TMI Blog2013 (1) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) as assessee M/s Business Park Construction Co.Ltd. has at no stage attempted to explain the seized documents. The explanation given by M/s BPTP Ltd. of the seized documents, does not come to the rescue of the assessee. The assessee in this case has not stated that the documents in question does not belong to it. It is not the case of the assessee that entries recorded in these documents are not expenditure incurred by it or that they are dumb documents. All that the asssessee stated is that, it is unable to explain the documents. It is well settled that there is no estoppel against law. There is no agreement possible for non levy of penalty. Had the assessee furnished an explanation as regards the seized documents, the question of considering whether such explanation is bonafide or not would arise. In this case the assessee has not attempted to explain any of the seized documents, even during the course of penalty proceedings - appeal decided against assessee. - ITA No.3331/Del/2012 - - - Dated:- 31-10-2012 - A.D. Jain and J. Sudhakar Reddy, JJ. Appellants Rep by: Shri VS Rastogi Shri Maneesh Upneja, CAs Respondent Rep by: Shri Pirthi Lal, Sr.DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was of the view that the assessee has not furnished corroborative evidence. Subsequently BPTP filed another letter dtd.22/12/2009 the summary of which is brought out at paras 3.4/3.5 of the assessement order which is reproduced for ready reference. 1. In continuation of our earlier submission, we make further submissions as under in compliance to letter no. DCIT/CC-23/Q 2009-10 dt. 21.8.2009 requiring us to furnish our explanation in respect of the documents seized at B-1, A-5, Mohan Cooperative Industrial Area, New Delhi. Annexure A-1, pages 30-31, Annexure A-3, page 23 and Annexure A-25, pages 1-9 2. The explanation in respect of the aforesaid annexure is being furnished collectively. The jottings made on these pages do not give the name of the company in respect of which these documents pertain. 3. Since these documents do not relate to M/s BPTP Ltd., it is submitted that they may kindly be excluded from consideration for the assessment of BPTP Ltd. under section 153A. 4. In the spirit of cooperation, we are filing contemporaneously a reply from M/s Business Park Construction Pvt. Ltd. with regard to these documents, a copy is enclosed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Dharmender Textiles reported at 306 ITR 277 holding that penalty under Section 271(1)(c) is a civil liability, that the said section has been enacted to provide for a remedy for loss of revenue and that willful concealment is not an essential ingredient for attracting civil liability. The appellant has failed to disclose income of Rs.80,72,320/- in the original return, as well as the return filed in response to notice under Section 153A. It was only after confrontation with seized documents by the department that the appellant offered income of Rs.80,72,320/-. In view of the facts and circumstances of this case and the judicial pronouncements cited supra, I find no reason to interfere in the Assessing Officer s order imposing penalty of Rs.27,17,143/- under Section 271(1)(c). The Assessing Officer s order is therefore confirmed and ground no.1 of the appeal is dismissed. 8. Aggrieved the assessee is in appeal before us on the following grounds:- 1. That on the facts and circumstances of the case and in law, the order of ld.CIT(A)-XXXIII, New Delhi confirming penalty levied under Section 271(1)(c) of Rs.27,17,143/- is bad in law and needs to be quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was not so confronted. The fact is that the appellant offered the income voluntarily, in good faith, and to avoid vexed litigation and the matter was covered by the judgement in the case of aforesaid SC judgement. * Instead of dealing with the decision of Supreme Court in Suresh Chand Mittal (supra) the Commissioner of Income Tax (Appeals) cited various judgements of the High Courts in paras 4.4 and 4.5. These judgements are not relevant for more than one reasons viz., a) None of these judgements is of the Supreme Court. Plainly a High Court judgement cannot overrule the judgement of the Supreme Court particularly if it is rendered before the Supreme Court judgement. b) Some of the judgements cited relate to pre 1976 amendment when the law was different. Explanation to s.271(1)(c) prior to 1876 was different from Explanation 1. The present case is to be decided on the Explanation 1 as it stood after 1.4.76 as was also the position in the case of Suresh Chand Mittal. c) In many of these cases the facts are distinguishable in as much as only after persistent questioning the assesses surrendered income while in the present case the assessee voluntarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement for non levy of penalty. The Ld.Counsel for the assessee replied by distinguishing the case laws cited by the revenue and reiterating the judgment of the Supreme Court in the case of Suresh Chandra Mittal (supra) has to be given precedence to the various decisions of the Tribunals and High Courts cited by the Ld.D.R. 15. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and the perusal of the papers on record and the orders of the authorities below, we hold as follows:- A plain look at the copies of the seized material, which is filed along with the paper book discloses that recordings were made in a systematic manner in a tabular form as far as pages 7 to 12 and 15 to 17 are concerned. The other papers when perused disclose that they are entries made on plain paper with calculations, initials and signatures. When confronted with these pages a group company of the assessee M/s BPTP Ltd. submitted that the expenditure does not pertain to it. It further argued that there is no question of booking the same in its books of accounts. There after M/s Business Park Construction Co.Ltd. the assessee company stated on 24.12.2009 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case on hand the assessee s return of income filed subsequent to search does not disclose the income in question. It is not a case were revised return was regularized by the revenue without taking any objection. Thus in our considered opinion the decision does not apply to the facts of the case. d) Coming to the decision in the case of CIT vs. Raj Kumar Others, 313 ITR 256, the Hon`ble P H High Court was considering the case wherein additional income was offered in return of income filed pursuant to the notice U/s 148 of the act. This offer was accompanied by a note which was not rejected by the revenue. In such circumstances it was held that additional income was offered by the assessee in good faith and to buy peace. In the case on hand the revenue found documents which disclose expenditure not recorded in the books of accounts. The assessee should have offered this income while filing return in response to notice. Thus this case does not apply. e) In the case of CIT vs. Sarof Industries (1976) CTR (Delhi) 182 the Hon`ble Delhi High Court was considering a case where there was disallowance of interest and penalty was levied on the same. It was observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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