M/S PLATINUM HORAZINE PVT. LTD., Indore V. THE ACIT CIRCLE 3(1), Indore

ITA 713/IND/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2280 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Search and seizure; Opportunity of being heard; Question of law; Reasonable cause; Agreed addition; Accommodation entries; Condonation of delay; Revised return
• Section: 80HHC; 2

Judgement Text

M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 1 OF 25 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE , '#$$%&' &( BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER M/S. PLATINUM HORAZINE PVT. LTD. E-50, MIG COLONY INDORE V. ACIT 3(1) INDORE / APPELLANT / RESPONDENT $ $ $/ PAN: AAECP 4915 A / APPELLANT BY SHRI SUBHASH CHAND JAIN C.A. / RESPONDENT BY SHRI MOHD. JAVED, SR. D.R. / DATE OF HEARING 03-05-2017 / DATE OF PRONOUNCEMENT 16-05-2017 / O R D E R PER O.P. MEENA, ACCOUNTANT MEMBER. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I I, INDORE [HEREINAFTER REFERRED TO AS THE CIT (A)] DAT ED 31.12.2015. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2009-10. WHICH AROSE OUT OF THE PENALTY ORDER PASSE D $ $ $/ I.T.A. NO.713/IND/2016 !' ' / ASSESSMENT YEAR: 2009-10 M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 2 OF 25 UNDER SECTION 271(1) (C) OF INCOME TAX ACT, 1961(HE REIN AFTER REFERRED TO AS THE ACT) BY THE ACIT 1(2) BH OPAL DTD. 27.06.2012 (HEREINAFTER REFERRED AS THE AO). 2. AT THE OUTSET, THE REGISTRY POINTED OUT THAT THERE IS DELAY OF 106 DAYS IN FILING OF APPEAL. THE LD. A.R. SUBMI TTED THAT THE ORDER OF THE CIT(A) WAS SERVED UPON SHRI BANWA RILAL PARSAI, ACCOUNTANT OF THE ASSESSEE COMPANY PROBABL Y ON 15.01.2016. SHRI BANWARILAL PARSAI HAS KEPT THE SA ID ORDER IN THE INCOME-TAX FILE OF 2009-10 AND SAME FILE MIS PLACED DURING THE MONTH OF JANUARY 2016 BY VIRTUE OF SH IFTING OF OFFICE RECORD AT ONE PLACE TO ANOTHER DUE TO RENOVA TION WORK OF THE COMPANY WAS GOING ON. AFTER COMPLETION OF R ENOVATION WORK, THE FILE WAS TRACED OUT ON 28 TH JUNE 2016 AND THE DIRECTOR OF THE COMPANY CONTACTED THE COUNSEL FOR P REPARING THE APPEAL. THEREFORE, IT WAS CONTENDED THAT THE DE LAY WAS CAUSED DUE TO NEGLIGENCE OF THE ACCOUNTANT SHRI BAN WARILAL PARSAI . AN AFFIDAVIT TO THAT EFFECT IS ALSO FILED FROM SHRI BANWARILAL AS WELL AS SHRI PRAMATHU CHOKSEY, DIRECT OR OF THE COMPANY. THE LD. A.R. ALSO RELIED ON IN THE CASE O F COLLECTOR, LAND ACQUISITION, V. MST. KATIJI & OF RS.[1987] 16 7 ITR 471 (SC)/ [1987] 2SCC 107 , AUTO CENTER V. STATE OF UT TAR M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 3 OF 25 PRADESH [2005] 278 ITR 0291 (ALL) / 148 TAXMAN 0573 (ALL), DR. V. V. DEVSTHALE V. ITO [1995] 214 ITR 0315 (MP )/ [1996] 84 TAXMAN 0143 (MP) IN SUPPORT OF HIS CLAIM THAT DE LAY WAS NOT INTENTIONAL AND THERE WAS REASONABLE CAUSE FOR THE SAME. 3. THE LEARNED SR. D.R., OPPOSED THE ASSESSEES PLEA F OR CONDONATION OF DELAY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS FA R AS THE ISSUE OF CONDONATION OF DELAY IS CONCERNED, IT IS S ETTLED LAW THAT THE COURT QUASI-JUDICIAL BODIES ARE EMPOWERED TO CONDONE THE DELAY IF THE LITIGANT SATISFIES THE COU RT THAT THERE WERE SUFFICIENT REASONS FOR THE AVAILING THE REMEDY AFTER THE EXPIRY OF THE LIMITATION. SUCH A REASONING SHOULD B E TO THE SATISFACTION OF THE COURT. THE EXPRESSION SUFFICIEN T CAUSE OR REASON AS PROVIDED IN SUBSECTION (5) OF SECTION 253 , SUBSECTION (3) OF SECTION 249 OF THE INCOME TAX ACT 1961 USED IN IDENTICAL TERMS IN THE LIMITATION ACT AND T HE CPC. SUCH EXPRESSION HAS ALSO BEEN USED UNDER SECTION 4 OF THE INCOME TAX ACT 1961 SUCH AS SECTIONS 273, 274 ETC. THE EXPRESSION SUFFICIENT CAUSE WITHIN THE MEANING O F SECTION 5 OF LIMITATION ACT AS WELL AS A SIMILAR OTHER PROV ISIONS AND M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 4 OF 25 THE AMBIT OF EXERCISE OF POWERS THEREUNDER HAVE BEE N SUBJECT MATTER OF CONSIDERATION BEFORE THE HONOURABLE APEX COURT ON VARIOUS OCCASIONS. IN THE CASE OF THE STATE OF WEST BENGAL VS. ADMINISTRATOR , HOWRAH MUNICIPALITY, AIR 1972 SC 74 9, THE HON`BLE THE SUPREME COURT, WHILE CONSIDERING THE SC OPE OF THE EXPRESSION SUFFICIENT CAUSE FOR CONDONATION OF DELAY, HAS HELD THAT THE SAID EXPRESSION SHOULD RECEIVE A LIBE RAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDE IS IMPUT ABLE TO THE PARTY. IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHN AMURTHY AIR 1998SC3222, THERE WAS A DELAY OF 883 DAYS IN FI LING OF APPLICATION IN SETTING-ASIDE THE EX-PARTE DECREE FOR WHICH APPLICATION FOR CONDONATION OF DELAY WAS FILED. THE TRIAL COURT HAVING FOUND THAT SUFFICIENT CAUSE WAS MADE OUT FOR CONDONATION OF DELAY CONDONED THE DELAY. THE HON`BL E SUPREME COURT WHILE RESTORING THE ORDER OF THE TRIA L COURT HAS OF OBSERVED IN PARAGRAPHS 8, 9 AND 10 AS UNDER: 8. THE APPELLANTS CONDUCT DOES NOT ON THE WHOLE WARRANT TO CASTIGATE HIM AS AN IRRESPONSIBLE LITIGA NT. WE ARE HE DID IN DEFENDING THE SUIT WAS NOT VERY MUCH FAR FROM WHAT A LITIGANT WOULD BROADLY DO. OF COURSE, I T MAY BE SAID THAT HE SHOULD HAVE BEEN MORE VIGILANT BY V ISITING M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 5 OF 25 HIS ADVOCATE AT SHORT INTERVALS TO CHECK UP THE PRO GRESS OF THE LITIGATION. BUT DURING THESE DAYS WHEN EVERY BODY IS FULLY OCCUPIED WITH HIS AVOCATION OF LIFE, AN OM ISSION TO ADOPT SUCH EXTRA VIGILANCE NEED NOT BE USED AS A G ROUND TO DEPICT HIM AS LITIGANT NOT AWARE OF HIS RESPON SIBILITIES, AND TO VISIT HIM WITH THE DRASTIC CONSEQUENCES. 9. IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A M ATTER OF DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATIO N ACT DOES NOT SAY THAT SUCH A DISCRETION CAN BE EXERCIS ED ONLY IF THE DELAY IS WITHIN A CERTAIN LIMIT. LENGTH OF D ELAY IS NO MATTER, AND ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERION. SOMETIMES DELAY OF THE SHORTEST THE RAN GE MAY BE UN-CONDONABLE DUE TO WANT OF ACCEPTABLE EXPLANAT ION, WHEREAS IN CERTAIN OTHER CASES, DELAY OF VERY LONG -RANGE CAN BE CONDONED AS THE EXPLANATION THEREOF IS SATISFACTORY. ONCE THE COURT ACCEPTS THE EXPLANATIO N AS SUFFICIENT, IT IS THE RESULT OF POSITIVE EXERCISE O F DISCRETION AND NORMALLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING, MUCH LESS IN REVISIONAL JURISDICTION , UNL ESS THE EXERCISE OF DISCRETION WAS WHOLLY ON UNTENABLE GROU NDS OR ARBITRARY OR PERVERSE. BUT IT IS A DIFFERENT MAT TER WHEN THE FIRST COURT REFUSES TO CONDONE THE DELAY. IN SU CH CASES, THE SUPERIOR COURT WOULD BE FREE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRESH AND IN ITS OWN FI NDING EVEN UNTRAMMELED BY THE CONCLUSION OF THE LOWER COU RT. 10 ** THE PRIMARY FUNCTION OF A COURT TO ADJUDICATE THE D ISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 6 OF 25 THIS TIME-LIMIT FIXED FOR THE APPROACHING THE COURT IN DIFFERENT SITUATION IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM IN TO A GOOD CAUSE . N. BALAKRISHNAN VS. KRISHNAMURTHY (1998) 7 SC 124 ( SC) WHEREIN IT WAS OBSERVED THAT CONDONATION OF DELAY I S MATTER OF DISCRETION OF THE COURT. SECTION 5 OF LI MITATION ACT SAYS THAT DISCRETION CAN BE EXERCISED ONLY IF T HE DELAY IS WITHIN REASONABLE LIMIT. LENGTH OF DELAY IS NO M ATTER; ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITER ION. .. THERE IS NO PRESUMPTION THAT DELAY IS APPROACHING T HE COURT IS ALWAYS DELIBERATE. THE WORDS SUFFICIENT C AUSE UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIV E A LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE . THE HON`BLE SUPREME COURT FURTHER OBSERVED THAT RU LES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS O F THE PARTIES. THEY ARE MEANT TO SEE THAT THE PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THE REMEDY PRO MPTLY. THE HON`BLE APEX COURT FURTHER OBSERVED THAT THE RE FUSAL TO CONDONE THE DELAY WOULD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPT ION THAT THE DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THE HON`BLE SUPREME COURT IN SLP CIVIL NO. 12980 OF 1986, DECIDED ON 19 TH FEB. 1987, IN THE CASE OF COLLECTOR, LAND ACQUISITION, V. MST. KATIJI & OF RS .[1987] 167 ITR 471 (SC)/ [1987] / 2SCC 107 HAS LAID DOWN THE FOLLOWING GUIDELINES: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT B Y LODGING AN APPELLATE. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 7 OF 25 2. REFUSING TO CONDONE THE DELAY CAN RESULT IN MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAN CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES SALE 3. EVERYDAY DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE, WHY NOT EVERY HOURS DELAY, EVERY SECONDS DELAY. THE DOCTRINE MUST APPLIED AN RATIONALE COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVE TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE THE CAUSE OF HER NONDELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT THE LADY OCCASIONS HAD DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALAFIDES . A LITIGANT DOES NOT EXTENT TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARYS IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 8 OF 25 5. IN THE LIGHT OF ABOVE CITED JUDGEMENTS, IF WE EXAMI NED THE FACTS OF THE PRESENT CASE, IT IS APPARENT THAT THE ASSESSEE HAS BEEN VIGILANT IN ITS APPROACH AND HAS NOT NEGLE CTED THE INCOME TAX PROCEEDINGS. THE HON`BLE SUPREME COURT I N THE CASE OF N. BALAKRISHNAN (SUPRA) HAS OBSERVED THAT T HE LENGTH OF THE DELAY IS IMMATERIAL. THE ACCEPTABILITY OF TH E EXPLANATION IS THE ONLY CRITERIA FOR CONDONING THE DELAY. IN A GIVEN CASE, A DELAY OF THE SHORTEST PERIOD MAY BE U N- CONDONABLE DUE TO UNACCEPTABLE EXPLANATION, WHEREAS IN CERTAIN OTHER CASES, DELAY OF A LONG PERIOD CAN BE CONDONED, IF THE EXPLANATION IS SATISFACTORY. IN EVERY CASE O F DELAY, THERE MIGHT BE SOME OMISSIONS OF NEGLIGENCE ON THE PART O F THE ASSESSEE, AND THEN SUCH OMISSIONS/NEGLIGENCE HAS TO BE WEIGHED IN THE LIGHT OF EXISTING CIRCUMSTANCES OF E ACH CASE. IT WOULD THE NEGLIGENCE OF COMMISSION IF IT IS A BY PR ODUCT OF A DELIBERATE ATTEMPT WITH MALA-FIDE INTENTION FOR DEL AY, THE PROCESS OF THE LITIGATION WHICH COULD GIVE SOME BEN EFIT TO THE LITIGANT, THEN PROBABLY PROCESS OF LITIGATION WHICH WOULD VIEW SOME BENEFIT WITH THE LITIGANT THEN PROBABLY THAT D ELAY WOULD NOT DESERVED TO BE CONDONED. HOWEVER, IF NO MALA-FI DE CAN BE ATTRIBUTED TO THE DELAY, THAT DELAY WILL BE CONDONA BLE. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 9 OF 25 THEREFORE, ON THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS BEEN ABLE TO DEMONSTRATE SUFFICIENT REASONS IN THE SHAPE OF HAVI NG MISPLACED THE INCOME-TAX PAPERS BY HIS ACCOUNTANT D UE INADVERTENT MISTAKE ON ACCOUNT OF RENOVATION OF OFF ICE WAS BEING CARRIED ON FOR FILING AN APPEAL BEFORE THE TR IBUNAL. THEREFORE, WE DEEM IT FIT TO CONDONE THE DELAY OF 1 06 DAYS AND ADMIT THE APPEAL AND ALLOW THE APPEAL PROCEEDED WIT H FOR ADJUDICATION. 6. NOW WE SHALL DEAL WITH REGULAR GROUNDS OF APPEAL OF THE ASSESSEE WHICH READS AS US UNDER:- 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A)-II INDORE HAS ERRED IN CONFIRMIN G PENALTY OF RS. 6,49,630/- LEVIED BY THE AO . 2.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) INDORE HAS ERRED IN CONFIRMING P ENALTY AFTER WRONGLY APPLYING TO THE JUDGEMENT WHOSE FACTS ENTIRE DIFFERENT FROM THE APPELLANT`S CASE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) INDORE HAS ERRED IN CONFIRMING T O THE PENALTY WHICH WAS LEVIED DUE TO AGREED ADDITION TO INCOME AFTER OFFERING LOSS ON SHARE OF RS. 21,02,35 3/- TO PURCHASE PEACE OF MIND OR FOR OTHER SIMILAR REASON. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 10 OF 25 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE ORDER OF PENALTY IS INVALID AND UNL AWFUL BECAUSE MAKING SUCH ORDER , THE ASSESSEE HAS NOT BE EN HEARD NOR HAS BEEN GIVEN A REASONABLE AND MEANINGFU L OPPORTUNITY OF BEING HEARD AS CONTEMPLATED U/S. 274 (1). HENCE, THE ORDER BE CANCELLED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, IT BE HELD THAT NEITHER THE ASSESSEE HA S CONCEALED THE PARTICULARS OF ITS INCOME NOR FURNISH ED INACCURATE PARTICULARS OF SUCH INCOME AND THEREFOR E, THE LEVY OF PENALTY IS UNJUSTIFIED AND UNLAWFUL AND , THEREFORE, BE CANCELLED. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED CIT(A) IN H IS ORDER ARE WHOLLY WRONG AND INJUDICIOUS AND ARE OPPOSED TO FACTS AND , THEREFORE, , THERE IS NO JUSTIFICATION IN SUSTAINING THE LEVY OF PENALTY HOLDING THAT THE ASS ESSEE HAS CONCEALED INCOME. 7. SINCE THE ASSESSEE HAS TAKEN AS MANY AS SIX GROUNDS OF APPEAL, HOWEVER IN SUBSTANCE , THESE RELATES TO CON FIRMING OF PENALTY OF RS. 6,49,630/- LEVIED UNDER SECTION 271( 1)(C) OF THE ACT. ERGO, THESE ARE BEING CONSIDERED AND DISPOSED- OF TOGETHER. 8. SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORDERS OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS A PRIVATE LIMI TED M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 11 OF 25 COMPANY ENGAGED IN PROVIDING CONSULTANCY IN THE FIE LD OF MARKETING, PRODUCT RANGE , MANAGEMENT CONSULTANCY M ARKET SURVEY AND BUSINESS PROCUREMENT. THE ASSESSEE HAS F ILED RETURN OF INCOME ON 30-09-2009 DECLARING TOTAL INCO ME OF RS. 68,47,260/-. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, IT WAS NOTICED THAT THE ASSESSEE HAS SHOWN LOSS OF RS. 21,02,353/- ON PURCHASE AND SALE OF SHARES EFFECTED THROUGH M/S. MAHASAGAR SECURITIES PVT. LTD. AN INFORMATIO N RECEIVED FROM ADDL. DIT (INV) MUMBAI, IN THE CASE OF M/S. SW IFT INTERMEDIA CONVERGENCE LTD.; THAT THE SAID COMPANY M/S. MAHASAGAR SECURITIES PVT. LTD WAS FLOATED BY MR. M UKESH CHOUKSE, CA, FOR ARRANGING PROFIT/LOSS, CAPITAL GAI NS/LOSS ETC. ON BEING ASKED THE TRANSACTION WITH M/S. MAHASAGAR SECURITIES PVT. LTD., THE ASSESSEE FILED ITS REPLY VIDE LETTER DATED 13.12.2011 STATING THAT THEIR TRANSACTION WIT H M/S. MAHASAGAR SECURITIES PVT. LTD ARE BONAFIDE AND AS PER SEBI, RULES AND THEY DO NOT KNOW ANYTHING ABOUT TRUE NATU RE OF ACTIVITIES DONE BY M/S. MAHASAGAR SECURITIES PVT. LTD., AND KNOWING ABOUT INVESTIGATION DONE BY THE INCOME-TAX DEPARTMENT. THEREFORE, THE COMPANY DO NOT WANT TO I NVOLVE IN LITIGATION. THEREFORE, TO BUY PEACE OF MIND, THE Y OFFERED THIS M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 12 OF 25 LOSS OF RS. 21,02,353/- FOR TAXATION PURPOSE AND AS SURE TO PAY DUE TAXES THEREON WITH A REQUEST THAT NO PENALT Y UNDER SECTION 271(1)(C) OR ANY OTHER PROVISION OF INCOME TAX ACT,1961 WILL BE IMPOSED IN THE MATTER. HOWEVER, TH E AO FOUND, THAT EXCEPT THE COPY OF SAUDA SUMMARY REPORT FROM NSE AND OPTIONS OF ANGLE CAPITAL DEBT MARKET NO DET AILS OF PURCHASE AND SALE OF SHARE DONE THROUGH M/S. MAHASA GAR SECURITIES PVT. LTD WAS FURNISHED. THE COPY OF ACC OUNT WITH BILLS OF PURCHASE AND SALE OF SHARES WITH M/S. MAHA SAGAR SECURITIES PVT. LTD WAS FURNISHED, BUT WHO HAS SIG NED THE CONFIRMATION AND NO PAN WAS FURNISHED. IT WAS FURTH ER NOTICED THAT SHRI MUKESH CHOUKSE CA, IN HIS STATEM ENT RECORDED DURING THE COURSE OF SEARCH AND SEIZURE OP ERATION STATED THAT IF A PARTY WANTS TO CARRY OUT TO A BIG TRANSACTION TO CLAIM BOGUS PROFITS THEY DEPOSIT THE AMOUNT IN CASH OR CHEQUES IN OUR ACCOUNT AND THEY G ET THEIR CHEQUES CLEARED. WE GET AN INTIMATION FROM FRANCHISES AGENTS REGARDING THE AMOUNTS A BOGUS PRO FITS WHICH PARTY WANTS TO GENERATE 9. IN THE LIGHT OF ABOVE FACTS, THE AO INITIATED PENAL TY PROCEEDING UNDER SECTION 271(1) (C) OF WHICH THE AS SESSEE M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 13 OF 25 COMPANY FILED ITS REPLY. THE AO NOTED THAT THE EXPL ANATION OF THE ASSESSEE THAT THEY WERE NOT AWARE OF THE FACTS ABOUT ACCOMMODATION TRANSACTION DONE BY M/S. MAHASAGAR SECURITIES PVT. LTD CANNOT BE BOUGHT FOR SIMPLE RE ASON THAT THE ACT OF PROVIDING / TAKING ACCOMMODATION ENTRIES INVOLVES CREATION/ADJUSTMENT OF SEVERAL FORGED DOCUMENTS. TH IS REQUIRES ACTIVE INVOLVEMENT OF THE PERSON TAKING ACCOMMODATION ENTRIES. THEREFORE, THIS ARGUMENT OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE. MOREOVER, THE AS SESSEE HAS FAILED TO FURNISH ANY RELEVANT SUPPORTING EVIDE NCE DURING THE ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE AO CON CLUDED THAT THE ASSESSEE COMPANY DID NOT DISCLOSE TRUE AND CORRECT INCOME IN ITS RETURN OF INCOME AND IT WAS DUE TO SC RUTINY ASSESSMENT IN WHICH IT WAS FOUND THAT THE ASSESSEE HAS CONCEALED THE TRUE INCOME. ACCORDINGLY, THE AO LEVI ED PENALTY OF RS. 6,49,630/- BEING 100% OF TAX SOUGHT TO BE EV ADED. 10. BEING, AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT (A). THE CIT (A) RELYING ON THE DECISION I N THE CASE OF MAK DATA P. LTD. VS. CIT [2013] 358 ITR 593(SC) OBS ERVED THAT PENALTY UNDER SECTION 271(1)(C) CANNOT BE AVOI DED SIMPLY FOR THE REASON THAT THE AMOUNT HAS BEEN SURRENDERED TO BUY M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 14 OF 25 PEACE OF MIND. ACCORDING TO LD. CIT (A), THE FACTS OF THE CASE ARE SIMILAR TO THE CASE OF MAK DATA P. LTD. VS. CIT [2013] 358 ITR 593(SC). IN THIS CASE ALSO THE ASSESSEE COMPANY HAS SURRENDER LOSS ON ACCOUNT OF SHARE TRANSACTION ONLY , WHICH WAS FOUND AFTER SEARCH AND SEIZURE OPERATION CARRIE D OUT IN SOME OTHER CASE. WHEN DETAILED ENQUIRIES CONDUCTED BY THE INVESTIGATION WING AND THE AO, THE APPELLANT CAME O UT WITH THE PROPOSAL OF SETTLEMENT AS THE APPELLANT WAS UNA BLE TO PROVE THE GENUINE OF SHARE TRANSACTION AND TO PROVE THAT INCOME WAS NOT CONCEALED INCOME. MOREOVER, THE SURR ENDER IN THIS CASE IS NOT VOLUNTARY. HAD THERE BEEN NO IN VESTIGATION OR ENQUIRY UNDER RELEVANT PROVISION OF THE ACT; THE APPELLANT WOULD NOT HAVE COME OUT WITH THE SURRENDER OF THE A MOUNT OF LOSS UNDER REFERENCE. HAD THERE BEEN BONAFIDE ON THE PART OF THE APPELLANT, THESE AMOUNTS WOULD HAVE BEEN INC LUDED IN THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YE AR. THEREFORE, CONSIDERING THE DIRECT DECISION OF HON`B LE SUPREME COURT ON THE ISSUE THE LD. CIT (A) HAD CONFIRMED TH E LEVY OF PENALTY UNDER SECTION 271(1) (C) OF THE ACT. 11. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE, SUB MITTED M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 15 OF 25 THAT THE COMPANY FILED CONFIRMED COPY OF ACCOUNT OF M/S. MAHASAGAR SECURITIES PVT. LTD WITH THEIR PAN: AABC R 1593B DURING ASSESSMENT PROCEEDINGS (REFER PAPER BOOK PAG E NO - 108). THE ASSESSEE HAD PAID ALL PAYMENT THROUGH ACC OUNT PAYEE CHEQUES. THE ASSESSEE IS ALSO INVOLVED IN SHA RE TRADING AND DONE THEIR BUSINESS WITH M/S. ANGLES BROKING LT D. THE INTENTION OF THE ASSESSEE COMPANY WAS TO TRADE IN S HORT TERM. THE FINAL PAYMENT DUE TO M/S. MAHASAGAR SECURITIES PVT. LTD DELAYED DUE TO SOME DISPUTE WITH THEM. HOWEVER, THE ASSESSEE IS INNOCENT ABOUT THE TRANSACTION DONE BY M/S. MAHASAGAR SECURITIES PVT. LTD. THEREFORE, TO BUY P EACE OF MIND, THE ASSESSEE SURRENDERED THE LOSS OF RS. 21,0 2,353/- ON DELIVERY BASED SHARE TRANSACTION, THOUGH GENUINE , FOR TAXATION PURPOSES, WITH A REQUEST FOR NOT LEVY ANY PENALTY UNDER SECTION 271(1)(C) OF THE ACT. HOWEVER, THE AO LEVIED PENALTY IGNORING THE SUBMISSIONS OF THE ASSESSEE. T HE LEARNED COUNSEL HAS PLACED RELIANCE ON NUMBER OF CASE LAWS AS PER HIS WRITTEN SUBMISSIONS, WHICH ARE ALLOWABLE ON REC ORD. THE LEARNED COUNSEL FURTHER CLAIMED THAT DECISION OF MA K DATA (P.) LTD. VS. CIT [2013] 358 ITR 593(SC) AS RELIED BY THE LD. M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 16 OF 25 CIT (A) IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. 12. ON THE OTHER HAND, THE LD. D.R. VEHEMENTLY SUPPORTE D THE ORDER OF LOWER AUTHORITIES AND ARGUED THAT THE DISCLOSURE MADE BY THE ASSESSEE IN THE RETURN WAS NOT VOLUNTAR Y. IT WAS ADMITTED AFTER THE DEEP INVESTIGATION CARRIED ON BY THE INVESTIGATION WING OF MUMBAI IN THE CASE OF M/S. MA HASAGAR SECURITIES PVT. LTD. THE LD. D.R. FURTHER CITED D ECISION IN THE CASE OF AJIT B. ZOTA VS. ACIT (2010) 40 SOT 543 (MU M) TO CONTEND THAT EXPLANATION 1 TO SECTION 271(1) (C) CO ULD BE INVOKED WHERE NO BONAFIDE EXPLANATION IS GIVEN BY THE ASSESSEE FOR NOT DISCLOSING THE CLAIM IN ORIGINAL R ETURN OF INCOME. 13. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERI AL ON RECORD AND GONE THROUGH THE ASSESSMENT ORDER AND FIND THAT THE ASSESSEE HAS NOT FILED ANY REVISED RETURN OF INCOME DISCLOSING THE BOGUS LOSS ON SHARE TRANSACTION DONE THROUGH M/S. MAHASAGAR SECURITIES PVT. LTD. THE DEPARTMENT HAS COME TO KNOW THIS TRANSACTION ONLY AFTER THE INVEST IGATION WING OF MUMBAI HAS CARRIED OUT INVESTIGATION IN THE CASE OF M/S. SWIFT INTERMEDIA CONVERGENCE LTD. AND ITS DIRE CTOR SHRI M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 17 OF 25 MUKESH CHOUKSE; CA, HAS CATEGORICALLY ADMITTED THAT HE HAS PROVIDED LOSS ENTRIES THROUGH SALE AND PURCHASE OF SHARES AND TRANSACTION DONE THROUGH MAHASAGAR SECURITIES PVT. LTD., WHICH WERE NOT GENUINE. THUS, THE TRANSACTION OF BUYING BOGUS LOSS IN SHARES BY THE ASSESSEE IS VERY MUCH A MOUNTS TO FURNISHING OF INACCURATE PARTICULARS OF INCOME A S WELL AS CONCEALING THE PARTICULARS OF INCOME. WE FURTHER FI ND THAT THE CLAIM OF LOSS WAS PATENTLY WRONG AND, IT WAS MADE W ITH CONSCIOUS MIND AND WITH A DELIBERATE ATTEMPT TO EVA DE DUE TAXES BY REDUCING TAX LIABILITY. IT WAS ONLY WHEN T HE TRANSACTION OF BUYING SUCH ARTIFICIAL LOSS GENERATE D BY MANIPULATING TRANSACTION WAS UNEARTHED BY THE INCOM E-TAX DEPARTMENT. THE ASSESSEE HAS COME OUT WITH WITHDRAW ING SUCH LOSS DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. THEREFORE, THE DISCLOSURE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, CANNOT BE, CONSIDERED AS VO LUNTARY. NOR IT COULD BE SAID THAT THE CLAIM OF LOSS WAS BON AFIDE ONE. THEREFORE, IN VIEW OF THESE CIRCUMSTANCES, THE CLAI M OF THE ASSESSEE CANNOT BE SAID AS BONAFIDE MORE PARTICULAR LY WHEN DISCLOSURE WAS NOT VOLUNTARY NOR IT WAS FILED BY RE VISING THE RETURN OF INCOME. THEREFORE, WE ARE OF THE CONSIDER ED VIEW M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 18 OF 25 THAT THE ASSESSEE HAS CONCEALED THE INCOME CHARGEAB LE TO TAX FOR ASSESSMENT YEAR UNDER CONSIDERATION ATTRACTING THE PENALTY U/S 271(1) (C) OF THE ACT. THEREFORE, ACCOR DING TO US, THERE WAS CONSCIOUS AND DELIBERATE ATTEMPT ON THE P ART OF THE ASSESSEE TO EVADE TAX BY CLAIMING FALSE AND BOGUS L OSS IN SHARES WITHOUT A VIEW TO AVOID PAYMENT OF DUE TAXES . HAD THERE BEEN NO SEARCH AND SEIZURE OPERATION IN THE C ASE OF M/S. SWIFT INTERMEDIA CONVERGENCE AND INVESTIGATION IN THE CASE OF M/S. MAHASAGAR SECURITIES PVT. LTD, THE DE PARTMENT COULD HAVE LOSE THE DUE REVENUE. 14. WE FIND THAT EXPLANATION-I TO SECTION 271(L) (C) O F THE ACT PROVIDES THAT THE PENALTY WOULD BE DEEMED TO AT TRACT WHERE IN RESPECT OF A FACT MATERIAL TO THE COMPUTAT ION OF INCOME EITHER NO EXPLANATION IS OFFERED, OR EXPLANA TION OFFERED IS FOUND TO BE FALSE. THE ASSESSEE, ALTHOUGH, HAS SUBMITTED AN EXPLANATION CLAIMING THAT THEY WERE IGNORANT ABO UT THE TRANSACTION CARRIED ON BY THE M/S. MAHASAGAR SECURI TIES PVT. LTD. AND THEY ONLY CARRIED ON LEGITIMATE TRANSACTIO N THROUGH THEM, BUT THIS EXPLANATION IS NOT FOUND TO BE BONAF IDE AND IT WAS FOUND TO BE FALSE AS IT WAS NOT IN ACCORDANCE W ITH LAW AND ACCORDINGLY, ITS CASE IS COVERED BY CLAUSE (A) OF M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 19 OF 25 EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT. FURT HER, CLAUSE (B) OF EXPLANATION 1 TO SECTION 271(1)(C)OF THE ACT , PROVIDES THAT WHERE THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE ITS EXPLANATION AND FAILS TO PROVE THAT SUCH EXPLANATIO N IS BONAFIDE AND ALL THE FACTS RELATING TO THE SAME HAV E BEEN DISCLOSED, PENALTY IS LEVIABLE. WE FIND THAT THE AS SESSEE DID MAKE DISCLOSURE OF LOSS AND OFFERED IT TAXATION DUR ING ASSESSMENT PROCEEDING, BUT THAT WAS NOT VOLUNTARY A S IT WAS OUTCOME OF INVESTIGATION CARRIED ON BY INVESTIGATIO N WING OF REVENUE. THEREFORE, THE ASSESSEE`S EXPLANATION WAS NOT FOUND TO BE ACCEPTABLE BY THE AO, AND THUS IT FOLLO WS THAT THE ASSESSEE WAS UNABLE TO SUBSTANTIATE HIS EXPLANATION BY PROVIDING VARIOUS EVIDENCES AND JUDICIAL OPINIONS. THE LD. CIT (A) HAS PLACED RELIANCE ON THE DECISION OF HON` BLE SUPREME COURT IN THE CASE OF MAK DATA (P.) LTD. VS. CIT (2013) 358 ITR 593 (SC) WHEREIN THE HON`BLE SUPREME COURT HAS HELD THAT THE ASSESSING OFFICER SHOULD NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE SUCH AS VOLUNTARY DISCLO SURE BUY PEACE AVOID LITIGATION AMICABLE SETTLEMENT TO EXPLAIN AWAY ITS CONDUCT. THE QUESTION IS WHETHER THE ASSE SSEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICUL ARS OF M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 20 OF 25 INCOME CONCEALMENT OR FURNISHING OF INACCURATE PART ICULARS OF INCOME. 15. IN VIEW OF THE MANDATE OF HON`BLE SUPREME COURT IN ABOVE CASE, WE ARE, THEREFORE, OF THE CONSIDERED OP INION THAT THE CASE OF THE ASSESSEE, IS COVERED BY EXPLANATION 1 TO SECTION 271(1) (C) OF THE ACT. BASED ON THE FACTS O F THE CASE, WE NOTE THAT THE ASSESSEE HAD NOT MADE FULL AND TRU E WITH NECESSARY FACTS IN THE RETURN OF INCOME AND THEREFO RE FURNISHED INACCURATE PARTICULARS OF INCOME AND CONC EALED THE MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. THEREF ORE, WE HOLD THAT THE AO HAS RIGHTLY LEVIED PENALTY UNDER S ECTION 271(1) (C) OF THE ACT AND SAME HAS BEEN RIGHTLY SUS TAINED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). ACCORDING LY, THE ACTION OF THE AO AND LD. CIT (A) IS UPHELD. 16. THE CONTROVERSY THAT PENALTY PROCEEDING ARE QUASI CRIMINAL IN NATURE OR NOT, HAS BEEN BROUGHT TO AN E ND BY THE JUDGMENT OF THREE MEMBER BENCH, OF HON`BLE SUPREME COURT IN THE CASE OF M/S. DHARMENDRA TEXTILE PROCESSORS A ND OTHERS 166 TAXMAN 65 (SC), WHEREIN HONBLE SUPREME COURT H AS SAID THAT LIABILITY IMPOSED UNDER SECTION 271(1) (C ) IS PURELY A CIVIL LIABILITY AND THERE IS NO REQUIREMENT TO ES TABLISH MEN- M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 21 OF 25 S-REA BEFORE LEVYING PENALTY. WE FURTHER NOTE THAT THE HON`BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUM AR CHAURASIA V CIT (288 ITR 329(ALL) HAS HELD THAT THE FINDING RECORDED IN QUANTUM OF APPEAL ARE RELEVANT FOR IMPO SING PENALTY. FURTHER RELIANCE IS PLACED ON CIT V CHEMI EQUIPMENT LTD (2004) 265 ITR 265 (BOM) WHEREIN THE HON`BLE HI GH COURT HAS HELD THAT WHERE ASSESSEE HAVING FULLY ENHANCED LOSSES BY NOT OFFERING AN AMOUNT TO TAX AND BY CLAIMING WRONG DEDUCTION UNDER SECTION 80HHC AND OFFERED THESE AM OUNTS TO TAX ONLY IN RESPONSE TO NOTICE UNDER SECTION, PE NALTY IS LIABLE. THESE DECISIONS SUPPORTS THE CASE OF THE AO . 17. FURTHER RELIANCE IS PLACED ON THE DECISION OF HON `BLE SUPREME COURT IN THE CASE OF MAK DATA (P.) LTD. VS . CIT (2013) 358 ITR 593 (SC) WHEREIN THE HON`BLE SUPREME COURT HAS OBSERVED THAT THE ASSESSING OFFICER SHOULD NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE SUCH AS VOLUNTARY DISCLOSURE BUY PEACE AVOID LITIGATION AMICABL E SETTLEMENT TO EXPLAIN AWAY ITS CONDUCT. THE QUEST ION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FO R CONCEALMENT OF PARTICULARS OF INCOME CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THIS CASE THE DISCLOSURE M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 22 OF 25 OF LOSS DURING THE ASSESSMENT, PROCEEDING IS NOT VO LUNTARY. HENCE, THE RATIO OF DECISION OF HON`BLE SUPREME COU RT IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE. 18. WE HAVE CONSIDERED THE VARIOUS DECISIONS RELIED UPO N BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN THE CAS E OF SURESH CHAND MITTAL [2001] 251 ITR 9 (SC)/ 119 TAXMAN 429, A REVISED RETURN WAS FILED WHICH WAS REGULARIZED BY T HE REVENUE, THEREFORE, THE EXPLANATION OF THE ASSESSEE WAS TREATED AS BONAFIDE WHEREAS IN THE INSTANT CASE THE ASSESSEE HAS NOT FILED ANY REVISED RETURN AND IT WAS ONLY DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, HE HAS ADMITTED B OGUS LOSS. THEREFORE, THE FACTS OF THE SAID CASE ARE DIS TINGUISHABLE. FURTHER, THE DECISION OF MAK DATA P. LTD. VS. CIT [ 2013] 358 ITR 593(SC) IS LATER DECISION OF THE HON`BLE SUPREM E COURT WHEREIN IT HAS BEEN LAID DOWN THAT TO THE AO SHOULD NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE SUCH AS VOLUNTARY DISCLOSURE BUY PEACE AVOID LITIGATION AMICABL E SETTLEMENT TO EXPLAIN AWAY ITS CONDUCT. FURTHER, THE ASSESSEE HAS FAILED TO FURNISH COMPLETE DETAIL OF S HARES ALONG WITH BILLS AND CONFIRMED COPY OF ACCOUNT OF M/S. MA HASAGAR SECURITIES PVT. LTD. IT WAS, ALSO NOTICED THAT THE ASSESSEE WAS M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 23 OF 25 NOT DEALING IN SHARE TRADE AS ITS MAIN BUSINESS WAS IN THE FIELD OF MARKETING AND MANAGEMENT CONSULTANCY ETC. THE SHARE WERE NON-DELIVERY BASED THOUGH IT MENTIONED T O BE DELIVERY BASED IN DISCLOSURE. THE DECISION IN THE C ASE OF PUNJAB TYRES [1986]162 ITR 517 (MP) OF HON`BLE MADH YA PRADESH HIGH COURT AS RELIED BY THE ASSESSEE IS ALS O NOT APPLICABLE AS IN SAID CASE THE HON`BLE HIGH COURT H ELD THAT AGREED ADDITION CANNOT CONSTITUTE EVIDENCE OF CONCE ALMENT UNLESS THE ASSESSEE HAD CONSCIOUSLY CONCEALED THE PARTICULARS OF INCOME. IN THE CASE OF THE ASSESSEE, THERE IS NO AGREED ADDITION AS SUCH AND RATHER CONSCIOUS INDULG ENCE IN SCRUPULOUS TRANSACTION TO WITH SHRI MUKESH CHOUKSE CA, DIRECTOR OF M/S. MAHASAGAR SECURITIES PVT. LTD. WI TH A VIEW TO BUY LOSS TO REDUCE THE TAX LIABILITY. IN STATEME NT RECORDED FROM MUKESH CHOUKSE, CA, ON 24.11.2006 IN WHICH IT WAS CLEARLY ADMITTED BY HIM THAT THEY HAVE BEEN PROVIDI NG BOGUS PROFITS AND LOSSES TO THE PARTIES WHO WANTS TO BUY LOSS, AGAINST THE DEPOSIT OF AMOUNTS TAKEN CASH AND CHEQU ES IN THEIR ACCOUNTS. THE ASSESSEE HAS NOT TAKEN DELIVERY OF SHARES IT MEANS THAT HE HAS IN CONNIVANCE WITH M/S. MAHASA GAR SECURITIES PVT. LTD., HAD PURCHASED A HUGE LOSS T O REDUCE M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 24 OF 25 THE PROFITS. SIMILARLY, OTHER DECISIONS AS RELIED B Y THE LEARNED COUNSEL WERE CONSIDERED, AND FOUND AS DISTINGUISHAB LE ON FACTS. THE QUESTION WHETHER IN A PARTICULAR CASE PE NALTY UNDER SECTION 271(1) (C) OF THE ACT IS IMPOSABLE OR NOT IS TO BE DECIDED AFTER TAKING INTO CONSIDERATION ALL THE FAC TS AND CIRCUMSTANCES OF EACH CASE. THERE CANNOT BE ANY PRE CEDENT ON FACTS. PRECEDENT CAN BE ONLY ON THE POINT OF LAW . EVERY DECISION HAS TO BE UNDERSTOOD IN THE LIGHT OF THE F ACTS OF THAT PARTICULAR CASE. AS RIGHTLY SAID BY THE HONBLE SUP REME COURT IN WILLIE (WILLIAM) SLANEY V. STATE OF M. P. [AIR 1 956 SC 116] [1955] [2 SCR 1140], THAT 'THERE IS NO SUCH THING AS A JUDICIAL PRECEDENT ON FACTS THAT COUNSEL AND EVEN J UDGES, ARE SOMETIMES, PRONE TO ARGUE AND TO ACT AS IF THEY WERE'. A DECISION IS AVAILABLE AS PRECEDENT ONLY IF IT DE CIDES A QUESTION OF LAW. IN OTHER WORDS, THE PRINCIPLES LAI D DOWN FOR ARRIVING AT A DECISION ALONE WILL BIND AS A PRECEDE NT. THEREFORE, IT IS NOT NECESSARY TO REFER TO ALL JUDG MENTS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE MADE I N THE WRITTEN SUBMISSIONS. 19. IN THE LIGHT OF ABOVE FACTS, JUDICIAL PRONOUNCEMENT S, WE ARE SATISFIED THAT THE CONDITIONS LAID DOWN IN EXPL ANATION-1 M/S. PLATINUM HORAZINE PVT. LTD. V. ACIT 3(1) IND ORE /I.T.A. NO. 713/IND/2016/AY09-10 PAGE 25 OF 25 TO SECTION 271 (1) (C) ARE SATISFIED. THUS, THE ASS ESSEE IS DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME AND THEREBY HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME AND CONCEALED THE INCOME CHARGEABLE TO TAX. THEREFO RE, WE ARE OF THE CONSIDERED OPINION THAT LD. CIT (A) WAS RIGHT IN CONFIRMING THE LEVY OF CONCEALMENT PENALTY OF RS.6, 49,630/- UNDER SECTION 271(1)(C) OF THE ACT IN RESPECT OF LO SS OF SHARES AMOUNTING TO RS.21,02,353/-. IN VIEW OF THESE FACT S AND CIRCUMSTANCES, GROUND NO. 1 TO 6 AS TAKEN BY THE A SSESSEE, AS MENTIONED ABOVE ARE DISMISSED. 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 21. THE ORDER PRONOUNCED IN OPEN COURT ON 16-05-2017. SD/- SD/- ( C.M. GARG) JUDICIAL MEMBER ( O. P. MEENA) ACCOUNTANT MEMBER / DATED :16-05-2017 /OPM