SEEKING EVIDENCE IN SUPPORT OF AFORESAID CASH, THE ASSESSEE SURRENDERED TO TAX THE AMOUNT OF ` 30 LACS ON 30.3.2007. ACCORDINGLY, THE AO COMPLET ED THE ASSESSEMENT AND INITIATED PENALTY PROCEEDINGS U/S 2 71(1)(C) OF THE ACT. SUBSEQUENTLY, IN RESPONSE TO A SHOWCAUSE NOTICE BEF ORE LEVY OF PENALTY, THE ASSESSEE DID NOT EXPLAIN THE SOURCE OF CASH INTROD UCED IN THE NAME OF TWO PARTNERS NOR SUBMITTED ANY FURTHER EXPLANATION ,ES TABLISHING THEIR BONAFIDE. APPARENTLY, THE ASSESSEE DID NOT IMPROVE UPON HIS C ASE IN THE PENALTY PROCEEDINGS. IN ANY CASE, THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE AND IMPOSED A PENALTY OF ` 10,97,700/- U/S 271(1)(C) OF THE ACT. BEFORE THE LD. CIT(A) OR EVEN BEFORE US, NO ATTEMPT WAS M ADE TO ESTABLISHING THE SOURCE OF AFORESAID CASH. BEFORE P ROCEEDING FURTHER, WE MAY HAVE A LOOK AT THE RELEVANT PROVISI ONS OF SECTION 271(1)(C) OF THE ACT, WHICH READ AS UNDER: 271.FAILURE TO FURNISH RETURNS, COMPLY WITH NOTICE S, CONCEALMENT OF INCOME, ETC. (1) IF THE ASSESSING OFFICER OR THE COMMISSIONER (A PPEALS) OR THE COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON- .. (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY,- (III) IN THE CASES REFERRED TO IN CLAUSE (C) , IN ADDITION TO ANY TAX PAYABLE BY HIM, A SUM WHICH SHALL NOT BE LESS THAN, BUT WHICH SHALL NOT EXCEED THREE TIMES, THE AMOUNT OF TAX SOU GHT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INCOME OR THE FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME I.T.A .NO. 4411/DEL/2009 5 EXPLANATION 1.-WHERE IN RESPECT OF ANY FACTS MATERI AL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT,- (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE DEPUTY COMMISSIONER (APPEALS) OR THE COMMISSIONER ( APPEALS) TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MAT ERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING T HE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FO R THE PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION, BE DEEM ED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED. 5.1 AS IS EVIDENT FROM THE AFORESAID CL. (C) OF S. 271(1) OF THE ACT, THE WORDS USED ARE 'HAS CONCEALED THE PARTICUL ARS OF HIS INCOME' OR FURNISHED 'INACCURATE PARTICULARS OF SUC H INCOME'. THUS, BOTH IN CASE OF CONCEALMENT AND INACCURACY, THE PHR ASE 'PARTICULARS OF INCOME' HAS BEEN USED. THE LEGISLATURE HAS NOT U SED THE WORDS 'CONCEALED HIS INCOME'. FROM THIS IT WOULD BE APPAR ENT THAT PENAL PROVISION WOULD OPERATE WHEN THERE IS A FAILURE TO DISCLOSE FULLY OR TRULY ALL THE PARTICULARS. THE WORDS 'PARTICULARS O F INCOME' REFER TO THE FACTS WHICH LEAD TO THE CORRECT COMPUTATION OF INCOME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. SO WHEN ANY FACT MATERIAL TO THE DETERMINATION OF AN ITEM AS INCOME OR MATERIAL TO THE CORRECT COMPUTATION IS NOT FILED OR THAT WHICH IS F ILED IS NOT ACCURATE, THEN THE ASSESSEE WOULD BE LIABLE TO PENALTY