M/s. MAHIMA FIBRES PRIVATE LIMITED, Indore V. The DCIT 1(1), Indore

ITA 568/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5878 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 27-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: PANKAJ SHAH CAS
• Keywords: Unexplained cash credit; Bogus Share capital; Principle of natural justice; Reassessment proceedings
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 568 /IND/201 4 A.Y. : 2010-11 M/S. MAHIMA FIB ERS PRIVATE LIMITED, DY. CIT, 1(1), INDORE. VS. INDORE. APPELLANT RESPONDENT PAN NO.AACCM4603N APPELLANTS BY : SHRI MANOJ GUPTA AND SHRI PANKAJ SHAH, CAS RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R PER D. T. GARASIA, J.M. TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF CIT(A)-I, INDORE, DATED 20.6.2014 FOR ASSESSMENT YE AR 2010-11. DATE OF HEARING : 15. 10.2015. DATE OF PRONOUNCEMENT : 05 . 01 .201 6 M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 2 2 2. THE ONLY GROUND IN THIS APPEAL IS AGAINST THE CONFI RMING THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 19 61. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A PRIVATE LIMITED COMPANY ENGAGED IN MANUFACTURING OF COTTON YARN AND KNITTED FABRIC. THE ASSESSEE HAS INTRODUCE D SHARE CAPITAL OF RS. 3.50 LACS ALONGWITH SHARE PREMIUM AT RS. 31.50 LACS. THE PARTICULARS ARE ON PAGE 2 OF THE CIT(A)S ORDER, WHICH ARE REPRODUCED BELOW :- S.NO. NAME & ADDRESS ITR SIGNE D BY SHARE CAPITAL SHARE PREMIUM TOTAL 1. M/S.TALENT INFOWAY LIMITED, BLOCK-H, SHRI SADASHIV CO- OP. HOUSING SOCIETY LTD., 6 TH ROAD, GROUND FLOOR, SANTACRUZE (E)M NYNBAU 400 055 PAN AACCT944L - 2,50,000/- 22,50,000/ - 25,00,000/- 2. M/S. ALPHA CHEMIE TRADE CENTRE, BLOCK-H, SHRI SADASHIV CO-OP, HOUSING SOCIETY LTD., 6 TH ROAD, GROUND FLOOR, SANTACRUZE (E), MUMBAI-400055, PAN AADCA9890L - 1,00,000/- 9,00,000/- 10,00,000/- 4. THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED TO H AVE RECEIVED THE SHARE PREMIUM @ RS.90/- PER SHARE. IN ORDER TO ASCERTAIN THE IDENTITY AND CREDITWORTHINESS OF THE SHAREHOLDERS AND GENUINENESS OF THE TRANSACTION, THE AO HAD GOT CONDUCTED M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 3 3 ENQUIRIES U/S 133(6) OF THE INCOME - TAX ACT, 1961, BY ISSUING LETTERS AT THE ADDRESS OF THE SHAREHOLDERS PROVIDED BY THE ASSESSEE. THE AO FURTHER NOTICED THAT THE REPLIES RECEIVED FROM THE ABOVE SHAREHOLDERS WERE CONTAINED IN A SINGLE E NVELOPE ON THEIR RESPECTIVE LETTER HEADS SIGNED BY SINGLE PERS ON NAMELY JAYESH K. SAMPAT. THE AO FURTHER NOTICED THAT SHRI JAYESH K. SAMPAT WAS ONE OF THE DIRECTORS OF THE SAID COMPANY . THE AO NOTICED THAT IN THE AFORESAID LETTERS THE QUERIES R AISED BY HIM WERE NOT COMPLIED WITH MERELY ON THE GROUND THAT TH EIR ACCOUNTING DATA WAS IMPOUNDED BY THE INCOME TAX DEP ARTMENT DURING THE COURSE OF SEARCH ACTION CARRIED OUT ON 2 5.11.2009. ACCORDINGLY, THEY HAVE SHOWN THEIR INABILITY TO COM PLY WITH THE QUERIES. THE AO HAS ALSO RECORDED THE STATEMENT OF SHRI JAYESH K. SAMPAT AND THE STATEMENT WAS RECORDED AND SHRI J AYESH K. SAMPAT ADMITTED THAT THEY WERE PROVIDING ACCOMMODAT ION ENTRIES AND THE AO HAS MADE THE ADDITION AND LEVIED THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 5. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED THE WRI TTEN SUBMISSION, WHICH READS AS UNDER :- M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 4 4 THE APPELLANT IS A PRIVATE LIMITED COMPANY ENGAGED IN MANUFACTURING OF COTTON YARN AND KNITTED FABRICS. THE LEARNED A.O. HAS LEVIED PENALTY U/S 271(1)(C) OF RS. 12,01,550 ADDITION OF ALLEGED UNEXPLAINED CREDIT U/S 68 ARISING FROM SHARE APPLICATION MONEY OF RS.35 LAKHS RECEIVED FROM: M/ S TALENT INFOWAY LTD M/S ALPHA CHEMIE TRADE AGENCIES P. LTD BASIS OF ADDITION GIVEN BY AO IS THAT IN RESPECT OF SAME INVESTOR COMPANIES ADDITION U/S 68 WAS MADE BY HIM IN CASE OF ANOTHER ASSESSEE M/S AD-MANUM PACKAGING P. LTD FOR THE A.Y.2009-10 WHEREIN CERTAIN STATEMENTS OF DIRECTORS OF INVESTORS WERE RELIED FOR MAKING SUCH ADDITION. SINCE THE AO HAD MADE ADDITION IN RESPECT OF IMPUGNED INVESTORS IN AD- MANUM'S CASE THEREFORE HE PROCEEDED TO MAKE M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 5 5 ADDITION IN APPELLANT'S CASE. FURTHER DURING ASSESSMENT PROCEEDINGS THE LEARNED AO CALLED FOR CERTAIN DOCUMENTS FROM THE INVESTORS. IN REPLY TO SUCH NOTICE THE DIRECTOR OF INVESTOR COMPANY REPLIED THAT THESE DETAILS ARE NOT AVAILABLE WITH THEM SINCE ALL THEIR RECORDS AND ACCOUNTING DATA HAVE BEEN IMPOUNDED BY THE INCOME TAX DEPARTMENT IN SEARCH AT THEIR PREMISES AND NO INFORMATION COULD BE PROVIDED. DUE TO INABILITY OF INVESTORS IN PROVIDING THE ADDITIONAL INFORMATION THE ADDITION HAS BEEN MADE. THE AO HAS RELIED ON THE STATEMENTS OF MR. MUKESH CHOKSI FOR MAKING ADDITION, HOWEVER IN THE FOLLOWING DECISIONS IT IS HELD THAT STATEMENT OF MR. MUKESH CHOKSI ARE NOT RELIABLE AS HE IS DOUBLE SPEAKING PERSON AND HIS STATEMENT CANNOT BE A DECIDING FACTOR. SEE: M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 6 6 ACIT V. UTTARA S. SHOREWALA (ITA 5506/MUM/2009) (ITAT MUM) BHARTI SYNTEX LTD V. DCIT (ITA 172 &173/JP/2010) DATED 13.01.2011 RAVINDRAKUMAR TOSHNIWAL VS DIT (ITA 5302/ MUM/200S) LATA SONI V. DIT (ITA 77/JU/2010) (ITAT JODHPUR) ITO V. TRUPIC SHAH (ITA 1442/MUM/2010) IN THE ABOVE DECISIONS THE ADDITIONS IN CASE OF THE SE INVESTORS HAVE BEEN DELETED AND IDENTITY OF THE INVESTOR COMPANIES IS UPHELD. T HE NAME OF APPELLANT COMPANY IS NOT THERE IN THE ALLEGED STATEMENT OF DIRECTORS RELIED BY THE AO FOR MAKING ADDITION. MOREOVER NO OPPORTUNITY FOR CROSS EXAMINATION OF SUCH DIRECTORS IS GIVEN TO APPELLANT INSPITE OF SPECIFIC REQUEST THEREFORE FOLLOWING THE M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 7 7 RATIO OF SUPREME COURT IN CASE OF KISHINCHAND CHELLARAM (125 ITR 713) THE ADDITIONS ARE IN VIOLATION OF NATURAL JUSTICE AND ARE ILLEGAL THEREF ORE THE PENALTY THEREON CANNOT SURVIVE. AT THE OUTSET, IT IS SUBMITTED THAT THE INVESTMENT OF SHARE APPLICATION MONEY MADE BY BOTH THE COMPANIES I.E. M/S. TALENT INFOWAY LTD AND M/S ALPHA CHEMIE TRADE AGENCIES PVT. LTD IS GENUINE. THAT ALL THREE CRITERA I.E. IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE INVESTMENT