Sh. Mahesh Chand Sharma, Agra V. Dy. C.I.T.-1, Agra

ITA 514/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0357 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-02-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 09-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Document seized; Documents seized
• Section: 153A; 132; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 511 & 512/AGRA/2012 ASSTT. YEAR : 1999-2000 & 2000-01 LATE SMT. SADHNA SHARMA, VS. D.C.I.T. 1, THROUGH L/H. SHRI MAHESH CHAND SHARMA, AGRA. 10, OLD VIJAY NAGAR COLONY, AGRA. (PAN : ALJPS 5888 E) ITA NO. 514 & 515/AGRA/2012 ASSTT. YEAR : 1999-200 & 2000-01 SHRI MAHESH CHAND SHARMA, VS. D.C.I.T. 1, 10, OLD VIJAY NAGAR COLONY, AGRA. AGRA (PAN : ATSPS 6503 K) (APPELLANTS) (RESPONDENT) APPELLANTS BY : SHRI ANIL VERMA, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 20.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 28.02.2013 ORDER PER BHAVNESH SAINI, J.M.: ALL THE APPEALS BY TWO DIFFERENT ASSESSEES ARE DIR ECTED AGAINST DIFFERENT ORDERS OF LD. CIT(A)-I, AGRA DATED 19.04.2012 FOR A BOVE ASSESSMENT YEARS CHALLENGING THE LEVY OF PENALTY U/S. 271(1)(C) OF T HE IT ACT. ITA NO. 511, 512, 514 & 515/AGRA/2012 2 2. BOTH THE PARTIES SUBMITTED THAT THE FACTS ARE SA ME IN ALL THE CASES AND THE PARTIES MAINLY ARGUED IN THE CASE OF ASSESSEE SMT. SADHANA SHARMA AND OTHER ASSESSEE, SHRI MAHESH CHAND SHARMA IS HER HUSBAND. THEREFORE, FOR THE PURPOSE OF DISPOSAL OF ALL THE APPEALS, THE FACTS ARE TAKEN FR OM THE CASE OF SMT. SADHANA SHARMA. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT SEARCH U /S. 132(1) OF THE IT ACT WAS CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISE S OF THE ASSESSEE ON 16.09.2004. DURING THE COURSE OF SEARCH, CASH, JEWELLERY, INCRI MINATING PAPERS, COSTLY HOUSEHOLD ARTICLES WERE FOUND WHICH WERE TABULATED. LOCKER WITH CANARA BANK WAS ALSO FOUND. FURTHER, DURING THE COURSE OF SEARC H AT THE RESIDENCE OF THE ASSESSEES HUSBAND, CERTAIN DOCUMENTS WERE SEIZED, WHICH ARE ANNEXURE A-11 AND A-12, ACCORDING TO WHICH, THE ASSESSEE, HER HUSBAND AND INCLUDING OTHERS TOTALING TO 11 PERSONS, PURCHASED DIFFERENT PLOTS AT JAIPUR, IN SEVERAL ASSESSMENT YEARS INCLUDING THE ASSESSMENT YEARS UNDER APPEALS. ACCOR DING TO ANNEXURE A 11-12, THE ASSESSEE AND HER HUSBAND AND OTHERS MADE SEVERAL IN VESTMENTS BY MAKING PAYMENTS, DETAILS OF WHICH ARE TABULATED AT PAGE 2 OF THE ASSESSMENT ORDER AND IN ASSESSMENT YEAR 1999-2000, THE ASSESSEE MADE INVEST MENT IN THE PLOT AT RS.1,45,140/- AND IN ASSESSMENT YEAR 2000-01, THE A SSESSEE SIMILARLY MADE INVESTMENT OF RS.2,10,970/-. PROCEEDINGS U/S. 153A WERE INITIATED AND STATUTORY ITA NO. 511, 512, 514 & 515/AGRA/2012 3 NOTICES WERE ISSUED FOR COMPLETION OF THE ASSESSMEN T. HOWEVER, ACCORDING TO THE ASSESSMENT ORDER, THE ASSESSEE DID NOT FILE ANY EXP LANATION TO THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH TO INDICATE UNDIS CLOSED INVESTMENT MADE BY THE ASSESSEE IN PURCHASE OF LAND AT JAIPUR IN BOTH THE ASSESSMENT YEARS UNDER APPEAL. THEREFORE, THE AO FEELING NO ALTERNATE, MADE ADDITI ON OF RS.1,45,140/- AND RS.2,10,970/- IN BOTH THE ASSESSMENT YEARS UNDER AP PEAL. BOTH THE ADDITIONS WERE CHALLENGED BEFORE THE LD. CIT(A). THE LD. CIT(A)-II , AGRA VIDE ORDER DATED 28.11.2008 CONFIRMED BOTH THE ADDITIONS AND DISMISS ED THE APPEALS OF THE ASSESSEE. IT IS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE DID NOT CHALLENGE THE ORDER OF QUANTUM OF LD. CIT(A) CONFIR MING BOTH THE ADDITIONS BEFORE THE TRIBUNAL. THEREFORE, THE ADDITIONS MADE BY THE AO ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH HAVE BECOME FINAL. THE AO VIDE SEPARATE PROCEEDINGS INITIATED THE PENALTY PROCEEDINGS AND ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE PENALTY SHOULD NOT BE LEVIED AGAINST THE ASSESSEE U/S. 271(1)(C) OF THE IT ACT. THE ASSESSEE , HOWEVER, DID NOT RESPOND TO THE STATUTORY NOTICE AND DID NOT OFFER ANY EXPLANATION. THEREFORE, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS CONCEALED THE PARTICULAR S OF INCOME AND ACCORDINGLY LEVIED THE PENALTY U/S. 271(1)(C) OF THE ASSESSEE I N BOTH THE ASSESSMENT YEARS UNDER APPEALS VIDE SEPARATE ORDER. THE PENALTY ORDERS WER E CHALLENGED BEFORE THE LD. CIT(A) AND IT WAS SUBMITTED THAT PENALTY HAS BEEN I MPOSED ONLY ON THE BASIS OF ITA NO. 511, 512, 514 & 515/AGRA/2012 4 SURMISES, CONJECTURES, ASSUMPTION AND PRESUMPTION W ITHOUT CONFRONTING ANY EVIDENCE. IT WAS ALSO CONTENDED THAT THE ASSESSEE A GREED TO THE ABOVE ADDITION JUST TO BUY PEACE AND AVOID LITIGATION AND FOR GIVING TH E BENEFIT OF INDEXATION IN THE ASSESSMENT YEAR 2005-06. THEREFORE, IT IS NOT THE C ASE OF CONCEALMENT OF INCOME. IT WAS ALSO SUBMITTED THAT TILL INDEXATION BENEFIT IS GIVEN, THE APPEAL MAY BE KEPT PENDING. THE LD. CIT(A) NOTED THAT NO SUBMISSIONS H AVE BEEN MADE EITHER ON MERIT OF THE ADDITION, WHETHER IT IS IN NATURE OF CONCEAL MENT OR NOT AND ALSO NO SUBMISSIONS HAVE BEEN MADE FOR DISPUTING THE LEVY O F PENALTY U/S. 271(1)(C) OF THE IT ACT. THE LD. CIT(A), THEREFORE, PROCEEDED TO DEC IDE THE APPEAL ON MERITS FINDING NO JUSTIFICATION TO KEEP THE APPEALS IN ABEYANCE. T HE LD. CIT(A) ON THE BASIS OF DETAILS AND THE MATERIAL AVAILABLE ON RECORD FOUND THAT IT IS UNDISPUTED FACT THAT THE VALUE OF INVESTMENT FOR PURCHASE OF PLOT OF LAND WA S UNDERSTATED BY THE ASSESSEE AS DECLARED BY HER IN THE RETURN OF INCOME AND AS SUCH , THE VALUE OF INVESTMENT HAS BEEN ENHANCED BY THE AO ON THE BASIS OF SEIZED DOCU MENTS FOUND DURING THE COURSE OF SEARCH. SUCH ADDITIONS HAVE BEEN CONFIRME D BY THE LD. CIT(A). THEREFORE, THE AO WAS JUSTIFIED IN LEVYING PENALTY BECAUSE THE VALUE OF INVESTMENT IN PURCHASE OF LAND HAS BEEN CONCEALED AND WAS NOT DISCLOSED BY THE ASSESSEE. PENALTY WAS ACCORDINGLY CONFIRMED AND THE APPEALS O F THE ASSESSEE WERE DISMISSED. ITA NO. 511, 512, 514 & 515/AGRA/2012 5 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND ADMITTED THAT THE ASSESSEE DID NOT P REFER ANY APPEALS ON QUANTUM AND AS SUCH THE ADDITIONS MADE BY THE LD. CIT(A) HA VE REACHED FINALITY. HE HAS REFERRED TO THE SEIZED PAPERS, COPY OF WHICH ARE FI LED AT PB-3 & 4 AND SUBMITTED THAT THE SAME DETAILS DID NOT INDICATE ANY UNDISCLO SED INVESTMENT MADE BY THE ASSESSEE. NO EVIDENCE WAS FOUND AGAINST THE ASSESSE E TO MAKE INVESTMENT IN THE LAND. THE ASSESSEE BEFORE THE LD. CIT(A) IN REPLY D ENIED TO HAVE MADE ANY PAYMENT ON ACCOUNT OF PURCHASE OF THE PLOT (PB-1). HE HAS S UBMITTED THAT SINCE NO INVESTMENTS HAVE BEEN MADE BY THE ASSESSEE IN PURCH ASE OF LAND, THEREFORE, IT IS NOT A CASE OF CONCEALMENT OF PARTICULARS OF INCOME AND IN THE ALTERNATE CONTENTION, HE HAS SUBMITTED THAT INDEXATION BENEFIT MAY BE ALLOWE D TO THE ASSESSEE. HE HAS SUBMITTED THAT MERELY BECAUSE NO SECOND APPEAL HAS BEEN PREFERRED ON QUANTUM WOULD NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. HE HAS RELIED UPON THE ORDER OF THE ITAT, C OCHIN BENCH IN THE CASE OF DCIT VS. KALPAKA BAZAR, 46 ITD 221 AND ALSO RELIED UPON THE DECISION OF SUPREME COURT IN THE CASE OF D.M. MANASVI VS. CIT, 86 ITR 5 57. 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ADDITIONS, ON WHICH THE PENA LTY HAS BEEN IMPOSED, ARE BASED ON THE SEIZED PAPERS FOUND DURING THE COURSE OF SEA RCH WHICH HAVE NOT BEEN ITA NO. 511, 512, 514 & 515/AGRA/2012 6 EXPLAINED BY THE ASSESSEE EITHER AT THE ASSESSMENT STAGE OR PENALTY STAGE. THEREFORE, EXPLANATION-I TO SECTION 271(1)(C) IS CL EARLY ATTRACTED IN THE CASE OF ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE SEARCH WAS CONDUCTED IN THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE AND INCRIMINATING DOCUMENT S WERE FOUND AND SEIZED. THE ANNEXURE A-11 AND A-12 FOUND DURING THE COURSE OF S EARCH INDICATED THAT THE ASSESSEE, HER HUSBAND AND OTHER PERSONS TOTALING TO 11 PERSONS HAVE SEPARATELY PURCHASED SEVERAL PLOTS AND MADE PAYMENTS FOR THE S AME. THE DETAILS OF THE PURCHASES OF LAND IS NOTED AT PAGE 2 OF THE ASSESSM ENT ORDER TO SHOW THAT IN ASSESSMENT YEARS UNDER APPEAL AND OTHERS THE ASSESS EE AND HER HUSBAND MADE INVESTMENT IN PURCHASE OF LAND. HOWEVER, THE SAME I NVESTMENTS IN THE PURCHASE OF LAND HAVE NOT BEEN SHOWN IN THE RETURN OF INCOME. T HE ASSESSEE WAS DIRECTED TO EXPLAIN THE SEIZED PAPERS BUT THE ASSESSEE DID NOT FILE ANY EXPLANATION TO THE SEIZED PAPERS. THE AO, ACCORDINGLY, MADE BOTH THE ADDITION S IN BOTH THE ASSESSMENT YEARS UNDER APPEALS IN RESPECT OF THE AMOUNT TREATING THE SAME AS UNDISCLOSED INVESTMENT IN THE PURCHASE OF LANDS AND BOTH THE ADDITIONS HAV E BEEN CONFIRMED BY THE LD. CIT(A) IN QUANTUM APPEALS AND ADMITTEDLY, NO FURTHE R APPEALS ON QUANTUM HAVE BEEN FILED BEFORE THE TRIBUNAL. THEREFORE, THE ADDI TIONS ON WHICH PENALTY HAS BEEN ITA NO. 511, 512, 514 & 515/AGRA/2012 7 IMPOSED HAVE REACHED FINALITY BETWEEN BOTH THE PART IES. SECTION 292C OF THE IT ACT HAS BEEN INSERTED IN THE INCOME-TAX ACT BY FINANCE ACT, 2007 W.E.F. 01.10.1975 AND READS AS UNDER : 292C (1) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE O F A SEARCH UNDER SECTION 132 OR SURVEY UNDER SECTION 133A, IT MAY, IN ANY PR OCEEDING UNDER THIS ACT, BE PRESUMED (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING BELON G OR BELONGS TO SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHE R DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOO KS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HAND WRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE AS SUMED TO HAVE BEEN SIGNED BY, OR TO BE IN THE HANDWRITING OF , ANY PARTICULAR PERSON, ARE IN THAT PERSONS HANDWRITING , AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, T HAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED. 6.1 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF ABOVE SECTION, IT IS CLEAR THAT THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEAR CH FROM THE POSSESSION OR CONTROL OF THE ASSESSEE, IT SHALL HAVE TO BE PRESUM ED THAT THE SEIZED DOCUMENTS BELONG TO THE ASSESSEE AND THE SAME ARE TRUE AND CO RRECT AND REVEAL UNDISCLOSED INVESTMENT MADE BY THE ASSESSEE AND HER HUSBAND IN PURCHASE OF LANDS IN BOTH THE ASSESSMENT YEARS UNDER APPEAL. THUS, THE REVENUE HA S BEEN ABLE TO PROVE THAT THE ASSESSEE HAS MADE UNDISCLOSED INVESTMENT IN PURCHAS E OF LAND. THEREFORE, THE ITA NO. 511, 512, 514 & 515/AGRA/2012 8 SEIZED MATERIAL WAS CONFRONTED TO THE ASSESSEE AT T HE ASSESSMENT STAGE, BUT THE ASSESSEE DID NOT FILE ANY EXPLANATION TO THE SAME. THEREFORE, IT STANDS PROVED THAT THE ASSESSEE AND HER HUSBAND MADE UNDISCLOSED INVES TMENT IN PURCHASE OF LAND. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. HAR PRASAD & CO. LTD., 328 ITR 53 HELD AS UNDER : HELD, THAT THE REASONS GIVEN BY THE TRIBUNAL FOR Q UASHING THE PENALTY PROCEEDINGS WERE IRRELEVANT, NOT GERMANE TO THE ISSUE AND THE TRIBUNAL HAD LOST SIGHT OF ASPECTS WHICH HAD BEEN C ONCLUSIVELY ESTABLISHED IN THE QUANTUM PROCEEDINGS. THE TRIBUNA L HAD FAILED TO TAKE NOTE OF THE FACT THAT PART OF THE CLAIM AS COM MISSION WAS ALLOWED TO THE ASSESSEE NOT BECAUSE R HAD RENDERED ANY SERV ICES BUT BECAUSE J HAD RENDERED SERVICES FOR WHICH IT WAS PAID 1 PER C ENT OF THE COMMISSION BY R OUT OF THE 3 PER CENT RECEIVED BY H ER. AS FAR AS COMMISSION TO R WAS CONCERNED, IT WAS ACCEPTED BY T HE TRIBUNAL IN THE QUANTUM PROCEEDINGS THAT SHE DID NOT RENDER ANY SERVICES AT ALL. THE ASSESSEE HAD FAILED TO OFFER ANY EXPLANATION IN RESPECT OF THE ADDITION OF RS.1,83,078 AND IT COULD BE DEEMED TO H AVE CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS THEREOF, BY VIRTUE OF THIS EXPLANATION. THE TRIBUNAL WAS NOT JU STIFIED IN DELETING THE PENALTY IMPOSED BY THE INCOME-TAX OFFICER UNDER SECTION 271 (1) (C) OF THE ACT. THE FINDINGS GIVEN IN ASSESSMENT PROCEEDINGS ARE RE LEVANT AND HAVE PROBATIVE VALUE. WHERE THE ASSESSEE PRODUCES N O FRESH EVIDENCE OR PRESENTS ANY ADDITIONAL OR FRESH CIRCUMSTANCES I N PENALTY PROCEEDINGS, HE WOULD BE DEEMED TO HAVE FAILED TO D ISCHARGE THE ONUS PLACED ON HIM AND THE LEVY OF PENALTY COULD BE JUST IFIED. EVEN IF THERE IS NO CONCEALMENT OF INCOME OR FURNIS HING OF INACCURATE PARTICULARS, BUT ON THE BASIS THEREOF TH E CLAIM WHICH IS MADE IS EX FACIE BOGUS, IT MAY STILL ATTRACT PENALT Y PROVISION. THE EXPLANATION APPENDED TO SECTION 271 (1) (C ) OF THE ACT ENTIRELY INDICATE THE ELEMENT OF STRICT LIABILITY O N THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WH ILE FILING RETURN. ITA NO. 511, 512, 514 & 515/AGRA/2012 9 THE OBJECT BEHIND ENACTMENT OF SECTION 271 (1) (C) READ WITH THE EXPLANATIONS INDICATE THAT THE SECTION HAS BEEN ENA CTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE. THE PENALTY UNDER THA T PROVISION IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN ESSE NTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS IS THE CASE IN THE MA TER OF PROSECUTION UNDER SECTION 276C OF THE ACT. 6.2 THE ASSESSEE DESPITE GIVING OPPORTUNITY TO EXPL AIN THE SEIZED PAPERS BEFORE THE AO, DID NOT OFFER ANY REPLY IN THE PENALTY PROC EEDINGS TO EXPLAIN THE SAME SEIZED MATERIAL, ON THE BASIS OF WHICH THE ABOVE AD DITIONS HAVE BEEN MADE. THUS, IT IS CLEAR THAT THERE IS SPECIFIC SEIZED MATERIAL FOU ND AGAINST THE ASSESSEE TO PROVE THAT THE ASSESSEE AND HER HUSBAND MADE UNDISCLOSED INVESTMENT IN PURCHASE OF LAND. THE ASSESSEE, HOWEVER, NEVER AVAILED TO ANY O PPORTUNITY TO EXPLAIN THE SEIZED MATERIAL. EXPLANATION 1 TO SECTION 271(1)(C) READS AS UNDER : [EXPLANATION 1.WHERE IN RESPECT OF ANY FACTS MATE RIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR O FFERS AN EXPLANATION WHICH IS FOUND BY THE [ASSESSING] OFFICER OR THE [COMMISSION ER (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 EXPLANATION IS BONA F IDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATIO N 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, FOR THE PURP OSES OF CLAUSE (C) OF THIS ITA NO. 511, 512, 514 & 515/AGRA/2012 10 SUB-SECTION, BE DEEMED TO REPRESENT THE INCOME IN R ESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. 6.3 HONBLE M.P. HIGH COURT IN THE CASE OF VIMAL GI NNING AND PRESSING FACTORY VS. CIT, 279 ITR 100 HELD AS UNDER : HELD, THAT FIRSTLY, IT WAS A CASE OF CONCEALMENT ON THE PART OF THE ASSESSEE. SECONDLY, IT WAS A CASE WHERE THE ASS ESSEE MADE AN ATTEMPT TO EXPLAIN BUT COULD NOT PERSUADE THE THREE AUTHORITIES TO ACCEPT ITS EXPLANATION. THIRDLY, THE REFERENCE COUR T COULD NOT GO INTO THE ADEQUACY OF EXPLANATION AGAIN IN ITS REFERENCE JURISDICTION IN ABSTRACT FORM FOR WANT OF ANY LEGAL ISSUE/INTERPRET ATION INVOLVED AND LASTLY, ONCE THE ADDITION WAS UPHELD PENALTY HAD TO BE IMPOSED CONSEQUENT UPON THE REJECTION OF THE EXPLANATION OF FERED. 