UNDER S. 271(1)(C) OF THE ACT. THE EXPRESSION 'HAS CONCEALED THE PARTICUL ARS OF INCOME' AND 'HAS FURNISHED INACCURATE PARTICULARS OF INCOME ' HAVE NOT BEEN DEFINED EITHER IN SECTION 271 OR ELSEWHERE IN THE A CT. HOWEVER, NOTWITHSTANDING THE DIFFERENCE IN THE TWO CIRCUMSTA NCES, IT IS NOW WELL ESTABLISHED THAT THEY LEAD TO THE SAME EFFECT NAMELY, KEEPING I.T.A .NO. 4411/DEL/2009 6 OFF A CERTAIN PORTION OF THE INCOME FROM THE RETURN . ACCORDING TO LAW LEXICON, THE WORD 'CONCEAL' MEANS: 'TO HIDE OR KEEP SECRET. THE WORD 'CONCEAL' IS C ON+CELARE WHICH IMPLIES TO HIDE. IT MEANS TO HIDE OR WITHDRAW FROM OBSERVATION; TO COVER OR KEEP FROM SIGHT; TO PREVENT THE DISCOVERY OF ; TO WITHHOLD KNOWLEDGE OF. THE OFFENCE OF CONCEALMENT IS, THUS, A DIRECT ATTEMPT TO HIDE AN ITEM OF INCOME OR A PORTION THEREOF FROM THE KNOWLEDGE OF THE INCOME-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 TRANSCRIPT.' 5.2 IF THE DISCLOSURE OF FACTS IS INCORRECT OR FALSE TO THE KNOWLEDGE OF THE ASSESSEE AND IT IS ESTABLISHED, THEN SUCH DI SCLOSURE CANNOT TAKE IT OUT FROM THE PURVIEW OF THE ACT OF CONCEALM ENT OF PARTICULARS OR FURNISHING INACCURATE PARTICULARS THEREOF FOR TH E PURPOSE OF LEVY OF PENALTY. THE PENALTY U/S 271(1)(C) OF THE ACT IS LEVIABLE IF THE AO IS SATISFIED IN THE COURSE OF ANY PROCEEDINGS UNDER TH IS ACT THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN THIS CONT EXT, HONBLE GUJRAT HIGH COURT IN THE CASE OF AM SHAH & CO. VS. CIT,238 ITR 415(GUJ) OBSERVED THAT THERE CANNOT BE A STRAIGHT JACKET FORMULA FOR DET ECTION OF THESE DEFAULTS OF CONCEALMENT OR OF FURNISHING INACCURATE PARTICULARS OF INCOME AND INDEED CONCEALMENT OF PARTICULARS OF INC OME AND INACCURATE PARTICULARS OF INCOME MAY AT TIMES OVERL AP, AS FOR EXAMPLE WHEN HALF OF THE INCOME UNDER A PARTICULAR HEAD IS NOT AT ALL DISCLOSED, THAT WOULD BE CONCEALED TO THAT EXTENT W HILE THE REMAINING HALF WHICH IS IN FACT DISCLOSED WOULD, NO T BEING HIS COMPLETE DISCLOSURE AMOUNT TO INACCURATE PARTICULAR S OF INCOME AS REGARDS THAT CONSTITUENT ITEM OF THE RETURN. BY THE VERY NATURE OF THE ASSESSMENT PROCEEDINGS THE ITO WHILE ASCERTAINING T HE TOTAL INCOME CHARGEABLE TO TAX WOULD BE IN A POSITION TO DETECT THE SPECIFIC OR DEFINITE PARTICULARS OF INCOME CONCEALED OR OF WHIC H FALSE PARTICULARS ARE FURNISHED. WHERE IN THE CONSTITUENTS OF INCOME RETURNED, SUCH SPECIFIC OR DEFINITE PARTICULARS OF INCOME ARE DETE CTED AS CONCEALED, THEN EVEN IN THE TOTAL INCOME FIGURE TO THAT EXTENT THEY REFLECT, IT WOULD AMOUNT TO CONCEALMENT TO THAT EXTENT. IN THE SAME WAY WHERE SPECIFIC AND DEFINITE PARTICULARS OF INCOME ARE DET ECTED AS I.T.A .NO. 4411/DEL/2009 7 INACCURATE, THEN SUCH FIGURE WILL ALSO MAKE THE TOT AL INCOME INACCURATE IN PARTICULARS TO THE EXTENT IT DOES NOT INCLUDE SUCH INCOME. WHETHER IT BE A CASE OF ONLY CONCEALMENT OR OF ONLY INACCURACY OR BOTH, THE PARTICULARS OF INCOME SO VI TIATED WOULD BE SPECIFIC AND DEFINITE AND BE KNOWN IN THE ASSESSMEN T PROCEEDINGS BY THE ITO, WHO ON BEING SATISFIED ABOUT EACH CONCE ALMENT OR INACCURACY OF PARTICULARS OF INCOME WOULD BE IN A P OSITION TO INITIATE THE PENALTY PROCEEDINGS ON ONE OR BOTH OF THE GROUN DS OF DEFAULT AS MAY HAVE BEEN SPECIFICALLY AND DIRECTLY DETECTED. T HE OPPORTUNITY OF HEARING GIVEN BY THE NOTICE UNDER SECTION 271(1)(C) , OBVIOUSLY IS AGAINST SUCH CONCEALMENT AND INACCURACY AS IS DETEC TED IN THE ASSESSMENT PROCEEDINGS. 5.3. INDISPUTABLY, AS A RESULT OF ENQUIRIES MADE BY THE AO, THE ASSESSEE DID NOT FURNISH ANY EVIDENCE OF CASH DEPO SITED IN THE BOOKS OF THE FIRM IN THE NAME OF AFORESAID TWO PART NERS AND INSTEAD SURRENDERED THE AMOUNT AS INCOME OF THE YEAR UNDER CONSIDERATION. IN THE COURSE OF PENALTY PROCEEDINGS , THE ASSESSEE DID NOT BRING ANY MATERIAL BEFORE THE AO TO REBUT THE INFERENCES DRAWN BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS. IN TERMS OF PROVISIONS OF SEC. 271(1)(C) OF THE ACT READ WITH EXPLANATION 1 T HERETO AND THE JUDICIAL PRONOUNCEMENTS IN THE CASE OF B.A. BALASU BRAMANIAM & BROS. CO. V. CIT [1999] 157 CTR 556(SC), CIT V. B.A . BALASUBRAMANIAM & BROS. [1984] 40 CTR (MAD.)/[1985] 152 ITR 529 (MAD.) , CIT V. MUSSADILAL RAM BHAROSE [1987] 60 CT R (SC) 34/[ 1987] 165 ITR 14 (SC); TC 50 R. 474; CIT V. K.R. SA DAYAPPAN [1990] 86 CTR (SC) 120; [1990] 185 ITR 49 (SC); TC 50 R. 795, ADDL. CIT V. JEEVAN LAL SAH [1994] 117 CTR (SC) 130 ; [1994] 205 ITR 244 (SC); TC 50 R. 973 AND K.P.MADHUSUDANAN V S. CIT,251 ITR 99(SC), IT IS WELL ESTABLISHED THAT WHENEVER TH ERE IS DIFFERENCE BETWEEN THE RETURNED AND ASSESSED INCOME, THERE IS INFERENCE OF CONCEALMENT. THE EXPLANATION 1 TO SEC. 271(1)(C) OF THE ACT RAISES A PRESUMPTION THAT CAN BE REBUTTED BY THE ASSESSEE WI TH REFERENCE TO FACTS OF THE CASE. THUS, THE ONUS IS ON THE ASSESSE E TO REBUT THE INFERENCE OF CONCEALMENT. THE ABSENCE OF EXPLANATIO N ITSELF WOULD I.T.A .NO. 4411/DEL/2009 8 ATTRACT PENALTY. IN THE CASE OF NEW BIJLI FOUNDRY V S. CIT,135 ITR 593, HONBLE PUNJAB AND HARYANA HIGH COURT HAVE HEL D THAT THE FINDINGS RECORDED IN THE ASSESSMENT PROCEEDINGS ARE CERTAINLY RELEVANT IN THE PENALTY PROCEEDINGS. IN THE ABSENCE OF ANY FRESH MATERIAL DURING THE COURSE OF PENALTY PROCEEDINGS, SPECIALLY WHEN THE ASSESSEE FAILED TO ESTABLISH THAT THE AFORESAID FINDINGS OF THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS WERE BA SED ON IMPROPER FACTS OR WRONG APPRECIATION OF THE FACTS, WE ARE AFRAID THAT IN THE PENALTY PROCEEDINGS WE ARE UNABLE TO TAKE A DIFFERENT VIEW. THE ONUS LAID DOWN UPON THE ASSESSEE TO REBUT THE P RESUMPTION RAISED UNDER EXPLANATION 1 WOULD NOT BE DISCHARGED BY ANY FANTASTIC OR FANCIFUL EXPLANATION. IT IS NOT THE LAW THAT ANY AND EVERY EXPLANATION HAS TO BE ACCEPTED. IN THE ABSENCE OF ANY EXPLANATION REGARDING SOURCE OF CASH ,APPARENTLY THE ASSESSEE MISERABLY FAILED TO DISCHARGE THE ONUS LAID DOWN IN THIS EXPLANATION . IN SUCH CIRCUMSTANCES, WE HAVE NO HESITATION IN UPHOLDING THE LEVY OF PENALTY. 5.4 WE FIND THAT THE LEGAL POSITION IS SQUARELY COVERED BY THE DECISION OF THE HONBLE APEX COURT IN K.P. MADHUSUD ANAN V. CIT [2001] 251 ITR 99,WHEREIN, THE HONBLE COURT AFFIRM ED THE DECISION OF THE KERALA HIGH COURT IN CIT V. K.P. MADHUSUDANA N [2000] 246 ITR 218. CONSIDERING THE EFFECT OF THE ADDITION OF THE EXPLANATION TO SECTION 271(1) OF THE ACT AND THE AMENDMENT TO SECT ION 271(1)(C) OF THE ACT BY DELETION OF THE WORD 'DELIBERATELY', THE HONBLE KERALA HIGH COURT CAME TO THE CONCLUSION THAT PENALTY WAS LIABLE TO BE IMPOSED IN A CASE WHERE THE ASSESSEE COULD OFFER NO ACCEPTABLE EXPLANATION FOR THE INCOME NOT DISCLOSED OR THE INA CCURATE PARTICULARS HE HAD FURNISHED IN HIS RETURN, HAD TO BE EXAMINED AND IF FOUND UNACCEPTABLE, PENALTY WAS LIABLE TO BE IMPOSE D. THE HONBLE KERALA HIGH COURT OBSERVED AS FOLLOWS: I.T.A .NO. 4411/DEL/2009 9 'SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961, IS ATTRACTED WHERE, IN THE COURSE OF ANY PROCEEDINGS UNDER THE A CT, THE ASSESSING OFFICER OR THE FIRST APPELLATE AUTHORITY IS SATISFIED THAT: (A) ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME; OR (B) HAS FURNISHED INACCURATE PARTICULARS OF SUCH IN COME. THE EXPRESSIONS 'HAS CONCEALED' AND 'HAS FURNISHED INAC CURATE PARTICULARS' HAVE NOT BEEN DEFINED EITHER IN THE SE CTION OR ELSEWHERE IN THE ACT. HOWEVER, NOTWITHSTANDING DIFF ERENCES IN THE TWO CIRCUMSTANCES, THEY LEAD TO THE SAME EFFECT , VIZ., KEEPING OFF A CERTAIN PORTION OF INCOME. THE FORMER IS DIRECT WHILE THE LATTER MAY BE INDIRECT IN ITS EXECUTION. A CONSPECTUS OF THE EXPLANATION ADDED BY THE FINANC E ACT, 1964, AND THE SUBSEQUENT SUBSTITUTED EXPLANATIONS M AKES IT CLEAR THAT THE STATUTE VISUALIZED THE ASSESSMENT PR OCEEDINGS AND PENALTY PROCEEDINGS TO BE WHOLLY DISTINCT AND INDEP ENDENT OF EACH OTHER. IN ESSENCE, THE EXPLANATION (BOTH AFTER 1964 AND 1976) IS A RULE OF EVIDENCE. PRESUMPTIONS WHICH ARE REBUTTABLE IN NATURE ARE AVAILABLE TO BE DRAWN. THE INITIAL BU RDEN OF DISCHARGING THE ONUS OF REBUTTAL IS ON THE ASSESSEE . EXPLANATION 1 AUTOMATICALLY COMES INTO OPERATION WHEN, IN RESPE CT OF ANY FACTS MATERIAL TO THE COMPUTATION OF TOTAL INCOME O F ANY PERSON, THERE IS FAILURE TO OFFER AN EXPLANATION OR AN EXPL ANATION IS OFFERED WHICH IS FOUND TO BE FALSE BY THE ASSESSING OFFICER OR THE FIRST APPELLATE AUTHORITY, OR AN EXPLANATION IS OFF ERED WHICH IS NOT SUBSTANTIATED. IN SUCH A CASE, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME IS DEEMED TO REPRESENT T HE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. A S PER THE PROVISION OF EXPLANATION 1, THE ONUS TO ESTABLISH T HAT THE EXPLANATION OFFERED WAS BONA FIDE AND ALL FACTS REL ATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS INCOME HAVE BEEN DISCLOSED BY HIM WILL BE ON THE PERSON CHARGED WITH CONCEALMENT. THE ASSESSING OFFICER IS NOT OBLIGED T O INTIMATE THE ASSESSEE THAT EXPLANATION 1 TO SECTION 271(1)(C ) IS PROPOSED TO BE APPLIED. THE SCHEME OF THE PROVISIONS DOES NO T PROVIDE FOR SUCH A REQUIREMENT EITHER DIRECTLY OR INFERENTIALLY . IN SIR SHADILAL'S CASE [1987] 168 ITR 705, WHAT THE SUPREM E COURT OBSERVED WAS THAT THERE MAY BE SEVERAL REASONS FOR WHICH THE ASSESSEE MAY HAVE OFFERED AN AMOUNT FOR ADDITION, B UT THAT ITSELF IS NOT SUFFICIENT TO INFER CONCEALMENT. IT HAS NOT LAID DOWN AS A RULE OF GENERAL APPLICATION THAT WHENEVER SUCH IS T HE CASE, PENALTY CANNOT BE IMPOSED. ON THE CONTRARY, IN SUCH CASES ALSO THE ASSESSEE IS REQUIRED TO DISCHARGE THE BURDEN PL ACED BY THE EXPLANATION APPENDED TO SECTION 271(1)(C). IN CASE AN EXPLANATION IS OFFERED, THE ASSESSING OFFICER IS TO EXAMINE IT AND FIND OUT WHETHER THE ASSESSEE HAS BEEN ABLE TO ESTA BLISH THAT THERE WAS NO CONCEALMENT. I.T.A .NO. 4411/DEL/2009 10 HELD, THAT, IN THE CASE AT HAND, NO EXPLANATION WOR TH THE NAME WAS OFFERED BY THE ASSESSEE. THE STATEMENT MADE BY THE ASSESSEE WAS TO THE EFFECT THAT HAND LOANS WERE OBT AINED WHICH WERE INTENDED TO BE REFUNDED IMMEDIATELY AND, THERE FORE, THE ENTRIES WERE NOT MADE, BUT, LATER ON, THE ARRANGEME NT DID NOT WORK OUT. THEREFORE, THE AMOUNT WAS OFFERED FOR TAX ATION. THERE WAS A CLEAR ADMISSION THAT THE ENTRIES WERE NOT MAD E ON THE RELEVANT DATES. IT WAS NOT A CASE WHERE ENTRIES WER E MADE ON THE RELEVANT DATES AND THE SOURCE OF MONEY WAS OMIT TED. THE ENTRIES ON THE CONTRARY WERE MADE ON DATES WHEN THE RE WAS SUFFICIENT CASH BALANCE. THE INTENTION TO HIDE THE ACTUAL STATE OF AFFAIRS WAS CLEAR. THE EXPLANATION OFFERED WAS FANC IFUL AND VAGUE. THE IMPOSITION OF PENALTY WAS VALID AND THE TRIBUNAL ERRED IN CANCELLING IT.' 5.5 HONBLE SUPREME COURT IN THE CASE OF K.P.MA DHUSUDANAN VS. CIT,251 ITR 99(SC) WHILE AFFIRMING THE AFORESAID VI EW HELD THAT WE FIND IT DIFFICULT TO ACCEPT AS CORRECT THE TWO JUDGMENTS AFOREMENTIONED. THE EXPLANATION TO SECTION 271(1)(C ) IS A PART OF SECTION 271. WHEN THE INCOME-TAX OFFICER OR THE APP ELLATE ASSISTANT COMMISSIONER ISSUES TO AN ASSESSEE A NOTI CE UNDER SECTION 271, HE MAKES THE ASSESSEE AWARE THAT THE P ROVISIONS THEREOF ARE TO BE USED AGAINST HIM. THESE PROVISION S INCLUDE THE EXPLANATION. BY REASON OF THE EXPLANATION, WHERE TH E TOTAL INCOME RETURNED BY THE ASSESSEE IS LESS THAN 80 PER CENT. OF THE TOTAL INCOME ASSESSED UNDER SECTION 143 OR 144 OR 1 47, REDUCED TO THE EXTENT THEREIN PROVIDED, THE ASSESSEE IS DEE MED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS THEREOF, UNLESS HE PROVES THAT THE FAIL URE TO RETURN THE CORRECT INCOME DID NOT ARISE FROM ANY FRAUD OR NEGL ECT ON HIS PART. THE ASSESSEE IS, THEREFORE, BY VIRTUE OF THE NOTICE UNDER SECTION 271 PUT TO NOTICE THAT IF HE DOES NOT PROVE , IN THE CIRCUMSTANCES STATED IN THE EXPLANATION, THAT HIS F AILURE TO RETURN HIS CORRECT INCOME WAS NOT DUE TO FRAUD OR NEGLECT, HE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INC OME OR FURNISHED INACCURATE PARTICULARS THEREOF AND, CONSE QUENTLY, BE LIABLE TO THE PENALTY PROVIDED BY THAT SECTION. NO EXPRESS INVOCATION OF THE EXPLANATION TO SECTION 271 IN THE NOTICE UNDER SECTION 271 IS, IN OUR VIEW, NECESSARY BEFORE THE P ROVISIONS OF THE EXPLANATION THEREIN ARE APPLIED. THE HIGH COURT AT BOMBAY WAS, THEREFORE, IN ERROR IN THE VIEW THAT IT TOOK A ND THE DIVISION BENCH IN THE IMPUGNED JUDGMENT WAS RIGHT. I.T.A .NO. 4411/DEL/2009 11 5.6 THEREFORE, IN VIEW OF THE FACTS AND CIR CUMSTANCES AND IN THE LIGHT OF ABOVE NOTED AUTHORITATIVE PRONOUNCEMEN TS, WHEN THE ASSESSEE FAILED TO DISCHARGE THE ONUS LAID DOWN UPO N HIM IN TERMS OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT AN D NOR EVEN ATTEMPTED TO EXPLAIN THE SOURCE OF CASH CREDITED IN THE BOOKS OF THE FIRM IN THE NAME OF AFORESAID TWO PARTNERS EVEN DUR ING THE PENALTY PROCEEDINGS , WE HAVE NO OPTION BUT TO UPHOLD THE FINDINGS OF THE LD. CIT(A), CONFIRMING THE LEVY OF PENALTY .EVEN O THERWISE THE BREACH OF CIVIL OBLIGATION WHICH ATTRACTS A PENALTY UNDER THE PROVISIONS OF AN ACT WOULD IMMEDIATELY ATTRACT THE LEVY OF PENALTY IRRESPECTIVE OF THE FACT WHETHER THE CONTRAVENTION WAS MADE BY THE DEFAULTER WITH ANY GUILTY INTENTION OR NOT, VIDE CH AIRMAN, SEBI V. SHRIRAM MUTUAL FUND [2006] 131 COMP CAS 591 (SC) ; [2006] 5 SCC 361. THIS VIEW HAS BEEN REITERATED BY THE HONBLE S UPREME COURT IN THEIR DECISION DATED 29.9.2008 IN THE CASE OF UNIO N OF INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSORS AND OTHERS , IN CIVIL APPEAL NOS.10289-10303 OF 2003. BLAMEWORTHINESS ATT ACHED TO THE ASSESSEE WITH REFERENCE TO THE ORIGINAL RETURN CANN OT BE AVOIDED BY ACCEPTING THE ADDITION PROPOSED BY THE AO AFTER CONCEALMENT WAS D ETECTED BY THE ASSESSING AUTHORITY. WHERE THE SURRENDER OF INCOME WAS NOT VO LUNTARY, BUT WAS AS A RESULT OF DETECTION BY THE ASSESSING AUTHORITY, PENALTY CA NNOT BE AVOIDED. THE VERY WORD 'OMISSION' CONNOTES AN INTENTIONAL ACT. THE FA CTUAL POSITION IS THE SURRENDER WAS A VEILED ATTEMPT TO PRESENT A MITIGATING CIRCUM STANCE. THAT BEING THE POSITION, THE SURRENDER OF CONCEALED INCOME DOES NO T CONSTITUTE A MITIGATING CIRCUMSTANCE AND PENALTY HAS BEEN RIGHTLY LEVIED. T HIS VIEW IS SUPPORTED BY DECISION IN PC JOSEPH & BROS.VS. CIT,158 CTR 104(KE R) 5.7 IN THE INSTANT CASE, THE ASSESSEE CLAIMED B EFORE THE AO AND THE LD. CIT(A) THAT THERE WAS NO TAX LIABILITY IN THEIR CASE AND THEREFORE, PENALTY COULD NOT BE LEVIED AND RELIED UPON DECISION OF HONBLE APEX COU RT IN PRITPAL SINGH(SUPRA) THIS SUBMISSION OF THE ASSESSEE IS CONTRARY TO THE PROVISIONS OF EXPLANATION 4 TO I.T.A .NO. 4411/DEL/2009 12 SEC. 271(1)(C) OF THE ACT AND THE DECISION OF THE H ONBLE APEX COURT IN GOLD COIN HEALTH FOOD (P) LTD (2008) 172 TAXMAN 386 (SC) OVE RRULED THE DECISION IN PRITPAL SINGH(SUPRA). IN THE ABSENCE OF ANY EVIDENC E OF SOURCE OF CASH, THE ASSESSEE HAD NO ALTERNATIVE BUT TO SURRENDER THE AM OUNT INTRODUCED IN CASH IN THE BOOKS OF THE FIRM IN THE NAME OF TWO PARTNERS. APPARENTLY, ONLY WHEN THE ASSESSEE WAS CORNERED , THE ASSESSEE SURRENDERED T HE AMOUNT .WE ARE OF THE OPINION THAT THE SURRENDER WAS NOT AT ALL VOLUNTARY . HERE ,WE MAY HAVE A LOOK AT THE MEANING OF WORD VOLUNTARY. THE MEANING OF WO RD VOLUNTARILY HAS BEEN DELIBERATED UPON BY THE HONBLE ALLAHABAD HIGH COUR T IN THE CASE OF CIT VS. SHRI RAKESH SURI REPORTED IN 2010-TIOL-357-HC-ALL-IT AS UNDER:- 41. A FULL BENCH OF THE ALLAHABAD HIGH COURT IN TH E CASE REPORTED IN (1998) 230 ITR 855:BHAIRAV LAL VERMA VERSUS UNION OF INDIA, WH ILE INTERPRETING THE WORD `VOLUNTARILY GIVEN IN SECTION 273(A) OF THE ACT HE LD THAT VOLUNTARILY MEANS OUT OF FREE WILL WITHOUT ANY COMPULSION. WHEN THE ASSESSEE CONCEALED THE INCRIMINATING MATERIAL WITH REGARD TO INCOME SO DIS CLOSED CANNOT BE HELD TO BE VOLUNTARILY. IT SHALL BE APPROPRIATE TO REPRODUCE T HE RELEVANT PORTION FROM THE JUDGMENT OF BHAIRAV LAL VERMA (SUPRA) AS UNDER: THE POSITION THUS SETTLED IS THAT THE WORD VOLUNTARILY IN SECTION 273A OF THE ACT MEANS OUT OF FREE WILL WITHOUT ANY COMPU LSION. DISCLOSURE OF CONCEALED INCOME AFTER THE DEPARTMENT HAS SEIZED TH E INCRIMINATING MATERIAL WITH REGARD TO THE INCOME SO DISCLOSED, CA NNOT BE VOLUNTARY DISCLOSURE, BECAUSE IT WAS MADE UNDER THE CONSTRAIN T OF EXPOSURE TO ADVERSE ACTION BY THE DEPARTMENT. BUT IT CANNOT BE HELD AS A PRINCIPLE OF LAW THAT THE DISCLOSURE OF INCOME MADE AFTER THE SEARCH/RAID CAN NOT BE VOLUNTARY. IT IS A QUESTION WHICH HAS TO BE DECIDED BY THE DEPARTMENT IN EACH CASE ON THE BASIS OF THE MATERIAL ON THE RECORD. IF ON RECORD T HERE IS INCRIMINATING MATERIAL WITH REGARD TO THE DISCLOSED INCOME, THE D ISCLOSURE CANNOT BE VOLUNTARY. BUT IF THE DEPARTMENT HAS NO INCRIMINATI NG MATERIAL WITH REGARD TO THE INCOME DISCLOSED, THE DISCLOSURE IS LIABLE T O BE TREATED AS VOLUNTARY HAVING BEEN MADE WITHOUT ANY COMPULSION OR CONSTRAI NT OF EXPOSURE TO ADVERSE ACTION BY THE DEPARTMENT. IN A CASE WHERE T HE ASSESSEE HAS DISCLOSED NOT ONLY THE INCOME REGARDING WHICH THE D EPARTMENT HAS INCRIMINATING MATERIAL, BUT HAS ALSO DISCLOSED THE INCOME WITH REGARD TO WHICH NO INCRIMINATING MATERIAL WAS SEIZED BY THE D EPARTMENT, THE DISCLOSURE OF THE INCOME WITH REGARD TO WHICH THE D EPARTMENT HAS NO INCRIMINATING MATERIAL, IS LIABLE TO BE TREATED AS VOLUNTARY. FOR EXAMPLE, IF I.T.A .NO. 4411/DEL/2009 13 AN ASSESSEE IS HAVING FIVE ACCOUNTS AND THE DEPARTM ENT HAS INCRIMINATING MATERIAL WITH REGARD TO ONE OF THOSE ACCOUNTS ONLY, THE DISCLOSURE OF INCOME RELATING TO FOUR ACCOUNTS WITH REGARD TO WHICH THE DEPARTMENT HAS NO INCRIMINATING MATERIAL, IS VOLUNTARY, BECAUSE IT WA S MADE WITHOUT ANY CONSTRAINT OR COMPULSION, EVEN THOUGH THE DISCLOSUR E OF THE INCOME RELATING TO THE ACCOUNT REGARDING WHICH THE DEPARTMENT HAS I NCRIMINATING MATERIAL, IS LIABLE TO BE TREATED AS NON VOLUNTARY. 