FROM BOTH THE COMPANIES HAVE BEEN PROVED BY THE APPELLANT. FOLLOWING PRIMARY DETAILS ESTABLISHING THE PRIMARY ONUS WERE SUBMITTED BY THE APPELLANT. SHARE APPLICATION FORMS SIGNED BY DIRECTORS OF INVESTOR COMPANIES. COPY OF BOARD RESOLUTION OF THE INVESTOR M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 8 8 COMPANIES. BANK STATEMENT OF INVESTOR COMPANIES. INCOME TAX PERMANENT ACCOUNT NUMBER (PAN) THEREFORE THE BASIC DETAILS WERE SUBMITTED. HOWEVER SINCE A SEARCH ACTION BY INCOME TAX DEPARTMENT ITSELF WAS CARRIED OUT AT THE PREMISES OF INVESTORS AND THEIR RECORDS WERE IMPOUNDED THEY COULD NOT PROVIDE MORE DETAILS. THERE WAS A BONAFIDE REASON FOR THE INABILITY OF INVESTORS. MOREOVER SINCE THE RECORDS OF SUCH INVESTOR COMPANIES WERE IN CUSTODY OF INCOME TAX DEPARTMENT ITSELF NOTHING PREVENTED THE LEARNED AO TO REFER SUCH RECORDS AND CONDUCT NECESSARY ENQUIRY.IT MAY BE APPRECIATED THAT THE SUMMONS I LETTERS WERE DULY SERVED TO THE INVESTOR COMPANIES AND WERE RESPONDED BY THE DIRECTOR OF SUCH COMPANY. THIS ESTABLISHES THE IDENTITY OF SUCH M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 9 9 COMPANY BEYOND DOUBT. AS REGARDS SECOND CONTENTION OF AO THAT FOR SIMILAR INVESTOR COMPANIES ADDITIONS HAVE BEEN MADE IN CASE OF ANOTHER ASSESSEE AD-MANUM PACKAGING. ADDITION U/S 68 WAS MADE IN CASE OF AD-MANUM FOR THE ASSESSMENT YEAR 2009- 10 IN RESPECT OF SAME COMPANIES ON THE BASIS OF STATEMENTS OF DIRECTORS IN THE COURSE OF SEARCH, MAKING THE ADDITION IN THAT CASE AS BASIS, ADDITION WAS MADE IN APPELLANT'S CASE ALSO. IN THIS REGARDS, AT THE OUTSET IT IS SUBMITTED THAT THE WHOLE BASIS OF ADDITION BEING ADDITION IN CASE OF AD-MANUM HAS NOW BEING COLLAPSED AND THE ADDITIONS IN THAT COMPANY HAVE BEEN DELETED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS). DEPARTMENT HAS PREFERRED AN APPEAL AGAINST THE SAID ORDER OF LEARNED CIT(A) BEFORE HON'BLE INDORE M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 10 10 BENCH OF ITAT WHERE THE CASE IS PENDING WITH APPEAL NO. IT A NO. 543/INDJ2013 FILED ON 22/07/2013. THEREFORE THE APPELLANT SUBMITS THAT BOTH THE BASIS FOR MAKING ADDITIONS HAVE BEEN REBUTTED BY THE APPELLANT AND EXPLAINED, THE QUESTION OF PENALTY ON SUCH ADDITION DOES NOT ARISE . IT IS A SETTLED LAW THAT IF THE IDENTITY OF THE INV ESTOR IS ESTABLISHED NO ADDITION CAN BE MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68. FOR THIS PROPOSITION RELIANCE IS PLACED ON FOLLOWING PRECEDENTS: CIT VS. LOVELY EXPORTS (2008) 6 DTR (SC) 308; CIT VS. STL EXTRUSION P. LTD. (2011) 333 ITR 269 (MP); FROM PAGE 13 OF ASSESSMENT ORDER IT IS SEEN THAT FO R MAKING THE ADDITIONS THE DECISIONS IN CASE OF SUMATI DAYAL (214 ITR 801)(SC) AND DURGA PRASAD MORE (72 ITR 807)(SC) HAVE BEEN APPLIED WHICH M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 11 11 HOLD THAT PROBABILITIES AND SURROUNDING CIRCUMSTANCES ARE ENOUGH FOR MAKING ADDITIONS. HOWEVER IT IS SUBMITTED THAT THE ADDITION BASED ON PREPONDERANCE OF PROBABILITIES CANNOT BE SUBJECTED TO PENALTY. (SEE SH. JAGJIT SINGH VS. THE ITO I. T.A .NO.536/CHD/2014) THE LEARNED CIT(A) CONFIRMED THE PENALTY HOLDING THAT SINCE NO APPEAL AGAINST THE QUANTUM ADDITION IS PREFERRED THE ASSESSMENT ORDER HAS BECOME FINAL AND PENALTY IS JUSTIFIED. THE APPELLANT SUBMITS THAT IT IS CATEGORICALLY HELD IN FOLLOWING DECISIONS THAT NON FILING OF QUANTUM APPEAL DOES NOT LEAD TO PRESUMPTION OF CONCEALMENT AND FURNISHING INACCURATE PARTICULARS AND NO PENALTY CAN BE LEVIED ON SUCH REASON: MANJUNATHA COTTON & GINNING FACTORY (359 ITR 565)(KAR) M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 12 12 RAI INDUSTRIAL POWER PVT. LTD. VS DCIT (ITA 4862/DE1/2013) KALPALATHA V. ACIT (66 TAXMAN 111 (HYD.)) SHADILAL SUGAR & GENERAL MILLS LTD. V. CIT [1987] 168 ITR 7051(SC) AS REGARDS THE DECISIONS CITED BY LEARNED CIT(A) TH E SAME WERE DISTINGUISHED DURING APPELLATE PROCEEDINGS . THE SAME ARE NOT APPLICABLE AS THEY ARE RENDERED IN CONTEXT OF CHARGE OF CONCEALMENT HOWEVER THE PENALTY HAS BEEN INITIATED ON CHARGE OF FURNISHING INACCURATE PARTICULARS OF INCOME ON THIS ADDITION IN PARA 3.13 ON PAGE 12 OF ASSESSMENT ORDER THE APPELLANT SUBMITS THAT THE IMPUGNED PENALTY BE DELETED. 6. THE LD. DR RELIED UPON THE ORDER OF REVENUE AUTHORITIES. MOREOVER, HE RELIED UPON THE DECISION OF HON'BLE M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 13 13 ORISSA HIGH COURT IN THE CASE OF CIT VS. PRATHI HAR DWARE STORES, (1993) 203 ITR 641. THE LD. DR ALSO RELIED UPON THE DECISION OF HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF S. S. RATANCHAND BHOLANATH VS. CIT, (1994) 210 ITR 682. H E ALSO RELIED UPON THE DECISION OF CIT VS. JAMNADAS & COMP ANY, (1994) 210 ITR 218. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IN THIS CASE ADDITION U/S 68 OF THE ACT WERE MADE F OR SHARE CAPITAL OF RS. 3.50 LACS AND SHARE PREMIUM OF RS. 3 1.50 LACS, TOTAL RS. 35 LACS FROM THE SHARES RECEIVED FROM TWO COMPANIES, NAMELY, M/S. TALENT INFOWAY LIMITED AND M/S. ALPHA CHEMIE TRADE AGENCIES PRIVATE LIMITED. SUCH ADDITIONS WERE MADE BECAUSE WHEN THE AO CONDUCTED ENQUIRIES U/S 133(6) FROM THESE TWO COMPANIES, IT WAS FOUND THAT BOTH THE COM PANIES HAD COMMON DIRECTORS SHRI JAYESH K.SAMPAT. HE ADMITTED IN HIS STATEMENT RECORDED U/S 131 OF THE INCOME-TAX ACT, 1 961, ON 14.5.2010, WHEREIN HE HAS ADMITTED THAT HE WAS MERE LY ACCOMMODATION ENTRY PROVIDER, WHO WAS APPROACHED BY MANY M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 14 14 PRIVATE LIMITED COMPANIES FOR BOGUS SHARE CAPITAL FORMATION BY GIVING THEIR UNACCOUNTED CASH. SUCH CASH WAS ROT ATED IN VARIOUS BANK ACCOUNTS AND CHEQUES WERE ISSUED TO SU CH COMPANIES IN GUISE OF SHARE CAPITAL FROM TALENT IN FOWAY LTD AND M/S. ALPHA CHEMIE TRADE. THIS IS FOLLOWED BY BUY BACK OF SUCH SHARES AT MUCH LOWER RATES BY DIRECTORS OR THEIR RELATIVES AND SHRI JAYESH K.SAMPAT IN TURN GETS COM MISSION ON SUCH ACCOMMODATION. IN VIEW OF SUCH CATEGORICAL STA TEMENT OF SHRI JAYESH K. SAMPAT, THE ASSESSEE COMPANY ACCEPTE D THE ADDITION MADE U/S 68 OF THE INCOME-TAX ACT, 1961, O F RS. 35 LAKHS AND ADDITION OF RS. 35,000/- AS COMMISSION F OR INTRODUCTION OF SUCH SHARE CAPITAL AND DID NOT CONT EST THE SAME IN APPEAL. AS A RESULT, ON THIS ADDITION A PENALTY OF RS. 12,01,550 U/S 271(1)(C) WAS LEVIED BY THE ASSESSING OFFICER AGAINST WHICH THE MATTER WENT TO CIT(A) AND THE LD. CIT(A) HAS DISMISSED THE APPEAL. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 8. WE FIND THAT SUCH ADMISSION OF THE ASSESSEE OF THE ADDITION OF RS. 35,35,000/- MADE DURING THE ASSESSM ENT M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 15 15 PROCEEDINGS BY NOT CONTESTING THE SAME IN APPEAL WAS NOT VOLUNTARY ACT, BUT IT WAS A RESULT OF INCRIMINATING STATEMENT OF ENTRY PROVIDER SHRI JAYESH K. SAMPAT TAKEN BY THE D EPARTMENT. HENCE, SUCH ADMISSION WAS NOT VOLUNTARY. THEREFORE, IT WILL ATTRACT THE PENALTY. IF THE ASSESSMENT ORDER HAS BE COME FINAL, IT IS BINDING ON BOTH THE PARTIES AND NEITHER PARTY CO ULD SEEK TO REOPEN IT IN SUCH PROCEEDINGS AS HELD IN THE CASE O F BHARAT RICE MILLS, 278 ITR 559 (ALL) AND HON'BLE JURISDICITONAL COURT IN THE CASE OF S.S.RATANCHAND BHOLANATH VS. CIT, 210 ITR 6 82 (MP), HELD AS UNDER :- WHILE ASSESSMENT PROCEEDINGS MAY CONSTITUTE GOOD EVIDENCE IN PENALTY PROCEEDINGS, THEY ARE NOT CONCLUSIVE. THE STATUTORY AUTHORITY DEALING WITH PENALTY PROCEEDINGS MUST BE SATISFIED THAT THE ASSESSEE HAD CONSCIOUSLY CONCEALED THE PARTICULARS OF HIS INCOME WHICH ATTRACTS THE PENAL PROVISIONS OF T HE ACT. IN THE PRESENT CASE, THE ASSESSEE HIMSELF TOLD THE AO THAT THERE WAS A SUPPRESSION OF INCOME TO THE EXTENT OF RS. 11,027/-. THIS WAS ALSO VERIFIED BY THE M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 16 16 ASSESSING OFFICER AND HENCE THE QUESTION OF THE AUTHORITY IN PENAL PROCEEDINGS COMING TO ANY CONCLUSION DIFFERENT FROM THE ONE ARRIVED AT IN THE REASSESSMENT PROCEEDINGS DOES NOT ARISE. THE SUPREME COURT DECISION IN ANWAR ALIS CASE IS NOT A N AUTHORITY FOR THE PROPOSITION THAT WHERE THE REASSESSMENT IS NOT CHALLENGED IN APPEAL, THE ORDER AS SUCH CAN BE COLLATERALLY CHALLENGED IN PENALTY PROCEEDINGS. IF THE ASSESSMENT ORDER OR REASSESSMEN T ORDER BECOMES FINAL, THAT IS BINDING ON BOTH THE PA RTIES AND NEITHER PARTY CAN SEEK TO, REOPEN IT IN A PENAL TY PROCEEDING. THIS CONCLUSION, OF COURSE, DOES NOT AF FECT THE SETTLED POSITION OF LAW THAT THE ASSESSMENT ORD ER OR REASSESSMENT ORDER IS NOT CONCLUSIVE IN PENALTY PROCEEDINGS. 9. IN THIS CASE, NO APPEAL WAS FILED BY THE ASSESSEE O N ADDITION OF CASH CREDIT AND ONUS WAS SHIFTED ON THE ASSESSEE IN THE PENALTY PROCEEDINGS TO SHOW CAUSE THAT SUCH AN AMOUNT M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 17 17 WAS NOT CONCEALED INCOME AND HAVING FAILED TO PROVE THE SAME, THE PENALTY IS TO BE CONFIRMED. WE ALSO GET SUPPORT FROM THE FOLLOWING DECISIONS :- (I) CIT VS. JAMNADAS & COMPANY, (1994) 210 ITR 218 (GUJ). (II) WESTERN AUTOMOBILES (INDIA) VS. CIT, (1978) 112 ITR 1048 (BOM) 10. WE, RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, DIS MISS THE APPEAL OF THE ASSESSEE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 5 TH JANUARY, 2016. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 5 TH JANUARY, 2016. CPU* M/S.MAHIMA FIBERS PVT.LTD. VS.DY. CIT, INDORE, I.T.A.NO. 568/IND/2014 A.Y. 2010-11 18 18