SMT. MOHANI DEVI SAINI, Jaipur V. ITO, Jaipur

ITA 623/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99363 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained investment; Gift; Bonafide belief; Corroborative evidences
• Section: 133A; 69; 27

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 623/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. MOHINI DEVI SAINI PROP. M/S. SAINI HARDWARE STORE, CHOMU, JAIPUR CUKE VS. THE ITO WARD- 7 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABGPS 9429 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR, CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/09/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 21/10/2015 VKNS'K@ ORDER PER T.R. MEENA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 07-05-2013 FOR THE ASSES SMENT YEAR 2006-07 WHEREIN THE SOLITARY GROUND OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 1.84 LACS U/ S 271(1)(C) OF THE ACT LEVIED BY THE AO . 2.1 THE BRIEF FACTS IN THIS CASE IS THAT THE AO MAD E ADDITION ON ACCOUNT OF PURCHASED DEED FOUND DURING THE COURSE OF SURVE Y OF PLOT NO.B-177, MEASURING 831 SQ.FT FROM SHRI DURGA LAL SAINI. AFTE R CONSIDERING THE ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 2 ASSESSEE'S REPLY, THE AO MADE ADDITION OF RS. 4.00 LACS OF THE ACT WHICH WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(A ) AND BEFORE THE ITAT AND THE SAME HAS BEEN CONFIRMED BY THEM. THE A NOTHER ADDITION WAS ALSO MADE BY THE AO ON ACCOUNT OF CASH DEPOSIT ED IN THE BANK ACCOUNT AMOUNTING TO RS. 2.40 LACS. AFTER CONSIDER ING THE ASSESSEE REPLY, IN QUANTUM THE LD. CIT(A) AS WELL AS ITAT HAS CONFI RMED THE ADDITION. THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT W AS SEPARATELY INITIATED FOR CONCEALMENT OF PARTICULARS OF INCOME AND FURNIS HING INACCURATE PARTICULARS OF INCOME FOR BOTH THE ADDITIONS. BEFO RE IMPOSING PENALTY PROCEEDINGS, THE AO AGAIN GAVE REASONABLE OPPORTUNI TY BEING HEARD TO THE ASSESSEE WHICH WAS AVAILED OF BY THE ASSESSEE VIDE LETTER DATED 28-03- 2011. THE AO HELD THAT FACTS OF THE CASE ARE THAT S URVEY U/S 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE A SSESSEE ON 28-02- 2006. DURING THE COURSE OF SURVEY, A PURCHASE DEED DATED 26-12-2005 WAS FOUND AND IMPOUNDED. ACCORDING TO THE DEED, THE ASS ESSEE PURCHASED A PLOT FROM ONE SHRI DURGA LAL SAINI FOR A TOTAL SALE CONSIDERATION OF RS. 4.00 LACS. ALTHOUGH, THE ASSESSEE AS WELL AS COUNSE L OF THE ASSESSEE ADMITTED THE AMOUNT AS UNDISCLOSED DURING THE COURS E OF SURVEY BUT WHILE FILING OF RETURN OF INCOME FOR THE RELEVANT PERIOD, NO INCOME WAS SHOWN. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE COULD NOT EXPLAIN THE SAME, THEREFORE, THE ENTIRE AMOUNT WAS TREATED AS UNDISCLOSED ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 3 INCOME AND WAS ADDED TO THE TAXABLE INCOME. ON THIS ISSUE, THE LD. CIT(A) VIDE APPEAL ORDER NO. 227/JAIPUR/08-09 DATED 25-11-2009 HAD REJECTED THE APPEAL FILED BY THE ASSESSEE AND HAD C ONFIRMED THE FACTS AND FINDING OF THE AO AND ALSO CONFIRMED THE ADDITION. THIS BENCH OF ITAT JAIPUR VIDE ITS ORDER NO. ITA NO. 104/JP/2009 DATED 16-07-2010 HAD ALSO CONFIRMED THE ADDITION UPHOLDING THE FACTS AND FIND INGS OF THE AO. THE ASSESSEE SUBMITTED BEFORE THE THAT THE PLOT WAS GIF TED BY THE FATHER OF THE ASSESSEE TO THE ASSESSEE BUT ON ACCOUNT OF FAMILY COMPULSIONS ON PAPER THE SAME WAS SHOWN AS SOLD FOR RS. 4.00 LACS. IT IS FURTHER SUBMITTED THAT DEPARTMENT AS WELL AS THE APPELLATE AUTHORITIES HAD NOT ACCEPTED THE FACTS BUT THE ISSUE WAS CONTENTIOUS RIGHT FROM THE BEGINN ING AND THE ASSESSEE NEVER CONCEALED ANY FACT IN THIS REGARD. THEREFORE, NO PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIABLE. THE AO FURTHER O BSERVED THAT DURING THE COURSE OF SURVEY, ON MAKING NECESSARY VERIFICAT ION OF DEPOSITS MADE IN BANK ACCOUNT WITH REGULAR BOOKS OF ACCOUNT, IT W AS FOUND THAT CASH OF RS. 1.90 LACS WAS DEPOSITED IN THE BANK ACCOUNT ON 27-02-2005 BUT THE SAME WAS NOT FOUND TO BE RECORDED IN IMPOUNDED REGU LAR BOOKS OF ACCOUNT. FURTHER, OUT OF CASH DEPOSIT OF RS. 4.50 L ACS MADE IN THE BANK ACCOUNT ON 6-10-2005, ONLY ENTRY OF RS. 4.00 LACS W AS AVAILABLE IN REGULAR BOOKS AND THUS RS. 50,000/- REMAINED UNEXPLAINED. T HEREFORE, THE TOTAL CASH DEPOSIT IN BANK ACCOUNT AMOUNTING TO RS. 2.40 LACS WAS FOUND ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 4 UNEXPLAINED DEPOSITS. THIS FACT WAS ALSO ADMITTED B Y THE ASSESSEE DURING THE COURSE OF SURVEY BUT NO SUCH DISCLOSURE WAS MAD E IN THE RETURN OF INCOME FILED FOR THE RELEVANT PERIOD. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD NOT GIVEN ANY EXPLANA TION ON THIS ISSUE. THEREFORE, THE ENTIRE AMOUNT WAS ADDED TO THE TAXAB LE INCOME TREATING IT AS UNEXPLAINED BANK DEPOSITS U/S 69 OF THE ACT. BOT H THE APPELLATE AUTHORITIES I.E. LD. CIT(A) AND ITAT HAVE ALSO CONF IRMED THE FACTS OF THE AO ON THIS ISSUE AND CONFIRMED THE ADDITION. THE AS SESSEE SUBMITTED BEFORE THE AO THAT THE ADDITION ON THIS ISSUE HAD B EEN MADE AFTER REJECTING THE EXPLANATION OF THE ASSESSEE. IT WAS F URTHER ARGUED THAT UNEXPLAINED BANK DEPOSITS WERE COVERED BY TRADING A DDITION/ SURRENDER OF INCOME MADE BY THE ASSESSEE BUT THE SAME WAS NOT AC CEPTED. THEREFORE, PENALTY U/S 271(1)(C) OF THE ACT CANNOT BE LEVIED. THE AO HELD THAT THE ASSESSEE HAD NOT DISCLOSED ANY INCOME WHILE FILING THE RETURN OF INCOME FOR THE RELEVANT PERIOD WHICH WAS SELF EVIDENT FROM THE INCOME DECLARED IN RETURN. THEREFORE, THE PLEA TAKEN BY THE ASSESSE E THAT THE SAME HAD BEEN COVERED BY TRADING ADDITION/ SURRENDER OF INCOME MA DE BY THE ASSESSEE, IS NOT CORRECT. THUS THE PROVISIONS OF SECTION 271(1)( C) OF THE ACT IS CLEARLY APPLICABLE IN THIS CASE. HE FURTHER RELIED ON THE C ASE HON'BLE APEX COURT IN THE CASE OF G.C. AGARWAL VS. CIT, 186 ITR 571 WH EREIN IT WAS HELD THAT DIFFERENCE BETWEEN TAX ASSESSED IN FIRST RETUR NS AND THE TAX ON THE ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 5 INCOMES ASSESSED, SHOULD BE TAKEN AS THE TAX WHICH WOULD HAVE BEEN EVADED. HE FURTHER RELIED ON THE CASE OF HON'BLE K ERALA HIGH COURT IN THE CASE OF CIT VS. KERALA TRANSPORT CO. (2004), 134 T AXMAN 320 WHEREIN IT WAS HELD THAT PENALTY MAY BE IMPOSED IN CASE OF A SURRENDER, EVEN WHEN THE ASSESSEE WAS TO MAKE A SURRENDER, IT MUST BE AD DUCED SUFFICIENT EXPLANATION FOR PREVIOUS OMISSION SO AS TO PROTECT ITSELF AGAINST ACTION U/S 271(1) OF THE ACT. AFTER CONSIDERING THE ASSESSEE' S REPLY, THE AO IMPOSED MINIMUM PENALTY OF RS. 1.84 LACS WHICH IS 100% OF TAX SOUGHT TO BE EVADED U/S 271(1) OF THE ACT. 2.2 BEING AGGRIEVED BY THE ORDER OF THE AO, THE ASS ESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE PENALTY U/S 271(1)(C) OF THE ACT BY OBSERVING AT PARA 02.2 OF HIS ORDER A S UNDER:- 02.2 I HAVE DULY CONSIDERED THE SUBMISSIONS OF T HE LD. AR AND THE MATERIAL AVAILABLE ON RECORD. IT IS AN U NDISPUTED FACT TAT EVIDENCE IN THE FORM OF SALE DEED WAS FOUN D DURING SURVEY THAT THE APPELLANT PAID SALE CONSIDERATION O F RS. 4,00,000/- FOR THE PURPOSE OF PLOT WHICH WAS FOUND RECORDED IN THE ACCOUNT BOOKS AND NO SOURCE OF THIS INVESTME NT COULD BE EXPLAINED BY THE APPELLANT. HENCE, THE SAME WAS ADMITTED AS HER UNEXPLAINED INVESTMENT DURING THE SURVEY PRO CEEDINGS AND WAS OFFERED FOR TAX. HOWEVER, IN THE RETURN OF INCOME FILED THEREAFTER, THE APPELLANT DID NOT OFFER THIS UNDISCLOSED INCOME FOR TAX. THE AFFIDAVIT OF SELLER/ FATHER OF THE APPELLANT WAS CONTRADICTORY TO THE REGISTERED SALE DEED AND W AS WITHOUT AN SUPPORTING EVIDENCE. HENCE, THE SAME WAS REJECTED BY THE AO. THE APPELLANT CONTENTION THAT T HE PLOT WAS GIFTED TO THE APPELLANT WAS REJECTED BOTH BY TH E LD. CIT(A) AND HON'BLE ITAT, JAIPUR IN THEIR APPELLATE ORDERS. ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 6 THE APPELLANTS ALTERNATIVE CONTENTION THAT SAID AD DITION SHOULD BE SET OFF AGAINST THE TRADING ADDITION WAS ALSO NOT ACCEPTED BY THE APPELLATE AUTHORITY. THE OBSERVATIO N ARE FINDINGS OF THE HON'BLE IN PARA 14 OF ITS ORDER IS REPRODUCED BELOW:- 14. AFTER CONSIDERING THE RIVAL CONTENTIONS AND ON PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE NOTED THAT DURING THE COURSE OF SURVEY PURCHASE DEE D DATED 26-12-2005 WAS FOUND WHICH CLEARLY STATES THA T PLOT WAS SOLD TO THE ASSESSEE BY HER FATHER WITH A CONSIDERATION OF RS. 4.00 LACS. THIS PURCHASE DEED CANNOT BE IGNORED BY FURNISHING AN AFFIDAVIT FROM T HE FATHER OF THE ASSESSEE. THEREFORE, THE ADDITION MA DE OF RS. 4.00 LACS IS CONFIRMED. THUS GROUND NO. 2 OF TH E ASSESSEE IS DISMISSED. IT IS EVIDENT THAT HON'BLE TRIBUNAL CONSIDERED THE EVIDENCE FILED BY THE APPELLANT IN THE FORM OF AFFI DAVIT OF THE FATHER OF THE APPELLANT BUT REJECTED IT AFTER CONSI DERING THE EVIDENCE OF UNEXPLAINED INVESTMENT FOUND IN THE FOR M OF THE REGISTERED SALE DEED. THE CONDUCT OF THE APPELLANT SHOWS THAT IT HAD DELIBERATELY AND WILLFULLY FILED INACCURATE PARTICULARS OF HER INCOME. SIMILARLY, THE APPELLANT COULD NOT EXPLAIN THE CASH DEPOSITS OF RS. 2.40,000/- IN HER BANK ACCOUNT IT W AS ONLY CLAIMED DURING THE ASSESSMENT PROCEEDINGS THAT THIS ADDITION SHOULD BE SET OFF AGAINST THE INCOME SURRENDERED DU RING SURVEY. THE CLAIM OF SET OFF WAS NOT ALLOWED BY AO SINCE NOT INCLUDED IN THE WORKING OF UNDISCLOSED INCOME. NO EXPLANATION WAS FILED DURING THE APPEAL PROCEEDINGS BEFORE CIT (A) TO EXPLAIN THE SAID CASH DEPOSITS IN THE BA NK. HENCE, THE ADDITION WAS SUSTAINED BY THE LD. CIT(A). THE GROUND RAISED BEFORE THE HON'BLE ITAT WAS NOT PRESSED AND THE SAME WAS DISMISSED AS SUCH, AS MENTIONED IN PARA 16 OF THE TRIBUNALS ORDER. THE CONTENTION RAISED NOW THAT RE LEVANT ENTRIES WERE NOT MADE IN THE REGULAR BOOKS OF ACCOU NT DUE TO MISTAKE OF THE ACCOUNTANT, IS NOT SUBSTANTIATED BY THE APPELLANT AND THEREFORE, CANNOT BE ACCEPTED AS A BO NA FIDE EXPLANATION IN TERMS OF EXPLANATION 1 TO SECTION 27 1(1)9C) OF THE ACT. ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 7 CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I DO NOT FIND ANY MERIT IN THE ARGUMENTS OF T HE APPELLANT AND THEREFORE, UPHOLD THE PENALTY LEVIED U/S 271(1)C) OF THE ACT. THE CASE LAWS RELIED BY THE LD . AR ARE NOT APPLICABLE ON THE FACTS OF THIS CASE SINCE THE ADDITIONS WERE NEITHER MADE ON ESTIMATED BASIS NOR WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT. THE ADDITIONS ARE MADE ON THE BASIS OF CONCRETE EVIDENC ES FOUND DURING THE SURVEY PROCEEDINGS AND ON THE ENQUIRIES MADE DURING THE ASSESSMENT PROCEEDINGS. ON SUCH CONCEALM ENT OF INCOME, PENALTY U/S 271(1)(C ) IS LEVIBALE. 2.3 NOW THE ASSESSEE IS BEFORE US WHEREIN THE LD. A R SUBMITTED THAT THE ADDITION MADE BY THE AO IS WITHOUT CONSIDERING THE EXPLANATION OF THE ASSESSEE. THE ASSESSEE FILED THE AFFIDAVIT BEFORE T HE AO IN QUANTUM PROCEEDINGS THAT ASSESSEE'S FATHER HAD GIFTED THIS PLOT TO THE ASSESSEE. THE AFFIDAVIT REMAINED UNCONTROVERTED. THE AO EVEN DID NOT CONSIDER IT WORTHWHILE TO EXAMINE SHRI DURGA LAL SAINI BEFORE M AKING THE ADDITION. THE PENALTY CANNOT BE IMPOSED ON THE BASIS OF CONFI RMATION OF QUANTUM ADDITION. THE AO HAS TO CONSIDERED THE CONCERNED AF FIDAVIT BEFORE IMPOSING PENALTY U/S 271(1) OF THE ACT IN FACE OF THE AFFIDAVIT, IT REMAINED TO BE PROVIDED BY THE REVENUE THAT IT WAS FALSE. SINCE THE DEPONENT WAS NOT EXAMINED, THE AVERMENT IN THE AFFI DAVIT REMAINED UNCONTROVERTED. IN VIEW OF THESE FACTS, IT IS NOT A FIT CASE OF LEVY OF PENALTY. HE FURTHER ARGUED THAT PENALTY U/S 271(1) OF THE ACT FOR QUANTUM ADDITION OF RS. 2.40 LACS IS ALSO NOT JUSTI FIED. THE LD. AR ARGUED ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 8 THAT IN QUANTUM ORDER, IT IS CLEARLY MENTIONED THAT THE ASSESSEE WAS HAVING SUFFICIENT CASH BALANCE ON THE DATE OF THE DEPOSIT, SO THE ACCOUNTANT COMMITTED MISTAKE IN NOT ACCOUNTING THE DEPOSITS IN BANK IN THE REGULAR CASH BOOK MAINTAINED DURING THE COURSE OF BUSINESS. THUS IT IS FOR THE MISTAKE FOR THE ACCOUNTANT THAT THE ASSESSEE HAS TO SUFFER OTHERWISE IN TOTALITY THE ASSESSEE SURRENDERED MORE INCOME THAN MISTAKE COMMITTED BY HER. SINCE THE ASSESSEE IS ILLITERATE LADY AND SHE DID NOT KNOW MORE ABOUT THE ACCOUNTS AND THERE IS NO INTENTION OF CONCEALME NT AS THE AMOUNT WAS DEPOSITED IN BANK WHICH WAS DULY ACCOUNTED FOR IN R EGULAR BOOKS OF ACCOUNT. THE ASSESSEE SHOULD HAVE BEEN GIVEN THE BE NEFIT OF BONAFIDE BELIEF OF CERTAIN CLAIM BEING MADE. EVERY CLAIM DEN IED BY THE AO OR EVERY TAX IMPOSED BY THE AO AND THE CLAIM NOT ACCE PTED BY THE AO CANNOT BE THE SOLE BASIS OF LEVY OF PENALTY. THIS W AS THE CRUX OF MATTER OF SUPREME COURT JUDGEMNET IN RELIANCE PETRO PRODUCTS (P) LTD. 322 ITR 165. THE LD. AR RELIED ON THE FOLLOWING CASE LAWS. (I) DR. HAKIM VS. ACIT (2009) 314 ITR 290 (CHENNAI). (II) JAI SHREE SOMANI VS. ACIT 47 TW 219 (ITAT JAIP UR BENCH DATED 12-04-2012) (III) A RAJENDRA VS. ACIT (2010) 127 ITD 361 (CHENNAI) (IV) DINESH B THAKKAR VS. ACIT (2012) 49 SOT 147 ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 9 (V) VINOD KUMAR JAIPURIA VS. ITO (ITAT JAIPUR BENCH ITA NO. 750/JP/2005- SMC) (VI) HARI NARAYAN SONI VS. DCIT (ITAT, JAIPUR BENCH ITA NO. 185/JP/2000) (VII) ANIL KUMAR GANGWAL VS. DCIT (ITA NO. 380/JP/2004) AND SUNIL KUMAR GANGWAL VS. DCIT (ITA NO. 381/JP/2004) IN THE END, THE LD. AR OF THE ASSESSEE PRAYED FOR D ELETION OF PENALTY IMPOSED U/S 271(1) OF THE ACT. 2.4 AT THE OUTSET, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND ARGUED THAT HON'BLE ITAT HAS CONFIRMED THE QUANTUM ADDITION AND REGISTRY DOCUMENTS WERE FOUND DURING THE COURSE OF SURVEY WHICH CANNOT BE IGNORED BY FILING OF AFFIDAV IT BY THE FATHER OF THE ASSESSEE. IT IS A MAKE BELIEVE THEORY OF THE ASSESS EE. THE ASSESSEE IS GIFTED THE PROPERTY BY THE FATHER NOT THROUGH REGISTERED D EED AND BY REGISTERED IMMOVABLE PROPERTY IN THE NAME OF THE ASSESSEE. THE REFORE, THE ASSESSEE HAS CONCEALED THE INCOME AND FURNISHED THE INACCURA TE PARTICULARS OF INCOME. SIMILARLY, THE ASSESSEE HAD DEPOSITED THE C ASH IN THE BANK AND THERE IS NO SOURCE OF IT WHICH HAS ALSO BEEN CONFIR MED BY ITAT. THEREFORE, THE SAME MAY BE CONFIRMED. THE LD. DR DU RING THE COURSE OF HEARING RELIED ON FOLLOWING CASE LAWS IN THIS CONNE CTION. 1. CIT, JODHPUR VS. SMT.SATNAM MALIK, 120 ITR 309 (RAJ.) ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 10 2. CIT VS. CHANDI PRASAD KHETAN, 120 ITR 314(RAJ.) 3. CIT VS. MAK DATA (P) LTD. 358 ITR 593 (SC) 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS AN UNDISPUTED FACT THAT THE EVIDENCE IN THE FORM OF SALE DEED WAS FOUND DURING THE COURSE OF SURVEY SHOWING THE ASSESSEE PAID SALE CONSIDERATION OF RS. 4.00 LACS FOR PURCHA SE OF PLOT WHICH WAS NOT FOUND RECORDED IN THE BOOKS OF ACCOUNT AND SOUR CE OF INVESTMENT HAS NOT BEEN EXPLAINED BY THE ASSESSEE WHICH WAS ADMITT ED BY THE ASSESSEE DURING THE COURSE OF SURVEY BUT THE SAME HAS NOT BE EN DISCLOSED IN THE RETURN. THE CONCEALMENT ON ACCOUNT OF INVESTMENT H AS BEEN ESTABLISHED BY THE AO. THE ASSESSEE ALSO PARTLY ADMITTED THAT COORDINATE BENCH HAS NOT ACCEPTED THE THEORY OF SET OFF OF THIS ADDITION AGAINST TRADING ADDITION IN QUANTUM PROCEEDINGS. SIMILARLY, THE CASH DEPOSIT IN THE BANK ACCOUNT IS ALSO PROVED BY THE AO AS CONCEALMENT OF INCOME OF T HE ASSESSEE. THE EXPLANATION FILED BY THE ASSESSEE IS NOT BONAFIDE AND THIS CASE IS COVERED U/S 271(1) OF THE ACT. THE CASES RELIED ON BY THE LD. DR ARE SQUARELY APPLICABLE ON THIS CASE. IN THE CASE OF CIT VS. MA C DATA (P) LTD. 358 ITR 593 (SC) WHEREIN IT HAS BEEN HELD AS UNDER:- THE ASSESSING OFFICER HAS TO SATISFY WHETHER THE PENALTY PROCEEDINGS BE INITIATED OR NOT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICE R IS NOT ITA NO.623//JP/2013 SMT. MOHINI DEVI SAINI VS. ITO, WARD- 7(3), JAIPUR 11 REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING. THE SCOPE OF SECTION 271(1) (C) HAS ALSO BEEN ELABORATELY DISCUSSED BY THIS COURT IN UN ION OF INDIA V. DHARAMENDRA TEXTILE PROCESSORS [2008] 13 S CC 369* AND CIT V. ATUL MOHAN BINDAL [2009] 9 SCC 589* *. THUS IN VIEW OF THE ABOVE JUDGEMENT OF HON'BLE SUP REME COURT (SUPRA), WE CONFIRM THE ORDER OF THE LD. CIT(A). THEREFORE, THE APPEAL OF THE ASSESSEE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 /10/2 015. SD/- SD/- (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 /10/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT SMT. MOHINI DEVI SAINI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7 (3), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 3. VK;DJ VK;QDR@ CIT 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.623/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR