SATYA NARAIN GUPTA, Jaipur V. DCIT, Jaipur

ITA 823/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2234 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R MEENA
• Assessee Lawyers: S L PODDAR
• Keywords: Business income; Search and seizure; Loose papers; Question of law; Revised return
• Section: 143(3); 133A; 153A; 27; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 823/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2009-10 SHRI SATYA NARAIN GUPTA 1, KOOLWAL BHAWAN, JANTA COLONY, JAIPUR CUKE VS THE DCIT, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPPG4771K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. L. PODDAR (ADVOCATE) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P. R. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 14/11/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 02/01/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 29.08.2016 OF CIT (A), JAIPUR FOR THE ASSESSMENT YE AR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED CIT(A) HAS ERRED IN PASSING THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHICH VOID AB-INITIO DESERVES TO BE Q UASHED. ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 2 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) HAS ERRED IN CONFIRMED THE PENALTY OF RS. 3, 25,595/- U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS WHI CH READ AS UNDER:- ADDITIONAL GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ORDER 29.06.2012 PASSED BY THE LEARNED ASSESSIN G OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WITHOUT STRIK ING OFF THE IRRELEVANT PORTION OF THE PRINTED SHOW CAUSE NOTICE VIZ., FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALED PARTI CULARS OF SUCH INCOME IS BAD IN LAW. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER U NDER SECTION 271(1)(C) OF THE ACT IS AGAINST THE PRINCIPLES OF J UDICIAL CONSISTENCY AND THEREFORE, BAD IN LAW. FOR ADMISSION OF ADDITIONAL GROUNDS ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 3 2 THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ADDITIONAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE FIRST TIME BEFORE THIS TRIBUNAL. HOWEVER, THIS GROUND IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER. THEREFORE, THE ADDITIONAL GROUND MAY BE ADMITTED FOR ADJUDICATION. HE HAS FURTHER SUBMITTED THAT FOR ADJ UDICATION OF THE ADDITIONAL GROUND NO FRESH MATERIAL, EVIDENCE OR FA CTS ARE REQUIRED TO BE INVESTIGATED AND THE SAME MAY BE DECIDED ON THE BAS IS OF THE FACTS WHICH ARE ON RECORD. HE HAS RELIED UPON A DECISION OF HONBLE SUPREME COURT IN CASE OF NTPC VS.CIT (1998) 229 ITR 383 (SC ) AND SUBMITTED THAT WHEN THIS TRIBUNAL IS REQUIRED TO CONSIDER ONL Y AN QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD OF THE A SSESSMENT PROCEEDINGS THEN SUCH QUESTION OF LAW SHOULD BE ALL OWED TO BE RAISED AS IT IS NECESSARY TO DECIDE CORRECTNESS AND SUSTAI NABILITY OF THE IMPUGNED ORDER. HE HAS ALSO RELIED UPON THE DECISIO N OF HONBLE KERALA HIGH COURT IN CASE OF CIT VS. KERALA STATE CO-OPERA TIVE MARKETING FEDERATION LEARNED. (1992) 193 ITR 624 (KER) AS WEL L AS THE DECISION OF MUMBAI SPECIAL BENCH OF THIS TRIBUNAL IN CASE OF MA HINDRA & MAHINDRA LTD. VS. DCIT (2009) 122 TTJ 577 (MUB) (SB) AND SUB MITTED THAT IT WAS HELD THAT THERE CAN BE NO EMBARGO ON ANY PARTY TO R AISE A LEGAL ISSUE ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 4 FOR FIRST TIME BEFORE THIS TRIBUNAL PROVIDED THE RE LEVANT MATERIAL FOR DECIDING THAT QUESTION ALREADY EXISTED ON THE RECOR D. 3. ON THE OTHER HAND, LD. DR VEHEMENTLY HAS OPPOSED TO THE ADMISSION OF THE ADDITIONAL GROUND AND SUBMITTED TH AT ASSESSEE HAS NOT EXPLAINED THE SUFFICIENT REASON AS TO WHY THIS ADDI TIONAL GROUND WAS NOT RAISED BEFORE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD FOR ADMISSION OF THE ADDITIONAL GROUND. THERE IS NO DISPUTE THAT THE ADDITIONAL GROUND RAISED BY THE AS SESSEE INVOLVES PURE QUESTION OF LAW AND THE ADJUDICATION OF WHICH DOES NOT REQUIRE ANY INVESTIGATION OR EXAMINATION OF FRESH FACTS OR EVID ENCE BUT THE SAME CAN BE DECIDED ON THE BASIS OF THE FACTS AND MATERIAL A LREADY ON RECORD. THEREFORE, IN VIEW OF THE DECISION OF HONBLE SUPRE ME COURT IN CASE OF NTPC VS.CIT (1998) 229 ITR 383 (SC)(SUPRA) AS WELL AS THE DECISION OF THE MUMBAI SPECIAL BENCH IN CASE OF MAHINDRA & MAHI NDRA LTD. VS. DCIT (2009) 122 TTJ 577 (MUB) (SB) WE ADMIT THE ADD ITIONAL GROUND RAISED BY THE ASSESSEE FOR ADJUDICATION. ON MERIT OF ADDITIONAL GROUND . ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 5 5. THE LD. AR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS ISSUED NOTICE U/S 274 READ WITH SECTION 271(1)(C) ON 29.12 .2011 WHICH IS PLACED AT PAGE 4 OF PAPER BOOKS AND THE RELEVANT PA RT OF THE NOTICE READS AS UNDER:- HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 5.1. HE HAS POINTED OUT THAT ASSESSING OFFICER HAS NOT SPECIFIED THE DEFAULT OF THE ASSESSEE WHETHER CONCEALMENT OF PART ICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 5.2. THE ASSESSING OFFICER CAN INITIATE THE PROCEED INGS FOR LEVY OF PENALTY ON THE BASIS OF THE GROUNDS AS MENTIONED IN THE SHOW CAUSE NOTICE ISSUED U/S 274 OF THE ACT. THE EXISTENCE OF THE GROUND/CONDITIONS AS STIPULATED IN SECTION 271(1)(C) IS MANDATORY FOR INITIATION OF PROCEEDINGS FOR LEVY OF PENALTY U/S 271. 5.3. THEREFORE, THE NOTICE ISSUED U/S 274 OF THE AC T SHOULD SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271 (1)(C) I .E WHETHER IT IS FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. THE AO ISSUED A NOTICE U/S 274 IN PRINTED PERFORMA WITHOUT SPECIFIED ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 6 THE GROUNDS OF PENALTY COMMITTED BY THE ASSESSEE. T HE REQUIREMENT OF LAW IS NOT SPECIFIED. 5.4. THE LD. AR THUS CONTENDED THAT THE NOTICE ISSU ED U/S 274 IN THE CASE OF THE ASSESSEE IS THE LIABLE TO BE QUASHED. IN SUPPORT OF THE CONTENTION HE HAS RELIED UPON THE DECISION OF HONB LE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON & GINNIN G FACTORY (2013) 359 ITR 565 AS WELL AS THE DECISION OF HONBLE JURI SDICTION HIGH COURT DATED 06.12.2016 IN CASE OF SHEVETA CONSTRUCTION CO MPANY PVT. LTD., VS. ITO IN ITA NO. 534 OF 2008. 6. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT IN THIS CASE, THE PENALTY HAS BEEN LEVIED BY THE AO ON THE AMOUNT WHI CH WAS SURRENDERED BY THE ASSESSEE DURING THE COURSE OF SE ARCH AND THEREFORE, THERE WAS NO NEED TO EXPLAIN THE GROUND ON WHICH TH E PENALTY WAS PROPOSED TO BE LEVIED BY THE ASSESSING OFFICER. HE HAS FURTHER SUBMITTED THAT IT IS CLEAR CASE OF CONCEALMENT OF P ARTICULARS OF INCOME AS ASSESSEE DID NOT FILE ANY RETURN OF INCOME FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION TILL THE DATE OF SEARCH DESPITE THE PERIOD FOR FILING, THE RETURN OF U/S 139(1) WAS ALREADY EXPIRED. THUS, LD. DR HAS CONTENDED THAT WHEN THERE WAS NO PRIOR RETURN OF IN COME TO THE DATE OF SEARCH AND ASSESSEE HAS SURRENDERED INCOME OF RS. 1 0,000,00/- AS ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 7 UNDISCLOSED INCOME THEN THE CASE OF THE ASSESSEE FA LLS IN THE CATEGORY OF CONCEALMENT OF PARTICULARS OF INCOME. HE HAS SUP PORTED THE ORDER OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. BRIEF FACTS THE RELEVANT TO THE ISSUE HAVE EMERGED FROM THE RECORD THAT A SEARCH AND SEIZURE ACTION U/ S 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 20.10.20 09. DURING THE COURSE OF SEARCH THE ASSESSEE SURRENDERED INCOME OF RS. 10,000,00/- ON ACCOUNT OF INVESTMENT/CASH TRANSACTIONS IN THE P ROPERTY. IN RESPONSE TO NOTICE U/S 153(A) THE ASSESSEE FILED HIS RETURN OF INCOME AND OFFERED AN AMOUNT OF RS. 10,000,00/- TO TAX UNDER THE HEAD INCOME FROM THE OTHER SOURCES. AS ASSESSEE SURRENDERED BY HIM FROM THE COURSE OF SEARCH. THE ASSESSING OFFICER FRAMED AY U/S 143(3) READ WITH SECTION 153(A) ON THE RETURN INCOME ON 29.12.2011. THUS, TH E ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS MADE NO ADDITIO N TO THE RETURN INCOME BUT RECORDED ITS SATISFACTION FOR INITIATING THE PENALTY PROCEEDINGS U/S 271(1)(C) IN RESPECT OF SURRENDERED AMOUNT OF RS. 10,000,00/-. ACCORDINGLY, AO ISSUED THE NOTICE DATE D 29.12.2011 U/S 274 READ WITH SECTION 271 OF INCOME TAX ACT. ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 8 7.1. THE LD. AR OF THE ASSESSEE HAS CHALLENGED THE VALIDITY OF SHOW CAUSE NOTICE U/S 274 ON THE GROUND THAT THE AO HAS NOT SPECIFIED THE GROUNDS ON WHICH THE PENALTY PROCEEDINGS WERE INITI ATED AND THE PENALTY WAS PROPOSED TO BE LEVIED. AS IT IS CLEAR F ROM THE FACTS AS NARRATED ABOVE THAT IT IS A CASE OF SURRENDER OF UN DISCLOSED INCOME DEDECTED. DURING THE COURSE OF SEARCH. SINCE ASSESS EE OFFERED THE SAID SURRENDER INCOME OF RS. 10,000,00/- TO TAX IN THE R ETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT THEREFORE , IT IS NOTE A CASE OF ANY ADDITION MADE BY THE AO DURING THE COURSE OF AS SESSMENT PROCEEDINGS. THERE IS NO QUARREL THAT IT IS INCUMBE NT UPON THE AO TO SPECIFY THE GROUND AND DEFAULT COMMITTED BY THE ASS ESSEE ON WHICH THE PENALTY WAS PROPOSED TO BE LEVIED U/S 271(1)(C). AS PER SECTION 271(1)(C) A PENALTY CAN BE LEVIED EITHER ON THE GRO UND OF CONCEALMENT OF PARTICULARS OF INCOME OR ON THE GROUND OF FURNIS HING INACCURATE PARTICULARS OF INCOME. 7.2. IF AN ADDITION IS MADE BY THE AO THEN SAID ACT ION OF THE AO MAY LEAD TO EITHER FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE OR CONCEALMENT OF THE PARTICULARS OF INCOM E AND THEREFORE IN SUCH A SITUATION IF THE AO PROPOSED TO INITIATE THE PROCEEDINGS U/S 271(1)(C) THEN HE IS REQUIRED TO SPECIFY WHETHER TH E ASSESSEE HAS ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 9 COMMITTED THE DEFAULT OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. WE FIN D THAT THE ASSESSING OFFICER HAS NOT SPECIFICALLY STATED IN THE SHOW CAU SE NOTICE AS WHAT DEFAULT WAS COMMITTED BY THE ASSESSEE. HOWEVER, THE QUESTION OF THE SPECIFYING THE DEFAULT ARISES ONLY WHEN THE ADDITIO N IN THE INCOME OF THE ASSESSEE IS MADE BY THE AO AND CONSEQUENTLY THE AO PROPOSED TO INITIATE THE PROCEEDINGS FOR LEVY OF PENALTY U/S 27 1(1)(C) IN RESPECT OF SUCH AN ADDITION MADE TO THE INCOME OF THE ASSESSEE . THEREFORE, IF THE INCOME OF THE ASSESSEE IS ASSESSED AT HIGHER AMOUNT THAN THE RETURN INCOME THEN IT IS THE DUTY OF THE AO TO SPECIFY SUC H ADDITION/DISALLOWANCE RESULTING INCREASE OF TOTAL I NCOME WAS ON ACCOUNT OF CONCEALMENT OF PARTICULARS OF INCOME OR DUE TO F URNISHING INACCURATE PARTICULARS OF INCOME. THE AO HAS TO SPECIFY THE DE FAULT FOR WHICH IT PROPOSED TO INITIATE THE PROCEEDINGS FOR LEVY OF PE NALTY U/S 271(1)(C). IT IS PERTAIN TO NOTE THAT THE ADDITION MADE BY THE AO DURING THE ASSESSMENT PROCEEDINGS MAY BE EITHER DUE TO CONCEAL MENT OF PARTICULARS OF INCOME OR DUE TO FURNISHING OF INACC URATE PARTICULARS OF INCOME. SINCE IT IS THE ACTION OF THE AO RESULTED A DDITION IN THE TOTAL INCOME THEREFORE, IT IS DUTY OF THE AO TO SPECIFY T HE DEFAULT OF THE ASSESSEE FOR WHICH SUCH ADDITION IN THE TOTAL INCOM E IS MADE AND ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 10 CONSEQUENTLY THE LEVY OF PENALTY IS PROPOSED. THIS REQUIREMENT OF SPECIFYING THE DEFAULT OR GROUND TO INITIATE THE PR OCEEDINGS FOR LEVY OF PENALTY IS NOT IN DISPUTE AS HELD BY THE HONBLE HI GH COURTS IN THE DECISIONS RELIED UPON BY THE LD. AR OF THE ASSESSEE . THE VERY OBJECT AND PURPOSE FOR SPECIFYING THE DEFAULT IS TO MAKE THE A SSESSEE KNOWN ABOUT THE GROUND ON WHICH THE PENALTY IS INTENDED TO BE I MPOSED AND TO MEET THE CASE OF THE DEPARTMENT THAT THE CONDITIONS STIP ULATED U/S 271(1)(C) DO NOT EXIST. 7.3. THEREFORE, SPECIFYING THE DEFAULT IN THE SHOW CAUSE NOTICE IS MANDATORY IN THE SENSE THAT THE ASSESSEE MUST KNOW WHICH DEFAULT HE HAS COMMITTED AND SHOULD HAVE FULLY OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT. THUS THERE IS NO QUARREL ON THE PRO CEDENCE AS CITED AND RELIED UPON BY THE LD. AR HOWEVER IN THE CASE O F THE ASSESSEE IT IS NOT AN ADDITION MADE BY THE AO BUT THE ASSESSEE SUR RENDERED THE INCOME TO TAX AND THEREFORE THE SAID SURRENDER OF I NCOME WOULD NOT FALL IN THE CATEGORY OF FURNISHING INACCURATE PARTICULAR S OF INCOME MORE SO WHEN THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME PRIOR TO THE DATE OF SEARCH. THE ASSESSEE OFFERED THIS AMOUNT TO TAX IN THE RETURN OF INCOME AND NO FURTHER ADDITION WAS MADE BY THE AO. THEREFO RE THE DEFAULT IN THE NATURE OF FURNISHING INACCURATE PARTICULARS OF INCOME IS RULED OUT. ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 11 HENCE IT CAN ONLY BE IN THE CATEGORY OF CONCEALMENT OF PARTICULARS OF INCOME AS THE ASSESSEE DID NOT FILE ANY RETURN OF I NCOME PRIOR TO THE DATE OF SEARCH AND TIME LIMIT FOR FILING THE RETURN OF INCOME U/S 139(1) WAS ALREADY EXPIRED ON 31 ST JULY, 2009 MUCH PRIOR DATE OF SEARCH. ACCORDINGLY, THE AMOUNT SURRENDERED DURING THE COUR SE OF SEARCH AND SEIZURE ACTION AND SUBSEQUENTLY OFFERED TO TAX IN T HE RETURN OF INCOME FILED POST SEARCH WOULD FALL IN THE CATEGORY OF CON CEALMENT OF PARTICULARS OF INCOME. WHEN THERE IS ONLY ONE POSSIBILITY OF DE FAULT AND NOT THE POSSIBILITY OF EITHER OF TWO DEFAULTS THEN THE REQU IREMENT OF SPECIFYING THE DEFAULT DOES NOT ARISE. THE ASSESSEE HIMSELF SU RRENDERED AND OFFERED THE SAID AMOUNT TO TAX. THEREFORE, IT IS BE ST KNOWN TO ASSESSEE WHAT DEFAULT HE HAD COMMITTED SUCH DEFAULT. ACCORDI NGLY IN THE PECULIAR FACTS OF THE CASE THE DECISION RELIED UPON BY THE L D. AR ARE NOT APPLICABLE. HENCE THE INCOME SURRENDERED BY THE ASS ESSEE ON ACCOUNT OF INVESTMENT IN PROPERTIES IN NOTHING BUT UNDISCLO SED INCOME AND THEREFORE, THE QUESTION OF SPECIFYING THE DEFAULT B Y THE AO WOULD NOT ARISE AS IT WAS VERY WELL TO NONE TO THE ASSESSEE T HAT IT IS CONCEALMENT OF PARTICULARS OF INCOME. ACCORDINGLY THE ADDITION AL GROUND RAISED BY THE ASSESSEE IS DISMISSED. ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 12 8. AS REGARDS THE MAIN GROUNDS OF THE APPEAL, LD. A R OF THE ASSESSEE HAS SUBMITTED THAT IN THE INCOME WAS SURRE NDERED AS PER IN THE STATEMENT U/S 132(4) AND THEREFORE, THERE IS NO ADDITION BY THE AO ON THE BASIS OF ANY INCREMENTING DOCUMENT. HENCE TH E EXPLANATION 5A TO SECTION 271(1)(C) IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. HE HAS RELIED THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF RAJPAL BHATIA 333 ITR 315. 9. THE LD. AR HAS FURTHER CONTENDED THAT THE AO HAS NOT MADE ANY REFERENCE TO ANY INCREMENTING MATERIAL IN THE ASSES SMENT ORDER. THEREFORE, THE PROVISIONS OF EXPLANATION 5A TO SECT ION 271(1)(C) ARE NOT ATTRACTED PARTICULARLY WHEN THE ASSESSEE WAS NOT FO UND OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE S OR THING OR ANY INCOME BASED ON ANY ENTRY IN BOOKS OF ACCOUNTS OR O THER DOCUMENTS OR TRANSACTIONS. THE INCOME HAS BEEN ASSESSED AS DISCL OSED ON THE BASIS OF FLAT CONFESSIONAL STATEMENT MADE THE ASSESSEE DU RING THE COURSE OF SEARCH. ALTERNATIVELY, THE AR HAS SUBMITTED THAT TH E SEARCH IN THE CASE OF THE ASSESSEE WAS CONDUCTED ON 28 TH OCT, 2009 AND THE ASSESSEE COULD HAVE FILED RETURN OF INCOME WITHOUT ANY PENAL CONSEQUENCES UP TO 31 ST MARCH, 2010. WHEREAS THE RETURN OF INCOME IN THE C ASE OF THE ASSESSEE WAS FILED ON 22 ND MARCH, 2010. THEREFORE, THE PROVISIONS OF ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 13 SECTION 271(1)(C) READ WITH EXPLANATION 5A ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. HE HAS RELIED UPON THE DECISI ON OF THE MUMBAI BENCH TRIBUNAL DATED 28.08.2013 IN CASE OF KSHITI R . MANIAR, MUMBAI VS. ACIT IN ITA NO. 1020/MUM/2011. 10. THE LD. AR HAS SUBMITTED THAT THE TIME FOR FILI NG THE RETURN OF INCOME WAS AVAILABLE WITH THE ASSESSEE AS PER SECTI ON 139(4) THEN THE PROVISIONS OF SECTION 271(1)(C) READ WITH EXPLANATI ON 5A ARE NOT ATTRACTED. THE ASSESSING OFFICER HAS NOT MADE ANY A DDITION TO THE RETURN INCOME FILED IN RESPONSE TO NOTICE U/S 153(A ) THEN THE PROVISIONS OF SECTION 271(1)(C) ARE NOT ATTRACTED. HE HAS RELI ED UPON THE DECISION IN CASE OF SMT. PRAMILA D. ASHTEKAR & ORS. VS. ITO (2013) 154 TTJ (PUNE) (UO) 46. THE ASSESSEE HAS INCLUDED THE INCOM E OF RS. 10,000,00/- ONLY TO HONOUR THE COMMITMENT MADE DURI NG THE COURSE OF SEARCH, OTHERWISE THERE IS NOTHING TO SHOW THAT THE ASSESSEE HAS CONCEALED ANY INCOME. THE INCOME OFFERED TO TAX WAS TO BY PEACE OF MIND AND TO COME OUT OF WAXED LITIGATION COULD BE T REATED AS BONA FIDE EXPLANATION. 11. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT DU RING THE COURSE OF SEARCH AND SEIZURE ACTION CASH JEWELER, STOCK EN TRY, VALUABLES DOCUMENTS, BOOKS OF ACCOUNTS AND LOOSE PAPERS WERE FOUND AND SEIZED ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 14 FROM THE PREMISES OF THE MEMBERS OF SODHANI SWEETS GROUP OF WHICH ASSESSEE BELONGS. BASED ON THE MATERIAL FOUND, DURI NG THE SEARCH UNDISCLOSED INVESTMENT IN THE PROPERTY WAS DETECTED AND ACCORDINGLY THE ASSESSEE SURRENDERED AN AMOUNT OF RS. 10,000,00 /- AS UNDISCLOSED INCOME. THEREFORE WHEN THE ASSESSMENT WAS COMPLETED ON THE BASIS OF THE SEARCH AND SEIZURE ACTION THEN EXPLANATION 5A O F SECTION 271 (1)(C) IS APPLICABLE IN THE CASE OF THE ASSESSEE. 12. THE LD. DR HAS RELIED UPON THE ORDERS OF THE AU THORITIES BELOW AND THE 3 RD MEMBER DECISION OF THIS TRIBUNAL IN CASE OF GRASS FIELD FARMS & RESORTS PVT. LTD. VS. DCIT(TM/[2016] 159 TT D 31 AND SUBMITTED THAT AS PER THE MAJORITY VIEW OF THE TRIB UNAL THE EXPLANATION 5A TO SECTION 271(1)(C) IS APPLICABLE IN THE CASE W HERE THE ASSESSEE HAS SURRENDERED THE UNDISCLOSED INCOME DETECTED DURING THE COURSE OF SEARCH AND SEIZURE ACTION. HE HAS ALSO RELIED UPON THE DECISION DATED 31 ST OCT, 2012 OF CHANDIGARH BENCH OF TRIBUNAL IN CASE OF SHRI RAJNISH VOHRA VS. DCIT, CC-1, IN ITA NO. 516/CHD/2012 AND S UBMITTED THAT THE INCOME OFFERED TO TAX CANNOT BE SAID TO BE VOLUNTEE R BUT ONLY AFTER SAID UNDISCLOSED INCOME WAS DETECTED DURING THE COURSE O F SEARCH AND SURRENDERED BY THE ASSESSEE. THEREFORE THE PENALTY LEVIED U/S 271(1)(C) IS JUSTIFIED. ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 15 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER HAS RECOR DED IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF IT.ACT THAT D URING THE COURSE OF SEARCH CASH JEWELLERY, STOCK-IN-TRADE, VALUABLES DO CUMENTS, BOOKS OF ACCOUNTS, LOOSE PAPERS AND OTHER MATERIAL FOUND. BA SED ON THE SAID SEIZED MATERIAL THE ASSESSEE SURRENDERED A SUM OF R S. 10,000,00/- AS UNDISCLOSED INCOME BEING INVESTMENT IN THE PROPERTY . THEREFORE IT IS CLEAR THAT THE SURRENDER WAS NOT VOLUNTARY OFFERED INCOME TO TAX BUT DUE TO THE DETECTION OF UNDISCLOSED INCOME DURING T HE SEARCH AND SEIZURE ACTION. THESE FACTS OF THE CASE CLEARLY BRI NGS THE SAME IN THE AMBIT OF EXPLANATION 5A OF SECTION 271(1)(C) WHICH READS AS UNDER:- [ EXPLANATION 5A. WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF ( I ) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSET S HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PAR T) HIS INCOME FOR ANY PREVIOUS YEAR; OR ( II ) AN Y INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT O R OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, ( A ) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; O R ( B ) THE DUE DAT E FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEA R H AS EXPIRED BUT THE ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 16 ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE ( C ) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME.] 14. THE UNDISCLOSED INCOME WAS DETECTED/DISCOVERED IN THE FORM OF INVESTMENT IN HE PROPERTY AND THEREFORE THE ASSESSE E WAS FOUND TO BE OWNER OF ASSETS VALUE OF WHICH WAS NOT DISCLOSED AN D CONSEQUENTLY IT FALLS IN CLAUSE (I) TO EXPLANATION 5A TO SECTION 27 1 (1)(C). FURTHER THERE IS NO DISPUTE THAT ASSESSEE ADMITTED THE ACQUISITIO N OF PROPERTY BY UTILIZING HIS INCOME FROM THE PREVIOUS YEAR ENDED B EFORE THE DATE OF SEARCH AND ACCORDINGLY THE ASSESSEE SURRENDERED THE SAID AMOUNT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. SINCE ASSE SSEE DID NOT FILE RETURN OF INCOME BEFORE THE DATE OF SEARCH NOTWITHS TANDING THE SAID INCOME DECLARED IN THE RETURN OF INCOME FURNISHED A FTER THE DATE OF SEARCH, FOR PURPOSE OF LEVY PENALTY U/S 271(1)(C) T HE ASSESSEE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME TO THE EXTENT OF SUCH AMOUNT WHICH WAS SURRENDERED AND OFFERED TO TA X IN THE RETURN OF INCOME FILED POST SEARCH. AN IDENTICAL ISSUE WAS CO NSIDERED BY THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN CASE OF GRASS FI ELD FARMS & RESORTS ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 17 (P) VS. DCIT WHEREIN THE HONBLE 3 RD MEMBER AGREEING WITH THE VIEW OF THE JUDICIAL MEMBER HAS HELD IN PARA 29- 37 AS UNDE R:- 29. SO FAR AS FIRST ISSUE RAISED IN THE GROUNDS OF APP EAL OF THE ASSESSEE THAT THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) IS BARRED BY LIMITATION IS CONCERNED, THE CIT (APPEALS) REJECTED THE GROUND RAISED BY THE ASSESSEE BY PASSING A DETAILED ORDER. EVEN BEFORE T HE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT ADVANCED ANY ARGUMENT IN R ELATION TO LIMITATIONS FOR PASSING PENALTY ORDER. THEREFORE, THE FIRST ISSUE R AISED BY THE ASSESSEE STANDS REJECTED. 30. THE FIRST POINT FOR CONSIDERATION IS WHETHER, THE ASSESSEE HAS FILED CORRECT PARTICULARS OF INCOME BEFORE THE ASSESSING OFFICER. IT IS IMMATERIAL WHETHER THE UNDISCLOSED INVESTMENT IS BUSINESS INCOME OR NO T. THE ASSESSEE HAS PURCHASED AGRICULTURAL LAND FOR HIGHER PRICE, BUT R ECORDED IT AT A LESSER VALUE IN THE REGULAR BOOKS OF ACCOUNT. THIS FACT WAS ADMITTE D BY THE DIRECTORS OF THE COMPANY WHEN THE SURVEY TEAM CONFRONTED WITH INCRIM INATING MATERIAL. THE DIRECTORS OF THE COMPANY CALCULATED UNDISCLOSED INV ESTMENT OF RS. 3,02,33,672/- AND THEREAFTER FILED REVISED RETURN O F INCOME. THEREFORE, IT IS VERY CLEAR THAT THE ASSESSEE HAS NOT FILED TRUE, CO MPLETE AND CORRECT PARTICULARS OF INCOME AT THE TIME OF FILING ORIGINAL RETURN. 31. THE SECOND ASPECT FOR CONSIDERATION IS WHETHER THE REVISED RETURN FILED BY THE ASSESSEE IS VOLUNTARY OR NOT. WHEN SURVEY UNDER SECTION 133A OF THE ACT WAS TAKEN PLACE AT THE PREMISES OF THE ASSESSEE, TH E DEPARTMENT DETECTED SOME INCRIMINATING DOCUMENTS RELATING TO PURCHASE OF THE PROPERTY. WHEREIN, THE DEPARTMENT FOUND THAT THE ASSESSEE HAS PAID EXCESS PAYMENT, BUT IN THE BOOKS, IT HAS SHOWN LOWER VALUE. AFTER ENQUIRY WITH THE EM PLOYEES OF THE ASSESSEE AND THEREAFTER RECORDING THEIR STATEMENT, WHICH WER E CONFRONTED WITH THE DIRECTOR OF THE ASSESSEE COMPANY SHRI SUNIL BANSAL ADMITTED THE SAME THAT THEY HAVE RECORDED LESSER VALUE IN THE BOOKS. THERE AFTER, THE DIRECTORS OF THE ASSESSEE COMPANY CALCULATED THE CONCEALED INCOME AN D FILED REVISED RETURN ON 28.03.2008. THEREFORE, THE REVISED RETURN FILED BY THE ASSESSEE CANNOT BE CONSIDERED AS VOLUNTARY RETURN AND THE ASSESSING OF FICER HAS RIGHTLY REJECTED THE SAME. EVEN, IN FACT, BEFORE THE ASSESSING OFFIC ER, THE ASSESSEE HAS NOT GIVEN ANY REASON FOR FILING THE REVISED RETURN. INS OFAR AS THE ARGUMENT OF THE COUNSEL FOR THE ASSESSEE IS CONCERNED, THE STATEMEN T GIVEN DURING THE COURSE OF SURVEY HAVE NO VALUE IN THE EYES OF LAW, IT HAS NO APPLICATION FOR THE SIMPLE REASON THAT IF THE ASSESSING OFFICER PROCEEDING TO IMPOSE PENALTY SIMPLY ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE O F SURVEY, THE ARGUMENT OF THE ID. COUNSEL FOR THE ASSESSEE MAY BE ACCEPTABLE. BUT, IN THE PRESENT CASE, DURING THE SURVEY, THE DEPARTMENT FOUND INCRIMINATI NG MATERIAL, STATEMENT OF THE EMPLOYEES AND DIRECTORS OF THE COMPANY WERE REC ORDED AND THEREAFTER, THE DIRECTORS OF THE ASSESSEE COMPANY HAVE CALCULATED T HE CONCEALED INCOME AND ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 18 FILED THE REVISED RETURN ON 28.03.2008. UNDER THESE FACTS AND CIRCUMSTANCES, THE CASE LAW RELIED ON BY THE ASSESSEE IN THE CASE OF KHADER KHAN SON ( SUPRA ) HAVE NO APPLICATION. 32. SO FAR AS ARGUMENT OF THE ASSESSEE IS CONCERNED, T HERE IS NO MATERIAL AVAILABLE ON RECORD WITH REGARD TO ON MONEY PAYMENT , DURING THE COURSE OF SURVEY CERTAIN INCRIMINATING DOCUMENTS WERE FOUND A ND THE SAME WERE BROUGHT TO THE NOTICE OF THE DIRECTORS OF THE COMPA NY AND THE DIRECTORS OF THE COMPANY THEMSELVES ACCEPTED THERE IS UNDISCLOSED IN VESTMENT. THEREFORE, THE ARGUMENT OF THE ASSESSEE IS REJECTED. 33. FURTHER, AS ARGUED BY THE ID. COUNSEL FOR THE ASSE SSEE THAT THE REVISED RETURN WAS FILED DUE TO PRESSURE FROM THE DEPARTMEN T, THERE IS NOTHING ON RECORD THAT THE ASSESSEE FILED REVISED RETURN OF IN COME DUE TO PRESSURE FROM THE DEPARTMENT. IN FACT, THE DIRECTORS OF THE ASSESSEE COMPANY THEMSELVES HAVE CALCULATED THE UNDISCLOSED INCOME AND THEREAFTER RE VISED RETURN WAS FILED. HENCE, THE LD. COUNSEL FOR THE ASSESSEE'S ARGUMENT STANDS REJECTED. 34. FURTHER, THE CONTENTION OF THE ID. COUNSEL FOR THE ASSESSEE THAT THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY EITHER I N THE ASSESSMENT PROCEEDINGS OR IN THE PENALTY PROCEEDINGS, THE PENA LTY CANNOT SURVIVE, APPEARS TO BE INCORRECT. WHEN THE INCRIMINATING MATERIAL BR OUGHT TO THE NOTICE OF THE DIRECTORS OF THE ASSESSEE COMPANY, THEY THEMSELVES CALCULATED THE UNDISCLOSED INCOME AND THEREFORE, THERE IS NO NECESSITY THE ASS ESSING OFFICER TO CONDUCT FURTHER ENQUIRY IN THIS CASE. IT IS NOT NECESSARY T HAT IN EACH AND EVERY CASE ENQUIRY HAS TO BE CONDUCTED. IT IS OPEN TO THE ASSE SSING OFFICER WHETHER TO CONDUCT ENQUIRY OR NOT DEPENDING UPON THE FACTS AND CIRCUMSTANCES. IN THIS CASE, WHEN THE DIRECTORS THEMSELVES CALCULATED THE UNDISCLOSED INCOME, THERE IS NO NECESSITY THE ASSESSING OFFICER TO FURTHER CO NDUCT ENQUIRY ABOUT THE UNDISCLOSED INCOME. ACCORDINGLY, THE ARGUMENT OF TH E ID. COUNSEL FOR THE ASSESSEE IS REJECTED. 35. FURTHER, THE CASE LAW CITED BY THE ID. COUNSEL FOR THE ASSESSEE HAVE BEEN CAREFULLY CONSIDERED AND FIND THAT THEY HAVE NO APP LICATION TO THE FACTS OF THE CASE IN HAND. 36. IN THIS CASE, THE ASSESSEE FAILED TO EXPLAIN BEFOR E THE LOWER AUTHORITIES AND EVEN BEFORE US AS TO WHY THE ASSESSEE WAS NOT ABLE TO FILE CORRECT PARTICULARS OF INCOME IN THE ORIGINAL RETURN FILED ON 29.11.2006, WHICH HAS BEEN FILED SUBSEQUENT TO THE SURVEY, THE ASSESSEE FILED REVISE D RETURN ON 28.03.2008. IT IS FOUND FROM THE RECORD THAT THE ASSESSEE HAS NOT FUR NISHED TRUE AND COMPLETE PARTICULARS OF INCOME AT THE TIME OF FILING ORIGINA L RETURN OF INCOME ON 29.11.2006 AND THE REVISED RETURN FILED BY THE ASSE SSEE ON 28.03.2008 IS NOT VOLUNTARY. THE ASSESSEE BY FILING INACCURATE PARTIC ULARS CONCEALED THE INCOME. THUS, IT IS A FIT CASE TO IMPOSE PENALTY UNDER SECT ION 271 (1)(C) OF THE ACT. 37. THE FIRST APPELLATE AUTHORITY, AFTER CAREFUL CONSI DERATION OF THE ISSUE AND DISTINGUISHING VARIOUS CASE LAW CITED BY THE LD. CO UNSEL FOR THE ASSESSEE AND ITA NO. 823/JP/2017 SH. SATYA NARAIN GUPTA, JAIPUR VS. DCIT, JAIPUR 19 BY REFERRING CATENA OF CASE LAW IN THE CASES OF LAT E M.S. MOHAMMED MARZOOK ( SUPRA ), MAHABIT PRASAD BAJAJ ( SUPRA ) AND LMP PRECISION ENGG. CO. LTD. ( SUPRA ), CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING O FFICER. SINCE THE ASSESSEE, IN THIS CASE, BY FILING INACCUR ATE PARTICULARS AND CONCEALED INCOME, IT IS A FIT CASE TO IMPOSE PENALTY AND THER E IS NO VALID REASON TO INTERFERE WITH THE ORDER PASSED BY THE CIT (APPEALS ), THE ORDER OF THE CIT (A) IS UPHELD. 15. THEREFORE WHEN ALL THE CONDITIONS AS STIPULATED UNDER EXPLANATION 5A ARE FULFILLED IN THE CASE OF THE ASSESSEE THEN T HE PENALTY LEVIED U/S 271(1)(C) WAS PROPER AND SUSTAINABLE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/01/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/01/2018. * GANESH KUMAR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SATYA NARAIN GUPTA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE CIT, CENTRAL CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 823/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR