SHRI KRISHAN KUMAR SHARMA , FAZILKA V. INCOME TAX OFFICER, WARD 2(4), ABOHAR

ITA 14/ASR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6557 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 27-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J K GUPTA
• Keywords: Unexplained investment; Source of fund; Additional evidence; Question of law
• Section: 271(1)(c); 143(3); 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 14/ASR/2018 A SSESSMENT YEAR: 2009-10 KRISHAN KUMAR SHARMA, STREET NO.3, BASTI HAZOOR SINGH FAZILKA [PAN: AZGPK 3429G] VS. INCOME TAX OFFICER, WARD 2(4), ABOHAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. K. GUPTA (ADV.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 27.03.2019 DATE OF PRONOUNCEMENT: 30.04.2019 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE CON FIRMATION OF THE LEVY OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER), VIDE ORDER DATED 30.8.2016 FOR THE ASSESSMENT YEAR (AY) 2009-10, BY THE COMMISSIONER OF INCOME TAX (APPEALS), BATHINDA ('CI T(A)' FOR SHORT) VIDE HIS ORDER DATED 04.10.2017. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS ISSUED A NOTICE U/S. 148 OF THE ACT ON 24.9.2014 ON THE BASIS OF THE INFORMA TION THAT HE HAD PURCHASED LAND DURING THE RELEVANT YEAR FOR RS.73 LACS, WHICH DID NOT FIND REFLECTION IN THE RETURN OF INCOME. AN ADDITION OF RS.5 LACS, I.E., TO THE R ETURNED INCOME OF RS.1.15 LACS, WAS MADE VIDE ASSESSMENT U/S. 143(3) R/W S. 147 ON 17.2.2016. OF THE SAME, ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 2 PENALTY U/S. 271(1)(C) WAS INITIATED IN RESPECT OF AN ADDITION FOR RS.3 LACS. THE SAID ADDITION WAS IN VIEW OF THE ASSESSEE BEING UNABLE T O EXPLAIN THE SOURCE OF RECEIPT TO THAT EXTENT. PENALTY STANDS LEVIED, AND CONFIRME D, IN THE ABSENCE OF THE ASSESSEE BEING ABLE TO SUBSTANTIATE HIS CASE IN ANY MANNER; IN FACT, HIS CLAIMS BEING DISPROVED. AGGRIEVED, THE ASSESSEE IS IN SECOND APP EAL. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. 3.1 THERE IS NO IMPROVEMENT IN THE ASSESSEES CASE BEFORE THE TRIBUNAL AS WELL. THE SOURCE OF FUNDS FOR THE LAND PURCHASE, BESIDES FROM SELF (AT RS.20 LACS), WAS STATED AS LOANS FROM SIX PERSONS, AT AN AGGREGATE O F RS.53 LACS, INCLUDING RS. 10 LACS FROM ONE, KIKKAR SINGH. THE SAME IS DOUBTED TO THE EXTENT OF RS.3 LACS IN-AS- MUCH AS THE J-FORMS, STATED TO BE SOURCE OF RECEIPT OF THE SAID SUM, WERE FOUND FABRICATED. THE ASSESSING OFFICER (AO) HAS DISCUSSE D THE SAME IN DETAIL AT PAGES 2 AND 3 OF THE PENALTY ORDER. NO PLAUSIBLE EXPLANATIO N HAD BEEN EARLIER FURNISHED IN THE ASSESSMENT PROCEEDINGS (REFER PARA 4 OF THE ASS ESSMENT ORDER). THE PROPRIETOR OF THE FIRM ISSUING THE J-FORMS, T.K. TRADERS, ON B EING CONFRONTED THEREWITH, ADMITTED TO THE SAME BEING NOT GENUINE. THE SAID FI NDINGS HAVE NOT BEEN REPELLED AT ANY STAGE. AGAIN, THERE IS NO QUESTION OF AN ESTIMA TE IN-AS-MUCH AS THE AMOUNT HAS ADMITTEDLY BEEN RECEIVED BY THE ASSESSEE AND, IN FA CT, FURTHER INVESTED IN LAND, SO THAT INVESTMENT TO THAT EXTENT IS UNEXPLAINED. 3.2 BEFORE THE TRIBUNAL, THE ASSESSEE HAS ALSO RAIS ED A GROUND (GD. 2) THAT THE PENALTY IS NOT MAINTAINABLE AS ONE OF THE LIMBS OF SECTION 271(1)(C) HAS NOT BEEN STRUCK OFF IN THE NOTICE U/S. 274 SHOW CAUSING THE ASSESSEE QUA THE SAME. THE SAID NOTICE IS NOT ON RECORD FOR THE ASSESSEE TO HAVE RA ISED THIS CLAIM; THERE BEING NO ADJUDICATION BY THE REVENUE AUTHORITIES ON THIS ASP ECT. THE PENALTY AS LEVIED IS FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SA ID GROUND IS THUS NOT ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 3 MAINTAINABLE. THERE ARE IN FACT A NUMBER OF DECISIO NS BY THE HONBLE HIGHER COURTS OF LAW REJECTING THIS PLEA, AS IN CIT V. MANU ENGINEERING WORKS [1980] 122 ITR 306 (GUJ); CIT VS. MITHILA MOTORS (P.) LTD. [1984] 149 ITR 751 (PAT); CIT V. CHANDULAL [1985] 152 ITR 238 (AP); CIT VS. SMT. KAUSHALYA & ORS . [1994] 216 ITR 660 (BOM), AND RECENTLY AGAIN BY THE HONBLE BO MBAY HIGH COURT IN MAHARAJ GARAGE & CO. V. CIT [2018] 400 ITR 292 (BOM). THE DECISION IN CIT V. MANJUNATHA COTTON & GINNING FACTORY [2013] 359 ITR 565 (KAR), RELIED UPON BY THE ASSESSEE, IS, FIRSTLY, WITHOUT REFERENCE TO THE JUDICIAL PRECEDENTS AND, FURTHER, AS EXPLAINED BY THE TRIBUNAL IN MANY A CASE, AS IN EARTHMOVING EQUIPMENT SERVICE CORPORATION VS. DY. CIT (IN ITA NO. 617/MUM/ 2014, DATED 02/5/2017), RENDE RED CONSIDERING MULTIPLE FACTORS, AND NOT SOLELY ON THE BASIS OF A DEFECT IN THE NOTICE U/S. 274. AS EXPLAINED IN MAHARAJ GARAGE & CO. (SUPRA), THE REQUIREMENT OF SECTION 274 OF GRANTING REASONABLE OPPORTUNITY OF BEING HEA RD IN THE MATTER COULD NOT BE STRETCHED TO THE EXTENT OF FRAMING A SPECIFIC CHARG E. AS EXPLAINED EARLIER IN MANU ENGINEERING WORKS (SUPRA), WHICH IS IN FACT ONE OF THE FIRST DECISIO NS IN THE MATTER, THE USE OF THE WORDS AND/OR, I.E., BETWEEN THE TW O CHARGES, BEING CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING INACCURATE P ARTICULARS OF INCOME, MAY BE PROPER WHILE ISSUING THE NOTICE FOR PENALTY IN-AS-M UCH AS THE SAID SATISFACTION IS ONLY PRIMA FACIE OR TENTATIVE. IT IS ONLY SUBSEQUENTLY, WHILE IMPOS ING THE PENALTY, THAT THIS CHARGE HAS TO BE SPECIFIC, I.E., AFTER HE ARING THE ASSESSEE IN THE MATTER, CONCLUDING THAT THE PENALTY IS, IN THE FACTS OF THE CASE, IMPOSABLE. IN FACT, THE TWO LIMBS, WHICH SIGNIFY OMISSION AND COMMISSION RESPEC TIVELY, MAY IN THE FACTS OF THE CASE, OR CONSIDERING EXPLANATION FURNISHED, BE VERY THIN OR EVEN OVERLAP (REFER: A.M. SHAH V. CIT [1999] 238 ITR 415 (GUJ)), SO THAT NOTHING IN FACT TURNS THEREON, AND IT ALL DEPENDS ON THE FACTS AND CIRCUMSTANCES O F THE CASE, I.E., IF ANY PREJUDICE STANDS CAUSED TO THE ASSESSEE. ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 4 ADVERTING TO THE FACTS OF THE CASE, IT WAS OBSERVED IN MAHARAJ GARAGE & CO. (SUPRA), THAT THE ASSESSEE WAS SUPPLIED WITH THE FI NDINGS RECORDED IN THE ORDER OF REASSESSMENT, WHICH WAS PASSED ON THE SAME DATE ON WHICH THE NOTICE U/S. 271(1)(C) R/W S. 274 WAS ISSUED FOR INITIATING THE PROCEEDINGS FOR IMPOSING THE PENALTY. THE ASSSESSEE THUS HAD SUFFICIENT NOTICE O F THE ACTION OF IMPOSING PENALTY. THERE WAS THEREFORE NO JURISDICTIONAL ERROR OR UNJU ST EXERCISE OF POWER BY THE AUTHORITY . THAT IS, IT IS THESE TWO ELEMENTS ONLY THAT ARE R ELEVANT AND ARE THEREFORE TO BE EXAMINED. IN THE FACTS OF THE INSTANT CASE AS WELL, THE FACTS AS WELL AS THE ASSESSEES CASE, INCLUDING THE EVIDENCES FURNISHED, I.E., QUA THE IMPUGNED ADDITION OF RS. 3 LACS ON WHICH PENALTY STANDS LEVIED, STAND DISCUSSED IN THE ASSESSMENT ORDER DATED 17/2/2016. NO PREJUDICE HAS IN FACT BEE N CONTENDED AS CAUSED AND, IN FACT, AT ANY STAGE OF THE PROCEEDINGS. A DEFECT IN THE NOTICE, IT IS EVEN OTHERWISE WELL-S ETTLED, ONLY AMOUNTS TO AN IRREGULARITY, AND IS NOT A JURISDICTIONAL DEFECT. A S EXPLAINED IN MITHILA MOTORS PVT. LTD . (SUPRA), WITH REFERENCE TO THE DECISION IN KANTAMANI VANKATA NARAYANA & SONS VS. FIRST ADDL. ITO [1967] 63 ITR 638 (SC), A MISTAKE IN THE NOTICE DO ES NOT INVALIDATE PENALTY PROCEEDINGS (AT PG. 757). THE FO RMER DECISION IS, IN TURN, RELIED UPON IN SMT. KAUSHALYA AND ORS . (SUPRA). EACH OF THE DECISIONS CITED SUPRA, RELIE D UPON, MERIT A CLOSE READING, BEING BASED ON FIRST L EGAL PRINCIPLES, INCLUDING THE PURPORT OF A NOTICE U/S. 274, EXPLAINED TO BE NOT A STATUTORY NOTICE BUT ONLY AN ADMINISTRATIVE DEVICE FOR EXTENDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THAT IS, REQUIRING HIM TO FURNISH AN EXPLANATION IN RESP ECT OF FACTS MATERIAL TO THE COMPUTATION TO HIS TOTAL INCOME UNDER THE ACT FOR T HE RELEVANT YEAR, SUBSTANTIATING THE SAME, OR, ELSE, PENALTY U/S. 271(1)(C) WOULD ST AND TO BE LEVIED. THE SAID NOTICE, WHICH IS RATHER FOR PENALTY UNDER ANY OF THE PROVIS IONS UNDER CHAPTER XXI OF THE ACT, ONLY AIMS AT PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE TO STATE HIS CASE. THIS IS PRECISELY WHAT STANDS HELD IN MAHARAJ GARAGE & CO. (SUPRA), RENDERED, IN ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 5 FACT, WITHOUT NOTICING THE PRECEDENTS IN THE MATTER , THOUGH, AS SHALL BE NOTED, FOUNDED ON AND CONSISTENT WITH THE SETTLED LEGAL PR INCIPLES. THE WHOLE PURPORT OF A NOTICE, I.E., GENERALLY SPE AKING, AS EXPLAINED PER ITS SEVERAL DECISION BY THE HONBLE APEX COURT, TO SOME OF WHICH REFERENCE IS BEING MADE HERE ( CST V. SUBHASH & CO. , IN C.A. NO. 1374 OF 2003, DATED 17/2/2003); CIT V. JAI PRAKASH SINGH [1996] 219 ITR 737 (SC); ESTATE OF LATE RANGALAL JAJODIA V. CIT [1971] 79 ITR 505 (SC)), IS TO PUT THE ASSESSEE (N OTICEE) TO NOTICE ABOUT THE CONTEMPLATED PROCEEDINGS; IN THE PRESENT CASE SEEKING EXPLANATION AS TO WHY, IN VIEW OF BEING UNABLE TO EXPLAIN THE SOURCE OF INVESTMENT, I.E., TO THE EXTENT OF RS.3 LACS, AND THE CONCOMITANT DEEMING THEREOF A S HIS INCOME BY WAY OF UNEXPLAINED INVESTMENT (U/S. 69), BEING NOT RETURNE D, PENALTY U/S. 271(1)(C) BE NOT LEVIED QUA THE SAME. EVEN AS PENALTY STANDS LEVIED ONLY QUA A SINGLE SUM (ADDITION) IN THE INSTANT CASE, HOW, PRAY, WHERE TH E SAME IS ON DIFFERENT SUMS, ON THE BASIS OF SEPARATE SATISFACTIONS BY THE AUTHORIT Y IMPOSING THE PENALTY, I.E., EITHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FUR NISHING INACCURATE PARTICULARS OF INCOME, COULD THE SAME POSSIBLY BE SO SPECIFIED, AS CONTENDED, IN THE NOTICE U/S. 274, WHICH IS TO BE, AND IS, ONE, SINGLE NOTICE QUA ALL SUCH SUMS IN RELATION TO ASSESSMENT OF INCOME FOR A PARTICULAR YEAR . CONTINUING FURTHER, ON FACTS, NOT ONLY, THEREFORE, THE IMPORT OF THE NOTICE U/S. 274 IS WEL L UNDERSTOOD, THE ASSESSEE HAS FURNISHED AN EXPLANATION ON MERITS, WHICH HAS BEEN FOUND NOT SATISFACTORY; RATHER, STOOD DISPROVED. HOW COULD, THEN, IT TO BE SAID THA T THE TERMS OF THE NOTICE ARE DEFECTIVE OR NOT CLEAR AND THE ASSESSEE HAS, THUS, SUFFERED A PREJUDICE. EVEN IF ONE INDEED IS, I.E., ASSUMING SO, IN THE FACTS OF A PAR TICULAR CASE, THE SAME WOULD ONLY AMOUNT TO AN IRREGULARITY, REQUIRING THE PROCEEDING S TO BE RESTORED TO THE STAGE AT WHICH THE IRREGULARITY HAD OCCURRED, I.E., TO REMOV E THE SAID PREJUDICE, ENABLING THE ASSESSEE (NOTICEE) THE OPPORTUNITY TO STATE ITS CAS E; THE JURISDICTION OF LEVY PENALTY HAVING BEEN ALREADY ASSUMED. REFERENCE IN THIS REGA RD MAY BE MADE TO THE ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 6 DECISIONS, INTER ALIA , IN SUPDT., CENTRAL EXCISE V. PRATAP RAI [1978] 114 ITR 231 (SC) AND GUDUTHUR BROS. V. ITO [1960] 40 ITR 298 (SC), BOTH BY THE LARGER BENCHES OF THE APEX COURT. THE JURISDICTION TO IMPO SE PENALTY U/S. 271(1)(C), IT IS AGAIN WELL-SETTLED, IS ON THE BASIS OF A SATISFACTI ON, PRIMA FACIE , OF THE ASSESSING (OR OTHER AUTHORITY IMPOSING PENALTY), THAT THE ASSESSE E DOES NOT HAVE A PROPER, DULY SUBSTANTIATED, EXPLANATION WITH REGARD TO THE FACTS MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME UNDER THE ACT (REFER: D.M. MANASVI V. CIT [1972] 86 ITR 557 (SC); CIT V. S.V. ANGIDI CHETTIAR [1962] 44 ITR 739 (SC)), WHICH (SATISFACTION) MAY NOT EVEN BE REDUCED IN WRITING, THOUGH OUGHT TO BE DISCERNIBLE FROM THE RECORD IN ANY PROCEEDINGS UNDER THE ACT (REFER: MAK DATA PVT. LTD. V. CIT [2015] 358 ITR 593 (SC); CIT V. ATUL MOHAN BINDAL [2009] 317 ITR 1 (SC)). THERE IS NO ISSUE AS REGARDS THE SAID JURISDICTION IN THE INSTANT CASE. IN FACT, A PREJUDICE WOULD NOT NORMALLY ARISE IN-AS -MUCH AS THE ASSESSEE HAS ALREADY FURNISHED AN EXPLANATION DURING THE ASSESSM ENT OR OTHER PROCEEDINGS, I.E., QUA ANY ADJUSTMENT TO HIS RETURNED INCOME, AND THE EXP LANATION IN THE PENALTY PROCEEDINGS IS SOUGHT QUA THE SAME, PRIMARILY WITH A VIEW TO EXAMINE IF THE TERMS OF EXPLANATION 1 THERETO, WHICH IS TO BE READ AS PART OF THE SECTIO N, ARE SATISFIED, OR NOT. FOR EXAMPLE, IN THE INSTANT CASE THE EXPLANAT ION IS TOWARD NON-PROVING THE GENUINENESS OF THE SOURCE OF THE CREDIT ASCRIBED TO KIKKAR SINGH OR, WHY, THE GENUINENESS BEING NOT PROVED, SHOULD NOT THE SAME B E REGARDED AS CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME OR, AS THE CASE MAY BE, CONCEALMENT OF PARTICULARS OF INCOME; IN EITHER CASE, THE ASSESSEE BEING REQUIRED TO SUBSTANTIATE HIS EXPLANATION AS TO THE SOURCE OF THE MONIES AVAILABL E WITH HIM FOR INVESTMENT. THE PENALTY LEVIED IN THE INSTANT CASE, AND NOT INCORRE CTLY, IS FOR FURNISHING INACCURATE PARTICULARS OF INCOME, QUA WHICH NO DISPUTE STANDS RAISED BY THE ASSESSEE. THIS BRINGS US TO EXPLANATION 1 SECTION 271(1)(C), WHICH DEEMS A PERSON TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME WHERE HE IS UNABLE TO FURNISH AN ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 7 EXPLANATION, OR SUBSTANTIATE THAT FURNISHED, WITH A LL THE FACTS RELEVANT AND MATERIAL TO THE COMPUTATION OF HIS INCOME, OR THE EXPLANATIO N FURNISHED IS FOUND FALSE, AS INDEED IS IN THE INSTANT CASE. THE SAID EXPLANATION 1 IS, AS WOULD BE APPARENT FROM THE BARE READING OF THE PROVISION, APPLICABLE TO BO TH THE LIMBS OF THE PENALTY U/S. 271(1)(C) INASMUCH AS THE EXPLANATION TO BE FURNISH ED, THE ONUS OF WHICH IS ON THE ASSESSEE, IS, IN EITHER CASE QUA FACTS MATERIAL TO THE COMPUTATION OF HIS TOTAL INC OME UNDER THE ACT. THAT IS, WHETHER THE FACTS MATERIAL TO THE COMPUTATION OF INCOME, QUA WHICH THEREFORE EXPLANATION IS SOUGHT IN PENALTY P ROCEEDINGS, PERTAIN TO A CASE OF OMISSION OR COMMISSION, I.E., CONCEALMENT OF PAR TICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. REFERENCE FOR THI S MAY BE MADE TO THE DECISION IN DILIP N. SHROFF V. JT. CIT [2007] 291 ITR 519 (SC), HOLDING THAT TO HAVE ALWA YS BEEN THE POSITION. HOW DOES, THEN, ONE MAY ASK, THI S DISTINCTION IN THE PENALTY NOTICE IS OF ANY SIGNIFICANCE, I.E., IN THE FINAL A NALYSIS, MUCH LESS LEAD TO ANY PREJUDICE. IT NEEDS TO BE APPRECIATED, AND IS TO BE BORNE IN MIND, THAT THE PRIMARY AND RELEVANT FACTS ARE ONLY IN THE SPECIAL KNOWLEDG E OF THE ASSESSEE. THIS, IN FACT, IS THE PREMISE OF THE SAID EXPLANATION , INFERRING DELIBERATENESS WHERE THEREFORE THESE FACTS ARE NOT FORTHCOMING, OR AN EXPLANATION IN THEIR RESPECT, OR THAT FURNISHED FOUND FALSE OR OTHERWISE UNSUBSTANTIATED. THE DECISION IN MANJUNATHA COTTON & GINNING FACTORY (SUPRA), AS EXPLAINED BY THE TRIBUNAL IN SEVERAL DECISIONS (VIZ. R. VASUKI V. DY. CIT [2017] 51 CCH 298 (CHENN); ITO V. S. ANANDALAKSHMI (IN ITA NO. 1948/MDS/2016, DTD. 17.10.2017)), IS PREMISED ON A PREJUDICE HAVING BEEN CAUSED, FOUN D ABSENT IN THE INSTANT CASE. THE SAID DECISION, DISCUSSED IN DETAIL IN THESE ORD ERS BY THE TRIBUNAL; IN FACT, EVEN REPRODUCING THEREFROM, IS THUS NOT APPLICABLE ON FA CTS. WE HAVE ALREADY CLARIFIED THAT THE SAID DECISION IS WITHOUT REFERENCE TO THE JUDICIAL PRECEDENTS AND, FURTHER, BASED ON OTHER CONSIDERATIONS AS WELL. AGAIN, EVEN WHERE A PREJUDICE SURVIVES, AS EXPLAINED WITH REFERENCE TO THE DECISIONS BY THE LA RGER BENCHES OF THE APEX COURT, ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 8 THE SAME WOULD WARRANT A RESTORATION BACK TO THE ST AGE AT WHICH THE SAME HAD OCCURRED, WITH A VIEW TO CAUSE ITS REMOVAL. THE SAI D DECISION MUST THUS BE REGARDED AS RENDERED IN THE FACTS OF ITS CASE. TRU E, SLP STANDS DISMISSED BY THE APEX COURT IN CIT V. SSAS EMERALD MEADOWS (SPL (CC) NO.11485/2016), RENDERED FOLLOWING THE DECISION IN MANJUNATHAS CASE. HOWEVER, THE APEX COURT, WHILE DISMISSING THE ASSESSEES SLP HAS CLEARLY STA TED THAT THE FINAL FINDINGS OF THE HONBLE HIGH COURT, WHICH STAND CHALLENGED BEFORE I T, DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW FOR ITS DETERMINATION. THE APEX CO URT HAS THUS NOT LAID DOWN ANY LAW, AND NO RATIO DECIDENDI, WHICH IS TO BE FOLLOWED, THUS ARIS ES FROM THE DISMISSAL OF THE SAID SLP. RELIANCE THEREON, THUS, WOULD NOT BE OF MUCH ASSIST ANCE TO THE ASSESSEE. FINALLY, IT MAY BE CLARIFIED AS TO WHY, WHEN THIS T RIBUNAL HAD FOUND THE ASSESSEES CLAIM AS NOT ADMISSIBLE, SHOULD A DECISI ON ON MERITS FOLLOW, WHICH HAS BEEN, WITHOUT THOUGH DISCUSSING THE DECISIONS RELIE D UPON IN GREATER DETAIL; THE MATTER BEING WELL-SETTLED ON THE BASIS OF FIRST LEG AL PRINCIPLES. THE REASON IS TWO- FOLD. ONE, THOUGH NOT RAISED PER A GROUND OF APPEAL BEFORE THE LD. CIT(A), THE SAME FORMS PART OF THE ASSESSEES WRITTEN SUBMISSIONS BE FORE HIM, REPRODUCED AT PGS. 2-4 OF THE IMPUGNED ORDER, REFERRING TO A PHOTOCOPY OF THE SAID NOTICE U/S. 274. THERE IS NO FINDING THOUGH AS TO THE SAID NOTICE OR ITS COP Y, ALSO NOT PLACED ON RECORD. THOUGH, THEREFORE, THE RELEVANT NOTICE (OR A COPY T HEREOF) IS NOT ON RECORD, FOR THE CLAIM TO BE ADMITTED, IN FAIRNESS, THIS QUESTION NE EDS TO BE RESTORED TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR BEING ANSWERED, INCLU DING THE QUESTION OF THE ADMISSION OF ADDITIONAL EVIDENCE. IT IS FOR THIS RE ASON THAT THE SAME, RAISING A LEGAL PLEA, I.E., ASSUMING ADMISSIBILITY ON FACTS, WAS DE EMED FIT FOR BEING ANSWERED. TWO, THE ASSESSEE HAS RELIED ON SEVERAL DECISIONS B Y THE TRIBUNAL. THERE IS REFERENCE TO THE DECISIONS BY THE TRIBUNAL TAKING A DIFFERENT VIEW IN THIS ORDER AS WELL. IN FACT, THE DECISIONS BY THE TRIBUNAL RELIED UPON BY THE AS SESSEE ARE FURTHER BASED ON THE ITA NO. 14/ASR/2018 (AY 2009-10) KRISHAN KUMAR SHARMA V. ITO 9 DECISION IN MANJUNATHA COTTON & GINNING FACTORY (SUPRA), WHICH HAS BEEN DISCUSSED HEREINABOVE. 3.3 NO OTHER ASPECT OF THE MATTER STANDS EITHER RAI SED OR ARGUED IN APPEAL. THE PENALTY LEVIED IS AT THE MINIMUM RATE OF 100% OF TH E TAX SOUGHT TO BE EVADED AND, THEREFORE, THE RAISING OF A GROUND (GD. 3) IN ITS R ESPECT OF NO CONSEQUENCE. A CALCULATION MISTAKE, NOT SHOWN, WHERE SO, COULD BE ADDRESSED THROUGH S. 154. 4. I, IN VIEW OF THE FOREGOING, ACCORDINGLY, FIND N O INFIRMITY IN THE IMPUGNED LEVY OF PENALTY AND, THEREFORE, DECLINE INTERFERENC E. I DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN CO URT ON APRIL 30, 2019 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 30.04.2019 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: KRISHAN KUMAR SHARMA, STREET NO. 3, BASTI HAZOOR SINGH, FAZILKA (2) THE RESPONDENT: INCOME TAX OFFICER, WARD 2( 4), ABOHAR (3) THE CIT(APPEALS), BATHINDA (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER