Shri Shyam Sunder Duseja, Jaipur V. ITO Ward-6(3), Jaipur, Ward-6(3), Jaipur

ITA 1277/JPR/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4260 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Reasonable cause; Capital Gains
• Section: 271(1)(c); 50C; 142(1); 14A; 139(1); 153; 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1277/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2010-11 SHRI SHYAM SUNDER DUSEJA F8/47, CHITRAKOOT SCHEME, VAISHALI NAGAR, JAIPUR CUKE VS. ITO, WARD 6(3), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAVPD6571A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. SUNIL GOGRA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS MONISHA CHOUDHARY (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/02/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 15/02/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)- 02, JAIPUR DATED 22.08.2019. 2. THE ONLY EFFECTIVE GROUND OF APPEAL RELATES TO L EVY OF PENALTY U/S 271(1)(C) ON DIFFERENCE BETWEEN ACTUAL SALE CON SIDERATION AND DLC VALUE OF IMMOVABLE PROPERTY SOLD BY THE ASSESSEE. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT DURING THE FINANCIAL YEAR RELEVANT TO IMPUGNED ASSESSMENT YEAR , THE ASSESSEE HAD SOLD A SHOP FOR A CONSIDERATION OF RS. 3,50,000/- V ALUE OF WHICH WAS ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 2 ADOPTED BY THE STAMP DUTY AUTHORITY AT RS. 6,10,313 /-. IT WAS SUBMITTED THAT IN ORDER TO AVOID ANY LITIGATION, THE ASSESSEE IN HIS RETURN OF INCOME DECLARED THE CAPITAL GAINS BY APPLYING THE PROVISIO NS OF SECTION 50C BY TAKING THE SALE CONSIDERATION OF RS. 6,10,313/- AS ADOPTED BY STAMP DUTY AUTHORITY AS AGAINST ACTUAL SALE CONSIDERATION OF R S. 3,50,000/- RECEIVED BY THE ASSESSEE RESULTING IN THE ADDITIONAL TAX LIABIL ITY WHICH HAS BEEN DULY PAID, HOWEVER, THE SAME HAS BEEN MADE THE BASIS FOR LEVY OF PENALTY U/S 271(1)(C) AND WHICH IS THE SUBJECT MATTER OF PRESEN T PENALTY PROCEEDINGS. 4. IT WAS SUBMITTED THAT THE ADDITION TAX LIABILIT Y HAS ARISEN ON ACCOUNT OF APPLYING THE DEEMING PROVISIONS OF SECTION 50C O F THE ACT. IT WAS SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS AND DOCUMENTS GENUINENESS OF WHICH HAVE NOT BEEN DOUBTED BY THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT IT IS NOT THE CASE WHERE IT HAS BEEN ALLEGED B Y THE ASSESSING OFFICER THAT THE ASSESSEE HAS RECEIVED ANY CONSIDERATION OV ER AND ABOVE THE CONSIDERATION AS DECLARED IN THE SALE DEED. IT WAS ACCORDINGLY SUBMITTED THAT MERELY ON ACCOUNT OF DEEMING PROVISIONS, IT CA NNOT BE CONSTRUED TO BE A CASE OF FURNISH OF INACCURATE PARTICULARS OF I NCOME OR CONCEALMENT OF PARTICULARS OF INCOME. IT WAS SUBMITTED THAT SECTIO N 50C IS A DEEMING PROVISION AND IT HAS TO BE STRICTLY CONSTRUED AND C ANNOT BE EXTENDED FOR THE PURPOSE OF LEVY OF PENALTY. IT WAS FURTHER SUBM ITTED THAT EVEN PENALTY PROVISIONS NEEDS TO BE CONSTRUED STRICTLY AND ONLY WHERE THERE IS ANY POSITIVE EVIDENCE OF CONCEALMENT OF INCOME, THE PEN ALTY CAN BE LEVIED. IT WAS SUBMITTED THAT IN THE INSTANT CASE, THE ASSESSE E HAS SUO-MOTO ADOPTED THE DEEMED SALE CONSIDERATION U/S 50C WHILE FILING THE RETURN OF INCOME AND WHICH HAS BEEN ACCEPTED, THUS, THERE IS NO QUESTION OF FURNISH OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF PARTICULARS OF INCOME ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 3 5. IN SUPPORT OF HIS CONTENTIONS, THE RELIANCE WAS PLACED ON THE JAIPUR BENCH DECISION IN CASE OF ANITA BENIWAL, ALWAR VS. ITO, WARD 1(4), ALWAR (ITA NO. 743/JP/2012 DATED 05/06/2015) , THE LUCKNOW BENCH DECISION IN CASE OF ACIT VS. LOHIA STARLINGER LTD. (ITA NO. 42/LKW/2014 DATED 21.08.2014) , THE MUMBAI BENCHES DECISION IN CASE OF RENU HINGO RANI VS. ACIT (ITA NO. 2210/MUM/2010 DATED 22.12.2010) AND IN CASE OF DCIT VS. TRANS FREIGHT CONTAINERS LTD. (ITA NO. 2337/MUM/2016 DATED 24.02.2017) , THE DECISION OF HONBLE GUJARAT HIGH COURT IN CAS E OF PCIT, VADODRA VS. SUN ON PEAK HOTEL PVT. LTD. (R/TAX APPEAL NO. 556/2018 DATED 12.06.2018) AND THE HONBLE SUPREME COURT DECISION IN CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. [2010] 322 ITR -158. 6. PER CONTRA, THE LD. DR SUBMITTED THAT THE ASSES SEE HAS NOT FILED RETURN OF INCOME ORIGINALLY U/S 139(1) OF THE ACT T HOUGH, HE HAS SOLD THE PROPERTY AND EARNED CAPITAL GAINS THEREON. THE ASS ESSEE HAS DECLARED HIS INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT WHI CH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AND PENALTY HAS SIMULTANEO USLY BEEN INITIATED AGAINST HIM. IT WAS SUBMITTED THAT THE ASSESSING OF FICER HAS LEVIED PENALTY U/S 271(1)(C) BY HOLDING THAT THE ASSESSEE HAD TAXA BLE INCOME AND NOT FILED HIS RETURN OF INCOME VOLUNTARILY AND ONLY WHE N HE RECEIVED THE NOTICE U/S 148 OF THE ACT, THE RETURN HAS BEEN FILED. IT W AS ACCORDINGLY SUBMITTED THAT IT IS A CLEAR CASE OF CONCEALMENT OF INCOME AN D IF NOTICE U/S 148 WAS NOT ISSUED, THE ASSESSEE WOULD NOT HAVE COME FORWAR D AND DECLARED CAPITAL GAINS IN HIS RETURN OF INCOME. SHE ACCORDI NGLY SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 7. IN HIS REJOINDER, THE LD AR SUBMITTED THAT IF T HE TOTAL INCOME OF THE ASSESSEE IS COMPUTED BY TAKING THE SALE VALUE OF SH OP AT RS 3,50,000/- INSTEAD OF VALUE ADOPTED BY THE STAMP DUTY AUTHORIT IES, TOTAL INCOME OF ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 4 THE ASSESSEE REMAINS BELOW THE TAXABLE LIMIT AND HE NCE, THE ASSESSEE DIDNT FILE HIS RETURN OF INCOME ORIGINALLY AND THE RE WAS THUS A REASONABLE CAUSE FOR NOT FILING THE RETURN OF INCOME. HOWEVER , AS SOON AS THE ASSESSEE RECEIVED THE NOTICE U/S 148, IN ORDER TO A VOID ANY LITIGATION, THE RETURN OF INCOME WAS FILED TAKING THE VALUE OF SHOP AS ADOPTED BY THE STAMP DUTY AUTHORITIES AND THE TAX LIABILITY ARISIN G ON ACCOUNT OF SUCH DIFFERENTIAL SALE CONSIDERATION WAS DULY PAID BY WA Y OF SELF-ASSESSMENT TAX. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS MATTER HAS BEEN CONSIDERE D BY THE JAIPUR BENCHES IN THE CASE OF ANITA BENIWAL, ALWAR VS. ITO, WARD 1(4), ALWAR (SUPRA) WHEREIN IT WAS HELD AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE A SSESSEE HAD SHOWN SALE CONSIDERATION AT RS. 8 LACS WHEREAS AS P ER SECTION 50C OF THE ACT, THE STAMP AUTHORITY HAS ASSESSED THE VA LUE OF PROPERTY AT RS. 12,35,730/-, THERE WAS DIFFERENCE A T RS. 4,75,658/- IN THE CAPITAL GAIN, WHICH HAS BEEN ACCE PTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. THE CASE LAW REFERRED BY THE ASSESSEE ARE SQUARELY APPLICABL E. IN THIS CASE ALSO, THERE IS NO EVIDENCE WITH THE REVENUE TO PROV E THAT THE ASSESSEE HAS RECEIVED MUCH MORE THAN REFLECTED IN T HE RETURN. THE ADDITION WAS ON ACCOUNT OF DEEMING PROVISION, T HEREFORE, WE DELETE THE PENALTY CONFIRMED BY THE LD. CIT(A). 9. FURTHER, THE MATTER HAS BEEN CONSIDERED BY THE LUCKNOW BENCHES IN THE CASE OF ACIT VS. LOHIA STARLINGER LTD (SUPRA) WHEREIN FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF MADAN THEATRES LTD., IT WAS HELD AS UNDER: ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 5 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT ALTHOUGH VARIOUS ADDITIONS WERE MADE BY THE ASSESSING OFFICE R IN THE ASSESSMENT BUT IN QUANTUM APPEAL, CIT(A) HAS CONFIR MED ONLY TWO ADDITIONS BEING RS.67,41,156/- IN RESPECT OF ADDITI ON ON ACCOUNT OF LONG TERM CAPITAL GAIN AND RS.19,30,014/- ON ACCOUN T OF ADDITION U/S 14A OF THE ACT. IN RESPECT OF BOTH THESE ADDITIONS, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.40 LACS. WHEN THE ASS ESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), THE PENALTY WAS DELETED BY CIT(A) AND NOW THE REVENUE IS IN APPEAL BEFORE US. REGARDING THE PENALTY IMPOSED BY ASSESSING OFFICER IN RESPECT OF ADDITION IN RESPECT OF LONG TERM CAPITAL GAIN, THE CIT(A) HAS F OLLOWED THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF MADAN THEATRES LTD. (SUPRA). IN THAT CASE, IT WAS HELD BY HON'BLE CALCUTTA HIGH COURT THAT WHEN THE ADDITION IS MADE BY INVOKING THE PROVISIONS OF SECTION 50C WITHOUT BRIN GING ANY EVIDENCE ON RECORD THAT THE ASSESSEE ACTUALLY RECEI VED MORE AMOUNT THAN SHOWN BY IT, PENALTY IS NOT JUSTIFIED. IN THE PRESENT CASE ALSO, THE ADDITION HAS BEEN MADE BY TH E ASSESSING OFFICER MERELY BY INVOKING THE PROVISIONS OF SECTIO N 50C AND NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY HIM THAT ANY MONEY IN ADDITION TO DECLARED SALE PROCEEDS WAS RECEIVED BY THE ASSESSEE AND HENCE, RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON' BLE CALCUTTA HIGH COURT, WE HOLD THAT NO INTERFERENCE IS CALLED FOR I N THE ORDER OF CIT(A) ON THIS ISSUE. 10. FURTHER, THE MATTER HAS BEEN CONSIDERED BY THE MUMBAI BENCHES IN THE CASE OF RENU HINGORANI, MUMBAI VS. ACIT, MUMBAI (SUPRA) WHEREIN IT WAS HELD AS UNDER:- ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 6 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RE LEVANT RECORD. WE FIND THAT THE AO HAD MADE ADDITION OF RS.9,00,82 4/- BEING DIFFERENCE BETWEEN THE SALE CONSIDERATION AS PER SA LE AGREEMENT AND THE VALUATION MADE BY THE STAMP VALUATION AUTHO RITY. THUS, THE ADDITION HAS BEEN MADE BY THE AO BY APPLYING THE PR OVISIONS OF SECTION 50C OF THE ACT. IT IS EVIDENT FROM THE ASSE SSMENT ORDER THAT THE AO HAS NOT QUESTIONED THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION IS MADE PURELY ON THE BAS IS OF DEEMING PROVISIONS OF THE INCOME TAX ACT, 1961. THE AO HAS NOT GIVEN ANY FINDING THAT THE ACTUAL SALE CONSIDERATION IS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTIONED IN THE SALE AG REEMENT. THUS IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURN ISHING INACCURATE PARTICULARS OF INCOME. IT IS ALSO NOT TH E CASE OF THE REVENUE THAT THE ASSESSEE HAS FAILED TO FURNISH THE RELEVANT RECORD AS CALLED BY THE AO TO DISCLOSE THE PRIMARY FACTS. THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS, DOCUMENTS/MATERIA L INCLUDING THE SALE AGREEMENT AND THE AO HAS NOT DOUBTED THE GENUI NENESS AND VALIDITY OF THE DOCUMENTS PRODUCED BEFORE HIM AND T HE SALE CONSIDERATION RECEIVED BY THE ASSESSEE. UNDER THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT FURNISHED CORRECT PARTICULARS OF INCOME. MERELY BECAUSE THE A SSESSEE AGREED FOR ADDITION ON THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY WOULD NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THIS AGREEMENT WAS INCORRECT A ND WRONG. ACCORDINGLY THE ADDITION BECAUSE OF THE DEEMING PRO VISIONS DOES NOT IPSO FACTO ATTRACT THE PENALTY U/S 271(1)(C ). HENC E IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT V/S RELIANCE PETROPRODUCTS PVT.LTD (SUPRA), THE PENALTY LEVIED U/S 271(1)( C ) IS NOT SUSTAINABLE. THE SAME IS DELETED . ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 7 11. WE THEREFORE FIND IN ALL THESE CASES, THE HON'B LE CALCUTTA HIGH COURT AND THE COORDINATE BENCHES HAVE CONSISTENTLY HELD T HAT WHEN THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 50C WITHOUT BRINGING ANY EVIDENCE ON RECORD THAT THE ASSESSEE ACTUALLY RECEIVED ANY AMOUNT OVER AND ABOVE THE DEC LARED SALE CONSIDERATION AS PER SALE DEED, PENALTY U/S 271(1)( C) IS NOT JUSTIFIED. IN THE PRESENT CASE ALSO, NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER THAT ANY MONEY OVER AND ABOVE THE SALE CONSIDERATION AS PER THE SALE DEED WAS RECEIVED BY THE ASSESSEE. AT THE SAME TIME, WE FIND THAT THE ASSESSEE HAS SUO-MOTO ADOPTED THE VAL UE OF THE IMMOVEABLE PROPERTY AS DETERMINED AND ADOPTED BY THE STAMP DUT Y AUTHORITIES WHICH TO OUR MIND, PUT THE CASE OF THE ASSESSEE ON A BETT ER FOOTING AND IN ANY CASE, CANNOT BE WORSE OFF AS COMPARED TO AFORESAID CITED CASES WHERE THE ADDITIONS HAVE BEEN MADE BY THE ASSESSING OFFICER B Y INVOKING THE PROVISIONS OF SECTION 50C AND WHICH LATER ON, HAVE BEEN ACCEPTED BY THE RESPECTIVE ASSESSEES BY NOT GOING IN FURTHER APPEAL . IT IS THEREFORE A CASE OF SELF DECLARATION AND SELF ADOPTION OF VALUE AS A DOPTED BY STAMP DUTY AUTHORITIES WHILE FILING THE RETURN OF INCOME BY TH E ASSESSEE AND WHICH HAS BEEN ACCEPTED IN ENTIRETY BY THE ASSESSING OFFICER. WHERE THE VALUE SO DECLARED IN THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER, THERE CANNOT BE ANY BASIS FOR LEVY OF PENA LTY FOR CONCEALMENT OF INCOME. 12. THE REVENUES ONLY CONTENTION IS THAT SUCH RETU RN OF INCOME HAS NOT BEEN FILED VOLUNTARILY AND HAS BEEN FILED ONLY IN R ESPONSE TO NOTICE U/S 148 AND THUS, IN A WAY, IT IS A CASE OF DEEMED CONCEALM ENT THOUGH WE FIND THAT THE PROVISIONS OF EXPLANATION 3 TO SECTION 271 (1)(C) HAVE NOT BEEN SPECIFICALLY INVOKED BY THE ASSESSING OFFICER EITHE R AT THE TIME OF INITIATING OR WHILE PASSING THE PENALTY ORDER. IF WE LOOK AT T HE PROVISIONS OF ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 8 EXPLANATION 3 TO SECTION 271(1)(C) WHICH TALKS ABOU T CASES OF DEEMED CONCEALMENT, IT READ AS UNDER: [EXPLANATION 3. WHERE ANY PERSON FAILS, WITHOUT REASONABLE CAUSE, TO FURNISH WITHIN THE PERIOD SPECIFIED IN SU B-SECTION (1) OF SECTION 153 A RETURN OF HIS INCOME WHICH HE IS REQU IRED TO FURNISH UNDER SECTION 139 IN RESPECT OF ANY ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL, 1989, AND UNTIL THE EXPIRY OF THE PERIOD AFORESAID, NO NOTICE HAS BEEN ISSUED TO HIM UNDER CLAUSE (I) OF SUB-SECTION (1) OF SECTION 142 OR SECTION 148 AN D THE ASSESSING OFFICER OR THE COMMISSIONER(APPEALS) IS SATISFIED T HAT IN RESPECT OF SUCH ASSESSMENT YEAR SUCH PERSON HAS TAXABLE INCOME , THEN, SUCH PERSON SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THI S SUB-SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INC OME IN RESPECT OF SUCH ASSESSMENT YEAR, NOTWITHSTANDING THAT SUCH PERSON FURNISHES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF THE PERIOD AFORESAID IN PURSUANCE OF A NOTICE UNDER SEC TION 148. 13. THE AFORESAID EXPLANATION 3 OF SECTION 271(1)(C ) HAD COME UP FOR INTERPRETATION BEFORE THE HON'BLE GUJARAT HIGH COURT IN CASE OF CHHAGANLAL SUTERIYA V. ITO (2011) 337 ITR 350 (GUJ) WHEREIN THE HON'BLE GUJARAT HIGH COURT OBSERVED AS UNDER: 'A MERE FAILURE TO FURNISH A RETURN OF INCOME DOES NOT AMOUNT TO CONCEALMENT U/S 271(1)(C) OF THE INCOME-TAX ACT, 19 61. BUT THE INTRODUCTION OF EXPLANATION 3 TO SECTION 271(1) WIT H EFFECT FROM APRIL 1, 1976, HAS CHANGED THE LAW ON THE POINT IN CERTAI N CASES. FOR THE PURPOSE OF FALLING WITHIN THE PURVIEW OF EXPLANATIO N 3, (I) A PERSON SHOULD NOT HAVE BEEN PREVIOUSLY ASSESSED (THAT IS, HE SHOULD BE A NEW ASSESSEE); (II) HE SHOULD HAVE FAILED WITHOUT R EASONABLE CAUSE TO FURNISH A RETURN OF INCOME FOR ASSESSMENT YEAR 1 989-90 OR ANY ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 9 YEAR SUBSEQUENT THERETO WITHIN TWO YEARS FROM THE E ND OF THE ASSESSMENT YEAR CONCERNED; (III) NO NOTICE SHOULD H AVE BEEN ISSUED TO HIM U/S 142(1) OR SECTION 148 OF THE ACT TILL TH E EXPIRY OF THE TWO YEAR PERIOD, AND (IV) THE CONCERNED OFFICER IS SATI SFIED THAT IN RESPECT OF SUCH ASSESSMENT YEAR, SUCH PERSON HAD TAXABLE IN COME. IN SUCH CASES, EXPLANATION 3 PROVIDES THAT SUCH PERSON SHAL L BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME WITHIN THE MEANING OF CLAUSE (C) OF SECTION 271(1) OF THE ACT FOR SUCH AS SESSMENT YEAR. IN SUCH AN EVENTUALITY, EVEN IF THE PERSON CONCERNED F ILES A RETURN AFTER THE EXPIRY OF THE PERIOD OF TWO YEARS IN PURSUANCE OF A NOTICE U/S 148 OF THE ACT, THE DEEMING PROVISIONS OF EXPLANATI ON 3 SHALL STILL HAVE APPLICATION. THE CONDITIONS FOR THE APPLICABIL ITY OF EXPLANATION 3 TO SECTION 271(1) ARE CUMULATIVE AND EACH OF THE CONDITIONS HAS TO BE ESTABLISHED FOR THE PURPOSE OF INVOKING THE PROV ISION.' 14. IN THE INSTANT CASE, THE FIRST CONDITION THAT A PERSON HAS NOT BEEN PREVIOUSLY ASSESSED TO TAX UNDER THIS ACT HAS BEEN OMITTED BY FINANCE ACT, 2002 W.E.F. 1.4.2003 AND IS THUS NO MORE ON THE STA TUTE. THE SECOND CONDITION IS THAT HE SHOULD HAVE FAILED WITHOUT REA SONABLE CAUSE TO FILE THE RETURN. WE FIND THAT THERE WAS A REASONABLE CAUSE W ITH THE ASSESSEE FOR NOT FILING THE RETURN ORIGINALLY WITHIN PRESCRIBED TIME AS HE HOLDS A BELIEF THAT HIS TAXABLE INCOME WAS BELOW THE TAXABLE LIMIT AND NO TAX LIABILITY ARISES THEREON CONSIDERING THE ACTUAL SALE CONSIDER ATION RECEIVED BY THE ASSESSEE ON SALE OF SHOP AMOUNTING TO RS 3,50,000/- . THE BONAFIDE OF SUCH BELIEF HAS NOT BEEN CHALLENGED BY THE REVENUE, AS WE HAVE NOTED ABOVE THAT THERE IS NO FINDING OR ADVERSE MATERIAL THAT THE ASSESSEE HAS RECEIVED ANY CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION OF RS 3,50,000/. WE THEREFORE FIND THAT THERE WAS A R EASONABLE CAUSE FOR THE ASSESSEE FOR NOT FILING THE RETURN OF INCOME ORIGIN ALLY WITHIN PRESCRIBED ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 10 TIME AND THUS, THE SECOND CONDITION IS NOT SATISFIE D IN THE INSTANT CASE. THE THIRD CONDITION OF NON-ISSUANCE OF ANY NOTICE E ITHER UNDER SECTION 142(1) OR SECTION 148 WITHIN PRESCRIBED TIME UNDER SECTION 153(1) IS SATISFIED AS THE NOTICE U/S 148 HAS ONLY BEEN ISSUE D ON 29.03.2017. THEREFORE, GIVEN THE REASONABLE CAUSE FOR NON-FILIN G THE RETURN OF INCOME, ONE OF THE ESSENTIAL CONDITIONS FOR INVOCATION OF E XPLANATION 3 TO SECTION 271(1)(C) IS NOT SATISFIED AND THUS, THE CASE OF TH E ASSESSEE DOESNT FALL WITHIN THE MEANING OF DEEMED CONCEALMENT AS SO DEFI NED IN THE SAID EXPLANATION AND THE CONTENTIONS SO ADVANCED BY THE REVENUE CANNOT BE ACCEPTED. 15. IN LIGHT OF AFORESAID DISCUSSIONS AND IN THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT WHERE THE VALUE SO DECLARED IN THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AND INFACT, THE RETURNED INCOME HAS BEEN AC CEPTED, THERE CANNOT BE ANY BASIS FOR LEVY OF PENALTY U/S 271(1)(C) FOR CONCEALMENT OF INCOME. IN THE RESULT, THE PENALTY SO LEVIED IS HEREBY DIRE CTED TO BE DELETED AND THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/02/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/02/2021 * GANESH KR. ITA NO. 1277/JP/2019 SHRI SHYAM SUNDER DUSEJA, JAIPUR VS. ITO, WARD 6(3) , JAIPUR 11 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHYAM SUNDER DUSEJA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 6(3), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1277/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR