The Deputy Commissioner of Income tax, Hoshiarpur V. Sh. Vijay Sood, Hoshiarpur

ITA 7/ASR/2011

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 8943 (ITAT-AMRITSAR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-09-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 10-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: K R JAIN
• Keywords: Revised return; Documents seized; Set aside; Capital Gains
• Section: 271(1)(c); 143(3); 251; 131; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.07(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN :ABNPS7669B THE DY. COMMR. OF INCOME-TAX, VS. SH. VIJAY SOOD, HOSHIARPUR CIRCLE, HOSHIARPUR. SHAKTI NIWAS, HOSH IARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L. CHHANALIA, DR RESPONDENT BY:SH. K.R. JAIN, ADV. DATE OF HEARING:25/09/2012 DATE OF PRONOUNCEMENT:03/10/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF THE CIT(A), DATED 28.10.2010 FOR THE ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE PENALTY OF RS.2,95,142/- IMPOSED BY THE AO U/S 271(1)(C) OF THE I.T. ACT, 19 61. 2. THAT, IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE A.O. RESTORED. ITA NO.07(ASR)/2011 2 3. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AN D DISPOSED OFF. 2. BRIEFLY STATED, THE FACTS IN THE PRESENT CASE ARE THAT THE AO INITIATED PENALTY PROCEEDINGS IN THE ORDER U/S 143(3) DATED 05.12.2007 IN THE CASE OF THE ASSESSEE. IN THIS CASE, THE ORIGINAL RETURN WAS FILED BY THE ASSESSEE ON 21.10.2005 DECLARING INCOME OF RS.61,300/-. A REVIS ED RETURN DECLARING INCOME OF RS.11,96,300/- WAS FILED ON 19.04.2006. I N THE ASSESSMENT ORDER, THE AO REFERRED TO THE LETTER DATED 18.04.2007 FROM ADIT (INV.) JALANDHAR INFORMING THAT A SEARCH HAD BEEN CONDUCTED U/S 132 (1) OF THE ACT ON 17.11.2005 ON THE RESIDENTIAL AND BUSINESS PREMISE S OF M/S. ARORA BUILDERS AND COLONISERS GROUP OF CASES, HOSHIARPUR. DURING T HE POST SEARCH INQUIRIES BY THE INVESTIGATION WING, SUMMONS U/S 131 OF THE A CT WERE ISSUED TO THE ASSESSEE WHO WAS FOUND TO HAVE SOLD LAND/PLOTS TO T HE PERSONS SEARCHED AND HAD FAILED TO SHOW THE CORRECT SALE CONSIDERATION. A LETTER WAS FILED BY THE ASSESSEE ON 31.03.2006 IN WHICH HE HAD HIMSELF ADMI TTED THAT CONSIDERATION OF RS.8 LACS WAS RECEIVED BY HIM BY CHEQUE AND THE BALANCE OF RS.12 LACS WAS RECEIVED IN CASH. FOR THIS FAILURE/CONCEALMENT, SH. VIJAY SOOD HAD SURRENDERED RS.12 LACS FOR THE SAID ASSESSMENT YEAR . IN THE SURRENDER LETTER, IT WAS MENTIONED THAT THE SURRENDER WAS MADE SUBJECT T O NO PENALTY. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE SINCE THE ADIT DIRECTED THAT ITA NO.07(ASR)/2011 3 APPROPRIATE ACTION MAY BE TAKEN IN ACCORDANCE WITH LAW AND THE SURRENDER IN REVISED RETURN HAS BEEN MADE AFTER THE INQUIRY BY THE ADIT, JALANDHAR. THE AO IS OF THE VIEW THAT SINCE REVISED RETURN WAS NOT FILED VOLUNTARILY, THE ASSESSEE DID NOT DESERVE THE BENEFIT OF AMNESTY AND THE REVISED RETURN FILED SHOWING MUCH LARGER INCOME IN WHICH IT WAS NOT ESTA BLISHED THAT THERE WAS AN INADVERTENT MISTAKE OR OMISSION IN THE ORIGINAL RETURN AMOUNTED TO CONCEALMENT AND HE INITIATED PENALTY PROCEEDINGS IN THE CASE OF THE ASSESSEE. DURING THE PENALTY PROCEEDINGS, THE ASSES SEE MADE DETAILED SUBMISSIONS AND CONTENDED THAT THE REVISED RETURN W AS FILED VOLUNTARILY SINCE NO NOTICE U/S 148 WAS ISSUED BY THE DEPARTMEN T. THIS CONTENTION OF THE ASSESSEE WAS REJECTED BY THE AO BY SAYING THAT THE CASE HAD ALREADY BEEN SELECTED FOR SCRUTINY BY ISSUING OF NOTICE U/S 143( 2) AND ISSUE OF NOTICE U/S 148 WAS NOT REQUIRED. THE ASSESSEE FURTHER CONTENDE D THAT THE AMOUNT SURRENDERED BEFORE THE ADIT WAS UNDER PRESSURE TO A VOID HARASSMENT AND LITIGATION AND FURTHER THE SURRENDER WAS SUBJECT TO NO PENALTY WHICH OFFER WAS ACCEPTED BY THE ADIT. FINALLY, THE A.O. LEVIED PENALTY IN DISPUTE BEING 100% OF THE TAX SOUGHT TO BE EVADED VIDE ORDER DAT ED 25.03.2008 PASSED U/S 271(1)(C) OF THE ACT. 3. AGGRIEVED BY THE SAME, THE ASSSESSEE FILED THE A PPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 28.10.2010 DELETED ITA NO.07(ASR)/2011 4 THE PENALTY IN DISPUTE BY RESPECTFULLY FOLLOWING TH E DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RA JEEV GARG AND OTHERS REPORTED IN 313 ITR 256 (P&H) BY HOLDING THAT THE F ACTS OF THE CASE BEFORE THE HONBLE HIGH COURT AS WELL AS FACTS OF THE ASS ESSEES CASE ARE IDENTICAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAJEEV GARG AND OTHERS (SUPRA), HE DELETED THE PENALTY IN DISPUTE. NOW THE REVENUE IS AGGRIEVED AG AINST THE IMPUGNED ORDER OF THE CIT(A) AND FILED THE PRESENT APPEAL BE FORE THIS BENCH. 4. AT THE TIME OF HEARING, THE LD. DR RELIED UPON T HE ORDER PASSED BY THE A.O. DATED 25.03.2008 UNDER SECTION 271(1)(C) OF TH E ACT. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE RELIED UPON THE ORDER PASSED BY THE CIT(A). HE FURTHER STATED THAT THE ARGUMENTS ADVANCED BY HIM BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE TREATED THE ARGUMENTS IN THE PRESENT CASE ALSO. HE HAS FILED PAPER BOOK C ONTAINING PAGES 1 TO 35, IN WHICH HE HAS ATTACHED FOLLOWING DOCUMENTS: 1. COPY OF WRITTEN SUBMISSIONS TO THE CIT(JALANDHA R) 1 TO 25 2. COPY OF LETTER DATED 31.03.2006 ADDRESSED TO 26 & 27 ADI INV. JALANDHAR 3. COPY OF ORDER SHEET 28 TO 31 4. COPY OF LETTER DATED 6/7/2004 FROM DIVISIONAL 32 FOREST OFFICER, JALANDHAR FOREST DIVN.PHILLAUR 5. COPY OF RECEIPTS FOR PAYMENT TO FOREST BLOCK 33 OFFICER, JALANDHAR. 6. COPY OF DEMAND DRAFT PAID TO DIVISIONAL FOREST 34 OFFICER, PHILLAUR. ITA NO.07(ASR)/2011 5 7. COPY OF LETTER DATED 09/03/2004 ADDRESSED 35 TO DIVISIONAL FOREST OFFICER, JALANDHAR FOREST DIVISION, PHILLAUR. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELE VANT RECORD AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE AUT HORITIES BELOW ALONGWITH WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE THE LD. FIRST APPELLATE AUTHORITY AS WELL AS VARIOUS OTHER DOCUMENTARY EVIDENCE ATTACHED WITH THE ASSESSEES PAPER BOOK.. WE ARE OF THE VIEW THAT WHILE DELETING THE PENALTY IN DISPUTE, 7. THE LD. FIRST APPELLATE AUTHORITY HAS ELABORATELY N ARRATED THE FACTS OF THE CASE OF THE ASSESSEE AS WELL AS VARIOUS DECISIO NS RENDERED BY THE HONBLE SUPREME COURT OF INDIA AS WELL AS HONB LE HIGH COURTS INCLUDING HONBLE JURISDICTIONAL HIGH COURT ON THE ISSUE IN DISPUTE . THE LD. FIRST APPELLATE AUTHORITY HAS AL SO PRODUCED A LETTER OF THE ADIT WRITTEN TO THE ADDL. CIT, HOSH IARPUR, WHICH IS AT PAGE 7 OF THE IMPUGNED ORDER. FOR THE SAKE OF CO NVENIENCE, THE SAME IS REPRODUCED AS UNDER: TO THE ADDITIONAL COMMISSIONER OF INCOME TAX, HOSHIARPUR RANGE, HOSHIARPUR. SIR, SUB: FORWARDING OF INFORMATION REGARDING. KINDLY REFER TO THE ABOVE CAPTIONED SUBJECT. ITA NO.07(ASR)/2011 6 2. THE INVESTIGATION WING, JALANDHAR HAD CARRIED OUT A SEARCH & SEIZURE OPERATION U/S 1`32(1) OF THE I.T. ACT, 1961 AT THE RESIDENTIAL AND BUSINESS PREMISES OF M/S. ARORA BUILDERS & COLO NIZERS, GROUP OF CASES, HOSHIARPUR ON 17.11.2005. DOCUMENTS INCLU DING REGISTERED DEEDS RELATING TO PROPERTY TRANSACTIONS MADE WITH/BY SOME PERSONS, WHO WERE NOT COVERED UNDER SEARCH OPE RATION, WERE FOUND AND SEIZED. 3. DURING THE POST SEARCH ENQUIRIES SUMMONS U/S 131(1A ) OF THE I.T. ACT, 1961 WERE ISSUED TO SOME PERSONS, WHO HAD EITH ER SOLD OR PURCHASED LAND/PLOTS FROM/TO THE ASSESSEE, IN WHOSE CASES, SEARCH & SEIZURE ACTION WAS INITIATED. 4. SH. VIJAY SOOD S/O LATE SH. KUNDAN LAL SOOD, SHAKTI NIWAS, CIVIL LINES, HOSHIARPUR FALLING UNDER YOUR JURISDICTION W AS ALSO EXAMINATION W.R.T THE DOCUMENTS SEIZED. THE ASSESSE E HAS SURRENDERED RS.12,00,000- FOR THE ASSESSMENT YEAR 2 005-06. 5. THE ABOVE INFORMATION IS BEING FORWARDED ALONG WITH COPY OF SURRENDER LETTER AND REVISED RETURN FILED DURING TH E COURSE OF INVESTIGATION PROCEEDINGS. THE A.O. MAY BE DIRECTED TO TAKE APPROPRIATE ACTION ON ACCOUNT OF AMOUNT SURRENDERED . YOURS FAITHFULLY, SD/- (J.S. KAHLON) ASSTT. DIRECTOR OF INCOME TAX (INV.) JALANDHAR. 6.1 THE LD. FIRST APPELLATE AUTHORITY HAS ALSO REPR ODUCED THE SURRENDER LETTER OF THE ASSESSEE DATED 31.03.2006 AT PAGE 8 O F THE IMPUGNED ORDER, WHICH FOR THE SAKE OF CONVENIENCE IS ALSO REPRODUCE D AS UNDER: TO A.D.I. (INV.) JALANDHAR. SIR, SUB: SURRENDER OF RS.12 LACS ON ACCOUNT OF SALE OF PLOT/BUILDING AT BAHADURPUR CHOWK, UNA ROAD, HOSHI ARPUR. ITA NO.07(ASR)/2011 7 IN THIS REGARD, I SUBMITTED THAT I MADE AN AGREEMEN T TO SELL THE PLOT/BUILDING WITH SH. DINESH KUMAR FOR RS.21 LACS AND AGREEMENT WAS MADE THE SALE WAS TO BE DONE IN MARCH, 2005 BU T I NEEDED MONEY AND I ASKED PURCHASER TO MADE REGISTRATION IN DEC., 2004. HE STATED THAT HE WILL PAY RS.20 LACS INSTEAD OF RS.21 LACS A ND AGREED TO THE PROPOSAL. THE REGISTRATION WAS MADE IN TWO SALE DEE DS THAT IS ON 29.12.2004 RS.14,50,000/-, 29.12.2004 RS.3,50,000/- TOTAL SALE CONSIDERATION WAS RS.8 LACS WHICH I RECEIVED THROUG H CHEQUE AND BALANCE RS. 12 LACS IN CASH. I HAVE NOT TAKEN IN MY BOOKS OF ACCOUNTS. THEREFORE, SURRENDER RS.12 LACS JUST TO AVOID LITIG ATION WITH DEPARTMENT. THIS SURRENDER IS MADE SUBJECT TO NO PE NALTY OF CONCEALMENT. I ASSURE YOU THAT I WILL PAY THE TAX ON THE AMOUNT AND REVISE THE RETURN. THANKING YOU, YOURS FAITHFULLY, SD/- (VINOD SOOD) 31.03.2006 6.2. AFTER CONSIDERING THE LETTER OF THE ADIT AS WE LL AS THE SURRENDER LETTER DATED 31.03.2006 OF THE ASSESSEE, THE LD. FIRST APP ELLATE AUTHORITY HAS REJECTED THE VARIOUS CONTENTIONS RAISED BY THE ASSE SSEE IN THE IMPUGNED ORDER. BUT FINALLY HE FOUND THAT THE FACTS AND CIRC UMSTANCES OF THE PRESENT CASE OF THE ASSESSEE ARE IDENTICAL TO THE FACTS OF THE CASE OF CIT VS. RAJEEV GARG AND OTHERS (P&H)(SUPRA), AND ACCORDINGLY DELET ED THE PENALTY IN DISPUTE. FOR THE SAKE OF CONVENIENCE, THE RELEVANT DISCUSSIONS OF THE LD. CIT(A) IN THE IMPUGNED ORDER AT PAGES 13 TO 15 AND PARAS 4.6 TO 4.7 ARE REPRODUCED AS UNDER: 4.6. IN THE CASE OF CIT VS. RAJEEV GARG & OTHERS 3 13 ITR 256 (P&H), THE FACTS WERE THAT THE ASSESSEE DERIVED INC OME FROM ITA NO.07(ASR)/2011 8 MANUFACTURING OF COTTON YARN AND COTTON WASTE. THE ASSESSEE FILED RETURN OF INCOME ON 30.10.1998 WHICH INCLUDED LONG TERM CAPITAL GAIN ON SALE OF SHARES AMOUNTING TO RS.29,74,951/-. THE RETURN WAS PROCESSED U/S 143(1)(A). SUBSEQUENTLY, ON THE BASIS OF AN INFORMATION RECEIVED FROM THE DDIT 9INV.) GUGAON THAT THE SALE OF SHARES AMOUNTING TO RS.32,40,385/- ON WHICH CAPITAL GAINS HAD BEEN DECLARED AT RS.29,74,951/- BY THE ASSESSEE IN THE R ETURN WAS BOGUS, A NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESS EE. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED RETURN OF INCOM E, WHICH INTER ALIA INCLUDED THE ENTIRE AMOUNT OF RECEIPTS ON ACCOUNT O F SALE PROCEEDS OF THE SHARES AT RS.33,10,380/- AGAINST LONG TERM CAPI TAL GAIN OF RS.29,74,9541/- DECLARED IN THE ORIGINAL RETURN OF INCOME. THIS RETURN OF INCOME WAS ACCOMPANIED BY A NOTE IN WHICH THE AS SESSEE SUBMITTED THAT THE RETURN OF INCOME WAS BEING VOLUNTARILY REV ISED TO INCLUDE THE ENTIRE AMOUNT OF RECEIPT ALONG WITH OTHER AMOUNT TO BUY PEACE OF MIND AND TO AVOID HAZARD OF LITIGATION AND ALSO TO SAVE HIMSELF FROM ANY PENALTY ACTION. THEREAFTER, ASSESSMENT ORDER WA S FRAMED AND THE RETURN SUBMITTED U/S 148 WAS REGULARIZED. AO ALSO I NITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND AFTER CONS IDERING THE SUBMISSIONS OF THE ASSESSEE IMPOSED PENALTY HOLDING THAT THE ASSESSEE HAD FILED THE REVISED RETURN AFTER THE ISSUE OF NOT ICE U/S 148 OF THE ACT. HE HELD THAT THE RETURN WAS FILED AFTER THE DETECTI ON OF CONCEALMENT OF INCOME BY THE DEPARTMENT AND PENALTY WAS LEVIABLE S INCE THE ASSESSEE HAD AVOIDED HIGHER TAX RATE OF 30% AS AGAINST 20% C HARGEABLE ON LONG TERM CAPITAL GAINS. 4.6.1. THE ASSESSEE WENT IN APPEAL AND CIT(A) DELET ED THE PENALTY BY ACCEPTING THAT THE ADDITIONAL INCOME WAS DECLARED O NLY TO BUY PEACE OF MIND AND TO AVOID LITIGATION AND MATERIAL FOUND BY THE AO DURING ASSESSMENT TO SHOW THAT THE STAND OF THE ASSESSEE I N THE TRANSACTION RESULTING IN LONG TERM CAPITAL GAIN WAS EITHER NON GENUINE OR BOGUS. THE HONBLE TRIBUNAL UPHELD THE ORDER OF THE CIT(A ). IT WAS NOTED BY THE HONBLE TRIBUNAL THAT THE FINDINGS REGARDING TH E INQUIRIES CONDUCTED BY THE DCIT (INV.), GURGAON REGARDING THE NATURE OF TRANSACTION OF PURCHASE AND SALE OF SHARES THROUGH THE BROKER SH. S.S. MEHTA ENABLED THE AO TO HOLD THE CAPITAL GAINS AS B OGUS. HOWEVER, THIS INFORMATION WAS NOT COMMUNICATED TO THE ASSE SSEE AND THE INCOME FROM SALE OF SHARES COULD NOT BE SAID TO HAV E BEEN FILED AFTER DETECTION OF BOGUS CAPITAL GAIN BY THE AO. THE HON BLE TRIBUNAL HELD THAT EVEN IF IT WERE ASSUMED THAT AT THE TIME OF FI LING OF REVISED RETURN, ITA NO.07(ASR)/2011 9 THE ASSESSEE WAS AWARE OF THE INVESTIGATIONS CARRI ED OUT BY THE DCIT (INV.) GURGAON, REGARDING TRANSACTION OF PURCHASE A ND SALE OF SHARES, YET THERE WAS NO EVIDENCE ON RECORD TO SUGGEST THA T IT WERE THE TRANSLATIONS OF THE ASSESSEE WHICH HAD BEEN FOUND T O BE BOGUS. THE HONBLE TRIBUNAL NOTED THAT IN THE ASSESSMENT PROC EEDINGS AND SUBSEQUENTLY PENALTY PROCEEDINGS, THE REVENUE HAD O NLY PLACED RELIANCE ON THE INQUIRIES CONDUCTED BY THE DCIT (IN V.), GURGAON, WHICH WAS BASED ON THE STATEMENTS OF CERTAIN SHARE BROKERS WHO HAD ALLEGED TO HAVE CONCEDED THAT CERTAIN TRANSACTIONS OF SALE AND PURCHASE OF SHARES THROUGH THEM WERE MERE ACCOMMODATION ENTR IES AND WERE NOT GENUINE, IT WAS NOTED BY THE TRIBUNAL THAT NEV ERTHELESS, NO MATERIAL OR EVIDENCE WAS EITHER BROUGHT ON RECORD BY THE REVENUE NOR HAD BEEN REFERRED TO BY THE I.T. AUTHORITIES AT ANY STAGE IN THE CASE TO SHOW THAT STATEMENTS OF THE BROKER PERTAIN TO THE SHARE DEALINGS DONE BY THE ASSESSEE. IT WAS HELD THAT MERELY BECAUSE IN COME HAD BEEN OFFERED BY THE ASSESSEE IN RESPONSE TO THE NOTICE U /S 148 IT COULD NOT BE IPSO FACTO INFERRED THAT PENAL PROVISIONS OF SEC TION 271(1)(C) WAS ATTRACTED. IT WAS HELD THAT IN ORDER TO APPLY PENAL PROVISIONS OF SECTION 271(1)(C), IT WAS TO BE NECESSARILY INFERRED THERE WAS POSITIVE ACT OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF SUCH INCOME. IT WAS HELD THAT IN THE INSTANT CASE THE DE PTT. HAD NOT DISCHARGED ITS BURDEN OF PROVING CONCEALMENT AND HA D RESTED ITS CONCLUSION SIMPLY ON THE ACT OF THE ASSESSEE OF HA VING OFFERED ADDITIONAL INCOME IN THE RETURN FILED IN RESPONSE T O NOTICE U/S 148. IT WAS HELD THAT THE ADDITIONAL INCOME SO OFFERED WAS DONE IN GOOD FAITH AND, THEREFORE, PENALTY U/S 271(1)(C) COULD NOT BE LEVIED. IT WAS HELD THAT THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. SURESH CHANDER MITTAL 251 ITR 9 (SC) SQUARELY COVER ED THE CONTROVERSY AT HAND. 4.6.2. ON FURTHER APPEAL, IT WAS CONTENDED BY THE REVENUE BEFORE THE HONBLE JURISDICTIONAL HIGH COURT THAT BY FILING TH E REVISED RETURN THE ASSESSEE OWNED THE AMOUNT IN QUESTION AS HIS INCOME AND THAT HE HAD CONCEALED THE SAID INCOME BY DELIBERATELY FURNISHIN G INACCURATE PARTICULARS OF THAT INCOME IN THE ORIGINAL RETURN. IT WAS HELD THAT THIS AMOUNTED TO ADMISSION OF THE ASSESSEE ITSELF THAT I T HAD EARLIER FURNISHED INACCURATE PARTICULARS OF INCOME AND ON I TS DETECTION BY THE DEPTT THE ASSESSEE OFFERED THE CONCEALED INCOME FOR TAX AFTER ISSUING THE NOTICE U/S 148 OF THE ACT. THE REVENUE FURTHER SUBMITTED THAT THE ASSESSEE HAD ACCEPTED THE ORDER OF ASSESSMENT PASSE D BY THE AO U/S ITA NO.07(ASR)/2011 10 143(3) OF THE ACT AND NO FURTHER APPEAL HAD BEEN F ILED BY IT AGAINST THE SAID ORDER. THE ASSESSEES CONTENTION THAT THE SURRENDER OF INCOME HAD BEEN MADE TO BUY PEACE OF KIND AND TO AVOID LIT IGATION WAS CONTENDED TO BE NOT BONA FIDE. THE HONBLE HIGH COU RT DID NOT FIND MERIT IN REVENUES APPEAL THEY NOTED THAT THE ASSES SEE HAD REVISED HIS RETURN OF INCOME SHOWING HIGHER INCOME PURSUAN T TO NOTICE U/S 148 IN WHICH A NOTE WAS SUBMITTED THAT HIGHER INCO ME WAS BEING OFFERED TO BUY PEACE OF MIND AND TO AVOID LITIGATIO N AND TO SAVE HIMSELF FROM ANY PENAL ACTION. THE SAID REVISED RET URN HAS BEEN REGULARISED. THE EXPLANATION GIVEN BY THE ASSESSEE WAS NEITHER REJECTED NOR HELD TO BE MALA FIDE. THEY NOTED THAT THE TRIBUNAL HAD RECORDED A PURE FINDING OF FACT TO THE EFFECT THAT THE REVENUE HAD NOT PLACED ON RECORD ANY MATERIAL OR EVIDENCE TO DISCHA RGE ITS BURDEN TO PROVING CONCEALMENT AND THAT THE DEPTT. SIMPLY RES TED ITS CONCLUSION ON THE ACT OF THE ASSESSEE OF HAVING OFFERED ADDITI ONAL INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE A CT. THEY UPHELD THE ORDER OF THE HONBLE TRIBUNAL. THUS, A MERE SURREND ER OF INCOME BY THE ASSESSEE WITHOUT ANY EVIDENCE PLACED ON RECORD BY THE REVENUE TO PROVE CONCEALMENT WILL NOT LEAD TO IMPOSITION OF PE NALTY FOR CONCEALMENT OF INCOME. 4.7. THE FACTS IN THE PRESENT CASE ARE SIMILAR TO T HE CASE OF CIT VS. RAJEEV GARG (SUPRA) IN AS MUCH AS NEITHER THE ADI N OR THE AO HAVE PLACED ON RECORD ANY MATERIAL EVIDENCE TO SHOW THAT THE ASSESSEE HAD INDEED RECEIVED HIGHER SALE CONSIDERATION THAN THAT DECLARED IN THE ORIGINAL RETURN OF INCOME. THE AO HAS, AS NOTED EAR LIER RSTED HIS CONCLUSION ON THE SURRENDER MADE BY THE ASSESSEE A ND ON THE FACT THAT IT WA MADE AFTER THE ASSESSEE WAS SUMMONED AND EXAM INED BY THE ADI. HOWEVER, NO OTHER MATERIAL HAD BEEN PLACED ON RECORD BY THE AO TO SHOW CONCEALMENT OF INCOME. IN LIGHT OF THE D ISCUSSION ABOVE AND BECAUSE THE AO HAS NOT PLACED ON RECORD ANY MAT ERIAL TO SHOW THAT THE ASSESSEE RECEIVED ADDITIONAL CONSIDERATION OF RS. 12 LACS ON SALE OF HIS PLOTS, I REJECT THE AOS CONTENTION THA T THE ASSESSEE HAD CONCEALED INCOME OF RS. 12 LACS IN RESPECT OF SALE CONSIDERATION OF LAND. THE PENALTY LEVIED U/S 271(1)(C) IN RESPECT O F THIS ALLEGED CONCEALMENT IS, THEREFORE, CANCELLED. 6.3. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES O F THE PRESENT CASE AS WELL AS THE FINDINGS GIVEN BY THE LD. FIRST APPELLA TE AUTHORITY AS REPRODUCED ITA NO.07(ASR)/2011 11 HEREINABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS DELETED THE PENALTY IN DISPUTE BY RES PECTFULLY FOLLOWING THE ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAJEEV GARG & OTHERS 313 ITR 256 (P&H). THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. ACCORDINGLY, WE UPHOLD THE SAM E BY DISMISSING THE APPEAL FILED BY THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3RD O CTOBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3RD OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. VIJAY SOOD, HOSHIARPUR. 2. THE DCIT, HOSHIARPUR CIRCLE, 3. THE CIT(A) JLR 4. THE CIT JLR 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR. ITA NO.07(ASR)/2011 12