Smt Vallabhaneni Venkatramaiah (HUF), Vijayawada V. The DCIT, Central Circle, Vijayawada

ITSSA 5/VIZ/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8347 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2011
• Assessment Year: misc
• Appeal Filed On: 19-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Keywords: Unexplained cash credit; Unexplained expenditure; Gift; Search and seizure; Document seized; Block assessment; Documents seized
• Section: 143(3); 15

Judgement Text

IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER IT (SS) A NO. 1 /VIZAG/ 20 10 BLOCK PERIOD FROM 1.4.1996 TO 14.2.2003 SM T. VALLABHANENI HEMALATHA VIJAYAWADA VS. DCIT, CENTRAL CIRCLE VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.AAYPV 7411Q IT(SS)A NO.2/VIZAG/2010 BLOCK PERIOD FROM 1.4.1996 TO 14.2.2003 SRI VALLABHANENI BALAJI VIJAYAWADA VS. DCIT, CENTRAL CIRCLE VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.AABHV 0506R IT(SS)A NO.3/VIZAG/2010 BLOCK PERIOD FROM 1.4.1996 TO 14.2.2003 SMT. VALLABHANENI SANGEETHA VIJAYAWADA VS. DCIT, CENTRAL CIRCLE VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.AARPV 7512M IT(SS) A NO.4/VIZAG/2010 BLOCK PERIOD FROM 1.4.1996 TO 14.2.2003 SRI VALLABHANENI VENKATARAMAIAH, L/R OF LATE SMT. VALLABHANENI VENKATA SUBBAMMA, VIJAYAWADA VS. DCIT, CENTRAL CIRCLE VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.ABBPV 5448B IT(SS)A NO.5/VIZ AG/2010 BLOCK PERIOD FROM 1.4.1996 TO 14.2.2003 VALLABHANENI VENKATARAMAIAH (HUF) VIJAYAWADA VS. DCIT, CENTRAL CIRCLE VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.AABHV 0509A IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 2 APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI G. MALLIKARJUN A, SR. DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THESE APPEALS ARE PREFERRED ON BEHALF OF THE ASSES SEE AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) CONFIRMING THE PENA LTY LEVIED U/S 158 BFA(2) OF THE I.T. ACT. SINCE THESE APPEALS WERE HEARD TO GETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE HOWEVER PREFER TO ADJUDICATE THEM ONE AFTER THE OTH ER. THESE APPEALS CAME UP FOR HEARING ON 11.4.2011. THESE APPEALS ARE REQ UIRED TO BE ARGUED BY THE CIT(DR) BUT THE CIT(DR) WAS NOT PRESENT AS HE WAS O N STUDY TOUR. CIT (INCHARGE) OF THE TRIBUNAL MR. I. SURESH BABU DOES NOT APPEAR IN PERSON TO PRESENT THIS CASE FOR THE REASONS BEST KNOWN TO HIM . HE HOWEVER, FILED THE WRITTEN SUBMISSIONS THROUGH SENIOR D.R. MR. G. MALL IKARJUNA AND THE SAME ARE TAKEN ON RECORD. THEREFORE, NO ORAL ARGUMENT WAS R AISED ON BEHALF OF THE REVENUE. ACCORDINGLY, THE APPEAL WERE HEARD. IT(SS)A 1 OF 2010: 2. THROUGH THIS APPEAL THE ORDER OF THE CIT(A) IS A SSAILED FOR CONFIRMING THE PENALTY LEVIED BY THE A.O. U/S 158BFA(2) FOR AD DITIONS ON ACCOUNT OF NRI GIFT OF RS.21 LAKHS, DEPOSITS FROM FISH SALES OF RS .58,272/- AND ADDITION ON ACCOUNT OF PURCHASE OF SITE OF RS.4,45,000/-. 3. THE BRIEF FACTS BORNE OUT FROM THE RECORD ARE TH AT CONSEQUENT TO THE SEARCH AND SEIZURE OPERATION CONDUCTED ON 14.2.2003 , A NOTICE U/S 158BD READ WITH 158BC OF THE ACT WAS ISSUED TO THE ASSESS EE WHICH CULMINATED IN THE PASSING OF AN ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 158BD AND READ WITH SECTION 158BC OF THE ACT. 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(A) WHERE PARTIAL RELIEF WAS GRANTED. ON FURTHER APPEAL BY T HE ASSESSEE, THE TRIBUNAL HAS GIVEN A PARTIAL RELIEF VIDE ITS ORDER DATED 22. 12.2008. CONSEQUENT TO THE IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 3 TRIBUNALS ORDER, PENALTY PROCEEDINGS U/S 158BFA(2) WERE INITIATED ON THE ADDITIONS SUSTAINED BY THE TRIBUNAL ON ACCOUNT OF N RI GIFT, DEPOSIT FROM FISH SALES AND ON ACCOUNT OF PURCHASE OF SITE OF RS.21 L AKHS, RS.58,272/- AND RS.4,45,000/- RESPECTIVELY. THE ASSESSEE HAS FURNI SHED THE EXPLANATIONS OF THESE RECEIPTS BEFORE THE ASSESSING OFFICER DURING THE COURSE OF PENALTY PROCEEDINGS ALONG WITH THE DOCUMENTARY EVIDENCE BUT IT WAS NOT ACCEPTED BY THE A.O. AND HE LEVIED THE PENALTIES U/S 158BFA(2) ON ALL THESE ADDITIONS. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND FILED WRITTEN SUBMISSIONS EXPLAINING THE SOURCE AND NATURE OF REC EIPTS. THE EXPLANATION FURNISHED BY THE ASSESSEES IS EXTRACTED HEREUNDER F OR THE SAKE OF REFERENCE: ADDITION OF RS.4,65,000/- THE ADDITION IS REDUCED TO RS.4,45,000/- BY ITAT. A COPY OF THE RECEIPTS AND PAYMENTS ACCOUNT FOR THE ASSESSMENT YEAR IS SUBMITTED. IT CAN BE SEEN THEREFROM THAT THE AM OUNT OF RS.4,50,000/- WAS EXPLAINED IN THE SAID CASH FLOW STATEMENT. THE ASS ESSEE EXPLAINED ALL THE RECEIPTS. THE RECEIPTS ARE GIFTS RECEIVED FROM THE FOLLOWING: A) SMT. V. SANGEETHA - RS.2,70,000 B) SRI V. SURESH KUMAR - RS.1,75,000 C) FROM PARENTS - RS.2,50,000 D) R. KOTESWARA RAO - RS.4,00,140 E) RAMESH ATLURI - RS.4,00,140 THE HONBLE ITAT ACCEPTED THE RECEIVED FROM SRI R. KOTESWARA RAO AND SRI RAMESH ATLURI. HOWEVER, IF DID NOT ACCEPT THE GIFT S RECEIVED FROM SMT. V. SANGEETHA, SRI V. SURESH KUMAR AGGREGATING TO RS.4, 45,000/-. IT IS SUBMITTED THAT THE SAID DONORS ARE THE ASSESSEES ON FILE AND THE APPEALS OF THE SAID TWO PERSONS WERE ALSO BEFORE THE HONBLE I TAT. THE AMOUNTS PAID BY THEM WERE RECORDED IN THEIR RECEIPTS AND PAYMENT S ACCOUNT. IT IS PURELY BECAUSE OF DISBELIEF, THE SAID ADDITION WAS CONFIRM ED. WITH REGARD TO THE AVAILABILITY OF THE FUNDS, THE RECEIPTS AND PAYMENT S ACCOUNT OF SRI V. SURESH KUMAR AND SMT. V. SANGEETHA WOULD REVAL THAT THEY P OSSESS THE REQUIRED SOURCES. THE ADDITION WAS MADE ONLY BY DISBELIEVIN G THE EXPLANATION WITHOUT ANY EVIDENCE TO CONTROVERT THE EXPLANATION SUBMITTE D. THE SAID AMOUNT CANNOT BE CONSIDERED AS UNDISCLOSED INCOME. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER O UGHT NOT TO HAVE MADE ANY ADDITION. THE APPELLANT HUMBLY SUBMITS TH AT IN SO FAR AS THE CREDIT OF RS.4,45,000/- IS CONCERNED, SHE PROVED THE GIFTS BY PRODUCING NECESSARY EVIDENCE IN THE SHAPE OF RECEIPTS AND PAYMENTS ACCO UNT OF HERSELF AND THE DONORS. THEY RECORDED THE AMOUNTS PAID TO THE APPE LLANT HEREIN AND, THEREFORE, THE SAID AMOUNT COULD NOT HAVE BEEN TREA TED AS THE UNDISCLOSED INCOME. WHEN IT COMES TO LEVY OF PENALTY, THE APPE LLANT HUMBLY SUBMITS THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN HOLDING T HAT THE SAID ADDITION OF IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 4 RS.4,45,000/- WOULD ATTRACT PENALTY U/S 158BFA(2) O F THE I.T. ACT AS THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THIS AMOUNT REPR ESENTS THE INCOME OF THE APPELLANT. ADDITION OF RS.21 LAKHS: WITH REGARD TO THE AMOUNT OF RS.21 LAKHS, IT IS SUBMITTED THAT IT IS A GIFT RECEIVED FROM SRI K. LEELA KUMAR WHO IS IN USA. A LETTER OF CONFIRMATION WAS FILED BEFORE THE ASSES SING OFFICER. THE AMOUNT WAS DEPOSITED INTO THE BANK ACCOUNT AND THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAD NO INTENTION TO DISCLOSE THE SAID GIFT . THE AMOUNT SO RECEIVED THROUGH SB ACCOUNT WAS RS.7,16,170/-. THERE IS NO POSITIVE EVIDENCE TO SHOW THAT THE SAID AMOUNT OF RS.21 LAKHS REPRESENTS THE INCOME OF THE ASSESSEE. THEREFORE, IT IS SUBMITTED THAT THE SAID AMOUNT CANNOT BE CONSIDERED AS CONCEALED INCOME FOR LEVY OF PENALTY U/S 158BFA(2) OF THE I.T. ACT. IT IS FURTHER SUBMITTED THAT SEC.68 IS A DEEMING P ROVISION WHICH ALLOWS THE ASSESSING OFFICER TO MAKE THE ADDITION WHEN THE EXPLANATION OFFERED IS NOT ACCEPTABLE. HOWEVER, THE SAID DEEMING PROVISIO N WOULD NOT AUTOMATICALLY LEAD TO LEVY OF PENALTY UNLESS THERE IS EVIDENCE TO SHOW THAT THE SAID CASH CREDIT REPRESENTS THE INCOME OF THE ASSES SEE. IN THE CASE OF THE ASSESSEE, THE INCOME-TAX AUTHORITIES CONDUCTED SEAR CH AND SEIZURE OPERATIONS AND SEIZED VARIOUS DOCUMENTS. AT NO PLA CE, THE AUTHORITIES FOUND THAT THIS AMOUNT OF RS.21 LAKHS REPRESENTS THE INCO ME DERIVED BY THE ASSESSEE AND WAS INTRODUCED AS A GIFT. THEREFORE, THE ASSESSEE HUMBLY SUBMITS THAT THIS CANNOT BE CONSIDERED AS A CONCEAL ED INCOME FOR THE PURPOSES OF SEC.158BFA(2) OF THE I.T. ACT. ADDITION ON ACCOUNT OF CREDITS IN THE BANK ACCOUNT RS.58,272/- THE ASSESSING OFFICER FOUND THAT SOME DDS WERE DEP OSITED IN THE BANK ACCOUNT. ACCORDING TO THE ASSESSING OFFICER, THE C ASH DEPOSITS AMOUNTING TO RS.2,58,272/- WERE NOT PROPERLY EXPLAINED. THE ASSESSEE SUBMITS THAT THEY ARE NOT CASH DEPOSI TS BUT D.DS DEPOSITED. THEY REPRESENT THE AMOUNT RECEIVED ON S ALE OF FISH. THE ASSESSEE ALSO SUBMITTED COPIES OF THE DDS RECEIVED FROM WEST BENGAL WHERE THE FISH WAS SOLD WHICH CLEARLY INDICATES THAT THEY WERE RECEIVED TOWARDS SALE OF FISH. THE APPELLANT HUMBLY SUBMITS THAT THERE IS NO OTHE R BUSINESS ACTIVITY FOR HER. ALL THE AMOUNTS HAVE BEEN RECEIVED ONLY A GAINST SALE OF FISH. THE INCOME FROM FISH CULTIVATION IS OFFERED ON ESTIMATE BASIS. THE CREDITS IN THE BANK ACCOUNT SHOULD NOT HAVE BEEN ADDED BY THE ASSE SSING OFFICER SEPARATELY. THE APPELLANT ALSO SUBMITS THAT THE AM OUNT OF RS.58,272/- WAS RECEIVED THROUGH DD FROM BENGAL AND ALL THE DDS REC EIVED FROM BENGAL ARE ONLY TOWARDS SALE OF FISH. IT IS ALSO SUBMITTED TH AT WHILE MAKING THE ASSESSMENT IN THE CASE OF SRI VALLABHANENI VENKATRA MAIAH IT IS OBSERVED THAT ABOUT RS.4,96,86,000/- TURNOVER WAS EFFECTED BY ALL THE FAMILY MEMBERS PUT TOGETHER DURING THE PREVIOUS YEAR. IF THESE FACTOR S ARE TAKEN INTO ACCOUNT, THE AMOUNT OF RS.58,272/- SHOULD NOT HAVE BEEN TREA TED AS UNDISCLOSED IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 5 INCOME. HOWEVER, EVEN IF SUCH AMOUNT IS TREATED AS UNDISCLOSED INCOME BY DISBELIEVING THE EXPLANATION SUBMITTED, THE SAID AM OUNT SHOULD NOT HAVE BEEN TREATED AS THE UNDISCLOSED INCOME FOR THE PURP OSE OF LEVY OF PENALTY U/S 158BFA(2) OF THE I.T. ACT. THE APPELLANT HUMBLY SU BMITS THAT SIMPLY BECAUSE THE ADDITION WAS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE HONBLE TRIBUNAL, THE SAID AMOUNT WOULD BE LIABLE FOR LEVY OF PENALTY U/S 158BFA(2). THE ASSESSING OFFICER HAS TO PROVE POSITIVELY THAT THIS REPRESENTS THE INCOME OF THE APPELLANT. IN THE CASE OF THE APPELLANT, TH E ASSESSING OFFICER DISBELIEVED THE EXPLANATION OFFERED AND MADE THE AD DITION. THEREFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN CONSIDERING T HIS AMOUNT FOR LEVY OF PENALTY. 5. THE CIT(A) EXAMINED THE EXPLANATIONS OF THE ASSE SSEES BUT WAS NOT CONVINCED WITH IT AND HE CONFIRMED THE PENALTY. 6. NOW THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND REITERATED ITS CONTENTIONS AS RAISED BEFORE THE CIT (A). THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT DURING THE APPELLATE PROCEEDINGS AGAINST THE ASSESSMENT ORDERS, ASSESSEE HAS EXPLAIN ED SOURCE OF RECEIPTS OF VARIOUS AMOUNTS AND IT WAS ACCEPTED PARTLY BY THE T RIBUNAL. THE TRIBUNAL DID NOT ACCEPT THE GIFTS RECEIVED FROM SMT. V. SANGEETH A AND SRI V. SURESH KUMAR AGGREGATING TO RS.4,45,000/-. IN THIS REGARD , IT WAS SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS AGAINST THE ASS ESSMENT ORDER THAT THE DONORS WERE ASSESSED TO TAX AND THEY HAVE ALREADY D ECLARED THE GIFT OF THIS AMOUNT TO THE ASSESSEES. BUT THEIR STATEMENTS WERE DISBELIEVED BY THE TRIBUNAL AND CONFIRMED THE ADDITIONS. HE HAS FURNI SHED THIS EXPLANATION DURING THE COURSE OF PENALTY PROCEEDINGS BUT THE A. O. HAS NOT MADE ANY VERIFICATION IN THIS REGARD AND LEVIED THE PENALTY RELYING UPON THE ORDER OF THE TRIBUNAL IN QUANTUM WITHOUT REALIZING THE LEGAL POS ITION THAT PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS AND THE A.O . IS REQUIRED TO MAKE INDEPENDENT ENQUIRY IF ANY EXPLANATIONS ARE PUT FOR TH BEFORE HIM. BUT HE DID NOT DO SO. 7. WITH REGARD TO THE PENALTY ON ADDITION OF RS.21 LAKHS IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT THIS AMOUNT WAS RECE IVED AS A GIFT FROM SHRI K. LEELA KUMAR WHO IS IN USA AND CONFIRMATION WAS FILE D BEFORE THE A.O. THE AMOUNT WAS RECEIVED THROUGH A BANKING CHANNEL. THE REFORE, THE EXPLANATION IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 6 OF THE ASSESSEE SHOULD NOT BE DISBELIEVED. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT BEFORE IMPOSING THE PENALTY, THE ONUS IS UPON THE REVENUE TO MAKE OUT A CASE THAT THERE WAS A CONCEAL MENT OF INCOME ON THE PART OF THE ASSESSEES. ONCE THE ASSESSEE HAS DECLA RED THE RECEIPT OF GIFT AND THE RECEIPT WAS THROUGH A BANKING CHANNEL, IT CANNO T BE CALLED THAT ASSESSEE HAD AN INTENTION TO CONCEAL THE RECEIPT OF SAID GIF T. THEREFORE, PENALTY U/S 158BFA IS NOT LEVIABLE. 8. WITH REGARD TO THE ADDITION OF CREDIT IN THE BAN K ACCOUNT AT RS.58,272/-, THE LD. COUNSEL FOR THE ASSESSEE HAS S UBMITTED THAT IT WAS NOT DEPOSITED IN CASH. IT WAS THE D.D. DEPOSITED IN TH E BANK AND THE D.D. REPRESENTS THE AMOUNT RECEIVED ON SALE OF FISH. TH ESE D.DS WERE RECEIVED FROM WEST BENGAL WHERE THE FISH WAS SOLD, THEREFORE , THE EXPLANATION OF THE ASSESSEE SHOULD NOT OUTRIGHTLY BE REJECTED WITHOUT VERIFYING THE FACTS. THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE A SSESSEES SIMPLY RELYING UPON THE ORDER OF THE TRIBUNAL CONFIRMING THE ADDIT IONS. SINCE THE PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS, THE EXPLAN ATIONS FURNISHED BY THE ASSESSEES REQUIRE AN INDEPENDENT ADJUDICATION. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED OUR ATTENTION TO THE LEGA L PROPOSITION THAT FOR NON- ACCEPTANCE OF THE EXPLANATIONS OF THE ASSESSEE, AN ADDITION CAN BE MADE BUT PENALTY CANNOT BE LEVIED UNLESS AND UNTIL IT IS PRO VED THAT EXPLANATION FURNISHED BY THE ASSESSEE IS TOTALLY FALSE. SINCE THE ASSESSEE HAS FURNISHED ALL PLAUSIBLE EXPLANATIONS IN RESPECT OF THESE ADDITION S AND THE EXPLANATIONS WERE NOT EXAMINED BY THE A.O., THE PENALTY LEVIED U/S 15 8BFA IS NOT SUSTAINABLE UNLESS AND UNTIL IT IS BROUGHT ON RECORD BY THE A.O . BY MAKING NECESSARY INVESTIGATION THAT THE EXPLANATIONS FURNISHED BY TH E ASSESSEE ARE FALSE. HE HAS ALSO PLACED A RELIANCE UPON THE FOLLOWING JUDGE MENTS IN SUPPORT OF HIS CONTENTION: 1. CIT VS. DODSAL LTD. 312 ITR 112 2. CIT VS. SATYENDRA KUMAR DOSI AND ANOTHER 315 IT R 172 3. ACIT VS. SHANTI KUMAR CHABRA 121 TTJ 985 4. SMT. BITOLI DEVI VS. ACIT 110 TTJ 735 5. GANDHI SERVICE STATION VS. ACIT 100 TTJ 1143 IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 7 6. DR. HAKEEM S.A. SYED SATHAR VS. ACIT 120 ITD 1 7. SMT. MALA DAYANIDHI VS. DCIT 91 ITD 46 8. DCIT VS. COTEX INFRASTRUCTURE LTD. 100 ITD 510 9. CH. SURESH REDDY VS. ACIT 120 ITD 428. 9. ON BEHALF OF THE REVENUE ONLY WRITTEN SUBMISSION S WERE FILED AND NO ARGUMENTS WERE ADVANCED. 10. HAVING CAREFULLY GIVEN A THOUGHTFUL CONSIDERATI ON TO THE ORDERS OF AUTHORITIES BELOW AND DOCUMENTS PLACED ON RECORD AN D JUDGEMENTS REFERRED TO BY THE PARTIES IN THE LIGHT OF RIVAL SUBMISSIONS WE FIND THAT THE PENALTY WAS LEVIED WITH RESPECT TO THE 3 ADDITIONS I.E. (1) ADD ITION OF RECEIPT OF RS.4,50,000/- FROM SMT. V. SANGEETHA AND SHRI V. SU RESH KUMAR, (2) ADDITION OF RECEIPT OF RS.21 LAKHS AS GIFT FROM K. LEELA KUMAR AND (3) ON ACCOUNT OF DEPOSIT IN THE BANK OF RS.58,272/- FROM FISH SALES. THESE ADDITIONS WERE CONFIRMED BY THE TRIBUNALS BY NOT AC CEPTING THE EXPLANATION FURNISHED BY THE ASSESSEES. SINCE THE PENALTY PROC EEDINGS ARE INDEPENDENT PROCEEDINGS, ALL THESE EXPLANATIONS REQUIRED TO BE RE-EXAMINED BY THE REVENUE AUTHORITIES AS WELL AS BY THE APPELLATE AUT HORITIES, IN AS MUCH AS IT IS A SETTLED POSITION OF LAW THAT FOR NON-ACCEPTANCE O F THE EXPLANATIONS FURNISHED BY THE ASSESSEE ADDITION CAN BE SUSTAINED BUT PENALTY CANNOT BE LEVIED. BEFORE CONFIRMING THE PENALTY LEVIED BY THE LOWER AUTHORITIES, IT IS THE DUTY OF THE TRIBUNAL TO EXAMINE THE EXPLANATIONS FU RNISHED BY THE ASSESSEE WITH REGARD TO THE ABOVE 3 ADDITIONS INDEPENDENTLY WITHOUT BEING INFLUENCED BY THE FINDINGS GIVEN IN QUANTUM APPEALS. IF THE E XPLANATIONS FURNISHED BY THE ASSESSEE APPEARS TO BE PLAUSIBLE, THEN THE PENA LTY U/S 158BFA SHOULD NOT BE LEVIED BECAUSE IT CAN ONLY BE LEVIED IF IT IS PR OVED THAT THE EXPLANATIONS FURNISHED BY THE ASSESSEE ARE TOTALLY FALSE. WE TH EREFORE EXAMINE THE EACH AND EVERY EXPLANATION FURNISHED BY THE ASSESSEES. 11. WITH REGARD TO THE ADDITION OF RS.4,45,000/- IT IS EXPLAINED BY THE ASSESSEE THAT THE AMOUNT OF RS.4,45,000/- WAS RECEI VED FROM SMT. V. SANGEETHA AND SHRI V. SURESH KUMAR AS A GIFT (RS.2, 70,000/- FROM V. IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 8 SANGEETHA AND RS.1,75,000/- FROM V. SURESH KUMAR). IT WAS CONTENDED THAT BOTH THE DONORS WERE ASSESSED TO TAX AND THEIR APPE ALS WERE ALSO PENDING BEFORE THE TRIBUNAL. THE AMOUNT WAS RECEIVED THROU GH BANKING CHANNELS. ONCE THE AMOUNT IS RECEIVED THROUGH BANKING CHANNEL S IT SHOULD NOT BE PRESUMED THAT THE ASSESSEE HAD AN INTENTION TO CONC EAL THE RECEIPT OF THE SAID AMOUNT. SO FAR AS ISSUE OF GENUINENESS IS CON CERNED, ASSESSING OFFICER WAS REQUIRED TO EXAMINE THE DONORS AND THEIR CREDIT WORTHINESS BEFORE CONCLUDING THAT THE EXPLANATIONS FURNISHED BY THE A SSESSEE IS FALSE. BUT THE ASSESSING OFFICER DID NOT UNDERTAKE THIS EXERCISE E ITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR IN THE PENALTY PROCEEDING S. SINCE THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO ESTABLISH THA T THE EXPLANATIONS FURNISHED BY THE ASSESSEE WITH REGARD TO THE SOURCE OF RECEIPTS IS TOTALLY FALSE IT IS NOT PROPER TO HOLD THAT PENALTY U/S 158BFA IS LEVIABLE AGAINST THE ASSESSEES. 12. SO FAR AS ADDITION OF RS.21 LAKHS IS CONCERNED, IT WAS STATED BY THE ASSESSEE THAT THIS AMOUNT OF RS.21 LAKHS WAS RECEIV ED AS GIFT FROM SHRI K. LEELA KUMAR WHO IS IN USA. THE CONFIRMATION WAS FI LED BEFORE THE A.O. THIS AMOUNT WAS ALSO RECEIVED THROUGH THE BANKING CHANNE LS. THEREFORE, AGAIN IT CANNOT BE PRESUMED THAT THE ASSESSEE HAD NO INTENTI ON TO CONCEAL THE SAID GIFT. IF THE ASSESSING OFFICER HAS DOUBTED THIS GI FT, HE HAD TO MAKE SOME MORE INVESTIGATION TO ESTABLISH THAT THE EXPLANATIO N FURNISHED BY THE ASSESSEE IS TOTALLY FALSE. SINCE THE ASSESSEE HAS NOT DONE ANYTHING IN THIS REGARD, THE PENALTY LEVIED BY HIM U/S 158BFA DOES NOT APPEAR TO BE REASONABLE. WITH REGARD TO THE LAST ADDITION OF RS.58,272/- RECEIVED ON ACCOUNT OF SALE OF FISH THE ASSESSEE HAS FURNISHED THE EXPLANATIONS IN THE BEGINNING THAT IT WAS NOT A CASH DEPOSIT IN THE BANK. THIS AMOUNT WAS RECEIVED THROUGH D.DS FROM WEST BENGAL AS A SALE PROCEEDS OF THE SALE OF FISH. THI S EXPLANATION WAS ALSO NOT ACCEPTED BY THE A.O. WHILE MAKING AN ADDITION. THE ASSESSEE REITERATED THIS EXPLANATION DURING THE COURSE OF PENALTY PROCEEDING S BUT THE ASSESSING OFFICER DID NOT MAKE ANY VERIFICATION OR ENQUIRY ON THIS ISSUE BEFORE HOLDING THAT THE EXPLANATION FURNISHED BY THE ASSESSEE IS F ALSE. WITHOUT ESTABLISHING IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 9 THAT THE EXPLANATIONS OF THE ASSESSEES ARE TOTALLY FALSE THE PENALTY U/S 158BFA SHOULD NOT BE LEVIABLE. 13. ONCE THE ASSESSEE FURNISHES SOME EXPLANATION WI TH REGARD TO THE PARTICULAR ENTRIES IT IS FOR THE REVENUE TO ACCEPT THAT EXPLANATIONS ARE NOT AND HAVING NOT ACCEPTED THE EXPLANATION THE REVENUE IS AT LIBERTY TO MAKE AN ADDITION BUT WHILE THE ISSUE OF IMPOSITION OF PENAL TY COMES THE REVENUE IS REQUIRED TO EXAMINE THE EXPLANATIONS INDEPENDENTLY AND LEVY THE PENALTY ONLY IN THOSE CASES WHERE THE EXPLANATION FURNISHED BY T HE ASSESEE IS PROVED TO BE FALSE. WE HAVE ALSO EXAMINED THE CASE REFERRED BY THE ASSESSEES IN THE CASE OF DINESH B. THAKKAR VS. ACIT 5 ITR (TRIB) 12 0 (AHD) IN WHICH IT WAS HELD THAT WHERE THE ASSESSEE HAD OFFERED AN EXPLANA TION AND HE HAS SUBSTANTIATED BY WAY OF DOCUMENTARY EVIDENCE IT CAN NOT BE HELD THAT EXPLANATION OF THE ASSESSEE IS NOT BONAFIDE AND ALS O WHERE THERE WAS NO EVIDENCE TO PROVE THAT COMPUTATION OF INCOME HAS BE EN WITHHELD BY THE ASSESSEE FROM THE TAX AUTHORITIES, THERE IS NO CASE FOR LEVY OF PENALTY U/S 271(1)(C) ON EITHER COUNT. IN THE CASE OF GANDHI S ERVICE STATION VS. ACIT 100 TTJ 1143 (AHD) THE TRIBUNAL HAS FURTHER HELD TH AT PENALTY PROCEEDINGS U/S 158BFA(2) ARE AKIN TO SECTION 271(1)(C) PROCEED INGS AND BURDEN IS ON THE DEPARTMENT TO PROVE FACTUM OF CONCEALMENT. THE ASS ESSEE HAVING EXPLAINED ENTRIES IN THE BOOKS AND FILED CONFIRMATION OF CRED ITORS, BURDEN ON ASSESSEE IS DISCHARGED AND PENALTY IMPOSED U/S 158BFA ONLY BY R EFERRING THE EXPLANATION OF THE ASSESSEE ON POSSIBILITIES AND ASSUMPTIONS WI THOUT INDEPENDENT INVESTIGATION COULD NOT BE SUSTAINED. IT WAS ALSO HELD IN THIS CASE THAT QUANTUM AND PENALTY PROCEEDINGS ARE DISTINGUISHED A ND SEPARATE AND WHILE DECIDING THE ISSUE OF PENALTY FACTS CAN BE RECONSID ERED. 14. IN THE CASE OF DR. HAKIM S.A. SYED SATHAR VS. A CIT (SUPRA) THE TRIBUNAL HAS HELD THAT IN THE SCHEME OF THE ACT THE PROCEEDING FOR IMPOSITION OF PENALTY, EMANATING FROM PROCEEDINGS OF ASSESSMEN T ARE ESSENTIALLY INDEPENDENT AND A SEPARATE ASPECT OF THE PROCEEDING S WHICH CLOSELY FOLLOW THE ASSESSMENT PROCEEDINGS. FINDINGS GIVEN IN ASSE SSMENT PROCEEDINGS ARE CERTAINLY RELEVANT AND HAVE PROBABLE VALUE BUT SUCH FINDINGS ARE MATERIAL IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 10 ALONE MAY NOT JUSTIFY THE IMPOSITION OF PENALTY BEC AUSE THE CONSIDERATION THAT ARISE IN PENALTY PROCEEDINGS ARE DIFFERENT FROM THO SE THAT ARISE IN ASSESSMENT PROCEEDINGS. THE FINDINGS RECORDED IN THE ASSESSME NT ORDER CONSTITUTE GOOD EVIDENCE IN THE PENALTY PROCEEDINGS BUT THOSE FINDI NGS CANNOT BE RECORDED AS A CONCLUSIVE FOR THE PURPOSE OF PENALTY PROCEEDINGS . 15. IN THE CASE OF ACIT VS. SHANTI KUMAR CHABARA (S UPRA) THE TRIBUNAL HAS HELD THAT ON ADDITIONS IN BLOCK ASSESSMENT HAVING B EEN MADE ON ESTIMATE BASIS NO PENALTY U/S 158BFA(2) WOULD BE IMPOSED IN THE ABSENCE OF ANY POSITIVE FINDINGS REGARDING CONCEALMENT OR SUPPRESS ION OF INCOME ON THE PART OF THE ASSESSEE. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DODSAL LTD. (SUPRA) HAS ALSO HELD THAT THE LEVY OF PENALTY U/S 158 BFA(2) IS DIRECTORY AND NOT MANDATORY. THEREFORE, IN THE PEN ALTY PROCEEDINGS EXPLANATION OF THE ASSESSEES REQUIRED TO BE INDEPEN DENTLY EXAMINED. 16. HAVING CAREFULLY EXAMINED THE FACTS OF THE CASE IN THE LIGHT OF PROPOSITION LAID DOWN BY THE AFORESAID JUDICIAL PRO NOUNCEMENTS, WE ARE OF THE VIEW THAT THE ASSESSEE HAS FURNISHED THE PLAUSIBLE EXPLANATIONS BEFORE THE REVENUE AUTHORITIES DURING THE COURSE OF PENALTY PR OCEEDINGS. BUT THE ASSESSING OFFICER DID NOT MAKE OUT ANY CASE BY BRIN GING SOME EVIDENCE THAT THE EXPLANATION FURNISHED BY THE ASSESSEE ARE TOTAL LY FALSE. NO DOUBT BY REJECTING THE EXPLANATION OF THE ASSESSEES, THE ADD ITIONS WERE CONFIRMED BY THE APPELLATE AUTHORITIES. IT IS A SETTLED POSITIO N OF LAW THAT FOR NON- ACCEPTANCE OF AN EXPLANATION, ADDITION CAN BE MADE BUT PENALTY EITHER U/S 158BFA(2) OR 271(1)(C) SHOULD NOT BE LEVIED, BECAUS E BEFORE LEVYING THE PENALTY THE ONUS IS UPON THE REVENUE TO BRING SOMET HING ON RECORD TO PROVE THAT THE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOM E OR FURNISHING OF INACCURATE PARTICULARS. IN THE INSTANT CASE SINCE THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO DISPROVE THE EXPLANATIONS FUR NISHED BY THE ASSESSEE, WE ARE OF THE VIEW THAT THE PENALTY U/S 159BFA(2) W AS WRONGLY LEVIED. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) A ND DELETE THE PENALTY. IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 11 IT(SS)A NO.2 OF 2010:- 17. THROUGH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE PENALTY OF RS.6,643/- LEVIED U/S 158BFA(2) BY THE ASSESSING OF FICER IN RESPECT OF THE ADDITION OF RS.10,545/- TOWARDS UNEXPLAINED CREDIT ENTRIES IN RESPECT OF DE OILED BRAM (DOB) PURCHASES. IN THIS REGARD, WE HAV E CAREFULLY PERUSED THE ORDER OF THE LOWER AUTHORITIES AND WE FIND THAT IN THE ASSESSMENT ORDER ADDITIONS WERE MADE ON DIFFERENT ISSUES BUT THE ADD ITIONS FINALLY SUSTAINED BY THE TRIBUNAL IS ON ACCOUNT OF CREDIT ENTRIES IN DOB FOR AN AMOUNT OF RS.10,545/-. ON THIS AMOUNT, THE PENALTY WAS INITI ATED U/S 158BFA OF THE ACT. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS EXPLAINED THAT IT WAS A PARTNER IN BALAJI RAW & PAR BOILED RI CE MILLS WHICH CARRIES ON THE BUSINESS OF RICE MILLING. THE FEED REQUIRED FOR FI SH CULTURE IS DE OILED BRAM (DOB). THE DOB IS MANUFACTURED FROM BRAN. THE BRA N OBTAINED FROM THE RICE MILLING IS PROCESSED BY BALAJI AGRO OILS LIMIT ED OF WHICH ASSESSEE IS ONE OF THE DIRECTOR. FOR THE PURPOSE OF FISH CULTURE, THE ASSESSEE PURCHASED DOB ON CREDIT FROM BALAJI AGRO OILS LIMITED. THE SAME WERE RECORDED IN THE RECEIPTS AND PAYMENTS ACCOUNTS SHOWING THE SAME AS A CREDIT PURCHASE. THE ASSESSEE DID NOT MAINTAIN THE BOOKS OF ACCOUNTS FOR ANY OTHER BUSINESS ACTIVITY CARRIED ON, THEREFORE, SUCH CREDIT ENTRIES HAVE NOT BEEN MADE IN THE BOOKS OF ACCOUNTS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE PREPARED RECEIPT AND PAYMENTS ACCOUNTS AND EXPLAINED THAT AMOUNT OF RS.10,545/- REPRESENTS THE CREDIT ENTRIES ON ACC OUNT OF DOB. THE A.O. DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE AND MAD E THE ADDITION OF THE SAME. IT WAS FURTHER SUBMITTED BEFORE THE A.O. IN PENALTY PROCEEDINGS THAT IT IS AN ADDITION MADE ON PRESUMPTION AND IT IS BASED ON ASSESSEES RECEIPTS AND PAYMENTS ACCOUNT. THERE IS NO DATA IN THE SEIZ ED DOCUMENT TO SHOW THAT RS.10,545/- REPRESENTS THE UNDISCLOSED INCOME OF THE ASSESSEES. THEREFORE, NO PENALTY U/S 158BFA(2) CAN BE INITIATE D. THE EXPLANATIONS OF THE ASSESSEES WERE NOT ACCEPTED BY THE REVENUE AND THE A.O. LEVIED THE PENALTY U/S 158 BFA(2) OF THE ACT. IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 12 18. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT (A) BUT DID NOT FIND FAVOUR WITH HIM. 19. NOW THE ASSESSEE IS BEFORE US AND REITERATED IT S SUBMISSIONS. ON A CAREFUL PERUSAL OF THE ORDER OF THE LOWER AUTHORITI ES AND THE JUDGEMENTS REFERRED TO BY THE PARTIES DURING THE COURSE OF HEA RING OF THE APPEAL, WE FIND THAT THOUGH THE ASSESSEE HAS EXPLAINED THE CREDIT E NTRIES OF RS.10,545/- BUT IT WAS NOT VERIFIED BY THE A.O. BY MAKING A NECESSA RY ENQUIRY. HE HAS SIMPLY DISALLOWED THE CLAIM OF THE ASSESSEES BY NOT ACCEPT ING THE EXPLANATION OF THE ASSESSEES. BUT FOR THESE REASONS, THE PENALTY U/S 158BFA(2) CANNOT BE MADE. WE HAVE ALREADY EXAMINED THIS ISSUE IN THE F OREGOING APPEALS WHERE WE HAVE TAKEN A VIEW THAT UNTIL AND UNLESS IT IS PR OVED THAT EXPLANATIONS FURNISHED BY THE ASSESSEE IS FALSE PENALTY U/S 158B FA(2) CANNOT BE LEVIED. FOR NON-ACCEPTANCE OF EXPLANATIONS OF THE ASSESSEE, ADDITION CAN BE MADE BUT PENALTY U/S 158BFA(2) CANNOT BE LEVIED. WE THE REFORE, FIND NO MERIT IN THE PENALTY AND WE SET ASIDE THE ORDER OF THE CIT(A ) AND DELETE THE SAME. IT(SS)A 3 OF 2010: 20. THROUGH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE PENALTY LEVIED U/S 158BFA ON ADDITIONS MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON FISH CULTIVATION AND UNEXPLAINED CREDIT ENTRIES IN THE B ANK. 21. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD AR E THAT THE A.O. HAS MADE AN ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDIT URE ON FISH CULTIVATION AT RS.23,75,000/- AND ADDITION ON ACCOUNT OF CREDIT EN TRIES CLAIMED AS FISH SALES AT RS.2 LAKHS BUT IN APPEAL THE TRIBUNAL REDUCED TH E ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON FISH CULTIVATION AT RS.1 2,50,000/- AND CONFIRMED THE ADDITION MADE ON ACCOUNT OF CREDIT ENTRIES CLAI MED AS FISH SALE. CONSEQUENT TO THE ORDER OF THE TRIBUNAL, THE ASSESS ING OFFICER HAS INITIATED THE PENALTY PROCEEDINGS U/S 158BFA(2) OF THE I.T. A CT. IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 13 22. THE ASSESSEE HAS EXPLAINED DURING THE COURSE OF PENALTY PROCEEDINGS THAT THE ASSESSEE IS AN INDIVIDUAL AND THE REVENUE HAS CONDUCTED THE SEARCH AT THE PREMISES OF SHRI V. VENKATA RAMAIAH, FATHER- IN-LAW OF THE ASSESSEE ON 14.2.2003 BUT NO INCRIMINATING MATERIAL WAS FOUND D URING THE COURSE OF SEARCH WITH RESPECT TO THE ASSESSEE. THE A.O. HOWE VER ISSUED A NOTICE U/S 158BD AND COMPLETED THE ASSESSMENT U/S 143(3) READ WITH SECTION 158BD AND READ WITH SECTION 158BC OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED RECEIPT AND PAY MENT ACCOUNTS, STATEMENT OF AFFAIRS AS NO REGULAR BOOKS OF ACCOUNTS HAVE BEE N MAINTAINED, PREPARED WITH REFERENCE TO THE RETURNS OF INCOME FILED AND D ATA GATHERED FROM THE ANNEXURES TO SUCH RETURNS OF INCOME. THE ASSESSEE ALSO RELIED ON THE BANK STATEMENTS IN RESPECT OF SUCH TRANSACTIONS AND ALSO TAKEN INTO CONSIDERATION VARIOUS TRANSACTIONS RELATING TO PARTNERSHIP FIRM I N WHICH THE ASSESSEE IS A PARTNER. IT WAS ALSO EXPLAINED THAT FISH TANKS WER E TAKEN ON LEASE AND CARRIED ON THE BUSINESS OF AQUA CULTURE. THE FEED IS MAIN MATERIAL REQUIRED IN THE PROCESS OF SUCH BUSINESS. THE FEED FOR FISH IS RICE BRAN WHICH IS SUPPLIED BY THE PARTNERSHIP FIRM IN WHICH THE ASSESSEE IS A PARTNER. THE SAME WERE BILLED LATER AND AMOUNTS WERE PAID LATER WHEN THE S ALE CONSIDERATION WAS REALIZED. NOT MUCH OF EXPENDITURE IS INVOLVED AND THE EXPENSES REQUIRED FOR THE MAINTENANCE OF THE FISH TANK IS FROM OUT OF THE VARIOUS FUNDS AVAILABLE. THE ADDITIONS WERE MADE BY THE A.O. ONLY ON ESTIMAT E BASIS OR ON PRESUMPTIONS AS THERE IS NO MATERIAL IN THE SEIZED DOCUMENT TO SHOW THAT AMOUNT ADDED REPRESENTS THE UNDISCLOSED INCOME OF T HE ASSESSEES. MOREOVER, THE ESTIMATION MADE BY THE A.O. ON ACCOUN T OF UNEXPLAINED EXPENDITURE ON FISH SALES WAS ALSO REDUCED TO RS.12 .50 LAKHS BY THE TRIBUNAL. THEREFORE, NO CONCLUSIVE EVIDENCE WAS FOUND DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY THE A.O. FOR MAKING THE S AID ADDITION. 23. WITH REGARD TO THE ADDITION OF RS.2 LAKHS ON AC COUNT OF CREDIT ENTRIES IN THE BANK ACCOUNT IT WAS STATED BY THE ASSESSEE THAT THIS AMOUNT WAS DEPOSITED THROUGH D.DS RECEIVED BY THE ASSESSEE AS SALE PROCEEDS ON SALE OF FISH FROM WEST BENGAL. THIS ASPECT WAS ALSO NOT EX AMINED BY THE A.O. AND THEY MADE THE ADDITIONS WHICH WAS LATER ON CONFIRME D BY THE TRIBUNAL. THE IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 14 ASSESSING OFFICER HAS ALSO LEVIED THE PENALTY ON TH ESE AFORESAID ADDITIONS WITHOUT HAVING EXAMINED THE EXPLANATION OF THE ASSE SSEES INDEPENDENTLY. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) BUT DID NOT FIND FAVOUR WITH HIM. 24. NOW THE ASSESSEE IS BEFORE US AND CONTENDED THA T THE ADDITIONS WERE MADE ON THE BASIS OF ESTIMATION AND PRESUMPTIONS AS IT IS EVIDENT FROM THE ORDER OF THE TRIBUNAL WHEREBY THE TRIBUNAL HAS REDU CED UNEXPLAINED EXPENDITURE FROM RS.23,75,000/- TO RS.12,50,000/-. THEREFORE, THE PENALTY U/S 158BFA CANNOT BE LEVIED. WITH REGARD TO THE AD DITION OF RS.2 LAKHS, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THI S AMOUNT WAS RECEIVED AS A SALE PROCEEDS OF FISH FROM WEST BENGAL THROUGH D. D. AND THE REVENUE HAS NOT BROUGHT OUT ANYTHING ON RECORD TO FALSIFY THE E XPLANATIONS OF THE ASSESSEES. THEREFORE, NO PENALTY U/S 158BFA IS LEV IABLE. 25. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE WRITTEN SUBMISSIONS FILED BY THE REVENUE AND THE ORDERS OF AUTHORITIES BELOW AND JUDGEMENTS REFERRED TO BY THE PARTIES AND WE FIND T HAT THESE ADDITIONS WERE MADE WHILE FRAMING THE ASSESSMENT U/S 143(3) READ W ITH SECTION 158BD OF THE ACT. THE ADDITIONS WERE MADE BY THE A.O. ON AC COUNT OF UNEXPLAINED EXPENDITURE IN FISH CULTURE, WHICH WAS LATER ON RED UCED BY THE TRIBUNAL SUBSTANTIALLY THAT TOO ON ESTIMATION BASIS. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS FURNISHED THE EXPLANA TIONS BUT THESE EXPLANATIONS WERE NOT INDEPENDENTLY EXAMINED BY THE REVENUE AUTHORITIES. THEY HAVE SIMPLY FOLLOWED THE FINDINGS GIVEN BY THE APPELLATE AUTHORITIES IN QUANTUM APPEAL. WHEREAS, THE PENALTY PROCEEDINGS A RE INDEPENDENT PROCEEDINGS AND THE EXPLANATIONS FURNISHED BY THE A SSESSEE REQUIRES TO BE EXAMINED INDEPENDENTLY. WHILE LEVYING THE PENALTY U/S 158BFA, REVENUE HAS NOT BROUGHT OUT ANYTHING ON RECORD TO ESTABLISH THA T THE EXPLANATIONS FURNISHED BY THE ASSESSEES ARE TOTALLY FALSE. IF T HE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEES, H E SHOULD HAVE MADE A NECESSARY VERIFICATION FROM THE PARTNERSHIP FIRM FR OM WHOM THE FEEDS WERE PURCHASED. BUT NOTHING WAS DONE. THEREFORE, WE AR E OF THE VIEW THAT FOR IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 15 NON-ACCEPTANCE OF THE EXPLANATION OF THE ASSESSEES, ADDITION CAN BE MADE BUT PENALTY U/S 158BFA IS NOT PERMISSIBLE. 26. SO FAR AS PENALTY WITH REGARD TO THE ADDITION O F RS.2 LAKHS ON ACCOUNT OF CREDIT ENTRIES IN BANK ACCOUNT IS CONCERNED, WE FIND THAT ASSESSEE HAS EXPLAINED THAT HE HAS RECEIVED THIS AMOUNT THROUGH D.D. AS A SALE PROCEEDS FROM WEST BENGAL ON SALE OF FISHES BUT THIS EXPLANA TION WAS NOT INDEPENDENTLY EXAMINED BY THE A.O. AND RELYING UPON THE QUANTUM ORDER OF THE TRIBUNAL, HE IMPOSED THE PENALTY, WHICH IS NOT PROPER ACCORDING TO US. IF THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EX PLANATIONS OF THE ASSESSEE, HE SHOULD HAVE MADE FURTHER INVESTIGATION TO ESTABLISH THAT THE EXPLANATIONS FURNISHED BY THE ASSESSEES ARE FALSE B EFORE LEVYING THE PENALTY U/S 158BFA(2) OF THE I.T. ACT. WE THEREFORE OF THE VIEW THAT IN BOTH THE ADDITIONS, PENALTY U/S 158BFA(2) IS NOT LEVIABLE. WE THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY. IT(SS)A NO.4 OF 2010: 27. IN THIS APPEAL THE REVENUE HAS ASSAILED THE ORD ER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED U/S 158BFA(2) FOR AN ADDITION MADE TOWARDS THE UNEXPLAINED EXPENDITURE ON FISH CULTIVATION. O N CAREFUL PERUSAL OF THE ORDER OF THE LOWER AUTHORITIES, WE FIND THAT THIS A DDITION WAS ALSO MADE ON THE BASIS OF ESTIMATION AS THE A.O. HAS MADE THE AD DITION OF RS.18,30,000/- WHICH WAS REDUCED TO RS.15 LAKHS BY THE TRIBUNAL. THE FACTS OF THE CASE ARE ALMOST SIMILAR AS HAS BEEN DISCUSSED IN FOREGOING A PPEAL. THIS ISSUE WAS EXAMINED BY US IN DETAIL IN FOREGOING APPEALS IN WH ICH WE HAVE DELETED THE PENALTY AFTER HAVING HELD THAT WHERE THE ADDITIONS ARE MADE ON THE BASIS OF ESTIMATION, PENALTY U/S 158BFA CANNOT BE LEVIED. W E THEREFORE SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY LEVIED U /S 158BFA(2) OF THE ACT. IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 16 IT(SS)A NO.5 OF 2010: 28. IN THIS APPEAL, THE ORDER OF THE CIT(A) IS CHAL LENGED BY THE ASSESSEE CONFIRMING THE PENALTY LEVIED U/S 158BFA(2) OF THE I.T. ACT ON 3 ADDITIONS MADE ON ACCOUNT OF UNEXPLAINED LOAN, UNEXPLAINED EX PENDITURE ON FISH CULTIVATION AND UNACCOUNTED FISH SALES. 29. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD AR E THAT IN QUANTUM PROCEEDINGS, THE A.O. HAS MADE AN ADDITION OF RS.90 ,43,000/- ON ACCOUNT OF UNEXPLAINED LOANS, RS.1,45,50,650/- ON ACCOUNT OF U NEXPLAINED EXPENDITURE ON FISH CULTIVATION AND RS.97,75,000/- ON ACCOUNT O F FISH SALES WHICH WAS REDUCED TO RS.1,04,000/-, RS.34,56,000/- AND RS.12, 80,000/- RESPECTIVELY BY THE TRIBUNAL. MEANING THEREBY, THE REASONS GIVEN B Y THE ASSESSING OFFICER FOR MAKING THESE ADDITIONS WERE NOT ACCEPTED BY THE TRI BUNAL AND THE EXPLANATION FURNISHED BY THE ASSESSEES WERE PARTLY ACCEPTED. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS FUR NISHED THE EXPLANATION ON ALL THESE ADDITIONS BUT AGAIN THE A.O. WAS NOT CONV INCED WITH IT AND HE LEVIED THE PENALTY ON ALL THESE ADDITIONS. THE ASSESSEE P REFERRED AN APPEAL BEFORE THE CIT(A) AND FILED WRITTEN SUBMISSION ON ALL THES E ADDITIONS WHICH ARE AS UNDER: THE APPELLANT HUMBLY SUBMITS THAT THE PROVISIONS OF SEC.158BFA(2) HAVE NO APPLICATION TO THE FACTS OF THE APPELLANTS CASE. THE INCOME FROM FISH CULTIVATION WAS ADMITTED ON ESTIMATE BASIS. THE AP PELLANT DID NOT MAINTAIN ANY BOOKS OF ACCOUNT. THE INCOME WAS ESTIMATED WIT H REFERENCE TO THE EXTENT OF LAND HELD BY THE APPELLANT. COPIES OF TH E COMPUTATION OF INCOME ANNEXED TO THE RETURNS OF INCOME FILED ARE SUBMITTE D. IT CAN BE SEEN THAT THE INCOME WAS ESTIMATED ON THE BASIS OF THE NUMBER OF ACRES CULTIVATED. THEREFORE, THE EXPENDITURE ON FISH CULTIVATION IS N OT SEPARATELY SHOWN. THE APPELLANT SUBMITS THAT WHEN NO BOOKS OF ACCOUNT ARE MAINTAINED, THE ONLY COURSE LEFT FOR THE AUTHORITIES IS TO DETERMINE THE TOTAL INCOME ON AN ESTIMATE BASIS. AFTER RESORTING TO AN ESTIMATION OF TOTAL I NCOME, THE INCOME-TAX AUTHORITIES SHOULD NOT HAVE ADDED ANY AMOUNT ON THE GROUND THAT SOME OF THE EXPENDITURE IS NOT ACCOUNTED FOR. THE HONBLE ITAT ALSO RESORTED TO ESTIMATION OF PROBABLE EXPENDITURE ON CULTIVATION O F FISH TO BE RS.25,000/- PER ACRE. THERE IS NO OTHER INFORMATION IN THE SEIZED DOCUMENTS TO SHOW THE ACTUAL EXPENDITURE INCURRED BY THE APPELLANT HEREIN AS NO INFORMATION WAS FOUND DURING SEARCH AND THE APPELLANT DID NOT MAINT AIN THE BOOKS OF ACCOUNT. THEREFORE, THE UNDISCLOSED INCOME ON ACCOUNT OF THE EXPENDITURE COULD NOT HAVE BEEN DETERMINED BY THE ASSESSING OFFICER. THE REFORE, THE APPELLANT HUMBLY SUBMITS THAT THAT THE ADDITION ITSELF IS NOT JUSTIFIABLE PARTICULARLY WHILE IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 17 COMPLETING THE ASSESSMENT U/S 158BD OF THE I.T. ACT . EVEN IF SUCH AN ADDITION IS MADE IT IS ONLY ON AN ESTIMATION OR PRE SUMPTION AND DOES NOT ATTRACT PENALTY. THE ASSESSING OFFICER AT PAGE NO.15 PARA 10.10 OF THE ORDER U/S 158BFA(2) MENTIONED THAT THE HIGHEST FACT FINDING A UTHORITY I.E. THE INCOME- TAX APPELLATE TRIBUNAL AFTER CONSIDERING THE SUBMIS SIONS GAVE ITS VERDICT AND AS PER THE DECISION, THE ADDITION CAME TO RS.34,56, 000/- (MODIFIED TO RS.25 LAKHS AS PER ORDER U/S 254(2) OF THE I.T. ACT). TH E ASSESSING OFFICER MENTIONED THAT IT IS NOT CORRECT TO SAY THAT THERE HAS BEEN NO MATERIAL TO ESTIMATE THE EXPENDITURE AND THAT THE ESTIMATION OF THE EXPENDITURE WAS MADE BASING ON THE EVIDENCE GATHERED DURING THE COU RSE OF SEARCH AND POST SEARCH PROCEEDINGS. IN THIS REGARD, THE APPELLANT SUBMITS THERE ARE NO BOOKS OF ACCOUNT AND THE EXPENDITURE WAS NOT DEBITED TO T HE PROFIT AND LOSS ACCOUNT BY THE APPELLANT HEREIN. THEREFORE, THE ASSESSING OFFICER CANNOT ARRIVE AT AN AMOUNT WHICH WAS ALREADY INCURRED BY THE APPELLANT AND WHICH WAS NOT ACCOUNTED FOR. THEREFORE, IT CANNOT BE SAID THAT TH ERE IS ANY DATA FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS TO KNOW THAT ANY EXPENDITURE ON FISH CULTIVATION WAS NOT DISCLOSED. THEREFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN LEVYING PENALTY U/S 158 BFA(2) OF THE I.T. ACT. TAKING ALL THESE FACTORS INTO CONSIDERATION AND TA KING INTO ACCOUNT THE EXPLANATION SUBMITTED, THE APPELLANT HUMBLY REQUEST S THE HONBLE COMMISSIONER OF INCOME-TAX (APPEALS) TO KINDLY HOLD THAT THIS ADDITION WOULD NOT AMOUNT TO CONCEALMENT OF INCOME AND NO PENALTY IS LEVIABLE IN RESPECT OF THE ADDITION. ADDITION ON ACCOUNT OF UNEXPLAINED LOAN RS.1,04,0 00/- THIS AMOUNT CONSISTS OF RS.4,000/- RECEIVED FROM SRI SURAJ KUMA R THROUGH CHEQUE NO.075718 ON 4.9.1996 AND AMOUNT OF RS.1 LAKH RECEI VED FROM SRI M. VENKI REDDY ON 25.2.1997 THROUGH SBI. IN SO FAR AS SURAJ KUMAR IS CONCERNED, HE IS ALSO ASSESSED TO TAX BY THE SAME ASSESSING OFFIC ER. IN HIS CASH FLOW STATEMENT, THE SAID AMOUNT IS SHOWN BY HIM AS PAID TO THE APPELLANT HEREIN. THEREFORE, THE CREDIT OF RS.4,000/- IS PROVED BEYON D DOUBT. COPIES OF THE RECEIPTS AND PAYMENTS ACCOUNT OF SRI SURAJ KUMAR AR E SUBMITTED. WITH REGARD TO THE AMOUNT OF RS.1 LAKH, THE SAID AMOUNT WAS RECEIVED THROUGH BANK. THE NAME AND ADDRESS OF THE PERSON ARE PROVI DED TO THE ASSESSING OFFICER AND THE SAID AMOUNT WAS ALREADY RECORDED IN THE BANK ACCOUNT AS THE SAME WAS RECEIVED THROUGH BANKING CHANNELS. THE AM OUNT COULD NOT HAVE BEEN TREATED AS THE UNDISCLOSED INCOME AS THE AMOUN T WAS RECORDED IN THE REGULAR BANK ACCOUNT WHERE ALL THE TRANSACTIONS HAV E BEEN MAINTAINED BY THE APPELLANT. THE DETAILS OF THE PERSON WERE PROVIDED . THE ASSESSING OFFICER DID NOT POSSESS ANY MATERIAL TO SHOW THAT THE SAID AMOU NT ACTUALLY REPRESENT THE INCOME OF THE APPELLANT. THEREFORE, THE APPELLANT SUBMITS THAT THE AMOUNT SHOULD NOT HAVE BEEN TREATED AS UNDISCLOSED FOR THE PURPOSE OF LEVY OF PENALTY U/S 158BFA(2) OF THE I.T. ACT. ADDITION ON ACCOUNT OF UNACCOUNTED FOR FISH SALES RS.12,80,000/-. THE PENALTY IS LEVIED ALSO WITH REFERENCE TO ADDITION M ADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED FISH SA LES. THE INCOME- IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 18 TAX AUTHORITIES DURING THE COURSE OF SEARCH AND SEI ZURE OPERATIONS FOUND SOME SLIPS CONTAINING THE WORDS VBR AND VBR & CO. SHOWING TRANSPORTATION OF FISH TO CALCUTTA. THE ASSESSING OFFICER ARRIVED AT ON AN ESTIMATE THE NUMBER OF KGS. OF FISH TRANSPORTED AN D FURTHER ESTIMATED THE PROBABLE TURNOVER. HE ALSO ESTIMATED THE NET INCOM E AT 10% OF SUCH TURNOVER. ON AN APPEAL, THE HONBLE ITAT REDUCED S UCH ESTIMATION TO 3.5% OF THE TURNOVER. THE HONBLE ITAT ALSO REDUCED THE TURNOVER. AFTER ARRIVING AT SUCH AN ESTIMATION, THE PROFIT ADMITTED BY ALL T HE FAMILY MEMBERS TOGETHER IS REDUCED AND THE BALANCE IS ARRIVED AT BY THE HON BLE ITAT. ACCORDINGLY, THE ADDITION WAS FINALLY REDUCED TO RS.12,80,000/-. IT CAN BE SEEN FROM THE PROCESS OF WORKING MADE BY THE ASSESSING OFFICER AN D THE HONBLE TRIBUNAL THAT IT IS A MERE ESTIMATION OF THE FISH EXPORTED; ESTIMATION OF TOTAL TURNOVER AND ALSO ESTIMATION OF NET INCOME THEREON. THEREFR OM THE INCOME OFFERED IN THE RETURNS OF INCOME WAS REDUCED AND THE BALANCE I S TREATED AS ADDITION. THIS WOULD AMOUNT TO MERE ESTIMATION OF INCOME. AS SUBMITTED EARLIER, THE APPELLANT DID NOT MAINTAIN BOOKS OF ACCOUNT AND IS OFFERING THE INCOME FROM FISH CULTIVATION ON AN ESTIMATE BASIS. THE BASIS O F ESTIMATION IS NUMBER OF ACRES OF LAND CULTIVATED BY THE APPELLANT. THE EST IMATION MADE BY THE APPELLANT IS ON THE BASIS OF ACRES USED FOR FISH CU LTIVATION WHEREAS THE ASSESSING OFFICER AND THE HONBLE ITAT WENT BY NUMB ER OF LORRIES, THE PROBABLE FISH EXPORTED AND THE NET PROFIT THEREON. THEREFORE, THE AUTHORITIES HAVE ADOPTED A DIFFERENT METHOD OF ARRIVING AT THE NET PROFIT ON AN ESTIMATE BASIS. THE EVIDENCE BEFORE THE AUTHORITIES DO NOT INDICATE THAT THERE IS ANY SUPPRESSION OF EITHER THE QUANTITY OF FISH OR THE T URNOVER OR THE NET INCOME AS THE AUTHORITIES SUBSTITUTED A DIFFERENT METHOD OF E STIMATION OF INCOME TO WHAT WAS DONE BY THE APPELLANT, THEREFORE, THE DIFFERENC E ADDED BY THE ASSESSING OFFICER TO THE EXTENT CONFIRMED BY THE HONBLE TRIB UNAL WOULD NOT ATTRACT LEVY OF PENALTY U/S 158BFA(2) OF THE I.T. ACT. 30. THE ASSESSEE HAS ALSO PLACED A RELIANCE UPON VA RIOUS JUDGEMENTS BEFORE THE CIT(A) IN SUPPORT OF HIS CONTENTIONS THA T WHERE THE ADDITIONS ARE MADE ON ESTIMATION BASIS AND WITHOUT ANY CONCLUSIVE EVIDENCE THE PENALTY U/S 158BFA SHOULD NOT BE LEVIED. 31. THE CIT(A) RE-EXAMINED THE ISSUE BUT WAS NOT CO NVINCED WITH THE EXPLANATIONS OF THE ASSESSEES AND HE CONFIRMED THE PENALTY. 32. NOW THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT HE DID NOT MAINTAIN ANY BOOKS OF AC COUNTS AND ADMITTEDLY THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF A FISH CULTURE. BUT THE EXPENDITURE CLAIMED BY THE ASSESSEE WERE NOT ACCEPT ED BY THE TRIBUNAL. THE TRIBUNAL HAS ESTIMATED THE PROBABLE EXPENDITURE ON CULTIVATION OF FISH TO BE RS.25,000/- PER ACRE. SINCE THE ADDITION WAS MADE ON THE BASIS OF THE IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 19 ESTIMATION OF PROBABLE EXPENDITURE, THE PENALTY U/S 158BFA(2) CANNOT BE LEVIED FOR THE SIMPLE REASON THAT EXPLANATION FURNI SHED BY THE ASSESSEE WERE NOT ACCEPTED BY THE REVENUE. IT WAS FURTHER CONTEN DED THAT FOR IMPOSING A PENALTY U/S 158BFA REVENUE IS REQUIRED TO BRING SOM ETHING ON RECORD TO ESTABLISH THAT THE EXPLANATIONS FURNISHED BY THE AS SESSEE ARE TOTALLY FALSE. 33. WITH REGARD TO THE ADDITION ON ACCOUNT OF UNEXP LAINED LOAN OF RS.1,04,000/- IT WAS CONTENDED THAT AN AMOUNT OF RS .4,000/- WAS RECEIVED FROM SHRI SURESH KUMAR THROUGH CHEQUE AND AN AMOUNT OF RS.1 LAKH WAS RECEIVED FROM SHRI M. VENKEE THROUGH BANKING CHANNE L. SURESH KUMAR AND M. VENKEE WAS ALSO ASSESSED TO TAX. IN THE CASH FL OW STATEMENT OF MR. SURESH KUMAR, THIS AMOUNT WAS SHOWN TO HAVE BEEN PA ID TO THE ASSESSEE. SINCE THE AMOUNT WAS RECEIVED THROUGH BANKING CHANN ELS IT CANNOT BE PRESUMED THAT THE ASSESSEE HAD ANY INTENTION TO CON CEAL THE FACTS OF RECEIPT OF THIS AMOUNT. THEREFORE, PENALTY U/S 158BFA(2) C ANNOT BE LEVIED. 34. WITH REGARD TO THE ADDITION ON ACCOUNT OF FISH SALE, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT DURING THE COURSE O F SEARCH AND SEIZURE OPERATION, SOME SLIPS CONTAINING THE WORDS BBR SH OWING TRANSPORTATION OF FISH TO CALCUTTA WERE FOUND. THE A.O. ARRIVED AT A N ESTIMATE OF NUMBER OF KGS. OF FISH TRANSPORTED AND FURTHER ESTIMATED THE PROBABLE TURNOVER. HE HAS ALSO ESTIMATED THE NET INCOME AT 10% OF SUCH TURNOV ER, WHICH WAS REDUCED TO 3.5% BY THE TRIBUNAL. ACCORDINGLY, THE ADDITION WAS REDUCED. SINCE THIS ADDITION WAS ALSO MADE ON THE BASIS OF ESTIMATION M ADE BY THE REVENUE AUTHORITIES, PENALTY U/S 158BFA(2) IS NOT LEVIABLE. HE HAS ALSO PLACED A RELIANCE UPON THE VARIOUS JUDGEMENTS IN SUPPORT OF HIS CONTENTIONS. 35. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE AND CAREFULLY PERUSED THE WRITTEN SUBMISSIONS OF THE REVENUE IN WHICH THE CIT(DR) HAS PLACED RELIANCE UPON THE ORDER OF THE CIT(A) AND WE FIND T HAT THE ADDITIONS ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON FISH CULTIVAT ION AND UNACCOUNTED FISH SALES WERE MADE ON THE BASIS OF ESTIMATION. IN THE FOREGOING APPEALS, WE HAVE ALREADY ADJUDICATED THIS ISSUE AND WE HAVE HEL D THAT WHERE ADDITIONS IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 20 ARE MADE ON THE BASIS OF AN ESTIMATION PENALTY U/S 158BFA(2) CANNOT BE LEVIED. THE EXPLANATIONS FURNISHED BY THE ASSESSEE DURING THE COURSE OF PENALTY PROCEEDINGS REQUIRES INDEPENDENT ADJUDICATI ON BY THE REVENUE AUTHORITIES. THE PENALTY U/S 158BFA CANNOT BE LEVI ED UNLESS AND UNTIL IT IS BROUGHT ON RECORD THAT THE EXPLANATIONS FURNISHED B Y THE ASSESSEE ARE TOTALLY FALSE. BY ACCEPTING THE EXPLANATION IN PART IT CAN NOT BE SAID THAT THE EXPLANATIONS OF THE ASSESSEES ARE FALSE. THEREFORE , THE PENALTY U/S 158BFA CANNOT BE LEVIED. WITH REGARD TO THE ADDITION ON A CCOUNT OF UNEXPLAINED LOAN, IT IS ALSO EVIDENT FROM THE RECORD THAT THESE AMOUNTS WERE RECEIVED THROUGH BANKING CHANNELS, THEREFORE, IT CANNOT BE S AID THAT ASSESSEE HAD AN INTENTION TO CONCEAL THESE RECEIPTS. 36. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT SINCE THE ADDITIONS WERE MA DE ON ESTIMATE BASIS AND ON ACCOUNT OF NON-ACCEPTANCE OF THE EXPLANATIONS OF THE ASSESSEES, THE PENALTY U/S 158BFA(2) IS NOT LEVIABLE. WE THEREFOR E, SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY. 37. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED. PRONOUNCED IN THE OPEN C OURT ON 29.4.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 29 TH APRIL, 2011 IT(SS)A NOS1 TO 5 OF 10 V HEMALATHA ETC. VJA. 21 COPY TO 1 SMT. V. HEMALATHA, D.NO.74 - 12 - 7, N EW AUTO NAGAR COLONY, NEAR PATAMATA, VIJAYAWADA 2 SRI V. BALAJI, D.NO.74 - 12 - 7, NEW AUTO NAGAR COLONY, NEAR PATAMATA, VIJAYAWADA 3 SMT. V. SANGEETHA, D.NO.74 - 12 - 7, NEW AUTO NAGAR COLONY, NEAR PATAMATA, VIJAYAWADA 4 SRI V. VENKATARAMAIAH, D.NO.74 - 12 - 7, NE W AUTO NAGAR COLONY, NEAR PATAMATA, VIJAYAWADA 5 SRI V. VENKATARAMAIAH (HUF), D.NO.74 - 12 - 7, NEW AUTO NAGAR COLONY, NEAR PATAMATA, VIJAYAWADA 6 DCIT, CENTRAL CIRCLE, VIJAYAWADA 7 THE CI T, VIJAYAWADA 8 THE CIT (A) , VIJAYAWADA 9 THE DR, ITAT, VISAKHAPATNA M. 10 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM