Smt. Vinay Sharma, New Delhi V. ITO, Ghaziabad

ITA 871/DEL/2013

• Counselvise Citation: 87120114 RSA 2013
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Capital expenditure
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA ITA NO. 871/DEL/2013 ASSTT. YR: 2009-10 SMT. VINAY SHARMA VS. INCOME-TAX OFFICER, SD-487, SHASTRI NAGAR, WARD-1(2), GHAZIABAD. GHAZIABAD. PAN: BDQPS 4406 L ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI ASHWANI TANEJA ADV. RESPONDENT BY : SHRI SAMEER SHARMA SR. DR O R D E R PER R.P. TOLANI, J.M : THIS IS ASSESSEES APPEAL AGAINST CIT(A)S ORDER D ATED 24-12-2012, PARTLY SUSTAINING THE PENALTY @ 150% OF THE TAX SO UGHT TO BE EVADED AS AGAINST 200% IMPOSED BY THE ASSESSING OFFICER AT RS. 47,96,000/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, RELATING TO A.Y. 2009-10. 2. BRIEF FACTS ARE: FOR A.Y. 2009-10, THE ASSESSEE FILED RETURN DECLARING INCOME OF RS. 4,35,757/- ON 30-9-2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT ASSE SSEE WAS ENGAGED IN SUPPLY OF EARTH SOIL, PURCHASED FROM FARMERS BY WAY OF EXCAVATION OF LAND FROM THEIR FIELDS AND SOLD TO OTHER CONTRACTORS FOR LAND FILLING AT VARIOUS SITES. ACCORDING TO ASSESSING OFFICER ASSESSEES BOOKS OF ACCOUNTS WERE DULY AUDITED AND VARIOUS ENTRIES WERE EXAMINED BY HIM WI THOUT ANY ADVERSE OBSERVATIONS. HOWEVER, IT WAS OBSERVED THAT MOST O F THE PAYMENTS MADE TO FARMERS FOR PURCHASE OF EARTH/ SOIL WERE IN CASH AN D NOT VERIFIABLE. QUERIES ITA 871/DEL/2013 SMT. VINAY SHARMA 2 WERE RAISED IN THIS BEHALF ON 21-12-2011, ASSESSEE FILED REPLY VIDE LETTER DATED 29-12-2011, WHICH IS REPRODUCED IN THE ASSESS MENT ORDER. THE RELEVANT PARA OF THE LETTER, QUA THE VOLUNTARY SURRENDER OF INCOME TO BE ASSESSED AT A NET PROFIT FIGURE OF RS. 75,00,000/- IN THIS REGARD IS REPRODUCED AS UNDER: THAT FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS ALREADY PRODUCED COMPLETE BOOKS OF ACCOUNT, BILLS AND VOUCH ERS AND EVIDENCE OF MAKING PAYMENT TO THE FARMERS FOR THE P URCHASE OF EARTH SOIL BESIDES COMPLETE EVIDENCE OF PURCHASE AN D ALE OF SHARES. THERE IS GROSS PROFIT RATE OF 0.20% ON THE CONSOLIDATED TURNOVER OF RS. 41,95,37,130/-. THE ASSESSEE HAS MA DE HARD LABOR TO ACHIEVE THE SALE TARGETS DURING THE YEAR. THE PROFIT DURING THE YEAR AS DECLARED BY THE ASSESSEE DESERVE S TO BE ACCEPTED. IT IS NOT OUT OF PLACE TO MENTION HERE TH AT BY APPLYING HIGHER PROFIT RATE THE ASSESSEE WOULD NOT BE ABLE T O DEPOSIT HIGHER TAXES SINCE THE MARGIN IS NOT TO THAT EXTENT AND IT IS ONLY WHAT THE ASSESSEE HAS DECLARED THOUGH THE ASSESSEE IS PREPARED AND IS OFFERING VOLUNTARILY, TO BE ASSESSED AT A NE T PROFIT FIGURE OF RS. 7500000/- INCLUSIVE OF THE INCOME DECLARED I N THE RETURN WHICH WORKS OUT TO APPROXIMATELY AROUND 2% OF THE CONSOLIDATED SALES PROVIDED NO PENALTIES ARE LEVIED AND THE OFFER IS ACCEPTED IN THE SPIRIT OF CO-OPERATION FOR THE COMPLETION OF THE CASES AND THAT THIS OFFER IS MADE CERTAINLY TO AVOID PENALTIES AND MULTIPLE LITIGATION. IT IS ALSO STATE D THAT THIS OFFER IS BEING MADE WITH THE CLEAR INTENTION TO GET THE C ASES COMPLETED WITHOUT THE LEVY OF THE PENALTY AND TO DE POSIT THE TAX FOUND TO BE PAYABLE WITHOUT ENTERING INTO ANY LITIG ATION SO AS TO BUY PEACE OF MIND. 2.1. ASSESSING OFFICER, HOWEVER, INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND HELD THAT ASSESSEE HAS TR IED TO CONCEAL THE TRUE PARTICULARS OF HER INCOME AND THE PENALTY WAS IMPOS ED AT RS. 47,96,000/- I.E. @ 200%. 2.2. AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL BEF ORE CIT(A) WHERE FOLLOWING EFFECTIVE SUBMISSIONS WERE MADE: ITA 871/DEL/2013 SMT. VINAY SHARMA 3 (I) ASSESSEE MAINTAINS COMPLETE BOOKS OF ACCOUNTS, NO D EFECTS ARE FOUND THEREIN BY AO. AS THE ASSESSING OFFICER QUERI ED DURING COURSE OF THE ASSESSMENT PROCEEDINGS ABOUT CASH PAY MENTS MADE TO FARMERS, THE ASSESSEE IN ORDER TO PUT THE ENQUIRIES AT REST VOLUNTARILY OFFERED THE TAXABLE INCOME AT RS. 75 LACS AS AGAINS T DECLARED INCOME OF RS. 4,35,757/-. (II) IN THE ASSESSMENT ORDER, ASSESSING OFFICER HIMSELF OBSERVED THAT ASSESSEES BOOKS ARE DULY AUDITED AND BALANCE SHEET AND ENTRIES THEREIN ARE PROPERLY MADE AND THEY DO NOT REQUIRE A NY ADVERSE COMMENT. THE QUERY WAS ONLY IN RESPECT OF THE CASH PAYMENTS MADE BY THE ASSESSEE TO THE FARMERS FROM WHOSE FIEL DS THE EARTH/ SOIL WAS EXCAVATED FOR ONWARD SALE. (III) THE NUMBERS OF TRUCKS/ TRANSPORT VEHICLE SUPPLIED TO THE CONTRACTORS FOR FILLING PURPOSE ARE NOT OBJECTED. T HUS, THE NUMBER OF TRANSPORT VEHICLES SOLD ARE ASCERTAINABLE AS COR RESPONDINGLY THE SAME NUMBER OF TRUCKS REPRESENT THE NUMBER PURCHASE D FROM FARMERS. (IV) LOOKING FROM ANY ANGLE IT IS A CASE OF PURE ESTIM ATE AND ASSESSING OFFICER COULD HAVE ESTIMATED THE INCOME FROM SUPPLY OF PER TRANSPORT VEHICLE. HOWEVER, ASSESSEE OFFERED A HIG H AMOUNT OF INCOME SPECIFICALLY TO PUT THE LITIGATION AND QUERI ES TO AN END AND WITH A SPIRIT OF COOPERATION ON THE CONDITION THAT NO PENALTY WILL BE LEVIED. (V) THERE IS NO OBSERVATION IN ASSESSING OFFICERS ORDE R THAT THE OFFER MADE BY ASSESSEE WAS NOT VOLUNTARY AS NOT ACCEPTABL E TO HIM OR SOME FURTHER INVESTIGATIONS AGAINST ASSESSEE WERE C ARRIED ON. THUS, THE NATURE OF THE OFFER OF THE ASSESSEE REMAINED AD MITTEDLY ITA 871/DEL/2013 SMT. VINAY SHARMA 4 VOLUNTARY MADE IN THE SPIRIT OF COOPERATION TO AVOI D LITIGATION AND WITH A CLEAR CONDITION THAT NO PENALTY WOULD BE LEV IED ON VOLUNTARILY SURRENDERED INCOME. (VI) ASSESSING OFFICER HAS NOT GOT ANY MATERIAL ON RECOR D TO DEMONSTRATE THAT ANY INACCURATE PARTICULARS WERE FILED OR INCOM E WAS CONCEALED. 2.3. ASSESSEE RELIED ON FOLLOWING JUDGMENTS: - ITO VS. SMT. PURNIMA DEVI GUPTA 83 TTJ 586 (JD); - ITO VS. SMT. PURNIMA DEVI GUPTA 83 TTJ 628 (DEL F ); - KAMALCHAND SURANA VS. ITO 88 TTJ 629 (JD); - JT. CIT VS. VXL (INDIA) LTD. 94 TTJ 513 (ASR); - NEW SORATHIA ENGG. CO. VS. CIT 282 ITR 614 (GUJ.); - MUKESH CHANDRA A. LAKADWALA VS. ITO 4 ITR (TRIB) 30 7 (AHD.); - MEHANGA RAM SHARMA V ITO 26 DTR 386 (ASR)(TRIB); - DCIT VS. B.J.D. PAPER PRODUCTS 141 TTJ 108 (LUCK) 2.4. CIT(A) REFERRED THE REPLY OF THE ASSESSEE TO T HE ASSESSING OFFICER AND CALLED FOR A REMAND REPORT, WHICH WAS SUBMITTED ON 7-12-2012, CONTENDING: (I) THE ASSESSEE HAS FAILED TO PAY THE ADMITTED TAX LIA BILITY. (II) NO REPLY WAS FILED DURING THE COURSE OF PENALTY PRO CEEDINGS. THE EXCESS INCOME WAS ACCEPTED BY THE ASSESSEE HERSELF. THUS, THE FURNISHING OF INACCURATE PARTICULARS IS ADMITTED AN D NO FURTHER INQUIRY WAS NECESSARY; PENALTY WAS RIGHTLY LEVIED. 2.5. THE CIT(A) MADE FOLLOWING OBSERVATIONS: (I) WHERE THE ASSESSMENT ORDER ITSELF CONTAINS FACTS WH ICH JUSTIFY INFERENCE OF CONCEALMENT, THE PENALTY IS SUSTAINABL E RAJ KUMAR CHAURASIA V. CIT 288 ITR 329 (ALL.); (II) AN OMISSION TO DECLARE A RECEIPT CANNOT BE HELD TO BE A BONA FIDE ERROR SANDEEP KUMAR GARG & CO. VS. ITO 298 ITR 1 06 (P&H); ITA 871/DEL/2013 SMT. VINAY SHARMA 5 (III) WHERE EXPLANATION IN THE CONTEXT OF DISCREPANCIES A S PALPABLY IMPROBABLE, PENALTY IS JUSTIFIED LONDU LAL RAGHUB IR PRASAD VS. CIT 298 ITR 37 (ALL.) (IV) THOUGH FINDING IN ASSESSMENT PROCEEDINGS ARE NOT CO NCLUSIVE BUT IT CAN BE USED IN PENALTY PROCEEDINGS AS AN EVIDENCE B EFORE PENALTY IS IMPOSED HARI SHANKAR GOPTAL HARI VS. CIT 97 ITR 7 16 (ALL.) AND VARIOUS OTHER JUDGMENTS CITED IN PARA 6.2.3 OF CIT(A)S ORDER. (V) IN CASE OF BEST JUDGMENT ASSESSMENT, THE BURDEN IS ON THE ASSESSEE AND WHERE NO EXPLANATION IS FURNISHED, THERE IS A F AILURE TO DISCHARGE ONUS AND THE PENALTY WILL BE ATTRACTED CIT VS. AJAY TEXTILES 224 ITR 98 (P&H); JAIN BROS VS. CIT 251 IT R 302 (DEL.). (VI) MERE OFFERING OF EXPLANATION WOULD NOT ABSOLVE THE ASSESSEE FROM LEVY OF PENALTY AND THE SAME IS TO BE SUBSTANTIATED BY COGENT AND RELIABLE EVIDENCE CIT VS. LAL CHAND TIRATH RAM 22 5 ITR 675 2.6. CIT(A) RELIED ON VARIOUS OTHER CASE LAWS WHICH ARE MENTIONED IN THE ORDER. AFTER THESE OBSERVATIONS, CIT(A) HELD THAT I N THE PRESENT CASE (I) THE ADMISSION OF ENHANCEMENT OF INCOME OBVIOUSLY CA ME FORWARD AS A RESULT OF INQUIRIES AND INVESTIGATIONS BY THE ASSESSING OFFICER AND ASSESSEES FEAR THAT THE TRUE INCOME SOON OR LA TER WILL BE DETECTED BY THE DEPARTMENT. THEREFORE, THE SURRENDE R WAS A RESULT OF INQUIRIES AND INVESTIGATIONS MADE BY ASSESSING O FFICER. ITA 871/DEL/2013 SMT. VINAY SHARMA 6 (II) CIT VS. D.K.B. & CO. 243 ITR 618 (KER.) - THERE IS NO PRINCIPLE OF UNIVERSAL APPLICATION THAT WHENEVER AN ASSESSMEN T HAS BEEN COMPLETED BY ACCEPTING THE OFFER OF AN ASSESSEE, NO PENALTY CAN BE IMPOSED. THE DEPARTMENT CAN LEVY PENALTY U/S 271(1) (C) IN RESPECT OF ADDITIONAL INCOME OFFERED BY ASSESSEE IF THE EXP LANATION OFFERED BY ASSESSEE IS NOT FOUND ACCEPTABLE. (III) CIT VS. DR. R.C. GUPTA & CO. - DURING THE COURSE OF ASSESSMENT THE ASSESSEE HIMSELF ADMITTED THAT HE HAD DERIVED I NCOME FROM THE SALE OF IMPORTED CYCLE PARTS AND THE INCOME FROM TH E SAME WAS NOT RECORDED IN HIS BOOKS OF ACCOUNTS. THE AMOUNT WAS N OT SHOWN IN THE RETURN OF INCOME. THE ASSESSEE AGREED TO THE IN CLUSION OF THIS AMOUNT IN HIS TOTAL INCOME. AS THE ASSESSEE ADMITTE D THAT SUCH AMOUNT REPRESENTED HIS INCOME, NO FURTHER EVIDENCE WAS NECESSARY TO SHOW THAT IT WAS THE AMOUNT WHICH REPRESENTED HI S INCOME AND CONCEALED INCOME. (IV) APART FROM PLETHORA OF CASE LAWS CITED BY CIT(A), R ELIANCE WAS ALSO PLACED ON CIT VS. O.B. SHAH & CO. (P) LTD.; AND CIT VS. ZOOM COMMUNICATION 327 ITR 510 (DEL.). (V) IN THE PRESENT CASE, THE BOOKS OF ACCOUNTS HAVE BEE N MAINTAINED IN A MANNER TO DECLARE A MUCH LESSER GROSS AND NET PR OFIT, THAN THE ACTUAL AND TO THAT EXTENT IT IS A CASE OF CONCEALME NT OF PARTICULARS OF INCOME. AT THE SAME TIME, ANY INACCURACY MADE IN TH E BOOKS OF ACCOUNTS OR BILLS AND VOUCHERS, WHICH RESULTED IN K EEPING OFF OR HIDING A PORTION OF ITS RETURN IS FURNISHING INACC URATE PARTICULARS BY THE APPELLANT. ITA 871/DEL/2013 SMT. VINAY SHARMA 7 2.7. WITH ABOVE OBSERVATIONS THE CIT(A) HELD THAT T HE ASSESSEES CASE IS LIABLE FOR PENALTY U/S 271(1)(C), HOWEVER, REDUCED THE SAME FROM 200% TO 150% OF THE TAX SOUGHT TO BE EVADED BY FOLLOWING OB SERVATIONS: HOWEVER, ON THE ISSUE OF QUANTUM OF PENALTY, I AGR EE WITH THE APPELLANT THAT THE A.O. IN THE PENALTY ORDER AS WEL L AS IN THE REMAND REPORT, HAS NOT BEEN ABLE TO GIVE ANY COGENT REASON AS TO WHY PENALTY @ 200% OF THE TAX EVADED HAS BEEN LE VIED. THE BEHAVIOUR OF THE APPELLANT HAS NOT BEEN ONE OF LITI GATION FOR PROLONGED DISPUTE OR HOSTILITY. RATHER THE APPELLAN T HAS DURING ASSESSMENT INVESTIGATIONS ONLY, CHOSE TO MAKE THE S URRENDER AND HENCE ALTHOUGH IT IS A CASE OF FURNISHING INACC URATE PARTICULARS; IT WOULD BE UNFAIR & EXCESSIVE IF PENA LTY IS IMPOSED @ 200% OF THE TAX EVADED. HOWEVER, AT THE SAME TIME THE FACT MENTIONED BY A.O . THAT ASSESSEE HAS NOT PAID THE TAX ON SURRENDERED A MOUNT EVEN TILL NOW, CANNOT BE BRUSHED ASIDE. NON PAYMENT OF T AX, INSPITE OF ADMITTED SURRENDER DURING THE ASSESSMENT, TENTAM OUNTS TO AN ELEMENT OF NON CO-OPERATION, MAKING THE BEHAVIOUR O F THE ASSESSEE, NON CO-OPERATIVE AND SUSPICIOUS TO SOME E XTENT. WEIGHING BOTH THE SIDES, I AM OF THE VIEW THAT IT W OULD BE FAIR IF PENALTY IS IMPOSED @ 150% OF THE TAX EVADED . TO THAT EXTENT A.O. IS DIRECTED TO MODIFY THE QUANTUM OF PE NALTY. AGGRIEVED, ASSESSEE IS BEFORE US. 3. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS AS UND ER: (I) FROM ASSESSMENT ORDER, IT CLEARLY EMERGES THAT ASSE SSEES BOOKS OF ACCOUNTS WERE OTHERWISE ACCEPTABLE TO ASSESSING OFF ICER, WHICH WERE EXAMINED AND NO ADVERSE COMMENT HAS BEEN OFFER ED. (II) THE IMPOSITION OF PENALTY DEPENDS ON THE PECULIAR F ACTS OF EACH CASE. IN THIS CASE THE PECULIAR FACTS OF THE CASE A RE THAT ASSESSING OFFICER ASKED THE ASSESSEE TO FILE THE DETAILS ABOU T THE CASH ITA 871/DEL/2013 SMT. VINAY SHARMA 8 PAYMENTS MADE TO THE FARMERS. ASSESSEE VISUALIZED T HE DIFFICULTIES AS THE PAYMENTS WERE MADE BEFORE 31-3-2009 TO FARME RS. THE ASSESSEE WAS ASKED THIS QUERY ON 21-12-2011 TO GIVE THE DETAILS OF THE CASH PURCHASES FROM FARMERS AND THE DATE OF HEA RING WAS FIXED ON 23-12-2011. THUS, WITHIN 2 DAYS THE ASSESSEE WAS REQUIRED TO FILE THE CONFIRMATION FROM NUMBER OF FARMERS WHICH WAS SEEMED TO BE AN IMPOSSIBLE TASK. UNDER THESE COMPELLING CIRCU MSTANCES, WITHOUT THEE BEING ANY INVESTIGATION BY THE ASSESSI NG OFFICER THE ASSESSEE ON 29-12-2011, TO CUT SHORT THE LITIGATION OFFERED TO BE ASSESSED AT THE NET AMOUNT OF RS. 75 LACS. THE OFFE R WAS ACCEPTED BY ASSESSING OFFICER WITHOUT DISPUTING ANY CONTENTS OR CONDITION OF THE SURRENDER. (III) IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS N O WHERE MENTIONED THAT THE OFFER IS NOT ACCEPTABLE AND ASSE SSED THE INCOME AS OFFERED BY ASSESSEE. THERE IS NO MENTION OF ANY INQUIRY OR PROCUREMENT OF ANY ADVERSE MATERIAL OR STATEMENT OF EVEN A SINGLE FARMER THAT THE AMOUNT WAS NOT PAID TO THEM. (IV) IN PARA 3.2 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS RECORDED THAT THE INCOME IS BEING ASSESSED AS PER T HE DECLARATION OF THE ASSESSEE. FROM THE ASSESSMENT ORDER IT IS CLEAR THAT ASSESSEES OFFER WAS ACCEPTED UNCONDITIONALLY. THE INCOME WAS ASSESSED ACCORDINGLY AND NO FURTHER INQUIRY WAS MADE BY THE ASSESSING OFFICER. (V) IN PARA 3 OF THE REMAND REPORT ALSO ASSESSING OFFIC ER HAS ACCEPTED THE FACT THAT ASSESSEE VOLUNTARILY OFFERED TO BE AS SESSED AT THE NET INCOME OF RS. 75 LACS. ITA 871/DEL/2013 SMT. VINAY SHARMA 9 (VI) IN PARA 5 OF THE REMAND REPORT THE ASSESSING OFFICE R HAS WRONGLY REPORTED THAT DURING THE COURSE OF ASSESSMENT PROCE EDINGS ASSESSEE OFFERED RS. 75 LACS AS CONCEALED HER INCOME. ASSES SING OFFICER HAS WRONGLY REPORTED THAT ASSESSEE HAS DELIBERATELY CON CEALED THE PARTICULARS. THE REMAND REPORT CONTRADICTS ITSELF I NASMUCH AS IN PARA 3 OF THE REMAND REPORT ASSESSING OFFICER ACCEP TS THE SURRENDER TO BE A VOLUNTARY OFFER WHICH IS IN CONFORMITY WITH THE FINDING IN ASSESSMENT ORDER, ON THE OTHER HAND IN SUBSEQUENT P ARAS THE ASSESSING OFFICER HAS GIVEN CONTRADICTORY FINDINGS THAT ASSESSEE OFFERED IT AS CONCEALED INCOME. BASED ON THIS REPOR T THE CIT(A) OBSERVED THAT THE OFFER OF ENHANCEMENT OF INCOME OB VIOUSLY CAME FORWARD AS A RESULT OF INQUIRIES AND INVESTIGATIONS BY THE ASSESSING OFFICER AND FEAR OF THE ASSESSEE. FROM THE ASSESSME NT ORDER AND REMAND REPORT OF ASSESSING OFFICER THESE FACTS DO N OT EMERGE AT ALL. THUS, THESE ARE PURELY ASSUMPTIONS MADE BY LD. CIT( A). (VII) THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FILE THE PROOF OF PURCHASE OF SALE OF EARTH SOIL FROM THE FARMERS FOR WHICH THE PAYMENTS WERE MADE IN CASH. ASSESSEE REALIZED THAT THE FARMERS MAY NOT COME FORWARD BECAUSE OF VARIOUS REASONS I.E . HAVING RECEIVED CASH THEY WILL NOT FEEL ANY RESPONSIBILITY TOWARDS ASSESSEE; THE FARMERS ARE HESITANT TO APPEAR BEFORE ANY OFFICER INCLUDING INCOME-TAX OFFICE AND THEREFORE THE COM PLIANCE SOUGHT WILL BE VERY DIFFICULT FOR THE ASSESSEE TO MEET WIT H. THE ASSESSEE SURRENDERED THE AMOUNT WITH CLEAR STIPULATION THAT THE INCOME OF RS. 75 LACS WAS BEING OFFERED TO BUY PEACE AND TO P UT AN END TO INQUIRIES AND AS A GESTURE OF COOPERATION WITH THE DEPARTMENT. ITA 871/DEL/2013 SMT. VINAY SHARMA 10 ASSESSEE FURTHER MADE A CLEAR CONDITION THAT OFFER IS SUBJECT TO THE FACT THAT NO PENALTY WILL BE IMPOSED ON THE ASSESSE E. (VIII) PARA 3.1 OF THE ASSESSMENT ORDER DOES NOT REFER TO ANY INVESTIGATION BUT TO A QUERY DATED 21-12-2011 I.E. 9 DAYS PRIOR T O THE ASSESSMENT TO FILE EVIDENCE BY 23-12-2011. THUS, THERE IS NO MERIT IN THE ASSUMPTION MADE BY THE CIT(A) THAT THE ASSESSEES O FFER CAME AFTER THE INVESTIGATION BY THE DEPARTMENT. UNDER