Shri Ajay Sharma, New Delhi V. DCIT, New Delhi

ITSSA 68/DEL/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7513 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-05-2012
• Assessment Year: misc
• Appeal Filed On: 12-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS GEETMALA MOHANANEY
• Keywords: Salary income; Document seized; Bonafide belief; Documents seized

Judgement Text

IT (SS)A NO. 68/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.(SS)A. NO. 68/DEL/2009 (BLOCK PERIOD 04.1.1990 TO 20.4.2000) SH. A JAY SHARMA, 164, POCKET C, SECTOR-A, VASANT KUNJ, NEW DELHI (PAN : ACTPS6955D) VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 24(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. SALIL AGGARWAL, ADV. DEPARTMENT BY : MRS. GEETMALA MOHANANEY, C.I.T.(D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXIII, NEW DELHI DATED 19.8.2009 AND PERTAINS TO BLOCK PERIOD 01.4.1990 T O 20.4.2000. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER :- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING T HE LEVY OF PENALTY UNDER SECTION 158BFA OF THE ACT OF ` 7,22,086/-. IT (SS)A NO. 68/DEL/2009 2 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT, SINCE NO NOTICE UND ER SECTION 143(2) OF THE ACT WAS ISSUED AFTER FILING OF RETURN OF UNDISCLOSED INCOME, THEREFORE, ORDER OF ASSESSMENT MADE UNDER SECTION 158BC/143(3) OF THE ACT WAS WITHOUT JURISDICTION AND AS SUCH, EVEN THE ORDER LEVYING PENALTY UNDER SECTION 158BFA(2) OF THE ACT WAS VITIATED IN LAW AND THEREFORE, UNSUSTAINABL E. 2.1 THAT MERE FACT THAT, SUCH A CONTENTION WAS NOT R AISED IN THE ASSESSMENT PROCEEDINGS, THE SAME COULD NOT HAVE BEEN MADE A BASIS TO UPHELD THE ORDER OF ASSESSMENT AND ORDER OF PENALTY, WHICH WERE INFACT A NULLITY AND, HENCE DEEMED TO BE QUASHED AS SUCH. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER FAILED TO APPRECIATE THAT, ORDER LEVYIN G PENALTY WAS OTHERWISE VITIATED IN LAW SINCE NOTICE ISSUED PRIOR LEVYING OF PENALTY WAS WHOLLY VAGUE AN D NON SPECIFIC NOTICE AND THEREFORE, ORDER OF PENALT Y WERE NOT TENABLE. IT (SS)A NO. 68/DEL/2009 3 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOL DING THE LEVY OF PENALTY ON THE FOLLOWING SUMS IN DISREG ARD OF THE DETAILED WRITTEN SUBMISSIONS FILED BY THE APPELLANT, AND THE PAPER BOOK PLACED NO RECORD: S.NO. NATURE AMOUNT 1. RECEIPTS FROM BCCI/DDCA/ RANJI TROPHY 5,81,607/- 2. RECEIPTS FROM BADIHAM CRICKET CLUB UK 1,05,000/- 3. RECEIPTS FROM M/S. SANSPAREILS GREEN LTD. 1,00,000/- 4. INCOME FROM QUIZ PROGRAMME 3,000/- 5. INCOME FROM SALARY AND INTEREST TREATED AS UNDISCLOSED RETURN. 3,90,867/- 6. ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER SEIZED PAPER 23,000/- TOTAL TOTAL TOTAL TOTAL 12,03,474/ 12,03,474/ 12,03,474/ 12,03,474/- -- - 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT, SINCE APPELLANT WAS UNDER A BONAFIDE BELIEF THAT, CRICKETING RECEIPTS O F ` 5,51,607/- ARE NOT TAXABLE IN VIEW OF INSTRUCTION I SSUED BY THE BOARD AND THEREAFTER EVEN IF IT IS FOUND THA T, SUCH RECEIPTS ARE TAXABLE ON THE INTERPRETATION OF THE IT (SS)A NO. 68/DEL/2009 4 INSTRUCTIONS, THE SAME CANNOT BE A BASIS TO LEVY PENALTY UNDER SECTION 158BFA(2) OF THE ACT. 4.2 THAT THE FINDING RECORDED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS) THAT, APPELLANT COULD NOT EXPL AIN THAT HOW HE WAS UNDER BONAFIDE BELIEF THAT, SUCH RECEIPTS ARE EXEMPTED FORM TAX IS FACTUALLY, LEGALLY MISPLACED AND OVERLOOKS THE EVIDENCE PLACED ON RECORD AND EXPLANATION TENDERED BY THE APPELLANT. 4.3 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN APPL YING THE JUDGEMENT IN THE CASE OF JRD STOCK BROKERS PVT. LTD. VS. ACIT REPORTED IN 25 DTR 38 (TRB) WHEN THE SAME IS WHOLLY INAPPLICABLE TO THE FACTS OF THE CA SE OF THE APPELLANT. 4.4 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FATS IN UPHOLD ING LEVY OF PENALTY ON THE ADDITION MADE OF ` 1,05,000/ - REPRESENTING THE SUMS RECEIVED ON REIMBURSEMENT OF EXPENDITURE FROM BADIHAM CRICKET CLUB, U.K. IT (SS)A NO. 68/DEL/2009 5 4.5 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOL DING LEVY OF PENALTY ON ADDITION OF ` 1,00,000/- MERELY ON THE GROUND THAT, RETURN OF INCOME DECLARING THE SAID INCOME HAD BEEN FILED AFTER DUE DATE OF FILING OF R ETURN WITHOUT APPRECIATING THAT, ASSESSEE WAS UNABLE TO F ILE THE RETURN SINCE HE WAS AWAY IN UK AND NOT IN INDIA AND, OVERLOOKING THE FACT THAT, TDS HAD BEEN DEDUCTE D ON SUCH INCOME RECEIVED BY THE APPELLANT. 4.6 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOL DING THE LEVY OF PENALTY ON ADDITION OF ` 3,90,867/- REPRESENTING SALARY AND INTEREST INCOME FROM CENTRAL WAREHOUSING CORPORATION WHEN AS A MATTER OF FACT, OUT OF SUCH SUM ` 3,58, 889/- HAD ITSELF BEEN HELD T O BE NOT INCLUDIBLE AS UNDISCLOSED INCOME OF THE ASSESSEE BY LD. COMMISSIONER OF INCOME TAX (APPEALS) IN AN ORDER DATED 29.11.2002 AND FURTHERMORE, THE BALANCE SUM OF ` 3,10,978/- WAS NOT INCLUDIBLE AS INCOME OF THE UNDISCLOSED INCOME OF TH E IT (SS)A NO. 68/DEL/2009 6 ASSESSEE AS IT WAS ELIGIBLE TO DEDUCTION UNDER SECT ION 80L OF THE ACT. 4.7 THAT LASTLY, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO ERRED BOTH IN LAW AND ON FACTS I N LEVYING PENALTY OF ` 20,000/- ON THE BASIS OF A LOO SE PAPER FOUND AS A RESULT OF SEARCH WITHOUT APPRECIAT ING THAT THERE WAS NO DIRECT MATERIAL WHICH HAS BEEN FOUND EITHER TO ALLEGE OR ESTABLISH THAT ANY INCOME OF THE APPELLANT HAD BEEN ESCAPED ASSESSMENT AND NOT DECLARED BY THE ASSESSEE. IT IS THEREFORE, PRAYED THAT IT BE HELD THAT PENAL TY LEVIED IS WITHOUT JURISDICTION AND EVEN OTHERWISE, SAME IS NOT IN ACCORDANCE WITH LAW. IT IS THUS PRAYED THAT, PENALTY SO LEVIED OF ` 7,22,086/- MAY KINDLY BE DEL ETED AND APPEAL OF THE APPELLANT BE ALLOWED. 3. AT THE OUTSET, LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT HE SHALL NOT BE PRESSING THE GROUND NO. 2 PERTAINING TO NON- SERVICE OF NOTICE U/S. 143(2). ACCORDINGLY, THIS ISSUE IS DISMISSED A S NOT PRESSED. IT (SS)A NO. 68/DEL/2009 7 4. IN THIS CASE PENALTY WAS LEVIED U/S. 158BFA BY TH E ASSESSING OFFICER ON THE FOLLOWING INCOME AND TREATED THE SAME AS UNDISCLOSED/CONCEALED INCOME. S.NO. NATURE AMOUNT 1. RECEIPTS FROM BCCI/DDCA/ RANJI TROPHY 5,81,607/- 2. RECEIPTS FROM BADIHAM CRICKET CLUB UK 1,05,000/- 3. RECEIPTS FROM M/S. SANSPAREILS GREEN LTD. 1,00,000/- 4. INCOME FROM QUIZ PROGRAMME 3,000/- 5. INCOME FROM SALARY AND INTEREST TREATED AS UNDISCLOSED RETURN. 3,90,867/- 6. ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER SEIZED PAPER 23,000/- TOTAL TOTAL TOTAL TOTAL 12,03,474/ 12,03,474/ 12,03,474/ 12,03,474/- -- - 5. UPON ASSESSEES LD. COMMISSIONER OF INCOME TAX (A PPEALS) HAS CONFIRMED THE PENALTY. 6. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 7. OUR ADJUDICATION IS AS UNDER:- (A) (A) (A) (A). . . . RECEIPTS FROM BCCI/DDCA/RANJI TROPHY RECEIPTS FROM BCCI/DDCA/RANJI TROPHY RECEIPTS FROM BCCI/DDCA/RANJI TROPHY RECEIPTS FROM BCCI/DDCA/RANJI TROPHY - -- - ` 5,81,607/ ` 5,81,607/ ` 5,81,607/ ` 5,81,607/- -- - (I) ON THIS ISSUE DURING THE COURSE OF SEARCH CERTA IN DOCUMENTS WERE FOUND MARKED AS PAGES 5, 6 AND 9 OF ANNEXURE A- 1 WHICH IT (SS)A NO. 68/DEL/2009 8 DISCLOSED THAT, THE ASSESSEE HAD RECEIVED CRICKETIN G RECEIPTS OF ` 8,19,847/- DURING THE VARIOUS ASSESSMENT YEARS PERT AINING TO BLOCK PERIOD. ASSESSEE REPLIED THAT SUCH RECEIPT W ERE FROM REPRESENTING INDIAN CRICKET TEAM. IN THIS REGARD I NSTRUCTION NO. 1432 DATED 26.11.1981 ISSUED BY THE CBDT WAS REFERR ED AND IT WAS SUBMITTED THAT SUCH RECEIPTS ARE NOT TAXABLE. ASSESSING OFFICER DID NOT ACCEPT THIS CLAIM OF THE ASSESSEE A ND HELD THAT SUCH RECEIPTS IS TAXABLE AS INCOME OF THE ASSESSEE. (II) ON APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS ) PARTLY ACCEPTED THE CLAIM OF THE ASSESSEE AND HELD THAT ON THE BASIS OF INSTRUCTION NO. 1432, ONLY SUM OF ` 5,81,607/- IS T AXABLE AND BALANCE SUM OF ` 2,38,240/- IS NOT TAXABLE. THE AFO RESAID FINDING WAS ALSO CONFIRMED BY THE TRIBUNAL. PENALTY WAS LEVIED ON THIS ACCOUNT. (III) IN THIS REGARD ASSESSEE HAS SUBMITTED THAT THI S IS NOT A CASE OF ANY CONCEALMENT OF INCOME BY THE ASSESSEE. IT IS A CASE WHERE THE ASSESSEE WAS OF THE OPINION THAT IN VIEW OF THE INSTRUCTION NO. 1432 ISSUED BY THE CBDT DATED 26.11 .1981, THE INCOME OF THE ASSESSEE IS NOT EXIGIBLE TO TAX AND I N SUCH CIRCUMSTANCES, MERE FACT THAT IT HAS BEEN HELD THA T IT IS EXIGIBLE TO TAX CANNOT BE A GROUND TO LEVY PENALTY ON THE A SSESSEE. IT (SS)A NO. 68/DEL/2009 9 (IV) WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT ASSESSEES SUBMISSIONS HAVE CONSIDERABL E COGENCY. ASSESSEE WAS UNDER A BONAFIDE BELIEF THAT THIS INCO ME IS EXEMPTED ON THE BASIS OF CBDT INSTRUCTION NO. 1432. SUBSTANTIAL RELIEF WAS ALSO GRANTED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) ON THE BASIS OF THE SAME INSTRUCTIONS. H ENCE, IN OUR CONSIDERED OPINION, THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S. 158BFA(2). ASSESSEES COUNSEL HAS ALSO RELIED UPON THE DECISION HONBLE APEX COURT DECISION IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS LTD. IN CIVIL APPEAL NO. 2463 OF 2010. IN THIS C ASE VIDE ORDER DATED 17.3.2010 IT HAS BEEN HELD THAT THE LAW LAID DOWN I N THE DILIP SHEROFF CASE 291 ITR 519 (SC) AS TO THE MEANING OF WORD CONCEAL MENT AND INACCURATE CONTINUES TO BE A GOOD LAW BECAUSE WHAT WAS OVERRU LED IN THE DHARMENDER TEXTILE CASE WAS ONLY THAT PART IN DILI P SHEROFF CASE WHERE IT WAS HELD THAT MENSREA WAS A ESSENTIAL REQUIREMENT O F PENALTY U/S 271(1)(C). THE HONBLE APEX COURT ALSO OBSERVED TH AT IF THE CONTENTION OF THE REVENUE IS ACCEPTED THEN IN CASE OF EVERY RETU RN WHERE THE CLAIM IS NOT ACCEPTED BY THE AO FOR ANY REASON, THE ASSESSEE WIL L INVITE THE PENALTY U/S 271(1)(C). THIS IS CLEARLY NOT THE INTENDMENT OF L EGISLATURE. WE FIND THAT IT (SS)A NO. 68/DEL/2009 10 ASSESSEES CASE DRAWS SUPPORTS FROM THE ABOVE CASE LAW AND WE HOLD THAT THE PENALTY ON THIS ACCOUNT IS NOT LEVIABLE. (B) (B) (B) (B). . . . RECEI RECEI RECEI RECEIPTS FROM BADIHAM CRICKET CLUB, UK PTS FROM BADIHAM CRICKET CLUB, UK PTS FROM BADIHAM CRICKET CLUB, UK PTS FROM BADIHAM CRICKET CLUB, UK - -- - (I) ON THIS ISSUE DURING THE COURSE OF SEARCH, CERT AIN DOCUMENTS WERE FOUND MARKED AS PAGES 1 TO 4 OF ANNE XURE A-2 WHICH CONTAINED WORK PERMIT OF SHRI AJAY SHARMA REGAR DING BADIHAM CRICKET CLUB, UK. IT ALSO CONTAINED CONTRA CT OF EMPLOYMENT DATED 4.2.2000 WHICH EVIDENCES THAT, TOT AL SUM OF ` 3500/- POUNDS WERE RECEIVED BY THE ASSESSEE FOR PLA YING THIS CLUB. THE ASSESSING OFFICER AFTER CONSIDERING THE ABOVE SEIZED DOCUMENTS, HELD THAT SUM RECEIVED OF 3500 POUNDS W AS INCOME OF THE ASSESSEE FOR FINANCIAL YEAR 2000-01. HENCE, HE TREATED THE ENTIRE SUM OF ` 2,10,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE. (II) UPON ASSESSEES APPEAL LD. COMMISSIONER OF INC OME TAX (APPEALS) FOUND THAT THE ABOVE AMOUNT WAS GROSS REC EIPT AND IT CANNOT BE SAID THAT NO EXPENDITURE WAS AT ALL INCUR RED FOR EARNING THE INCOME. LD. COMMISSIONER OF INCOME TAX (APPEAL S) HELD THAT THE ASSESSING OFFICER SHOULD HAVE ESTIMATED SOME EX PENSES AND ALLOWED THE SAME. HE OBSERVED THAT THERE IS NO FIN DING GIVEN BY IT (SS)A NO. 68/DEL/2009 11 THE ASSESSING OFFICER THAT EXPENSES WERE SEPARATEL Y REIMBURSED. LD. COMMISSIONER OF INCOME TAX (APPEALS) ACCORDINGLY, DIRECTED THE ASSESSING OFFICER TO ASSESS ONLY A SUM OF ` 1,0 5,000/- AS UNDISCLOSED INCOME ON THIS ACCOUNT. THE AFORESA ID FINDING WAS AFFIRMED BY THE TRIBUNAL. (III) ON THIS ISSUE, LD. COUNSEL OF THE ASSESSEE S UBMITTED THAT ASSESSEE HAS ALWAYS BEEN CONTENDING THROUGHOUT INC LUDING BY WAY OF FILING OF AFFIDAVIT DATED 26.6.2002 THAT AMOU NT PAID BY THE CLUB WAS FOR REIMBURSEMENT OF TRAVEL, BOARDING AND LODGING ETC. HE SUBMITTED THAT ONLY ON ACCOUNT OF NON-AVAILAB ILITY OF THE EVIDENCE THAT, IT HAS BEEN HELD THAT, ENTIRE RECEI PTS CANNOT BE EXEMPTED BUT PARTLY REPRESENTS INCOME OF THE ASSESSE E, YET THIS FACT ALONE CANNOT BE A GROUND TO LEVY PENALTY. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT THERE IS A CONSIDERABLE COGENCY IN THE ASSESSEES SUBMISSION IN THIS REGARD. ASSESSEE HAS NOT BEEN ABLE TO SUBMIT THE EVIDENCE THAT THE ENTIRE AMOUNT WAS REIMBURSEMENT ON TRAVEL, BOARD ING EXPENSES. ON THIS AMOUNT, LD. COMMISSIONER OF INC OME TAX (APPEALS) HAS GRANTED ESTIMATED RELIEF OF 50% ALSO. HENCE, IN OUR CONSIDERED OPINION, THE ISSUE IS NOT A FIT FOR LEVY OF PENALTY U/S. 158BFA(2). IT (SS)A NO. 68/DEL/2009 12 ( (( (C CC C) )) ). .. . RECEIPTS FROM M/S SANSPAREILS GREEN LTD. RECEIPTS FROM M/S SANSPAREILS GREEN LTD. RECEIPTS FROM M/S SANSPAREILS GREEN LTD. RECEIPTS FROM M/S SANSPAREILS GREEN LTD. - -- - ` 1,00,000/ ` 1,00,000/ ` 1,00,000/ ` 1,00,000/- -- - (I) ASSESSEE HAS RECEIVED ` 1 LAKH REPRESENTING RE CEIPTS FROM M/S SANSPAREILS GREEN LTD. ASSESSING OFFICER IN THIS REGARD NOTED THAT THE ASSESSEE HAS RECEIVED ` 1 LKH FROM M/S SANSPAREILS GREEN LTD. ON 1.3.2000 AS ENDORSEMENT MONEY. ASSES SING OFFICER NOTED THAT ASSESSEE HAS DECLARED THIS INCO ME IN HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2000-01 AFTER TH E DATE OF SEARCH. IT HAS BEEN NOTED THAT THE DATE OF SEA RCH IS 20.7.2000 AND THE DUE DATE OF FILING OF RETURN OF INCOME FOR A SSESSMENT YEAR 2000-01 IS 30.6.2000. ASSESSING OFFICER DID NOT ACCEPT THE ABOVE CONTENTION OF THE ASSESSEE AND MADE THE ADDIT ION OF ` 1,00,000/- ON THE BASIS THAT SIMILAR RECEIPT FROM M/S SANSPAREILS GREEN LAND LTD. PERTAINING TO FINANCIAL YEAR 1995- 96 WAS NOT DISCLOSED. (II) ON APPEAL, LD. COMMISSIONER OF INCOME TAX (APPEA LS) AFFIRMED THE ADDITION. (III) ON THIS ISSUE LD. COUNSEL OF THE ASSESSEE ST ATED THAT IT WAS THE ASSESSEES CASE THAT ASSESSEE WAS OUTSIDE INDIA DURING THE INTERVENING PERIOD SO HE COULD NOT FILE RETURN ON T IME AND IT WAS ONLY ON THIS ACCOUNT THAT THERE WAS DELAY IN FILING THE APPEAL. LD. IT (SS)A NO. 68/DEL/2009 13 COUNSEL OF THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING OF RETURN OF INCOME CANNOT BE A BASIS FOR LEVY OF PENAL TY. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT IT IS THE SUBMISSION OF THE ASSESSEE THAT ASSESSEE WAS OUTSIDE INDIA AND HENCE, HE WAS NO IN A POSITION TO FILE THE RET URN IN DUE TIME. THIS HAS LEAD TO DELAY IN FILING OF RETURN AND CONS EQUENTLY, ADDITIONS AND PENALTY WAS LEVIED. IN OUR CONSIDER ED OPINION, THERE IS CONSIDERABLE COGENCY IN THE ASSESSEES SUB MISSIONS THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT F ILING THE RETURN ON DUE TIME AND HENCE, IN OUR CONSIDERED OPI NION, LEVY OF PENALTY U/S. 158BFA(2) IS NOT JUSTIFIED. (D) (D) (D) (D). . . . INCOME FR INCOME FR INCOME FR INCOME FROM QUIZ PROGRAMME OM QUIZ PROGRAMME OM QUIZ PROGRAMME OM QUIZ PROGRAMME - -- - ` 3,000/ ` 3,000/ ` 3,000/ ` 3,000/- -- -. .. . (I) ON THIS ISSUE ASSESSEE RECEIVED A SUM OF ` 3000/ - FOR PARTICIPATING IN TV SPORTS QUIZ. THIS ADDITION WA S MADE ONLY ON THE STATEMENT OF THE ASSESSEE AND NO DOCUMENT WAS SEIZED ON THIS ACCOUNT. IT IS THE CLAIM OF THE ASSESSEE THAT A SSESSEE WAS UNDER THE BONAFIDE BELIEF THAT THIS INCOME IS NOT TA XABLE, THEREFORE, LEVY OF PENALTY IS IMPOSED. (II) WE HAVE HEARD BOTH THE COUNSEL AND PERUSED TH E RECORDS WE FIND THAT ASSESSEE HAS RECEIVED A SUM OF ` 3000/ - FOR IT (SS)A NO. 68/DEL/2009 14 PARTICIPATING IN THE TV SPORTS QUIZ. THIS FACT WAS STATED BY THE ASSESSEE HIMSELF AND NO DOCUMENT WAS SEIZED IN THIS REGARD. ASSESSEE WAS UNDER A BONAFIDE BELIEF THAT RECEIPT W AS NOT TAXABLE. IN OUR CONSIDERED OPINION, THERE IS A REASONABLE BA SIS FOR THE ASSESSEE BELIEF IN THIS REGARD. HENCE, I N OUR CONSIDERED OPINION, PENALTY U/S. 158BFA(2) IS NOT LEVIABLE. ( (( (E EE E). ). ). ). INCOME FROM SALARY AND INTEREST TREATED INCOME FROM SALARY AND INTEREST TREATED INCOME FROM SALARY AND INTEREST TREATED INCOME FROM SALARY AND INTEREST TREATED AS UNDISCLOSED AS UNDISCLOSED AS UNDISCLOSED AS UNDISCLOSED RETURN RETURN RETURN RETURN. . . . - -- - ` 3,90, ` 3,90, ` 3,90, ` 3,90,867/ 867/ 867/ 867/- -- -. . . . (I) ON THIS ISSUE PENALTY HAS BEEN LEVIED IN RESPEC T OF ADDITION OF ` 3,90,867/- REPRESENTING THE SALARY AND INTERES T INCOME FROM M/S CENTRAL WAREHOUSING CORPORATION. ON PERUS AL OF THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS )S ORDER ON THE QUANTUM ISSUE, WE FIND THAT LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS DELETED THE PENALTY ON THE SALARY PART OF THE INCOME. HOWEVER, THE INTEREST INCOME WAS DIRECTED TO BE ASSESSED AS UNDISCLOSED INCOME. (II) ON THIS ISSUE ASSESSEE HAS SUBMITTED THAT THE SALARY INCOME FROM CENTRAL WAREHOUSING CORPORATION WAS ` 3,58,889/- WHICH HAS BEEN HELD TO BE NOT INCLUDIBLE AS UNDISCLOSED INCOME OF THE ASSESSEE BY THE LD. IT (SS)A NO. 68/DEL/2009 15 COMMISSIONER OF INCOME TAX (APPEALS) AND BALANCE SUM OF ` 31,978/- WAS ASSESSED AS INTEREST INCOME. ON T HIS ISSUE ASSESSEE HAS CLAIMED THAT ASSESSEE WAS ELIGIBLE TO DEDUCTION U/S. 80L OF THE IT ACT. HENCE, PENALTY O N THIS ISSUE IS NOT LEVIABLE. (III) WE HAVE HEARD BOTH THE COUNSEL AND PERUSED T HE RECORDS. WE FIND CONSIDERABLE COGENCY IN THE SUBMI SSIONS OF THE ASSESSEE. WE HOLD THAT PENALTY U/S. 158BFA(2 ) IS NOT LEVIABLE ON THIS ACCOUNT. (F). (F). (F). (F). ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER SEIZED ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER S EIZED ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER S EIZED ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER S EIZED PAPER. PAPER. PAPER. PAPER. - -- - ` 23,000/ ` 23,000/ ` 23,000/ ` 23,000/- -- -. . . . (I) THIS ADDITION IS BASED ON SEIZED DOCUMENTS PAG E NO. 3 OF ANNEXURE A-1, WHICH IS IN THE HAND WRITING OF THE ASSESSEE AND WHICH STATES LENA HAI AT THE TOP, FO LLOWED BY THE NAMES OF DIPPON (` 10,000/-), KAPIL (` 5000/-), AND JADEJA (` 8000/-). ASSESSEE HAS SUBMITTED THAT THI S AMOUNT WAS ACTUALLY PAYABLE TO THE CONCERNED. HOW EVER, ASSESSING OFFICER DID NOT ACCEPT THIS CONTENTION A ND ADDITION WAS MADE AND PENALTY WAS LEVIED. (II) WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LD. COUNSEL OF THE ASSESSEE SUBMITTED TH AT THERE IS NO DIRECT MATERIAL WHAT HAS BEEN FOUND AND EVERY RECEIPT DOES NOT PARTAKE THE CHARACTER OF INCOME. IT HAS BEEN IT (SS)A NO. 68/DEL/2009 16 SUBMITTED THAT THIS ADDITION IS MADE ON THE BASIS OF MERE PROBABILITIES AND ASSUMPTIONS. THERE IS NO DIREC T MATERIAL WHICH HAS BEEN FOUND, WHICH ALLEGES AND ESTABLISHES THAT ANY INCOME RECEIVED BY THE ASSESSEE HAS NOT BEEN DE CLARED BY THE ASSESSEE. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION. WE FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF LOOSE DOCUMENT, WHICH DID NOT CONCL USIVELY PROVE ANY CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE. HENCE, IN OUR CONSIDE RED OPINION, PENALTY U/S. 158BFA(2) IS NOT LEVIABLE. 8. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS A ND PRECEDENT RELIED UPON, THE PENALTY U/S. 158BFA IS NOT LEVIABL E. ACCORDINGLY, WE DELETE THE PENALTY IN THIS REGARD. 9. IN THIS RESULT, THE ASSESSEES APPEAL STANDS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/5/2012. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 04/5/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES