IN INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER I.T.A. Nos.2245 & 2246/Mds/2015 Assessment years : 2009-2010 & 2010-2011. Shri. S. Sampath Kumar, Vs. Income Tax Officer, 76, Bazar Road, Non Corporate Ward 2(4) Mylapore, Chennai 600 004. Chennai 600 034. [PAN AANPS 2678H] I.T.A. Nos.2247 & 2248/Mds/2015 Assessment year : 2009-2010 & 2010-2011. Shri. A. Subramaniam, Vs. Income Tax Officer, 38, Appu Street, Non Corporate Ward 2(4) Mylapore, Chennai 600 034. Chennai 600 004. [PAN ABCPS 0130N] I.T.A. Nos.2249, 2250 & 2251/Mds/2015 Assessment years : 2008-09, 2009-2010 & 2010-2011 Shri. S. Anand Kumar 38, Appu Street, Vs. Income Tax Officer, Mylapore, Non Corporate Ward 2(4) Chennai 600 004. Chennai 600 034. [PAN AACPA 9292L] ( Appellant) (Respondent) :- 2 -: ITA No. 2245 to 2251/Mds/15. Appellant by : Shri. F.C. Jain, C.A. Respondent by : Shri. Supriyo Pal, IRS, JCIT. Date of Hearing : 28-09-2016 Date of Pronouncement : 30-09-2016 O R D E R PER SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER: These are appeals by assessees directed against order dated 30.09.2015 of Commissioner of Income Tax (Appeals)-2, Chennai confirming levy of penalty u/s.271(1) (c) of Income Tax Act, 1961 (herein after referred to as Act ). 2. Assessee Shri. A. Subramanian is father of other two assessees namely Shri. S. Sampath Kumar and Shri. A. Anand Kumar. They were carrying on business of pawn broking. assessees were assessed individually. flying squad of Election Commission during course of Assembly Election, 2011 seized amount of 2 lakhs from Shri. A. Subramanian. Pursuant to this, there was survey in business premises of assessees on 10.4.2011 and 11.04.2011. Two pawn registers were found wherein name and addresses of pawnees, loan amount, interest etc were recorded. As per assessment orders survey officials had summed up interest :- 3 -: ITA No. 2245 to 2251/Mds/15. income for financial years 2008-09, 2009-2010 and 2010-2011. In respect of assessee Shri. S. Anand Kumar, survey officials found that there were differences in quantum of receipts shown by said assessee in return of income for assessment year 2008-2009 when compared to what was recorded in pledge books. All these assessees had revised their respective returns for impugned assessment years after survey except for assessment year 2008- 2009 in case of assessee Shri. S. Anand Kumar. Income returned in original return filed prior to survey, income recorded in return filed subsequent to survey and income finally assessed read as under:- Assessee Assessment Original Revised Assessed year return Return S.Sampath Kumar 2009-10 1,13,938 7,48,260 7,72,759 S.Sampath Kumar 2010-11 1,18,280 9,93,950 9,93,950 A. Subramaniam 2009-10 2,72,679 18,25,610 18,32,235 A. Subramaniam 2010-11 2,73,337 25,43,370 25,46,838 S. Anand Kumar 2008-09 37,720 Not revised 3,62,870 S. Anand Kumar 2009-10 1,47,552 6,37,600 6,47,470 S. Anand Kumar 2010-11 1,85,466 9,71,130 9,90,555 3. It seems during course of survey, assessee Shri. Subramaniam agreed for addition of 25 lakhs for assessment :- 4 -: ITA No. 2245 to 2251/Mds/15. year 2009-2010 and 10 lakhs for assessment year 2010-2011. Assessee Shri. S. Sampath Kumar agreed for addition of 10 lakhs for assessment years 2009-2010 and 2010-2011. However, what was offered by assessee Shri. S. Anand Kumar is not clear from assessment record. Difference in assessed income in case of Shri. S. Sampath Kumar and Shri. S. Anand Kumar was due to addition made for income from House property, except for assessment year 2008- 2009 in case of Shri. S. Anand Kumar. For latter mentioned year difference in assessed income in case of Shri. S. Anand Kumar was due to enhanced receipts from pawn broking. It is to be noticed that Shri. S. Anand Kumar had not filed any revised return for assessment year 2008-2009 but had requested ld. Assessing Officer to treat original return as one filed in pursuance to notice under section 148 of Act. 4. After completion of assessment as mentioned above, all assessees were issued notice u/s. 271(1)(c) of Act to show cause why penalty for concealment should not be levied. In reply, assessee s stated that they never had concealed any income nor furnished inaccurate particulars. However, ld. Assessing Officer was not impressed by above reply. According to him, for all assessment years :- 5 -: ITA No. 2245 to 2251/Mds/15. except for assessment year 2008-2009 pertaining to Shri. S. Anand Kumar, assessees had admitted additional income in their revised returns only because of survey operations. According to him, but for survey, such income would not have come to light. In so far as assessment year 2008-2009 relating to assessee Shri. S. Anand Kumar was concerned, ld. Assessing Officer was of opinion that assessed income was much higher than what was originally returned due to receipts from pawn broking, found at time of survey, which was not shown by him in return filed prior to survey. Accordingly, penalty was levied u/s.271(1) (c) of Act at 100% of tax sought to be evaded. details of penalty levied were as under:- Assessee Assessment Penalty u/s.271 (1) year (c) S.Sampath Kumar 2009-10 1,40,933 S.Sampath Kumar 2010-11 2,10,000 A. Subramaniam 2009-10 5,30,860 A. Subramaniam 2010-11 7,01,398 S. Anand Kumar 2008-09 1,00,470 S. Anand Kumar 2009-10 1,54,475 S. Anand Kumar 2010-11 2,48,770/- :- 6 -: ITA No. 2245 to 2251/Mds/15. 5. Aggrieved, assessees moved in appeal before ld. Commissioner of Income Tax (Appeals). However, ld. Commissioner of Income Tax (Appeals) confirmed levy of penalty stating that filing of revised return after information obtained by Department was confronted to assessee would not absolve assessee from rigours of penalty u/s.271(1) (c) of Act. Reliance was also placed on judgment of Hon ble Allahabad High Court in case of Hakam Singh vs.CIT(1980) 124 ITR 228. 6. Now before us, ld. Authorised Representative strongly assailing orders of lower authorities submitted that assessees had not moved appeal against quantum assessment since they were under bonafide belief that additional income admitted in revised return would not lead to levy of penalty. According to him, there was nothing on record to show any concealment of income by assessees. As per ld. Authorised Representative, assessees had not furnished any inaccurate particulars regarding their incomes. 7. Contra, ld. Departmental Representative strongly supported orders of lower authorities. Specific reliance was placed by ld. Departmental Representative on judgment of Hon ble Apex Court in case of Mak Data (Pvt) Ltd. vs. CIT 358 ITR 593. :- 7 -: ITA No. 2245 to 2251/Mds/15. 8. We have perused orders of authorities below. reading of assessment orders in all these assessees cases, for impugned assessment year do not show any details regarding differences of income which were allegedly summed up by survey officials during course of survey. No doubt, it is mentioned that two pawn registers were found which reflected names of pawnees, loan amounts, dates, interest received etc. However, how interest receipts and loans that were considered undisclosed by assessee was calculated, has not been brought on record by ld. Assessing Officer either in assessment order or in penalty order. In case of Shri. S. Anand Kumar, it is stated that receipts shown by him in returns was less than what was recorded in pledge books found. Here, again relevant assessment order as well as penalty order are silent as to what were these amounts and how differences were worked out. No doubt, assessees might have offered some income during course of survey. However, in our opinion this by itself cannot lead to conclusion that there was concealment or furnishing any inaccurate particulars. Penalty proceedings require exact quantification of concealment if any attempted by assessee or exact details of particulars which were not furnished by assessee. Merely by stating that pawn registers which were :- 8 -: ITA No. 2245 to 2251/Mds/15. summed up was not disclosed by assessee or receipts as per pledge books were not recorded by assessee cannot lead to any rational conclusion unless and until figures which were not recorded were clearly brought out. Penalty proceedings stand on different footing from assessment proceedings and mere admission by assessee at time of survey coupled with revision of return cannot lead to conclusion that there was concealment or furnishing of inaccurate particulars. No doubt, in case of Mak Data (Pvt) Ltd. (supra) Hon ble Apex Court held that voluntary disclosure by assessee when it was confronted by information in possession of Revenue would not absolve it from mischief of penal proceedings. However, in said case assessee concerned had surrendered sum of 40.74 lakhs based on share application money which was not explained, for which detailed calculation were available. addition made in said case was based on exact calculation of income concealed by assessee which it had admitted during course of assessment proceedings. Here on other side neither there is any calculation, much less any detailed calculation available on record nor has Department been able to co-relate amounts recorded in pawn registers and pledge books with amounts agreed by assessee for addition for respective assessment years. In circumstances, we are of opinion that assessee cannot be fastened :- 9 -: ITA No. 2245 to 2251/Mds/15. with levy of penalty either for concealment of their income nor for furnishing inaccurate particulars. Penalty levied for all assessees for all years are deleted. 8. In result, appeals of assessee are allowed. Order pronounced on Friday, 30th day of September, 2016, at Chennai. Sd/- Sd/- (G. PAVAN KUMAR) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER Chennai Dated: 30th September, 2016 KV Copy to: 1. Appellant 3. ( CIT(A) 5. DR 2. Respondent 4. CIT 6. GF S. Sampath Kumar v. Income Tax Officer, Non Corporate Ward 2(4) Chennai