DCIT, CC-XXVIII, Kolkata, Kolkata V. Shri Braj Binani, Kolkata

ITSSA 103/KOL/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7780 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 12-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PARAMANIK
• Assessee Lawyers: KUNAL BESWAL A
• Keywords: Gift; Search and seizure; Valuation report; Block assessment
• Section: 143(3)

Judgement Text

, ' , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.(S.S.)A NO. 103/KOL/2011 ASSESSMENT YEAR : BLOCK PERIOD 01.04.1990 TO 07. 02.2001 DEPUTY COMMISSIONER OF INCOME TAX, -VS.- BRAJ BINANI, KOLKATA CENTRAL CIRCLE-XXVIII, KOLKATA (PAN : AABPB 070 8 M) ( '# /APPELLANT ) ( $%'# / RESPONDENT ) FOR THE APPELLANT ( '# ) : SHRI A.K. PARAMANIK, D.R. FOR THE RESPONDENT ( $%'# ) : S/SHRI VIJAY MEHTA & KUNAL BESWAL, A.R. &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 29.12.2011 +, ) * +, ) * +, ) * +, ) * /DATE OF PRONOUNCEMENT : 06.01.2012 - / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THE DEPARTMENT HAD FILED THIS APPEAL AGAINST THE O RDER DATED 12.05.2011 OF LD. COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-I, KO LKATA FOR THE BLOCK ASSESSMENT PERIOD 01.04.1990 TO 07.02.2001. 2. BRIEF FACTS AS EMANATE FROM THE SUBMISSIONS MADE BEFORE LD. CIT(APPEALS) ARE THAT A SEARCH ACTION WAS CARRIED OUT ON 07.02.2011, INTER ALIA, AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE SHRI BRAJ BINANI, THE CHAIRMAN OF B INANI GROUP- BINANI INDUSTRIES. IN RESPONSE TO THE SEARCH PROCEEDINGS, NIL RETURN WAS FILED. TH E BLOCK ASSESSMENT FOR THE PERIOD 1.4.1990 TO 07.02.2001 WAS MADE UNDER SECTION 158BC READ WITH S ECTION 143(3) OF THE INCOME TAX ACT, 1961 ON 28.02.2003 DETERMINING THE BLOCK INCOME AT RS.12,16,80,542/-. IN THIS ASSESSMENT, INTER ALIA, JEWELLERY WORTH RS.12,77,635/- BEING UN DISCLOSED WAS ADDED IN THE HANDS OF THE ASSESSEE. LD. CIT(APPEALS), CENTRAL CIRCLE-I, KOLKA TA IN A DETAILED ORDER DELETED ALMOST ALL THE ADDITIONS INCLUDING THE ADDITION MADE ON ACCOUNT OF JEWELLERY EXCEPT RETAINING A SUM OF RS.25,00,000/- AND WHEREBY THE APPEAL WAS PARTLY AL LOWED. THE ASSESSEE AS WELL AS THE DEPARTMENT CARRIED FORWARD THE MATTER BEFORE THE TR IBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 31.07.2009, INTER ALIA, CONFIRMED THE FINDINGS OF LD. CIT(APPEALS) IN DELETING THE ADDITION OF RS.25,00,000/-, BUT REVERSED THE FINDINGS OF LD. CI T(APPEALS) IN REGARD TO ENTIRE DELETION OF IT(SS)A NO. 103/KOL./2011 2 ADDITION OF RS.12,77,635/- BY RETAINING AN ADDITION OF RS.9,06,430/-. THEREFORE, THE ASSESSING OFFICER PROCEEDED TO LEVY PENALTY IN RESPECT OF UNA CCOUNTED JEWELLERY WORTH RS.9,06,430/-. 3. IN REGARD TO THE ADDITION OF RS.9,06,430/-, THE ASSESSING OFFICER HAS OBSERVED THAT IN THE BLOCK ASSESSMENT ADDITION OF RS.12,77,635/- HAD BEE N MADE ON ACCOUNT OF UNDISCLOSED JEWELLERY OUT OF TOTAL SEIZED JEWELLERY WORTH RS.46 ,39,923/-. HE HAS POINTED OUT THAT AT THE TIME OF SEARCH AND SEIZURE OPERATION AT THE RESIDENCE AN D LOCKERS OF BINANI GROUP, JEWELLERY WORTH RS.4,78,04,539/- WAS FOUND. THUS, ONLY 2.67% OF TOT AL JEWELLERY FOUND HAD BEEN ADDED AS UNDISCLOSED JEWELLERY. THIS ADDITION WAS SEGREGATED IN TWO PARTS AND JEWELLERY WORTH RS.4,48,493/- WAS DELETED BY LD. CIT(APPEALS) AS AL SO CONFIRMED BY ITAT IN VIEW OF THE FACT THAT THERE WERE THREE UNMARRIED DAUGHTERS AND IN VI EW OF CIRCULAR NO. 1916 DATED 11.05.1994 JEWELLERY WAS TREATED AS BELONGING TO THEM. HOWEVER , AS REGARDS THE BALANCE SUM OF RS.9,06,430/-, DUPLICATE BILLS WERE PRODUCED, WHICH WERE NOT FOUND AT THE TIME OF SEARCH OPERATION. SOURCE OF ACQUISITION WAS ALSO NOT EXPLA INED BEFORE THE ASSESSING OFFICER. LD. CIT(APPEALS) DELETED THIS ADDITION OBSERVING THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE SAME MERELY BECAUSE THE SAME WAS NOT FOUND DURING THE SEARCH OPERATION. BUT ITAT REVERSED THE FINDINGS OF LD. CIT(APPEALS) FOR THE FOLLOWING REASONS :- (1) ORIGINAL BILLS EVIDENCING PURCHASE OF JEWELLE RY ITEMS WERE NOT FOUND DURING SEARCH OPERATION AT THE RESIDENTIAL PREMISES, NOR T HE ASSESSEE COULD PRODUCE THE SAME OR EVEN DUPLICATE BILLS BEFORE THE INVESTIGATING AUTHORITY. (2) ONLY DURING BLOCK ASSESSMENT PROCEEDINGS, DUP LICATE BILLS WERE PRODUCED FOR THE FIRST TIME. THE DESCRIPTION AND THE VALUE OF JE WELLERY ITEMS CONTAINED IN THE DUPLICATE BILLS DID NOT TALLY FULLY WITH THOSE OF DVOS REPORT. (3) THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE WI TH REGARD TO SOURCE OF PAYMENT FOR SUCH EXPENDITURE. EVEN BEFORE THE TRIBU NAL, THE ASSESSEES COUNSEL COULD NOT PRODUCE SATISFACTORY EXPLANATION FOR PROVING THE SO URCE OF INVESTMENT. IN VIEW OF THESE FINDINGS, ASSESSING OFFICER LEVIE D THE PENALTY OF 200% OF TAX SOUGHT TO BE EVADED, INTER ALIA, OBSERVING THAT THE DUPLICATE CASH PURCHASE BILLS WERE SUBMITTED ON 25.05.2003 FOR THE FIRST TIME BEFORE THE INCOME TAX AUTHORITY, I.E. AT THE FAG END OF THE BLOCK IT(SS)A NO. 103/KOL./2011 3 ASSESSMENT PROCEEDINGS, WHICH WERE TO BE COMPLETED ON 28.02.2003. THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER OBSERVED AS UNDER :- AS PER SECOND PROVISION OF THE SECTION 158BFA(2), THAT THE PROVISIONS OF THE PRECEDING PROVISION SHALL NOT APPLY WHERE TH E UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER IS IN EX CESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES THE PENALTY S HALL BE IMPOSED ON THAT PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETUR N. THE ASSESEE FILED BLOCK RETURN ON 26.08.02 AND RETURNED UNDISCL OSED INCOME AS PER BLOCK RETURN IS RS.NIL. THE UNDISCLOSED JEWELLERY ADDED IN THE BLOCK ASSESSMENT AFTER GIVING EFFECT OF THE ORDER OF THE CIT(A.) & ITAT IS RS.9,06,430/-. THEREFORE, AS PER PROVISIONS OF THIS SECTION, THE ASSESSEE IS LIABLE TO PENALTY ON THE AMOUNT OF RS.9,06,430/- . AS PER SECTION 158BC, THE ASSESSING OFFICER HAS TO COMPUTE UNDISCL OSED INCOME FOR THE BLOCK PERIOD. HENCE, EVERY ADDITION UNDER THIS SECTION CONSTITUTES CONCEALMENT AND ATTRACT PENALTY. THE UNEXPLAINED JE WELLERY WAS UNEARTHED BY SEARCH & SEIZURE OPERATION. MALAFIDE I NTENTION OF THE ASSESSEE IS ALSO APPARENT FROM THE FACTS OF THE CAS E. 4. LD. CIT(APPEALS) DELETED THE PENALTY FOR THE FOL LOWING REASONS :- (1) SINCE THE ADDITION OF UNEXPLAINED JEWELLERY WAS DELETED FROM THE ASSESSEES TOTAL INCOME BY LD. CIT(APPEALS) AND, TH EREFORE, EVEN IF THE ADDITION ON ACCOUNT OF THESE JEWELLERY ITEMS WAS RESTORED BY THE TRIBUNAL IN THE QUANTUM APPEAL, IT WAS AT BEST AN ITEM IN RESPECT OF WHICH TWO OPINIONS WERE POSSIBLE AND RELIED ON THE DECISION OF THE HONBLE KOLKATA H IGH COURT IN THE CASE OF CIT VS.- JAGABANDHU PRASANNA KUMAR RUPLAL SEN PODDAR [ 1982] 133 ITR 156 (CAL.), DECISION IN THE CASE OF CIT VS.- CALCUTTA CREDIT CORPORATION 166 ITR 29 AND THE DECISION OF DURGA KAMAL RICE MILLS VS.- CIT [130 TAXMAN 533 (CAL.)]. (2) THE ASSESSEE HAD OFFERED AN EXPLANATION WHICH O N THE FACE ON IT APPEARS TO BE BONAFIDE, INASMUCH AS, THE ASSESSEE HAD FURNI SHED THE DETAILS OF THE PERSONS ALONGWITH BILLS FROM WHOM THE JEWELLERIES W ERE PURCHASED. THE BILLS HAVE NOT BEEN PROVED TO BE FALSE. (3) THE ASSESSEES EXPLANATION THAT JEWELLERIES WE RE PURCHASED OUT OF WITHDRAWALS OF THE FAMILY IN EARLIER YEARS AND RECE IVED AS GIFT ON DIFFERENT IT(SS)A NO. 103/KOL./2011 4 OCCASIONS BY THE THREE MINOR DAUGHTERS AND OTHER ME MBERS OF THE FAMILY, WAS REJECTED BUT NOT FOUND TO BE FALSE. (4) THE ASSESSING OFFICER HAS NOT BEEN ABLE TO SHO W THAT APART FROM THE INADEQUACY OF THE EXPLANATION REGARDING THE NATURE AND SOURCE OF THE JEWELLERIES, WHICH WERE TREATED AS ASSESSEES INCOM E, THERE WAS ANY OTHER MATERIAL TO SHOW THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WAS FALSE AND THE AMOUNT REPRESENTED BY THE JEWELLERY WAS BEYOND DOUB T ASSESSEES TAXABLE INCOME OF THE RELEVANT YEAR. (5) AS REGARDS ASSESSING OFFICERS CONTENTION THAT PENALTY UNDER SECTION 158BFA IS MANDATORY, LD. CIT(APPEALS) RELIED ON THE FOLLOWING CASE LAWS TO HOLD THAT THE SAME VIEWS WERE NOT CORRECT AND THE P ENALTY UNDER SECTION 158BFA(2) IS OPTIONAL AS HELD IN FOLLOWING CASES:- (I) DCIT VS.- SURESH KUMAR (2005) 97 ITD 527 (K OL. TRIBUNAL); (II) SMT. MAL DAYANITHI [270 ITR (AT 56 (ITAT, B ANGALORE)]; (III) CIT VS.- DODSAL LTD. [312 ITR 112 (BOM.) BEING AGGRIEVED, DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS :- (1) WHETHER LD. CIT(A.), C-1, KOLKATA HAD ERRED IN DELE TING THE PENALTY UNDER SECTION 158BFA(2) ALTHOUGH UNDISCLOSED INCOME IN RESPECT OF JEWELLERY VALUED RS.9,06,430/- WAS PROVED AND CONFI RMED BY THE ITAT? (2) WHETHER LD. CIT(A.), C-I, KOLKATA HAD ERRED IN HOLD ING THAT THE IMPOSITION OF PENALTY UNDER SECTION BFA(2) IS NOT M ANDATORY? 5. LD. DEPARTMENTAL REPRESENTATIVE REFERRED TO PAGE 3 OF THE PENALTY ORDER AND POINTED OUT THAT THE BILLS RELATING TO UNDISCLOSED JEWELLERY WE RE SUBMITTED ON 25.02.2003 AT THE FAG END OF THE BLOCK ASSESSMENT PROCEEDINGS THAT WAS TO BE COM PLETED ON 28.02.2003. HE REFERRED TO PARA 11.2 AT PAGES 29-30 OF THE TRIBUNALS ORDER AND POI NTED OUT THAT THE TRIBUNAL REVERSED THE FINDING OF LD. CIT(APPEALS) AS DESCRIPTION OF THE J EWELLERY IN THE DUPLICATE BILLS WAS DIFFERENT FROM THAT IN THE VALUATION REPORT. HE FURTHER SUBMI TTED THAT THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE WITH REGARD TO SOURCE OF PAYMENT OF SUCH J EWELLERY. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN C OURSE OF SEARCH JEWELLERY WORTH RS.4,00,00,000/- WAS FOUND, OUT OF WHICH ONLY JEWEL LERY WORTH RS.9,00,000/- WAS DISBELIEVED. IT(SS)A NO. 103/KOL./2011 5 HE SUBMITTED THAT IN TOTAL THERE WERE 484 ITEMS, OU T OF WHICH ONLY 16 ITEMS AGGREGATING RS.9,00,000/-WERE DISBELIEVED. HE SUBMITTED THAT TH E TRIBUNAL DID NOT DISBELIEVE THE FACTUM OF BILLS OR GENUINENESS OF THEM, BUT DID NOT ACCEPT TH E ASSESSEES EXPLANATION ONLY BECAUSE THE BILLS WERE NOT FOUND AT THE TIME OF SEARCH AND WERE SUBMITTED AT THE BLOCK ASSESSMENT STAGE. HE SUBMITTED THAT THE ASSESSEES EXPLANATION HAS NOT B EEN FOUND TO BE FALSE. THERE IS NO POSITIVE EVIDENCE THAT THE UNEXPLAINED JEWELLERY WAS ACQUIRE D OUT OF ASSESSEES INCOME. HE FURTHER SUBMITTED THAT IT WAS A DEBATABLE ISSUE BECAUSE LD. CIT(APPEALS) HAD, IN ANY CASE, DELETED THE ADDITION, WHICH WAS REVERSED BY THE TRIBUNAL. HE FU RTHER SUBMITTED THAT TRIBUNAL HAS ACCEPTED THAT JEWELLERY AGGREGATING RS.4 LAKHS AND ODD TO TH REE UNMARRIED DAUGHTERS IN VIEW OF CIRCULAR NO. 1916 DATED 11.05.1994. HE SUBMITTED THAT THIS C IRCULAR IS BASED ON REASONABLENESS OF JEWELLERY BEING HELD BY DIFFERENT PERSONS AND CONSI DERING THE STATUS OF ASSESSEES FAMILY, ENTIRE JEWELLERY HAD TO BE CONSIDERED IN THE HANDS OF UNMA RRIED DAUGHTERS. 7. APROPOS GROUND NO.2, LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT NOW IT IS WELL SETTLED LAW THAT PENALTY UNDER SECTION 158BFA(2) IS NOT AUT OMATIC AND IF THE ASSESSEE FURNISHES EXPLANATION, WHICH IS NOT FOUND TO BE FALSE, THEN P ENALTY CANNOT BE LEVIED. IN THIS REGARD, HE RELIED ON THE FOLLOWING DECISION :- SL. NO. NAME OF THE ASSESSEE CITATION 1. DODSAL LIMITED 312 ITR 112 (BOM.) 2. SATYENDRA KUMAR DOSI 315 ITR 172 (RAJ.) 3. SMT. MALA DAYANITHI 270 ITR (AT) 56 (BANG.) 4. SK. MUNEER SK. MANNU CHOWDHARY 300 ITR 216 (BOM.) 5. DR. ATTUKAL RADHAKRISHNAN 335 ITR 533 (KER.) 6. SURESH KUMAR 97 ITD 527/284(AT) ITR 104 (KOL.) 7. KOATEX INFRASTRUCTURE LTD. 286 ITR (AT) 40 (MUM. ) 8. SUPER METAL INDUSTRIES 317 ITR (AT) 161 (MUM.) 9. SURESH REDDY 308 ITR (AT) 278 10. SALUJA HIRE PURCHASE LTD. 305 ITR (AT) 39 (LUCK .) AS REGARDS THE CASE OF DODSAL LIMITED, LD. COUNSEL SUBMITTED THAT SLP FILED AGAINST THE DECISION OF THE HONBLE BOMBAY HIGH COURT HAS BEEN DISMISSED AS REPORTED IN 312 ITR 332 (STATUTE). IT(SS)A NO. 103/KOL./2011 6 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORDS OF THE CASE. FIRST WE TAKE UP GROUND NO. 2 RAISED BY THE DEPARTMENT. WE F IND THAT THIS ISSUE IS NOW WELL SETTLED BY THE HONBLE BOMBAY HIGH COURT REPORTED IN 312 ITR 1 22 (BOM.) IN THE CASE OF CIT VS.- DODSAL LIMITED, WHEREIN IT HAS BEEN OBSERVED AT FIR ST PARA AS UNDER :- UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT, 196 1, THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) MAY DIRECT TH E PERSON TO PAY BY WAY OF PENALTY ANY SUM WHICH SHALL NOT BE LESS THAN THE AMOUNT OF TAX LEVIABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SO LEVIABLE IN RESPECT OF THE UNDISCLOSED INCOME DETER MINED BY THE ASSESSING OFFICER UNDER CLAUSE (C)OF SECTION 158BC OF THE ACT. THE TERMINOLOGY OF THE SECTION MAKES IT CLEAR THAT THER E IS A DISCRETION IN THE ASSESSING OFFICER TO DIRECT PAYMENT OF PENALTY. THE PROVISO SUPPORTS THIS INTERPRETATION. ONLY IF THE AUTHORITY DECIDES TO IMPOSE PENALTY WILL IT BE NOT LESS THAN THE TAX LEVIABLE B UT NOT MORE THAN THREE TIMES THE TAX SO LEVIABLE. THE EXPRESSION SHALL NO T BE LESS THAN THE AMOUNT OF TAX LEVIABLE OR NOT EXCEEDING THREE TIMES THE TAX, DOES NOT RESULT IN READING THE FIRST PART OF THE SECTION AS MANDATORY. THE PROVISO TO THE SUB-SECTION MAKES IT CLEAR THAT THERE IS DIS CRETION ON THE COMMISSIONER (APPEALS) FOR THE REASONS WHICH ARE SE T OUT THEREIN. WE, THEREFORE, DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL. ACCORDINGLY, THE SAME IS DISMISSED. 9., NOW WE PROCEED TO DECIDE GROUND NO. 1 OF THE AP PEAL. THE FACTS ARE NOT DISPUTED. ADMITTEDLY, AT THE TIME OF SEARCH JEWELLERY WORTH R S.4 CRORES AND ODD WAS FOUND, OUT OF WHICH ONLY JEWELLERY WORTH RS.12 LAKHS HAD BEEN TREATED A S UNDISCLOSED INCOME BY THE ASSESSING OFFICER. LD. CIT(APPEALS) HAD DELETED THE ENTIRE AD DITION PARTLY RELYING ON THE CBDT CIRCULAR NO. 1916 DATED 11.05.1994 AND PARTLY AFTER TAKING I NTO CONSIDERATION THE DUPLICATE PURCHASE BILLS PRODUCED BY THE ASSESSEE AND STATUS OF ASSESS EES FAMILY. AS NOTED EARLIER, THE MAIN REASON FOR CONFIRMATION OF ADDITION OF RS.9,06,431/- BY TR IBUNAL WAS THAT THE DUPLICATE BILLS WERE NEITHER FOUND AT THE TIME OF SEARCH NOR WERE PRODU CED BEFORE THE INVESTIGATING AUTHORITY AFTER THE SEARCH. BUT IT HAS RIGHTLY BEEN POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE FACTUM OF DUPLICATE BILLS HAVE NOT BEEN DISPUTED BY THE TR IBUNAL. IN COURSE OF PENALTY PROCEEDINGS, THE ASSESSING OFFICER MERELY RELIED ON THE FINDINGS OF TRIBUNAL FOR LEVYING PENALTY WITHOUT ANY FURTHER VERIFICATION OF ASSESSEES CLAIM REGARDING DUPLICATE BILLS. NO DOUBT, FOR ASSESSMENT PURPOSE, THE ADDITION WAS JUSTIFIED BUT WHEN IT COM ES TO PENALTY, SOMETHING MORE IS REQUIRED TO IT(SS)A NO. 103/KOL./2011 7 ESTABLISH THAT THE IMPUGNED AMOUNT REPRESENTS THE C ONCEALED INCOME OF ASSESSEE. WITHOUT THERE BEING ANY POSITIVE EVIDENCE TO THIS EFFECT, MERELY BECAUSE THE ASSESSEES CONTENTION HAS NOT BEEN ACCEPTED, THE PENALTY CANNOT AUTOMATICALLY BE LEVIED. IT IS NOT THE CASE OF DEPARTMENT THAT THE DUPLICATE BILLS PRODUCED BY THE ASSESSEE WERE F ALSE OR THE PARTIES WHO ISSUED THOSE BILLS WERE NOT EXISTENT PARTIES. MINOR VARIATION IN THE D ESCRIPTION CANNOT BE CONCLUSIVE PROOF FOR COMING TO THE CONCLUSION THAT THE BILLS WERE NOT GE NUINE. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEES EXPLANATION WAS, IN ANY CASE, MALAFIDE. ONCE AN EVIDENCE IS PRODUCED DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS, THE ASSESSI NG OFFICER IS EXPECTED TO EXAMINE IT AND EITHER ACCEPT OR DISPROVE IT. IN THE PRESENT CASE, THE DUPLICATE BILLS WERE SUBMITTED AT THE FAG END OF BLOCK ASSESSMENT PROCEEDINGS AND, THEREFORE, ASSESSING OFFICER HAD NO SUFFICIENT TIME TO EMBARK UPON THE INVESTIGATION OF THE BILLS. HOWEVER AT THE PENALTY PROCEEDINGS STAGE, IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO EXAMINE THE VERACITY OF THE BILLS BEFORE LEVYING PENALTY. UNDER SUCH CIRCUMSTANCES, ASSESSEES EXPLA NATION CANNOT BE SAID TO BE MALAFIDE. WE FIND CONSIDERABLE FORCE IN THE SUBMISSIONS OF LD. C OUNSEL FOR THE ASSESSEE THAT CONSIDERING THE STATUS OF ASSESSEE THE ITEMS OVER AND ABOVE RS.4,48 ,493/- COULD BE TREATED AS EXPLAINED IN THE HANDS OF CHILDREN AND, THEREFORE, FOR ASSESSMENT PU POSES ONLY THE EXPLANATION CAN BE CONSIDERED AS REJECTED. IN THE ENTIRETY OF FACTS AN D CIRCUMSTANCES OF THE CASE, EXPLANATION OF THE ASSESSEE WAS ONLY REJECTED BUT NOT FOUND TO BE FALS E. FURTHER, WE FIND THAT IN ANY VIEW OF THE MATTER, IT WAS A DEBATABLE ISSUE BECAUSE LD. CIT(AP PEALS) HAD ALLOWED THE ASSESSEES APPEAL IN FULL AND HIS FINDING WAS PARTLY REVERSED BY THE TRI BUNAL. UNDER SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WAS FALSE. LD. CIT(APPEALS) HAS RIGHTLY RELIED ON THE VARIOUS CASE LAWS NOTED EARLIER IN PA RA 4 ABOVE. IN VIEW OF ABOVE DISCUSSION, WE CONFIRM THE ORDER OF LD. CIT(APPEALS) AND REJECT THE GROUND OF APPEAL TAKEN BY THE REVENUE. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/01/ 2012. & . / - 06/01/2012. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 06/ 01/ 2012 IT(SS)A NO. 103/KOL./2011 8 COPY OF THE ORDER FORWARDED TO: 1. BRAJ BINANI, 37/2, CHINAR PARK, NEW TOWN, RAHARJAT MAIN ROAD, KOLKATA- 157. 2 DCIT, CC-XXVIII, KOLKATA, 18, RABINDRA SARANI, KOLK ATA-1, 3. COMMISSIONER OF INCOME-TAX (APPEALS) , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.