ARAFAT FOOD STUFF, MUMBAI V. DCIT CIR 15(3), MUMBAI

ITA 6020/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83737 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-09-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 04-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JEEVAN LAL LAVADIYA
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Rejection of books of accounts; Additional evidence; Wrong claim; Revised return
• Section: 145; 142(1); 133(6)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A BENCH. , !' , ! BEFORE S/SH. JOGINDER SINGH, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.6020/MUM/2010 , # # # # $ $ $ $ ASSESSMENT YEAR 2006-07 ARAFAT FOOD STUFF, 15/B, HASAN MANSION, 60, GUJAR STREET, MUMBAI-400003 PAN:AAGFA2777Q VS. DCIT- 15(3) 122, MATRU MANDIR, TARDEO, MUMBAI-400007. ( %& / APPELLANT) ( '(%& / RESPONDENT) #)* #)* #)* #)* + + + + ! !! ! / ASSESSEE BY : SAMEER G. DALAL , + ! / REVENUE BY : SHRI JEEVANLAL LAVADIYA # # # # , ,, , *- *- *- *- / DATE OF HEARING : 10-09-2014 .$ , *- / DATE OF PRONOUNCEMENT : 17-09-2014 # # # # , 1961 , ,, , 254(1) ! !! ! ** ** ** ** !/ !/ !/ !/ ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! !' !' !' !' ! !! ! # # # # : CHALLENGING THE ORDER DT.08.06.2010 OF THE CIT(A)-2 6,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) ERRED IN CONFIRMING LEVYING PENAL TY OF RS.17.50.320 - U/S 271( I )(C) OR THE ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NEITHER CONCEALED NOR FILED INACCURATE PARTICULARS IN THE RETURN OF INCOME. HENCE THE PENA LTY U/S 271(1 )(C) MAY BE DELETED. 2. THE LD CIT(A) FAILED TO APPRECIATE THE FACT THAT , IN REPLY TO NOTICES U/ 133(6), THE CREDITORS HAD FILED THE DULY SIGNED CONFIRMATIONS LETTERS, AND TH EREFORE, THERE WAS NO CONCEALMENT OR INCOME NOR FURNISHING OF INACCURATE PARTICULARS OR ITS INCOME. 3. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THA T THE ASSESSEE HAD AGREED THE ADDITION TO BUY PEACE AND AVOID LITIGATION HENCE PENALTY LEVIED U/S 271(1)(C) MAY BE DELETED. 4. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THA T THE ASSESSING OFFICER HAS NOT MADE ANY SPECIFIC INITIATION OF PENALTY IN THE ASSESSMENT ORDER, HENC E PENALTY LEVIED MAY BE DELETED. 5. WITHOUT PREJUDICE TO ABOVE, THE LD CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSING OFFICER HAS MADE ADHOC ADDITION EVEN AFTER REJECTING THE BO OKS OF ACCOUNT U/S 145, HENCE PENALTY, IF ANY, TO THE EXTENT OF AN ESTIMATED NET PROFIT ONLY COULD HAVE BEEN LEVIED AND NOT THE ENTIRE ADDITION MADE. 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OR ALL THE ABOVE GROUND OF APPEAL. ASSESSEE FIRM,ENGAGED IN THE BUSINESS OF MEAT EXPOR TS, FILED ITS RETURN OF INCOME ON 12.10.2006 DECLARING TOTAL INCOME AT RS. 12,84,259/-. ASSESSIN G OFFICER(AO) FINALISED THE ASSESSMENT ON 24. 11.2008 DETERMINING THE INCOME OF THE ASSESSEE AT R S. 64,84,260/-.VIDE ITS LETTER DATED 30.07. 2012 THE ASSESSEE HAD REQUESTED TO ADMIT CASH BOOK OF AY.2009-10 AS ADDITIONAL EVIDENCE.WE HAVE GONE THROUGH THE APPLICATION AND ADMIT THE SAM E AS ADDITIONAL EVIDENCE AS PER RULE 29 OF THE ITAT RULES,1963. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE AO FOUND THAT ASSESSEE HAD DERIVED INCOME FROM MEAT SUPPLY.HE DIRECTED THE ASSESSEE, VIDE HIS NOTICE ISSUED U/S 142(1) OF THE ACT-DATED 10. 08.2008,TO FILE CERTAIN DETAILS.MEANWHILE,HE ISSUED NOTICES U/S 133(6) OF THE ACT TO VARIOUS PARTIES 2 ITA NO. 6020/MUM/2010 ARAFAT FOOD STUFF TO CONFIRM THE TRANSACTION SHOWN BY THE ASSESSEE. H E ALSO ISSUED COMMISSION U/S 131(1) (D) OF THE ACT TO THE ACIT, BAREILY FOR MAKING QUERIES ABOUT T HE MEAT SUPPLIERS AGAINST WHOM LIABILITIES HAVE BEEN SHOWN BY THE ASSESSEE.FROM THE SCRUTINY O F THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE,HE FOUND THAT NO OUTSIDE CHEQUE WAS DEBITE D TO IN BANK ACCOUNT OF THE ASSESSEE.IN THEIR REPLY TO THE AO,THE MEAT SUPPLIERS SUBMITTED THAT T HEY HAD RECEIVED PAYMENT AS WAS SHOWN BY THE ASSESSEE IN HIS BOOKS OF ACCOUNTS.HE FOUND THAT ASS ESSEE HAD NOT MAINTAINED ANY DAY TO DAY STOCK REGISTER, THAT SALE RATE WAS OPEN TO VERIFICATION B UT THE PURCHASE RATE COULD NOT BE VERIFIED. HE DIRECTED THE ASSESSEE TO PRODUCE THE MEAT SUPPLIERS AGAINST WHOSE NAMES LIABILITIES AS ON 31. 03.2006 HAD BEEN SHOWN TO EXAMINE THEIR CAPACITY.ON 06.09.2008, HE FURTHER ASKED THE ASSESSEE TO FURNISH DETAILS OF PAYMENTS MADE UP TO 31.06.06, AS IT HAD SHOWN THE PURCHASE EITHER IN THE MONTH OF FEBRUARY OR PRIOR TO IT. AT THE REQUEST OF THE ASSESSEE, THE MATTER WAS ADJOURNED. EVEN ON THE NEXT DATE THE ASSESSEE DID NOT PRODUCE ANY MEAT SUPPLIERS.IT WORKED OUT THE LIABILITIES OUTSTANDING AS ON 30.06.2006 AT RS. 51.98 LAKHS.HE REQUESTED THE AO TO ADD AMOUNT OF RS. 52 LAKHS TO HIS INCOME FOR THE YEAR UNDER CONSIDERATIO N.IN THE MEANWHILE, THE ACIT, BAREILY HAD FORWARDED A REPORT TO THE AO AND CONTENTS OF THE RE PORT WERE SHOWN TO THE ASSESSEE.VIDE ITS LETTER DATED 21.11.2008 THE ASSESSEE ACCEPTED THAT PAYMENT S TO TWO OF THE SUPPLIERS WERE PAID THROUGH BEARER CHEQUE.AS PER THE AO THE ASSESSEE KEPT MUM O VER THE REPLY FILED BY ONE OF THE SUPPLIER I.E.SHAKEEL QURESHI WHO HAD STATED THAT HE HAD SUPP LIED GOODS ON COMMISSION BASIS @2%.HE FOUND THAT THE ASSESSEE HAD NOT CLAIMED COMMISSION IN THE BOOKS OF ACCOUNTS.CONSIDERING THE REPORT AND THE REPLY FILED BY THE ASSESSEE AND THE FACT THAT ASSESSEE HAD NOT MAINTAINED THE STOCK REGISTER,THE AO HELD THAT PROVISIONS OF SECTION 145 (3) OF THE ACT WERE CLEARLY APPLICABLE IN THE CASE UNDER APPEAL.HE FINALLY HELD THAT THE CAPACITY OF ALL THE PERSONS AGAINST WHOM MEAT PURCHASE LIABILITIES HAD BEEN SHOWN BY THE ASSESSEE HAD NOT BEEN PROVED. THOUGH,THE AO HAD ACCEPTED THE OFFER MADE BY THE AS SESSEE FOR ADDITION OF RS. 52 LAKHS TO ITS INCOME, BUT,HE ALSO INITIATED PENALTY U/S 271(1)(C) OF THE ACT BY WAY OF THE ISSUE OF NOTICE U/S 274ON 24.11.2008. THE ASSESSEE FILED ITS REPLY ON 0 1.05.2009.AFTER CONSIDERING THE WRITTEN SUBMISSION OF THE ASSESSEE, THE AO HELD THAT HE HAD FAILED TO PROVE THE CAPACITY OF THE SUPPLIERS DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THAT TH E SURRENDER OF LIABILITY HAD BEEN MADE BECAUSE HE COULD NOT PRODUCE ANY OF THOSE PERSONS,THAT THE RATE OF PURCHASE WERE NOT OPEN TO VERIFICATION, THAT THE SURRENDERED AMOUNT WAS BROUGHT INTO BOOKS AS CASH IN THE YEAR 2009-10. INVOKING THE PROVISIONS OF EXPLANATION 1(B) OF SECTION 271(1)(C) OF THE ACT, HE HELD THAT ASSESSEE HAD CONCEALED HIS INCOME AND HAD FURNISHED INACCURATE PARTICULARS . FINALLY, HE LEVIED A PENALTY OF RS. 17.50 LAKHS. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILE D AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).BEFORE HIM,IT WAS ARGUED THAT THE A SSESSEE HAD SURRENDERED THE INCOME OF RS.52 LAKHS VOLUNTARILY,THAT THE CREDITORS WERE FROM UP A ND ANDHRA PRADESH,THAT THEY WERE NOT WILLING TO COME TO MUMBAI,THAT CONFIRMATION LETTERS DULY SI GNED BY THEM WERE PRODUCED BEFORE THE AO,THAT TO BE RELIEVED OF TENSION THE ASSESSEE HAD VOLUNTARILY SURRENDERED THE SAID LIABILITY,THAT THE ASSESSEE PAID TAX AND INTEREST.AFTER CONSIDERIN G THE ASSESSMENT ORDER,PENALTY ORDER AND THE SUBMISSIONS MADE BY THE ASSESSEE,HE HELD THAT THE A SSESSEE HAD ACCEPTED THE INGENUINENESS OF CLAIM OF SUNDRY CREDITORS OF RS.51.98 LAKHS DURING THE ASSESSMENT PROCEEDINGS,THAT IT WAS NOT A VOLUNTARY DISCLOSURE,THAT SURRENDER WAS NOT SUO MOT U BUT WAS MADE UNDER COMPULSION OF ONGOING INVESTIGATION AND ENQUIRIES,THAT IT HAD SHOWN TRADE CREDITS IN THE NAMES OF VARIOUS PERSONS AS ITS LIABILITY IN THE BALANCE SHEET,THAT THE AO ISSUED N OTICE TO THE ASSESSEE TO SUBSTANTIATE THE CLAIM MADE BY IT,THAT THE AO HAD DIRECTED THE ASSESSEE TO PRODUCE EVIDENCE IN SUPPORT OF CLAIM OF RETURN OF INCOME,THAT INITIALLY THE ASSESSEE HAD NOT ACCEP TED THE INGENUINENESS OR INCORRECTNESS OF CLAIM OF TRADE LIABILITY OF RS.51.98 LAKHS ONLY DURING TH E COURSE OF ASSESSMENT PROCEEDINGS,THAT THE AO ISSUED NOTICE U/S.142(1)OF THE ACT SPECIFICALLY ASK ING THE ASSESSEE TO PRODUCE THE PERSONS ALONG WITH THEIR BANK STATEMENTS,THAT THE ASSESSEE DID NO T PRODUCE THE PARTIES, THAT THE ASSESSEE ACCEPTED THE INCORRECTNESS OF SUCH OUTSTANDING LIABILITY,THA T THE ASSESSEE WAS CONFRONTED WITH THE FINDINGS OF THE ACIT BAREILY,THAT IT HAD SUBMITTED THE RETUR N OF INCOME BY CONCEALING THE TAXABLE INCOME 3 ITA NO. 6020/MUM/2010 ARAFAT FOOD STUFF AND HAS FURNISHED INACCURATE PARTICULARS OF INCOME, THAT THE ASSESSEE HAD ACCEPTED THE LIABILITY,THAT NOTHING WAS LEFT FOR THE DEPARTMENT TO PROVE THAT T HE ASSESSEE HAD CONCEALMENT OF INCOME,THAT IT HAD MADE A WRONG CLAIM OF TRADE LIABILITY.RELYING U PON THE JUDGMENT OF DHARMENDRA TEXTILE PROCESSORS(306ITR277),NAYANTARA G AGARWLA(207ITR639 ),VIDYA SAGAR OSWAL(108ITR861)AND KRISHNAKUMARI CHAMANLAL(217ITR645),HE HELD THAT THE AO WAS JUSTIFIED IN LEVYING PENALTY U/S.271(1)(C)OF THE ACT. 4. BEFORE US,AUTHORISED REPRESENTATIVE(AR) ARGUED THAT THE ASSESSEE HAD SURRENDERED THE DISPUTED LIABILITY VOLUNTARILY AND TO BUY PEACE OF MIND,THAT IT HAD PRODUCED THE CONFIRMATION LETTERS FROM THE SUPPLIERS OF MEAT,THAT SUPPLIERS WERE LOCATED I N UTTRA-PRADESH AND ANDHRA PRADESH,THAT AO HAD MADE INQUIRIES AT BARELI,THAT IT HAD NOT CREDI TED THE AGREED AMOUNT IN TO THE BOOKS OF ACCOUNT(PG.83-100), THAT AO HAD STATED THAT AMOUNT WAS BROUGHT IN TO BOOKS OF ACCOUNTS,THAT THERE WAS NO CONCEALMENT OF INCOME OR FILING OF INA CCURATE PARTICULAR OF INCOME.HE RELIED UPON THE JUDGMENT OF MATHURA COMMERCIAL CO.(101DTR371)OF HONBLE ALLAHABAD HIGH COURT AND DECISION OF VISAKHAPATNAM BENCH DELIVERED IN THE CA SE OF GODAVARI TOWNSHIP (P).LTD.(148ITD 463).DEPARTMENTAL REPRESENTATIVE (DR) ARGUED THAT . HE RELIED UPON THE JUDGMENT OF MAK DATA OF HONBLE SUPREME COURT(358ITR593). 5.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL BEFORE US.WE FIND THAT THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE HAD SHOWN TRADE LIABILITIES IN THE BALANCE SHEET,THAT THE AO HAD DIRECTED THE ASSESSEE TO PROD UCE THE PARTIES IN WHOSE NAMES LIABILITIES WERE SHOWN OUTSTANDING, THAT ON SEVEN OCCASIONS THE ASSE SSEE HAD MADE SUBMISSION BEFORE THE AO BETWEEN 12.02.2008 TO 28.08. 2008,THAT ON 15.10.200 8 IT SURRENDERED RS.52 LAKHS,THAT BEFORE THAT THE AO HAD ISSUED COMMISSION TO ONE OF THE OFFICERS OF BARELI TO MAKE INQUIRIES ABOUT SOME OF THE SUPPLIERS,THAT THE AO LEVIED PENALTY AFTER INVOKING THE PROVISIONS OF EXPL.1 B TO SECTION 271(1)(C) OF THE ACT AND THE FAA HAD CONFIRMED THE PENALTY.BE FORE PROCEEDING FURTHER IT WOULD BE USEFUL TO REPRODUCE THE PROVISIONS OF THE SECTION INVOKED BY THE AO AND SAME READ AS UNDER: '271.(1) IF THE ASSESSING OFFICER OR THE COMMISSIO NER (APPEALS) OR THE COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISF IED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS O F SUCH INCOME.. 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 COMMISSIONER (APPEALS) OR THE COMMISSIONER TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACT S 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 R ESULT 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.' A READING OF THE AFORESAID SECTION ALONG WITH EXPLA NATION 1(A) AND (B) MAKES IT CLEAR THAT IF THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS, IS SATI SFIED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE P ARTICULARS OF SUCH INCOME, HE IS EMPOWERED TO LEVY PENALTY SUBJECT TO THE EXPLANATION GIVEN BY TH E ASSESSEE FOUND TO BE FALSE OR NOT BONA FIDE. IN SHORT,IF THE EXPLANATION FILED BY THE ASSESSEE IS N OT SUBSTANTIATED BY IT OR IT FAILS TO PROVE THE BON A FIDE OF THE EXPLANATION PENALTY CAN BE LEVIED BY TH E AO U/S.271(1)(C)OF THE ACT.AS THE FACTS OF EACH CASE ARE DIFFERENT,SO ONE HAS TO SEE THAT WHET HER THE ASSESSEE WAS SUCCESSFUL IN SUBSTANTIATING THE EXPLANATION FILED BY IT OR HAD PROVED THE BONA FIDE OF THE EXPLANATION.IN THE CASE UNDER CONSIDERATION THE AO HAD DIRECTED THE ASSESSEE TO P ROVE THE GENUINENESS OF THE TRADE CREDITORS AND MADE CARRIED OUT SUSTAINED INVESTIGATION ABOUT THE M.HE ALSO ISSUED COMMISSION TO MAKE OUTSTATION INQUIRIES.IT IS FOUND THAT THE IN CASE O F TWO OF THE CREDITORS THE ASSESSEE HAD MADE PAYMENT BY BEARER CHEUQES OF MUMBAI THOUGH THE SUPP LIER OF GOODS WERE NOT FROM MUMBAI.WE FIND THAT ONE OF THE SO-CALLED CONFIRMATION OF ONE SHAKEEL QURESHI (PG.52 OF THE PAPER BOOK)HAS 4 ITA NO. 6020/MUM/2010 ARAFAT FOOD STUFF BEEN SIGNED FOR HIM BY AN ADVOCATE AND HIS NAME IS NOT THERE THOUGH HIS SIGNATURE ARE APPENDED THERE.WE DO NOT KNOW WHAT IS THE SANCTITY OF SUCH A LETTER.IN OUR OPINION IT IS MERELY A PIECE OF PAPER AND IS OF NOT EVIDENTIARY VALUE.IT IS NOT WOR THY THAT NONE OF THE SUPPLIERS APPEARED BEFORE THE ACIT,BARELI. HAD THE AO NOT SELECTED THE MATTER FOR SCRUTINY AND MADE DEEPER SCRUTINY THE CLAIM MADE BY THE ASSESSEE ABOUT TRADE LIABILITIES WOULD HAVE BEEN ACCEPTED.IT IS NOT THE CASE OF THE ASSESSEE THAT IT HAD OFFERED THE UNPROVED TRADE LIABILITIES FOR THE YEAR UNDER CONSIDERATION ON IT S OWN BY FILING A REVISED RETURN OF INCOME.THE AO HAD REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE INVOKING THE PROVISIONS OF SECTION 145(3) OF THE ACT AND THE ASSESSEE HAD NOT AGITATED THE QUANTUM ADDITION MADE BY THE AO. CONSIDERING THE FA CTORS LIKE UNPROVED GENUINENESS OF TRANSACTION,CAPACITY OF TRADE CREDITORS,PAYMENT THR OUGH BEARER CHEQUES, AUTHENTICITY OF RATE OF PURCHASE OF GOODS,WE ARE OF THE OPINION THAT THE AS SESSEE FAILED TO SUBSTANTIATE THE EXPLANATION FILED BY IT AND THAT THE AO HAD RIGHTLY INVOKED THE PROVISIONS OF SECTION 271(1)(C)OF THE ACT.HERE,WE WOULD LIKE TO REPRODUCE THE A PORTION O F THE JUDGMENT OF MAK DATA(SUPRA)DELIVERED BY THE HONBLE APEX COURT WHEREIN FOLLOWING HAS BEE N HELD: EXPLANATION 1 TO SECTION 271(1)(C) OF THE INCOME-T AX ACT, 1961, RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AS SESSING OFFICER, BETWEEN THE REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLA NATION HAS BEEN DISCHARGED BY HIM, THE ONUS SHIFTS TO THE DEPARTMENT TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED INCOME AND NOT OTHERWISE. VOLUNTARY DISCLOSURE DOES NOT RELEASE THE 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 HAS TO BE ABSOLVED FROM PENALTY. THE ASSESSING O FFICER SHOULD NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE SUCH AS 'VOLUNTARY DISCLOSURE', 'BU Y PEACE', 'AVOID LITIGATION', 'AMICABLE SETTLEMENT', TO EXPLAIN AWAY ITS CONDUCT. THE QUEST ION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOM E OR FURNISHING INACCURATE PARTICULARS OF INCOME. WE FIND THAT THE ASSESSEE HAS NOT PRODUCED COGENT A ND RELIABLE EVIDENCES,AS DESIRED BY THE HONBLE APEX COURT IN THE ABOVE REFERRED PARAGRAPH, TO EXPLAIN THE DIFFERENCE ABOUT THE TRADE LIABILITY THAT WERE PART OF HIS BOOKS OF ACCOUNTS. WE WOULD LIKE TO DISCUSS THE CASES RELIED UPON BY T HE ASSESSEE.WE FIND THAT IN THE CASE OF MATHURA COMMERCIAL COMPANY(SUPRA)THE HONBLE ALLAHABAD HIGH COURT WAS DEALING WITH A MATTER WHERE A REVISED RETURN WAS FILED.THE ASSESSEE HAD FILED O RIGINAL RETURN IN OCTOBER 1991 SHOWING TWENTY OUTSTANDING ENTRIES,BUT THE ASSESSEE COULD NOT PROV E GENUINENESS OF THE FIVE PARTIES.LATER ON THE ASSESSEE FILED A REVISED RETURN AND DELETED THE FIV E ENTRIES ABOUT WHICH IT COULD FILE CONFIRMATION.IT WAS FOUND THAT THE FIVE DEALERS HAD LEFT THE TOWN A FTER RIOTS OR OTHERWISE REFUSED TO GIVE CONFIRMATIONS.NOT ONLY THIS THE FAA HAD HELD THAT T HE AO HAD NOT PROPER INQUIRIES.THE TRIBUNAL HAS CONFIRMED HIS ORDER CONSIDERING THE PECULIAR FA CTS OF THE CASE AND ESPECIALLY THE FACT THAT A REVISED RETURN WAS FILED DUE TO CERTAIN CIRCUMSTANC ES.BUT IN THE CASE BEFORE US,THE AO COMPELLED THE ASSESSEE BY HIS SCRUTINY TO SURRENDER THE TRADE LIABILITIES. IN THE MATTER OF GODAVARI TOWNSHIP (P).LTD.(SUPRA) THE VISAKHAPATNAM BENCH WAS DEALING WITH A CASE WHERE SURVEY ACTION U/S.133A OF THE ACT WAS CA RRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE. IT WAS FOUND BY THE TRIBUNAL THAT THE AO HAD NOT RECORDED SATISFACTION IN THE ASSESSMENT ORDER ABOUT CONCEALMENT OF INCOME.HE HAD ALSO NOT F OLLOWED THE PROCEDURE ENVISAGED BY THE PROVISIONS OF SECTION 274 OF THE ACT.FROM THE ASSES SMENT ORDER IT WAS CONCLUDED BY THE TRIBUNAL THAT THERE WAS NO DIFFERENCE BETWEEN THE ASSESSED A ND RETURNED INCOME.IT WAS ALSO OBSERVED BY THE TRIBUNAL THAT THE REVISED RETURN FILED BY THE ASSES SEE BEFORE SCRUTINY PROCEEDINGS GAVE RISE TO A PRESUMPTION THAT THE ASSESSEE HAD BONA FIDELY ADMIT TED HIGHER INCOME.CONSIDERING ALL THESE FACTS THE TRIBUNAL HAD DELETED THE PENALTY.IN OUR OPINION THERE IS SIMILARITY BETWEEN THE FACTS OF THE CASE DECIDED BY THE VISAKHAPATNAM BENCH AND THE CASE UN DER CONSIDERATION ARE TOTALLY DIFFERENT.HERE WE WILL LIKE TO REFER TO THE DECISION OF HONBLE KA RNATAKA HIGH COURT DELIVERED IN THE CASE OF B. DAMODAR VAMAN BALIGA JEWELLERS (353ITR206),WHEREIN IT HAS BEEN HELD THAT WHEN THE FACTS IN TWO CASES ARE DIFFERENT, APPLYING THE CITED DECISIO N TO ANOTHER CASE WOULD BE HIGHLY ERRONEOUS.IN 5 ITA NO. 6020/MUM/2010 ARAFAT FOOD STUFF OUR OPINION FACTS OF THE MATTER BEFORE US ARE TOTAL LY DIFFERENT FROM THE CASES RELIED UPON BY THE AR,HENCE THEY ARE OF NO HELP.THEREFORE,CONSIDERING THE PECULIAR FACTS OF THE CASE BEFORE US,WE HOLD THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL OR FACTUAL INFIRMITY.CONFIRMING HIS ORDER.WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAI NST THE ASSESSEE-FIRM. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS DIS MISSED. 0*1 0*1 0*1 0*1 #)* #)* #)* #)* 2 2 2 2 3 3 3 3 , ,, , 4* 4* 4* 4* , ,, , * * * * 5 55 5 . ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH ,SEPTEMBER,2014 . !/ !/ !/ !/ , ,, , .$ .$ .$ .$ ! ! ! ! 6 66 6 7# 7# 7# 7# 17 *8 *8 *8 *8 , 201 4 , ,, , 9 99 9 SD/- SD/- ( # / JOGINDER SINGH) ( !' !' !' !' / RAJENDRA) / JUDICIAL MEMBER ! ! ! ! /ACCOUNTANT MEMBER / MUMBAI, 7# /DATE: 17.09.2014. SK !/ !/ !/ !/ , ,, , '*; '*; '*; '*; , 4. THE CONCERNED CIT / = > 5. DR A BENCH, ITAT, MUMBAI / ;? '*# , , . . . 6. GUARD FILE/ 0 (;* (;* (;* (;* '* '*'* '* //TRUE COPY// !/# / BY ORDER, @ / DY./ASST. REGISTRAR , /ITAT, MUMBAI