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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: Shri Waseem Ahmed & Shri T.R. Senthil Kumar
Shri Shwetal J Patel The Income Tax A-1003, Iscon Park, Officer, Nr. Sudervan, Vs Ward-3(3)(5), Satellite, Ahmedabad Ahmedabad PAN No: ABAPP0582B (Respondent) (Appellant) Appellant by : None Respondent by : Shri Rakesh Jha, Sr.D.R. Date of hearing : 13-12-2022 Date of pronouncement : 14-12-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-
This is an appeal filed by the Assessee as against the order dated 29.12.2016 passed by the Commissioner of Income Tax (Appeals)-3, Ahmedabad, confirming the penalty levied under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year (A.Y) 2010-11.
Page No 2 Shri Shwetal J Patel vs. ITO
This appeal is listed for today as the 22nd time of hearing. None appeared on behalf of the assessee, even in the previous hearings none appeared in spite of service of notice to the assessee.
The Ld. D.R. appearing for the Revenue submitted that even the quantum appeal of the assessee in was dismissed for non-appearance by the assessee vide order dated 09/11/2017 which reads as follows: This assessee's appeal for A.Y. 2010-11, arises from order of the CIT(A)- XIV, Ahmedabad dated 27-03-2014, in proceedings under section 143(3) of the Income Tax Act, 1961; in short "the Act". 2. At the time of hearing, none appeared on behalf of the appellant- assessee. Last notice of hearing was sent to the assessee on 25/09/2017 fixing the date of hearing on 06/11/2017 at the address indicated in column No. 10. Despite this, the assessee remained unrepresented. It is further seen that the said notice has not come back un-served. In the aforementioned peculiar facts and circumstances of the case, in the absence of any representation on behalf of the assessee or petition seeking time, it can be safely presumed that the assessee is not serious in pursuing the appeal filed. Accordingly the only alternative left is to dismiss the appeal of the assessee in limine. Support is drawn from the order of the Tribunals in Commissioner of Income Tax vs. Multi Plan India (P) Ltd.; 38 ITD 320 (Del) and Estate of Late Tukojirao Holka vs. CWT: 223 ITR480 (M.P.). 3. Before parting, it is appropriate to add that in case the assessee is able to show that there was a reasonable cause for non-representation on the date of hearing, it would be at liberty if so advised to pray for a recall of this order.
3.1. The Ld. D.R. further submitted that the assessee has not filed any Miscellaneous Application to restore the appeal within six months as provided under section 254(2) of the Act. The findings of the Ld. CIT(A) even on merits also confirmed the levy of penalty of Rs.7,82,830/-. Thus the Ld. D.R. pleaded the above levy of Page No 3 Shri Shwetal J Patel vs. ITO penalty is to be confirmed by the Tribunal and the assessee’s appeal is to be dismissed.
We have given our thoughtful consideration and perused the materials available on record. As it is seen from the quantum appeal order in in assessee’s own case for the very same Assessment Year 2010-11, the appeal was dismissed for non-prosecution.
4.1. Further the findings of the Ld. CIT(A) on merits of the case is as follows: 4. Decision: I have gone through the penalty order of the AO and submission filed by the appellant carefully. The appellant has submitted that the penalty order is suffering from certain discrepancies and the appellant had derived agriculture income of Rs.17,18,470/- which has been ignored. The appellant has deposited cash of Rs.50,01,970/- for which particulars were not filed alongwith return of income. Similarly, there was addition on account of unexplained investments in capital account. The CIT(A) has given categorical findings in order dated 27.03.2014 and upheld the addition of Rs.5,60,000/- as unexplained investment and Rs.20,82,400/- as unexplained deposits in bank accounts. It is found that the appellant has not been showing any agriculture income in immediate preceding years. Therefore, the explanation of the appellant has been rightly rejected. It is felt that the appellant is conducting his financial affairs in a quite unorganized manner and when got caught during assessment proceedings then he started submitting certain explanations. The appellate authority has given benefit of doubt during quantum proceedings but certain unaccounted transactions could not be held as explainable. Therefore, the explanation so submitted has no corroborative value with whatever submitted through return of income. The appellant has relied on a few cases but ratio in those cases is not applicable. This is not inadvertent mistake or a silly mistake. The appellant in this case has not come out clearly with important facts till the filing return of income so as to show the lack of mens rea. I feel the mistake claimed by appellant is intentional and undertaken with purpose by not disclosing true income in the return of income. It may be mentioned that more than 90% of the returns are not scrutinized and enclosures which are voluntary to be filed, are not necessarily checked. As per various pronouncements by the different courts, penalty of concealment Page No 4 Shri Shwetal J Patel vs. ITO cannot be imposed because the assessee has taken a particular stand or had preferred an interpretation which was plausible and reasonable, but has not been accepted, unless the assessee had not disclosed facts before the authorities. Such cases have to be distinguished from cases where the claim of the assessee is farcical or farfetched. Dubious and fanciful claims under the garb of interpretation, are a mere pretense and not bonafide. Similarly, the appellant can't get benefit of land mark Supreme Court judgment in the case of Reliance Petro Products Ltd., 322 ITR 158 (SC) wherein in the last para of judgment it has been stated, ........... wherein there is no findings by the assessing officer for the inaccurate particulars or concealment of income. In fact, same ratio is reiterated by Hon'ble Gujarat High Court in the case of CIT Ahd-IV Vs. Whiteford India Ltd. 38 Taxmann.com 15 (Guj.) wherein the relief to the assessee was granted with following comments, "..... where no clear finding was recorded by Assessing Officer whether assessee was guilty of concealing income and/or furnishing inaccurate particulars of income, .....". Therefore, courts have consistently held that there need to be findings of A.O. if the penalty order is to be confirmed. In instant case, there is specific finding by the A.O. In a recent judgment dated 31.10.2013 in the case of Mak Data Pvt. Ltd. Vs. CIT, 38 Taxmann Com 448 (SC), the Hon'ble Supreme Court has ruled, "voluntary disclosure does not absolve assessee, bonafide explanation of income required". The facts of the case also make it amenable to the judgment against it in the case of K.P. Madhusudhanan Vs. CIT 251 ITR 99 (SC). Further, as per judgments, additional income in response to notice u/s. 148, penalty on additional income confirmed in the case laws PC Joseph & Bros. Vs. CIT 243 ITR 818 (Ker.) Narain Das Suraj Bhan Vs. CST 21 STC 104 (SC) The dictionary meaning of the word concealment is to hide, to keep secret. The Explanation to section 271(1)(c) does not alter or extend this meaning. It only assumes the concealment to exist if the assessee fails to prove that the non disclosure was not due to fraud or willful conduct, held by Allahabad High Court in the case of Mohammad Ibrahim Azimulla 131 ITR 680 (AIL). Concealment means an attempt to hide an item of income or a portion thereof from the knowledge of the income tax authorities, held in case of CIT Vs. Mahabit Prasad Bajaj 298 ITR 109(Jhar). The A.O. has initiated penalty perfectly as per provisions of the IT. Act, 1961 and has only imposed penalty of 100% of amount payable on concealed income for which inaccurate particulars have been furnished. It is not the case where appellant made certain claims in the return of income which were found to be not allowable subsequently during assessment proceedings, rather it is a case where additions have been made on certain facts which came to surface only during the examination of record by the assessing officer. In view of facts of this case and the case laws quoted above, I conclude that penalty order u/s. 271(1)(c) IT Act, 1961 is Page No 5 Shri Shwetal J Patel vs. ITO very fair and need not to be interfered. The grounds No. 1.0 to 3.0 are hereby dismissed. 5. In the result, appeal is dismissed.
In spite of as many as 22 opportunities given to the assessee by this Tribunal, the assessee has not come forward to conduct the appeal. There is no other material placed before us, the Grounds of Appeal raised by the assessee are also general in nature. In the absence of any material, we have no hesitation in confirming the concurrent findings of the Lower Authorities and thereby confirming the levy of penalty under section 271(1)(c) of the Act.
In the result, appeal filed by the Assessee is dismissed.