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TMI Blog2024 (2) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... h have been referred to hereinabove, the following question of law was framed by the court: "(i) Was the Tribunal correct in holding that penalty could not have been levied under Section 271(l)(b) of the Income Tax Act in the circumstances of the case?" 4. Although the order dated 13.11.2017 shows that the question of law, which is extracted in paragraph 2 above, arises in ITA No. 958/2017 as well, we are told that this was a mistake. In support of this submission, our attention is drawn to the order dated 01.08.2019. We may note that apart from ITA No. 612/2017, the other appeals, i.e., ITA Nos. 958/2017, 959/2017, and 960/2017 are not listed before the Court today. 5. As far as this bench was concerned, the matter was briefly heard on 25.05.2023, when the central issue raised in the appeal was captured. It was brought to the fore that during search, no incriminating material was found qua the appellant/assessee. 5.1 It is in this context that reliance was sought to be placed on the judgment rendered by the coordinate bench in CIT v. Kabul Chawla, (2015) 61 taxmann.com 412 (Delhi)) and the judgment rendered by the Supreme Court in PCIT v. Abhishar Buildwell P. Ltd., (2023) 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, "Act"] was passed was already available with the respondent/revenue. The information which was available with the respondent/revenue was a purported bank statement, received from HSBC Bank, Geneva. 4. Mr Vohra says that this information was supplied to the appellant/assessee by the respondent/revenue on 21.11.2014. Therefore, the brief contention of Mr Vohra is that the impugned order dated 10.04.2017, passed by the Income Tax Appellate Tribunal [in short, "Tribunal"], deserves to be reversed, in view of the ratio of the judgment of this court in CIT v. Kabul Chawla, 380 ITR 573 Delhi. 4.1 To be noted, this judgment has been approved by the Supreme Court in PCIT v. Abhishar Buildwell P. Ltd. 2023 (143) taxman.com 399 (SC). 5. Mr Kunal Sharma, learned senior standing counsel, who appears on behalf of the respondent/revenue, says that he will return with instructions, specifically with regard to the aspect as to whether or not incriminating material was found qua the appellant/assessee, during the search carried out on 14.11.2011. 6. At the request of Mr Sharma, list the matter on 01.06.2023." 4. As would be evident, the matter was, thereafter, posted for hearing on 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized representative only on 21.11.2014. 8. In support of the aforesaid assertions, our attention has been drawn to the documents that form part of Volume 1 of the case papers made available to the court. Reference is made to the documents appended on the PDF page 12 [running page 11]; PDF page 23 [running page 22]; PDF page 34 [running page 33]; PDF page 40 [running page 39], and PDF page 49 [running page 48]. 9. We may indicate that the document appended on PDF page 12 is a statement of the appellant/assessee recorded on oath. The other documents are correspondences exchanged between the appellant/assessee and the ACIT, as well as the respondent/revenue. 10. We may also indicate that Mr Jain has placed before us a copy of the intimation, dated 22.09.2023, sent to the AO, requesting him to supply, to the appellant's/assessee's counsel, the affidavit, in terms of the order dated 18.08.2023. Furthermore, emails dated 18.11.2023, and 04.10.2023, were sent to Mr Sharma, requesting him to furnish a copy of the affidavit. 10.1 Despite the reminders served on the concerned officer and Mr Sharma, the affidavit has not been filed. As a result, we are left with only two choices. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that there is willful concealment of income by him. (v) Lastly, no physical material related to the foreign bank account was found during the search that would incriminate the appellant/assessee. 12. Therefore, what emerges is that the respondent/revenue did not secure any incriminating material qua the appellant/assessee in the course of search that was carried out on 14.11.2011. The material that it had in its possession pertained to the period before the date of search. 13. The material that the petitioner/assessee had was deficient in several aspects, as was pointed out by the counsel at the hearing held on 23.11.2023. The deficiency in the material based on which the impugned addition was made is captured in paragraph 7.1 of the order dated 23.11.2023. 14. As regards the stand of the respondent/revenue, that the appellant/assessee had refused to sign the consent form, Mr Jain submits that the consent form was framed in such a manner that if the appellant/assessee were to sign the form, he would end up incriminating himself even when position taken by him was that he did not maintain a bank account with the Geneva branch of HSBC Bank. 14.1 In support of this plea, ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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