Smt. Meenaben Jivanchand Bhansali, Surat V. The Dy.CIT., Circle-3, Surat

ITSSA 55/AHD/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3059 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-09-2012
• Assessment Year: misc
• Appeal Filed On: 11-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A TIRKEY
• Assessee Lawyers: J P SHAH
• Keywords: Search and seizure; Opportunity of being heard; Reasonable cause; Competent authority; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2000 & PERIOD UPTO 29.10.1999 MEENABEN J. BHANSALI, A-304, CHANDAN PARK, B/H. MAHARAJA AGRASEN BHAVAN, CITY LIGHT ROAD, SURAT-3995001 V/S . A.C.I.T., CIRCLE -3, SURAT. PAN NO. AA SPB9449C (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI J.P. SHAH, A.R. /BY RESPONDENT SHRI A. TIRKEY, SR. D.R. /DATE OF HEARING 24.09.2012 /DATE OF PRONOUNCEMENT 23.11.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHI CH HAS EMANATED FROM THE ORDER OF CIT(A)-II, SURAT, ORDER DATED 12. 06.2009 FOR BLOCK PERIOD- 90-91 TO 99-2000 & PERIOD UPTO 29.10.1999. THE SOL E GROUND OF APPEAL IS AGAINST CONFIRMING THE PENALTY LEVIED U/S .158BFA(2) OF THE IT ACT AT RS.1,15,431/-. IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 2 2. THE FACTUAL MATRIX OF THE CASE IS THAT THE ASSES SMENT WAS COMPLETED U/S.158BC R.W.S. 158BD OF THE IT ACT ON 28.06.2006 ON TOTAL UNDISCLOSED INCOME OF RS.10,31,000/- PENALTY PROCEEDING U/S.158 BFA(2) WAS INITIATED FOR CONCEALMENT OF UNDISCLOSED INCOME. BEFORE IMPOSING PENALTY, THE LD. A.O. HAD GIVEN REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT IN THIS CASE. THE SEARCH AND SEIZURE OPERATION U/S.132 OF THE IT ACT WAS CARRIED OUT AT THE PREMISES OF M/S. OHM ORGANIZERS ON 29.10.1999. DUR ING THE COURSE OF SEARCH, SOME INCRIMINATING BOOKS OF ACCOUNT PERTAIN ING TO THE CASE OF THE ASSESSEE WERE SEIZED ALONGWITH OTHER BOOKS OF ACCOU NT / DOCUMENTS. THE ASSESSING OFFICER HAVING JURISDICTION OVER THE CASE OF M/S. OHM DEVELOPERS, NOTICED THAT INVESTMENT IN FLATS / SHOPS WERE MADE BY THE PURCHASERS OF THE FLATS / SHOPS AND PAYMENT ON ACCOUNT OF ON MONEY WAS ALSO MADE TO THE BUILDER. AFTER RECEIVING THE INFORMATION FROM THE A.O. OF THE MAIN CASE, THE LD. ASSESSING OFFICER OF THE APPELLANT HAD INITIATED PR OCEEDING U/S.158 BD OF THE IT ACT. IT WAS NOTICED FROM THE PAGE NO.8 OF THE KHATAVAHI FOUND AND SEIZED AS PER ANNEXDURE-BS-2/26 TO PANCHNAMA DTD. 29.10.19 99 THAT ASSESSEE HAD PURCHASED FLAT NO.204/304, CHANDAN PARK, CITY LIGHT AREA, SURAT FOR A CONSIDERATION OF RS.11,84,770/-. OUT OF WHICH, RS. 10,31,000/- WAS PAID TILL THE DATE OF SEARCH I.E. 29.10.1999. THE BOOKS OF ACCOU NT SEIZED CONTAINED CATEGORICAL NOTING OF TOTAL AMOUNT RECEIVED OF RS.1 0,31,000/-. DURING THE SEARCH PROCEEDINGS, THE PARTNERS OF THE FIRM, AND A SSOCIATE PERSONS HAVE CATEGORICALLY ACCEPTED RECEIPT OF ON MONEY OVER A ND ABOVE THE DOCUMENTED IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 3 CONSIDERATION. AS THE ASSESSEE COULD NOT EXPLAIN T HE INVESTMENT MADE IN THE ABOVE SAID FLAT OF RS.10,31,000/-, HENCE UNDISCLOSE D INCOME OR THE BLOCK PERIOD WAS DETERMINED AT RS.10,31,000/-. THE ASSES SEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), SURAT. THE LD. CIT(A) IN HI S ORDER NO. CAS/II/186/2006-07 DATED 26.02.2007 HAS PARTLY ALLO WED AND GIVEN RELIEF OF RS.8,38,615/- TO THE ASSESSEE AND DIRECTED TO LIMIT THE ADDITION TO THE EXTENT OF RS.1,92,385/-. THE LD. CIT(A) HELD THAT THE ASSESS EE HAD ONLY PURCHASED FLAT NO.A-304 FOR WHICH TOTAL CONSIDERATION OF RS.5,92,3 85/- WAS PAID AND ALSO HELD AS THE SUM OF RS.3 LACS WAS PAID THROUGH CHEQU E HENCE IT WAS EXPLAINED. HOWEVER, BALANCE OF RS.1,92,385/- WHICH WAS PAID IN CASH WAS TREATED AS ON- MONEY. ON 25.01.2008, A FRESH SHOW CAUSE NOTICE FO R GRANTING AN OPPORTUNITY OF BEING HEARD WAS ISSUED AND SERVED UPON THE ASSES SEE ON 30.01.2008. IN RESPONSE TO THE NOTICE ISSUED, THE ASSESSEE IN HIS REPLY DATED 06.02.2008 STATED THAT HE HAS PREFERRED AN APPEAL BEFORE THE H ONBLE ITAT, AHMADABAD AGAINST THE IMPUGNED ORDER OF CIT(A) AND REQUESTED TO KEEP THE PENALTY PROCEEDINGS IN ABEYANCE TILL THE MATTER STANDS DECI DED BY THE HONBLE ITAT. THE REPLY OF THE ASSESSEE CONSIDERED BUT NOT ACCEPT ED AS ASSESSEES APPEAL HS BEEN DISMISSED BY CIT (A). RATIO IN THE CASE OF KHOPADE KISANRAO MANIKRAO V. ACIT, 74 ITD 25, PUNE BENCH OF THE ITAT AND OF GOLANI BROTHERS V. ACIT IN ITA NO. 579 TO 583/P/1998, 165 ITC 144 , THE PUNE BENCH SQUARELY APPLIED IN THE CASE OF ASSESSEE. IT HAS BEEN HELD IN ABOVE MENTIONED DECISIONS THAT IF THERE IS EVIDENCE FOUND ABOUT THE ACCEPTANCE OF ON-MONEY ON IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 4 SALE OF CERTAIN SHOPS OR FLATS, THE ASSESSING OFFIC ER CAN LAWFULLY PRESUME THAT ON-MONEY MUST HAVE BEEN CHARGED FOR ALL THE FLATS O R SHOPS. MOREOVER IN HIS REPLY, THE ASSESSEE HAS SUBMITTED ONLY THAT HE HAS PREFERRED AN APPEAL BEFORE ITAT AND REMAINED SILENT ABOUT OTHER ISSUES. MERE FILING OF AN APPEAL, DID NOT FORM THE REASONABLE CAUSE FOR NON-LEVYING OF THE PE NALTY. IT IS PERTINENT TO MENTION HERE THAT THE ASSESSEE FILED RETURN OF INCO ME SHOWING NIL UNDISCLOSED INCOME IN RESPONSE TO THE NOTICE ISSUED U/S.158BD OF THE ACT. THE CHEQUES TOTALING TO RS.3 LACS WERE ISSUED FROM THE BANK ACCOUNT OF THE ASSESSEE AS WELL AS AMOUNT OF RS.5,92,385/- WAS ALS O ACCEPTED BY THE ASSESSEE TO HAVE BEEN PAID AND IF THE CHEQUE PAYMEN T HAS BEEN MADE BY THE ASSESSEE THEN IT HAS TO BE NECESSARILY ACCEPTED THA T CASH PAYMENT OF RS.1,92,385/- WERE ALSO MADE BY THE ASSESSEE HIMSEL F. AT THE TIME OF SEARCH, SHRI KETAN O. DER, PARTNER OF M/S. OHM DEVELOPERS H AS CLEARLY STATED IN HIS STATEMENT RECORDED ON OATH THAT THE SEIZED MATERIAL S CONTAINED SEPARATE ACCOUNT OF EACH OF THE BUYERS WHICH SHOW THE DETAIL S OF PAYMENT RECEIVED AT DIFFERENT POINTS OF TIME BOTH IN CHEQUES AND BY CAS H. THE ASSESSEE IN THE COURSE OF PENALTY PROCEEDINGS HAS NOT EXPLAINED SOU RCE OF UNDISCLOSED INCOME OF RS.1,92,385/- MADE IN THE PURCHASE OF FLA T DESPITE SUFFICIENT OPPORTUNITIES PROVIDED TO HIM. IN VIEW OF THE ABOV E STATED FACTS AND CIRCUMSTANCES OF THE CASE; THE A.O. HAD NO OTHER AL TERNATIVE BUT TO DECIDE THE PENALTY PROCEEDINGS ON MERITS OF THE CASE. IT IS A PPARENT THAT ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF INVESTMENT OF RS.1, 92,385/- IN THE PURCHASE OF IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 5 FLAT. HE, WAS, THEREFORE, SATISFIED THAT THE ASSES SEE HAS COMMITTED A DEFAULT WITHIN THE MEANING OF SECTION 158BFA(2) OF THE ACT. HE, THEREFORE, LEVIED A PENALTY OF RS.1,15,431/- U/S. 158BFA(2) OF THE ACT BEING 100% OF THE TAX ON UNDISCLOSED INCOME SOUGHT TO BE EVADED AS AGAINST M AXIMUM PENALTY LEVIABLE OF RS.3,46,293/- BEING 300% OF TAX SOUGHT TO BE EVADED. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO HAS CONFIRMED THE ADD ITION. THE LD. CIT(A) OBSERVED THAT THE APPELLANT HAD TO PROVE THE EXPLAN ATION BONAFIDE AND ALL THE FACTS RELATING TO SUCH EXPLANATION AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED. NOW THE ONUS ON THE A SSESSEE TO PROVE THAT EXPLANATION FILED IS BONAFIDE. THE APPELLANTS CAS E ADDITION ON ACCOUNT OF ON- MONEY WAS MADE WHICH REPRESENTS THE INCOME IN RESPE CT OF WHICH PARTICULARS HAVE BEEN CONCEALED. IN THE PRESENT CASE, THE APPE LLANT HAD NOT DISCLOSED ALL THE INFORMATION AND MATERIAL OF THE INCOME DISCLOSE D BEFORE THE A.O. IN RETURN. THE PRESUMPTION IS CLEARLY AVAILABLE WITH THE A.O. THAT THE APPELLANT HAD FURNISHED INACCURATE PARTICULARS OF INCOME. THE LD . CIT(A) ALSO RELIED IN CASE OF UOI AND ORS VS. DHARMENDRA TEXTILE PROCESSORS, 306 ITR 277, WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT IF THERE IS INC OME TAX EVASION, PENALTY U/S.271(1)(C) IS A CIVIL LIABILITY TO PROVIDE A RE MEDY FOR THE LOSS OF REVENUE. THE CIT(A) HELD THAT NOW THE LEVY OF PENALTY IS MAN DATORY AND NO DISCRETION IS LEFT WITH THE COMPETENT AUTHORITY. THEREFORE, HE D ISMISSED THE ASSESSEES APPEAL. IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 6 4. NOW THE MATTER IS BEFORE US. LD. COUNSEL FOR TH E APPELLANT CONTENDED THAT THIS IS A SEARCH CASE AND ORDER PASSED U/S.158 BD OF THE IT ACT. THERE WAS ONE FLAT PURCHASED NOT TWO. HE FURTHER RELIED IN CASE OF ACIT VS. SMT. SURINDER KAUR, ITAT, LUCKNOW A BENCH IN ITA NO. 226 & 227/LUK/2008, A.Y. 2000-01 & 2004-05 FOR IMPOSING OF PENALTY LEGALLY VALID ASSESSMENT I S REQUIRED, IN CASE OF JAWAHARBHAI ATMARAM HATHIWALA VS. ITO , CO-ORDINATE C BENCH, ITAT, AHMADABAD, IN ITA NO. 2695/AHD/2006 FOR 1999-2000 FOR THE DEVELOPER HAD ACCEPTED MORE AMOUNT FROM THE PURCHAS ER OF FLAT BUT PURCHASER DID NOT AGREE WITH THESE FIGURES. THE CO-ORDINATE BENCH DELETED THE ADDITION ON THE GROUND THAT NO EVIDENCE HAD BEEN BROUGHT ON RECORD BY THE REVENUE THAT WHATEVER AMOUNT ADMITTED BY THE BUILDER, HAD B EEN PAID BY THE PURCHASER. CIT VS. VINAYCHAND HARILAL (1979) 120 ITR 0752 (GUJ .) , ADMISSION OF UNDISCLOSED INCOME DOES NOT SUFFICIENT TO LEVY O F PENALTY U/S.271(1)(C), ACIT VS. RAJUBHAI KOKRA & SMT. NAYANABEN J. PANDYA IN ITA NOS. 128 & 129/AHD/2010 FOR BLOCK PERIOD FOR THE 158BD PROCEEDING INITIATED IN-ORDINATE DELAY. THE CO-ORDINATE D BENCH DISMISSED THE APP EAL OF THE REVENUE. ACIT VS. SAVITABEN N.OZA IN ITA NO. 132/AHD/2010 FOR BLOCK PERIOD, NOTICED ISSUED U/S.158BD WITH IN-ORDINATE DELAY, THE APPEAL IS NOT MAINTAINABLE, ACIT VS. SMT. CHHAYABEN IN IT(SS) A. NO. 133/AHD/2010 FOR BLOCK PERIOD, ITO VS. SMT. PRAMILA PRATAP SHAH, ITAT, MUMBAI H BENCH IN ITA NO. 488/MUM/ 2002 FOR BLOCK PERIOD, PENALTY U/S.158BFA(2) IS NOT JUSTIFIED WHEN THERE IS NO INCRIMINATING MATERIAL REGARDING SEARCH TRANSAC TION WAS FOUND DURING THE SEARCH, RAGHUBIR SINGH GARG VS. ACIT, ITAT, DELHI F BENCH IN IT(SS)A NO. IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 7 109/DEL/2008 FOR BLOCK PERIOD, THE SATISFACTION RECORDED BY THE ASSESSEE ON 158BD, THE ASSESSEE ASSESSED U/S.158BD CANNOT BE RE CORDED AS SATISFACTION NOTE AFTER COMPLETION OF ASSESSMENT, DHANESH A. VICHARE VS. ACIT, VAPI CIRCLE, VAPI IN ITA NO. 167/AHD/2007 FOR BLOCK PERIOD, CO-ORDINATE D BENCH, AHMADABAD, NO ADDITION CAN BE MADE UNDER BLOCK ASSE SSMENT WITHOUT EVIDENCE OR MATERIAL FOUND DURING THE COURSE OF SEA RCH. LD. COUNSEL ALSO FILED PAPER BOOK AND ARGUED ON CROSS EXAMINATION OF PARTN ER OF M/S. OHM DEVELOPER HAD ADMITTED THAT ON PAGE NO.8 OF SEIZED MATERIAL B2/26 FOUND FROM THE OFFICE PREMISES OF M/S. OHM DEVELOPER HAD CATEGORICALLY ADMITTED THAT HAND WRITING ON THIS PAPER IS OF ACCOUNTANT, N ARENDRABHAI CHAVDA. THERE IS NO HANDWRITING ON THAT PAGE OF THE APPELLANT OR ANY RELATED PERSON. THE CHEQUE AMOUNT RECEIVED FROM THE APPELLANT HAD BEEN DEPOSITED IN THE BANK ACCOUNT. BUT THERE IS NO EVIDENCE OF CASH RECEIPTS FROM THE APPELLANT. HE HAD ALSO SHOWN INABILITY THAT HOW MUCH AMOUNT HAS BEEN RECEIVED FROM SMT. MEENABEN I.E. ASSESSEE. HE DID NOT REMEMBER ABOUT WHO HAD GIVEN THE CASH IN CASE OF APPELLANT. PAGE NO.8 OF ANNEXURE B2/3 W AS A UNILATERAL ACTION. THEREFORE, PENALTY U/S. 158BFA(2) IS NOT JUSTIFIED IN CASE OF ASSESSEE. FROM THE SIDE OF THE REVENUE, THE LD. D.R. VEHEMENTLY RE LIED ON THE ORDERS OF THE CIT(A) AND A.O. 5. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND GONE THROUGH THE CASE LAWS CITED BY THE LD. A.R. WHATEVER CASE LAWS REFERRED BY THE LD. A.R. ARE NOT SQUARELY APPLICABLE BECAUSE EITHER THE Y ARE ON THE 271(1)(C) PENALTY OR BLOCK ASSESSMENT ALLOWED ON TECHNICAL GR OUNDS ON BELATED NOTICE IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 8 U/S.158BC AS WELL AS IN BLOCK ASSESSMENT ADDITION CAN BE MADE ON THE BASIS OF SEIZED MATERIAL. BEFORE US, THE POINT IS TO BE CONSIDERED WHETHER PENALTY IMPOSED BY THE A.O. U/S. 158BFA(2) IS JUSTIFIED OR NOT. IN ASSESSEES CASE, THE CO-ORDINATE D BENCH HAS ALLOWED THE REVENUES APPEAL IN IT (SS) A NO. 77/AHD/2007 FOR BLOCK PERIOD, ON PAGE 12, THE CO-OR DINATE BENCH OBSERVED THAT SINCE THE FINDINGS OF THE LD. CIT(A) HAVE BEEN ACCEPTED BY THE ASSESSEE, THEREFORE, THE LD. CIT(A) SHOULD HAVE RESTRICTED TH E ADDITION OF RS.2,92,385/-. THE BENCH CONFIRMED THE FINDINGS OF THE LD. CIT(A) IN DELETING THE SUBSTANTIAL AMOUNT AGAINST THE ASSESSEE. HOWEVER, THE ORDER OF THE LD. CIT (A) IS MODIFIED TO THE EXTENT THAT THE A.O. WAS DIRECTED T O LIMIT THE ADDITION TO SUM OF RS.2,92,385/- INSTEAD OF RS.1,92,385/-. AS A RESUL T, THIS GROUND OF APPEAL OF THE REVENUE IS PARTLY ALLOWED. HOWEVER, THE LD. A. O. HAS CONSIDERED THE UNDISCLOSED INCOME U/S. 158BC IN IMPOSING OF PENALT Y AT RS.1,92,385/- WHEREAS THE QUANTUM ADDITION CONFIRMED BY THE CO-OR DINATE BENCH AS DISCUSSED ABOVE AT RS.2,92,385/-. AS PER SECTION 1 58 BFA(2), THE A.O. HAS TO IMPOSE PENALTY ON UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT ON UNDISCLOSED INCOME SHOWN IN THE RETUR N. THE APPELLANT FILED NIL RETURN BEFORE THE A.O. WHICH HAS BEEN ASSESSED AT U NDISCLOSED INCOME OF RS.10,31,000/- WHICH SUBSEQUENTLY REDUCED BY THE CO -ORDINATE BENCH AT RS.2,92,385/-. THE HONBLE GUJARAT HIGH COURT IN C ASE OF KANDOI BHOGILAL MULCHAND VS. DCIT (2012) 341 ITR 271 HAS HELD THAT THE A.O. DETERMINED THE UNDISCLOSED INCOME IN BLOCK ASSESSMENT WHICH WAS CO NFIRMED BY ITAT OVER AND ABOVE WERE DISCLOSED BY THE ASSESSEE I.E. NIL. THE HONBLE HIGH COURT IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 9 DISMISSED THE APPEAL OF THE APPELLANT U/S.158BFA(2) ON THE GROUND THAT THE A.O. HAD ASSESSED THE INCOME FOR BLOCK PERIOD IN EX CESS OF THE INCOME DETERMINED BY THE ASSESSEE, WHICH WAS CONFIRMED BY THE ITAT. FURTHER, IN CASE OF CIT VS. BECHARBHAI P. PARMAR (2012) 341 ITR 499 (GUJ) HAS HELD THAT PENALTY UNDER SUB-SECTION 2 OF SECTION 158BFA IS DI SCRETIONARY OF THE A.O., THE ASSESSEE WOULD GET IMMUNITY FROM SUCH PENALTY O N DISCLOSING SUCH INCOME BY FURNISHING A RETURN PAYING TAX ON SUCH UN DISCLOSED INCOME AND ACCEPTING FINALITY WITH RESPECT TO IT. THE PROVISO TO SUB-SECTION 2 OF SECTION 158BFA IS CLARIFICATORY AND WOULD NOT APPLY IN CASE OF UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER IS IN EXCESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES, PENALTY SHALL BE IMPOSED ON THE PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. THE PENALT Y IMPOSED U/S.271(1)(C) IS DIFFERENT FROM THAT IMPOSED U/S.158BFA. IN SECTION 271(1)(C), PENALTY CAN BE IMPOSED WHEN THE ASSESSEE CONCEALED INCOME OR FURNI SHED THE INACCURATE PARTICULARS OF SUCH INCOME BUT UNDER SUB-SECTION 2 OF SECTION 158BFA NO SUCH REQUIREMENT IS PROVIDED. THERE IS NO ONUS ON THE REVENUE TO PROVE THE CONCEALMENT OF INCOME UNDER SUB-SECTION 2 OF SECTIO N 158BFA. THE HONBLE HIGH COURT ON PAGE NO. 512, OBSERVED AS UNDER: WE ARE FURTHER OF THE OPINION THAT THE TRIBUNAL DE LETED THE PENALTY ON THE GROUNDS WHICH WERE SIMPLY NOT PERMIS SIBLE. AS ALREADY NOTED, THE PENALTY ON THE GROUNDS OF THE ADDITION O F RS.7.23 LAKHS AND RS. 2 LAKHS WAS DELETED OBSERVING THAT THE FINDINGS OF THE ASSESSING OFFICER IS MERE PRESUMPTION AND THAT NOTHING INCRIM INATING WAS FOUND IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 10 WHICH WOULD REVEAL THAT THE ASSESSEE HAD INCURRED S UCH AN EXPENDITURE. WE ARE AFRAID, SUCH AN OBSERVATION WO ULD AMOUNT TO REOPENING THE QUESTION OF QUANTUM ADDITION WHICH HA D ATTAINED FINALITY BY VIRTUE OF THE DECISION OF THE TRIBUNAL. THEREFORE, THE PRECEDENTS CITED ABOVE OF JURISDICTI ONAL HIGH COURT STRENGTHEN OUR DECISION THAT THE PENALTY U/S. 158BFA (2) WAS R IGHTLY IMPOSED BY THE A.O. AND LAWFULLY CONFIRMED BY THE LD. CIT(A). THUS, TH E ASSESSEES GROUND IS HEREBY DISMISSED. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. THESE ORDERS PRONOUNCED IN OPEN COURT ON 23/11/2012 SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 06 & 08.11.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 08.11.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 23.11.2012 7) ORDER UPLOADED ON 27.11.2012 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 27.11.2012 IT(SS)A NO. 55/AHD/2009 BLOCK PERIOD: 90-91 TO 99-2 000 & PERIOD UPTO 29.10.1999 PAGE 11