Subhash Chander, Ellenabad V. ITO, Sirsa

ITA 785/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68514 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1998-1999
• Appeal Filed On: 15-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: D K GOYAL
• Keywords: Retrospective amendment; Initiation of penalty proceedings
• Section: 143(3); 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.784 TO 786/CHD/2013 ASSESSMENT YEARS : 1997-98 TO 1999-2000 SUBHASH CHANDER VS. THE INCOME TAX OFFICER, PROP.M/S DHRAM CHAND WARD 2, ANAND KUMAR, ELLENABAD. SIRSA. PAN: ABUPC2779B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.K.GOYAL RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 23.09.2013 DATE OF PRONOUNCEMENT : 30.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THESE THREE APPEALS FILED BY THE ASSESSEE ARE AGAIN ST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS), ROHTAK DATED 4.4.2013 RELATING TO ASSESSMENT YEARS 1997-98 TO 1999- 2000 AGAINST THE PENALTY LEVIED U/S 271(1)(C) OF IN COME TAX ACT, 1961(IN SHORT THE ACT). 2. THE ONLY GROUND OF APPEAL RAISED BY THE ASSESSEE IN ALL THE THREE APPEALS READS AS UNDER: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN UPHOLDING THE LEVY OF PENALTY U/S 271(1)(C), WITHOU T AFFORDIDNG THE OPPORTUNITY OF HEARING, WHILE THE RECORDS FOR CASE PROCEEDINGS HAVE NOT BEEN PROVIDED BY THE AO SO AS SPECIFICALLY PRAYED FOR. 3. ALL THESE THREE APPEALS RELATING TO THE SAME ASS ESSEE AGAINST LEVY OF PENALTY U/S 271(1)(C) OF THE ACT WERE HEARD TOGETHER AND ARE 2 BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. 4. THE FACTS OF THE THREE APPEALS BEFORE US ARE IDE NTICAL AND REFERENCE IS MADE TO THE FACTS IN ITA NO.784/CHD/2013 TO ADJU DICATE THE ISSUE. 5. THE ISSUE RAISED IN THE PRESENT BUNCH OF APPEALS IS RELATING TO ASSESSMENT YEARS 1997-98 TO 1999-2000 ARE IN RELATI ON TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 6. THE BRIEF FACTS OF THE CASE ARE THAT SURVEY OPER ATION UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMI SES OF THE ASSESSEE ON 17.2.1999. DURING THE COURSE OF SURVEY DUPLICAT E SET OF BOOKS OF ACCOUNT WERE FOUND AND WERE IMPOUNDED BY THE SURVEY TEAM. THE ASSESSEE WAS ENGAGED IN COMMISSION BUSINESS AND PUR CHASE AND SALE OF FOOD GRAINS. ACCORDING TO DUPLICATE SET OF BOOKS OF ACCOUNT DDIT (INVESTIGATION), ROHTAK WORKED OUT GROSS PROFIT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1997-98 AT RS.4,63,247/- AGAINST TH E GROSS PROFIT OF RS.1,19,440/- DECLARED BY THE ASSESSEE. REASSESSME NT PROCEEDINGS WERE INITIATED UNDER SECTION 147 OF THE ACT BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.46,52 0/- AND AGRICULTURAL INCOME OF RS.1,02,000/-. THE ASSESSMENT UNDER SECT ION 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED ON TOTAL INCOME OF RS. 5,78,118/- BY MAKING THE FOLLOWING ADDITIONS: (I) INTEREST INCOME RS.3,47,301/- (II) COMMISSION INCOME RS. 38,050/- (III) UNDISCLOSED INTEREST INCOME RS.1,32,548/- (IV) TRADING PROFIT RS. 13,699/- 7. SIMILAR ADDITIONS WERE MADE ON THE BASIS OF DUPL ICATE SET OF BOOKS OF ACCOUNT IN ASSESSMENT YEARS 1998-99 AND 1999-200 0. THE CIT 3 (APPEALS) DISMISSED THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 1997-98 AND 1998-99 AS OUT OF TIME AND DISMISSED TH E APPEAL FOR ASSESSMENT YEAR 1999-2000 ON MERITS. THE DISMISSAL OF THE APPEALS BY THE CIT (APPEALS) WAS NOT CHALLENGED BEFORE THE TRI BUNAL. THE ASSESSING OFFICER THEREAFTER LEVIED PENALTY U/S 271 (1)(C) OF THE ACT AT RS.2,50,000/- RELATING TO ASSESSMENT YEAR 1997-98, RS.65,000/- RELATING TO ASSESSMENT YEAR 1998-99 AND RS.45,000/- RELATING TO ASSESSMENT YEAR 1999-2000. 8. THE CIT (APPEALS) IN THE FIRST ROUND VIDE CONSOL IDATED ORDER DATED 3.7.2007 DELETED THE PENALTY ON THE GROUND THAT NO SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER FOR INITIATING PROCEEDINGS U/S 271(1)(C) OF THE ACT. 9. THE REVENUE FILED APPEALS BEFORE THE TRIBUNAL WH ICH IN ITA NOS.854 TO 856/CHD/2007 VIDE ORDER DATED 30.11.2010 RESTORED THE ISSUE BACK TO THE FILE OF THE CIT (APPEALS) IN VIEW OF SU B-SECTION 1(B) INSERTED IN SECTION 271 OF THE ACT BY FINANCE ACT 2 008 AND WITH RETROSPECTIVE EFFECT FROM 1.4.1989. THE CIT (APPEA LS) IN THE SECOND ROUND OF PROCEEDINGS CONSIDERED THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ON THE MERITS OF THE CASE. THE PLEA OF THE ASS ESSEE BEFORE THE CIT (APPEALS) WAS AS UNDER: CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS ARE TWO DIFFERENT THINGS. BOTH OF THEM REFER TO DELIBERATE ACT ON THE PART OF THE ASSESSEE. A MERE OMISSION OR NEGLIGENCE WOULD CONSTITUTE A DELI BERATE ACT OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS. THE ADDITIONS MADE TO THE DECLARED INCOME ARE BASED ON THE PARALLEL SET OF BOOKS OF ACCOUNTS FOUND IN THE COURSE OF SURVEY AT THE BUSINESS PREMISES OF THE ASSESSEE. IT IS SUBMITTED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR ALL THE YEARS, THE ASSESSEE HAD OFFERED NECESSARY INCOM E WHICH COULD BE TAXED AS INCOME OF THE ASSESSEE AND THEREFORE MERE FACT OF C ERTAIN ADDITIONS CANNOT BE MADE THE BASIS TO LEVY PENALTY U/S 271 (1) (C). THE AO MADE MUCH EMPHASIS ON THE FACT THAT SINCE THERE WAS DETECTION AS A RESULT OF SURVEY, PENALTY LEVIED IS WHOLLY JUSTIFIED. IT IS SUBMITTED THAT SUCH A CONCLUSION I S MISCONCEIVED AS MERE DETECTION OF BOOKS OF ACCOUNTS IN THE SURVEY, FOR WHICH INCOM E WAS DULY OFFERED IN THE COURSE 4 OF ASSESSMENT PROCEEDINGS, CANNOT BE GROUND TO LEVY THE PENALTY. IT HAS BEEN HELD BY HON'BLE APEX COURT IN THE CASE OF K.C. BUIL DERS AND ANOTHER VS ACIT, 265 ITR 562 THAT ELEMENT OF MENS-REA IS AN ESSENTIAL PR E-CONDITION BEFORE LEVYING PENALTY U/S 271 (1) (C) OF THE ACT. 10. THE CIT (APPEALS) VIDE PARA 6 HELD AS UNDER: 6. I HAVE CAREFULLY CONSIDERED THE ISSUE AND THE SUBMISSIONS MADE BY THE AR. IT IS AN ADMITTED POSITION THAT DUPLICATE BOOKS OF ACCOUNTS WERE FOUND DURING THE SURVEY OPERATIONS. IT IS ALSO AN ADMITTED POSIT ION THAT THE REAL INCOME EARNED BY THE APPELLANT WAS REFLECTED IN THE DUPLICATE BOO KS OF ACCOUNTS WHEREAS THE INCOME ADMITTED IN THE RETURN OF INCOME FILED BY TH E APPELLANT IS BASED ON THE BOOKS OF ACCOUNTS PREPARED FOR THE PURPOSE OF THE D EPARTMENT. THE FACT OF MAINTAINING DUPLICATE BOOKS OF ACCOUNTS CANNOT BE TERMED AS OMISSION / NEGLIGENCE ON THE PART OF THE APPELLANT BY ANY STRETCH OF IMAG INATION. THE ARGUMENT THAT SINCE THE APPELLANT HAD OFFERED NECESSARY INCOME DURING THE COURSE OF PROCEEDINGS, PENALTY U/S 271 (1) (C) IS NOT LEVIABLE IS MISPLACED AND MISCONCEIVED AS THE APPELLANT WAS FORCED TO ADMIT THE INCOME HAVING BEEN CAUGHT WITH THE DUPLICATE BOOKS OF ACCOUNTS. THE CASE OF THE APPELLANT SQUARELY FALLS UNDER CONCEALMENT OF INCOM E. IT IS NOW WELL SETTLED LAW THAT MENS-REA IS NOT A PRE-CONDITION BEFORE LEV YING PENALTY U/S 271 (1) (C). IN ANY CASE, THE FACT OF MAINTAINING DUPLICATE BOOK S OF ACCOUNTS SHOWS THE GUILT MIND OF THE APPELLANT TO CONCEAL THE PARTICULARS OF INCOME. IN VIEW OF THE ABOVE, IT IS HELD THAT IT IS A FIT CASE FOR LEVY OF PENALTY U/S 271 (1) (C) AND THEREFORE THE PENALTY LEVIED BY THE AO FOR ALL THE 3 YEARS UNDER APPEAL IS UPHELD AND THE GROUNDS OF APPEAL ARE DISMISSED. 11. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDE R OF THE CIT (APPEALS). THE LEARNED A.R. FOR THE ASSESSEE STRES SED THAT THERE WAS NO REPRESENTATION BEFORE THE CIT (APPEALS)THAT THE APP EAL MAY BE RESTORED BACK TO THE FILE OF THE CIT (APPEALS). IN RESPECT OF THE MERITS OF LEVY OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT THE LEARNED A.R. FOR THE ASSESSEE ONLY PLACED RELIANCE ON THE GROUNDS RAISED IN THE A PPEAL. 12. THE LEARNED D.R. FOR THE REVENUE POINTED OUT TH AT SUFFICIENT OPPORTUNITY WAS ALLOWED BY THE CIT (APPEALS) IN THE SECOND ROUND OF PROCEEDINGS AND THE ASSESSEE DID APPEAR ON ONE OF T HE DATES OF HEARING BUT FAILED TO APPEAR BEFORE THE CIT (APPEALS) ON TH E DIFFERENT DATES OF HEARING. THE LEARNED D.R. FOR THE REVENUE FURTHER POINTED OUT THAT ADDITIONS IN THE CASE WERE MADE IN THE HANDS OF THE ASSESSEE BECAUSE OF THE ENTRIES IN THE DUPLICATE SET OF BOOKS OF ACCOUN T FOUND FROM THE POSSESSION OF THE ASSESSEE DURING THE COURSE OF SUR VEY, WHICH WERE 5 IMPOUNDED AND COPIES OF THE SAME WERE GIVEN TO THE ASSESSEE AND EVEN SHOW CAUSE NOTICES WERE GIVEN BEFORE MAKING SAID AD DITIONS. 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT N O PROPER OPPORTUNITIES OF HEARING HAVE BEEN AFFORDED TO THE ASSESSEE BY EI THER THE ASSESSING OFFICER AND/OR THE CIT (APPEALS). THE GRIEVANCE OF THE ASSESSEE, AS PER THE GROUND OF APPEAL AGAINST THE ASSESSING OFFICER IS FOR NOT PROVIDING THE RECORDS BEFORE COMPLETING THE ASSESSMENT. IN T HE FACTS OF THE PRESENT CASE SURVEY UNDER SECTION 133A OF THE ACT WAS CARRI ED OUT AT THE PREMISES OF THE ASSESSEE ON 17.2.1999 AND DUPLICATE SET OF BOOKS FOR THE YEAR UNDER APPEAL WERE FOUND. ACCORDING TO THE DUP LICATE SET OF BOOKS OF ACCOUNTS, CERTAIN ENTRIES AS FOUND IN THE DUPLIC ATE SET OF BOOKS OF ACCOUNT WERE NOT APPEARING IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. THE DDIT (INV.) COMPUTED THE GROS S PROFIT OF THE ASSESSEE FROM THE DUPLICATE BOOKS OF ACCOUNT AT RS. 4,63,247/- AS AGAINST GROSS PROFIT OF RS.1,19,440/- DECLARED BY THE ASSES SEE IN THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 1997-98. THE ASSE SSING OFFICER ALSO VERIFIED THE ABOVE SAID GROSS PROFIT AS PER THE DUP LICATE BOOKS OF ACCOUNT AND THEREAFTER INITIATED PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. THE ASSESSEE IN RESPONSE THERETO FILED RETURN OF IN COME DECLARING INCOME AT RS.46,520/- PLUS AGRICULTURAL INCOME AT RS.1,02, 000/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS VARIOUS NOTICES WE RE ISSUED TO THE ASSESSEE INCLUDING SHOW CAUSE NOTICE ALONGWITH DETA ILED QUESTIONNAIRE TO PRODUCE ALL ORIGINAL DOCUMENTS WHICH WERE IDENTIFIE D AT THE TIME OF SURVEY AND ALSO TO PRODUCE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. IN RESPONSE THE ASSESSEE CLAIMED THAT TH E DETAILS COULD NOT BE PREPARED AND FILED AS BOOKS OF ACCOUNT WERE IN THE POSSESSION OF THE DEPARTMENT. THE ASSESSEE SOUGHT PHOTOCOPIES OF THE PARALLEL SET OF BOOKS 6 OF ACCOUNT FOUND AT THE TIME OF SURVEY, WHICH WERE IMPOUNDED LATER ON BY THE DEPARTMENT. THE ASSESSING OFFICER IN THE AS SESSMENT ORDER HAD GIVEN A FINDING THAT PHOTOCOPIES OF THE PARALLEL SET OF BOOKS OF ACCOUNT AS REQUIRED BY THE ASSESSEE WERE GIVEN TO HIM ON TH E SAME DATE ON WHICH HE HAS APPLIED FOR THE SAME . FURTHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH THE P ROFIT & LOSS ACCOUNT, TRADING ACCOUNT AND BALANCE SHEET ON THE BASIS OF P ARALLEL SET OF BOOKS OF ACCOUNT WHICH WERE PREPARED BY THE ASSESSEE AND FILED VIDE REPLY DATED 18.1.2000. FURTHER THE ORIGINAL DOCUMENTS WH ICH WERE IDENTIFIED AT THE TIME OF SURVEY WERE ALSO PRODUCED BY THE ASS ESSEE AND WERE GOT VERIFIED WITH REFERENCE TO THE PARALLEL SET OF BOOK S OF ACCOUNT AS WELL AS WITH THE ENTRIES IN REGULAR BOOKS OF ACCOUNT. THE ASSESSING OFFICER FURTHER NOTED THAT THE IMPOUNDED DOCUMENTS WERE EXA MINED IN DETAILS AND VERIFIED WITH THE IMPOUNDED BOOKS OF ACCOUNT. ALL THE ABOVE SAID PROCEEDINGS WERE NOTED IN THE ASSESSMENT ORDER IN P ARAS 1 AND 2 OF THE ASSESSMENT ORDER. RELEVANT FINDINGS OF THE ASSESSI NG OFFICER ARE AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A SSESSEE WAS ASKED TO FURNISH THE PROFIT AND LOSS ACCOUNT, TRADI NG ACCOUNT AND BALANCE SHEET ETC. ON THE BASIS OF PARALLEL SET OF BOOKS OF ACCOUNTS, PHOTOCOPIES OF WHICH WAS GIVEN TO HIM. THE ASSESSE E VIDE ITS REPLY DATED 18.1.2000 HAS FURNISHED THE BALANCE SHEET, PR OFIT & LOSS ACCOUNT, TRADING ACCOUNT AND CAPITAL ACCOUNT ON THE BASIS OF PARALLEL SET OF BOOKS OF ACCOUNTS ALONG WITH DETAIL S OF SUNDRY CREDITORS AND SUNDRY DEBTORS AND DETAILS OF INTERES T RECEIVED AND PAID. THE ORIGINAL DOCUMENTS WHICH WERE IDENTIFIED AT THE TIME OF SURVEY (PHOTOCOPIES OF WHICH WERE OBTAINED BY THE D DIT(INV), ROHTAK WERE PRODUCED AND THESE WERE GOT VERIFIED WI TH REFERENCE TO THE PARALLEL SET OF BOOKS OF ACCOUNT AS WELL AS WITH THE REGULAR ACCOUNT BOOKS. THE IMPOUNDED DOCUMENTS WERE EXAMIN ED IN DETAILS AND VERIFIED WITH THE IMPOUNDED BOOKS OF AC COUNTS. 14. THEREAFTER THE ASSESSING OFFICER HAD COMPUTED T HE INCOME ON THE BASIS OF THE DUPLICATE SET OF BOOKS OF ACCOUNT FOUN D DURING THE COURSE OF SURVEY AND LATER IMPOUNDED THE SAME. THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF FOLLOWING DISCR EPANCIES: 7 (I) INTEREST INCOME RS.3,47,301/- (II) COMMISSION INCOME RS. 38,050/- (III) UNDISCLOSED INTEREST INCOME RS.1,32,548/- (IV) TRADING PROFIT RS. 13,699/- 14. 15. IN VIEW OF THE ABOVE SAID PROCEEDINGS BEFORE TH E ASSESSING OFFICER WE FIND NO MERIT IN THE GROUND OF APPEAL RAISED BY THE ASSESSEE THAT THE CIT (APPEALS) HAS ERRED IN UPHOLDING LEVY OF PENALT Y U/S 271(1)(C) OF THE ACT WITHOUT AFFORDING OPPORTUNITY OF HEARING, WHILE RECORDS OF CASE PROCEEDINGS HAVE NOT BEEN PROVIDED BY THE ASSESSING OFFICER, AS SPECIFICALLY PRAYED FOR. 16. IN RESPECT OF THE GRIEVANCE OF THE ASSESSEE OF REASONABLE OPPORTUNITY OF HEARING BEING NOT PROVIDED BY THE CI T (APPEALS), IT APPEARS THAT AFTER THE LEVY OF PENALTY BY THE ASSES SING OFFICER VIDE ORDER DATED 8.3.2006, THE CIT (APPEALS), ROHTAK VIDE ORDE R DATED 3.7.2007 HAD CANCELLED THE PENALTY PROCEEDINGS ON THE GROUND THA T NO SATISFACTION OF THE ASSESSING OFFICER WAS RECORDED IN THE ASSESSMEN T ORDER FOR INITIATING PROCEEDINGS U/S 271(1)(C) OF THE ACT. THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL IN ITA NOS.854 TO 856/CHD/2007 VIDE ORDER DATED 30.11.2010 RESTORED ISSUE BACK TO THE FILE OF THE CIT (APPEALS) HOLDING THAT IN VIEW OF SUB-SECTION 1(B) INSERTED IN SECTION 271 OF THE ACT THE DIRECTIONS GIVEN IN THE ASSESSME NT ORDER FOR INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WOU LD CONSTITUTE SATISFACTION OF THE ASSESSING OFFICER FOR INITIATIN G PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. AS THE CIT (APPEALS) HAD NOT DECIDED THE ISSUE ON MERITS, THE ISSUE WAS SET ASIDE TO THE FILE OF T HE CIT (APPEALS). 17. THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGA INST SECOND ROUND OF PROCEEDING BEFORE THE CIT (APPEALS), WHO HAD GIVEN VARIOUS OPPORTUNITIES TO THE ASSESSEE AND THE ASSESSEE EXCE PT FOR ONE DATE OF 8 HEARING HAD FAILED TO APPEAR BEFORE THE CIT (APPEAL S). THE RELEVANT FINDINGS OF THE CIT (APPEALS) VIDE PARA 3 ARE AS UN DER: 3. IN TERMS OF THE ABOVE MENTIONED DIRECTIONS OF H ON'BLE ITAT THE APPEALS HAVE BEEN TAKEN UP FOR HEARING. NOTICE OF HEARIN G U/S 250 OF THE IT ACT DATED 05.12.2012 WAS ISSUED FOR HEARING ON 17.12 .2012 WHICH DID NOT EVOKE ANY RESPONSE FROM THE APPELLANT. THEREAFTE R ANOTHER NOTICE DATED 08.12.2012 WAS ISSUED FOR WHICH SH. GURJEET SINGH, C.A., AR SUBMITTED LETTER DATED 05.01.2013 RECEIVED IN THIS OFFICE ON 08.01.2013 REQUESTING THAT THE CASE MAY BE ADJOURNED FOR 15 DAYS. THE CASE WA S ACCORDINGLY POSTED TO 22.01.2013. ON THE SAID DATE, SH. GURJEET SINGH, C.A., AR WAS PRESENT BEFORE ME AND REQUESTED FOR ADJOURNMENT OF ONE MONT H. AS THE APPEAL HAS BEEN PENDING FOR A LONG TIME, AS A LAST AND FINAL O PPORTUNITY, ADJOURNMENT OF ONE MONTH WAS GRANTED TO 21.02.2013. HOWEVER, NEITHER ANY BODY WAS PRESENT ON THE SAID DATE NOR ANY ADJOURNMENT WAS SO UGHT. IN VIEW OF THE ABOVE, I PROCEED TO DISPOSE THE APPEALS AS PER THE MATERIAL AVAILABLE ON RECORD AND AS PER THE SUBMISSIONS MADE EARLIER BEFO RE MY PREDECESSOR. 18. IN VIEW OF THE ABOVE SAID FINDINGS OF THE CIT ( APPEALS) WHERE VARIOUS OPPORTUNITIES HAVE BEEN ALLOWED TO THE ASSE SSEE IN THE SECOND ROUND OF PROCEEDING BEFORE THE CIT (APPEALS), WE FI ND NO MERIT IN THE OBJECTION RAISED BY THE ASSESSEE IN THE SUBMISSIONS MADE BY THE ASSESSEE THAT THE CIT (APPEALS) HAS ERRED FOR CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT WITHOUT AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 19. NOW COMING TO THE IMPOSITION OF PENALTY U/S 271 (1)(C) OF THE ACT ON THE ADDITIONS MADE ON THE BASIS OF PARALLEL SET OF BOOKS OF ACCOUNT AND ENTRIES FROM IMPOUNDED DOCUMENTS FOUND DURING T HE COURSE OF SURVEY. THE ASSESSEE WAS MAINTAINING REGULAR BOOKS OF ACCOUNT AND HAD FURNISHED THE RETURN OF INCOME FOR THE YEAR UNDER C ONSIDERATION DECLARING GROSS PROFIT OF RS.1,19,440/- AND RETURN OF INCOME OF RS.44,030/-. DURING THE COURSE OF SURVEY CONDUCTED AT THE PREMIS ES OF THE ASSESSEE UNDER SECTION 133A OF THE ACT PARALLEL SET OF BOOKS OF ACCOUNT WERE FOUND AND THE DDIT (INVESTIGATION), ROHTAK WORKED O UT THE GROSS PROFIT FROM THE SAID PARALLEL BOOKS OF ACCOUNT. THE ASSES SEE WAS ASKED TO FURNISH THE RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED UNDER SECTION 147/148 OF THE ACT. THE ASSESSEE IN THE SAID RETUR N OF INCOME DECLARED 9 TOTAL INCOME OF RS.46,520/-, OVERLOOKING THE ENTRIE S IN THE DUPLICATE SET OF BOOKS OF ACCOUNT FOUND DURING THE COURSE OF SURV EY. THE ADDITION IN THE PRESENT APPEAL ON ACCOUNT OF FOUR COUNTS HAVE B EEN MADE BY THE ASSESSING OFFICER AFTER DETAILED ENQUIRIES WHICH AR E AS UNDER: A) THE MAIN SOURCE OF INCOME OF THE ASSESSEE WAS IN TEREST INCOME BEING CHARGED FROM ZAMINDAR TO WHOM LOANS WE RE ADVANCED. VERIFICATION EXERCISE WAS CARRIED OUT BY THE ASSESSING OFFICER AND IT WAS FOUND THAT THE INTEREST RECEIVED AS SHOWN IN THE PARALLEL BOOKS OF ACCOUNT WAS EXTRA TO THE INTEREST RECEIVED AS SHOWN IN THE BOOKS OF ACCOUNT. THE ADDITION TO THE EXTENT OF RS.3,47,301/- WAS MADE IN THIS REGARD. B) SOME OF THE TRANSACTIONS OF COMMISSION INCOME MA DE IN THE PARALLEL BOOKS OF ACCOUNT WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT AND THE DIFFERENCE OF RS.38,050/- WAS ADDED TO THE INCOME OF THE ASSESSEE. C) CERTAIN DOCUMENTS WERE MAINTAINED BY THE ASSESSE E TO RECORD KACHCHA ENTRY REGARDING SALE OF CROPS AND PAYMENTS MADE TO AGRICULTURISTS DURING THE ASSESSMENT YEAR 1997-98, WHICH IN TURN WERE TRANSFERRED TO THE DUPLICATE BOOKS OF ACCOUNT. ON THOROUGH INVESTIGATION OF THE DOCUMENTS NO.8-A,12-A AND 14-A , FOUND AND IDENTIFIED AT THE TIME OF SURVEY OPERATION, IT WAS NOTED BY THE ASSESSING OFFICER THAT THE INTEREST CHARGED OR CHAR GEABLE WAS NOT ACCOUNTED IN THE PARALLEL BOOKS OF ACCOUNT BUT WAS CARRIED FORWARDED IN THE ACCOUNTS BOOK ALONGWITH OUTSTANDIN G BALANCE. THE DISCREPANCY TOTALING RS.1,32,548/- WAS ADDED TO THE INCOME OF THE ASSESSEE. 10 D) THE ASSESSEE HAD EARNED PROFIT OF RS.13,699/- FR OM BARDANA SARSON, GRAM, KHAL AND WHEAT ACCOUNT, WHICH WAS NOT DISCLOSED IN THE BOOKS OF ACCOUNT AND CONSEQUENTLY ADDITION OF T HE ACT RS.13,699/- WAS MADE. 19. THE ABOVE SAID ADDITIONS HAVE BEEN CONFIRMED BY THE CIT (APPEALS), AGAINST WHICH THE ASSESSEE IS NOT IN APP EAL. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES WHERE THE AS SESSEE WAS FOUND TO BE MAINTAINED DUPLICATE BOOKS OF ACCOUNT AND EARNIN G THE INCOME OUTSIDE THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSE SSEE ON THE BASIS OF WHICH THE RETURN OF INCOME WAS FILED, ESTABLISH THE CONTEMPTUOUS CONDUCT OF THE ASSESSEE IN NOT DECLARING THE CORREC T INCOME TO THE DEPARTMENT. FURTHER DOCUMENTS WERE ALSO FOUND DURI NG SURVEY SHOWING ADDITIONAL INCOME EARNED BY THE ASSESSEE. THIS IS A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. UPHOLDING THE OR DER OF CIT (APPEALS) WE CONFIRM THE PENALTY AT RS.2,50,000/- IN ASSESSME NT YEAR 2007-08. THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS DISMISSED. 20. THE FACTS AND THE ISSUES ARISING IN ITA NO.785 & 786/CHD/2013 ARE SIMILAR TO THE FACTS AND ISSUES IN ITA NO.784/CHD/2 013. OUR DECISION IN ITA NO NO.784/CHD/2013 SHALL APPLY MUTATIS MUTANDIS TO ITA NO.785 & 786/CHD/2013. 21. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH SEPTEMBER, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 11