Shree Ram Developers, Ahmedabad V. The Dy.CIT, Central Circle-2(1), Ahmedabad

CO 226/AHD/2014

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5467 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Initiation of penalty proceedings
• Section: 271(1)(c); 143(3); 133A; 153A; 201; 274; 147; 132; 12

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CBENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER SR. NOS ITA NO(S) ASST. YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. ITA NO.1310/AHD/2014 2011-12 M/S. SHREERAM DEVELOPERS, KARNAVATI APARTMENTS, OPP. OM SHANTI NAGAR, OPP. CENTRAL WAREHOUSE, NATIONAL HIGHWAY-8, VATVA, NAROL, AHMEDABAD. (PAN NO. ABPFS 1848 A) THE DCIT, CENTRAL CIRCLE- 2(2), AHMEDABAD. 2. ITA NO.1742/AHD/2014 2011-12 THE DCIT M/S. SHREERAM DEVELOPERS 3. CO NO.226/AHD/2014 (ARISING IN INCOME TAX APP. NO.1742/AHD/2014) 2011-12 M/S. SHREERAM DEVELOPERS THE DCIT ASSESSEE BY : SHRI DHIREN SHAH, A.R REVENUE BY : SHRI SUBHASH BA , CIT,DR / DATE OF HEARING : 04/09/2018 / DATE OF PRONOUNCEMENT: 01/11/2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THESE CROSS APPEALS ARE FILED BY THE ASSESSEE AND T HE REVENUE AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-III AHMEDABAD,[CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-I II/609/DCIT/CC- 2(1)/13-14DATED 14/03/2014, PASSED FOR THE ASSESSME NT YEAR 2011-2012. ASSESSEE HAS ALSO FILED A CROSS OBJECTION IN THE RE VENUES APPEAL BEARING ITA NO.1742/AHD/2014 FOR THE ASSESSMENT YEAR 2011-1 2. SINCE THE ISSUES RAISED IN THESE APPEALS AND CROSS OBJECTION ARE COMMON, WE PROCEED TO DISPOSE OFF ALL THESE APPEALS BY THIS CO MMON ORDER. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEALS. 1. THE LD.CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN ALLOWING THE APPEAL PARTLY. HE OUGHT TO HAVE ALLOWED THE APPEAL FULLY I N ACCORDANCE WITH THE GROUNDS OF APPEAL RAISED BY THE APPELLANT BEFORE HI M. LEVY OF PENALTY U/S.271(1)(C) OF THE ACT I. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT AS PER PROVISION OF SECTION 292B, THE NOTICE U/S.274 R.W.S 271(1)(C) OF THE ACT, 1961 DATED 26-03- 2013 ISSUED BY THE A.O ALONGWITH ASSESSMENT ORDER T O THE APPELLANT FIRM CANNOT BE CANNOT BE TREATED AS INVALID MERELY BY RE ASON OF ANY MISTAKE OR DEFECT OR OMISSION IN SUCH NOTICE. 2. THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOL DING THAT THE TECHNICAL GROUND TAKEN BY THE APPELLANT FIRM AS REGARDS TO TH E VALIDITY OF PENALTY ORDER RENDERED U/S.271(1)(C) OF THE ACT, BY THE A.O AND I N RESPECT OF PLEA OF THE APPELLANT FIRM TO QUASH THE PENALTY ORDER, I AM OF THE VIEW THAT AS PER THE PROVISIONS OF SECTION 292B OF THE ACT, PENALTY ORDE R RENDERED BY THE AO U/S.271(1)(C) OF THE ACT CANNOT BE QUASHED ON TECHN ICAL GROUND. THE APPELLANT FIRM RESERVES ITS RIGHT TO ADD, AMEND , ALTER OR MODIFY ANY OF THE GROUNDS STATED HEREINABOVE EITHER BEFORE OR AT THE TIME OF HEARING. 3. REVENUE HAS RAISED FOLLOWING GROUND OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ''LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.1,23,60, 000/- LEVIED U/S.271(1)(C) OF THE ACT. 4. ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS CRO SS OBJECTION AS FOLLOWS: ALL THE GROUNDS IN THIS CROSS-OBJECTION ARE MUTUALL Y EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER:- 1. THE LD.CIT(A) AFTER GOING THROUGH THE DETAILS, SUBM ISSION AND LEGAL SUBMISSIONS OF THE RESPONDENT, HAS RIGHTY DELETED T HE PENALTY OF RS.1,23,60,000/- LEVIED U/S.271(1)(C) OF THE ACT. 2. YOUR RESPONDENT CRAVES RIGHT TO ADD, AMEND, ALTER, MODIFY, SUBSTITUTE OR DELETE ALL OR ANY OF THE ABOVE GROUNDS OF CROSS OBJ ECTION. 5. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.1742 /AHD/2014 FOR THE ASSESSMENT YEAR 2011-2012. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 3 6. THE ONLY ISSUE RAISED BY THE REVENUE IS THAT LD. CIT(A) ERRED IN DELETING THE PENALTY OF RS. 1,23,60,000/- LEVIED U/ S.271(1)(C) OF THE ACT. 7. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS A PARTNERSHIP FIRM AND ENGAGED IN THE CONSTRUCTION BU SINESS. THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT, AT THE PR EMISES OF THE PARTNERS OF THE FIRM, NAMELY SHRI RAMESH RAVJIBHAI DOBARIYA, SHRI R AMESHBHAI BABUBHAI PATEL (MESHIA) AND SHRI JAGDISHBHAI BHAGVANJIBHAI C HANDARANA DATED 06/01/2011. THERE WAS ALSO A SURVEY U/S 133A OF THE ACT AT THE BUSINESS PREMISES OF THE FIRM DATED 06/01/2011. 7.1 AS A RESULT OF SEARCH OPERATION, THE PARTNERS O F THE FIRM HAVE ADMITTED INCOME OF RS.4 CR. BELONGING TO THE ASSESSEE (PARTN ERSHIP FIRM) WHICH WAS REPRESENTING THE UNACCOUNTED BOOKING RECEIPTS FROM THE MEMBERS WHO ACQUIRED THE PROPERTIES FROM THE ASSESSEE. AS SUCH THE ASSESSEE CONSTRUCTED PROJECT UNDER THE NAME OF KARNAVATI APARTMENT WHICH WAS SOLD TO VARIOUS MEMBERS. 7.2 THE LD. AO DURING THE ASSESSMENT PROCEEDINGS RE QUIRED THE ASSESSEE TO FURNISH THE DETAILS OF THE MEMBERS WHO HAVE GIVEN M ONEY TO THE ASSESSEE FOR THE PURCHASE OF IMMOVABLE PROPERTY. BUT, THE ASSESS EE HAS NOT FURNISHED ANY SUCH DETAILS TO THE LD.AO. 7.3 ACCORDINGLY, THE LD.AO FRAMED THE ASSESSMENT OR DER U/S 143(3) OF THE ACT, AT THE INCOME DECLARED IN THE INCOME TAX RETUR N AT RS. 5,54,22,882/- VIDE HIS ORDER DATED 26/03/2013. THE LD.AO IN THE ASSESS MENT ORDER INITIATED THE ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 4 PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT, ON AC COUNT OF CONCEALMENT OF INCOME. 7.4 SUBSEQUENTLY, THE LD.AO ISSUED A NOTICE U/S 271 (1)(C) OF THE ACT, R.W.S 274 OF THE ACT, DATED 26/03/2013, FOR INITIATING TH E PENALTY PROCEEDINGS. THE ASSESSEE INCOMPLIANCE TO IT SUBMITTED THAT THERE WA S NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH/SURVEY PROCEEDINGS QUA THE DISCLOSED INCOME ADMITTED FOR RS. 4 CR. AS SUCH THE ASSESSEE SUO-MOTTO HAS OFFERED AN UNDISCLOSED INCOME OF RS.4 CR. IN ITS INCOME TAX RE TURNS ON THE BASIS OF STATEMENT RECORDED U/S 132(4) DURING THE SEARCH PRO CEEDING ON THE PARTNERS. 7.5 THE INCOME OFFERED BY IT FOR RS.4 CR. WAS DULY ACCOUNTED AND DISCLOSED IN THE BOOKS OF THE ACCOUNTS. 7.6 WITHOUT PREJUDICE TO THE ABOVE, THE ASSESSEE AL SO CLAIMED THAT IT SATISFIES ALL THE CONDITIONS SPECIFIED UNDER THE PR OVISION OF SECTION 271AAA OF THE ACT, WHICH PROVIDES IMMUNITY FROM THE PENA LTY. HOWEVER, THE LD.AO DURING THE PENALTY PROCEEDINGS O BSERVED CERTAIN FACTS AS DETAILED UNDER: 1. THE INCOME WAS DISCLOSED BY THE ASSESSEE FOR RS.4 C R. IN THE CONSEQUENCE TO THE SEARCH/SURVEY OPERATION. AS SUCH , HAD THERE NOT BEEN ANY SEARCH/SURVEY PROCEEDINGS, THE ASSESSEE WO ULD NOT HAVE DISCLOSED ADDITIONAL INCOME OF RS. 4 CR. 2. THERE WAS NO SEARCH CARRIED OUT AT THE PREMISES OF THE ASSESSEE U/S 132 OF THE ACT, THEREFORE, THE CASE OF THE CASE IS NOT COVERED BY EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT, THEREFORE, THE P ENALTY HAS BEEN INITIATED UNDER THE NORMAL PROCEDURE AS TO SATISFY U/S.271(1)(C) OF THE ACT. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 5 3. THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED MONEY FRO M THE MEMBERS OF THE KARNAVATI PROJECT WHO HAS PURCHASED THE APARTME NT FROM THE ASSESSEE. HOWEVER, THE ASSESSEE HAS NOT FURNISHED T HE INDIVIDUAL DETAILS OF THE PARTIES WHO HAVE GIVEN MONEY IN CASH TO THE ASSESSEE. THE ASSESSEE HAS ALSO NOT CREDITED MONEY RECEIVED FROM THE MEMBERS IN THEIR INDIVIDUAL ACCOUNT. THEREFORE THE ASSESSEE HA S NOT DISCLOSED TRUE AND CORRECT PARTICULARS OF ITS INCOME. 4. THE ASSESSEE FAILED TO EXPLAIN THE SOURCE AND THE M ANNER OF RECEIPT OF THE UNDISCLOSED INCOME FROM THE PARTIES, WHO ACQUIR ED APARTMENT FROM THE ASSESSEE. THE ASSESSEE HAS NOT FURNISHED THE DE TAILS OF THE INDIVIDUAL MEMBERS WHO HAVE CONTRIBUTED MONEY TO THE ASSESSEE FOR THE PURCHASE OF APARTMENT DESPITE OF THE SEVERAL REMINDERS. IN VIEW OF THE ABOVE, THE LD.AO LEVIED MINIMUM PENA LTY U/S 271(1)(C) OF THE ACT, FOR RS.1,23,60,000/- BEING 100 % OF THE TAX AM OUNT SOUGHT TO BE EVADED. 8. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO LD. CI T(A). THE ASSESSEE BEFORE THE LD. CIT(A), SUBMITTED AS UNDER: 1. PENALTY WAS LEVIED ON THE FIRM ON THE BASIS OF SUO-MOTTO DISCLOSURE OF UNDISCLOSED INCOME IN THE HAND OF THE ASSESSEE FIRM FOR RS.4 CR. IN THE STATEMENT FURNISHED U/S 132(4) OF THE ACT BY THE PA RTNERS IN PURSUANCE OF SEARCH CARRIED OUT AT THE PREMISES OF PARTNERS. 2. THE LD.AO HAS FRAMED THE ASSESSMENT U/S 153C R.W.S 153A PERTAINING TO THE ASSESSMENT YEAR 2005-2006 TO 2010-2011, WHIC H TRANSPIRES THAT THE PROVISIONS OF SUCH PROCEEDINGS HAVE BEEN INVOKE D. THEREFORE, THE PROVISION OF SECTION 271AAA OF THE ACT WILL BE IMPL IED IN THE YEAR UNDER CONSIDERATION. 3. THERE WAS NO INCRIMINATING DOCUMENT FOUND DURING TH E COURSE OF SEARCH. AS SUCH THE INCOME WAS VOLUNTARILY DISCLOSE D FOR RS. 4 CR. THEREFORE IN THE ABSENCE OF ANY INCRIMINATING DOCUM ENTS THE QUESTION OF LEVYING PENALTY DOES NOT ARISE. 4. AT THE TIME OF PENALTY PROCEEDINGS IT WAS CONTENTED BEFORE THE LD.AO THAT THE PENALTY WILL BE LEVIED IN PURSUANCE TO THE PROVISION OF SECTION 271 AAA OF THE ACT, BUT THE ASSESSEE WAS ENTITLED F OR THE IMMUNITY ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 6 FROM THE PENALTY AS PROVIDED U/S.271AAA OF THE ACT. HOWEVER, THE LD.AO REMAINED SILENT ON THE SUBMISSION FILED BY TH E ASSESSEE FOR INVOKING THE PROVISIONS OF SECTION 271 AAA OF THE A CT. 8.1 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE HELD THAT THE PENALTY CANNOT BE LEVIED U/S. 271(1) (C) OF THE ACT. HOWEVER THE LD. CIT(A) WAS OF THE VIEW THAT PENALTY COULD HAVE BEEN LEVIED U/S 271AAA OF THE ACT. THE RELEVANT EXTRACT OF THE ORDER IS REPRO DUCED BELOW: 6 I HAVE GONE THROUGH THE ASSESSMENT ORDER RENDERED BY THE A.O U/S. 143 OF THE ACT DATED 26.03.2013. THE A.O HAS OBSERVED IN PARA 3 OF THE ASSESSMENT ORDER THAT 'THE ASSESSEE HAS DISCLOSED RS. 4.00 CRORES AS UNACCOUNT ED BOOKING RECEIPTS FROM KARNAVATI APARTMENT PROJECT. DURING THE ASSESSMENT PROCEEDING THE ASSESSEE WAS VIDE QUESTIONNAIRE DATED 27.11.2012 SPECIFICALLY ASKED T O PROVIDE THE DETAILS OF ON MONEY RECEIVED FROM EACH MEMBER. IN THIS CONNECTION ASSES SEE HAS ONLY SUBMITTED THAT THE UNDISCLOSED INCOME OF RS. 4.00 CRORE WAS RELATING T O ON MONEYRECEIVED FROM VARIOUS MEMBERS. NO OTHER DETAILS HAVE BEEN PROVIDED IN THI S CONNECTION. THE ASSESSEE HAS FAILED TO SUBMIT THE COMPLETE DETAILS AND CONCEALED THE INCOME. THEREFORE, PENALTY PROCEEDING U/S. 271 (1)( C) OF THE ACT IS BEING INI TIATED'. THE A.O AFTER MAKING AFORESAID OBSERVATION, IN PARA 4 HAS STATED THAT ' PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT IS INITIATED AND PENALTY ORDER IS ENCLOSED WITH THIS ORDER'. THE A.O ALONG WITH THE ASSESSMENT ORDER ISSUED NOTICE U/S. 274 R.W.S. 271(1)(C) OF THE IT. ACT, DATED 26.03.2013 AND IN THE NOTICE, THE A.O STROKE OFF TH E SECTION 271AAA OF THE ACT. 7. IN THE PRESENT CASE OF THE APPELLANT FIRM, THE A .O ISSUED THE NOTICE U/S.153C R.W.S153A OF THE ACT FOR A.Y. 2005-06 TO A.Y. 2010- 11 IN PURSUANCE OF THE STATEMENT OF THE PARTNERS RECORDED U/S. 132(4) OF THE ACT IN THE SEARCH PROCEEDINGS WHICH TOOK PLACE ON 6-1-2011 AND THE A.O RENDERED THE ORDER U/S. 153 C R.W.S. 153A R.W.S. 143(3) OF THE ACT FOR A.Y. 2009-10, 2010-11 AND ASSESSMENT ORDER U/S. 143(3) OF THE ACT FOR A.Y 201 1-1 2. 8. THE AR IN THE WRITTEN SUBMISSION FILED BEFORE TH E A.O VIDE LETTER DATED 4-09-2013 HAS ALSO DISCUSSED AT LENGTH THAT WHY IN THE CASE O F THE APPELLANT FIRM, PENALTY PROCEEDINGS U/S. 271AAA CAN BE APPLICABLE AND NOT T HE PROVISIONS OF SECTION 271(1)( C) OF THE ACT. THE A.O HAS NOT CONSIDERED THE SAID LEG AL SUBMISSION & PASSED THE PENALTY ORDER U/S. 271 (1)(C) R.W.S. 274 OF THE IT. ACT, 19 61 VIDE ORDER DATED 27-09-201 3. 9. THE APPELLANT IN ITS SYNOPSIS OF ARGUMENTS SUBMI TTED BEFORE ME IN THE APPELLATE PROCEEDINGS CONTENDED THAT IN THE CASE OF THE APPEL LANT FIRM FOR A.Y. 2011-THE PROVISIONS OF SECTION 271AAA OF THE ACT IS APPLICAB LE AND NOT THE PROVISIONS OF SECTION 271 (1)( C) OF THE ACT AND THE PENALTY PROCEEDINGS INITIATED BY THE A.O IN THE ASSESSMENT ORDER U/S. 271 (1)( C) OF THE ACT ARE CO NTRARY TO THE PROVISIONS OF THE IT. ACT BEING INVALID AND BAD IN LAW AND THE PENALTY ORDER RENDERED U/S. 271 (1)( C) OF THE ACT ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 7 DATED 27-09-2013 IS REQUIRED TO BE QUASHED BEING IN VALID AND CONTRARY TO THE PROVISIONS OF THE INCOME TAX ACT. 10. NOW , COMING TO THE CONTENTION OF THE AR THAT T HE AO WAS TECHNICALLY WRONG TO INVOKE SEC.271(1)(C) INSTEAD OF SEC.271 AAA , HENCE THE PENALTY SHOULD BE QUASHED, IT IS RELEVANT TO QUOTE PROVISIONS OF SEC 292 B OF THE ACT WHICH LAYS DOWN THAT, 'NO RETURN OF INCOME ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEE N FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF T HIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MIS TAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PRO CEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTEN D AND PURPOSE OF THIS ACT' ' 11. IN VIEW OF THE PROVISION OF SECTION 292B, THE N OTICE U/S.274 R.W.S 272(1)(C) OF THE I.T ACT 1961 DATED 26-03-2013, ISSUED BY THE AO ALONGWI TH ASSESSMENT ORDER TO THE APPELLANT FIRM CANNOT BE TREATED AS INVALID MERELY BY REASON OF ANY MISTAKE OR DEFECT OR OMISSION IN SUCH NOTICE, IF SUCH NOTICE OR OTHER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDINGLY WITH OR AC CORDING TO THE INTEND AND PURPOSE OF THIS ACT. THE AO IN THE ASSESSMENT ORDER RENDERED U /S. 143(3) IN PARA 3 HAS DISCUSSED ABOUT THE INITIATION OF PENALTY PROCEEDINGS U/S.271 (1)(C) OF THE ACT. I INTEND TO AGREE WITH THE CONTENTION OF THE AR THAT IN THE CASE OF T HE APPELLANT FIRM FOR A.Y.2011-12, THE PENALTY PROVISION U/S.271AAA OF THE I.T. ACT, 1961, IS APPLICABLE INSTEAD OF SECTION 271(1)(C) OF THE ACT IS NO APLICABLE BUT AT THE SAM E TIME, IN VIEW OF PROVISIONS OF SECTION 292B OF THE I.T ACT, 1961, THE PENALTY ORDE R RENDERED BY THE AO U/S.271(1)(C) OF THE ACT CANNOT BE QUASHED AND THE A.O COULD HAVE RENDERED THE PENALTY ORDER U/S.271AAA (1) OF THE ACT BY LEVYING THE PENALTY @ 10% OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. AS PER PROVISIONS OF S ECTION 271AA OF THE ACT, IN THE APPELLANT FIRMS CASE, THE A.O COULD HAVE LEVIED TH E PENALTY @ 10% OF RS.4,00,00,000/- WHICH WORKS OUT TO RS.40,00,000/- 12. THE APPELLANT FIRM HAS ALSO TAKEN A GROUND OF A PPEAL NO.3 THAT IN THE CASE OF THE APPELLANT FIRM, PENALTY U/S.271AAA OF THE I.T ACT, 1961, IS ALSO NOT JUSTIFIABLE. ACCORDINGLY, THE ISSUE RAISED IN GROUND OF APPEAL NO.3 IS DEALT HEREWITH 13. IN RESPECT OF TECHNICAL GROUND TAKEN BY THE APP ELLANT FIRM AS REGARDS TO THE VALIDITY OF PENALTY ORDER RENDERED U/S. 271 (1)( C) OF THE A CT BY THE A.O AND IN RESPECT OF PLEA OF THE APPELLANT FIRM TO QUASH THE PENALTY ORDER, I AM OF THE VIEW THAT AS PER THE VISIONS OF SECTION 292B OF THE ACT, PENALTY ORDER RENDERED BY THE A.O U/S. 271 (1)( C) HE ACT CANNOT BE QUASHED ON TECHNICAL GROUND. 9. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A), BOTH REVENUE AND ASSESSEE ARE IN APPEAL BEFORE US. THE REVENUE IS IN APPEAL BEFORE US AGAINST THE DELETION OF THE PENALTY IMPOSED BY THE LD.AO FO R RS.1,23,60,000/- ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 8 U/S.271(1)(C) OF THE ACT, WHEREAS THE ASSESSEE IS I N APPEAL AGAINST THE INITIATION OF PROCEEDINGS FOR LEVYING THE PENALTY U /S 271AAA OF THE ACT AFTER MAKING REFERENCE TO THE PROVISIONS OF SECTION 292 B OF THE ACT. 10. THE LD. DR BEFORE US SUBMITTED THAT THE ASSESSE E FAILED TO FURNISHED THE DETAILS OF THE INDIVIDUAL MEMBERS WHO HAVE GIVEN ON ACCOUNT MONEY TO THE ASSESSEE. THEREFORE IT IS CLEAR THAT THE ASSESSEE H AS CONCEALED PARTICULARS OF ITS INCOME AND ACCORDINGLY THE ASSESSEE IS LIABLE FOR P ENALTY U/S 271(1)(C) OF THE ACT, 10.1 THE LD. DR FURTHER SUBMITTED THAT THERE WAS NO SEARCH CARRIED OUT AT THE PREMISES OF THE ASSESSEE. THEREFORE THERE IS NO QUESTION OF INVOKING THE PROVISION OF SECTION 271AAA OF THE ACT, FOR INITIAT ING THE PENALTY ON ACCOUNT OF CONCEALMENT OF INCOME. 11. ON THE OTHER HAND LD.AR, SUBMITTED THAT THE NOT ICE WAS ISSUED U/S 271(1) (C) OF THE ACT, THEREFORE THERE IS NO QUESTI ON OF INITIATING THE PENALTY U/S 271AAA OF THE ACT AFTER HAVING RELIANCE ON THE PROVISION OF SECTION 292 B OF THE ACT. 11.1 THE LD. AR FURTHER SUBMITTED THAT THE LD. CIT( A) CANNOT ACQUIRED THE JURISDICTION U/S 271AAA OF THE ACT, AS NOTICE WAS I SSUED U/S 271(1)(C) OF THE ACT. 12. BOTH THE PARTIES BEFORE US RELIED ON THE ORDER OF THE AUTHORITIES BELOW AS FAVORABLE TO THEM. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 9 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE FOLLOWING ISSUE ARISES FOR OUR CONSIDERATION. 1. WHETHER THE ASSESSEE IS LIABLE FOR PENALTY U/S 271( 1)(C) OR 271AAA OF THE ACT. 2. WHETHER THE LD. CIT(A) CAN CURE THE DEFECT UNDER TH E PROVISIONS OF SECTION 292B OF THE ACT BY TREATING THE NOTICE ISSU ED U/S 271(1)(C) OF THE ACT AS ISSUED UNDER SECTION 271AAA OF THE ACT. 14. ISSUE NO.1 AT THIS JUNCTURE WE FIND IMPORTANT AND PERTINENT TO REFER THE PROVISION U/S 271AAA OF THE ACT, WHICH READS AS UNDER: [ PENALTY WHERE SEARCH HAS BEEN INITIATED. 271AAA. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYT HING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007 [ BUT BEFORE THE 1ST DAY OF JULY, 2012 ] , THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDI TION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPL Y IF THE ASSESSEE, (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER SUB-SECTION (4) OF SECTION 132 , ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MAN NER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCL OSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF T HE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. 14.1 A PLAIN READING OF THE ABOVE PROVISION SHOWS T HAT IT IS APPLICABLE FOR THE SPECIFIED YEARS IN THE CASE OF SEARCH CARRIED O UR U/S 132 OF THE ACT, ON OR AFTER FIRST DAY OF JUNE 2007, BUT BEFORE THE FIRST DAY OF JULY 2012. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 10 14.2 IT IS A FACT ON RECORD THAT THERE WAS NO SEARC H CARRIED OUT BY THE REVENUE U/S 132 OF THE ACT, ON THE ASSESSEE. IN FAC T THERE WAS SURVEY PROCEEDING AT THE BUSINESS PREMISES OF THE ASSESSEE DATED 06/01/2011. THE SEARCH VIS--VIS SURVEY PROCEEDINGS ARE DISTINCT TO EACH OTHER. AS THERE WAS NO SEARCH AS SPECIFIED U/S 132 OF THE ACT, AT THE PREM ISES OF THE ASSESSEE, THEREFORE THERE CANNOT BE ANY QUESTION OF INITIATIN G PENALTY U/S 271AAA OF THE ACT. IT IS BECAUSE THE SEARCH PROCEEDINGS CANNOT BE EQUATED WITH SURVEY PROCEEDINGS. IN CASE OF SEARCH PROCEEDINGS IT IS CO MPULSORY TO MAKE THE ASSESSMENT IN PARTICULAR MANNER UNDER THE DIFFERENT PROVISION OF THE SECTIONS OF THE ACT. IN THIS REGARD WE FIND GUIDANCE AND SUP PORT FROM THE ORDER OF ITAT PANJI IN CASE OF BHAWARLAL JAIN, KAKINADA VS T HE DY. CIT, RAJAMAHENDRAVARAM IN ITA NO. 80 & 81/VIZ/2017. THE RELEVANT EXTRACT IS AS UNDER: 11. FROM THE ABOVE, IT IS VERY CLEAR THAT WHERE TH ERE IS A SEARCH HAS BEEN INITIATED UNDER SECTION 132,PENALTY CAN BE IMPOSED UNDER SECT ION 271AAA OF THE ACT. IN THIS CASE, FROM THE PAPER BOOK FILED BYTHE ASSESSEE AT P AGE NO. 62, THE ASSESSING OFFICER HAS ISSUED NOTICE TO COMPLETE ASSESSMENT OF THEASSE SSEE UNDER SECTION 153C READ WITH 153A(1)(B) AND NOT UNDER SECTION 132 OF THE AC T. THEREFORE,THE INITIATION OF PENALTY IS VOID ABINITIO AND THEREFORE, THE ORDER U NDER SECTION 271AAA HAS TO BEQUASHED. ACCORDINGLY, WE QUASH THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION271AA. THUS, THIS GROUND OF AP PEAL FILED BY THE ASSESSEE IS ALLOWED. 14.3 WE ALSO NOTE THAT THE CASE OF ASSESSEE SHALL B E SUBJECT TO SEARCH PROCEEDINGS IF ITS NAME IS THERE IN THE SEARCH WARR ANT ISSUED BY THE DEPARTMENT UNDER SECTION 132 OF THE ACT. IN THIS RE GARD WE FIND GUIDANCE AND SUPPORT FROM THE ORDER OF ITAT AHMEDABAD IN CASE O F SHRI GOVIND G. SARAWAGI HUF ACIT, CENT. CIR. SURAT IN IT(SS)A NO.5 39 AND 540/AHD/2011. THE RELEVANT EXTRACT IS AS UNDER: NAME OF THE HUF, WHO IS SEPARATE TAXABLE ENTITY, I S NO WHERE AVAILABLE IN THE PANCHNAMA. IT IS ALSO PERTINENT TO NOTE THAT ALL TH E MEMBERS OF THE HUF WERE NOT ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 11 COVERED UNDER THE SEARCH ACTION. IN SECTION 153A, N OWHERE IT HAS BEEN PROVIDED THAT IFTHE SEARCH IS CONDUCTED ON THE PARTNERS, IN THEIR INDIVIDUAL CASES, THEN THE FIRM WOULD AUTOMATICALLY DEEM TO HAVE BEEN COVERED UNDER SEARCH ACTION. SIMILARLY, THERE CANNOT BE ANY IMPLIED SEARCH ACTIO N ON THE HUF MERELY ON THE GROUND THAT SOME OF THE INDIVIDUAL MEMBERS OF THE H UF WERE COVERED UNDER THE SEARCH ACTION. FOR INVOKING JURISDICTION, THERE CAN NOT BE ANY IMPLIED OPERATION OF LAW. IT SHOULD BE SPECIFIC AND DIRECT. THEREFORE, WE ARE OF THE VIEW THAT THE LD. CIT(A) E RRED IN INITIATING THE PENALTY PROCEEDINGS U/S.271AAA OF THE ACT. 14.4 THERE IS ALSO NO AMBIGUITY THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUE WHETHER PENALTY LEVIED U/S 271(1)(C) OF THE A CT, IS WITHIN THE PROVISION OF LAW. THEREFORE, WE ARE INCLINED TO RESTORE THE M ATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. IT IS NEEDLESS TO MENTION THAT THE ASSESSEE SHALL COOPERATE DURING TH E APPELLATE PROCEEDINGS. 15. ISSUE NO. 2 15.1 AT THIS JUNCTURE, WE FIND IMPORTANT AND PERTIN ENT TO REFERRED TO THE PROVISION OF SECTION 292B OF THE ACT, WHICH READS A S UNDER: [ RETURN OF INCOME, ETC., NOT TO BE INVALID ON CERTAI N GROUNDS. 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS O R OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED T O HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVI SIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON O F ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTI CE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NO TICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT.] 15.2 THE ABOVE PROVISION ON ITS READING STATES THAT THE PROCEEDINGS WILL NOT BE HELD AS INVALID MERELY ON THE GROUND THAT THERE IS SOME DEFECT IN THE NOTICE ISSUED BY THE REVENUE. IN THE CASE BEFORE US, THE N OTICE WAS ISSUED BY THE LD. ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 12 AO U/S 271(1)(C) OF THE ACT, WHICH WAS CONSIDERED A S A CURABLE DEFECT BY THE LD.CIT(A) U/S.292 B OF THE ACT. ACCORDINGLY, THE LD . CIT(A) HELD THAT THE NOTICE WILL BE CONSTRUED AS ISSUED U/S 271AAA OF TH E ACT. NOW, THE QUESTION ARISES WHETHER THE LD. CIT(A) CAN RECTIFY SUCH MIST AKE U/S 292 B OF THE ACT. 15.3 IN THIS REGARD WE NOTE THAT THE JURISDICTION F OR LEVYING THE PENALTY U/S 271(1)(C) OF THE ACT IS ACQUIRED ONCE THE NOTICE IS ISSUED UNDER THE RELEVANT SECTION OF THE ACT. SIMILARLY WE ALSO NOTE THAT THE JURISDICTION FOR LEVYING THE PENALTY U/S 271AAA OF THE ACT IS ACQUIRED ONCE THE NOTICE IS ISSUED UNDER THE RELEVANT SECTION OF THE ACT. THEREFORE, WE ARE OF T HE VIEW THAT IT IS COMPULSORY ON THE PART OF THE LD.AO TO ISSUE THE APPROPRIATE N OTICE AS SPECIFIED UNDER THE ACT, TO ACQUIRE THE JURISDICTION FOR LEVYING THE PE NALTY. THUS, THE NOTICE PLAYS VERY IMPORTANT ROLE FOR ACQUIRING THE JURISDICTION BY THE LD.AO. IN THE INSTANT CASE THE JURISDICTION WAS ACQUIRED BY THE LD.AO UND ER THE PROVISION OF SECTION 271(1)(C) OF THE ACT, WHICH CANNOT BE CURED UNDER SECTION 292 B OF THE ACT WITHOUT ISSUING THE NOTICE UNDER THE PROVIS ION OF SECTION 271AAA OF THE ACT. THUS, IN OUR CONSIDERED VIEW SUCH MISTAKE CANNOT BE CURED UNDER THE PROVISION OF SECTION 292B OF THE ACT. IN HOLDING S O WE PLACE OUR RELIANCE ON THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF SUNROLLING MILLS PVT. LTD. VS. ITO, REPORTED IN 160 ITR 412, WHEREIN IT WAS HELD AS UNDER: 12. IN THIS CASE THE ITO HAS SOUGHT TO JUSTIFY HIS ACT ION TAKING RECOURSE TO SECTION 292B OF THE ACT. THIS SECTION IS INTENDED TO ENSURE THAT ON TECHNICAL GROUND THE RETURN OF INCOME, ASSESSMENT, NOTICE OR SUMMONS OR PROCEEDING IS NOT RENDERED INVALID. THIS SECTION DOES NOT EMPOWER THE ITO TO T REAT A PROCEEDING TAKEN UNDER SECTION 147(B) AS A PROCEEDING UNDER SECTION 147(A) . THIS IS NOT A MERE TECHNICALITY. IT IS A QUESTION OF JURISDICTION. UNL ESS THE CONDITIONS PRECEDENT ARE FULFILLED NO PROCEEDINGS EITHER UNDER CLAUSE (A) OR CLAUSE (B) OF SECTION 147 CAN BE INITIATED. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE L D.CIT(A) DOES NOT HAVE POWER TO ACQUIRE THE JURISDICTION UNDER THE PROVISI ON OF SECTION 271AAA OF ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 13 THE ACT, ON THE BASIS OF THE NOTICE ISSUED U/S 271( 1)(C) OF THE ACT. THUS, WE REVERSE THE ORDER OF THE LD. CIT(A). HENCE, THE GRO UND OF APPEAL OF THE ASSESSEE IS ALLOWED. 16. COMING TO THE CROSS OBJECTION FILED BY THE ASSESSEE . AT THE OUTSET, WE NOTE THAT THE GROUNDS RAISED IN T HE CROSS OBJECTION ARE SUPPORTING THE ORDER OF THE LD. CIT(A). AS SUCH THE RE WAS NO GRIEVANCE RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION. THEREFORE, WE ARE INCLINED TO DISMISS THE SAME AS INFRUCTUOUS. HENCE, THE CROSS OBJECTION FIELD BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. 17. IN THE COMBINED RESULT, APPEAL OF THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES , APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE GROUNDS RAISED IN THE CROSS OBJECTION ARE DISMISSED AS INFRUCTUOUS . ORDER PRONOUNCED IN THE COURT ON 1 ST NOVEMBER, 2018 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 01/11/2018 MANISH ITA NOS.1310 & 1742/AHD/2014 CO NO.226/AHD/2014 ASSTT. YEAR 2011-12 14 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ! / '# ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD. 5. !' ## , / DR, ITAT, 6. '$% & / GUARD FILE.