TH ESE FACTS AND CIRCUMSTANCES, THE ASSESSEES SURRENDER WITH ITS C ONDITIONS IS CLEARLY A VOLUNTARY OFFER AND NOT CONSEQUENT TO ANY INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER AS IS BEING PU RPORTED TO BE PROJECTED. (IX) THE CASE LAWS RELIED ON BY THE CIT(A) ARE DISTINGU ISHABLE AS IN THESE CASES THE ASSESSEES COULD NOT OFFER SATISFAC TORY EXPLANATIONS, BESIDES THERE IS NO REFERENCE TO ANY CONDITION OF N ON IMPOSITION OF PENALTY WHILE SURRENDERING IN THESE CASES. WHEREAS IN THIS CASE THE ASSESSEE HAS NOT ONLY OFFERED A SATISFACTORY EXPLAN ATION BUT HAS CORROBORATED IT BY PROPER FACTS AND CONTENTIONS. 3.1. LD. COUNSEL THEN REFERRED TO FOLLOWING CASE LA WS IN ASSESSEES SUPPORT: (I) CIT VS. UPENDRA V. MITHANI [ITA (L) NO. 1860 OF 200 9 DATED 5-8- 2009 (BOM.)]: THE ISSUE INVOLVED IN THE APPEAL RELA TES TO DELETION OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. THE COMMISSIONER OF INCOME TAX (A) HELD THAT NO PENALTY CAN BE IMPOSED IF THE FACTS AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOTHESIS THAT THE AMOUNT DOES NOT REPRESENT C ONCEALED INCOME AS WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSEE GIVES AN EXPLANATION WHICH IS UNPROVED BUT NOT DISPROVED, I. E. IT IS NOT ITA 871/DEL/2013 SMT. VINAY SHARMA 11 ACCEPTED, BUT CIRCUMSTANCES DO NOT LEAD TO THE REAS ONABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE IS FALS E. THE ITAT CONCURRED WITH THE VIEW TAKEN BY THE COMMISSIONER O F INCOME TAX (A). HONBLE BOMBAY HIGH COURT HELD THAT THE V IEW TAKEN BY THE TRIBUNAL IS A REASONABLE AND POSSIBLE VIEW. THE REVENUES APPEAL WAS DISMISSED AS WITHOUT ANY SUBSTANCE. (II) CIT VS. M/S CAREERS EDUCATION & INFOTECH PVT. LTD. [ITA NO. 14 OF 2011 DATED 31-3-2011 (P&H)] : IT IS HELD THAT, WE ARE UNABLE TO ACCEPT THE SUBMISSION. NO DOUBT EVEN VOLUNTARY S URRENDER OF CONCEALED INCOME MAY NOT EXONERATE THE ASSESSEE OF ITS LIABILITY TO PAY PENALTY IF IT CAN BE HELD THAT THERE WAS CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. IN THE PRE SENT CASE, THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING THAT TH ERE WAS NO MATERIAL TO INFER CONCEALMENT OF INCOME OR FURNISHI NG OF INACCURATE PARTICULARS. THEY CONTENTION THAT IN EVE RY CASE WHERE SURRENDER IS MADE INFERENCE OF CONCEALMENT OF INCOM E MUST BE DRAWN UNDER SECTION 58 OF THE EVIDENCE ACT CANNOT B E ACCEPTED. JUDGMENT OF THE MADRAS HIGH COURT ALSO DOES NOT LAY DOWN SUCH WIDE PROPOSITION. THE OBSERVATIONS THEREIN ARE ON F ACTS OF THAT CASE. THE SAID JUDGMENT IS THUS DISTINGUISHABLE . (III) ITAT AGRA BENCH ORDER DATED 4-4-2013 IN SARV PRAKAS H KAPOOR VS. ACIT & ANOTHER (ITA NOS. 107 & 195/AGRA/2011): 9. WE MAY NOTE FURTHER THAT THE A.O. IN THE PENAL TY ORDER HAS RECORDED HIS SATISFACTION THAT THE ASSESS EE HAS DELIBERATELY CONCEALED THE PARTICULARS OF INCOME AN D FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE LOAN AMOUNT, THEREFORE, THE PENALTY IS LEVIABLE UNDER SECTION 27 1(1)(C) READ WITH EXPLANATION (1) TO THE ABOVE SECTION. FROM SUCH FIN DINGS RECORDED BY THE A.O. AND INFERENCE DRAWN, IT IS EVIDENT THAT ASSESSING OFFICER DID NOT GIVE CLEAR CUT FINDING IN THE PENALTY ORDER , NOR THERE WAS ANY SUCH FINDINGS IN THE IMPUGNED ORDER AS TO WHETH ER THERE WAS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME BY ASSESSEE. 10. FROM THE LANGUAGE OF SECTION 271(1)(C) OF THE A CT IT WAS INCUMBENT UPON THE ASSESSING OFFICER OR LEARNED CIT (A) TO COME TO ITA 871/DEL/2013 SMT. VINAY SHARMA 12 A POSITIVE FINDING AS TO WHETHER THERE WAS CONCEALM ENT OF THE INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PA RTICULARS OF SUCH INCOME HAVE BEEN FURNISHED BY THE ASSESSEE. IN THE ABSENCE OF SUCH CLEAR CUT FINDING, THE PENALTY ORDER PASSED BY THE A.O. WAS LIABLE TO BE SET ASIDE. THIS VIEW IS SUPPORTED BY T HE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF NEW SORAT HIA ENGINEERING CO. VS. COMMISSIONER OF INCOME TAX [200 6] 282 ITR 642 (GUJ). THE SAME VIEW IS ALSO TAKEN BY ITAT AGRA BENCH, IN THE CASE OF SMT. SUSHMA VARSHNEY (SUPRA). ON THIS R EASON ALONE THE PENALTY IS LIABLE TO BE CANCELLED IN THE MATTER . (IV) NATIONAL TEXTILE VS. CIT 249 ITR 125 (GUJ.): IN ORDER TO JUSTIFY THE LEVY OF PENALTY, TWO FACTORS MUST CO-EXIST, (I) THERE MUST BE SOME MATERIAL OR CIRCUMSTANCE LEADING TO THE REASON ABLE CONCLUSION THAT THE AMOUNT DOES REPRESENT THE ASSES SEES INCOME. IT IS NOT ENOUGH FOR THE PURPOSE OF PENALTY THAT TH E AMOUNT HAS BEEN ASSESSED AS INCOME AND (II) THE CIRCUMSTANCES MUST SHOW THAT THERE WAS ANIMUS, I.E. CONSCIOUS CONCEALMENT OR ACT OF FURNISHING OF INACCURATE PARTICULARS ON THE PART OF THE ASSESS EE. THE EXPLANATION HAS NO BEARING ON FACTOR NO. (I) BUT IT HAS BEARING ON FACTOR NO. (II) THE EXPLANATION DOES NOT MAKE THE A SSESSMENT ORDER CONCLUSIVE EVIDENCE THAT THE AMOUNT ASSESSED WAS IN FACT THE INCOME OF THE ASSESSEE. NO PENALTY CAN BE IMPOSED I F THE FACTS AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOT HESIS THAT THE AMOUNT DOES NOT REPRESENT CONCEALED INCOME WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSEE GIVES AN EXPLANATION WHICH IS UNPROVED BUT NOT DISPROVED, I.E. IT IS NOT ACCEPTED BUT CIR CUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE IS FALSE, THE EXPLANATION CANNOT HELP THE DEPA RTMENT BECAUSE THERE WILL BE NO MATERIAL TO SHOW THAT THE AMOUNT I N QUESTION WAS THE INCOME OF THE ASSESSEE. (V) CIT VS. AGGARWAL PIPE CO. 240 ITR 880 (DEL.): FROM THE AFORE EXTRACTED ORDER OF THE TRIBUNAL IT IS EVIDENT THAT THE TRIBUNAL HAS FOUND AS A FACT THAT THE SURRENDER OF THE CASH CRED ITS BY THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, WAS BONA FIDE AND MERELY BECAUSE THE SAID AMOUNT HAS BEEN IN CLUDED IN THE TOTAL INCOME OF THE ASSESSEE, IT DOES NOT FOLLOW AS A NECESSARY COROLLARY THAT THE ASSESSEE HAS ADMITTED THE SAME T O BE ITS CONCEALED INCOME, TO BRING IT WITHIN THE AMBIT OF S ECTION 271(1)(C) ITA 871/DEL/2013 SMT. VINAY SHARMA 13 READ WITH THE EXPLANATION THERETO. THE AFORE NOTED FINDINGS RECORDED BY THE TRIBUNAL ARE PURE FINDINGS OF FACT AND CANNOT BE SAID TO BE PERVERSE OR UNREASONABLE. IN ANY CASE TH E SAME ARE NOT SOUGHT TO BE CHALLENGED BY THE REVENUE AS PERVERSE IN THE PROPOSED QUESTIONS. 3.2. LD. COUNSEL PLEADS THAT FROM THE ABOVE CASE LA WS IT IS CLEAR THAT MERELY BECAUSE ASSESSEE HAS SURRENDERED THE INCOME IT DOES NOT AUTOMATICALLY MEAN THAT IT WAS A CONCEALED INCOME O R INCOME FOR WHICH INACCURATE PARTICULARS WERE FURNISHED. ASSESSEES E XPLANATION IS TO BE OBJECTIVE AND IS TO BE ASCERTAINED BY ASSESSING OFF ICER/ CIT(A), WHETHER THE SAME IS BONA FIDE OR NOT. MERELY BECAUSE AN ADDITIO N IS MADE, THEREFORE, PENALTY CANNOT BE IMPOSED ON THIS BASIS ALONE. A FI NDING ABOUT ADDITIONAL INCOME OR SURRENDERED INCOME MAY BE A RELEVANT EVID ENCE IN THE PENALTY PROCEEDINGS BUT THAT CANNOT BE A CONCLUSIVE EVIDENC E TO IMPOSE THE PENALTY, MORE SO WHEN IN THE ASSESSEES CASE ASSESSING OFFIC ER HIMSELF IN ASSESSMENT ORDER HAS RECORDED THAT ASSESSEE VOLUNTARILY OFFERE D THE INCOME. FROM THE ASSESSMENT ORDER IT CLEARLY EMERGES THAT THE QUERY WAS RAISED AT THE FAG END OF ASSESSMENT ON 21-12-2011, TO BE COMPLIED WITHIN TWO DAYS ON 23-12- 2011 AND ASSESSEE BEING UNABLE TO COMPLY WITH THE Q UERY, TO END THE LITIGATION; TO COOPERATE WITH THE DEPARTMENT; AND T O BUY PEACE OF MIND, SURRENDERED A ROUND FIGURE OF INCOME OF RS. 75 LACS ON 29-12-2011. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER ON 31 -12-2011 ACCEPTING THE ASSESSEES SURRENDER WITHOUT ANY OBJECTION AND NOT DISPUTING THE CONDITION ABOUT LEVY OF PENALTY. UNDER THESE CIRCUMSTANCES, T HE CASE LAWS CITED BY THE ASSESSEE, MAKE OUT A FIT CASE FOR NON-IMPOSITION OF PENALTY. THE VARIOUS CASE LAWS CITED BY THE CIT(A) ARE ALL DISTINGUISHABLE AN D RENDERED ON PECULIAR FACTS WHICH EXIST IN THOSE CASES AND ARE WAY APART FROM ASSESSEES FACTS. CIT(A) HAS WRONGLY MENTIONED THAT NO DECISION AS NE W SORATHIA ENGG. CO. ITA 871/DEL/2013 SMT. VINAY SHARMA 14 VS. CIT 282 ITR 614 (GUJ.) IS NOT AVAILABLE, WHEREA S THE FACT OF THE MATTER IS THAT THE JUDGMENT IS AVAILABLE AT 282 ITR 642 AND IT DEALS WITH THE ISSUE OF PENALTY AND SUPPORTS THE ASSESSEES CASE TO THE EFF ECT THAT A POSITIVE FINDING ABOUT THE SURRENDERED INCOME BEING CONCEALED OR INA CCURATE PARTICULARS HAVING BEEN FURNISHED, SHOULD BE GIVEN BY THE ASSES SING OFFICER. 3.3. IN THIS CASE ON ONE HAND IT HAS BEEN ADMITTED THAT IT IS A VOLUNTARY SURRENDER AND ON THE OTHER HAND IN THE REMAND REPOR T WITHOUT APPRECIATING THE CONTRADICTIONS ON THE PART OF ASSESSING OFFICER , IT IS ERRONEOUSLY PRESUMED BY THE CIT(A) TO BE A CASE OF SURRENDER AF TER INVESTIGATION, ALTHOUGH NO INDEPENDENT INVESTIGATION IS MENTIONED ANY WHERE BY ASSESSING OFFICER. IT IS PLEADED THAT THE PENALTY HAS BEEN WR ONGLY LEVIED. 4. LD. DR, ON THE OTHER HAND, SUPPORTS THE ORDER OF CIT(A) AND RELIED ON FOLLOWING JUDGMENTS: - DAYABHAI GIRDHARBHAI VS. CIT 32 ITR 677 (BOM); - CIT VS. HAJI P. MOHAMMAD 132 ITR 623 (KER.); - MAHABIR METAL WORKS VS. CIT 92 ITR 513 (P&H); - BADRI PRASAD OM PRAKASH VS. CIT 163 ITR 440 (RAJ.); - S.R. ARULPRAKSHAM VS. PREMA MALINI VASAN ITO 163 IT R 487 (MAD.); - P.C. AGARWAL VS. CIT 102 ITR 408 (GAU.); - CIT VS. J.K. SUBRAMANIA CHETTIAR 110 ITR 602 (MAD.) ; AND - RAVI & CO. VS. ACIT 271 ITR 286 (MAD.). - ZOOM COMMUNICATION 327 ITR 510 (DEL.). 5. IN REPLY, LEARNED COUNSEL FOR THE ASSESSEE CONTE NDS THAT THE CITATIONS QUOTED BY LD. SR. DR ARE ALL ON THEIR PECULIAR FACT S. IN CASE OF ZOOM COMMUNICATION (SUPRA), THE PENALTY WAS IMPOSED ON F OLLOWING OBSERVATIONS: (I) THE ASSESSEE CLAIMED CAPITAL EXPENDITURE TO BE REVE NUE EXPENDITURE AND GAVE A GENERAL ANSWER THAT IT WAS B Y OVER SIGHT. ITA 871/DEL/2013 SMT. VINAY SHARMA 15 (II) IT WAS OBSERVED THAT ASSESSEE IS A COMPANY AND MUST BE GETTING COMPETENT PROFESSIONAL ASSISTANCE WHILE COMPUTING I TS INCOME, THEREFORE, IT WAS NOT APPRECIABLE AS TO HOW SUCH CL AIM ESCAPED THE ATTENTION OF THE AUDITORS. (III) THE ITAT DID NOT RECORD A FINDING THAT THE ASSESSEE S EXPLANATION WAS BONA FIDE. (IV) THE ORDER OF ITAT SUFFERS FROM _____ PERVERSITY AS IT CANNOT BE ACCEPTED AS GENERAL PROPOSITION THAT NO PERSON WOUL D EVER CLAIM THE AMOUNT OF INCOME TAX AS DEDUCTION WITH A VIEW T O AVOID PAYMENT OF TAX. THUS, IN PECULIAR FACTS, THE PENALT Y WAS IMPOSED. 5.1. IN ASSESSEES CASE, THE OFFER IS BONA FIDELY A CCEPTED BY ASSESSING OFFICER. THE ASSESSEE IS NOT A COMPANY BUT A LADY C ONTRACTOR AND DOES NOT HAVE THE HELP OF AUDITORS ETC. LOWER AUTHORITIES HA VE FAILED TO CONSIDER THE CRUCIAL AND RELEVANT FACTS AND ON CONTRADICTORY FIN DINGS AND ASSUMPTIONS, THE PENALTY HAS BEEN IMPOSED. 5.2. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS . SOCIETEX 24 TAXMAN.COM 309 (DEL), AFTER CONSIDERING THE JUDGMEN TS OF ZOOM COMMUNICATION; ESCORT FINANCE; AND RELIANCE PETRO P RODUCTS, UPHELD THE FINDING OF THE TRIBUNAL THAT THE MISTAKE AND EXPLAN ATION OF THE ASSESSEE WAS BONA FIDE. THUS THE ZOOM COMMUNICATION ALSO DOES NO T LAY DOWN ANY GENERAL PROPOSITION OF LAW AND EVERY CASE OF PENALT Y IS DISCRETELY TO BE CONSIDERED IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT ORDER, THERE IS NO ADVERSE COMMENT ABOUT THE ASSESSEES BOOKS OF ACCOUNT AND THE SURRE NDER OFFER AS MADE BY ITA 871/DEL/2013 SMT. VINAY SHARMA 16 THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY OBJECTION OR RESERVATION THEREOF ABOUT INCOME OFFERED OR THE OTH ER CONTENTS. THE SOLE BASIS OF ASSESSING THE INCOME IS ONLY THIS SURRENDE R OFFER WITHOUT RELYING ANY ADVERSE MATERIAL. 6.1. DURING THE ASSESSMENT, THE ASSESSING OFFICER A SKED THE QUERY ABOUT CASH PAYMENTS TO FARMERS AS LATE AS 21-12-2012 AND CALLED ON THE ASSESSEE TO FURNISH THE INFORMATION IN THIS BEHALF WITHIN TWO D AYS WHICH THE ASSESSEE COMPLIED AFTER SEVEN DAYS AND AS CONTENDED, FINDING IT NEARLY IMPOSSIBLE TO GATHER THE INFORMATION, OFFERED A HIGH FIGURE OF NE T INCOME TO END THE INQUIRIES, LITIGATION, WITH A VIEW TO COOPERATE WI TH THE DEPARTMENT AND WITH A CONDITION THAT NO PENALTY SHOULD BE IMPOSED ON THE SURRENDERED INCOME. ASSESSING OFFICERS ACCEPTANCE OF THESE CONDITIONS IS IMPLIED INASMUCH AS NOT A WORD HAS BEEN ADVERSELY WRITTEN AGAINST THE A SSESSEES OFFER. 6.2. IN PARA 3 OF THE REMAND REPORT ALSO, THE ASSES SING OFFICER HAS REFERRED THE SURRENDER TO BE A VOLUNTARY OFFER HOWEVER, IN S UBSEQUENT PARAS IT IS PROJECTED AS IF ASSESSEE OFFERED IT AS HER CONCEALE D INCOME WHICH IS CONTRARY TO THE FINDINGS IN ASSESSMENT ORDER. THE CIT(A) HA S ACCEPTED THE CONTRADICTORY VERSION OF THE REMAND REPORT WITHOUT APPRECIATING THE ENTIRETY OF FACTS. IN THE GIVEN FACTS AND CIRCUMSTANCES, IT IS TO BE HELD THAT SURRENDER OFFER OF THE ASSESSEE WAS VOLUNTARY AND WITH A VIEW TO END LITIGATION, BUY PEACE AND TO AVOID PENALTY. THERE IS NO WHISPER IN THE SURRENDER THAT SURRENDERED INCOME REPRESENTED THE CONCEALED INCOME OF THE ASSESSEE. THEREFORE, THESE OBSERVATIONS OF THE LOWER AUTHORIT IES ARE UNSUSTAINABLE. 6.3. ASSESSING OFFICER HAS NO WHERE STATED THAT THE OFFER WAS MADE CONSEQUENT TO INVESTIGATION CARRIED OUT BY HIM. NEV ERTHELESS CIT(A) HAS OBSERVED THAT THE SURRENDER WAS MADE AFTER INVESTIG ATIONS BY THE ASSESSING OFFICER AND FEAR OF THE ASSESSEE. IN OUR VIEW, THES E OBSERVATIONS ARE NOT ITA 871/DEL/2013 SMT. VINAY SHARMA 17 DISCERNABLE FROM THE RECORD AND THEREFORE ARE NOT B ASED ON ANY COGENT MATERIAL EXISTING ON THE RECORD. 6.4. THE CASE LAWS CITED BY THE LD. CIT(A) ARE DIST INGUISHABLE INASMUCH AS IN NONE OF THE CASES THE PECULIAR FACTS ABOUT VOLUN TARY SURRENDER AND STIPULATION ABOUT CONDITION OF NON-IMPOSITION OF PE NALTY HAS BEEN HIGHLIGHTED. SIMILARLY, THE VOLUNTARY OFFER, BEING GIVEN AT THE FAG END OF ASSESSMENT PROCEEDINGS ALSO MAKES THE ASSESSEES CA SE DISTINGUISHABLE. IN THE ABSENCE OF ANY DISCERNABLE INVESTIGATION BY ASS ESSING OFFICER AND SURRENDER BY THE ASSESSEE BEING NOT IN RESPECT OF C ONCEALED INCOME AS PROJECTED BY CIT(A), WE ARE UNABLE TO UPHOLD THIS F INDING AND RELY ON THE CASE LAWS CITED BY THE CIT(A) AND LD. CIT(DR). 6.5. IT IS A SETTLED LAW THAT PENALTY PROCEEDINGS A RE SEPARATE AND INDEPENDENT AND A FINDING IN THE ASSESSMENT ORDER M AY BE AN EVIDENCE WHICH CAN BE RELIED BUT IT CANNOT BE CONCLUSIVE BY ITSELF FOR IMPOSITION OF PENALTY. BESIDES IN THIS CASE THE FINDING IN ASSESSMENT ORDE R IS NOT OF CONCEALED INCOME BUT THAT OF A VOLUNTARY SURRENDER AND HENCE CAN NOT BE MADE A SOLE BASIS FOR IMPOSING PENALTY. THUS, THE FINDING IN TH E ASSESSMENT ORDER ITSELF DOES NOT MILITATE AGAINST THE STAND TAKEN BY THE AS SESSEE THAT IT WAS A VOLUNTARY SURRENDER. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE MADE THIS S URRENDER OFFER VOLUNTARY IN PECULIAR CIRCUMSTANCES OF THIS CASE. ASSESSING OFFI CER HIMSELF ACCEPTED IT AS VOLUNTARY OFFER, REPRODUCED THE SAME IN HIS ORDER A ND ASSESSED THE INCOME ON EXACTLY THE SAME AMOUNT. THERE IS NO REFERENCE TO A NY INVESTIGATION OR ADVERSE MATERIAL. THUS, THE ASSESSEES OFFER IS TO BE HELD AS VOLUNTARY SURRENDER, ACCEPTED BY THE DEPARTMENT ACCORDINGLY. THERE BEING NO ADVERSE MATERIAL AVAILABLE ON RECORD OR ANY RELIANCE THEREO N, THE OBSERVATIONS OF ASSESSING OFFICER AND CIT(A) ABOUT CONCEALMENT OR I NACCURATE PARTICULARS ARE ITA 871/DEL/2013 SMT. VINAY SHARMA 18 NOT BORNE FROM THE RECORD AND THE SAME ARE CONTRADI CTORY TO EACH OTHER. IN VIEW THEREOF, WE DELETE THE PENALTY IMPOSED ON THE ASSESSEE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30-08-2013. SD/- SD/- ( B.C. MEENA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH AUGUST 2013. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR