The ITO, Ward-5(4),, Baroda v. Shri Rajesh Mukundlal Shah, Baroda

ITA 1545/AHD/2006 | 2002-2003
Pronouncement Date: 18-02-2010 | Result: Dismissed

Appeal Details

RSA Number 154520514 RSA 2006
Assessee PAN AHCPS7751F
Bench Ahmedabad
Appeal Number ITA 1545/AHD/2006
Duration Of Justice 3 year(s) 8 month(s) 4 day(s)
Appellant The ITO, Ward-5(4),, Baroda
Respondent Shri Rajesh Mukundlal Shah, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 18-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 18-02-2010
Date Of Final Hearing 11-02-2010
Next Hearing Date 11-02-2010
Assessment Year 2002-2003
Appeal Filed On 14-06-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI D.C. AGRAWAL A.M.) I.T.A. NO. 1396/AHD./2006 ASSESSMENT YEAR : 2002-2003 SHRI RAJESH MUKUNDLAL SHAH BARODA -VS.- INCOM E TAX OFFICER WARD-5(4) BARODA (PAN : AHCPS 7751 F) (APPELLANT) (RESPONDENT) & I.T.A. NO. 1545/AHD/2006 ASSESSMENT YEAR : 2002-2003 INCOME TAX OFFICER WARD-5(4) BARODA -VS.- RA JESH MUKUNDLAL SHAH BARODA ASSESSEE BY : SMT. URVASHI SHODHAN DEPARTMENT BY : SHRI M.C. PANDIT SR. D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS CROSS APPEAL IS AGAINST THE ORDER DATED 03.04 .2006 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V BARODA CONFIRMING THE PENALT Y OF RS.8 67 650/- BEING @125% OF THE TAX SOUGHT TO BE EVADED AS AGAINST RS.18 31 940/- L EVIED BY THE A.O. UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 20 02-03. 2. BRIEFLY STATED THE FACTS ARE THAT IN THE ASSESSM ENT ORDER UNDER SECTION 143(3) FRAMED ON 28.02.2005 THE A.O. MADE THE FOLLOWING TWO ADDITIO NS :- (I) ADDITION ON ACCOUNT OF CEASED LIABILITIES UNDER SECTION 41(1) OF THE ACT RS.45 56 635/- (II) ADDITION ON ACCOUNT OF UNEXPLAINED ADDITION IN CAPITAL ACCOUNT UNDER SECTION 69 OF THE INCOME TAX ACT 1961 RS. 2 32 705/- T O T A L RS.47 89 340/- SUBSEQUENTLY VIDE ORDER DATED 24.08.2005 THE A.O. LEVIED THE PENALTY OF RS.18 31 940/- UNDER SECTION 271(1)(C) IN RESPECT OF CONCEALMENT OF AFOR ESAID INCOME OF RS.47 89 340/-. 2 ITA NOS. 1396 & 1545/AHD /2006 3. IN APPEAL AGAINST THE ORDER OF LEVYING PENALTY BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE CONTENDED THAT OUT OF ADDITION OF RS.45 56 635/- MADE BY THE A.O. UNDER SECTION 41(1) ADDITION TO THE EXTENT OF RS.19 53 951/- WAS DELETED. WITH REGARD TO BALANCE ADDITION OF RS.26 02 684/- AND ADDITION OF RS.2 32 705/- MADE UNDER SECTION 69 OF THE ACT BEFORE THE LEARNED COMMISSIONER OF INCOME TAX( APPEALS) IT WAS CONTENDED THAT ON THESE TWO ADDITIONS PENALTY UNDER SECTION 271(1)(C) IS NO T LEVIABLE BECAUSE NEITHER THE ASSESSEE CONCEALED THE PARTICULARS OF INCOME NOR FURNISHED I NACCURATE PARTICULARS THEREOF. BOTH THESE ADDITIONS WERE MADE DUE TO DIFFERENCE OF OPINION C OMPLETE FACTS WERE DISCLOSED THEREFORE PENALTY BE DELETED. 4. IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HELD THAT THE ASSESSEE HAS CONCEALED INCOME OF RS.28 35 389/- (RS .26 02 684/- + RS.2 32 705/-). HOWEVER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HELD TH AT PENALTY @ 125% OF THE TAX SOUGHT TO BE EVADED IS EXCESSIVE. THEREFORE HE CONFIRMED THE PENALTY OF RS.8 67 650/- BEING 125% TO 100% OF TAX SOUGHT TO BE EVADED ON RS.28 35 389/-. AGGRIEVED BY THIS ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BOTH SIDES ARE IN APPEAL BEFORE US. 5. THE ONLY GRIEVANCE OF THE ASSESSEE IN ITS APPEAL IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING THE PENALTY TO THE EXTENT OF RS.8 67 650/- IN RESPECT OF FOLLOWING TWO ADDITIONS :- (A) ON ACCOUNT OF ALLEGED CEASED LIABILITY U/S. 41 (1) OF I.T. ACTRS.26 02 684/- (B) ALLEGED UNEXPLAINED ADDITION TO THE CAPITAL U/ S. 69 OF THE ACT.RS. 2 32 705/- 6. THE ONLY GROUND RAISED BY THE REVENUE IN ITS APP EAL IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. C.I.T.(A) ERRED IN REDUCING THE PENALTY IMPOSED U/S. 271(1)(C ) FROM RS.18 31 940/- TO RS.8 67 650/- ON THE GROUND THAT THE ADDITION RELATING TO THE BALANCE AMOUNT OF PENALTY WAS DELET ED BY HIM DISREGARDING THE FACT THAT THE DELETION OF THIS ADD ITION HAS BEEN CONTESTED BY THE DEPARTMENT BEFORE THE ITAT AND THE SAME ALSO REPRESENTS CONCEALMENT JUST LIKE THE AMOUNT OF ADDI TION CONFIRMED. 3 ITA NOS. 1396 & 1545/AHD /2006 7. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE SM T. URVASHI SHODHAN APPEARED AND PRODUCED A COPY OF THE DECISION DATED 08.01.2010 OF HON'BLE ITAT D BENCH AHMEDABAD IN ASSESSEES OWN CASE IN ITA NO. 424/AHD/2006 & 609/A HD/2006 FOR THE ASSESSMENT YEAR 2002- 03. SHE POINTED OUT THAT AGAINST THE ORDER OF LEARN ED COMMISSIONER OF INCOME TAX(APPEALS) IN QUANTUM APPEAL BOTH SIDES FILED APPEALS BEFORE THE TRIBUNAL. THE HON'BLE ITAT D BENCH VIDE ORDER DATED 08.01.2010 (SUPRA) FOR THE DETAILED REA SONS GIVEN IN PARA 9.4 ON PAGES 10 & 11 UPHELD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETING THE ADDITION OF RS.19 53 951/- OUT OF TOTAL ADDITION OF RS.45 56 63 5/-. FURTHER IN THIS PARA ITSELF TRIBUNAL HAS CONFIRMED THE BALANCE AMOUNT OF ADDITION OF RS.26 0 2 684/-. THUS AFTER THE TRIBUNALS ORDER ENTIRE ADDITION OF RS.45 56 635/- MADE BY THE A.O. UNDER SECTION 41(1) STANDS DELETED. THEREFORE MERE THE ADDITION ON WHICH PENALTY UNDER SECTION 27 1(1)(C) WAS LEVIED ITSELF DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY. WITH R EGARD TO THE ADDITION TO THE EXTENT OF RS.2 32 705/- CONFIRMED BY THE TRIBUNAL THE LD. CO UNSEL OF THE ASSESSEE POINTED OUT THAT THE A.O. MADE THIS ADDITION BECAUSE THE ASSESSEE HAS NOT FUR NISHED THE COPY OF BANK ACCOUNT OF THE DONORS FOR THE MONTH OF OCTOBER 2001. THE LD. COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT IN QUANTUM APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AS WELL AS TRIBUNAL CONFIRMED THE SAID ADDITION ON THE GROUND THAT (I) THE ASSESSEE HAS NOT ESTABLISHED THE CAPACITY OF THE DONOR (II) OCCASION ON WHICH THE SAID GIFT WAS RECEIVED (III) COPY OF BANK A/C. AND PROOF THEREOF BY FURNISHING I.T. RETURN BY THE DONOR. SHE POINTED OUT THAT THE DONOR IS NOT RELATIVE OF THE ASSESSEE AND THIS ADDITION HAS BEEN MADE ON ACCOUNT OF DIFFERENCE OF OPINION BY DISBELIEVING THE EXPLANATION OF THE ASSESSEE WITHOUT FINDING IT FAL SE THEREFORE ON THIS ADDITION PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE. 8. SHRI M.C. PANDIT SR. D.R. APPEARING ON BEHALF O F THE REVENUE FAIRLY CONCEDED THAT AFTER THE TRIBUNALS ORDER PENALTY UNDER SECTION 271(1)( C) IS NOT LEVIABLE IN RESPECT OF ADDITION OF RS.45 56 635/- MADE BY THE A.O. UNDER SECTION 41(1) OF THE INCOME TAX ACT 1961. HOWEVER HE CONTENDED THAT IN RESPECT OF BOGUS GIFT PENALTY IS LEVIABLE BECAUSE ADDITION MADE IS CONFIRMED RIGHT UPTO THE TRIBUNAL. THE LD. D.R. DREW OUR ATTE NTION TO THE REASONING GIVEN BY THE DECISION DATED 08.01.2010 BY THE TRIBUNAL FOR CONFIRMING THE SAID ADDITION OF RS.2 32 705/- IN PARA 14.3 & 14.4 ON PAGES 14 & 15 IN QUANTUM APPEAL AND CONTE NDED THAT PENALTY LEVIED IN RESPECT OF THIS ADDITION IS RIGHTLY CONFIRMED BY THE LEARNED COMMIS SIONER OF INCOME TAX(APPEALS). 4 ITA NOS. 1396 & 1545/AHD /2006 9. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. AFTER THE TRIBUNALS ORDER IN QUANTUM APPEAL PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE IN RESPECT OF ADDITION OF RS.45 56 635/- M ADE UNDER SECTION 41(1) OF THE ACT. 9.1. WITH REGARD TO THE ADDITION OF RS.2 32 705/- WHICH IS CONFIRMED BY THE TRIBUNAL WE HAVE CAREFULLY GONE THROUGH THE SAID ORDER. THE REA SONING GIVEN BY THE TRIBUNAL IN PAGES 14 & 15 AT PARAS 14.3 & 14.4. REFERRED BY THE LD. D.R. I S EXTRACTED BELOW 14.3. IN THE PRESENT CASE NOT ONLY THAT THE ASSESS EE FAILED TO PROVE THE CREDITWORTHINESS OF THE PERSON MAKING THE PAYMENT O F SUCH AMOUNT TO THE ASSESSEE. THE AO AND THE LD. CIT(A) FOUND THAT THE GIFTS WERE NOT REAL IN NATURE. SINCE THE CLAIM OF GIFT IS MADE BY THE ASSESSEE TH E ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING [HE GIF T BUT ALSO HIS CAPACITY TO MAKE A GIFT AND THAT IT HAS ACTUALLY BEEN RECEIVED AS A GIFT FROM THE DONOR. THE GENUINENESS OF A GIFT TRANSACTION CANNOT BE DETERMI NED WITHOUT LOOKING INTO THE ASPECT OF HUMAN PROBABILITIES RELATIONSHIP OF DONO R AND DONEE OCCASION FOR MAKING THE GIFT AND EXISTENCE OF RECIPROCITY IF AN Y. IT MEANS THAT WHILE CONSIDERING THE GENUINENESS OF THE GIFT TRANSACTION THE ABOVE-MENTIONED ASPECTS ARE OF NO LESS SIGNIFICANCE. FURTHER IN CASE THE A SSESSEE FAILS TO ESTABLISH ANYONE OF THESE INGREDIENTS THE GIFT AMOUNTS RECEIVED BY THE ASSESSEE CAN BE TREATED AS ASSESEES INCOME FROM UNDISCLOSED INCOME REPRESENTING ASSESSEE'S OWN MONEY WHICH WAS INTRODUCED IN THE GARB OF A GIFT BY THE ASSESSEE. THUS KEEPING IN MIND THESE PRINCIP LES LAID DOWN FOR CONSIDERING THE GENUINENESS OF A GIFT TRANSACTION WE FIND THAT ADMITTEDLY SHRI SUNIL PA TEL WAS NOT RELATED TO THE ASSESSEE. THERE IS ON RECORD REGARDING EITHER OCCAS ION OF THE GIFT OR THAT THE SAME WERE MADE ON ACCOUNT OF NATURAL LOVE AND AFFEC TION. IT HAS NOT BEEN EXPLAINED BEFORE US AS TO WHY THE DONORS PARTED WITH SUCH HUGE AMOUNTS BY GIFTING THE ASSESSEE WHEN NEITHER THERE WAS ANY OC CASION NOR THEY WERE THE ASSESSEE NOR THERE WAS ANY RECIPROCITY BETWEEN THEM REGARDING EXCHANGE OF SUCH GIFTS. NOW THE SIMPLE QUESTION WHICH ARISES IN MIN D IS WHETHER IT IS HUMANLY PROBABLE THAT A PERSON MAY GIVE AWAY HIS HARD EARNE D MONEY EARNED IN FOREIGN COUNTRY AS A GIFT TO AN INDIAN ACQUAINTANCE MERELY OUT OF LOVE AND AFFECTION WHEN THAT INDIAN IS NOT RELATED TO HIM AND THAT NRI DONOR HAS NO OCCASION FOR GIVING THE AMOUNT IN GIFT. IF WE PUT THIS QUESTION TO ANY HUMAN HAWING A NORMAL HUMAN BEHAVIOUR THE OBVIOUS ANSWER_WOULD BE NO. THEREFORE APPLYING THE TEST OF HUMAN PROBABILITIES AS LAID DOWN BY THE APEX COURT IN THEIR VARIOUS DECISIONS THE ASSESSING OFFICER WAS FULLY JUSTIFI ED IN COMING TO A CONCLUSION THAT THESE WERE BOGUS GIFTS AND THEREBY ADDING THE SAME TO THE INCOME OF THE ASSESSEE. 14.4. IT IS ALSO WELL SETTLED THAT MERE IDENTIFICAT ION OF DONOR AND SHOWING THE MOVEMENT OF GIFT AMOUNT THROUGH BANKING CHANNEL IS NOT ENOUGH TO PROVE GENUINENESS OF THE GIFT. THE ASSESSEE WAS REQUIRED TO ESTABLISH THAT THE DONOR HAD THE MEANS AND THE GIFT WAS GENUINE FOR NATURAL LOV E AND AFFECTION AS HELD IN THE CASE OF LALL CHAND KALRA VS.- CIT [1981] 22 CTR 13 5 SAJAN DASS AND SONS VS.- CIT [2003] 264 ITR 435 (DEL.) CIT VS.- DURGA PRASAD MORE [1971] 82 ITR 540 (SC) AND SUMATI DAYAL VS.- CIT [1995] 214 TR 801 (SC) AND RECENTLY 5 ITA NOS. 1396 & 1545/AHD /2006 IN THE CASE OF JASPAL SINGH VS.- CIT (2006) 205 CT R (P&H) 624 : (2007) 290 ITR 306 (P&H) AND IN ACIT VS.- RAJIV TANDON 294 I TR SP 219 (DELHI). IN VIEW OF THE FOREGOING WE ARE OF THE OPINION THAT THE AS SESSEE FAILED TO DISCHARGE THE BURDEN WHICH LAY UPON HIM TO PROVE THE GENUINENESS OF THE GIFTS AND CAPACITY OF THE DONOR. 10. IT IS WELL SETTLED LAW THAT CONFIRMATION OF ADD ITION OF TRIBUNAL DOES NOT MEAN CONCEALMENT OR INACCURATE PARTICULARS OF INCOME WITHIN THE MEAN ING OF SECTION 271(1)(C). IN RESPECT OF GIFT THE ASSESSEE HAS PROVED THE IDENTITY BUT COULD NOT PROV E THE CAPACITY OF DONOR TO THE SATISFACTION OF A.O. AS WELL AS APPELLATE AUTHORITIES. THE ADDITION IS CONFIRMED LOOKING INTO THE ASPECT OF HUMAN PROBABILITIES RELATIONSHIP OF DONOR AND DONEE OCC ASION FOR MAKING THE GIFT AND EXISTENCE OF RECIPROCITY. THE ASSESSEE HAS FURNISHED THE EXPLANA TION. THEREFORE HE HAS DISCHARGED HIS ONUS AND REBUTTED THE PRESUMPTION AVAILABLE TO REVENUE U NDER EXPLANATION1 TO SECTION 271(1)(C). THE EXPLANATION GIVEN BY THE ASSESSEE AGAIN CANNOT BE R EGARDED TO BE FALSE UNTIL AND UNLESS REVENUE PROVES THAT EXPLANATION GIVEN BY THE ASSESSEE IS FA LSE. IN THE CASE OF NATIONAL TEXTILES VS.- CIT [2001] 249 ITR 125] (GUJ.) THE QUESTION BEFORE THE HON'BLE GUJARAT HIGH COURT WAS ABOUT THE LEVY OF PENALTY U/S. 271(1)(C) IN RESPECT OF ADDITI ON MADE U/S. 68 BY RECOURSE TO EXPLANATION 1 BELOW SECTION 271(1)(C). 11. EXPLANATION 1 TO SECTION 271(1)(C) PROVIDES THA T AN AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF A PERSON FALLING UNDE R CLAUSE (A) OR (B) OF EXPLANATION 1 REFERS TO TWO SITUATIONS IN WHICH PRESUMPTION OF CONCEALMENT CREATED BY EXPLANATION 1 IS AVAILABLE. THE FIRST SITUATION IS WHERE THE ASSESSEE IN RESPECT O F ANY FACTS MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME FAILS TO OFFER AN EXPLANATION OR OFFE RS AN EXPLANATION WHICH IS FOUND BY THE A.O. OR THE COMMISSIONER TO BE FALSE. THE SECOND SITUATION IS WHERE THE ASSESSEE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME OF FERS AN EXPLANATION WHICH HE IS ABLE TO SUBSTANTIATE AND ALSO FAILS TO PROVE THAT SUCH EXPL ANATION WAS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE COMPUTATION OF TOTAL INCOME HAVE BE EN DISCLOSED BY HIM. THE PRESCRIPTION AVAILABLE UNDER EXPLANATION 1 CANNOT BE DRAWN UNLES S THE CASE OF THE ASSESSEE FALLS UNDER EITHER OF THE CLAUSES VIZ. CLAUSE (A) OR CLAUSE(B). THE PRESUMPTION UNDER EXPLANATION 1 IS REBUTTABLE AND NOT CONCLUSIVE. THE ASSESSEE CAN SUBMIT THE EXPLANATION AS THE ONUS SHIFTED ON THE A SSESSEE TO PROVE THAT HE HAS NOT CONCEALED THE 6 ITA NOS. 1396 & 1545/AHD /2006 PARTICULARS OF THE INCOME. IN THIS CASE THE HON'BL E GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES (SUPRA) WHILE HOLDING LIE IMPOSITION OF PE NALTY WAS NOT JUSTIFIED OBSERVED :_ IN ORDER TO JUSTIFY THE LEVY OF PENALTY TWO FACTO R MUST CO-EXIST (I) THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADING TO THE RE ASONABLE CONCLUSION THAT THE AMOUNT DOES REPRESENT THE ASSESSED INCOME. IT I S NOT ENOUGH FOR THE PURPOSE OF PENALTY THAT THE AMOUNT HAS BEEN ASSESSE D AS INCOME AND (II) THE CIRCUMSTANCES MUST SHOW THAT THERE WAS ANIMUS I.E. CONSCIOUS CONCEALMENT OR ACT OF FURNISHING OF INACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. EXPLANATION 1 TO SECTION 27L(1)(C) HAS NO BEARING O N FACTOR NO. 1 BUT HAS A BEARING ONLY ON FACTOR NO 3. THE EXPLANATION DOES N OT MAKE THE ASSESSMENT ORDER I CONCLUSIVE EVIDENCE THAT THE AMOUNT ASSESSE D WAS IN FACT THE INCOME OF THE ASSESSEE. NO PENALTY CAN BE IMPOSED IF THE FACT S AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOTHESIS THAT THE AMO UNT (DOES NOT REPRESENT CONCEALED INCOME WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSES GIVES AN EXPLANATION WHICH IS UNPROVED BUT NOT DISPROVED. I E. IT IS NOT ACCEPTED BUT CIRCUMSTANCES DO NOT LEAD TO THE REASONABLE AND POS ITIVE INFERENCE THAT THE ASSESSES EASE IS FALSE THE EXPLANATION CANNOT HELP THE DEPARTMENT BECAUSE THERE WILL BE NO MATERIAL TO SHOW THAT THE AMOUNT IN QUESTION WAS THE INCOME OF THE ASSESSEE. ALTERNATIVELY TREATING THE EXPLAN ATION AS DEALING WITH BOTH THE INGREDIENTS (I) AND (II) ABOVE WHERE THE CIRCUMSTA NCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEE 'S EXPLANATION IS FALSE THE ASSESSEE MUST BE HELD TO HAVE PROVED THAT THERE WAS NO MENS REA OR GUILTY MIND ON HIS PAN. LIVEN IN THIS VIEW OF THE MATTER THE EX PLANATION ALONE CAN NOT JUSTIFY LEVY OF PENALTY ABSENCE OF PROOF ACCEPTABLE TO THE DEPARTMENT CANNOT HE EQUATED WITH FRAUD OR WILLFUL DEFAULT.' 12. FROM THE ABOVE DISCUSSION IT IS CLEAR THAT WHE N ADDITION IS MADE ON ACCOUNT OF CASH CREDIT/ GIFT PENALTY UNDER SECTION 271(1)(C) CANNO T AUTOMATICALLY BE IMPOSED UNLESS THE EXPLANATION OF THE ASSESSEE IS FOUND FALSE. IN THIS CASE THE ADDITION HAS BEEN MADE MERELY ON THE GROUND THAT THE ADDITION IS CONFIRMED BY THE APPELL ATE AUTHORITY IN OUR OPINION IS NOT A GROUND TO LEVY THE PENALTY UNDER SECTION 271(1)(C). WE THERE FORE HOLD THAT NO PENALTY UNDER SECTION 271(1)(C) IS LEVIABLE. 13. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 18.02.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18/ 02 / 2010 7 ITA NOS. 1396 & 1545/AHD /2006 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.