Shri Ashwani Nath Sharma, Bhopal V. The ACIT 1(2), Bhopal

ITSSA 125/IND/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1329 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 21-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA
• Keywords: Income from undisclosed sources; Search and seizure; Additional evidence; Cost of acquisition; Bonafide mistake
• Section: 143(3); 153A

Judgement Text

ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER IT(SS)A NO. 125/IND/2013 A.Y.2006-07 ASHWANI NATH SHARMA BHOPAL ::: APPELLANT VS ASSTT.COMMR. OF INCOME TAX 1(2) BHOPAL ::: RESPONDENT ITA NO. 628/IND/2013 A.Y.2006-07 ASHWANI NATH SHARMA BHOPAL ::: APPELLANT VS COMMISSIONER OF INCOME TAX -1) BHOPAL ::: RESPONDENT ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA REVENUE BY SHRI R.A. VERMA DATE OF HEARING 8.12 .2015 DATE OF PRONOUNCEMENT 21 . 12 .2015 ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 2 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST DIFFERENT ORDERS OF THE LEARNED CIT(A)-I, BHOPAL, BO TH DATED 26.3.2013. 2. IN GROUND NO. 1 THE ASSESSEE CHALLENGES THE ACTION OF THE LEARNED CIT(A) IN SUSTAINING THE ADDITION OF RS50, 000/- TOWARDS THE CHEQUE NOT ENCASHED BY THE ASSESSEE. THE ASSESSING OFFICER MADE AN ADDITION OF RS.88,000/- ON ACCOUNT OF UNSECURED LOAN RECEIVED FROM SHRI HEMANT GAUR OF RS.19,000/- FROM MANISH SRATE RS.19,000/-, F ROM RAJKUMAR TIRANI RS.25,000/- AND FROM SHRI RAJMAL MEENA RS.25,000/-. THE LEARNED CIT(A) DELETED THE ADDITION IN RESPECT OF HEMANT GAUR AND MANISH ISRATE. HE, HOWEVER, SUSTAINED THE ADDITION OF RS.25,000/- RECEIVED FROM RAJKUMAR TIWARI AND RS.20,000/- RECEIVED FROM RAJMAL MEENA. ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 3 THE FACTS IN BRIEF ARE AS UNDER :- (III) SHRI RAJKUMAR TIWARI RS. 25,000/- ON THE REQUEST OF THE APPELLANT, SHRI RAJKUMAR TIWARI HAD DEPOSITED THE AMOUNT OF RS. 25,000/- IN THE A/C O F NAGAR NIGAM (GANESH NAGAR SOCIETY), BHOPAL THROUGH CHEQUE NO. 738791 DTD. 13-09-2005. AFTER VERIFICATIO N OF THE A/C OF SHRI RAJKUMAR TIWARI NO. 6133 AND A/C OF NAGAR NIGAM (GANESH NAGAR SOCIETY ) NO. 6722, IT WAS FOUND THAT THE SAID CHEQUE WAS NOT ENCASHED, WHEREAS THE APPELLANT TOOK THE SAME INTO CONSIDERATION , WHILE PREPARING THE RECEIPTS & PAYMENTS A/C FOR THE PERIOD 01- 04-2005 TO 31-03-2006 . CONFIRMATION LETTER FROM SHR I RAJ KUMAR TIWARI WAS FURNISHED. AFTER FILING THE REPLY, TH E LD. ASSESSING OFFICER DID NOT RAISE ANY FURTHER QUERRY ABOUT THE SAID AMOUNT OF RS. 25,000/-. HOWEVER, AFTER CONSIDERI NG THE CONFIRMATION LETTER, HE MADE THE ADDITION OF RS. ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 4 25,000/- TOWARDS THE INCOME OF THE APPELLANT WITHOUT PROVIDING ADEQUATE OPPORTUNITY TO EXPLAIN THE SAME. THE APPELLANT FILED FRESH EXPLANATORY CONFIRMATION LETTER & COPY OF BANK OF SHRI RAJKUMAR TIWARI, COPY OF CORRECTED RECEIPTS & PAYMENTS A/C AND COPY OF BANK A/C OF NAGAR NIGAM (GANESH NAGAR SOCIETY) AS ADDITIONAL EVIDENCE, REQUESTING THAT THESE WERE NECESSARY FOR THE PROPER DISPOSAL OF THE APPEAL. IT WAS CONTENDED THAT THE APPELLANT FULFILLED THE CONDITION LAID DOWN U/R 46A OF THE IT RULES AND THER EFORE, THE SAME BE KINDLY ACCEPTED AS ADDITIONAL EVIDENCE AND PRAYED THAT IN THE LIGHT OF THE SAME, THE AMOUNT OF RS . 25,000/- BE KINDLY ACCEPTED AS EXPLAINED AND THE ADDITI ON OF RS. 25,000/- BE KINDLY BE DELETED. (IV) SHRI RAJMAL MEENA RS. 25,000/- (CORRECTLY RS. 20,000/-) ON THE REQUEST OF THE APPELLANT, SHRI RAJMAL MEENA HAD DEPOSITED THE AMOUNT OF RS. 20,000/- IN THE A/C OF NAGAR ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 5 NIGAM (GANESH NAGAR SOCIETY), BHOPAL THROUGH CHEQUE NO. 734905 DTD. 13-09-2005. THE SAME WAS REFLECTED IN THE RECEIPTS & PAYMENTS A/C OF THE APPELLANT FOR THE PERIO D 01- 04-2005 TO 31-03-2006, ALREADY ON RECORD .HIS SOURCE OF INCOME IS FROM AGRICULTURE AND SALE OF MILK. CONFIRMATI ON LETTER FROM SHRI RAJMAL MEENA WAS FURNISHED. AFTER FIL ING THE REPLY, THE LD. AO DID NOD RAISE ANY FURTHER QUERRY ABOUT THE SAID AMOUNT OF RS. 20,000/-. HOWEVER, AFTER CONSIDERING THE CONFIRMATION LETTER, HE MADE THE ADDIT ION OF RS. 20,000/- TOWARDS THE INCOME OF THE APPELLANT WITHO UT PROVIDING ADEQUATE OPPORTUNITY TO EXPLAIN THE SAME. THE APPELLANT FIELD A FRESH CONFIRMATION LETTER, COPY O F BANK STATEMENT OF RAJMAL MEENA AND ACCOUNT OF NAGAR NIGAM (GANESH NAGAR SOCIETY) AS ADDITIONAL EVIDENCE. IT WAS CONTENDED THAT THE APPELLANT FULFILLED THE CONDITIO N LAID DOWN U/R 46A OF THE IT RULES AND THEREFORE, THE FRES H EVIDENCE BE KINDLY ACCEPTED AS ADDITIONAL EVIDENCE AND ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 6 PRAYED THAT IN THE LIGHT OF THE SAME, THE AMOUNT OF RS . 20,000/- BE KINDLY ACCEPTED AS EXPLAINED AND THE ADDIT ION MADE TOWARDS THE SAME BE KINDLY DELETED. 5.4 THE ABOVE SUBMISSION OF THE APPELLANT WAS SENT TO T HE AO FOR VERIFICATION/ EXAMINATION OF DOCUMENTS AND TO SUBMIT REMAND REPORT. IN THE REMAND REPORT F.NO.ACIT - 1(2)/BHO/REMAND REPORT/ 2011-12 DATED 28.11.2011, THE AO SUBMITTED THAT THE APPELLANT HAD NOT FURNISHED ANY DOCUMENT DURING THE ASSESSMENT PROCEEDINGS TO PROVE THE GENUINENESS OF CASH CREDITS SHOWN. THE APPELLANT HAD SHOWN CASH CREDITORS OF RS.19,000/- EACH STATED TO BE RECEIVED IN CASH FROM SHRI HEMANT GOUR AND SHRI MANISH ISRATE. IN RESPECT OF SHRI RAJKUMAR TIWARI AND SHRI RAJ MAL MEENA THEY CLARIFIED IN THEIR LETTERS THAT THEY HAVE NO T GIVEN ANY LOAN TO THE APPELLANT BUT HAD ISSUED CHEQUES TO GANESH NAGAR SOCIETY. IN THE CASE OF SHRI RAJKUMAR TIWARI , THE CHEQUE WAS NOT ENCASHED AND THERE WAS NO QUESTION OF ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 7 ANY LOAN FROM HIM. IT WAS SUBMITTED THAT ADDITION OF RS.88,000/- DESERVES TO BE CONFIRMED. IN THE REJOINDER, IT WAS SUBMITTED THAT THE APPELLANT HAD FILED THE CONFIRMATION LETTERS BEFORE THE ASSESSIN G OFFICER FROM ALL THE CREDITORS. HE DID NOT RAISE ANY F URTHER QUESTIONS AND MADE THE ADDITION OF RS.88,000/- TOWARDS ALL THE CREDITORS. THE APPELLANT FILED THE ADDITIONAL EV IDENCE IN THE SHAPE OF EXPLANATORY CONFIRMATION LETTERS FROM S HRI HEMANT GOUR AND SHRI MANISH ISRATE CONFIRMING THE CREDI T OF RS.19,000/- ON 02.05.2005 AND REPAYMENT ON 31.03.2007. BOTH ARE INCOME TAX PAYERS AND THEY HAVE GIVEN THEIR PAN AND WARD WHERE THEY ARE ASSESSED. THE L D. AO NEITHER RAISED ANY FURTHER QUERRY NOR ASKED THE APPELLANT TO PRODUCE THE CREDITORS. SHRI RAJMAL MEENA WAS CULTIVATING THE LAND OF THE APPELLANT AND HE DEPOSITED RS.25,000/- WITH THE MUNICI PAL CORPORATION FOR THE DEVELOPMENT OF PLOTS OWNED BY TH E ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 8 APPELLANT IN GANESH NAGAR COLONY. THE COPY OF BANK ACCOUNT OF MUNICIPAL CORPORATION AND RAJMAL MEENA WERE NECESSARY TO PROVE THE ABOVE FACTS. SIMILARLY, SHRI RAJKUMAR TIWARI HAD ALSO DEPOSITED THE CHEQUE OF RS.20,000/- (NOT RS.25,000/-) FOR THE DEVELOPMENT OF THE PLOTS IN GANESH NAGAR. THE APPELLANT THOUGHT THAT THE SAME WAS ENCASHED AND ACCORDINGLY, HE RAISED THE COST OF PLOT. LATER ON, WHEN IT CAME TO KNOWLEDGE OF THE APPEL LANT THAT NO CHEQUE HAD BEEN ENCASHED, HE FILED THE REVISED BALANCE SHEET AND COPY OF BANK ACCOUNT OF SHRI RAJKUMR TIWARI. IN VIEW OF THE ABOVE, THE ADDITIONAL EVIDENCE B E KINDLY ADMITTED AND THE ADDITION MADE OF RS.88,000,/- MAY PLEASE BE DELETED. 3. BEFORE US ALSO THE LEARNED COUNSEL FOR THE ASSESSE E WAS UNABLE TO CONTROVERT THE FINDINGS OF THE LEARNED CIT(A), THEREFORE, WE HAVE NO ALTERNATIVE BUT TO CONFIRM THE ADDITION OF RS.45,000/-. ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 9 4. IN GROUND NO. 2 THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LEARNED CIT(A) IN NOT ACCEPTING THE FACT THAT SHRI KANHAIYALAL HAD REPAID THE AMOUNT OF RS.5,00,000/- WHICH WAS RECEIVED AS PER PAGES 7 -8 OF LPS-5. 5. WE HAVE HEARD BOTH THE SIDES. THE ASSESSING OFFIC ER FOUND THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE RECEIVED RS. 5,00,000/- AS LAND ADVANCE FROM S HRI KANHIYALAL WHICH WAS REPAID TO HIM. THE ASSESSEE FILED CONFIRMATION IN THIS REGARD BUT THE LEARNED ASSESSING OFFICER OBSERVED THAT IT DID NOT CONTAIN DETAILS OF L AND FOR WHICH THE AMOUNT WAS RECEIVED AND REPAID. THIS AMOUNT WAS, THEREFORE, ADDED TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. ON APPEAL, THE LEARNE D CIT(A) CONFIRMED THE SAME. 6. WE HAVE HEARD BOTH THE SIDES. THIS ADDITION OF RS. 5 LACS WAS PART OF THE UNDISCLOSED INCOME DECLARED BY SHARMA FAMILY AT RS.1,83,00,000/- OF WHICH 1/4 TH ADDITION ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 10 WAS MADE IN THE HANDS OF THE ASSESSEE. THIS ISSUE HAS BEEN DEALT WITH BY US IN THE CASE OF SHAMBHU NATH SHARMA. FOR THE REASONS DISCUSSED THEREIN, WE DECIDE THIS ISSUE ACCORDINGLY.S 7. BY WAY OF GROUND NO. 3 THE ASSESSEE CHALLENGES THE ACTION OF THE LEARNED CIT(A) IN MAKING THE ADDITION OF RS.8 LACS AT THE APPELLATE STAGE TOWARDS THE SOCALLED SHORT TER M CAPITAL GAIN EARNED BY THE ASSESSEE FROM THE SALE OF LAND OF SMT. KUSUM SHARMA STANDING IN THE NAME OF SHRI SHAKEEL RAZA UNDER THE POWER OF ATTORNEY IN THE NAME OF THE APPELLANT. 8. DURING THE COURSE OF APPELLATE PROCEEDINGS, LEARNED CIT(A) FOUND FROM THE DETAILS FILED BY THE ASSESSEE EXPLAINING THE AMOUNT RECEIVED FROM SMT. JYOTI LAHRI AS A PART OF CONSIDERATION FOR SALE OF LAND AS PER SALE DEED REGISTERED ON 18.5.2005. HE OBSERVED THAT THE ASSESS EE HAD PURCHASED 1.18 ACRES OF LAND AT VILLAGE GEHUKHEDA, ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 11 TEHSIL HUZUR, DISTT. BHOPAL FROM SHRI SHAKEEL RAJA BY REGISTERED GENERAL POWER OF ATTORNEY ON 24.6.2004 FO R A CONSIDERATION OF RS.3 LACS WHICH WAS PAID BY CHEQUE FROM THE ACCOUNT OF HIS WIFE SMT. KUSUM SHARMA. THIS LAND WAS SOLD BY THE ASSESSEE TO FOUR PERSONS FOR A CONSIDERATI ON OF RS.11 LACS BY SALE DEED REGISTERED ON 18.5.2005. CONSIDERING THIS, THE LEARNED CIT(A) WAS OF THE VIEW THAT THE ASSESSEE EARNED SHORT TERM CAPITAL GAINS ON THE TRANSFER OF THIS LAND OF RS. 8 LACS (RS. 11 LACS MINUS COST OF ACQUISITION RS.3 LACS). HE NOTED THAT THE ASSESSEE DID NOT SHOW THIS SHORT TERM CAPITAL GAIN OF RS.8 LACS IN HIS R ETURN FOR THE ASSESSMENT YEAR 2006-07 UNDER CONSIDERATION. T HE LEARNED CIT(A) CALLED UPON THE ASSESSEE TO EXPLAIN THE SAME AND SHOW CAUSE AS TO WHY THIS ADDITION OF RS. 8 LACS O N ACCOUNT OF SHORT TERM CAPITAL GAINS EARNED ON THE SALE OF 1.18 ACRES OF LAND AT VILLAGE GEHUKHEDA SHOULD NOT BE MADE AS TAXABLE INCOME BUT THE ASSESSEE DID NOT FILE AN Y ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 12 REPLY. ON THIS FAILURE OF THE ASSESSEE TO EXPLAIN, T HE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAD EARNED SHO RT TERM CAPITAL GAINS OF RS. 8 LACS DURING THE PERIOD RELE VANT TO ASSESSMENT YEAR 2006-07 ON TRANSFER OF 1.18 ACRES OF LAND WHICH WAS NOT REFLECTED IN THE RETURN OF INCOME FILED BY THE ASSESSEE. HE, THEREFORE, DIRECTED THE ASSESSI NG OFFICER TO ADD THIS SHORT TERM CAPITAL GAIN OF RS.8 LAC S TO THE TOTAL INCOME FOR THE ASSESSMENT YEAR 2006-07. AGAI NST THIS DIRECTION, THE ASSESSEE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE SIDES. THE ASSESSEE HAS RECEIVED PART SALE CONSIDERATION OF LAND REGISTERED ON 18.5.2005 TOWARDS 1.18 ACRE LAND AT VILLAGE GEHU KHEDI TEHSIL HAZOOR GANJ DISTRICT BHOPAL. THE ASSESSEE PURCHASED THIS LAND FROM SHAKEEL RAJA ON 24.6.2004 FOR RS. 3 LACS AND THE AMOUNT WAS PAID FROM ACCOUNT OF HIS WIFE SMT. KUSUM SHARMA. THIS LAND WAS SOLD FOR RS.11 LACS VIDE SALE DEED DATED 18.5.2005. THE ASSESSEE HAS N OT ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 13 DISCLOSED SHORT TERM CAPITAL GAIN EARNED ON THE SALE OF 1.18 ACRES OF LAND SITUATED AT GEHU KHEDI. SINCE THE ASSESSEE HAS FAILED TO EXPLAIN AS TO WHY THIS SHORT TERM CAPITAL GAIN WAS NOT DISCLOSED IN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07, THEREFORE, WE FIND NO MERIT IN THIS GROUND OF THE ASSESSEE AND CONFIRM THE ORDER OF THE LEARNED CIT(A). 10. IN GROUND NO. 4 THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ADDITION OF RS.21,95,852/- TOWARDS SHAR E OF THE ASSESSEE IN THE SOCALLED UNDECLARED INCOME ACCEP TED BY SHRI RAM NATH SHARMA DURING THE COURSE OF SEARCH. 11. THIS ISSUE HAS BEEN DEALT WITH BY US WHILE DECIDING THE APPEALS OF SHAMBHU NATH SHARMA AND FOR THE REASONS DISCUSSED THEREIN, WE ALLOW THIS GROUND OF TH E ASSESSEE. ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 14 ITA NO. 628/IND/2013 12. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 26.3. 2013. 13. THE SUM AND SUBSTANCE OF THE GROUNDS OF APPEAL OF THE ASSESSEE IS THAT THE LEARNED CIT(A) WAS NOT JU STIFIED IN HOLDING THAT THE ASSESSEE FURNISHING INACCURATE PARTICULARS OF INCOME OF RS.8 LACS AND LEVYING PENALTY U /S 271(1)(C) OF THE ACT. 14. THE ASSESSEE IS AN INDIVIDUAL WHO DID NOT FILE OR IGINAL RETURN OF INCOME FOR A.Y. 2006-07 WITHIN THE TIME U /S 139(1) OF THE ACT. SEARCH AND SEIZURE OPERATIONS U/S 1 32(1) OF THE ACT WERE CARRIED OUT AT THE PREMISES OF THE ASS ESSEE AND DURING THE SEARCH CERTAIN DOCUMENTS BELONGING TO T HE ASSESSEE WERE FOUND AND SEIZED. THEREAFTER, THE ASSES SING OFFICER ISSUED NOTICE U/S 153A OF THE ACT ON 22.3.2 006 REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME U/S 153A FOR THE ASSESSMENT YEAR 2006-07, IN RESPONSE TO WHICH TH E ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 15 ASSESSEE FURNISHED RETURN OF INCOME ON 19.2.2007 DECLARING INCOME AT RS.1,79,958/-. AFTER ISSUE OF NOT ICE U/S 143(2) AND 142(1), THE ASSESSING OFFICER ASSESSED THE TAXABLE INCOME OF THE ASSESSEE AT RS.51,56,260/- VIDE ASSESSMENT ORDER U/S 153A READ WITH SECTION 143(3) OF THE ACT AGAINST WHICH THE ASSESSEE PREFERRED FIRST APPEAL BE FORE THE LEARNED CIT(A). 15. THE LEARNED CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS NOTICED THAT THE ASSESSEE HAD PURCHASED LAND ADMEASURING 1.18 ACRES AT VILLAGE GEHUKHEDA, TEHSIL. HUZUR, DISTT. BHOPAL FROM SHRI SHAKEEL RAJA BY REGISTE RED GENERAL POWER OF ATTORNEY ON 24.6.2004 FOR A CONSIDER ATION OF RS.3 LACS WHICH WAS PAID BY CHEQUE. THEREAFTER THIS LAND WAS SOLD TO FOUR PERSONS FOR A CONSIDERATION OF RS. 11 LACS BY SALE DEED REGISTERED ON 18.5.2005. IN THIS WAY, THE ASSESSEE EARNED SHORT TERM CAPITAL GAINS OF RS. 8 LACS ON THE TRANSFER OF THE SAID LAND WHICH WAS NOT SHOWN IN TH E ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 16 RETURN OF INCOME FILED BY THE ASSESSMENT YEAR U/S 153 A. THE LEARNED CIT(A), THEREFORE, CALLED UPON THE ASSESSE E TO EXPLAIN AS TO WHY AN ADDITION OF RS.8 LACS ON ACCOUNT OF SHORT TERM CAPITAL GAIN EARNED ON THE SALE OF 1.18 ACRES OF LAND AT VILLAGE GEHUKHEDA, TEHSIL HUZUR, DISTRICT BHOPAL SHOULD NOT BE MADE IN THE TAXABLE INCOME FOR THE ASSESSMENT YEAR 2006-07 BUT THE ASSESSEE DID NOT FILE ANY REPLY. THE LEARNED CIT(A), THEREFORE, DIRECTED THE A SSESSING OFFICER TO MAKE ADDITION OF RS.8 LACS ON ACCOUNT OF SHO RT TERM CAPITAL GAINS EARNED BY THE ASSESSEE ON THE SALE OF 1.18 ACRES OF LAND. SINCE THE ASSESSEE COULD NOT FILE ANY REPLY FOR NOT SHOWING SHORT TERM CAPITAL GAIN EARNED O N THE SALE OF 1.18 ACRES OF LAND. SINCE THE ASSESSEE COULD NO T FILE ANY EXPLANATION REGARDING NON-DISCLOSURE OF SHORT TERM CAPITAL GAIN IN THE RETURN OF INCOME, THE LEARNED CIT( A) INITIATED PROCEEDINGS U/S 271(1)(C) OF THE ACT. THE LEARNED CIT(A), THEREFORE, CALLED UPON THE ASSESSEE TO EXPLAIN AS TO ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 17 WHY PENALTY U/S 271(1)(C) OF THE ACT SHOULD NOT BE L EVIED FOR CONCEALMENT OF PARTICULARS OF INCOME OF RS.8 LACS. 16. WE HAVE HEARD BOTH THE SIDES. AT THE TIME OF SEARC H THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNTS AND NO RETURN OF INCOME WAS FILED. THE LEARNED COUNSEL FO R THE ASSESSEE CLAIMS THAT AT THE TIME OF SEARCH VOLUMINOUS RECORD WAS FOUND AND ON THE BASIS OF THE SAME THE ASSESSEE PREPARED RECEIPT AND PAYMENT ACCOUNTS FOR ALL T HE ASSESSMENT YEARS AND THE ASSESSEE ALSO SUBMITTED DETAILS OF VARIOUS TRANSACTIONS BEFORE THE AUTHORITIES BELOW. IT WAS DUE TO INADVERTENT MISTAKE THAT THIS AMOUNT OF RS.8 LACS EARNED AS SHORT TERM CAPITAL GAIN LOST SITE WHILE FILIN G THE RETURN OF INCOME ALTHOUGH THE SAME WAS REFLECTED IN TH E RECEIPT AND PAYMENT ACCOUNT. HAD THE ASSESSEE INTENTIO N TO AVOID THE TAX ON THIS THEN IT COULD NOT HAVE BEEN DISCLOSED IN THE RECEIPT AND PAYMENT ACCOUNT. THEREFO RE, THE ASSESSEE HAS MADE A BONAFIDE MISTAKE. THIS AMOUNT ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 18 WAS REFLECTED IN THE RECEIPT AND PAYMENT ACCOUNT AS WEL L AS BALANCE SHEET OF THE ASSESSEE. SINCE THE ASSESSEE WAAS NO T MAINTAINING BOOKS OF ACCOUNTS AND THIS AMOUNT WAS DISCLOSED IN THE RECEIPT AND PAYMENT ACCOUNT AND BALANCE SHEET, THEREFORE, WE ARE OF THE VIEW THAT THERE WAS BO NAFIDE MISTAKE ON THE PART OF THE ASSESSEE AND IN SUCH A SITUATI ON THE ASSESSEE DOES NOT DESERVE TO BE VISITED WITH PEN ALTY PROCEEDINGS U/S 271(1) OF THE ACT. THE HON'BLE MADR AS HIGH COURT IN THE CASE OF MADRAS..221 ITR 208 HELD TH AT WHERE THERE WAS A CASE OF MISTAKE OF ACCOUNTING, PENALTY CANNOT BE LEVIED. THE HON'BLE SUPREME COURT IN THE C ASE OF PRICE WATER; 25 TAXMANN.COM 400 HAS ALSO HELD THAT THER E MAY BE GENUINE MISTAKES COMMITTED EVEN BY A PROFESSIO NAL FIRM LIKE PWC. IN THE ASSESSEES CAASE THE ASSESSEE WAS NOT A PROFESSIONAL AND DOES NOT UNDERSTAND INTRICACIES OF INCOME TAX ACT AND WAS NOT GUIDED BY ANY INCOME TAX ASHWANI NATH SHARMA IT(SS) A NO. 125/IND/2013 19 EXPERT WHILE FILING THE RETURN OF INCOME. CONSIDERI NG ALL THESE FACTS, WE DIRECT TO DELETE THE PENALTY. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON DECEMBER, 2015 PRONOUNCED IN OPEN COURT ON 21 ST DECEMBER, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 21 ST DECEMBER, 2015 DN/-