Rasranjan Food Products Pvt.Ltd., Ahmedabad V. The ACIT., Circle-3(1), Ahmedabad

ITSSA 121/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3610 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 25-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: G C PIPARA
• Keywords: Search and seizure; Document seized; Period of limitation; Corroborative evidences; Block assessment; Documents seized
• Section: 246; 27; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) IT(SS)A. NO: 121/AHD/2016 (BLOCK PERIOD: 01/04/1995 TO 08/01/2002 ) RASRANJAN FOOD PRODUCTS PVT. LTD. RASRANJAN COMPLEX, NR. VIJAY CHAR RASTA, AHMEDABAD-380009 V/S THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-3(1), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCR 8986 Q APPELLANT BY : SHRI G. C. PIPARA, AR RESPONDENT BY : SHRI ALOK KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 13 -03-201 8 DATE OF PRONOUNCEMENT : 14 -03-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-9, AHMEDABAD DATED 09.03.2016 PERTAINING TO THE BLOCK PERIOD 01/04/1995 TO 08/01/2002. IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 2 2. THE FIRST GRIEVANCE OF THE ASSESSEE IS THAT THE PEN ALTY ORDER FRAMED U/S. 158BFA(2) OF THE ACT IS BARRED BY LIMITATION. 3. THE LD. COUNSEL STRONGLY CONTENDS THAT THE ORDER PA SSED BY THE A.O. LEVYING PENALTY U/S. 158BFA(2) IS BARRED BY LIMITATION SINC E THE PENALTY ORDER HAS BEEN PASSED AFTER THE EXPIRY OF THE PERIOD OF LIMITATION . 4. FACTS RELATING TO THIS ISSUE SHOW THAT THE FIRST OR DER U/S. 158BC WAS PASSED ON 30.01.2004 AND PENALTY ORDER FRAMED U/S. 158BFA(2) WAS PASSED ON 16.03.2006. THE PENALTY SO LEVIED TRAVELLED UP THE TRIBUNAL AND THE TRIBUNAL IN IT(SS)A NO. 14/AHD/2007 SET ASIDE THE PENALTY TO TH E FILES OF THE A.O. TO BE DECIDED AFRESH AS PER LAW. 5. PURSUANT TO THE DIRECTIONS OF THE ITAT, FRESH NOTIC E WAS ISSUED ON 08.03.2013 AND 25.03.2013 AND THE PENALTY ORDER WAS PASSED ON 28.03.2013. 6. ON THESE FACTS, LET US NOW CONSIDER THE PROVISIONS OF SECTION 158BFA(3) WHICH READ AS UNDER:- (3) NO ORDER IMPOSING A PENALTY UNDER SUB-SECTION ( 2) SHALL BE MADE, (A) UNLESS AN ASSESSEE HAS BEEN GIVEN A REASONABLE OPPO RTUNITY OF BEING HEARD; (B) BY THE ASSISTANT COMMISSIONER OR DEPUTY COMMISS IONER OR THE ASSISTANT DIRECTOR OR DEPUTY DIRECTOR, AS THE CASE MAY BE, WHERE THE A MOUNT OF PENALTY EXCEEDS TWENTY THOUSAND RUPEES EXCEPT WITH THE PREVIOUS APPROVAL O F THE JOINT COMMISSIONER OR THE JOINT DIRECTOR, AS THE CASE MAY BE; (C) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT-M ATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDER SECTION 246 OR SECTION 246A OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTION 253, AFTER THE EXP IRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 3 INITIATED, ARE COMPLETED OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) OR, AS THE CASE MAY B E, THE APPELLATE TRIBUNAL IS RECEIVED BY THE [PRINCIPAL CHIEF COMMISSIONER OR] C HIEF COMMISSIONER OR THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER; (D) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT-M ATTER OF REVISION UNDER SECTION 263, AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER OF REVISION IS PASSED; (E) IN ANY CASE OTHER THAN THOSE MENTIONED IN CLAUS ES (C) AND (D), AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPL ETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENA LTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER; (F) IN RESPECT OF SEARCH INITIATED UNDER SECTION 13 2 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, AFTER THE 30TH DAY OF JUNE, 1995 BUT BEFORE THE 1ST DAY OF JANUARY, 1997. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSE OF THIS SECTION, (I) THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSE SSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129; (II) THE PERIOD DURING WHICH THE IMMUNITY GRANTED UNDER SECTION 245H REMAINED IN FORCE; AND (III) THE PERIOD DURING WHICH THE PROCEEDINGS UNDER SUB-S ECTION (2) ARE STAYED BY AN ORDER OR INDUCTION OF ANY COURT, SHALL BE EXCLUDED. 7. A PERUSAL OF THE AFOREMENTIONED PROVISIONS SHOW THA T THE A.O. CANNOT PASS AN ORDER IMPOSING THE PENALTY UNDER SUB-SECTION (2) AF TER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COU RSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPL ETED. 8. IN THE CASE IN HAND, THE PROCEEDINGS WERE INITIATED ON 25.03.2013 AND BEFORE THE COMPLETION OF THE FINANCIAL YEAR, THE PENALTY O RDER HAS BEEN PASSED ON IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 4 28.03.2013. THEREFORE, THE CLAIM THAT THE ORDER IS BARRED BY LIMITATION CANNOT STAND ON ITS OWN LEG AND HAS TO FALL. FIRST GRIEVAN CE IS ACCORDINGLY DISMISSED. 9. COMING TO THE NEXT GRIEVANCE OF THE ASSESSEE WHCH I S ON THE MERITS OF THE CASE, THE ASSESSEE CONTENDS THAT THE PENALTY LEVIED U/S. 158BFA(2) OF THE ACT IS WITHOUT CONSIDERATION AND APPRECIATION OF THE FACTS AS THE LEVY OF PENALTY IS DISCRETIONARY AND NOT MANDATORY. THE ASSESSEE FURTH ER CONTENDS THAT IT HAS SUO MOTO OFFERED UNDISCLOSED INCOME OF RS. 10 LACS AND THEREFORE CREDIT OF SUO MOTO DISCLOSURE OUGHT TO HAVE GIVEN BY THE A.O. BEF ORE LEVYING PENALTY. 10. THE QUANTUM ADDITIONS ULTIMATELY SETTLED BY THE ORE R OF THE TRIBUNAL RELATE TO (A)UNACCOUNTED SALES FROM THE AIRPORT PREMISES RS. 11,78,245.00 (B)UNACCOUNTED SALES TO CUSTOMERS RS. 3,29,791.0 0 11. INSOFAR AS THE UNACCOUNTED SALES FROM THE AIRPORT P REMISES IS CONCERNED, FACTS ON RECORD SHOW THAT THE PREMISES SITUATED AT THE AH MEDABAD DOMESTIC AIRPORT IS MANAGED BY M/S. B.D. VAKIL & CO. WHICH SOLD THE GOODS OF THE ASSESSEE COMPANY ON COMMISSION BASIS. DURING THE COURSE OF THE SEARCH PROCEEDINGS AT THE SHOP PREMISES IN THE DOMESTIC AIRPORT, SOME REG ISTERS WERE FOUND ON WHICH NOTINGS OF SALES WERE FOUND. TOTALING TO RS. 3.01 LACS AS AGAINST THIS SALES RECORDED IN THE BOOKS OF THE ASSESSEE WAS RS. 23,00 0/- ONLY. FURTHER, DURING THE COURSE OF SEARCH AT THE RESIDENCE OF THE PROPRI ETOR OF M/S. B. D. VAKIL & CO. CERTAIN BOOKS OF ACCOUNTS WERE SEIZED WHEREIN A CTUAL SALES MADE FROM THE AIRPORT PREMISES WERE FOUND TO BE RECORDED AT RS. 7 90884/- FOR THE PERIOD 01.04.2000 TO 31.03.2001 AND RS. 459781/- FOR THE P ERIOD 01.04.2001 TO 31.08.2001. ON THE BASIS OF THE ENTRIES FOUND IN TH ESE SEIZED DOCUMENTS UNACCOUNTED SALES WAS DETERMINED AT RS. 11.78 LACS. IN ADDITION TO THIS, IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 5 UNACCOUNTED SALES OF RS. 3.29 LACS WAS FOUND IN THE BOOK OF THE ASSESSEE FOR THE PERIOD ENDING ON 31.03.2002. 12. ON THESE UNDISCLOSED INCOME WHICH HAD DIRECT NEXUS WITH THE SEIZED MATERIAL, THE A.O. LEVIED PENALTY U/S. 158BFA(2) OF THE ACT. 13. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY OBJECTED TO THE LEVY OF PENALTY AND POINTED OUT THAT THE ASSESSEE HAS SUO M OTO OFFERED DISCLOSED INCOME OF RS. 10 LACS AND THE SAME HAS NOT BEEN CO NSIDERED BY THE LOWER AUTHORITIES WHILE LEVYING THE PENALTY. THE LD. COUN SEL RELIED UPON CERTAIN JUDGMENTS OF THE HONBLE HIGH COURTS WHICH WE WILL CONSIDER HEREINAFTER. THE PROVISIONS OF SECTION 158BFA(2) OF THE ACT READS AS UNDER:- 9. SECTION 158BFA(2) OF THE ACT READS AS UNDER : '158BFA. LEVY OF INTEREST AND PENALTY IN CERTAIN CA SES.- ... (2) THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS), IN THE COURSE OF ANY PROCEE DINGS UNDER THIS CHAPTER, MAY DIRECT THAT A PERSON SHALL PAY BY WAY OF PENALTY A SUM WHICH SHAL L NOT BE LESS THAN THE AMOUNT OF TAX LEVIABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT O F TAX SO LEVIABLE IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER UNDER CL AUSE (C) OF SECTION 158BC : PROVIDED THAT NO ORDER IMPOSING PENALTY SHALL BE MA DE IN RESPECT OF A PERSON IF- (I)SUCH PERSON HAS FURNISHED A RETURN UNDER CLAUSE (A) OF SECTION 158BC ; (II)THE TAX PAYABLE ON THE BASIS OF SUCH RETURN HAS BEEN PAID OR, IF THE ASSETS SEIZED CONSIST OF MONEY, THE ASSESSEE OFFERS THE MONEY SO SEIZED TO B E ADJUSTED AGAINST THE TAX PAYABLE ; (III)EVIDENCE OF TAX PAID IS FURNISHED ALONG WITH T HE RETURN ; AND (IV)AN APPEAL IS NOT FILED AGAINST THE ASSESSMENT O F THAT PART OF INCOME WHICH IS SHOWN IN THE RETURN : PROVIDED FURTHER THAT THE PROVISIONS OF THE PRECEDI NG PROVISO SHALL NOT APPLY WHERE THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFI CER IS IN EXCESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES THE PENALTY BE IMPOSED ON THAT PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDI SCLOSED INCOME SHOWN IN THE RETURN. 13. THE ABOVE SECTION WAS CRITICALLY ANALYZED BY T HE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT IN THE CASE OF KANDOI BHOGILAL MUL CHAND 21 TAXMAN.COM 153 AS UNDER:- 10. IF WE ANALYSE THE PROVISIONS CONTAINED IN SUB-SECTI ON (2) OF SECTION 158BFA, IT WOULD APPEAR THAT PENALTY NOT LESS THAN THE AMOUNT OF TAX LEVIABLE BUT NOT EXCEEDING THREE TIMES THE AMOUNT OF TAX SO LEVIABLE IN RESPECT OF T HE UNDISCLOSED INCOME DETERMINED BY IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 6 THE ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 1 58BC OF THE ACT IS ENVISAGED. THE FIRST PROVISO TO SUB-SECTION (2) OF SECTION 158BFA, HOWEV ER, PROVIDES THAT NO ORDER IMPOSING PENALTY SHALL BE MADE IF THE CONDITIONS (I) TO (IV) THEREIN ARE SATISFIED. IN ESSENCE, NO PENALTY WOULD BE IMPOSED IF THE ASSESSEE FURNISHES RETURN OF INCOME ; PAYS OR OFFERS TAX BY WAY OF ADJUSTMENT ON SUCH INCOME ; PRODUCES EVID ENCE OF TAX HAVING BEEN PAID ALONG WITH THE RETURN AND ALSO DOES NOT DISPUTE BY FILING APPEAL AGAINST THAT PORTION OF ASSESSMENT WHICH HE HAS SHOWN IN HIS RETURN. BY A F URTHER PROVISO, HOWEVER, IT IS CLARIFIED THAT SUCH EXCLUSION WILL NOT BE AVAILABLE WHERE THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER IS IN EXCESS OF THE INCOME SH OWN IN THE RETURN AND IN SUCH A CASE, PENALTY SHALL BE IMPOSED ON THAT PORTION OF THE UND ISCLOSED INCOME DETERMINED, WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. 11. IN ESSENCE, THEREFORE, PENALTY UNDER SUB-SECTION (2 ) OF SECTION 158BFA OF THE ACT IS PROVIDED WHERE THE ASSESSING OFFICER COMPUTES INCOM E IN EXCESS OF WHAT IS DECLARED BY THE ASSESSEE FOR THE BLOCK PERIOD. 12. THIS PROVISO THUS IS VITALLY DIFFERENT FROM THE PEN ALTY PROVISIONS CONTAINED IN SECTION 271(L)(C) OF THE ACT, WHICH PROVIDES FOR PENALTY WH ERE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME, OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT IS, THEREFORE, OFTEN STATED BY DIFFERENT COURTS THAT ME RE DISALLOWANCES OF A CLAIM OR ADDITIONS MADE BY THE ASSESSING OFFICER WOULD NOT I PSO FACTO GIVE RISE TO PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) OF THE ACT. WHA T IS FURTHER REQUIRED TO BE ESTABLISHED IS THAT THE ASSESSEE HAD EITHER CONCEALED THE PARTI CULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN CONTRAST, NO SUCH LANGUAGE IS USED IN SECTION 158BFA OF THE ACT. WE MAY RECALL THAT UNDER SECTION 158BFA(2) OF THE ACT, PENALTY PROCEEDINGS WOULD ARISE WHILE THE ASSESSING OFFICER HAD ASSESSED INCOME FOR THE BLOCK PERIOD IN EXCESS OF THE INCOME DECLARED BY THE ASSE SSEE. 13. IN THE PRESENT CASE, AS ALREADY NOTED, ADDITION OF RS. 3 LAKHS WAS CONFIRMED BY THE TRIBUNAL OVER AND ABOVE THE INCOME DECLARED BY THE ASSESSEE FOR THE BLOCK PERIOD IN QUESTION. THE ASSESSING OFFICER, THEREFORE, IMPOSED PENALTY WHICH WAS CONFINED TO SUCH ADDITION. WE DO NOT FIND THE ASSESSING OFFICER COMM ITTED ANY ERROR IN IMPOSING SUCH PENALTY OR THE TRIBUNAL IN CONFIRMING THE SAME. 14. THE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT IN ANOTHER CASE OF BECHARBHAI P. PARMAR 20 TAXMANN.COM 644 HAD THE OCC ASION TO ONCE AGAIN CONSIDER THE PROVISIONS OF SECTION 158BFA(2) AND OB SERVED AS UNDER:- 12. COMING TO THE FACTS OF THE CASE, WE HAVE ALREAD Y NOTED THE REASONS RECORDED BY THE TRIBUNAL FOR DELETING THE PENALTIES UNDER DIFFERENT HEADS. PRINCIPALLY, THE TRIBUNAL DELETED THE PENALTIES ON THREE GROUNDS: FIRSTLY, THAT THE A DDITION WAS MADE ONLY ON ESTIMATION; SECONDLY, THERE WAS NO CONCEALMENT PROVED BY THE RE VENUE, AND, THIRDLY, THAT, ACCORDING TO THE TRIBUNAL, CERTAIN ADDITIONS WOULD NOT GIVE R ISE TO PENALTY PROCEEDINGS. 13. WE ARE AFRAID, NONE OF THE GROUNDS WERE SUFFICI ENT IN FACTS OF THIS CASE TO PERMIT THE TRIBUNAL TO DELETE THE PENALTIES. FIRSTLY, WE ARE O F THE CLEAR OPINION THAT THE CONCEPT OF PROVING CONCEALMENT OF INCOME CAN NOWHERE BE TRACED IN SECTION 158BFA(2). THE PENALTY ENVISAGED AND IMPOSABLE UNDER SECTION 271(L)(C) OF THE ACT IS DIFFERENT FROM THE ONE THAT IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 7 CAN BE IMPOSED UNDER SECTION 158BFA. SECTION 271(L) (C) OF THE ACT PROVIDES FOR PENALTY IN CASE AN ASSESSEE HAS CONCEALED THE PARTICULARS OF H IS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT CAN BE EASILY SEEN T HAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR NORMAL ASSESSMENT, A LARGE NUMBER O F CLAIMS AND DEDUCTIONS MAY BE PUT FORTH BY THE ASSESSEE WHICH MAY OR MAY NOT BE A CCEPTED IN FACTS OR ON LAW BY THE ASSESSING OFFICER. MERE DISALLOWANCE OF A CLAIM, TH EREFORE, WOULD NOT GIVE RISE TO THE PENAL PROCEEDINGS UNLESS, AS PROVIDED IN SECTION 27 1(L)(C) OF THE ACT, THE ASSESSEE HAD CONCEALED THE INCOME OR PROVIDED INACCURATE PARTICU LARS OF SUCH INCOME. UNDER SUB- SECTION (2) OF SECTION 158BFA, NO SUCH REQUIREMENT IS PROVIDED. NONE CAN BE READ THEREIN. SIGNIFICANTLY, AS ALREADY NOTED, THE SAID PROVISO IS PART OF CHAPTER XIV-B OF THE ACT WHICH MAKES SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES. ADDITIONALLY, WE ALSO NOTICE THAT SECTION 158BF PROVIDES, INTER ALIA, THA T NO PENALTY UNDER SECTION 271(L)(C) OF THE ACT SHALL BE LEVIABLE WITH RESPECT TO UNDISCLOSED INCOME DETERMINED IN TH E BLOCK ASSESSMENT/THUS, STATUTORILY ALSO, PENALTY PROVIDED UNDER SUB-SECTION (2) OF SECTION 158BFA IS SET APART FROM ONE IMPOSABLE UNDER SECTIO N 271(L)(C) OF THE ACT. THE CONCEPT OF THE ONUS ON THE REVENUE TO PROVE CONCEALMENT OF THE INCOME, THEREFORE, CANNOT BE IMPORTED WHILE CONSIDERING THE QUESTION OF PENALTY UNDER SUB-SECTION (2) OF SE CTION 158BFA OF THE ACT. 15. THE HONBLE HIGH COURT FURTHER OBSERVED AS UNDER:- 14. WE ARE FURTHER OF THE OPINION THAT THE TRIBUNAL DELETED THE PENALTY ON THE GROUNDS WHICH WERE SIMPLY NOT PERMISSIBLE. AS ALREADY NOTED , THE PENALTY ON THE GROUNDS OF THE ADDITION OF RS. 7.23 LAKHS AND RS. 2 LAKHS WAS DELE TED OBSERVING THAT THE FINDINGS OF THE ASSESSING OFFICER IS MERE PRESUMPTION AND THAT NOTH ING INCRIMINATING WAS FOUND WHICH WOULD REVEAL THAT THE ASSESSEE HAD INCURRED SUCH AN EXPENDITURE. WE ARE AFRAID, SUCH AN OBSERVATION WOULD AMOUNT TO REOPENING THE QUESTION OF QUANTUM ADDITION WHICH HAD ATTAINED FINALITY BY VIRTUE OF THE DECISION OF THE TRIBUNAL PENALTY ON THE INCOME OF RS. 4.60 LAKHS WAS DELETED OBSERVING THAT THOUGH THE ASSESSEE HAD FAILED TO PRODUCE SUPPORTING EVIDENCE, FOR MERE ABSENCE OF SUPPORTING EVIDENCE, IT CANNOT BE HELD THAT SUCH AGRICULTURAL INCOME DID NO T EXIST. SUCH OBSERVATION AGAIN, IN OUR OPINION, WOULD AMOUNT TO REOPENING THE CLOSED ISSUE S OF ADDITION SUSTAINED UP TO THE LEVEL OF THE TRIBUNAL. SURELY, THE TRIBUNAL, WHILE CONSIDERING THE PENALTY PROCEEDINGS COULD NOT HAVE OVERRULED THE PREVIOUS FINDINGS WHIC H HAD ATTAINED FINALITY. PENALTY CORRESPONDING TO THE ADDITION OF RS. 17.22 LAKHS WAS DELETED ON THE GROUND THAT THE ASSESSEE HAD DEMONSTRATED THAT THERE WAS ESTIMA TION OF ADDITIONS AND THAT, THEREFORE, NO PENALTY COULD BE LEVIED. HERE AGAIN,- WE ARE OF THE OPINION THAT THE TRIBUNAL INTERFERED WITH THE PENALTY ON THE GROUND WHICH WAS NOT PERMISSIBLE. ADDITIONS MADE ON THE BASIS OF ESTIMATION MAY BE ONE OF THE GROUNDS O N WHICH DISCRETION NOT TO IMPOSE PENALTY MAY BE EXERCISED. HOWEVER, IN THE ABSENCE O F ANY REQUIREMENT TO PROVE THE CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS FOUND IN SECTION 271(L)(C) OF THE ACT CANNOT FORM THE SOLE BASIS TO DELETE PENALTY IMPOSE D BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER (APPEALS). IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 8 16. IF THE FACTS OF THE CASE IN HAND ARE TESTED IN THE LIGHT OF THE AFOREMENTIONED DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT, WE FIND THAT IN THE PRESENT CASE ALSO THE ASSESSED INCOME IS OVER AND ABOVE THE RETU RNED INCOME. NO DOUBT, PENAL PROVISIONS OF SECTION 158BFA(2) ARE DISCRETIONARY I N NATURE BUT SUCH DISCRETION OF THE A.O. CANNOT BE INTERFERED WITH IF THE SAME IS EXERCISED ON THE BASIS OF THE SEIZED MATERIAL. RESPECTFULLY FOLLOWING THE FINDING S OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA), WE DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE LD. COUNSEL AND, THEREFORE, WE DECLINE TO INTERFERE WITH THE FI NDINGS OF THE LD. CIT(A). 14. THE LD. COUNSEL DURING THE COURSE OF HIS SUBMISSION RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH OF JODHPUR TRIBUNAL IN 49 TAX MANN.COM 139 WHEREIN THE BENCH DELETED THE PENALTY ON FINDINGS THAT THE ADDITION HAS BEEN SUSTAINED ONLY ON ESTIMATE BASIS ON ACCOUNT OF GROSS PROFIT O N SALE OUTSIDE BOOKS OF ACCOUNTS AND NOT ON BASIS OF ANY MATERIAL FOUND DUR ING THE SEARCH. THE FACTS ARE CLEARLY DISTINGUISHABLE AS IN THE CASE IN HAND, THERE IS A DIRECT NEXUS BETWEEN THE UNACCOUNTED SALES AND THE NOTINGS IN THE SEIZED MATERIAL FOUND AT THE TIME OF SEARCH PROCEEDINGS. THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN 33 TAXMANN.COM 536 WOULD ALSO DO NO GOOD TO THE ASSESS EE AS THAT IS ALSO ON ESTIMATION OF PROFIT WHEREAS THE CASE IN HAND IS ON THE NEXUS OF UNACCOUNTED SALES VIS--VIS THE NOTINGS IN THE SEIZED MATERIAL. 15. THE CONTENTION THAT THE SUO MOTO OFFERED OF RS. 10 LACS HAS NOT BEEN CONSIDERED BY THE A.O. DOES NOT HOLD ANY WATER AS T HE A.O. HAS COMPUTED THE INCOME OF THE BLOCK PERIOD ON THE BASIS OF THE SEIZ ED MATERIAL AND THE TOTAL INCOME COMPUTED FOR THE BLOCK PERIOD IS OVER AND AB OVE, THE DISCLOSED INCOME AND THE PENALTY HAS BEEN LEVIED ON THE UNACCOUNTED SALES AS MENTIONED ELSEWHERE. IT(SS)A NO12 1/AHD/2016 . B.P. 01/04/ 1995 TO 08/01/2002 9 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 14- 03- 20 18 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 14/03/2018 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,AHME DABAD