M/s Kakade Construction Company, Pune V. ACIT, Pune

ITA 99/PUN/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66939 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 10-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Document seized
• Section: 143(3); 80HHC; 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NOS.99 AND 100/PN/2013 (ASSESSMENT YEARS 2005-06 AND 2006-07) M/S. KAKADE CONSTRUCTION COMPANY, KAKADE CAPITAL, 1205 BEHIND SHIROLE PETROL PUMP, NEAR P. JOG CLASSES OF J.M. ROAD, SHIVAJINAGAR, PUNE 411005. .. APPELLANT PAN NO.AABFK 7509F VS. ACIT CENTRAL CIRCLE 2(2), PUNE. .. RESPONDENT ASSESSEE BY : SRI SUNIL GANOO REVENUE BY : MS. ANN KAPTHUAMA DATE OF HEARING : 26-04-2013 DATE OF PRONOUNCEMENT : 30-04-2013 ORDER PER R.K. PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 28-11-2012 OF THE CIT(A)-CENT RAL, PUNE RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. LEVY OF PENALTY OF RS.7 LAKHS FOR A.Y. 2005-06 A ND RS.1,24,87,500/- FOR A.Y. 2006-07 U/S.271(1)(C) OF THE I.T. ACT BY T HE ASSESSING OFFICER AND UPHELD BY THE CIT(A) IS THE ONLY ISSUE IN THE GROUN DS RAISED BY THE ASSESSEE IN THE ABOVE TWO APPEALS. ITA NO.99/PN/2013 (A.Y. 2005-06) : 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE HAD FILED ORIGINAL RETURN OF INCOME ON 31-10-2005 DECLARING NIL INCO ME AFTER CLAIMING DEDUCTION OF RS.6,83,253/- U/S.80IB(10) OF THE INCO ME TAX ACT. 2 SUBSEQUENTLY, AFTER SEARCH CONDUCTED IN THE CASE OF THE ASSESSEE ON 11-02- 2009 THE ASSESSEE, IN RESPONSE TO NOTICE U/S.153A(A ), FILED RETURN OF INCOME DECLARING NIL INCOME ON 09-08-2010. THE ASSESSME NT U/S.143(3) R.W.S.153A WAS FINALISED ON 31-12-2010 DETERMINING THE TOTAL INCOME AT RS.22,42,178/-. IN THE SAID ORDER THE ASSESSING OF FICER DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) AMOUNTING TO RS.6,8 3,253/- DUE TO NON- ATTACHMENT OF FORM 10 CCB AND NON-FURNISHING OF REL EVANT DETAILS LIKE SIZE OF THE PLOT, DATE OF COMMENCEMENT OF BUILDING, SIZE OF THE RESIDENTIAL UNIT, BUILDING PLAN ETC. IT WAS SUBMITTED BY THE ASSESSE E THAT THE MATTER IS OLD PERTAINING TO 6 TO 7 YEARS AND ALSO THERE IS CHANG E IN THE PARTNERS OF THE FIRM AND THEREFORE THE ASSESSEE WAS NOT IN A POSITION TO FURNISH THE DETAILS AS CALLED FOR BY THE ASSESSING OFFICER. THE ASSESSING OFFICER SIMILARLY MADE ADDITION OF RS.58,925/- ON ACCOUNT OF NON-PAYMENT O F STATUTORY DUES, I.E. PROFESSIONAL TAX RS.58,925/-. SIMILARLY, THE ASSES SING OFFICER MADE ADDITION OF RS.15 LAKHS PAID TO ONE SRI PUSHKAR JOG IN CASH. WHILE MAKING THE ADDITION OF RS.15 LAKHS THE ASSESSING OFFICER R EJECTED THE CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF RS.15 LAKHS HAS BEE N DISCLOSED BY THE ASSESSEE DURING A.Y. 2006-07. THE ASSESSEE DID NOT PREFER ANY APPEAL. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED PENAL TY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT AND LEVIED PENA LTY OF RS.7 LAKHS WHICH WAS UPHELD BY THE LD. CIT(A). 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, SINCE THE ASSESSMENT FRAMED BY THE LEARNED ASSESSING OFFICER U/S153A IS BAD IN LAW, NULL AND VOID AB-INITIO AND WITHOUT JURISDICTION TH E PENALTY LEVIED U/S 271[1][C] OF THE I.T. ACT 1961 ON THE BASIS OF SUCH VOID ORDER IS ALSO BAD IN LAW, NULL AND VOID AB-INITIO AND WITHOUT JURISDI CTION AND HENCE THE IMPUGNED PENALTY MAY PLEASE BE DELETED. 3 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED C.I.T.[A] HAS FAILED TO APPRECIATE THAT SINCE IN TH E ORIGINAL ASSESSMENT ORDER FRAMED U/S 143[3] OF THE I.T. ACT 1961, [WHIC H HAD ATTAINED FINALITY ON THE DATE OF SEARCH] THE CLAIM OF DEDUCTION U/S 8 0IB[10] WAS ALLOWED BY THE LEARNED ASSESSING OFFICER AFTER SCRUTINY AND DU E APPLICATION OF MIND, THE DISALLOWANCE OF THE SAID DEDUCTION IN ASSESSMEN T FRAMED U/S 153A OF THE I.T.ACT 1961, PARTICULARLY IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL OR FRESH FACTS CANNOT CONSTITUTE CONCEALED INCOME O R FURNISHING IN ACCURATE PARTICULARS OF INCOME WARRANTING LEVY OF P ENALTY U/S 271[1][C] OF THE I.T.ACT 1961. THE IMPUGNED PENALTY BEING BAD IN LAW, PATENTLY ILLEGAL, WITHOUT JURISDICTION AND VOID AB-INITIO THE SAME MA Y PLEASE BE DELETED 3. THE IMPUGNED PENALTY LEVIED U/S 271[1][C] OF T HE I.T. ACT 1961 BY THE LEARNED ASSESSING OFFICER AND AS CONFIRMED BY THE L EARNED C.I.T.(A) ON THE AMOUNT OF RS.6,83,253.00 BEING THE ALLEGED CONCEALE D INCOME/THE INCOME IN RESPECT OF WHICH INACCURATE PARTICULARS OF INCOM E HAVE BEEN FILED, BEING BAD IN LAW, PATENTLY ILLEGAL, WITHOUT JURISDICTION AND VOID AB-INITIO THE SAME MAY PLEASE BE DELETED. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED C.I.T.[A] HAS FAILED TO APPRECIATE THAT AN ADDITION OF RS.15,00,000.00 MADE BY THE LEARNED ASSESSING OFFICER IN RESPECT OF THE PAYMENT MADE TO PUSHKAR JOG DOES NOT WARRANT ANY PENALTY U/S 271[1] [C] OF THE I.T. ACT 1961 AS THE SAID AMOUNT WAS MISTAKENLY DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED U/S153A FOR A.Y.2006- 07 AND THE TAXES WERE ALSO PAID. IN THE CIRCUMSTANC ES THE LEARNED C.I.T.[A] OUGHT TO HAVE APPRECIATED THAT THE APPELL ANT HAD NO MALAFIDE INTENTIONS IN THE MATTER. IT IS THEREFORE HUMBLY PR AYED THAT THE PENALTY LEVIED ON THIS ADDITION OF RS.15,00,000.00 MAY PLEA SE BE DELETED. 5. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEN D, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF AP PEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE HA D FILED THE ORIGINAL RETURN OF INCOME ON 31-10-2005 BY CLAIMING DEDUCTION OF RS .6,83,253/- U/S.80IB(10) WHICH WAS ACCEPTED BY THE ASSESSING OF FICER. THE SEARCH TOOK PLACE IN THE INSTANT CASE ON 11-02-2009 AND TH E DEDUCTION OF RS.6,83,253/- U/S.80IB(10) WAS DENIED BY THE AO ON ACCOUNT OF NON- FURNISHING OF AUDIT REPORT U/S.10CCB AND NON-FURNIS HING OF CERTAIN DETAILS AS CALLED FOR BY THE ASSESSING OFFICER. THE DEDUCT ION WAS NOT DISALLOWED ON ACCOUNT OF MATERIAL FOUND DURING THE COURSE OF S EARCH. 4 6. WE FIND THE HONBLE JURISDICTIONAL HIGH COURT OF BOMBAY (NAGPUR BENCH) VIDE ITA NO.36/2009 ORDER DATED 29-10-2010 I N THE CASE OF CIT VS. M/S. MURLI AGRO PRODUCTS LTD. HAS OBSERVED AS UNDER : 11) IN THE PRESENT CASE, AS CONTENDED BY SHRI MANI , LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSMENT FOR THE ASSESSMENT YEAR 19 98-99 WAS FINALISED ON 29-12- 2000 AND SEARCH WAS CONDUCTED THEREAFTER ON 03-12-2 003. THEREFORE, IN THE FACTS OF THE PRESENT CASE, INITIATION OF PROCEEDINGS UNDE R SECTION 153A WOULD NOT AFFECT THE ASSESSMENT FINALISED ON 29-12-2000. 12) ONCE IT IS HELD THAT THE ASSESSMENT FIN ALISED ON 29.12.2000 HAS ATTAINED FINALITY, THEN THE DEDUCTION ALLOWED UNDER SECTION 80 HHC OF THE INCOME-TAX ACT AS WELL AS THE LOSS COMPUTED UNDER THE ASSESSMENT D ATED 29-12-2000 WOULD ATTAIN FINALITY. IN SUCH A CASE, THE A.O. WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143 (3) OF THE I.T. ACT COULD NOT HAVE DISTURBED THE ASSESSMENT/ REASSESSMENT ORDER WHICH HAS ATTAINED FINALITY, UNL ESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS UNDER SECTION 153A OF THE INCOME-TAX ACT ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FINALI SED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153A PROCEEDINGS. 13) IN THE PRESENT CASE, THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHED DURING THE SEARCH OR DURING THE 153A PROCEEDINGS WHICH WOULD SHOW THAT THE RELIEF UNDER SECTION 80HHC WAS ERRONEOUS. IN SUCH A CASE, THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R UNDER SECTION 153A READ WITH SECTION 143(3) COULD NOT HAVE DISTURBED THE ASSESSM ENT ORDER FINALISED ON 29-12- 2000 RELATING TO SECTION 80HHC DEDUCTION AND CONSEQ UENTLY THE C.I.T. COULD NOT HAVE INVOKED JURISDICTION UNDER SECTION 263 OF THE ACT. 7. SINCE IN THE INSTANT CASE THE ORIGINAL ASSESSMEN T WAS FINALISED PRIOR TO THE DATE OF SEARCH THAT TOOK PLACE ON 11-02-2009 AS STATED BY LD. AUTHORISED REPRESENTATIVE AND NOT CONTROVERTED BY T HE LD. DEPARTMENTAL REPRESENTATIVE, THEREFORE, IN VIEW OF THE ABOVE DEC ISION THE INITIATION OF PROCEEDINGS U/S.153A WOULD NOT AFFECT THE ASSESSMEN T FINALISED PRIOR TO 11- 02-2009. ONCE IT IS HELD THAT THE ASSESSMENT FINAL ISED PRIOR TO THE DATE OF SEARCH HAS ATTAINED FINALITY, THEN THE DEDUCTION AL LOWED THEREIN WOULD ATTAIN FINALITY AND THEREFORE THE ASSESSING OFFICER COULD NOT HAVE DISTURBED THE ASSESSMENT ORDER PASSED U/S.143(3) FOR THE A.Y. 200 5-06. NO DOUBT THE 5 ASSESSEE IN THE INSTANT CASE HAS NOT FILED ANY APPE AL AGAINST THE ORDER PASSED U/S.143(3) R.W.S.153A IN THE QUANTUM PROCEEDINGS. HOWEVER, THE ASSESSEE CAN ALWAYS ARGUE HIS CASE AFRESH IN THE PENALTY PRO CEEDINGS ON VARIOUS ISSUES WHICH HE HAD NOT ARGUED DURING THE QUANTUM P ROCEEDINGS. SINCE IN THE INSTANT CASE THE ASSESSING OFFICER COULD NOT HA VE DISTURBED THE ASSESSMENT WHICH WAS FINALISED BEFORE THE DATE OF S EARCH, THEREFORE, IN VIEW OF THE DECISION OF THE JURISDICTIONAL HIGH COURT CI TED (SUPRA) THE QUESTION OF PENALTY DOES NOT ARISE. IN THIS VIEW OF THE MAT TER, WE AGREE WITH THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER ON ACCOUNT OF DENIAL OF DEDUCTION U/S.80IB(10) IS NOT PROPER AND HAS TO BE CANCELLED. WE HOLD AND DIRECT ACCORDINGLY. 8. SO FAR AS THE DISALLOWANCE OF RS.58,925/- U/S.43 B OF THE ACT FOR NON- PAYMENT OF STATUTORY DUES IN TIME IS CONCERNED WE F IND THE SAME IS BASED ON THE AUDIT REPORT FILED BY THE ASSESSEE AND NOT B ASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. FURTHE R, THE ORIGINAL RETURN WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY DISAL LOWANCE ON THIS ACCOUNT AND THE SEARCH TOOK PLACE ON 11-02-2009, I. E. AFTER COMPLETION OF THE ASSESSMENT. THEREFORE, WE ARE OF THE CONSIDERE D OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY. ACCORDINGLY, NO PE NALTY U/S.271(1)(C) OF THE I.T. ACT IS LEVIABLE ON THIS ADDITION. 9. SO FAR AS THE ADDITION OF RS.15 LAKHS ON WHICH P ENALTY HAS BEEN LEVIED IS CONCERNED WE FIND THE ASSESSEE HAS DISCL OSED THE SUM IN A.Y. 2006-07. THE ADDITION OF RS.15 LAKHS WHICH HAS BEE N ADDED BY THE ASSESSING OFFICER IN A.Y. 2005-06 HAS BEEN DEDUCTED FROM THE TOTAL INCOME DECLARED IN A.Y. 2006-07. THEREFORE, THE DISPUTE I S REGARDING THE YEAR OF 6 TAXABILITY OF RS.15,00,000/-. SINCE THE ASSESSEE H AS OFFERED THE AMOUNT IN A.Y. 2006-07 AND THE ASSESSING OFFICER TAXED THE S AME IN A.Y. 2005-06, THEREFORE, ADDITION MAY BE MADE IN A.Y. 2005-06. HO WEVER, IT DOES NOT CALL FOR LEVY OF PENALTY U/S.271(1)(C) OF THE I.T. ACT. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT NO PENALTY IS LEVIABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE, THEREFORE, SET-ASID E THE ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO CANCEL T HE PENALTY. ITA NO.100/PN/2013 (A.Y. 2006-07) : 10. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 31-10-2006 DECLARING NIL INCO ME. SUBSEQUENTLY, AFTER THE SEARCH WAS CONDUCTED ON 11-02-2009 THE AS SESSEE, IN RESPONSE TO NOTICE U/S.153A(A), FILED THE RETURN OF INCOME DECL ARING THE UNDISCLOSED INCOME OF RS.2,92,50,000/-, THE DETAILS OF WHICH AR E AS UNDER : I. AS PER DOCUMENT SEIZED PAGES 3 TO 19 SEIZED BUNDLE N O.2 RS. 2,77,50,000/- II. AMOUNT PAID TO SRI PUSHKAR JOG RS. 15,00,000/- TOTAL RS. 2,92,50,000/- 10.1 THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.143(3) R.W.S.153A ON 31-12-2010 DETERMINING THE TOTAL INCO ME AT RS.2,82,13,487/-. WHILE DOING SO, THE ASSESSING OFFICER MADE ADDITION OF RS.1,65,295/- ON ACCOUNT OF INCOME FROM SALE OF RUBBLES, AN AMOUNT O F RS.1,97,089/- ON ACCOUNT OF BANK INTEREST AND AN AMOUNT OF RS.1,01, 103/- ON ACCOUNT OF DISALLOWANCE U/S.43B FOR STATUTORY PAYMENT NOT IN T IME. HE DEDUCTED AN AMOUNT OF RS.15 LAKHS BEING PAYMENT MADE TO SRI PUS HKAR JOG WHICH WAS TAXED BY HIM IN THE PRECEDING ASSESSMENT YEAR. THE ASSESSEE DID NOT PREFER 7 ANY APPEAL. SUBSEQUENTLY, THE ASSESSING OFFICER IN ITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT AND LEVIED PENALTY OF RS.1,24,87,500/- WHICH WAS UPHELD BY THE LD. CIT(A) . 11. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE WITH THE FOLLOWING GROUNDS : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.[A] HAS FAILED TO APPRECIATE THAT NO PENALTY U/S 271[1][C] OF THE I.T. ACT 1961 CAN BE LEVIED ON THE INCOME DECLARED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED U/S 153 A OF THE I.T. ACT 1961, IF THE SAME IS ACCEPTED BY THE LEARNED ASSESSING OFFIC ER. IN THE CIRCUMSTANCES THE IMPUGNED PENALTY LEVIED U/S 271[1 ][C] OF THE I.T. ACT 1961 BY THE LEARNED ASSESSING OFFICER AND AS CONFIR MED BY THE LEARNED C.I.T.[A] BEING BAD IN LAW THE SAME MAY PLEASE BE D ELETED. 2. THE IMPUGNED PENALTY LEVIED U/S 271[1][C] OF THE I.T. ACT 1961 BY THE LEARNED ASSESSING OFFICER AND AS CONFIRMED BY THE L EARNED C.I.T.[A] ON THE AMOUNT OF RS.2,77,50,000.00 BEING THE ALLEGED CONCE ALED INCOME/THE INCOME IN RESPECT OF WHICH INACCURATE PARTICULARS O F INCOME HAVE BEEN FILED, BEING BAD IN LAW, PATENTLY ILLEGAL, WITHOUT JURISDICTION AND VOID AB- INITIO THE SAME MAY PLEASE BE DELETED. 3. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEN D, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF AP PEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. AS AGAINST RETURNED I NCOME OF RS.2,92,50,000/- DECLARED BY THE ASSESSEE IN THE RETURN FILED IN RES PONSE TO NOTICE U/S.153A WE FIND THE ASSESSING OFFICER COMPLETED THE ASSESSM ENT U/S.143(3) R.W.S.153A AT A TOTAL INCOME OF RS.2,82,13,487/-. IN THE SAID ORDER THE ASSESSING OFFICER DEDUCTED AN AMOUNT OF RS.15 LAKHS DECLARED BY THE ASSESSEE BEING AMOUNT PAID TO SRI PUSHKAR JOG SINCE HE HAS CONSIDERED THE SAME IN A.Y. 2005-06. THIS OTHERWISE INDICATES THA T THE ASSESSING OFFICER ACCEPTED THE AMOUNT OF RS.2,77,50,000/-. SINCE THE ASSESSMENT YEAR INVOLVED IS A.Y. 2006-07 AND SINCE TO THIS EXTENT T HE INCOME DECLARED BY 8 THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOT ICE U/S.153A HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE ORDER PASS ED U/S.153A R.W.S.143(3), THEREFORE, IN VIEW OF OUR ORDER OF EV EN DATE IN THE CASE OF SANJAY D. KAKADE VIDE ITA NO. 12/PN/2013 TO ITA NO. 15/PN/2013 NO PENALTY U/S.271(1)(C) OF THE INCOME TAX IS LEVIABLE . 13. SO FAR AS THE DISALLOWANCE U/S.43B FOR STATUTOR Y PAYMENT NOT MADE IN TIME AMOUNTING TO RS.1,01,103/- WE FIND THE SAME WA S DISALLOWED BY THE ASSESSING OFFICER ON THE BASIS OF THE AUDITORS REP ORT IN FORM NO.3CD FILED BY THE ASSESSEE. A PERUSAL OF THE SAID PAYMENT DE TAILS SHOW THAT MOST OF THE PAYMENTS HAVE BEEN MADE WITHIN THE GRACE PERIOD . WE FIND FROM THE TABLE AT PARA 6 OF THE ASSESSMENT ORDER THAT OUT OF DISALLOWANCE IN 8 MONTHS THE ASSESSEE HAS MADE PAYMENTS WITHIN THE GRACE PER IOD IN 6 MONTHS. ONLY AN AMOUNT OF RS.12,,101/- IN THE MONTH OF JULY AND AN AMOUNT OF RS.12,037/- IN THE MONTH OF AUGUST HAVE BEEN PAID A FTER THE GRACE PERIOD BUT BEFORE THE DUE DATE OF FILING OF THE RETURN. U NDER THESE CIRCUMSTANCES, LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT IN OUR OPINION IS NOT JUSTIFIED ON ACCOUNT OF THE SAID ADDITION. 14. SO FAR AS THE ADDITION MADE BY THE ASSESSING OF FICER ON ACCOUNT OF INCOME FROM SALE OF RUBBLES AMOUNTING TO RS.1,65,29 5/- AND BANK INTEREST AMOUNTING TO RS.1,97,089/- WE FIND THE ABOVE 2 AMOU NTS WERE NOT DISCLOSED BY THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOTICE U/.S.153A. THE ASSESSEE HAS NOT CHALLENGED THE ADDITION MADE BY TH E ASSESSING OFFICER. UNDER THESE CIRCUMSTANCES, PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT IS LEVIABLE ON THESE 2 ADDITIONS. WE, THEREFORE, DIRE CT THE ASSESSING OFFICER TO 9 LEVY PENALTY @100% OF THE TAX SOUGHT TO BE EVADED O N THESE 2 ADDITIONS. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY PARTLY ALLOWED. 15. IN THE RESULT, ITA NO.99/PN/2013 FILED BY THE A SSESSEE IS ALLOWED AND ITA NO.100/PN/2013 FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN ON THIS THE 30 TH DAY OF APRIL 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 30 TH APRIL 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A) CENTRAL, PUNE 4. THE CIT CENTRAL, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.