SHRI CDR, UDAI SINGH, Bhopal V. THE ACIT 3(1), Bhopal

ITA 791/IND/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5942 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 16-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Keywords: Question of law; Revised return
• Section: 139(5)

Judgement Text

CDR UDAI SINGH ITA NO. 791/IND/2014 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ..&./ I.T.A. NO.791/IND/2014 ' ( )*( / ASSESSMENT YEAR: 2010-11 CDR UDAISINGH BHOPAL PAN AGLPS 7299C :: + / APPELLANT VS ACIT 3(1) BHOPAL :: ,-+ / RESPONDENT ' (. / # / ASSESSEE BY SHRI AJAY TULSIYAN & SHRI PANKAJ SHAH 0) / # / REVENUE BY SHRI K.G. GOYAL 1 ')2 / $ DATE OF HEARING 12 . 1 .201 7 3456* / $ DATE OF PRONOUNCEMENT 1 9 . 1 .201 7 #7 / O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-II, BHOPAL, DATED 30.9.20 14. CDR UDAI SINGH ITA NO. 791/IND/2014 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DEFENCE OFFICER BELONGING TO INDIAN NAVY. DURING THE YEAR UNDER CONSIDERATION HE WAS POSTED AS COMMODOR AND IN- CHARGE OF THE BHOPAL UNIT OF NCC. THE ASSESSEE DID NOT DECLARE SHORT TERM CAPITAL GAIN ON SALE OF TWO IMMOVABLE PROPERTIES DURING THE YEAR, THEREFORE, THE ADDITION O F RS.36,13,794/- WAS MADE ON ACCOUNT OF UNDECLARED SHORT TERM CAPITAL GAINS AND PENALTY PROCEEDINGS WERE INITIATED . IN REPLY TO SHOW CAUSE NOTICE, THE ASSESSEE HAS SUBMI TTED AS UNDER :- THE RETURN OF INCOME FOR A.Y. 2010-11 WAS FILED ON 30.07.2010 DECLARING A INCOME OF RS. 15,97,530/-. I N THIS CASE THE ASSESSMENT WAS COMPLETED UNDER SECTION 143 (3) OF INCOME TAX ACT ON 25.03.2013 AND INCOME WAS ASSESSE D AT RS.,52,11,320/-. AN ADDITION OF RS. 36,13,794/- WAS MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN AROSE ON THE SA LE OF TWO IMMOVABLE PROPERTIES. CDR UDAI SINGH ITA NO. 791/IND/2014 3 2. DURING THE COURSE OF ASSESSMENT, PENALTY PROCEE DINGS WERE INITIATED UNDER SECTION 271(1)(C) OF THE INCOM E TAX ACT ON ACCOUNT OF NON DISCLOSURE OF SHORT TERM CAPITAL GAIN OFRS. 36,13,794/- IN THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE. A NOTICE U/S 271(1)(C) DATED 25.03.2013 W AS ISSUED AND THE ASSESSEE WAS SHOW CAUSED AS TO WHY PENALTY SHOULD NOT BE LEVIED. BUT NEITHER ANYONE AP PEARED NOR ANY REPLY WAS FILED. DUE TO CHANGE IN INCUMBENC Y, ASSESSEE WAS ISSUED ANOTHER SHOW CAUSE NOTICE U/S 271(1)(C) ON 17.07.2013, AND HEARING WAS FIXED ON 22.07.2013. 3. IN RESPONSE TO THE SHOW CAUSE NOTICE DATED 17.07 .2013, ASSESSEE SOUGHT AN ADJOURNMENT AND FINALLY FILED A WRITTEN REPLY DATED 16.09.2013. CERTAIN POINT OF ASSESSEES REPLY ARE BEING REPRODUCED AS UNDER FOR READY REFERENCE : - 1. FROM THIS YEAR THE ASSESSEE A RETIRED DEFENCE OFFICER, CHANGED HIS IT COUNSEL AND ENGAGED THE CDR UDAI SINGH ITA NO. 791/IND/2014 4 SERVICES OF SHRI SEEMANT KALA, ADOCATE. WHILE FILIN G THE RETURN, SHRI KALA ASKED FOR DETAILS OF THE IMMOVABL E PROPERTY. FULL DETAILS WERE NOT AVAILABLE WITH THE ASSESSEE AT THAT TIME. HE MERELY STATED THAT THE PROPERTY SOLD WAS OLD. THE ASSESSEE DID NOT KNOW OF STCG & LTCG. HE FURTHER STATED THAT HIS WIFE IS ALSO AN EARNING MEMBER AND IT PAYER WHOSE FUNDS MAY BE INCLUDED IN THE PURCHASE CONSIDERATION BESIDES THRE E OTHER PERSONS WHO CONTRIBUTED TOTAL RS. 21,00,000/- FOR THE IMMOVABLE PROPERTY PURCHASED FOR RS. 35,90,225/ -. HE HAD CONFUSION WHETHER IT WAS TO BE TREATED AS HU F PROPERTY OR PROPERTY BELONGING TO AN AOP, THOUGH PURCHASED ON HIS NAME. THE LD. COUNSEL FILED THE RE TURN ACCORDINGLY ON 30.07.2010. THE ASSESSEE HAD BONA FI DE BELIEF THAT SALE OF THE IMMOVABLE PROPERTY IS IMMAT ERIAL. IT WAS ONLY WHEN A QUESTIONNAIRE DATED 19.11.2012 FROM THE LD. ASSESSING OFFICER WAS RECEIVED THAT TH E CDR UDAI SINGH ITA NO. 791/IND/2014 5 COUNSEL INSISTED FOR THE DETAILS OF SALES OF THE PR OPERTY. A REVISED COMPUTATION OF INCOME WAS ACCORDINGLY FIL ED SHOWING SHORT TERM CAPITAL GAINS. 2. IT IS SUBMITTED THAT THERE WAS NO DETECTION OF T HIS ADDITIONAL INCOME BY THE DEPARTMENT. THE DEPARTMENT DID NOT POSSESS ANY EVIDENCE IN THIS REGARD. IT WAS A VOLUNTARY DECLARATION BY THE ASSESSEE AFTER EXAMINI NG THE FACTS AGAIN. COMPLIANCE IN THIS REGARD COULD NO T BE MADE ON 04.12.12 SINCE THE ASSESSEE WAS PRE OCCUPIE D DUE TO TERMINAL ILLNESS OF HIS FATHER IN LAW WHO WA S TOTALLY DEPENDENT ON THE ASSESSEE AND STAYING WITH HIM (FATHER-IN-LAW EXPIRED ON 05.01.2013 IN PROOF THE REOF EVIDENCES ENCLOSED) AND AS THE GATHERING OF FACTS T OOK TIME. THE REVISED COMPUTATION WAS FILED ON 18.12.20 12 ON VERIFICATION OF THE MATERIAL. 3. AFTER CONSIDERING THE REPLY, THE ASSESSING OFFIC ER WAS OF THE VIEW THAT THE ASSESSEE HAS ENGAGED THE SERVICES OF CDR UDAI SINGH ITA NO. 791/IND/2014 6 TAX CONSULTANT SHRI SEEMANT KALA, ADVOCATE, AND HE HAS REPRESENTED THE ASSESSEE. THE ASSESSING OFFICER ASKED THE ASSESSEE TO GIVE DETAILS BUT THE ASSESSEE COULD NOT PR ODUCE THE DETAILS DURING THE ASSESSMENT PROCEEDINGS. THERE FORE, THIS CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE. IN RESPECT OF THE ASSESSEES CONTENTION THAT HE HAS VOLUNTARILY OF FERED HIS INCOME DURING THE TAX PROCEEDINGS IS NOT ACCEPTAB LE BECAUSE A QUESTIONNAIRE DATED 19.11.2012 WAS RECEIVED FROM THE ASSESSING OFFICER AND THEREAFTER THE ASSESSE E HAS FILED THE DETAILS AND OFFERED THE ADDITIONAL INCOME. THEREFORE, THE ASSESSING OFFICER HAS LEVIED THE PENAL TY. THE LEARNED CIT(A) HAS CONFIRMED THE SAME. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY HAS BEEN LEVIED ON THE GROUND THAT THE ASSESSEE HAS NOT OFFERED SHORT TERM CAPITAL GAINS ON SALE OF TWO PROPERTIES. THE ASSESSEE HAS REVISED THE RETURN B UT IT WAS BARRED BY LIMITATION BUT THE ASSESSEE HAS DEPOSITED CDR UDAI SINGH ITA NO. 791/IND/2014 7 SELF ASSESSMENT TAX TO AVOID LEVY OF PENALTY. THE ASSES SEE IS AN OFFICER IN INDIAN NAVY. DURING THE GENERAL QUERY RAISE D BY THE ASSESSING OFFICER THE ASSESSEE HAS FILED COMPL ETE DETAILS AND HE HAS REVISED THE RETURN SHOWING SHORT TE RM CAPITAL GAINS ON SALE OF TWO LANDS AND COPIES OF PURCHAS E AND SALE DEED WERE SUBMITTED. THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS ENTERED INTO SALE AGREEMENT AND ALSO OBTAINED THE POWER OF ATTORNEY. THE SAID LAND WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE AND THE SAID PROPERTY WAS NOT TRANSFERRED TO HIM AND, THEREFORE, TH E ASSESSEE WAS UNDER THE IMPRESSION THAT THE LIABILITY OF SHORT TERM CAPITAL GAINS SHOULD BE ON THE OWNER OF TH E LAND. MOREOVER, WHEN THE ASSESSING OFFICER ASKED SPEC IFIC INFORMATION REGARDING IMMOVABLE PROPERTY, THE ASSESSEE HAS VOLUNTARILY SUBMITTED THE REVISED RETURN. MOREOVE R, THE ASSESSEE IS A DEFENCE OFFICER IN THE INDIAN NAVY. HE WAS COMING FROM THE OUTSIDE WORLD AND HE WAS TOTALLY IGNOR ED CDR UDAI SINGH ITA NO. 791/IND/2014 8 OF THE PROVISIONS OF THE INCOME TAX ACT, THEREFORE, IT WAS HIS BONAFIDES. THEREFORE, PENALTY SHOULD BE CANCELLED . 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. THE LEARNED DR SUB MITTED THAT THE ASSESSEE HAS EARNED SHORT TERM CAPITAL GAINS IN RESPECT OF TWO IMMOVABLE PROPERTIES WHICH WERE ACQUIR ED ON 22.1.2008. AS PER AIR INFORMATION, THE ASSESSEES CASE WAS TAKEN UP FOR SCRUTINY. THE ASSESSEE HAS PAID DUE TAXES. HERE IN THIS CASE, THE ASSESSEE HAS REVISED TH E RETURN AFTER INQUIRY BY THE DEPARTMENT AND THE PENALTY I S RIGHTLY LEVIED. 6. WE HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IN THE INSTANT CASE IT IS AN ADMITTED FACT THAT THE PENALTY PROCEEDINGS WERE INITIATED BY THE ASSESSING OFFICER WHEREIN THE ASSESS EE HAS TAKEN THE CONTENTION THAT HE IS A RETIRED DEFENCE OFFI CER AND HE HAS ENGAGED THE SERVICES OF SHRI SEEMANT SHRI CDR UDAI SINGH ITA NO. 791/IND/2014 9 SEEMANT KALA, ADVOCATE. WHILE FILING THE RETURN OF INCO ME SHRI SEEMANT KALA HAS FILLED DETAILS OF IMMOVABLE PROPERTIES. HE STATED THAT THE PROPERTY WAS SOLD AND I N PURSING THE PROPERTY, MANY OTHER PERSONS HAVE ALSO CONTRIBUTED. THEREFORE, HE WAS UNDER CONFUSION THAT I T MAY BE TREATED AS HUF PROPERTY OR AOP. THE ASSESSEE IS A RETIRED NAVAL OFFICER AND HE HAS COME FROM AN OUTER WORL D. THEREFORE, HE WAS NOT ABLE TO PAY TAXES TO SHOW THE S HORT TERM CAPITAL GAINS. WE FIND THAT THE ASSESSEE HIMSELF H AS OFFERED THE SAME BEFORE DETECTION BY THE DEPARTMENT. MOREOVER, SIMILAR ISSUE HAD COME UP BEFORE THE HON'BL E DELHI TRIBUNAL IN THE CASE OF ACIT VS. ASHOK RAJ NATH; ITA NO. 2970/DEL/2012 WHEREIN THE TRIBUNAL AFTER CONSIDER ING THE DECISIONS OF VARIOUS HIGH COURTS HAS DELETED THE PENALTY BY OBSERVING AS UNDER :- 8. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE F ACTS OF THE CASE. AS IS APPARENT FROM THE AFORESAID FACTS, THE AO LEVIED PE NALTY U/S 271(1)(C) OF THE CDR UDAI SINGH ITA NO. 791/IND/2014 10 ACT IN RESPECT OF AN AMOUNT OF `60,39,824/-COMPRISI NG ADDITION ON ACCOUNT OF RENTAL INCOME-`4,63,388/-;DISALLOWANCE OF INTERE ST-`2,51,507/-,ADDITION TOWARDS SHORT TERM CAPITAL GAINS ON SALE OF PROPERT IES-`10,50,950/-;SHORT TERM CAPITAL GAINS ON SALE OF SHARES-`1,60,503/- AN D LONG TERM CAPITAL GAINS- `40,98,919/-. THE LD. CIT(A) CANCELLED THE PENALTY ON THE GROUND THAT DISALLOWANCE OF INTEREST WAS DELETED BY THE ITAT WH ILE ISSUE RELATING TO ADDITION TOWARDS RENTAL INCOME HAD BEEN RESTORED TO THE FILE OF THE AO AND ADDITIONAL INCOME TOWARDS CAPITAL GAINS ON SALE OF PROPERTIES AND SHARES WAS DISCLOSED BY THE ASSESSEE SUO MOTU DURING THE C OURSE OF ASSESSMENT PROCEEDING. THE ASSESSEE SUBMITTED REVISED RETURN S INCE IN THE ORIGINAL RETURN LONG TERM CAPITAL GAIN ON UTI LIQUID PLUS FU ND INSTITUTION PLAN WAS CLAIMED EXEMPT U/S 10(38) OF THE ACT AS ALSO TO REF LECT CORRECT FIGURES OF SALE OF LAND AT KHERI SADH AND RENTAL INCOME. MERELY BEC AUSE THE ASSESSEE DISCLOSED ADDITIONAL INCOME SUO MOTU AFTER ISSUE OF A NOTICE U/S 143(2) ITA NO.2970/DEL./2012 10 OF THE ACT, DOES NOT AMOUNT TO DETECTION OF CONCEALMENT BY THE AO. APPARENTLY, THE ASSESSEE HAD GIVEN ALL PARTICULARS OF HIS INCOME AND HAD DISCLOSED ALL FACTS TO THE AO DURING THE ASSESSMENT PROCEEDINGS.. IT IS NOT THE CASE OF THE AO THAT IN REPLY TO A QUERY OF THE AO, SOME NEW FACTS WERE DISCOVERED OR THE AO HAD DUG OU T SOME INFORMATION CDR UDAI SINGH ITA NO. 791/IND/2014 11 WHICH WAS NOT FURNISHED BY THE ASSESSEE. IN SUCH CI RCUMSTANCES, WE ARE OF THE OPINION THAT NO PENALTY IS LEVIABLE. IT IS WELL SETTLED THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AN D DISTINCT AND AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF ANANTHRAMAN VEERASINGHAIAH & CO. VS. CIT, 123 ITR 457, THE FINDING IN THE ASSESS MENT PROCEEDINGS CANNOT BE REGARDED AS CONCLUSIVE FOR THE PURPOSES OF THE P ENALTY PROCEEDINGS. IT IS, THEREFORE, NECESSARY TO REAPPRECIATE AND RECONSIDER THE MATTER SO AS TO FIND OUT AS TO WHETHER THE ADDITION MADE IN THE QUANTUM PROCEEDINGS ACTUALLY REPRESENTS THE CONCEALMENT ON THE PART OF THE ASSES SEE AS ENVISAGED IN SEC. 271(1)(C) OF THE ACT AND WHETHER IT IS A FIT CASE T O IMPOSE THE PENALTY BY INVOKING THE SAID PROVISIONS. IT IS ALSO WELL SETTL ED THAT THE CRITERION AND YARDSTICKS FOR THE PURPOSE OF IMPOSING PENALTY U/S 271(1)(C) OF THE ACT ARE DIFFERENT THAN THOSE APPLIED FOR MAKING OR CONFIRMI NG THE ADDITIONS. THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. M. GEORGE & BROS. [1986] 160 ITR 511 HELD THAT WHERE THE ASSESSEE FOR ONE REASON OR THE OTHER AGREES OR SURRENDERS CERTAIN AMOUNTS FOR ASSESSMENT, THE IMPO SITION OF PENALTY SOLELY ON THE BASIS OF THE SURRENDER WILL NOT BE WELL-FOUN DED. HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V. SURAJ BHAN [2007] 159 TAXMAN 26 WHILE FOLLOWING THE DECISION IN CIT V. SURESH CHAND RA MITTAL [2001] 251 ITR CDR UDAI SINGH ITA NO. 791/IND/2014 12 9(SC), HELD THAT WHEN AN ASSESSEE FILES A REVISED R ETURN SHOWING HIGHER INCOME AND GIVES AN EXPLANATION THAT HE OFFERED HIG HER INCOME TO BUY PEACE OF MIND AND AVOID LITIGATION, PENALTY CANNOT BE IMPOSED MERELY ON ACCOUNT OF HIGHER INCOME HAVING BEEN SUBSEQUENTLY D ECLARED. THE HONBLE APEX COURT IN CIT V. SURESH CHANDRA MITTAL, [2001] 251 ITR 9/119 TAXMAN 433, UPHELD THE DECISION OF THE HONBLE MADHYA PRAD ESH HIGH COURT RENDERED IN THE CASE OF CIT VS. SURESH CHANDRA MITT AL [2000] 241 ITR 124, WHERE IN SIMILAR CIRCUMSTANCES IT WAS HELD THAT THE INITIAL BURDEN LIES ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAD CONCEALE D ITA NO.2970/DEL./2012 11 THE INCOME HAD FURNISHED INACC URATE PARTICULARS OF SUCH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS TO OFFER ANY EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE BY THE ASSESSING OFFICER. 8.1 IN QUDAI INTERNATIONAL VS. INCOME TAX OFFICER 2 009 (13) MTC 622 (TRIB), THE ITAT LUCKNOW BENCH 'A' HELD THAT 'MERE RAISING OF QUERY BY THE ASSESSING OFFICER DID NOT AMOUNT TO DETECTION OF CO NCEALMENT. IT CANNOT THEREFORE, BE SAID THAT THE REVISED RETURN WAS FILE D AFTER DETECTION OF CONCEALMENT AND WAS NOT VOLUNTARY. THE TERM 'DETECT ION' ITSELF IMPLIES THE ASSESSING OFFICER HAD REACHED A CONCLUSION BUT THE QUERY RAISED BY THE CDR UDAI SINGH ITA NO. 791/IND/2014 13 ASSESSING OFFICER WAS ONLY FIRST STEP IN DETECTION OF CONCEALMENT. IF THE ASSESSEE VOLUNTARILY REVISED THE RETURN, IT COULD N OT BE SAID THAT IT DOES NOT FULFILL REQUIREMENTS OF SECTION 139(5) OF THE ACT.' THE FACTS OF THE PRESENT CASE ARE ALSO SIMILAR TO THE FACTS OF THE AFORESAID REFERRED TO CASE. 8.2 SIMILARLY, IN THE CASE OF DY. CIT VS. TARUN AGA RWAL 2009 (13) MTC 831, THE ITAT LUCKNOW BENCH 'A' HELD THAT 'THE ASSESSEE HAD SURRENDERED THE AMOUNT BEFORE ANY SPECIFIC DETECTION OF UNDISCLOSED INCOME OR EVEN BEFORE THE ISSUE OF NOTICE. EVEN THOUGH A GENERAL ENQUIRY WAS GOING ON AND NOTICES HAD BEEN ISSUED TO SOME OF HIS RELATIVES AND THE AM OUNT MIGHT HAVE BEEN SURRENDERED BECAUSE OF COMPULSION OF CIRCUMSTANCES, IT WAS NOT SUFFICIENT TO PENALISE THE ASSESSEE AS THE FACTUM OF DETECTION WA S NOT THERE.' IN THE INSTANT CASE ALSO, NOTHING IS BROUGHT ON RECORD THA T THERE WAS ANY DETECTION AT THE LEVEL OF THE AO TO SUGGEST THAT THE ASSESSEE CONCEALED THE INCOME ON ACCOUNT OF CAPITAL GAINS, WHICH WAS OFFERED FOR TAX ATION SUO MOTU IN THE REVISED RETURN. 8.3 MERELY BECAUSE A NOTICE U/S 143(2) HAD ALREADY BEEN ISSUED AND THE ASSESSEE FILED REVISED RETURN THEREAFTER, DISCLOSIN G ADDITIONAL INCOME TOWARDS CAPITAL GAINS, WHICH WAS NOT CORRECTLY SHOW N IN THE ORIGINAL RETURN, DOES NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME U/S. 271(1)(C) CDR UDAI SINGH ITA NO. 791/IND/2014 14 OF THE ACT . ITA NO.2970/DEL./2012 12 HONBLE MADHY A PRADESH HIGH COURT IN THE CASE OF CIT V. S.V. ELECTRICALS P. LTD., 155 TAXMAN 158 AND HONBLE JHARKHAND HIGH COURT IN CIT V. ASHIM KUMAR AGARWAL, 153 TAXMAN 226 HELD THAT WHERE THE ASSESSEE SURRENDERS HIS FULL INCOME, THOUGH AT A LATER STAGE, THERE WAS NO QUESTION OF ANY CONCEALMENT ON HIS PAR T AND CONSEQUENTLY, NO PENALTY UNDER SECTION 271(1)(C) WAS LEVIABLE, AND T HAT A OMISSION FROM RETURN OF INCOME DID NOT AMOUNT TO CONCEALMENT. HON BLE JURISDICTIONAL HIGH COURT WHILE ADJUDICATING THE ISSUE OF LEVY OF P ENALTY U/S 271(1)(C) OF THE ACT IN THE CASE OF CIT VS. HARNARAIN IN THEIR D ECISION DATED 31ST OCTOBER,2011 IN ITA NO.2072/2010 CONCLUDED THAT SU RRENDER OF THE AMOUNT BY THE ASSESSEE AFTER RECEIPT OF THE QUESTIONNAIRE COULD NOT LEAD TO AN INFERENCE THAT IT WAS NOT VOLUNTARY, IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SUGGEST THAT IT WAS BOGUS OR UNTRUE. IT IS FURTH ER EVIDENT THAT THERE WAS NEITHER ANY DETECTION NOR ANY INFORMATION IN THE PO SSESSION OF THE REVENUE WHICH MIGHT LEAD TO A CONCLUSION THAT THERE WAS A D ETECTION BY THE REVENUE OF CONCEALMENT. ACCORDINGLY, THE QUESTION OF LAW FR AMED IS ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THE TRIBUN AL, WE DELETE THE PENALTY. CDR UDAI SINGH ITA NO. 791/IND/2014 15 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 19 TH JANUARY, 2017. SD/- SD/- (..) ( . .) (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER JU DICIAL MEMBER / DATED : 19 TH JANUARY, 2017. DN/