6.4 THE HONBLE M. P. HIGH COURT IN THE CASE OF RUK MINI BAI 276 ITR 650 HELD AS UNDER: HELD, REJECTING THE APPLICATION, THAT THE ASSESSEE DID NOT FILE ANY EXPLANATION WHEN THE PENALTY PROCEEDINGS WERE I NITIATED. THE EXPLANATION COULD BE THE SAME AS THAT GIVEN BEFORE THE ASSESSING OFFICER AND IF THAT HAD BEEN SO, IT WOULD HAVE HAD TO BE LOOKED INTO IN THE PENALTY PROCEEDINGS, BUT WHEN NO EXPLANATION WA S FILED, IT COULD NOT BE TAKEN INTO CONSIDERATION. THE ASSESSEE COULD NOT CONTEND FOR THE FIRST TIME BEFORE THE COURT THAT INTERFERENCE W AS WARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. CALLING FOR TH E STATEMENT OF CASE WAS NOT WARRANTED IN THIS CASE BECAUSE THE TRIBUNAL HAD RIGHTLY RECORDED THAT THE IMPOSITION OF PENALTY UNDER SECTI ON 271(1) (C) IN THE CASE WAS JUST AND PROPER. 6.5 THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SOM ENGINEERING CORPORATION VS. CIT 277 ITR 92 (ALL) HELD HELD, THAT THE EXPLANATION TO SECTION 271(1)(C) OF THE INCOME- TAX ACT, 1961, WAS CLEARLY ATTRACTED IN THE PRESENT CASE INASMUCH AS ITA NO. 511, 512, 514 & 515/AGRA/2012 11 THE ASSESSED INCOME WAS MORE THAN 80 PER CENT. OF T HE RETURNED INCOME, BEING RS.1,63,850 AS AGAINST THE RETURNED I NCOME OF RS.71,870. THE ONUS WAS ON THE ASSESSEE WHICH IT HA D FAILED TO DISCHARGE AS NO EXPLANATION WHATSOEVER WAS GIVEN BY IT BEFORE THE ASSESSING OFFICER. MOREOVER, THE TRIBUNAL HAD RECOR DED A CLEAR FINDING THAT BY DEBITING THE AMOUNT OF PURCHASE OF GOODS AT RS.51,314.74 TWICE, THE PROFITS HAD BEEN REDUCED. T HE LEVY OF PENALTY WAS THEREFORE JUSTIFIED. 6.6 CONSIDERING THE FACTS IN THE LIGHT OF ABOVE PRO VISIONS AND DECISIONS, IT IS CLEAR THAT THE ASSESSEE HAS NOT OFFERED ANY EXPLANA TION WHATSOEVER AT THE PENALTY & ASSESSMENT STAGE BY EXPLAINING THE SEIZED MATERIAL. THEREFORE, WE ARE OF THE VIEW THAT EXPLANATION-1 TO SECTION 271(1)(C) OF THE IT A CT READ WITH SECTION 292C OF THE IT ACT IS CLEARLY ATTRACTED IN THE CASE OF THE ASSE SSEE FOR THE PURPOSE OF LEVY OF PENALTY. THE DECISIONS RELIED UPON BY THE LD. COUNS EL FOR THE ASSESSEE WOULD NOT SUPPORT THE CASE OF THE ASSESSEE. SINCE THE PENALTY IS IMPOSED ON THE BASIS OF QUANTUM ADDITIONS CONFIRMED BY THE LD. CIT(A), THER EFORE, NO INDEXATION ISSUE CAN BE CONSIDERED AT THIS STAGE. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THERE ARE NO MERITS IN BOTH THE APPEALS OF THE ASSESSEE. THE SAME ARE ACCORDINGLY DISMISSED. 7. NOW, WE TAKE UP THE REMAINING APPEALS IN THE CAS E OF ASSESSEE, SHRI MAHESH CHAND SHARMA, IN WHICH THE FACTS ARE SIMILAR AS HAV E BEEN CONSIDERED IN THE CASE OF ASSESSEE SMT. SADHANA SHARMA EXCEPT THAT IN THE ASSESSMENT YEAR 1999-2000 AND 2000-01, THE ADDITIONS ON ACCOUNT OF UNDISCLOSE D INVESTMENT IN PURCHASE OF ITA NO. 511, 512, 514 & 515/AGRA/2012 12 LANDS HAVE BEEN MADE IN A SUM OF RS.1,33,760/- AND RS.1,94,410/- RESPECTIVELY. SINCE THE FACTS ARE SAME, THEREFORE, FOLLOWING THE DECISION IN THE CASE OF ASSESSEE SMT.SADHANA SHARMA, BOTH THE APPEALS OF THE ASSESSE E ARE DISMISSED. 8. IN THE RESULT, ALL THE APPEALS OF BOTH THE ASSES SEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY