Smt. Darpanaben Chiragbhai Patel, Anand V. The Dy.CIT.,Cent.Circle-1, Baroda

ITA 868/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68048 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-12-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 28-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Unexplained investment; Income from undisclosed sources; Revised return; Bonafide mistake; Reassessment proceedings
• Section: 143(3); 153A; 132; 15

Judgement Text

ITA NO868/AHD/2 013 . A.Y. 2005- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH , AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, J.M. & SHRI ANIL CH ATURVEDI, A.M. I.T. A. NO. 868 /AHD/2013 (ASSESSMENT YEAR: 2005-06 SMT. DARPANABEN CHIRAGBHAI PATEL 3, JAPAN PARK SOCIETY, NEAR CHAITANYA HARIVIHAR, BEHIND DENA PARIVAR, TOWN HALL ROAD, ANAND-388001 V/S THE D.C.I.T., CENTRAL CIRCLE- 1, BARODA (APPELLANT) (RESPONDENT) PAN: AJRPP4633Q APPELLANT BY : SHRI MUKUND BAKSHI RESPONDENT BY : SHRI P.L. KUREEL, SR.D.R. ( )/ ORDER DATE OF HEARING : 04-12-2013 DATE OF PRONOUNCEMENT : 13 -12-2013 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS DIRECTED AGAINST THE PENALTY ORDER D ATED 17.03.2011 PASSED UNDER SECTION 271(1)(C) WHEREIN PENALTY OF RS. 1,25 ,000/- WAS LEVIED BY ASSESSING OFFICER AND CONFIRMED BY CIT(A). 2. THE MATERIAL FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER:- 3. A SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED O UT IN CHIRAG GROUP OF CASES ON 19.01.2009. CONSEQUENT TO THE SEARCH ACTIO N AND BASED UPON ITA NO868/AHD/2 013 . A.Y. 2005- 06 2 MATERIAL FOUND DURING THE COURSE OF SEARCH, PROCEED INGS UNDER SECTION 153A OF THE ACT WERE INITIATED IN THE CASE OF ASSES SEE. IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT. ASSESSEE FILE D HER RETURN OF INCOME ON 31.08.2009 DISCLOSING INCOME OF RS. 5,23,950/- A S AGAINST THE RETURNED INCOME OF RS. 2,24,910/- FILED IN THE ORIGINAL RETU RN FILED UNDER SECTION 139(1) OF THE ACT. THEREAFTER ORDER UNDER SECTION 153A R.W.S. 143(3) WAS PASSED ON 10.05.2010 AND THE TOTAL INCOME WAS ASSES SED AT RS. 8,32,950/- WHICH INCLUDED ADDITION OF RS. 3,09,000/- ON ACCOUN T OF LONG TERM CAPITAL GAIN ON SALE OF FLAT. ON THE AFORESAID ADDITION OF LONG TERM CAPITAL GAIN AND THE DIFFERENCE BETWEEN THE INCOMES FILED U/S 15 3A AND 139(1), A.O. LEVIED PENALTY U/S 271(1 )(C) OF RS. 1,25,000/- VID E ORDER DATED 17.03.2011. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 31.01.2013 D ISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GR OUNDS:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, AH MEDABAD HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O. IN THE LEVY O F PENALTY U/S. 271(1)(C) IN THE ABSENCE OF SPECIFIC CHARGE AS TO WHETHER THE SAME IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS. THE ORDER LEVYING THE PENALTY BEING B AD IN LAW AND IN FACTS DESERVES TO BE QUASHED. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, AH MEDABAD HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O. IN LEVYING TH E PENALTY OF RS. 1,25,000/- U/S. 271(1)(C) IN RESPECT OF THE ADDITION OF RS. 3,09,000/- DECLARED THE REVISED INCOME FILED IN PURSUANCE TO NOTICE U/S 153A ON THE GROUND THAT THE APPELLANT IS DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME EVEN IF THE APPELLANT HAS DISCLOSED THE UNACCOUNTED INCOME IN THE RETURNS FILED SUBSEQUENT TO THE DATE OF SEARCH. THE IMPUGNED LEVY OF PENALTY BEING BAD IN LAW AND IN FACTS DESERVES TO BE CANCELLED. SINCE THE GROUNDS ARE INTERCONNECTED, BOTH ARE DISP OSED TOGETHER. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O. N OTICED THAT IN THE RETURN OF INCOME FILED U/S 139(1) ASSESSEE HAD CLAI MED LONG TERM CAPITAL LOSS OF RS. 34,351/-. HOWEVER, IN THE RETURN FILED PURSUANT TO NOTICE UNDER SECTION 153A, ASSESSEE REVISED THE LONG TERM CAPITAL GAIN AND SHOWED LONG TERM CAPITAL GAIN OF RS. 2,99,039/- AS AGAINST LOSS OF RS. ITA NO868/AHD/2 013 . A.Y. 2005- 06 3 34,351/- CLAIMED IN RESPECT OF SALE OF 3 FLATS. ON PERUSING THE SALE DEEDS, A.O. NOTICED THAT ASSESSEE HAD SOLD 3 FLATS FOR RS . 9,84,000/- AND HE THEREFORE WORKED OUT LONG TERM CAPITAL GAIN AT RS. 3,09,000/- AND THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ASSESSEE DID NOT PREFER APPEAL AGAINST THE AFORESAID ADDITION MADE B Y THE A.O. A.O. WAS OF THE VIEW THAT HAD NO SEARCH OPERATION TAKEN UP I N CHIRAG GROUP OF CASES AND HAD THE CASE OF THE ASSESSEE NOT TAKEN UP FOR SCRUTINY THE REAL FACTS IN RESPECT OF ADDITIONS WOULD HAVE REMAINED U NNOTICED. THUS THE ASSESSEE HAD NOT ONLY CONCEALED THE PARTICULARS OF HER INCOME BUT ALSO FURNISHED INACCURATE PARTICULARS OF INCOME DELIBERA TELY AND CONCEALED HER INCOME. A.O. WAS FURTHER OF THE VIEW THAT THE ONUS CAST UPON THE ASSESSEE BY VIRTUE OF CLAUSE (A) AND (B) OF EXPLANA TION 1 BELOW SECTION 271(1)(C) OF THE ACT HAS NOT BEEN DISCHARGED BY THE ASSESSEE AND ASSESSEE HAS NOT SATISFACTORILY EXPLAINED BY ESTABL ISHING THE BONA FIDE. HE ACCORDINGLY CONCLUDED THAT ASSESSEE HAS COMMITTE D A DEFAULT WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT IN CONC EALING THE PARTICULARS OF INCOME TO THE EXTENT OF RS. 6,08,040 (RS. 2,99,0 40 ON ACCOUNT OF DIFFERENCE BETWEEN INCOME FILED UNDER SECTION 153A AND UNDER SECTION 139(1) OF THE ACT + 3,09,000/- ON ACCOUNT OF LONG T ERM CAPITAL GAIN ON SALE OF FLAT) AND ACCORDINGLY LEVIED A PENALTY OF R S. 1,25,000/-. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BE FORE CIT(A). CIT(A) CONFIRMED THE PENALTY LEVIED BY THE A.O. BY HOLDING AS UNDER:- 7.17 IN VIEW OF THE ABOVE DISCUSSION, IT IS SUMMED UP AS UNDER: (I) THE AO HAS IMPOSED PENALTY U/S 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME ON ACCOUNT OF CONCEALMENT OF PARTICULARS OF INCOME AS PER FINDING S GIVEN IN ASSESSMENT / PENALTY ORDER. THE FACTS AS MENTIONED IN THE ASSESSMENT ORDER AS WELL AS PENALT Y ORDER CLEARLY ESTABLISH THE CONCEALMENT OF PARTICULARS OF INCOME. EVEN OTHERWISE IN SUCH CASES IN TERMS OF EXPLANATION 5A, THERE IS NO SPECIFIC REQUIREMENT FOR RECORDING SATISFACTION IN VIEW OF D EEMING PROVISION OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT [MAHENDRA MITTAL V. ACIT [2011 ] 139 TTJ 513 (MUM.)]. THE APPELLANT HAS DISCLOSED ADDITIONAL UNACCOUNTED INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE U/ S 153A OF THE ACT ON THE BASIS OF THE INCRIMINATING S EIZED MATERIAL. THIS ADDITIONAL INCOME WAS NOT ITA NO868/AHD/2 013 . A.Y. 2005- 06 4 DISCLOSED IN THE RETURN ORIGINALLY FILED U/S 139 OF THE ACT AND THE APPELLANT HAS FAILED TO ESTABLISH THAT SUCH OMISSION WAS A BONAFIDE MISTAKE AND NOT DELIBE RATE. (III) SUCH DISCLOSURE OF ADDITIONAL INCOME IS NOT V OLUNTARY. IT IS ON ACCOUNT OF THE SEARCH AND ON THE BASIS OF SCRUTINY OF SEIZED MATERIAL, UNACCOUNTED I NCOME HAS BEEN DISCLOSED. (IV) RETURN FILED IN RESPONSE TO NOTICE U/S 153A / 153C OF THE ACT, DISCLOSING UNACCOUNTED INCOME, SUBSEQUENT TO THE DATE OF SEARCH WITH A VIEW TO PRE -EMPT ANY ACTION BY THE DEPARTMENT ON THE BASIS OF SEIZED MATERIAL CANNOT ABSOLVE THE APPELLANT FROM T HE RIGOUR OF PENALTY U/S 271(1)(C) OF THE ACT READ WITH EXPLANATION 5A. (V) EXPLANATION 5A TO SECTION 271(1)(C) IS SQUARELY APPLICABLE IN RESPECT OF SUCH UNDISCLOSED INCOME SUBSEQUENTLY DISCLOSED IN THE RETURN FILED IN RESPO NSE TO NOTICE U/S 153A OF THE ACT IN VIEW OF NOTWITHSTANDING CLAUSE OF EXPLANATION 5A. (VI) THERE IS NO CONCEPT OF ANY IMMUNITY FROM PENAL PROVISIONS OF SECTION 271(1)(C) R/W EXPLANATION 5A IN RESPECT OF SEARCH INITIATED ON OR AFTER 01-06 -2007. (VII) CONCEALMENT IS ALWAYS WITH REFERENCE TO THE O RIGINAL RETURN OF INCOME FILED BY THE ASSESSEE U/S 139 OF THE ACT. RETURNS FILED IN RESPONSE TO NOTICE U/S 153A / 153C OF THE ACT, DISCLOSING ADDITIONAL INCOME BASED ON THE INCRIMINATING SEIZED DOCUMENT, SUBSEQUENT TO THE DATE OF SEARCH CANNOT ABSOLVE THE APPELLANT FROM THE RIGOUR OF PENALTY U/S 271(1) (C) OF THE ACT READ WITH EXPLANATION 5A. (VIII) THE PROCEEDINGS U/S 153A / 153C CANNOT BE EQ UATED WITH AN AMNESTY SCHEME PROVIDING IMMUNITY FROM PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IRRESPECTIVE OF APPLICABILITY OF EXPLANATIO N 5A OR OTHERWISE. (IX) EVEN IF IT IS ASSUMED THAT EXPLANATION 5A IS N OT APPLICABLE, ONCE THERE IS A DIFFERENCE IN RETURN ED / ASSESSED INCOME AS PER SECTION 153A /153C OF THE AC T AND RETURNED INCOME AS PER RETURN ORIGINALLY FILED U/S 139 OF THE ACT OR IS A DISCLOSURE OF INCO ME IN RESPONSE TO NOTICE U/S 153A / 153C OF THE ACT , THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE FAILU RE TO FILE HIS CORRECT RETURN OF INCOME WAS NOT DUE TO FRAUD OR NEGLECT [K. P. MADHUSUDHANAN V. CIT [2001] 251 ITR 99 (SC)]. (X) THE HUGE DIFFERENCE BETWEEN THE RETURNED INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT DISCLOSING UNACCOUNTED ADDITIONAL INCOME SUBSEQUENT TO THE DATE OF SEARCH AND THE RETURNED INCOME AS PER ORIGINALLY FILED RETURNED INCOME U/S 139 OF THE ACT, CLEARLY PROVES THE FACT THAT THE OMISSION AT THE TIME OF FILING ORIGINAL RETURN WAS DELIBERATE AND C ONSCIOUS SINCE THE ASSESSEE HAS FAILED TO ESTABLISH THAT THE OMISSION IN THE ORIGINAL RETURN WAS ON ACC OUNT OF ANY BONAFIDE INADVERTENCE OR MISTAKE. [G. C . AGARWAL VS. CIT (1990) 186 ITR 571 (SC)]. (XI) ONCE RETURN OF INCOME IS FILED IN RESPONSE TO NOTICE U/S 153A / 153C OF THE ACT, ONLY PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS DO ABATE AND NOT ALL THE PAST ACTIONS. THE RETURNS FILED ORIGINALLY DO NOT ABATE AT ALL. TO HOLD OTHERWISE W ILL LEAD TO ABSURDITY WHICH CANNOT BE ACCEPTED. [K. GOVINDAN & SONS VS. CIT (2001) 247 ITR 192 (SC)]. 8. SO FAR AS PENALTY LEVIED U/S 271(1)(C) OF THE AC T READ WITH EXPLANATION 1 IN RESPECT OF ADDITION OF RS.3,09,000/- ON ACCOUNT OF UNDERSTATED LONG TERM C APITAL GAINS IS CONCERNED, THE APPELLANT HAS NOT DISPUTED THE ADDITION SO MADE BY THE AO. 8.1 AS PER EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT, AN ASSESSEE IS DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME, IF THE ASSESSED INCO ME IS MORE THAN THE RETURNED INCOME ON ACCOUNT OF ANY ADDITION OR DISALLOWANCE IN COMPUTING THE TOTAL INCOME OF SUCH ASSESSEE AND THE ONUS LIES ON THE ASSESSEE TO SHOW THAT THERE HAS BEEN NO CONCEALMENT . EXPLANATION 1 STATES THAT WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCO ME OF ANY PERSON UNDER THIS ACT, SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE, OR SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AN D FAILS TO PROVE THAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MAT ERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DI SALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF SECTION 271(1)(C), BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CO NCEALED. THE EFFECT OF THIS EXPLANATION IS THAT IF THE NECESSARY INGREDIENTS ARE SATISFIED, THE AMOUNT DIS ALLOWED IN COMPUTING THE TOTAL INCOME SHALL, FOR TH E PURPOSES OF SECTION 271(1)(C), BE DEEMED TO REPRESE NT THE INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEEN CONCEALED. THE NECESSARY ELEMENTS FOR ATT RACTING THIS EXPLANATION ARE THREE FOLD: (A) THE PERSON FAILS TO OFFER THE EXPLANATION, OR (B) HE OFFERS THE EXPLANATION WHICH IS FOUND T O BE FALSE, OR (C) THE PERSON OFFERS EXPLANATION WHICH HE IS NOT A BLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELA TING TO THE SAME HAVE BEEN DISCLOSED BY HIM. ITA NO868/AHD/2 013 . A.Y. 2005- 06 5 IF THE CASE FALLS WITHIN ANY OF THESE THREE INGREDI ENTS, THE DEEMING PROVISION COMES INTO PLAY AND THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL I NCOME IS CONSIDERED AS THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED FOR THE PURPO SES OF SECTION. 8.2 THE LEGAL IMPLICATIONS OF THE PROVISIONS OF EXPLANA TION 1 TO SECTION 271(1)(C) CAN BE SUMMARIZED AS UNDER: (I) WHEREVER THERE IS A DIFFERENCE BETWEEN THE RETURNED AND ASSESSED INCOME ON ACCOUNT OF ANY ADDITION / DISALLOWANCE, THERE IS DEEMED CONCEALMEN T AS A RULE OF LAW. (II) (II) THE ONUS FOR REBUTTING SUCH INFERENCE OF DEEMED CONCEALMENT IS SQUARELY ON THE ASSESSEE (III) (III) THE ASSESSEE IS EXPECTED TO OFFER AN EXP LANATION. FAILURE TO OFFER ANY EXPLANATION, BY ITSELF, WILL MAKE THE ASSESSEE LIABLE FOR PENALTY. (IV) (IV) THE EXPLANATION, IF OFFERED, SHOULD NOT B E FOUND TO BE FALSE (V) (V) MERELY BECAUSE THE ASSESSEE IS NOT ABLE TO SUBS TANTIATE HIS EXPLANATION, PENALTY MAY NOT BE EXIGIBLE, IF SUCH EXPLANATION IS BONAFIDE AND ALL T HE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCL OSED BY HIM. 8.3 SO FAR AS THE ABOVE ADDITION MADE ON ACCOUNT OF UND ERSTATED LONG TERM CAPITAL GAINS IS CONCERNED, THE APPELLANT HAS NOTHING TO SAY IN RESP ECT OF THE ABOVE ADDITION MADE BY THE AO EITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR PENALTY PROCEEDINGS. THE ABOVE ADDITION HAVE ALSO NOT BEEN DISPUTED BY THE APPELLA NT. NO SUBMISSION HAS BEEN MADE IN RESPECT OF THE ABOVE ON MERITS BEFORE THE UNDERSIGN ED ALSO. THE APPELLANT HAS FAILED TO DISCLOSE THE CORRECT INCOME NOT ONLY IN ORIGINAL RE TURN FILED U/S 139 BUT ALSO IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. SUCH UND ISCLOSED INCOME WOULD NOT HAVE COME TO THE NOTICE OF THE DEPARTMENT IF SEARCH HAD NOT TAKE N PLACE AND ASSESSMENT WOULD NOT HAVE BEEN TAKEN UP FOR SCRUTINY ASSESSMENT. IN VIEW OF T HE ABOVE AND SINCE THE APPELLANT HAS FAILED TO FURNISH ANY EXPLANATION IN RESPECT OF THE ABOVE ADDITION, THE AO HAS RIGHTLY LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT FOR CONCEALMENT OF PARTICULARS OF INCOME. IT IS NOTED THAT FAILURE TO DISCLOSE CORRECT INCOME IS NOT ONLY LIMI TED TO ONE ASSESSMENT YEAR OR SO. IT IS A MATTER OF RECORD THAT FOR ALL THE ASSESSMENT YEARS, THERE HAS BEEN FAILURE TO DISCLOSE CORRECT INCOME. THE DETAILS OF SUCH UNDISCLOSED INCOME BY T HE APPELLANT ARE SUMMARIZED AS UNDER: S. NO . AY INCOME NOT DISCLOSED IN THE RETURN FILED U/S 139 OF THE ACT AS WELL AS IN RESPONSE TO NOTICE U/S 153A OF THE AC T AMOUNT RECEIVED 1 2003- 04 I) INTEREST EARNED ON FIXED DEPOSITS 8,115/- II) UNACCOUNTED INVESTMENT IN PURCHASE OF LAND (SUB- PLOT NO.23 OF R.S. NO.539/1) 1,27,255/- 2 2004- 05 I) UNEXPLAINED INVESTMENT IN PURCHASE OF SHOP NO.5 OF SURYADARSHAN HOSTEL 1,25,000/- 3 2005- 06 UNDERSTATED LONG TERM CAPITAL GAINS IN RESPECT OF 3,09,000/- SALE OF FLAT 4 2007- 08 I) BONUS INCOME IN RESPECT OF MATURITY OF FIXED DEPOSI T WITH POST OFFICE 60,000/- II) SHORT TERM CAPITAL GAINS IN RESPECT OF SALE OF LAND 72,235/- 5 2008- 09 I) UNDERSTAND SHORT TERM CAPITAL GAINS IN RESPECT OF S ALE OF PLOT OF LAND/SUPER STRUCTURE 1,47,298/- II) UNDISCLOSED SHORT TERM CAPITAL GAINS IN RESPECT OF SALE OF LAND 2,90,800/- ITA NO868/AHD/2 013 . A.Y. 2005- 06 6 FROM THE ABOVE TABLE ITSELF, IT CAN BE SAFELY CONCLUDED THAT OMISSION TO DISCLO SE CORRECT INCOME IN VARIOUS ASSESSMENT YEARS IN THE RETURN FILED U/S 13 9 OF THE ACT OR EVEN IN RESPONSE TO NOTICE U/S 153A OF THE ACT IS NEITHER INADVERTENT MISTAKE NOR UNINTENTIONAL RATHER IT IS DELIBERATE AND CONSCIOUS ACT ON THE PART OF THE APPELLANT. MOREOVE R, THE PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN LEVIED BY THE AO IN TERMS OF EXPLANATION 1 TO SECTI ON 271(1)(C) FOR CONCEALMENT OF PARTICULARS OF INCOME AS IS EVIDENT FROM THE FINDINGS GIVEN IN THE PENALTY ORDER BY THE AO AS ALREADY DISCUSSED IN CONNECTION WITH THE FIRST GROUND OF APPEAL RAISED B Y THE APPELLANT. ACCORDINGLY, THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT READ WITH EXPLANATION 1 IN RESPECT OF SUCH ADDITION IS PERFECTLY JUSTIFIED. 9. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPI NION THAT THE APPELLANT HAS CONCEALED HER PARTICULARS OF INCOME WHILE FILING ORIGINAL RETURN OF INCOME U/S 139 OF THE ACT IN RESPECT OF ADDITIONAL INCOME OF RS.2,99,040/- DISCLOSED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A AND IS, THEREFORE, LIABLE TO PENALTY U/S 271(1)(C) OF T HE ACT. FURTHER, THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT READ WITH EXPLANATION 1 IN RES PECT OF ADDITION OF RS. 3,09,000/- IS ALSO CONFIRMED. ACCORDINGLY, THE PENALTY LEVIED BY THE A .O. OF RS. 1,25,000/- U/S. 271(1) OF THE ACT AT AROUND THE MINIMUM, RATE OF 100% OF TAX SOUGHT TO B E EVADED IS HEREBY CONFIRMED. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS N OW IN APPEAL BEFORE US. 6. BEFORE US, THE LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE CIT(A) AND POINTED TO THE RELEVANT SUBMISSIONS MADE BEFORE CIT(A) AND WHICH HAS BEEN REPRODUCED BY CIT(A) IN HIS ORDER. HE RELY ING ON THE SUBMISSIONS MADE THAT THE PENALTY BE DELETED. HE AL SO PLACED RELIANCE ON VARIOUS DECISIONS OF AHMEDABAD TRIBUNAL INCLUDING T HE DECISION IN THE CASE OF GANPATBHAI MISTRI FURNISHERS PVT. LTD. VS. ACIT ITA NO. 505/AHD/2009, DECISION IN THE CASE OF SRICHAND TIRT HDAS NAINANI VS. ITO ITA NO. 2548/AHD/2006 AND DECISION OF GUJARAT H IGH COURT IN THE CASE OF CIT VS. WHITEFORD INDIA LTD. 38 TAXMAN.COM 15. 7. THE LD. D.R. ON THE OTHER HAND STRONGLY SUPPORTED T HE ORDER BY A.O. AND CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT CIT(A) BY HIS WELL REASONED AND SPEAKI NG ORDER CONFIRMED ITA NO868/AHD/2 013 . A.Y. 2005- 06 7 THE ADDITION MADE BY A.O. WE ALSO FIND SUPPORT BY T HE RECENT DECISION OF HON. MADRAS HIGH COURT IN THE CASE OF N. RANJIT VS CIT (2013) 35. TAXMANN. COM 555 (MAD) WHEREIN WHEN THE ASSESSEE IN THE ORIGINAL RETURN HAD NOT DISCLOSED TRANSACTIONS IN SHARES AND SUBSEQUENTLY BASED ON AN INQUIRY FILED REVISED RETURN OFFERING INCOME EAR NED ON SALE OF SHARES, LEVY OF PENALTY U/S 271(1)(C) UPON ASSESSEE FOR DIS CLOSING INCORRECT PARTICULARS OF INCOME IN ORIGINAL RETURN WAS HELD T O BE JUSTIFIED. 9. THE HON. APEX COURT IN THE CASE OF MAK DATA (P) LT D VS. CIT(2013) 38 TAXMANN.COM 448 (SC) HAS HELD THAT EXPLANATION TO S ECTION 271(1)(C) RAISES A PRESUMPTION OF CONCEALMENT WHEN A DIFFEREN CE IS NOTICED BY THE A.O. BETWEEN THE REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIA BLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION HAS BEEN DISCLOSED BY HIM, THE ONUS SHIFTS ON THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE INCOME AND NOT OTHERWISE. IT HAS F URTHER NOTED THAT A.O. HAS TO SATISFY WHETHER THE PENALTY PROCEEDINGS BE I NITIATED OR NOT DURING THE COURSE OF ASSESSMENT PROCEEDINGS ADDITION THE A .O. IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR R EDUCE IT INTO WRITING. 10. BEFORE US, THE A.R. COULD NOT CONTROVERT THE FINDIN GS OF CIT(A), NOR COULD BRING ANY OTHER CONTRARY MATERIAL ON RECORD. THE DECISIONS RELIED UPON BY THE LD. A.R. ARE DISTINGUISHABLE ON FACTS A ND THEREFORE DO NOT APPLY TO THE FACTS OF THE PRESENT CASE. IN VIEW OF THE AFORESAID FACTS AND RELYING OF THE AFORESAID DECISION OF APEX COURT, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THIS GR OUND OF ASSESSEE IS DISMISSED. ITA NO868/AHD/2 013 . A.Y. 2005- 06 8 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN OPEN COURT ON 13 -12 - 2013. SD/- SD/- (MUKUL KR. SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD