Sh. Madhukar Kapur, Agra V. Dy. C.I.T., Agra

ITSSA 3/AGR/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8571 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-12-2012
• Assessment Year: misc
• Appeal Filed On: 26-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K NAGPAL
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER IT(SS)A NO. 03/AGRA/2011 BLOCK PERIOD : 01.04.1990 TO 08.11.2000 MADHUKAR KAPUR, VS. D.C.I.T., CENTRAL CIRCLE, 64, SURYA NAGAR, AGRA. AGRA (PAN : ACNPK 8849 G) IT(SS)A NO. 04/AGRA/2011 BLOCK PERIOD : 01.04.1990 TO 08.11.2000 NIRMALA KAPUR, VS. D.C.I.T., CENTRAL CIRCLE, 64, SURYA NAGAR, AGRA. AGRA (PAN : ACNPK 8850 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.K. NAGPAL, C.A. RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 20.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 28.12.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECT ED AGAINST DIFFERENT ORDERS OF LD. CIT(A)-II, AGRA DATED 21.02.2011, CHALLENGIN G THE LEVY OF PENALTY U/S. 158BFA(2) OF THE IT ACT. IT(SS)A NO.03 & 04/2011 2 2. BOTH THE PARTIES MAINLY ARGUED IN THE CASE OF AS SESSEE, SHRI MADHUKAR KAPUR IN IT(SS)A NO. 03/AGRA/2011 IN WHICH PENALTY WAS IM POSED ON DIFFERENT HEADS AND SAME WOULD COVER THE APPEAL OF OTHER ASSESSEE, NIRMALA KAPUR. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED TH E MATERIAL AVAILABLE ON RECORD. IT(SS)A NO. 03/AGRA/2011 (MADHUKAR KAPUR) : 4. BRIEFLY, THE FACTS AS NOTED IN THE PENALTY ORDER , ARE THAT SEARCH WAS CONDUCTED U/S. 132(1) ON 08.11.2000 AT THE BUSINESS AND RESID ENTIAL PREMISES OF THE ASSESSEE. THE ASSESSEE IS MANAGING DIRECTOR OF MAHIM PATRAM P VT. LTD. THE ASSESSEE IN RESPONSE TO NOTICE U/S. 158BC FILED RETURN OF INCOM E IN PRESCRIBED FORM DISCLOSING UNDISCLOSED INCOME OF RS.47.00 LACS. THE ASSESSMENT WAS, HOWEVER, COMPLETED AT THE UNDISCLOSED INCOME OF RS.61,88,209/- AND PENALT Y PROCEEDINGS U/S. 158BFA(2) WAS SEPARATELY INITIATED. DURING THE SEARCH OPERATI ON, SEVERAL VALUABLE ITEMS WERE FOUND AND IT WAS ALSO FOUND THAT THE ASSESSEE IS US ING CAR, HELPERS AND AC FACILITIES OF THE COMPANY ETC., FOR WHICH NO PERQUISITES HAVE BEEN SHOWN IN THE RETURN. THE SAME WAS CALCULATED AT RS.3,83,300/- AND WAS CONSID ERED AS UNDISCLOSED INCOME. FURTHER, PROPERTY SITUATED AT SAFDARJANG, NEW DELHI WAS FOUND IN THE NAME OF ASSESSEE ALONG WITH SHRI ARVIND KAPUR AND SMT. NIRM ALA KAPUR, FROM WHICH THE ASSESSEE HAS RENTAL INCOME AT 1/3 RD OF THE SHARE. FROM THIS PROPERTY, THE ASSESSEE GOT IT(SS)A NO.03 & 04/2011 3 UNREALIZED RENT OF RS.3,93,940/- FOR THE ASSESSMENT YEAR 1991-92 TO 1997-98. THE ASSESSEE FILED RETURN DISCLOSING INCOME OF RS.2,50, 572/- FOR THE ASSESSMENT YEAR 1999-2000, BUT WHEN RETURN FOR BLOCK PERIOD WAS FIL ED, THE AMOUNT WAS DISCLOSED AT RS. 3,37,572/- INSTEAD OF RS.2,50,572/-. THE ASS ESSEE CLAIMED DEDUCTION U/S. 24, WHICH WAS NOT ALLOWABLE AS PER SECTION 25A OF THE I T ACT. THE ASSESSEES SHARE COMES TO RS.1,31,313/-, WHICH WAS CONSIDERED AS UND ISCLOSED INCOME ON ACCOUNT OF UNREALIZED RENT. ACCORDINGLY, THE ADDITION WAS M ADE. FURTHER ADDITION WAS MADE OF RS.10,000/- IN RESPECT OF RD ACCOUNT WITH INDIAN OVERSEAS BANK, WHICH WAS FOUND AS PER BANK PASSBOOK. ADDITION OF RS.4,61,694 /- WAS MADE ON ACCOUNT OF UNEXPLAINED JEWELLERY. THE AO ALSO MADE ADDITION OF RS.13,225/- ON ACCOUNT OF UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR 1999-200 0 AND 2000-01. THUS, TOTAL ADDITION COMES TO RS.9,99,532/- AND THE AO GAVE BEN EFIT OF RS.6,00,000/- WHICH WAS DISCLOSED IN THE RETURN FOR THE BLOCK PERIOD, W HICH WAS SURRENDERED BY THE ASSESSEE SEPARATELY APART FROM SURRENDER OF RS.47.0 0 LACS AND BALANCE OF RS.3,99,532/- WAS CONSIDERED AS UNDISCLOSED INCOME, ON WHICH PENALTY WAS IMPOSED AT THE DOUBLE OF THE RATE AT RS.4,80,000/- U/S. 158BFA(2) OF THE IT ACT. THE LD. CIT(A), CONSIDERING THE EXPLANATION OF THE ASSESSEE CONFIRMED THE LEVY OF PENALTY AND DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE I N ALL DISCLOSED RS.53,00,000/- AS IT(SS)A NO.03 & 04/2011 4 UNDISCLOSED INCOME IN THE RETURN FILED FOR THE BLOC K PERIOD, WHICH CONSISTS OF UNDISCLOSED INCOME OF RS.47,00,000/- AND RS.6,00,00 0/- WAS FURTHER SURRENDERED ON ACCOUNT OF PROVISION FOR CONTINGENCIES, AS THE A SSESSEE MAY NOT BE ABLE TO EXPLAIN CERTAIN ITEMS TO THE SATISFACTION OF THE DE PARTMENT AND SUCH OTHER CONTINGENCIES. HE HAS SUBMITTED THAT RS.6,00,000/- WAS PROVISION FOR CONTINGENCIES AND IT WAS ESTIMATED AMOUNT SURRENDERED BECAUSE THE COPIES OF THE SEIZED MATERIAL WERE NOT SUPPLIED TO THE ASSESSEE ON TIME. HE HAS S UBMITTED THAT IF PENALTY IS CANCELLED FOR PERQUISITES AND UNREALIZED RENT, THE BALANCE ADDITION WOULD BE COVERED BY THE ADDITIONALLY SURRENDERED AMOUNT OF R S.6,00,000/-. THEREFORE, THE PENALTY IS NOT LEVIABLE AGAINST THE ASSESSEE. WITH REGARD TO UNREALIZED RENT, HE HAS SUBMITTED THAT THE ASSESSEE HAS ALREADY DISCLOSED R S.2,50,572/- IN THE RETURN OF INCOME, HOWEVER, THE DEDUCTION WAS NOT ALLOWABLE AS PER SECTION 25A. THEREFORE, IT WAS NOT A FIT CASE FOR LEVY OF PENALTY. DUE TO J UDGMENT OF HIGH COURT, RENT WAS REALIZED AND NOTHING UNDISCLOSED INCOME WAS FOUND O N THIS HEAD AND THE ASSESSEE WAS ONE OF THE JOINT OWNER OF THE PROPERTY AND ON T HE RENT TDS HAD ALREADY BEEN DEDUCTED AND ALL INFORMATION WERE GIVEN IN THE RETU RN OF INCOME. THEREFORE, LEVY OF PENALTY IS NOT JUSTIFIED ON THIS ISSUE. WITH REGARD TO ADDITION MADE ON PERQUISITES, HE HAS SUBMITTED THAT SUCH ADDITION WAS MADE ON THE BASIS OF STATEMENT RECORDED OF THE EMPLOYEES AND NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO PROVE ANY UNDISCLOSED INCOME AGAINST THE ASSESSEE. HE HAS SUB MITTED THAT LEVY OF PENALTY U/S. 158BFA(2) IS DISCRETIONARY AND NOT MANDATORY AND RE LIED UPON THE DECISION OF IT(SS)A NO.03 & 04/2011 5 HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DO DSAL LTD., 312 ITR 112 AND SUBMITTED THAT THE JUDGMENT OF BOMBAY HIGH COURT HA S BEEN CONFIRMED BY THE HONBLE SUPREME COURT IN S.L.P.(C) NO. 7004 OF 2009 , IN WHICH THE DEPARTMENTAL APPEAL HAS BEEN DISMISSED. HE HAS ALSO RELIED UPON THE DECISION OF ITAT MUMBAI BENCH IN THE CASE OF DCIT VS. KOATEX INFRASTRUCTURE LTD., 286 ITR (AT) 40, IN WHICH IT WAS HELD HELD, DISMISSING THE APPEAL, AS FAR AS ADDITIONS W ERE CONCERNED WHILE FILING THE RETURN FOR THE ASSESSMEN T YEAR 1999-2000 THE ASSESSEE VOLUNTARILY NOTICED THAT CERTAIN EXPEN SES TO THE TUNE OF RS.106.78 LAKHS WERE NOT CO-RELATABLE WITH THE INCO ME AND HENCE IT DISALLOWED THEM. THIS WAS PURELY A VOLUNTARY DISCLO SURE BY THE ASSESSEE. THE REST OF DISALLOWANCES EMERGED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAD ACCEPTE D THEM. THE GROUP CONCERNS HONOURED WHATEVER DISCLOSURE WAS MAD E AT THE ASSESSMENT RATHER THE ASSESSEE ITSELF FILED THE LET TER POINTING OUT AS TO HOW IT CLAIMED THE EXPENSES WHICH WERE NOT ALLOWABL E AND COULD BE CONSIDERED AS UNDISCLOSED INCOME FOR THE BLOCK PERI OD. THE ADDITIONS HAD BEEN MADE PURELY ON THE BASIS OF THE ASSESSEES LETTER. THE ASSESSING OFFICER NOWHERE DISCUSSED INDEPENDENT MAT ERIAL FOR MAKING THE ADDITION. THE RECORD DID NOT SHOW ANY MALA FIDE INTENTION ATTRIBUTABLE TO THE ASSESSEE. THE ASSESSING OFFICER WITHOUT ASSIGNING ANY REASON REJECTED THE EXPLANATION OF THE ASSESSEE . THUS, THE COMMISSIONER (APPEALS) RIGHTLY DELETED THE PENALTY AND THERE WAS NO REASON TO INTERFERE IN THAT ORDER. 5.1 HE HAS ALSO RELIED UPON THE ORDER OF ITAT, CHAN NAI BENCH IN THE CASE OF K. RAMAKRISHNAN (HUF) VS. DCIT, 10 ITR (TRIB.) 269, IN WHICH IT WAS HELD AS UNDER HELD, ALLOWING THE APPEAL, THAT THE RETURN FILED B Y THE ASSESSEE IMMEDIATELY AFTER THE SEARCH OPERATION WAS NOT VALI D IN THE EYE OF LAW. THE BLOCK ASSESSMENT WAS RIGHTLY COMPLETED BY TAKIN G INTO IT(SS)A NO.03 & 04/2011 6 CONSIDERATION THE CAPITAL GAINS AND CHARGING TAX AT 60 PER CENT. THE FACT THAT THE ASSESSEE HAD NOT FILED ANY BLOCK RETU RN OF INCOME WAS A LEGAL ERROR BUT NOT A GROUND TO IMPOSE PENALTY. THE BLOCK ASSESSMENT ITSELF HAD BEEN COMPLETED BY THE ASSESSING OFFICER ADOPTING THE AMOUNT OF CAPITAL GAINS OFFERED BY THE ASSESSEE IN ITS BELATED RETURN FILED IMMEDIATELY AFTER THE SEARCH OPERATION. THERE FORE, EVEN THOUGH LEGALLY AND TECHNICALLY NOT VALID, THE ASSESSEE HAD ALREADY RETURNED THE CAPITAL GAINS LIABLE FOR TAXATION IN ITS HANDS. IF THAT AMOUNT OF CAPITAL GAINS WAS IMPREGNATED IN THE BLOCK RETURN F ILED BY THE ASSESSEE, THE EQUATION BECOMES COMPLETE. THE ONLY C ORRECTION WAS CALCULATING TAX AT 60 PER CENT. INSTEAD OF 20 PER C ENT. IF THE ASSESSEE HAD NOT FURNISHED ITS BELATED RETURN IMMEDIATELY AF TER THE SEARCH, THE ASSESSEE WOULD HAVE DEFINITELY OFFERED THE CAPITAL GAINS FOR TAXATION IN ITS BLOCK RETURN. IF THAT AMOUNT WAS OFFERED THROUG H THE BLOCK RETURN THERE WOULD BE NO CASE OF ACTION TO IMPOSE PENALTY. THEREFORE, THE LEVY OF PENALTY WAS NOT JUSTIFIED AND WAS TO BE DEL ETED. 5.2 HE HAS ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJ PAL BHATIA, 333 ITR 315, IN WHICH IT WAS HELD THAT BEFORE INVOKING THE PROVISIONS OF SECTION 158 BD OF THE IT ACT, THE AO OF THE PERSON SEARCHED U/S. 132(1) MUST SATISFY HIMSELF THAT SOME UNDISCLOSED I NCOME BELONGS TO THE PERSON OTHER THAN THE PERSON SEARCHED. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE LEVY OF PENALTY IS DISCRETI ONARY AND NOT MANDATORY, WHICH IS ALSO DECIDED BY HONBLE BOMBAY HIGH COURT IN THE CA SE OF DODSAL LTD. (SUPRA) AND THE DECISION OF HIGH COURT HAS BEEN CONFIRMED B Y HONBLE SUPREME COURT. THE LANGUAGE OF SECTION 158BFA(2) PROVIDES THAT THE AO OR THE CIT(A) IN THE IT(SS)A NO.03 & 04/2011 7 COURSE OF ANY PROCEEDINGS UNDER THIS CHAPTER, MAY D IRECT THAT A PERSON SHALL PAY BY WAY OF PENALTY, A SUM WHICH SHALL NOT BE LESS THAN THE AMOUNT OF TAX LEVIABLE, BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TA X SO LEVIABLE IN RESPECT OF UNDISCLOSED INCOME DETERMINED BY THE AO U/S. 158BC( C) OF THE IT ACT. THUS, IT IS NOT MANDATORY TO LEVY PENALTY IN EACH AND EVERY CAS E PROVIDED THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE ADDITIONS OR THE UNDISCLOS ED INCOME DETERMINED U/S. 158BC OF THE IT ACT. FURTHER, PROVISO IS PROVIDED T O THE ABOVE PROVISION THAT NO PENALTY SHALL BE IMPOSED IF SUCH PERSON FURNISHED R ETURN U/S. 158BC AND PAYS TAX THEREON OR WOULD NOT HAVE FILED THE APPEAL AGAINST THE SAME. IN THE PRESENT CASE, THE ASSESSEE HAS FILED THE RETURN FOR THE BLOCK PERIOD DISCLOSING UNDISCLOSED INCOME OF RS.47,00,000/- AND FURTHER ADDITIONAL AMOUNT OF RS. 6,00,000/- WAS SURRENDERED ON THE ITEMS, WHICH THE ASSESSEE MAY NOT BE ABLE TO EX PLAIN TO THE SATISFACTION OF THE INCOME-TAX DEPARTMENT AND SUCH OTHER CONTINGENCIES. THUS, THE INTENTION OF THE ASSESSEE COULD BE INFERRED FROM THE HUGE AMOUNT SUR RENDERED IN THE RETURN FOR THE BLOCK PERIOD THAT THE ASSESSEE WANTED TO SURRENDER ENTIRE UNDISCLOSED INCOME IN THE RETURN FOR THE BLOCK PERIOD, FOR WHICH PENALTY MAY NOT BE LEVILABLE. THE AO IN THE PENALTY ORDER GAVE BENEFIT OF RS.6,00,000/- BY DEDU CTING THIS AMOUNT FROM THE TOTAL UNDISCLOSED INCOME OF RS.9,99,532/-, WHICH WAS CONS IDERED FOR THE PURPOSE OF PENALTY. THUS, THE ASSESSEE IS ABLE TO EXPLAIN THAT HE HAS SURRENDERED ADDITIONAL INCOME ON ACCOUNT OF PROVISION / CONTINGENCIES IN R ESPECT OF CERTAIN ITEMS, WHICH THE ASSESSEE MAY NOT BE ABLE TO EXPLAIN TO THE SATI SFACTION OF THE INCOME-TAX IT(SS)A NO.03 & 04/2011 8 DEPARTMENT. THE CONTENTION OF THE ASSESSEE IS NOT R EBUTTED THAT SUCH CONTINGENCY AMOUNT WAS ESTIMATED BECAUSE OF LATE SUPPLY OF THE SEIZED MATERIAL, OTHERWISE FOR SMALL AMOUNT OF RS.3,99,532/-, ON WHICH PENALTY HAS NOW BEEN IMPOSED, THE ASSESSEE WOULD HAVE DISCLOSED THE ENTIRE AMOUNT IN THE RETURN FOR THE BLOCK PERIOD. ON ACCOUNT OF UNREALIZED RENT, ADDITION OF RS.1,31, 313/- WAS MADE. THE ASSESSEE IS JOINT OWNER OF THE PROPERTY AT SAFDARJANG, NEW DELH I AND HAD DISCLOSED INCOME OF RS.2,50,572/- AND ON THE RENT, TDS WAS ALREADY DEDU CTED AND ALL RELEVANT INFORMATION HAVE BEEN SUPPLIED IN THE RETURN OF INC OME. THUS, THIS ADDITION WAS BASED ON THE INFORMATION ALREADY GIVEN IN THE RETUR N OF INCOME AND ACCORDING TO UNREALIZED RENT FOR SEVERAL YEARS, THE ASSESSEE MAY NOT BE ABLE TO GET DEDUCTION U/S. 24 OF THE IT ACT AS PER SECTION 25A OF THE ACT, THE REFORE, IT COULD BE A BONA FIDE MISTAKE ON THE PART OF THE ASSESSEE, OTHERWISE THER E WAS NOT MATERIAL AVAILABLE WITH THE AO TO SAY THAT SUCH ADDITION IS MADE ON THE BAS IS OF ANY MATERIAL / EVIDENCE FOUND DURING THE COURSE OF SEARCH. IT MAY ALSO BE A BONA FIDE MISTAKE ON THE PART OF THE ASSESSEE IN CLAIMING DEDUCTION U/S. 24 OF THE A CT BECAUSE SUCH DEDUCTION IS NOT ALLOWABLE U/S. 25A OF THE ACT. SIMILARLY, WITH REGA RD TO PERQUISITES OF RS.3,83,300/-, THE AO ESTIMATED THE VALUE OF THE PE RQUISITES ON THE BASIS OF STATEMENTS RECORDED OF CERTAIN EMPLOYEES IN RESPECT OF CAR, HELPERS AND ACS. OTHERWISE, NO MATERIAL / EVIDENCE WAS FOUND DURING THE CURSE OF SEARCH TO SAY THAT THE ASSESSEE EARNED UNDISCLOSED INCOME. THE ASSESSE E APPEARS TO HAVE NOT ANTICIPATED CALCULATION OF PERQUISITES, OTHERWISE, FOR SMALL AMOUNT, THE ASSESSEE IT(SS)A NO.03 & 04/2011 9 WOULD NOT HAVE INVITED THE PENALTY AGAINST HIM. SIN CE THE ASSESSEE HAS DISCLOSED HUGE AMOUNT IN THE RETURN FOR THE BLOCK PERIOD AS U NDISCLOSED INCOME AND ALSO DISCLOSED ADDITION INCOME TO COVER UP CONTINGENCIES AND BOTH THESE ADDITIONS HAVE BEEN MADE ON THE BASIS OF INFORMATION GIVEN BY THE ASSESSEE IN THE RETURN OF INCOME AND THE INFORMATION GIVEN BY EMPLOYEES OF TH E ASSESSEE, THEREFORE, THE DECISION OF CHENNAI BENCH IN THE CASE OF K. RAMAKRI SHNAN (HUF)(SUPRA) AND THE DECISION OF MUMBAI BENCH IN THE CASE OF KOATEX INFR ASTRUCTURE LTD. (SUPRA) WOULD APPLY IN FAVOUR OF THE ASSESSEE FOR CANCELLATION OF PENALTY. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ASSESSEE DID NOT CHALLENGE BOTH THE ABOVE ADDITIONS. WE ARE OF THE VIEW THAT LEVY OF PENALTY IS NOT JUSTIFI ED AND AS SUCH BY EXERCISING OUR DISCRETION IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, WE CANCEL THE LEVY OF PENALTY ON BOTH THESE ADDITIONS ON ACCOUNT OF PERQUISITES A ND UNREALIZED RENT. THE OTHER THREE ADDITIONS ON ACCOUNT OF RD ACCOUNT, THE UNDIS CLOSED JEWELLERY AND UNDISCLOSED INCOME WOULD BE SUFFICIENTLY COVERED BY THE DISCLOSURE OF RS.6,00,000/- FOR WHICH THE AO HAS ALREADY GIVEN BE NEFIT TO THE ASSESSEE. THEREFORE, THE LEVY OF PENALTY IS NOT JUSTIFIED IN THE MATTER. WE MAY FURTHER NOTE THAT THE AO IN THE AFORESAID CASE, DID NOT IMPOSE M INIMUM PENALTY, BUT HAS IMPOSED DOUBLE OF THE PENALTY, WHICH IS ALSO NOT JU STIFIED IN VIEW OF THE FACTS AND CIRCUMSTANCES NOTED ABOVE AND CONSIDERING THE NATUR E OF THE ADDITIONS, ON WHICH PENALTY HAS BEEN IMPOSED COUPLED WITH THE HUGE AMOU NT SURRENDERED BY THE ASSESSEE IN THE RETURN OF INCOME AT RS.53,00,000/- FOR THE PURPOSE OF COMPUTATION IT(SS)A NO.03 & 04/2011 10 OF UNDISCLOSED INCOME. CONSIDERING THE ABOVE DISCUS SION, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE LEVY OF PEN ALTY AND ALLOW APPEAL OF THE ASSESSEE. IN THE RETURN, THE APPEAL OF THE ASSESSEE IS ALLOWED. IT(SS)A NO. 04/AGRA/2011 (NIRMALA KAPUR) : 7. IN THIS CASE, THE PENALTY HAS BEEN IMPOSED ON TH E ADDITION OF RS.1,31,313/-, ON ACCOUNT OF UNREALIZED RENT IN RESPECT OF WHICH, THE ASSESSEE WAS ONE OF CO- OWNERS OF THE PROPERTY ALONG WITH SHRI MADHUKAR KAP UR. FOLLOWING THE ORDER IN THE CASE OF SHRI MADHUKAR KAPUR (SUPRA), WE SET ASI DE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE LEVY OF PENALTY. IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY