Shri Sudarshan P.Amin, Anand V. The ACIT.,Anand Circle, Anand

ITA 643/AHD/2013

• Counselvise Citation: 64320514 RSA 2013
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-03-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 07-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: S N SOPARKAR
• Keywords: Unexplained investment; Question of law; Retraction
• Section: 153A; 145; 132

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 643/AHD/2013 / ASSESSMENT YEAR: 2000-01 SUDARSHAN P. AMIN, NEESHTHA, VINUKAKA MARG, VALLABH VIDYANAGAR, ANAND PAN : ACGPA 9629 P ACIT ANAND CIRCLE, ANAND / // / (APPELLANT) !' !' !' !' / // / (RESPONDENT) ASSESSEE(S) BY : SHRI S.N. SOPARKAR, AR REVENUE BY : SHRI DINESH SINGH, SR. DR. #$ % &'(/ // / DATE OF HEARING : 25/03/2015 )* % &'( / // / DATE OF PRONOUNCEMENT: 10/04/2015 +, +, +, +,/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS DIRE CTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS )-IV, BARODA DATED 31.01.2013 PERTAINING TO THE ASSESSMENT YEAR 2000-0 1. 2. IN THIS APPEAL BY THE ASSESSEE, THE ONLY GROUND RAISED READS AS UNDER::- LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED BY AO OF RS.16,50,000/- TREATING ASSESSEE IN DEFAULT FOR CON CEALMENT OF INCOME U/S 271(1)(C) OF THE ACT. LD. CIT(A) ERRED IN NOT APPRE CIATING THE FACT THAT ADDITION MADE RELYING ON THE STATEMENT U/S 132(4) O F THE ACT IN ABSENCE OF ANY INCRIMINATING MATERIAL OF UNACCOUNTED INVESTMEN T, LEVY OF PENALTY IS NOT JUSTIFIED. LD. CIT(A) OUGHT TO HAVE DELETED PENALTY IMPOSED WITHOUT ANY JUSTIFICATION OR MERITS DISBELIEVING EXPLANATION OF THE APPELLANT. 3. THE FACTS OF THE CASE ARE THAT A SEARCH ACTION U /S 132 OF THE INCOME-TAX ACT WAS CARRIED OUT IN SWISS GLASS COAT GROUP CASES AND IN THE CASE OF ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 2 ASSESSEE ON 19.01.2006. THE ASSESSEE IS THE OWNER AND RESIDENT OF NISTHA BUNGALOW WHICH IS STATED TO HAVE BEEN CONSTRUCTED I N JULY 1999. DURING THE COURSE OF SEARCH, THE STATEMENT OF THE ASSESSEE WAS RECORDED IN WHICH HE STATED IN REPLY TO QUESTION NO.29 AS UNDER:- Q.29 : DO YOU WANT TO SAY ANYTHING MORE? A. 29:- AFTER TAKING INTO CONSIDERATION THE DOCUMENTS FOUND AND CONFRONTED TO ME AND I THE TOTALITY OF THE SITUATIO N ESPECIALLY WITH REGARD TO MY RESIDENCE, I WOULD LIKE TO STATE THAT ABOUT RS.5 0 LACS OF MY UNDISCLOSED INCOME WHICH HAS GONE INTO RENOVATION, ADDITIONAL F URNITURE AND FIXTURE AT MY RESIDENCE AND OTHER THINGS IS HEREBY OFFERED FOR TAXATION FOR WHICH I AM PREPARED TO PAY DUE TAXES THEREON IN THE DUE COURSE OF TIME. THIS OBSERVATION HAS ALSO BEEN REINFORCED BY THE OPINION GIVEN BY MY CA SHRI KIRAN M. PATEL. THEREFORE I OFFER THE ABOVE STATED INCOME OF RS.50 LACS FOR TAXATION. THE ABOVE STATEMENT IS GIVEN WITHOUT ANY COERCION. THE STATEMENT IS TRUE TO THE BEST OF KNOWLEDGE AND IT IS LEGALLY BOUND TO ME . THE SAME ADMISSION WAS REITERATED TWO MONTHS LATER BY THE ASSESSEE IN THE COURSE OF POST SEARCH PROCEEDINGS BEFORE THE DDIT(INV.) VIDE HIS STATEMENT DATED 28.03.2006. THAT THE ASSESSEES CH ARTERED ACCOUNTANT WAS PRESENT DURING THE COURSE OF FIRST STATEMENT AS WEL L AS SECOND STATEMENT. FOR SEVERAL MONTHS, THESE STATEMENTS WERE NOT RETRACTED . HOWEVER, IN RESPONSE TO NOTICE U/S 153A, NO ADDITIONAL INCOME WAS DISCLO SED BY THE ASSESSEE AND HE FURNISHED THE RETURN DISCLOSING THE SAME INCOME WHICH WAS FILED ORIGINALLY I.E. RS.5,36,367/-. SUBSEQUENTLY, VIDE LETTER DATED 26.09.2006, COPY OF WHICH IS PLACED AT PAGE NOS.14-17 OF THE ASSESSE ES PAPER-BOOK, THE ASSESSEE MODIFIED HIS DISCLOSURE AND OFFERED A SUM OF RS.5 LACS AS UNDISCLOSED INCOME AS AGAINST RS.50 LACS OFFERED IN THE ORIGINAL STATEMENT. HOWEVER, THE RETURN FURNISHED IN RESPONSE TO NOTICE U/S 153A WAS NOT REVISED AND IN FACT FOR THE YEAR UNDER CONSIDERATIO N NO ADDITIONAL INCOME WAS OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME . DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER, AFTER CONSIDERING THE ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 3 ASSESSEES SUBMISSIONS AS WELL AS THE STATEMENTS, M ADE THE ADDITION OF RS.50 LACS FOR UNDISCLOSED INVESTMENT IN BUNGALOW. THE OR DER OF THE ASSESSING OFFICER WAS SUSTAINED BY THE CIT(A) AND ALSO BY ITA T. THE ASSESSEE ALSO FILED APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT WHICH BY ITS ORDER DATED 08.01.2013, REPORTED IN 35 TAXMANN.COM 370, D ISMISSED THE ASSESSEES APPEAL. THE ASSESSING OFFICER LEVIED PENALTY U/S 2 71(1)(C) ON THE UNDISCLOSED INCOME OF RS.50 LACS. THE PENALTY WAS LEVIED AT MINIMUM I.E. 100% OF THE TAX SOUGHT TO BE EVADED AMOUNTING TO RS .16,50,000/-. THE SAME IS SUSTAINED BY CIT(A), HENCE THIS APPEAL BY THE AS SESSEE. 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE ARGUED AT LENGTH. HIS FIRST SUBMISSION WAS THAT THE PENALTY PROCEEDINGS ARE INDEPENDENT OF ASSESSMENT PROCEEDINGS. IN THE CASE UNDER APPEAL, THE ASSESSING OFFICER LEVIED PENALTY SIMPLY ON THE BASI S OF FINDING IN THE ASSESSMENT ORDER, WITHOUT ANY INDEPENDENT FINDING O F CONCEALMENT IN THE PENALTY ORDER. IN SUPPORT OF THIS CONTENTION, HE RE LIED UPON THE FOLLOWING DECISIONS:- I) CIT VS. RADHE ASSOCIATES, [2013] 37 TAXAMNN.COM 336 (GUJ.) II) CIT VS. GEM GRANITES (KARNATAKA), [2014] 42 TAXMANN .COM 493 (MAD.) HE FURTHER SUBMITTED THAT DURING THE ASSESSMENT PRO CEEDINGS, THE ASSESSEE HAS FURNISHED VARIOUS REPLIES EXPLAINING T HAT THERE IS NO UNEXPLAINED INVESTMENT IN THE CONSTRUCTION OR RENOV ATION OR FURNITURE/FIXTURES OF THE BUNGALOW. DURING THE ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT CONSIDERED THE EVIDENCES/ EXPLANATION FURNISHED BY THE ASSESSEE WHEREIN EACH AND EVERY INVESTMENT I N THE CONSTRUCTION OF BUNGALOW AND PURCHASE OF FURNITURE/FIXTURES WAS EXP LAINED. THAT BEFORE THE CIT(A) IN QUANTUM PROCEEDINGS, THE VOUCHERS IN RESPECT OF BUILDING MATERIALS AND FURNITURE WERE ALSO PRODUCED. THAT NE ITHER THE ASSESSING ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 4 OFFICER NOR THE CIT(A) IN THE QUANTUM PROCEEDINGS E XAMINED THE ASSESSEES EVIDENCES/EXPLANATION WITH REGARD TO THE INVESTMENT IN BUNGALOW. HE SUBMITTED THAT EACH AND EVERY PAYMENT HAS BEEN MADE BY CHEQUE WHICH HAS BEEN WITHDRAWN FROM THE PARTNERSHIP FIRM NAMELY M/S. CHEMFILT, IN WHICH THE ASSESSEE IS A PARTNER. HE, THEREFORE, SUB MITTED THAT WHEN THE ASSESSEE HAS FURNISHED DETAILED EXPLANATION THAT TH ERE IS NO UNEXPLAINED INVESTMENT IN BUNGALOW, THE ASSESSEE HAS DISCHARGED THE ONUS WHICH LAY UPON HIM AS PER SECTION 271(1)(C). THEREAFTER, THE ONUS HAS SHIFTED UPON THE REVENUE AND IT WAS FOR THE REVENUE TO ESTABLISH WIT H POSITIVE EVIDENCE THAT THERE WAS ANY UNEXPLAINED INVESTMENT IN BUNGALOW. HE, THEREFORE, SUBMITTED THAT THE PENALTY LEVIED U/S 271(1)(C) MA Y BE CANCELLED. IN ALTERNATIVE, HE SUGGESTED THAT THE MATTER MAY BE SE NT BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINATION OF THE EVIDENCES FURNISHED BY THE ASSESSEE BECAUSE THE EVIDENCES FURNISHED BY THE ASSESSEE HAV E NOT BEEN EXAMINED EITHER AT THE ASSESSMENT LEVEL OR AT THE PENALTY LE VEL. 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. HE STRONGLY OB JECTED TO THE SET ASIDE OF THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R AND STATED THAT ALL THE EXPLANATION AS WELL AS EVIDENCES FURNISHED BY THE A SSESSEE WERE DULY EXAMINED AT ASSESSMENT STAGE AS WELL AS PENALTY STA GE. HE REFERRED TO THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURS E OF SEARCH AND POINTED OUT THAT THE ASSESSEE HAS CLEARLY ADMITTED THAT THE UNDISCLOSED INCOME OF RS.50 LACS HAVE BEEN INVESTED IN THE CONSTRUCTION, RENOVATION, FURNITURE AND FIXTURES OF THE BUNGALOW. THE STATEMENT WAS RECORDE D IN THE PRESENCE OF HIS CHARTERED ACCOUNTANT; THEREFORE, IT CANNOT BE CLAIM ED BY THE ASSESSEE THAT THE STATEMENT RECORDED WAS UNDER COERCION OR DURESS FROM THE SEARCH PARTY. IT WAS REITERATED BY THE ASSESSEE TWO MONTHS AFTER THE COMPLETION OF SEARCH. ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 5 THE SECOND STATEMENT WAS ALSO RECORDED IN THE PRESE NCE OF ASSESSEES CHARTERED ACCOUNTANT. IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A, NO ADDITIONAL INCOME WAS DISCLOSED BY THE ASSESSEE. THUS, IT IS A CLEAR CASE WHERE THE ASSESSEE HAD UNDISCLOSED INCOM E WHICH HE FAILED TO DISCLOSE IN THE RETURN OF INCOME. HE REFERRED TO TH E ASSESSMENT ORDER AND POINTED OUT THAT ALL THE REPLIES FURNISHED BY THE A SSESSEE HAVE BEEN DULY CONSIDERED. HE ALSO REFERRED TO THE PENALTY ORDER AND POINTED OUT THAT THE REPLY FURNISHED BY THE ASSESSEE DURING THE PENALTY PROCEEDINGS WAS ALSO CONSIDERED. THEREFORE, THE ALLEGATION OF THE ASSESS EE THAT THE EXPLANATIONS FURNISHED BY THE ASSESSEE WERE NOT CONSIDERED IS FA CTUALLY INCORRECT. HE FURTHER SUBMITTED THAT THE FINDING OF FACT WITH REG ARD TO CONCEALMENT OF INCOME RECORDED IN THE ASSESSMENT ORDER HAS BEEN UP HOLD BY THE CIT(A), ITAT AND FINALLY BY THE HONBLE JURISDICTIONAL HIGH COURT. HE, THEREFORE, SUBMITTED THAT THE PENALTY HAVE BEEN RIGHTLY SUSTAI NED BY THE CIT(A) AND HIS ORDER MAY BE UPHELD. 6. IN THE REJOINDER, IT IS SUBMITTED BY THE LD. COU NSEL THAT THE ADDITIONAL INCOME OF RS.5 LACS HAS BEEN DISCLOSED BY THE ASSES SEE FOR ASSESSMENT YEAR 2006-07 AND THIS FACT HAS BEEN MENTIONED IN HIS REP LY DATED 28.09.2007 FILED DURING THE ASSESSMENT PROCEEDINGS. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AT THE OUTS ET, WE AGREE WITH THE LD. COUNSELS CONTENTION THAT THE PENALTY PROCEEDINGS A RE INDEPENDENT OF THE ASSESSMENT PROCEEDINGS. HOWEVER, WE ARE UNABLE TO A GREE WITH HIS CONTENTION THAT THE ASSESSEES SUBMISSIONS WERE NOT CONSIDERED BY THE ASSESSING OFFICER IN THE PENALTY PROCEEDINGS AND HE LEVIED THE PENALTY SIMPLY ON THE BASIS OF FINDING IN THE ASSESSMENT PR OCEEDINGS. ON PAGE NO.1, PARAGRAPH NO.4 OF THE PENALTY ORDER, THE ASSESSING OFFICER HAS MENTIONED ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 6 ABOUT ASSESSEES REPLY DATED 04.02.2011 WHICH WAS R ECEIVED BY THE ASSESSING OFFICER ON 07.02.2011. THEN, THE ASSESSI NG OFFICER HAS SUMMARIZED THE ASSESSEES CONTENTION AND AT PAGE NO .2, PARAGRAPH NO.5 OF THE PENALTY ORDER, HE HAS MENTIONED THAT WHY THE AS SESSEES CONTENTION IS NOT FOUND TO BE SATISFACTORY. THE LD. COUNSEL HAS ALSO CONTENDED THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS FURNISH ED VARIOUS REPLIES EXPLAINING IN DETAILS WITH REGARD TO THE INVESTMENT IN THE CONSTRUCTION OF BUNGALOW, ITS FURNITURE, FIXTURES ETC. AND THOSE DE TAILS HAVE NOT BEEN EXAMINED BY THE ASSESSING OFFICER. HE REFERRED TO V ARIOUS SUBMISSIONS FURNISHED BEFORE THE ASSESSING OFFICER WHICH IS PLA CED ON PAGE NO.20 ONWARDS OF THE ASSESSEES PAPER-BOOK. WE FIND THAT AT PAGE NO.20 OF THE ASSESSEES PAPER-BOOK, THERE IS A REPLY DATED 12.10 .2007 WHICH IS RECEIVED IN THE INCOME-TAX OFFICE ON 15.10.2007. AT PAGE NO.25 , THERE IS A REPLY DATED 22.11.2007 AND AT PAGE NO.30, THERE IS A REPLY DATE D 04.12.2007 THE DATE ON WHICH THIS REPLY WAS RECEIVED BY THE OFFICE HAS NOT BEEN MENTIONED. WE FIND THAT IN PAGE NO.2 OF THE ASSESSMENT ORDER IN LAST P ARAGRAPH, THE ASSESSING OFFICER HAS MENTIONED ALL THE REPLIES FURNISHED BY THE ASSESSEE AND HIS CONTENTION IN THOSE REPLIES. THEN IN THE NEXT PARAG RAPH, HE DEALT WITH THOSE REPLIES AND GAVE HIS OWN FINDING WHY THE ASSESSEES CONTENTION IS NOT ACCEPTABLE. FOR READY REFERENCE, WE REPRODUCE THE S AME HEREUNDER: IN HIS REPLY FILED ON 24/09/2006, THE ASSESSEE STA TED THAT ALTHOUGH HE HAD DISCLOSED RS. 50 LAKHS AT THE TIME OF SEARCH, NO CO RROBORATIVE EVIDENCE HAS BEEN SEIZED BY THE SEARCH PARTY TO SUPPORT THIS DIS CLOSURE. HENCE, ACCORDING TO HIM THE ACTUAL DISCLOSURE WAS ONLY RS. 5 LAKHS I NSTEAD OF RS. 50 LAKHS. FURTHER, HE ALSO STATED THAT THE COMPLETE COST OF C ONSTRUCTION AND FURNITURE HAS BEEN SHOWN IN THE BALANCE SHEET. IN HIS SUBSEQU ENT REPLIES FILED ON 15/10/2007, 22/11/2007, 08/12/2007 AND 13/12/2007, THE ASSESSEE REITERATED AND STATED THAT APART FROM THE CONSTRUCTION OF THE HOUSE THAT WAS COMPLETED IN JULY, 2007 RS. 14,65,850/- HAVE BEEN SPEND ON TH E FURNITURE THAT HAS BEEN REFLECTED IN THE BALANCE SHEET. THE SOURCE OF THIS EXPENDITURE IS STATED TO BE WITHDRAWALS MADE FROM THE CAPITAL ACCOUNT OF THE AS SESSEE IN M/S. CHEMFILT, IN WHICH THE ASSESSEE IS A PARTNER. ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 7 THE CONTENTION OF THE ASSESSEE THAT HE HAD NOT MADE ANY UNACCOUNTED INVESTMENT IN FURNITURE, FIXTURE AND RENOVATION OF NISTHA BUNGLOW CANNOT BE ACCEPTED FOR THE FOLLOWING REASONS: THE DISCLOSURE AT THE TIME OF SEARCH MADE BY THE ASSESSEE OUT OF HIS OWN FREE WILL UNDER OATH. THE SAME WAS ENDORSED BY THE CA OF THE ASSESSEE. THE SAME ADMISSION WAS REITERATED BY THE ASSESSE E TWO MONTHS LATER WHEREIN HE ONCE AGAIN PROMISED TO PAY TAX ON RS. 50 LAKHS DISCLOSED. THEREFORE, EVEN IF THE ASSESSEE TAKES THE PLEA THAT HE WAS UNDUE PRESSURE AT THE TIME OF SEARCH, THE SAME CANNOT BE THE SITUA TION TWO MONTHS LATER. FURTHER, NO RETRACTION OF THE ABOVE ADMISSION WAS M ADE BY THE ASSESSEE FOR THE NEXT 19 MONTHS. IT WAS ONLY WHEN THE ASSESS EE WAS ASKED ABOUT THE DISCLOSURE IN COURSE OF ASSESSMENT PROCEEDINGS THAT HE FILED A RETRACTION DATED 24/09/2007. THE ASSESSEE HAS STATED THAT THE AMOUNT SPEND ON FURNITURE ETC. WAS REFLECTED IN HIS BALANCE SHEET. HOWEVER, AS PER ASS ESSEE'S OWN ADMISSION DATED 22/11/2007, HE IS NOT MAINTAINING ANY PERSONA L BOOKS OF ACCOUNTS AND NO SUCH ACCOUNTS ARE FILED BY THE ASSESSEE ALON G WITH HIS RETURNS. THE ASSESSEE HAS SHOWN SOURCE OF INVESTMENT IN F URNITURE AS WITHDRAWAL FROM M/S. CHEMFILT. HOWEVER, IT IS IMPORTANT TO POI NT OUT HERE THAT DUE TO SPECIFIC DEFECT IN THE BOOKS OF ACCOUNTS OF M/S. CHEMFILT, THE SAME HAVE BEEN REJECTED U/S. 145 OF THE I.T. ACT. THE ASSESSEE HAS CONTRADICTED HIMSELF BY SAYING IN ONE PLACE THAT THERE IS NO UNACCOUNTED INVESTMENT IN FURNITURE, FIXTURE AND RENOVATION; AND ON THE OTHER HAND ACCEPTING UNACCOUNTED INVESTMENT OF RS. 5 LAKHS UNDER THE SAME HEAD VIDE HIS LETTER DATED 24/09/2007. WHILE THE ASSESSEE HAS EXPLAINED IN DETAIL THE V ARIOUS FURNITURE AND FIXTURES, NOTHING WRT THE RENOVATION CARRIED OUT BY THE ASSESSEE HAS BEEN EXPLAINED. IT IS IMPORTANT TO POINT OUT AT THIS JUN CTURE THAT THE ASSESSEE HIMSELF HAD ADMITTED TO CARRYING OUT RENOVATION AT THE BUNGLOW, ON WHICH HE HAD MADE THE DISCLOSURE. ON THE BASIS OF ABOVE DISCUSSION, THE PLEA OF THE A SSESSEE THAT NO UNDISCLOSED INVESTMENT HAS BEEN MADE BY HIM IS REJECTED. IT IS THEREFORE CONCLUDED THAT THE ASSESSEE AHD MADE AN UNDISCLOSED INVESTMENT OF RS.50 LAKHS IN FURNITURE, FIXTURE AND RENOVATION OF NISTHA BUNGLOW. THEREFOR E, AN ADDITION OF RS.50,00,000/- IS MADE TO THE INCOME OF THE ASSESSE E ON ACCOUNT OF UNDISCLOSED INVESTMENT. THEREFORE, THE CONTENTION OF THE LD. COUNSEL THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WITH REGARD TO INVESTMENT IN BUNGALOW HAS NOT BEEN CONSIDERED BY THE ASSESSING OFFICER DURING ASS ESSMENT PROCEEDINGS IS FACTUALLY INCORRECT. THE ABOVE FINDING OF FACT REC ORDED BY THE ASSESSING ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 8 OFFICER IN THE ASSESSMENT ORDER DATED 24.12.2007 IS SUSTAINED BY THE CIT(A) VIDE ORDER DATED 20.01.2009. THE ASSESSEE FILED AP PEAL BEFORE THE ITAT AND THE ITAT VIDE ORDER DATED 23.03.2012 DISMISSED THE ASSESSEES APPEAL UPHOLDING THE FINDING OF FACT RECORDED BY THE ASSES SING OFFICER. THEREAFTER, THE ASSESSEE FILED APPEAL BEFORE THE HONBLE JURISD ICTIONAL HIGH COURT WHICH DISMISSED THE APPEAL WITH THE FOLLOWING FINDINGS:- 6. FROM THE RECORD, HOWEVER, WE NOTICE THAT NOT ON LY THAT THE INITIAL CONFESSIONAL STATEMENT MADE BY THE ASSESSEE ON 19.1 .2006 WAS NOT RETRACTED FOR MONTHS TOGETHER, IN BETWEEN ALSO HE MADE ONE SU CH SIMILAR STATEMENT. IN HIS STATEMENT DATED 19.1.2006, HE STATED AS UNDER : 'AFTER TAKING INTO CONSIDERATION THE DOCUMENTS FOUN D AND CONFRONTED TO ME AND IN THE TOTALITY OF THE SITUATION ESPECIAL LY WITH REGARD TO MY RESIDENT, I WOULD LIKE TO STATE THAT ABOUT RS. 50 L ACS OF MY UNDISCLOSED INCOME WHICH HAS GONE INTO RENOVATION, ADDITION OF FURNITURE AND FIXTURE AT MY RESIDENCE AND OTHER THINGS IS HEREBY BEING OFFERED FOR TAXATION FOR WHICH I AM PREPARED TO PAY DUE TAXES T HEREON IN THE DUE COURSE OF TIME. THIS OBSERVATION HAS ALSO BEEN REIN FORCED BY THE OPINION GIVEN BY MY C.A. SHRI KIRAN M. PATEL. THERE FORE, I OFFER THE ABOVE STATED INCOME OF RS. 50 LACS TO TAXATION. THE ABOVE STATEMENT IS GIVEN WITHOUT ANY COERCION. THE STATEMENT IS TRUE TO THE BEST OF KNOWLEDGE AND IT IS REGALLY BOU ND TO ME.' 7. FOR SEVERAL MONTHS, THIS STATEMENT WAS NOT RETRA CTED. IT WAS ONLY ON 26.9.07, DURING THE COURSE OF THE ASSESSMENT PROCEE DINGS THAT THE ASSESSEE WROTE A LETTER RETRACTING THE STATEMENT. THERE IS S OME DISCREPANCY ABOUT THE DATE OF THE LETTER WHETHER IT WAS WRITTEN ON 26.9.0 7 OR ON 26.9.06. BE THAT IT MAY, THE FACT REMAINS THAT INITIAL STATEMENT WAS NO T RETRACTED FOR SEVERAL MONTHS. IN HIS RETRACTION STATEMENT, THE ASSESSEE M ADE OUT A GROUND THAT THE SEARCH HAD STARTED AT 8.30 IN THE MORNING AND ENDED ON THE NEXT DAY AND THUS IT CONTINUED FOR A PERIOD OF NEARLY 24 HOURS. IN SHORT, HE SUGGESTED MENTAL HARASSMENT AND FATIGUE FOR HAVING MADE SUCH A DISCLOSURE. HE DID NOT SUGGEST ANY UNDUE PRESSURE OR ALLUREMENT. 8. IT IS NOTEWORTHY THAT QUITE APART FROM SUCH STAT EMENT DATED 19.1.06, AT THE TIME OF SEARCH, THE ASSESSEE HAD MADE YET ANOTHER C ONFESSIONAL STATEMENT ON 28TH MARCH 2006. HE HAD NEVER REFERRED TO SUCH A ST ATEMENT IN HIS RETRACTION. HE DID NOT OFFER ANY EXPLANATION WHY QU ITE APART FROM THE STATEMENT MADE AT THE TIME OF SEARCH OPERATION, HE HAD TWO MONTHS LATER REPEATED HIS OFFER. THE AUTHORITIES HAVE FURTHER RE CORDED THAT BOTH THE ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 9 STATEMENTS WERE MADE IN PRESENCE OF THE CHARTERED A CCOUNTANT OF THE ASSESSEE. IN ADDITION TO SUCH CIRCUMSTANCES, THE CO MMISSIONER (APPEALS) NOTED THAT THE APPELLANT WAS NOT MAINTAINING PERSON AL BOOKS OF ACCOUNTS. THE ASSESSEE'S CONTENTION WAS THAT SOURCE OF INVESTMENT IN FURNITURE AND FIXTURES WAS WITHDRAWAL FROM THE FIRM, BUT THE BOOKS OF ACCO UNTS OF THE FIRM WERE REJECTED UNDER SECTION 145 OF THE ACT DUE TO SPECIF IC DEFECTS FOUND BY THE ASSESSING OFFICER. 9. IN SHORT, THE REVENUE AUTHORITIES AND THE TRIBUN AL ON THE BASIS OF EVIDENCE ON RECORD CAME TO THE CONCLUSION THAT THE ADDITION OF RS. 50 LACS WAS JUSTIFIED. WE DO NOT FIND ANY QUESTION OF LAW ARISI NG. THE ENTIRE ISSUE RESTS SOLELY ON APPRECIATION OF EVIDENCE ON RECORD. PARTI CULARLY WHEN THE ASSESSEE HAVING MADE SUCH A STATEMENT AND REPEATED THE SAME TWO MONTHS LATER AND IN THE LETTER RETRACTING THE STATEMENT NEVER OFFERE D ANY EXPLANATION AS TO THE REASON WHY HE MADE A CONFESSIONAL STATEMENT TWO MON THS AFTER THE SEARCH, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE CONCUR RENT FINDINGS OF FACTS OF TWO REVENUE AUTHORITIES AND THE TRIBUNAL. 10. IN THE RESULT, THE TAX APPEAL IS DISMISSED. 8. NOW WE REVERT BACK TO THE STATEMENT GIVEN BY THE ASSESSEE AT THE TIME OF SEARCH. IN THE SAID STATEMENT, THE ASSESSEE STA TED THAT ABOUT RS.50 LACS OF MY UNDISCLOSED INCOME HAS GONE INTO RENOVATION, ADD ITIONAL FURNITURE AND FIXTURE AT MY RESIDENCE AND OTHER THINGS WHICH IS OFFERED FOR TAXATION. IN THE SAID STATEMENT ITSELF IT IS MENTIONED THAT THIS SURRENDE R IS MADE AFTER TAKING THE OPINION OF HIS CHARTERED ACCOUNTANT SHRI KIRAN M. P ATEL. IT IS ALSO MENTIONED THAT THE STATEMENT IS GIVEN WITHOUT ANY C OERCION. THIS STATEMENT WAS RECORDED ON 19.01.2006. THAT MORE THAN TWO MON THS AFTER THE COMPLETION OF SEARCH, AGAIN THE STATEMENT OF THE AS SESSEE WAS RECORDED IN WHICH IN REPLY TO QUESTION NO.25 THE ASSESSEE REPEA TED THAT HE HAD UNDISCLOSED INCOME OF RS.50 LACS WHICH HAS GONE INT O INVESTMENT IN BUNGALOW AND ITS FURNITURE, FIXTURES ETC.. THIS SEC OND STATEMENT WAS ALSO RECORDED IN THE PRESENCE OF ASSESSEES CHARTERED AC COUNTANT. WHEN THE ASSESSEE, WHO HAS THE KNOWLEDGE OF ACTUAL EXPENDITU RE IN THE CONSTRUCTION, RENOVATION, FURNITURE, FIXTURES ETC. OF THE BUNGALO W, HIMSELF HAS ADMITTED THAT THERE IS AN INVESTMENT OF RS.50 LACS IN SUCH C ONSTRUCTION, RENOVATION, ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 10 FURNITURE, FIXTURES ETC. WHICH WAS MADE FROM THE UN DISCLOSED SOURCES; IN OUR OPINION, THE REVENUE IS NOT REQUIRED TO PROVE BY BR INGING ANY POSITIVE EVIDENCE OF THE EXISTENCE OF UNDISCLOSED INCOME OF RS.50 LACS WITH THE ASSESSEE SO AS TO LEVY PENALTY U/S 271(1)(C) OF THE ACT. BOTH THE STATEMENTS WERE RECORDED IN THE PRESENCE OF ASSESSEES CHARTER ED ACCOUNTANT AND THE SECOND STATEMENT WAS AFTER MORE THAN TWO MONTHS FRO M THE COMPLETION OF THE SEARCH. THEREFORE, THE ASSESSEE CANNOT CLAIM T HAT THE STATEMENT WAS GIVEN UNDER COERCION, THREAT OR UNDER THE MISCONCEP TION OF LAW OR FACTS. IN THE ORIGINAL STATEMENT RECORDED AT THE TIME OF SEAR CH, THIS FACT IS MENTIONED THAT THE OBSERVATION FOR HIS SURRENDER OF INCOME HA S BEEN REINFORCED BY THE OPINION GIVEN BY THE CHARTERED ACCOUNTANT SHRI KIRA N M. PATEL. THUS, THE ADMISSION OF UNDISCLOSED INCOME AND ITS INVESTMENT IN BUNGALOW WAS MADE BY THE ASSESSEE AFTER DUE CONSULTATION WITH HIS CHA RTERED ACCOUNTANT. BY A SUBSEQUENT LETTER DATED 26.09.2006, THE ASSESSEE CL AIMED THAT THE UNDISCLOSED INCOME WAS ONLY RS.5 LACS AND NOT RS.50 LACS AS OFFERED IN THE ORIGINAL STATEMENT. HOWEVER, NO EVIDENCE WAS BROUG HT ON RECORD BY THE ASSESSEE TO ESTABLISH THAT THE CORRECT AMOUNT OF UN DISCLOSED INCOME WAS RS.5 LACS AND NOT RS.50 LACS. THUS, EVEN BY SUBSEQUENT LETTER WHICH WAS FURNISHED DURING THE ASSESSMENT PROCEEDINGS, IT IS ADMITTED BY THE ASSESSEE THAT THERE WAS SOME UNDISCLOSED INCOME WITH THE ASS ESSEE. NOW, THE ONLY DISPUTE REMAINS IS THE QUANTUM OF UNDISCLOSED INCOM E. IN OUR OPINION, NO WORKING OF THE UNDISCLOSED INCOME IS GIVEN BY THE A SSESSEE EITHER FOR RS.50 LACS OR FOR RS.5 LACS. CONSIDERING THE TOTALITY OF THE FACTS, THE ORIGINAL STATEMENT IS TO BE BELIEVED AND IF THE ASSESSEE WAN TED TO MODIFY THE QUANTUM OF UNDISCLOSED INCOME DISCLOSED ORIGINALLY, THE BURDEN WAS UPON THE ASSESSEE TO SHOW THAT SUCH UNDISCLOSED INCOME W AS FACTUALLY INCORRECT AND THE CORRECT AMOUNT OF UNDISCLOSED INCOME WAS ON LY RS.5 LACS. IT HAS NOT BEEN SHOWN BY THE ASSESSEE HOW THE UNDISCLOSED INCO ME WAS ONLY RS.5 LACS ITA NO. 643/AHD/2013 SUDARSHAN P AMIN V. ACIT FOR AY 2000-01 11 AND NOT RS.50 LACS. MOREOVER, THIS CONTENTION OF T HE ASSESSEE HAS ALREADY BEEN REJECTED IN THE ASSESSMENT PROCEEDINGS AND THE FINDING OF THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS HAV E BEEN UPHELD BY THE CIT(A), ITAT AS WELL AS THE HONBLE JURISDICTIONAL HIGH COURT. THEREFORE, WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE HAD UNDISCLOSED INCOME OF RS.50 LACS WHICH HAS GONE INTO RENOVATION, FURNITUR E AND FIXTURES OF THE BUNGALOW. SUCH UNDISCLOSED INCOME HAS NOT BEEN DIS CLOSED IN THE RETURN OF INCOME. THUS, IT IS CLEAR A CASE WHERE THERE WAS A CONCEALMENT OF RS.50 LACS. WE, THEREFORE, UPHOLD THE ORDER OF THE CIT(A) WHERE IN HE CONFIRMED THE PENALTY LEVIED U/S 271(1)(C) AMOUNTING TO RS.16,50, 000/-. THUS, THE APPEAL OF THE ASSESSEE IS DISMISSED. 9. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 10 TH APRIL, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 10/04/2015 BIJU T., PS +, % !&- .+-& +, % !&- .+-& +, % !&- .+-& +, % !&- .+-&/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. & #/ / CONCERNED CIT 4. #/ ( ) / THE CIT(A) - IV, BARODA 5. -23 !& , , / DR, ITAT, AHMEDABAD 6. 34 5$ / GUARD FILE . +,# +,# +,# +,# / BY ORDER, TRUE COPY 6 66 6/ // / 7 7 7 7 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD