TMI Blog2016 (6) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... eya (Adv) For The Revenue : Shri R.S. Dangur (Addl.CIT) ORDER PER T.R. MEENA, A.M. This is an appeal filed by the assessee against the order dated 23/10/2012 of the learned C.I.T.(A)-I Jaipur, for A.Y. 2006-07. The effective grounds of appeal are as under:- (1) The impugned penalty order U/s 271(1)(c) of the Act dated 09/08/2011 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be quashed. (2) ₹ 11,87,476/-:- The ld CIT(A) erred in law as well as on the facts of the case in confirming the penalty U/s 271(1)(c) of the Act of ₹ 11,87,476/-. The penalty so imposed and confirmed, being totally contrary to the provisions of law and facts kindly be deleted in full. 2. The sole ground of the assessee s appeal is against confirming the penalty of ₹ 11,87,476/- U/s 271(10(c) of the Income Tax Act, 1961 (in short the Act). In this case, the assessee has filed this appeal after delay of 58 days, for which necessary affidavit has been filed by the assessee and claimed that the assessee had directed concerned AR to file appeal within time but the AR had assigned to this wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial as these documents are not verifiable and have no weightage especially when the assessee failed to prove the persons for examination. Mere filings of affidavits are not sufficient evidences especially when the assessee was asked to produce the concerned persons and he failed to producing these persons for examination as held by the Hon'ble Supreme Court in similar facts of cases. Therefore, it has been established that the assessee was having unaccounted income which he invested in the property by way of construction, but for the purpose of evading the tax, he opted to show it in the garb of agricultural income. Further, the ld. CIT(A) has confirmed the above addition made by the A.O.. As such, it is established that the assessee had concealed his income by filing inaccurate particulars of income. These facts clearly show that the assessee has intentionally concealed his income and furnished inaccurate particulars of his income to the tune of ₹ 35,98,640/- by disclosing bogus/non genuine agricultural income. This shows that the assessee had a clear cut mens rea for concealment of income. The mens rea of the assessee has been proved beyond doubt and thereby com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt it is obvious there is concealment of income in the following cases: Cement Distributors P. Ltd. V/s CIT (1966) 60 1TR 586 (Mad.) Velavarti Gopalakrishnaiah V/s CIT (1968) 67 ITR 184 (AP). In this particular case no books of accounts or records have been maintained by the assessee. Only an Ikrarnama with Shri Raes Khan was furnished who in turn has not maintained any records regarding this transaction. On the basis of the statements of Shri Rais Khan and Shri Abhimanyu Singh the AO held this Ikrarnama to be invalid evidence. Thereafter, the onus shifted on the assessee to prove the authenticity of this alleged agricultural income. He filed five affidavits, two from the witnesses of the Ikramama and the three from the timber merchant during the course of appellate proceedings. In-spite of repeated opportunity he could not produce the timber merchant along with the books of account to show source of the payments for purchase of this timber nor were the witness to the Ikrarnama ever produced. By merely filing of the affidavits in the case of his witnesses he did not sufficiently discharge his burden of proof particularly when no books of accounts or records r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of any specific finding in the penalty order the penalty could not be sustained. He also referred various Hon ble ITAT decisions on this issue. He has further argued that the penalty proceedings and assessment proceedings are separate and distinct from each other. Therefore, the assessee can again submit on merit in the penalty proceedings. He has drawn our attention on various cases. The assessee has shown agricultural income during the assessment proceedings as well as penalty proceedings. The assessee has submitted various evidences i.e. copies of land holding of 25 acres and trees grown, popular and safeda trees in the agreement made with the purchaser namely Shri Rais Khan, which has been submitted during the course of assessment proceedings. The assessee also filed affidavit/confirmations of all major buyers alongwith copies of invoices/purchase vouchers, in which quantity, amount and rate of the trees purchased from the appellant had been shown. These contained complete name and address, TIN No. of the buyer/timber merchants. The ld Assessing Officer did not make any inquiry on evidences furnished during the course of assessment proceedings. The agreement made with the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed. 7. We have heard the rival contentions of both the parties and perused the material available on the record. It is a fact that the ld Assessing Officer in paragraph No. 6 of assessment order has initiated penalty proceedings for furnishing inaccurate particulars of income whereas in concluding para, he initiated penalty proceedings for concealment of income/furnishing of inaccurate particulars of income. The notice given U/s 274 for concealment of particulars of income or furnishing of inaccurate particulars of such income. In penalty order, the ld Assessing Officer had imposed penalty for concealment of income, therefore, the ld Assessing Officer was not sure that whether penalty proceedings were initiated for furnishing of inaccurate particulars of income or concealment of income. This issue has been considered by the various ITATs as well as Hon ble Karnataka High Court in the case of CIT Vs Manjunatha Cotton Ginning Factory Ors. (supra) and by the Coordinate Bench in the case of Shri Prakash Joy Vs. ACIT (supra) and decided that the Assessing Officer should have made specific charge at the time of initiation of penalty proceedings in assessment order. Thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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