Shri Narayanbhai S. Patel, Ahmedabad V. The Income Tax Officer, Ward-12(1),., Ahmedabad

MA 144/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3095 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-06-2015
• Assessment Year: 1991-1992
• Appeal Filed On: 05-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: S N DIVATIA
• Keywords: Search and seizure; Peak credit

Judgement Text

, ! C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND RAJPAL YADAV JUDICIAL MEMBER M.A. NO.144 & 145/AHD/20 14 (ARISING OUT OF ITA NO.1272 & 1273/AHD/2011) (ASS TT. YEARS: 1991-92 AND 1992-93) SHRI NARANBHAI S.PATEL, 73-74 CIRAG INDL. ESTATE, CTM CHAR RASTA, AMRAIWADI, AHMEDABAD-380026. PAN ACNPP 7492N VS INCOME TAX OFFICER, WARD 12(1), AHMEDABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI S.N. DIVATIA. REVENUE BY SHRI M.K. SINGH, SR.D.R. / DATE OF HEARING : 05-06-2015 / DATE OF PRONOUNCEMENT: 19-6-2015 / O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THESE ARE THE MISCELLANEOUS APPLICATIONS FILED BY T HE ASSESSEE AGAINST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 30-6-2 014 PASSED IN I.T.A.NO.1272 & 1273/AHD/2011 FOR THE A.Y. 1991-92 AND 1992-93. MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 2 2. THE GRIEVANCE PROJECTED IN THE MISCELLANEOUS PET ITION FILED BY THE ASSESSEE READS AS UNDER:- 1. THE APPLICANT ABOVE-NAMED HAS DOWNLOADED ON 8-8 -2014 WITH THE ORDER PASSED BY THE APPELLATE TRIBUNAL BEN CH C, AHMEDABAD FOR A.Y. 1991-92 IN ITA NO.1272/AHD/11 WHEREBY THE APPEAL OF THE APPLICANT HAS BEEN DISMIS SED. IT IS NOTICED THAT IN SO FAR AS THE GROUND RELATING TO THE LEVY OF PENALTY IN RESPECT OF THE PEAK CREDIT IS CONCERNED, THE HONBLE APPELLATE TRIBUNAL HAS FOR THE REASONS STAT ED IN PARA 11 OF THE ORDER HELD THAT (I) THE SOURCE OF DEPOSIT IN BANK ACCOUNTS WAS NOT EXPLAINED, (II) THE DECISIONS RELI ED UPON BY AR WERE DISTINGUISHABLE ON FACTS. IT IS ALSO NOTICE D THAT HONBLE TRIBUNAL HAS RELIED UPON THE DECISION IN TH E CASE OF BECHARDAS PARMAR (341 ITR-499) (GUJ.) AND FURTHER H ELD THAT THE DEPT HAD DETECTED OTHER FIVE BANK ACCOUNTS . 2. IN THE HUMBLE SUBMISSION OF THE APPLICANT, THE APPARENT ERROR IS AS UNDER:- 2.1. THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE FINDING GIVEN BY HONBLE TRIBUNAL THAT THE SOURCE OF DEPOSI T IN SAID BANK ACCOUNTS WAS NOT EXPLAINED BY THE ASSESSEE-APP LICANT IS NOT FACTUALLY CORRECT IN AS MUCH AS IT WOULD BE NOTICED FROM THE ASSESSMENT ORDER ITSELF THAT WHILE EXPLAIN ING THE MODUS OPERANDI IT WAS POINTED OUT AS UNDER:- WITH INITIAL CAPITAL CONTRIBUTION OF SEVERAL PERSO NS NAMED ABOVE I HAVE MADE INVESTMENT IN SHARES AND SECURITIES OF FUNDS INITIALLY CONTRIBUTED IN CASH I S EMPLOYED BY WAY OF CASH DEPOSITS IN DIFFERENT BANK ACCOUNTS PARTICULARS WHEREOF ARE DISCLOSED WITH THE RETURN.. . 2.2. THE NEXT FINDING GIVEN BY HONBLE TRIBUNAL THA T FIVE BANK ACCOUNTS WERE DETECTED BY DEPT. AND IN VIEW OF TRAN SFER ENTRIES THE DISCLOSURE CANNOT BE SAID TO BE VOLUNTA RY IS ALSO NOT FACTUALLY CORRECT IN AS MUCH AS THE PERUSAL OF REASONS RECORDED FOR REOPENING CLEARLY SHOWS THAT THE ASSES SEE- APPLICANT BY LETTER DATED 1-12-1995 BROUGHT TO THE NOTICE OF ADIT(INV) ABOUT THE EXISTENCE OF FURTHER BANK ACCOU NTS. HAD THE DEPT. KNOWLEDGE ABOUT THE SAME,. THEY WOULD HAVE BEEN REFERRED TO EARLIER BY ADIT (INV) WHILE R ECORDING APPLICANTS STATEMENT. EVEN THE DISCLOSURE MADE BY THE APPLICANT BEFORE ADIT (INV) DID NOT PERTAINED TO TH E PEAK MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 3 CREDIT FOR THIS YEAR UNDER CONSIDERATION. THIS YEAR WAS REOPENED AS A RESULT OF ASSESSMENT MADE FOR A.Y. 19 93-94 WHEREIN PEAK CREDIT FOR THIS YEAR WAS POINTED. 2.3. THE NEXT REASON ADVANCED BY HONBLE TRIBUNAL I S THAT THE CASE LAWS RELIED UPON B Y AR WAS DISTINGUISHABLE ON FACTS. THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE PERUSAL OF THE DECISION IN CASE OF SHRI MURARILAL R. AGRAWA L THERE WAS A SEARCH WHEREIN A BANK ACCOUNT WAS FOUND AND T HE ASSESSEE HAD ADMITTED IT AS HIS BENAMI AND THE ADDI TION IN RESPECT OF PEAK CREDIT WAS MADE. SIMILARLY IN CASE OF SHRI OJAS MEHTA AN ADDITION OF RS.22,72,788/- WAS MADE O N THE BASIS OF PEAK OF UNDISCLOSED BANK ACCOUNT... THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT TH E FACTS OF THE PRESENT CASE ARE SIMILAR TO THOSE CASE S IN THE SENSE THAT THE ADDITION OF PEAK CREDIT OF BANK ACCO UNTS FOUND OUT WAS MADE AND THE PENALTY LEVIED THEREON W AS DELETED. THE APPLICANTS CASE IS ON MUCH STRONGER F OOTING THAT IT IS NOT THE CASE OF SEARCH AND OTHER BANK AC COUNTS WERE DISCLOSED BY THE PRESENT APPLICANT TO DEPT. 2.4. THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE RELIANCE PLACED BY HONBLE TRIBUNAL ON THE DECISION OF SHRI BECHARDAS PARMAR IS WHOLLY MISPLACED ON FACTS AND IN LAW BOTH . IT WAS A CASE OF SEARCH AND SEIZURE WITH ASSTT UNDER SPECI AL CHAPTER XVI I.E. 158BC AND PENALTY U/S. 158BFA (2) ARE NOT APPLICABLE AS HELD IN THE SAID DECISION ITSELF. 2.5. IN VIEW OF ABOVE FACT AND CIRCUMSTANCES OF THE CASE, THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE CONC LUSION REACHED BY HONBLE TRIBUNAL IS CONTRARY TO THE FACT S OF THE CASE AND THE JUDICIAL PRONOUNCEMENTS OF SAID TWO DE CISIONS. 2.6. IT IS THEREFORE, PRAYED THAT THE INADVERTENT F ACTUAL ERRORS AS POINTED OUT HEREINABOVE MAY PLEASE BE RECTIFIED AND THE ULTIMATE ORDER OF THE HONBLE TRIBUNAL MAY PLEASE B E MODIFIED IN LIGHT OF THE CORRECT FACTS AS WELL AS P OSITION IN LAW. 3. ORDER OF THE TRIBUNAL READS AS UNDER:- 1. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-XX, AHMEDABAD DATED 04.02.20111. MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 4 2. THE SOLE GROUND TAKEN IN BOTH THE APPEALS BY THE ASSESSEE IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACTS AND IN LAW IN CONFIRMING T HE PENALTY OF RS 1,33,400/- FOR ASSESSMENT YEAR 1991-92 AND RS 3,88,700/- FOR ASSESSMENT YEAR 1992-93 LEVIED BY ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT. 3. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE FILED ITS RETURN OF INCOME DISCLOSING INCOME OF RS 31,880/- IN ASSESSMENT YEAR 1991- 92 AND RS 36,880/- IN ASSESSMENT YEAR 1992-93. THEREAFTER, IT WAS FOUND ON INVESTIGATION BY THE DE PARTMENT THAT THE ASSESSEE WAS HAVING CERTAIN BANK ACCOUNTS WHICH WERE NOT DISCLOSED TO THE DEPARTMENT. ACCORDINGLY, THE PEAK BALANCE IN THE UNDISCLOSED BANK ACCOUNTS WERE TREAT ED AS INCOME OF THE ASSESSEE. 4. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT B Y DETERMINING ASSESSEES TOTAL INCOME AT RS 3,19,480/ - IN THE ASSESSMENT YEAR 1991-92 AND AT RS 5,77,070/- IN ASSESSMENT YEAR 1992-93. 5. ON APPEAL, THE SAID TOTAL INCOME WAS REDUCED TO RS 2,90,380/- FOR THE ASSESSMENT YEAR 1991-92 AND INCR EASED TO RS 7,38,900/- FOR ASSESSMENT YEAR 1992-93 BECAUS E OF CERTAIN MISTAKE IN ARITHMETICAL CALCULATION OF THE ASSESSING OFFICER. 6. THEREAFTER, PENALTY U/S. 271(1)(C) WAS LEVIED OF RS 1,33,400/- FOR ASSESSMENT YEAR 1991-92 AND RS 3,88, 700/- FOR ASSESSMENT YEAR 1992- 93. 7. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE LEVY OF PENALTY. 8. BEFORE US, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT AS THE ADDITION WAS MADE OF THE PEAK AMOUNT OF THE RESPECTIVE ASSESSMENT YEARS, THE ADDITION WAS ON ESTIMATE BASIS AND THEREFORE PENALT Y U/S. 271(1)(C) CANNOT BE LEVIED. HE, IN SUPPORT OF THE A BOVE CONTENTION, RELIED UPON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF MURARILAL RATANLAL AGARWAL VS. ACIT IN IT(SS)A NO. 573 & 615/AHD/2012 ASSESSMENT YEAR 2 004- 05 ORDER DATED 05.07.2013 AND IN THE CASE OF SHRI O JAS ASHOKBHAI MEHTA VS. ITO IN ITA NO. 296 & 297/AHD/20 13 ASSESSMENT YEAR 2008-09 ORDER DATED 23.08.2013. MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 5 9. IN THE ALTERNATIVE, THE AUTHORIZED REPRESENTATI VE OF THE ASSESSEE ALSO CONTENDED THAT ONLY ONE UNDISCLOS ED BANK ACCOUNT WAS FOUND BY THE INVESTIGATION WING OF THE DEPARTMENT AND THE ASSESSEE HIMSELF DISCLOSED THE O THER FIVE BANK ACCOUNTS AND THE ADDITION WAS MADE ON THE BASIS OF ALL THE SIX BANK ACCOUNTS OUT OF WHICH FIVE BANK ACCOUNTS WERE VOLUNTARILY DISCLOSED BY THE ASSESSEE AND THER EFORE, PENALTY U/S. 271(1)(C) SHOULD NOT HAVE BEEN LEVIED IN RESPECT OF INCOME ASSESSED ON THE BASIS OF THOSE FI VE BANK ACCOUNTS. 10. THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 11. WE FIND THAT IT IS NOT IN DISPUTE THAT THE SI X BANK ACCOUNTS WITH REFERENCE TO WHICH ADDITION WAS MADE BY THE ASSESSING OFFICER WERE NOT DISCLOSED BY THE ASSESSE E IN ITS RETURN OF INCOME. THE SOURCE OF DEPOSIT IN THE SAID BANK ACCOUNTS COULD NOT BE EXPLAINED BY THE ASSESSEE. IN THE ABOVE CIRCUMSTANCES, THE ADDITION OF PEAK BALANCE I N THE SAID BANK ACCOUNTS CANNOT BE HELD AS AN ADDITION MA DE MERELY ON ESTIMATE BASIS WITHOUT RELEVANT MATERIALS . THE TWO DECISIONS RELIED UPON BY THE AUTHORIZED REPRESE NTATIVE OF THE ASSESSEE ARE FOUND TO BE DISTINGUISHABLE ON FACTS IN AS MUCH AS IN THOSE CASES PENALTY WAS LEVIED ONLY O N DIFFERENCE BETWEEN THE PEAK BALANCE DECLARED BY THE ASSESSEE AND THE PEAK BALANCE ESTIMATED BY THE DEPARTMENT WHEREAS IN THE INSTANT CASE, THE ADDITIO N WAS MADE ON ACTUAL PEAK BALANCE IN THE BANK ACCOUNT FOR WHICH NO PLAUSIBLE EXPLANATION ABOUT THE SOURCE OF THE SA ME COULD BE GIVEN BY THE ASSESSEE. THEREFORE, SUCH DECISIONS ARE FOUND TO BE NOT APPLICABLE IN THE INSTANT CASE. 12. FURTHER, IN THIS CONNECTION WE WOULD LIKE TO Q UOTE THE DECISION OF THE HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. BECHARBHAI P. PARMAR (2012) 341 ITR 0499 (GUJ.) WHEREIN THE HONBLE HIGH COURT HAS HELD AS U NDER: PENALTY CORRESPONDING TO THE ADDITION OF RS 17.22 LAKHS WAS DELETED ON THE GROUND THAT THE ASSESSEE HAD DEMONSTRATED THAT THERE WAS ESTIMATION OF ADDITIONS AND THAT, THEREFORE, NO PENALTY COULD BE LEVIED. HERE A GAIN, WE ARE OF THE OPINION THAT THE TRIBUNAL INTERFERED WIT H THE PENALTY ON THE GROUND WHICH WAS NOT PERMISSIBLE. AD DITIONS MADE ON THE BASIS OF ESTIMATION MAY BE ONE OF THE G ROUNDS ON WHICH DISCRETION NOT TO IMPOSE PENALTY MAY BE EX ERCISED. HOWEVER, IN THE ABSENCE OF ANY REQUIREMENT TO PROVE THE MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 6 CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS FOUND IN SECTION 271(1)(C) OF THE ACT CANNOT FORM THE SOLE B ASIS TO DELETE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER (APPEALS). 13. FURTHER, WE ALSO DO NOT FIND MERIT IN THE ALT ERNATIVE ARGUMENT OF THE ASSESSEE BECAUSE THE OTHER FIVE BAN K ACCOUNTS WHICH WERE ALSO NOT DISCLOSED IN THE RETUR N HAD TRANSFER ENTRIES TO THE ONE UNDISCLOSED BANK ACCOUN T WHICH WAS ALREADY DETECTED BY THE DEPARTMENT. THUS, THE DISCLOSURE OF THE OTHER FIVE UNDISCLOSED BANK ACCOU NTS BY THE ASSESSEE CANNOT BE HELD AS VOLUNTARY DISCLOSURE BY THE ASSESSEE ON THE FACTS OF THE INSTANT CASE. THE DISC LOSURE CAME UP BECAUSE THE DEPARTMENT ALREADY DETECTED ONE UNDISCLOSED BANK ACCOUNT WHICH CONTAINED TRANSFER E NTRIES OF THE REMAINING FIVE UNDISCLOSED BANK ACCOUNTS. IN THE ABOVE CIRCUMSTANCES, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDERS OF THE LOWER AUTHORITIES. THEREFORE, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. ACCORDING TO THE AUTHORISED RE PRESETATIVE OF THE ASSESSEE THE ASSESSEE EXPLAINED THE SOURCE OF DEPOS IT IN ITS 6 UNDISCLOSED BANK ACCOUNT AND THE SAME IS EVIDENCED BY THE FOLLOWING FINDING IN THE ASSESSMENT ORDER. WITH INITIAL CAPITAL CONTRIBUTION OF SEVERAL PERSO NS NAMED ABOVE I HAVE MADE INVESTMENT IN SHARES AND SECURITI ES OF FUNDS INITIALLY CONTRIBUTED IN CASH IS EMPLOYED BY WAY OF CASH DEPOSITS IN DIFFERENT BANK ACCOUNTS PARTICULAR S WHEREOF ARE DISCLOSED WITH THE RETURN... 5. WE FIND THAT NO SUCH OBSERVATION IS STATED IN EI THER OF THE ASSESSMENT ORDERS FOR THE TWO YEARS WHICH ARE UNDER CONSIDERATION. THUS WE DO NOT FIND ANY ERROR IN THE ORDER OF THE T RIBUNAL IN THIS RESPECT. MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 7 6. FURTHER THE NEXT CONTENTION OF THE ASSESSEE IS T HAT FINDING OF THE TRIBUNAL THAT IN VIEW OF TRANSFER ENTRIES IN THE UN DISCLOSED BANK ACCOUNT DETECTED BY THE DEPARTMENT TO OTHER 5 UNDISCLOSED B ANK ACCOUNT THE DISCLOSURE OF THE 5 BANK ACCOUNT BY THE ASSESSEE WA S NOT VOLUNTARY IS NOT ACTUALLY CORRECT BECAUSE IN THE REASONS RECORDE D FOR REOPENING OF THE ASSESSMENT OF THE YEARS UNDER CONSIDERATION, TH E REASONS RECORDED SHOWS THAT THE ASSESSEE VIDE ITS LETTER DATED 1-12- 1995 BROUGHT TO THE NOTICE OF THE ADIT ABOUT THE EXISTENCE OF THE FURTH ER BANK ACCOUNT. 7. WE FIND THAT IT IS NOT IN DISPUTE THAT THE UNDIS CLOSED BANK ACCOUNT WHICH WAS DETECTED BY THE DEPARTMENT CONTAINS TRANS FER ENTRIES TO OTHER 5 UNDISCLOSED BANK ACCOUNTS MAINTAINED BY THE ASSES SEE. IN VIEW OF THIS FACT THE TRIBUNAL CONCLUDED THAT THE SUBSEQUEN T DISCLOSURE OF THE ASSESSEE OF EXISTENCE OF THE SAID 5 BANK ACCOUNTS C ANNOT BE HELD AS VOLUNTARY. WE DO NOT FIND ANY ERROR MUCH LESS AN AP PARENT ERROR IN THE ABOVE FINDING OF THE TRIBUNAL. 8. FURTHER, THE ASSESSEE CONTENDS THAT THE DECISION IN THE CASE OF MURARILAL RATANLAL AGARWAL VS. ACIT AND SHRI OJAS A SHOKBHAI MEHTA ARE NOT DISTINGUISHABLE ON FACTS FROM THE FACT OF THE I NSTANT CASE. WE FIND THAT THE TRIBUNAL IN ITS ORDER OBSERVED THAT THE FA CT IN THOSE CASES WERE THAT PENALTY WAS LEVIED IN RESPECT OF DIFFERENCE IN PEAK DEPOSIT AS DISCLOSED BY THE ASSESSEE AND PEAK DEPOSIT AS ESTIM ATED BY THE DEPARTMENT IN UNDISCLOSED BANK ACCOUNT AND IN THE I NSTANT CASE NO PENALTY WAS LEVIED IN THE DIFFERENCE BETWEEN THE PE AK DEPOSIT AS DISCLOSED BY THE ASSESSEE AND PEAK DEPOSIT AS ESTIM ATED BY THE DEPARTMENT. 9. WE FIND THAT IN THOSE CASES IT WAS NOT AT ISSUE THAT WHETHER PENALTY U/S. 271(1)(C) IS LEVIABLE IN RESPECT OF TH E INCOME WHICH HAS BEEN ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON T HE BASIS OF ACTUAL MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 8 PEAK BALANCE IN UNDISCLOSED BANK ACCOUNT WHICH IS T HE ISSUE IN THE INSTANT CASE BEFORE THE TRIBUNAL. IN THE INSTANT CA SE IT WAS NOT THE ISSUE THAT THERE WAS DIFFERENCE IN THE PEAK BALANCE AS DI SCLOSED BY THE ASSESSEE AND THE PEAK BALANCE AS ESTIMATED BY THE D EPARTMENT AND ONLY IN RESPECT OF THE DIFFERENCE THE PENALTY WAS L EVIED BY THE DEPARTMENT UNDER SEC. 271(1)(C) OF THE ACT. THUS, WE FIND NO ERROR IN THE FINDING OF THE TRIBUNAL IN THIS RESPECT. 10. LASTLY, THE ASSESSEE CONTENDED THAT THE DECISIO N OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SHRI BECHARBHAI P . PARMAR (SUPRA) IS NOT APPLICABLE IN THE INSTANT CASE BECAUSE IN THAT CASE A SEARCH WAS CONDUCTED BY THE DEPARTMENT AND THE PENALTY WAS LEV IED U/S. 158BFA OF THE ACT, WHEREAS IN THE INSTANT CASE THE PENALTY LEVIED WAS UNDER SEC. 271(1)(C) OF THE ACT. 11. WE FIND THAT THE TRIBUNAL HAS QUOTED THE FOLLOW ING PRINCIPLE OF LAW ENUNCIATED BY THE HONBLE GUJARAT HIGH COURT:- PENALTY CORRESPONDING TO THE ADDITION OF RS.17.22 LAKHS WAS DELETED ON THE GROUND THAT THE ASSESSEE HAD DEMONST RATED THAT THERE WAS ESTIMATION OF ADDITIONS AND THAT, THEREFO RE, NO PENALTY COULD BE LEVIED. HERE AGAIN, WE ARE OF THE OPINION THAT THE TRIBUNAL INTERFERED WITH THE PENALTY ON HE GROUND W HICH WAS NOT PERMISSIBLE. ADDITIONS MADE ON THE BASIS OF ESTIMAT ION MAY BE ONE OF THE GROUNDS ON WHICH DISCRETION NOT TO IMPOS E PENALTY MAY BE EXERCISED. HOWEVER, IN THE ABSENCE OF ANY REQUIR EMENT TO PROVE THE CONCEALMENT OR FURNISHING OF INACCURATE P ARTICULARS FOUND IN SECTION 271(1)(C) OF THE ACT CANNOT FORM T HE SOLE BASIS TO DELETE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER (APPEALS.) 12. THE TRIBUNAL PLACED RELIANCE ON THE ABOVE PRINC IPLE OF LAW ENUNCIATED BY THE HONBLE HIGH COURT. WHILE LAYING DOWN THE ABOVE PRINCIPLE, THE HONBLE HIGH COURT HAS EXPRESSLY STA TED ABOUT THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. THUS TH E SAID DECISION SQUARELY COVERS THE CASE WHERE PENALTY UNDER SECTIO N 271(1)(C) IS MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 9 LEVIED. WE THEREFORE, DO NOT FIND ANY ERROR MUCH LE SS AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL IN THIS RESPECT. 13. WE THEREFORE, DO NOT FIND ANY MERIT IN THESE MI SCELLANEOUS APPLICATIONS OF THE ASSESSEE, ACCORDINGLY THE SAME ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 19TH D AY OF JUNE,2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER 19-6-2015. PATKI / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. && ' / CONCERNED CIT 4. ' () / THE CIT(A), AHMEDABAD 5. *+, $-- , , / DR, ITAT, AHMEDABAD 6. ,/0 1 / GUARD FILE. !' / BY ORDER, #/!$% &'(' ( DY./ASSTT.REGISTRAR) %' ()% *+',, $./ / ITAT, AHMEDABAD MA NOS.144 & 145/AHD/2014 IN ITA NOS.1272 & 1273/AHD/2011 ASSTT. YEARS 1991-92 & 1992-93. 10 1. DATE OF DICTATION- 11-6-2015 & 17-6-2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER :17-6-2015 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P .S./P.S. 17-6-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 19-6-2015. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19-6 -2015 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER