Mrs. Jyoti Dhir, Parwanoo vs Assessee

perused the findings of the authorities below. The appeals are

decided as under.

ITA 1030/CHD/2014 : Smt. Jyoti Dhir [ 271(1)(c) ]

3. This appeal by assessee is directed against the order of ld.

CIT(Appeals) Central, Gurgaon dated 12.09.2014 for assessment

year 2002-03, challenging the penalty under section 271(1)(c) of

the I T Act.

4. Briefly the facts of the case are that the assessment under

section 153A read with Section 143(3) of the Act was completed

at Rs. 2,10,000/- on 18.12.2009 against the returned income

declared by assessee of a sum of Rs. 60,000/-. Penalty was

levied under section 271(1)(c) of the Act on the addition of Rs.

1,50,000/- on account of unexplained cash deposit appearing in

SB Account No. 6677 with Bank of Baroda, Parwanoo. This

bank account was not disclosed to the Revenue Department.

The Assessing Officer called for information from the Bank of

Baroda, Parwanoo under section 133(6) of the Act and copy of

the bank statement was supplied to the assessee and 3

explanation was called for why this bank account was not

explained. The assessee stated before Assessing Officer that

addition may be made to the income of the assessee because

assessee is not in a position to explain source of deposit of Rs.

1,50,000/- deposited on 27.03.2002 because no evidence is

available. Penalty was levied accordingly. The assessee

contended that there was neither filing of inaccurate particulars

nor concealment of income warranting levy of the penalty. The

explanation offered by assessee was rejected and 100% penalty

was levied under section 271(1)(c) of the Act with Explanation

5A. The ld. CI T(Appeals) noted that assessee made surrender of

the amount in question deposited with Bank of Baroda,

Parwanoo which was not disclosed in the return of income. It

was also noted that cash deposit came to the light from exercise

carried out by the Assessing Officer. If no information under

section 133(6) would have been called for from the Bank, the

cash deposit made by assessee would not have seen the light of

the day. It was, therefore, found to be a case of concealment of

income and penalty was confirmed.

5. On consideration of the rival submissions, we are of the

view penalty has been rightly levied under section 271(1)(c) of

the Act. In this case, search under section 132(1) of the Income

Tax Act was initiated on Dhir Group of cases on 10.08.2007

including the assessee. The assessee did not disclose the bank

account in question to the Revenue Department. When

information was called for under section 133(6) from Bank of

Baroda, Parwanoo, it came to the knowledge of the Assessing

Officer that assessee made cash deposits of Rs.1,50,000/- in 4

this account which was also not explained and addition was

accordingly made. It is, therefore, clear that the amount in

question was never disclosed within the period of prescribed

under section 139(1) of the Act. It is, therefore, clear case of

concealment of income from the Revenue Department. ITAT,

Ahmedabad Bench-B (Third Member) in the case of ACIT Vs Kirit

Dahyabhai Patel 121 I TD159 (Ahd) (Third Member) held as under

:

Section 271(l)(c), read with section 153A, of the Income-tax Act, 1961 - Penalty - For concealment of income - Assessment years 1998-99 to 2002-03 - Assessees were engaged in business of land development and were members of a group - They were subjected to search under section 132 after filing of original returns of income - Certain incriminating documents were found during course of said search and thereafter notice under section 153A was issued to assessees - In response to said notice they again filed returns of income declaring additional income over and above income which was returned in their original returns - Assessing Officer accepted returns filed in response to notice under section 153A and completed assessment - Thereafter, he initiated penalty proceedings under section 271(1)(c) and levied certain penalty on ground that neither transactions relating to concealed income were recorded in rooks of account nor disclosure was voluntary - Assessees' contention that they were entitled to benefit of Explanation 5(2) to section 271(1)(c) was rejected by Assessing Officer - Whether since additional income declared in returns filed in response to notice under section 153A did not fall under category of return mentioned in Explanation 5(2) to section 271(1)(c), assessees were not entitled to immunity from penalty - Held, yes ."

6. Hon'ble Punjab & Haryana High Court in the case of

Prempal Gandhi V CI T 335 I TD 23 held as under :

Held, dismissing the appeal, that the plausibility or otherwise of the explanation of the assessee was a pure question of fact. Admittedly, the assessee concealed the transactions in the bank account and 5

when notice of re-assessment was issued, finding no other way out, the assessee surrendered income, to a void penal consequences. In such a situation, it could not be held that the assessee wanted to buy peace of mind and there was no evidence of concealment which called for penalty. This was not a case where penalty had been imposed only because the assessee disclosed higher income voluntarily but a case of clear concealment where the assessee having found no other way out was forced to surrender the undisclosed income. No substantial question of law arose."

7. Hon'ble Supreme Court in the recent decision in the case of

Mac Data Pvt. Ltd. 358 I TR 593 held that " The concept of

warranty surrender is no more applicable and penalty has to be

levied."

8. Considering the facts of the case in the light of the above

decisions, it is clear that the details of this bank account in

question was detected by the Assessing Officer at the

assessment stage on calling the information from the Bank of

Baroda. Therefore, the deposit in Bank of Baroda was never

disclosed to the Revenue Department. The time for filing the

return under section 139(1) has also expired and assessee never

disclosed the same bank entries to the Revenue Department.

Therefore, it is a clear case of concealment of income and

authorities below have rightly levied the penalty under section

271(1)(c) of the Act on unexplained deposit in the bank account.

The appeal of the assessee has no merit and is accordingly

dismissed.

9. In the result, appeal of the assessee is dismissed.

ITA 1031/CHD/2014 : Shri Mukesh Dhir [ 271(1)(c) ] 6

10. This appeal by assessee is directed against the order of ld.

CIT(Appeals) Central, Gurgaon dated 12.09.2014 for assessment

year 2004-05. In the case of also assessee challenged the levy of

penalty under section 271(1)(c) of the Act.

11. In the case of also, search was initiated under section 132

of the Act on 10.08.2007 in Dhir Group of cases including the

assessee. The assessment under section 153A read with Section

143(3) was completed at Rs. 3,66,900/- on 18.12.2009 against

returned income of Rs. 66,570/-. Penalty under section

271(1)(c) of the Act was le vied on account of unexplained cash

deposit in the bank in the name of minor son of the assessee Rs.

57,934/- and Rs. 2,02,400/- on account of gift to the wife. The

ld. CI T(Appeals) observed that one of the addition is on account

of unexplained cash deposit appearing in Saving Bank account

No. 6991 with Bank of Baroda, Parwanoo of Rs. 57,934/-. The

assessee could not explain the source of the bank deposit,

therefore, surrendered amount in question. The other addition

is on account of gift to the wife of assessee of Rs. 2,02,400/-

which is claimed to have been made out of his declaration of

undisclosed income which was reflected in the return under

section 153A of the Act. The assessee, therefore, contended that

it is not a case of concealment of income or filing inaccurate

particulars of income.

12. The ld. CIT(Appeals) noted that assessee failed to explain

cash deposit in Saving Bank account number 6991 with Bank of

Baroda in the name of minor son of assessee which was also

surrendered during the course of assessment proceedings. The 7

amount of gift was not disclosed in the return filed originally

under section 139(1) of the Act and there was also no Gift Deed.

The ld. CI T(Appeals) noted that if the Assessing Officer would

not have carried out investigation, both additions would not

have seen the light of the day. It is, therefore, found to be case

of concealment of income and the assessee's contention that

same were voluntarily surrendered in the assessment

proceedings was not accepted and penalty was confirmed by ld.

CIT(Appeals).

13. The ld. Representatives of both the parties stated that this

issue is same as is considered in the case of Smt. Jyoti Dhir

(supra). Therefore, following the reasons for decision in that

case and the case law relied upon therein, we dismiss this

appeal of the assessee as well.

14. In the result, appeal of the assessee is dismissed.

ITA 1032/CHD/2014 M/s Modulus Springs P.Ltd. [271(1)(c) ]

15. This appeal of assessee is directed against the order of ld.

CIT(Appeals) Central, Gurgaon dated 12.09.2014 for assessment

year 2006-07 challenging the levy of penalty under section

271(1)(c) of the Act. In the case of also, assessment was

completed under section 153A read with Section 143(3) of the

Income Tax Act at Rs. 8,64,160/- on 18.12.2009 against the

returned income of Rs. 5,91,984/-. The penalty was le vied on

addition of Rs. 4,50,000/- on account of unexplained investment

in the land. It is also connected with Dhir Group of search

cases including the assessee. It was found that assessee has 8

made investment in land in a sum of Rs.4,50,000/- which was

declared suo-motu in the return filed under section 153A of the

Act. It was, therefore, contended that it is not a case of filing of

inaccurate particulars for concealment of income. The ld.

CIT(Appeals) found that it is admitted fact that any investment

in land was not reflected in the return of income filed under

section 139(1) of the Act. Therefore, assessee had to surrender

on being confronted with the seized documents found against

the assessee during the course of search. On this surrender in

proceedings under section 153A, it was found that assessee has

not disclosed the investment in land in original return of income

under section 139(1) of the Act. Therefore, it is a clear case of

concealment of income in the original return of income. It is

stated by ld. Representatives of both the parties that the issue is

same as is considered in the case of Smt. Jyoti Dhir (supra).

Following the reasons for decision and the case law relied upon

in that case, we dismiss the appeal of the assessee.

16. In the result, appeal of the assessee is dismissed.

ITA 1035, 1036 & 1037/CHD/2014 Smt. Kiran Dhir (271(1)(c)

17. These appeals by the same assessee are directed against

common order of ld. CI T(Appeals) Central, Gurgaon dated

12.09.2014 for assessment year 2003-04, 2004-05 and 2006-07

challenging the levy of penalty under section 271(1)(c) of the

Act.

9

18. In this case also, assessments under section 153A read

with Section 143(3) of the Act were framed on 18.12.2009 at Rs.

3,13,000/-, Rs. 2,50,000/- and Rs. 3,83,800/- respectively in all

the above years. The assessee derives income from her

proprietorship concern M/s Himalaya Packaging and

Engineering Services. This case is also connected with search in

the case of Dhir Group of cases. The addition in all the three

years emanates on account of unexplained cash deposits

appearing in Saving Bank account No. 6945 with Bank of

Baroda, Parwanoo i.e. Rs.2,13,000/-, Rs. 1,50,499/- and Rs.

2,45,000/- respectively in all the above assessment years. The

assessee could not explain the bank deposits in the above sum

of rupees claiming the entries to be very old in which no

documentary evidence is available. The assessee surrendered

these amounts at the assessment stage and contended that it is

not a case of concealment of income or filing inaccurate

particulars of income. The Assessing Officer, however, levied

the penalty.

19. The ld. CIT(Appeals) found that the assessee filed original

return of income under section 139(1) in which the above sum

have not been disclosed. The cash deposit in bank account with

Bank of Baroda was surrendered during the course of

assessment proceedings which was not disclosed in the original

return of income under section 139(1) as well as same was not

disclosed in the return filed under section 153A of the Act. The

ld. CIT(Appeals), therefore, found that these bank deposits came

to the knowledge of Assessing Officer when requisition under

section 133(6) of the Act was issued to the concerned bank and 10

in case the Assessing Officer would not have exercised the

powers under section 133(6) of the Act, the addition would not

have come to the light of the day. It was, therefore, a case of

concealment of income and penalty was accordingly, imposed.

The ld. Representatives of both the parties submitted that the

issue is same as have been considered in the case of Smt. Jyoti

Dhir (supra). Following the reasons for decision in that case

and the judgements relied upon thereon, we dismiss all these

appeals of the assessee.

20. In the result, all appeals of the assessee are dismissed.

ITA 1033 & 1034/CHD/2014 (Smt.Kiran Dhir) A.Y. 2007-08 & 2008-09

21. Both the appeals by the assessee are directed against

different years of ld. CIT(Appeals) Central, Gurgaon dated

12.09.2014 for assessment year 2007-08 and 12.09.2014 for

assessment year 2008-09. In Both the appeals, assessee

challenged the addition of Rs. 2,95,869/- and Rs. 4,26,896/- on

account of deposits in the bank account maintained with Bank

of Baroda, Parwanoo.

22. Briefly the facts of the case are that in this case, search &

seizure operation was conducted on Dhir Group of cases on

10.08.2007 including the assessee. In response to the notice

under section 153A, the assessee filed return of income. The

Assessing Officer made addition of Rs. 2,95,867/- and Rs.

4,26,896/- on account of unexplained bank deposits. The ld.

CIT(Appeals) found that the additions of the above amounts have 11

been made on account of unexplained cash deposits appearing in

bank account numbers 6945 with Bank of Baroda, Parwanoo.

The Assessing Officer called for the information from the bank

which was supplied to the assessee. The assessee explained

before Assessing Officer that these bank accounts were

explainable, however entries are old and no documentary

evidence is available therefore, assessee decided to surrender

the amount for addition. The Assessing Officer, accordingly,

made the addition on being the amounts in question were

surrendered by the assessee.

23. The ld. CIT(Appeals) dismissed both the appeals of the

assessee.

24. On consideration of the rival submissions, we are of the

view additions have been rightly made by the authorities below

of the amount in question. The Assessing Officer called for

information from the concerned bank and it was found that

assessee has made cash deposits in the bank account with Bank

of Baroda, parwanoo. The assessee could not explain the bank

deposits in question and therefore, surrendered the amount for

taxation. It is, therefore, clear that both the additions were

agreed to by the assessee before Assessing Officer for the

purpose of addition. It is well settled law that no appeal lies on

agreed additions. We rely upon following decisions :

1. Decision of Hon'ble Bombay High Court in the case of Jivatlal Purtapshi, 65 ITR 261 (Bom.)

2. Decision of Kerala High Court in the case CIT Vs. Vamadevan Bhanu 330 ITR 559 (Ker) 12

3. Decision of Hon'ble Punjab & Haryana High Court in the case of Banta Singh Kartar Singh Vs. CIT, 125 ITR 239(P&H)

25. Considering the above discussion and the fact that the

assessee has failed to explain the source of the bank deposits,

authorities below were justified in making and confirming the

addition. Both the appeals of the assessee are not maintainable

and are liable to be dismissed.

26. In the result, both the appeals of the assessee are

dismissed.

27. In the result, all appeals of the assessees are dismissed.

Order pronounced in the Open Court on 11 t h

February,2015.

Sd/- Sd/-

(T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 11 t h February ,2015. 'Poonam' Copy to:

The Appellant, The Respondent, The CIT(A), The CIT,DR

Assistant Registrar, ITA T Chandigarh