5.8 FROM THE SAID DECISION IT IS, THUS, CLEAR TH AT VOLUNTARILY MEANS OUT OF FREE WILL WITHOUT ANY COMPULSION. WHEN THE ASSESSEE CONCEALED INCRIMINATING MATERIAL IN THE FORM OF TRANSACTIONS OF CASH IN THE NAME OF TWO PARTNERS, SURRENDER CANNOT HELD TO BE VOLUNTARILY. HONBLE JURISDICTIONAL HIGH COURT IN JASWANT RAI & ANOTHER VS. CBDT,133 ITR 19(DEL.) HELD THAT THE SUBSEQUENT ACT OF DISCLOSURE OF AN INCOME WOULD NOT MAKE ANY DIFFERENCE AND IT CANNOT BE SAID THAT THE ASSESSEE HAD NOT CONCEALED PARTICULARS OF THEIR INCOME OR HA D NOT FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. FOLLOWING THE VIEW TAKE N IN THE AFORESAID DECISION OF HONBLE ALLAHABAD HIGH COURT IN RAKESH SURI(SUPRA), A CO-ORDINATE BENCH IN TRIVIUM POWER ENGINEERS P. LTD. V. INCOME-TAX OFFIC ER,5 ITR(AT)347(DEL.)UPHELD THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ON THE AMOUNT SURRENDERED ON ACCOUNTS OF UNSECURED LOANS IN CASH FROM VARIOUS PE RSONS. IN THE INSTANT CASE ALSO THE ASSESSEE'S EXPLANATION HAS NOT BEEN FOUND TO BE BONA FIDE AND IT FAILED TO FURNISH ALL RELEVANT MATERIAL PARTICULARS RELATI NG TO THE CONCEALED INCOME AND TO DISCHARGE ITS BURDEN THAT LAY UPON IT UNDER EXPLANA TION 1 TO SECTION 271(1)(C) OF THE ACT. 6. A VERY HEAVY ONUS IS PLACED ON THE ASSESSEE TO EXPLAIN THE DIFFERENCE BETWEEN THE ASSESSED INCOME AND RETURNED INCOME AND THE ASSESSEE IN THE INSTANT CASE DID NOT DISCHARGE THE SAID ONUS. IN THE LIGHT OF THE DISCUSSION MADE ABOVE AND CONDUCT OF THE ASSESSEE, IT IS THUS CLEAR THAT ALL THE MATERIAL FACTS AND PARTICULARS RELATING TO THE ASSESSEE'S COMPUTATION OF INCOME WERE NEVER DISCLOSED BY THE ASSESSEE, AND IT IS FURTHER CLEAR THAT THE ASSESSEE DID NOT OFFER ANY COGENT EXPLANATION AT ALL BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS AND EVEN DURING THE PENALTY PROCEEDINGS, IN RESPECT OF THE AFORESAID AMOUNT OF I.T.A .NO. 4411/DEL/2009 14 ` 30 LACS CREDITED IN THE BOOKS OF THE ASSESSEE, WHIC H AMOUNT WAS LATER SURRENDERED BY THE ASSESSEE AS INCOME OF THE YEAR U NDER CONSIDERATION. IN THESE CIRCUMSTANCES AND IN THE LIGHT OF DECISIONS OF THE HONBLE SUPREME COURT AND JURISDICTIONAL HIGH COURT REFERRED TO ABOVE, WE AR E OF THE OPINION THAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE THE BURDEN THAT LAY UPON THEM BY EXPLANATION 1 TO S. 271(1)(C) OF THE ACT. THEREFORE , WE HAVE NO HESITATION IN UPHOLDING THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE PENALTY IMPOSED BY THE AO UNDER S. 271(1)(C) OF THE ACT . CONSEQUENTLY, GROUN DS RAISED IN THE APPEAL ARE DISMISSED. 7 NO OTHER PLEA OR ARGUMENT WAS MADE B EFORE US. 8.. IN THE RESULT, APPEAL IS DISMISSED. SD/- S D/- (R.K.GUPTA) (A.N.PAHUJA) JUDICIAL MEMBER ACCOUN TANT MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. ASSESSEE 2. ITO, WARD-20(4), VIKAS BHAWAN ,I.P. ESTATE, NEW DELHI 3. CIT CONCERNED 4. CIT(APPEALS)-XXII,NEW DELHI 5. DR: ITAT A BENCH,NEW DELHI 6. GUARD FILE. ASSISTANT REGISTRAR ITAT, NEW DELHI