Shri Duli Chand v. The Commissioner Of Income Tax & Anr

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR. D.B. Income Tax Appeal No.135/2002 Shri Duli Chand Vs. The Commissioner of Income Tax & Anr. DATE OF JUDGMENT ::: 9[th] September, 2016 HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE BANWARI LAL SHARMA Mr. P.K. Kasliwal, for the appellant.Ms. Parinitoo Jain, for the respondents. ***** (1)By way of this appeal, the assessee haschallenged the judgment & order of the Income TaxAppellate Tribunal whereby the Tribunal has partly allowedthe appeal preferred by the assessee and confirmed theorder of the CIT (Appeals). 1.1While admitting the appeal, this court framed thefollowing substantial question:- “1. Whether on the facts and in thecircumstances of the case, the tribunal wasjustifiedinsustainingpenaltyofRs.1,02,796/- u/s 271(1)(c) of the Income-Tax Act, 1961?” 2.1 Counsel for the appellant contended that the penalty which was imposed is contrary as well as thejewellery or stock of jewellery or any other material whichwas found the assets of the family members and it wasundisclosed income. The Assessing Officer while consideringthe penalty has considered the statement recorded u/s 132(4) and after considering the same out of 23 kg 430gram and after considering the same even CIT (Appeals) in para no.7 has observed as under:- “7. I have considered the basis of the addition aswell as the arguments of the assessee. Duringthe course of the proceedings it was noted thatthe appellant and the firm was carrying on theextensive business in silver outside the books ofaccount. In such a course it is natural to build astock of silver either for the purpose of businessor for the purpose of security. Considering all thefacts addition is justified and no interference iscalled.” 3.The Tribunal in para no.8 held as under:- “8. We have considered the rival submissions ofthe parties. On examination of facts, we are ofthe opinion that assesee has not properlyexplained the source of requisition of gold andsilver ornaments which were found at the timeof search. Therefore, the AO has rightlyimposed the penalty on the unexplainedinvestment in gold and silver ornaments.However, we hold that in view of our order inITA No.792, 796, 798, 800 & 802/JP/93 ofeven date the penalty under Sec.271(1)(c) onaccount of difference in share income fromregistered firm is not leviable. The AO isdirected to recompute the amount of penaltyon the concealed income of unexplainedinvestment in gold and silver ornaments andimpose minimum penalty.” 4.In view of concurrent findings of all authority, nointerference is required in the matter. Hence, the question is answered in favour of the department against the assessee. (Banwari Lal Sharma), J. (K.S. Jhaveri), J.