Smt. B. Bhagyalakshmi, V. D.C.I.T. Central Circle - 1(3),

ITA 162/BANG/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5390 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-03-2017
• Assessment Year: misc
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C H SUNDAR RAO
• Assessee Lawyers: LAKSH MI NARAYAN
• Keywords: Principle of natural justice; Initiation of penalty proceedings
• Section: 27; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO.162/BA NG/2014 (ASST. YEAR 2004-05) SMT. BHAGYALAKSHMI, W/O B SHREERAMULU, VIDYAGIRI, SB COLONY, CLUB ROAD, NEAR KUMARASWAMY TEMPLE, BELLARY. . APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(3), BANGALORE. . RESPONDENT PAN - AJNPB 7530N. APPELLANT BY : SHRI LAKSH MI NARAYAN, ADVOCATE RESPONDENT BY : SHRI C.H SUN DAR RAO, CIT DATE OF HEARING : 23-3-2018 DATE OF PRONOUNCEMENT : 28-3-2018 O R D E R PER SHRI JASON P BOAZ, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VI, BAN GALORE DATED 30/10/2013; UPHOLDING THE ORDERS OF THE DCIT, CENTR AL CIRCLE-1(3), BANGALORE DATED 28/6/2010 LEVYING PENALTY OF RS.18, 00,000/- U/S IT A NO.162/B/14 2 271(L)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'TH E ACT') FOR ASST. YEAR 2004-05. 2.1 AGGRIEVED BY THE ORDER OF THE CIT(A)-6, BANGALO RE DATED 31/10/2013 FOR ASST. YEAR 2004-05 UPHOLDING THE LEV Y OF PENALTY OF RS. 18 LAKHS U/S 271(1)(C) OF THE ACT, THE ASSESSEE HAS PREFERRED THIS APPEAL RAISING THE FOLLOWING GROUNDS:- '1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (CIT(A)) IN UPHOLDING THE LEVY OF PENALTY OF RS. 18,00,000/- U/S. 271 (1) (C) OF THE ACT IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE . 2. THE LEARNED IT(A) OUGHT TO HAVE APPRECIATED THAT THERE IS NEITHER CONCEALMENT NOR FURNISHING OF INACCURATE PARTICULAR INCOME BY THE APPELLATE ASSESSEE AND THEREFORE, THE PENALTY U/S 27 1(1) (C) COULD NOT HAVE BEEN IMPOSED. 3. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T THE EXPLANATION OF THE APPELLATE ASSESSEE WAS BONAFIDE AND THEREFORE, THE PENALTY U/S 271(1) (C) COULD NOT HAVE BEEN IMPOSED. 4. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED WHEN THERE WAS NO SEIZED MATERIALS CONTEMPLATED U/S 132 IN THE CASE OF THE APPELLATE ASSESSEE, THERE CO ULD NOT HAVE BEEN ANY ASSESSMENT U/S 153C AS PER LAW IT A NO.162/B/14 3 AND THEREFORE, THE PENALTY U/S 27](1) (C) IS NOT JUSTIFIED. 5. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED WHEN THE INCOME ITSELF WAS NOT LIABLE TO BE TAXED U /S 153C IN THE ABSENCE OF SEIZED MATERIAL, THE PENALTY COULD NOT HAVE BEEN IMPOSED. 6 THE LEARNED CIT(A) OUGHT TO HAVE UNDERSTOOD THAT THERE WAS NO JURISDICTION U/S 153C TO JUSTIFY THE PENALTY U/S 27 1(1) (C). 7. THE LEARNED CJT(A) OUGHT TO HAVE APPRECIATED THA T EXPLANATION 5A U/S 271(1)(C) IS NOT APPLICABLE TO T HE ASSESSEE AS IT IS APPLICABLE ONLY TO A PERSON IN WH OSE CASE SEARCH WAS INITIATED U/S 132A OF THE ACT AND THEREFORE, THERE IS NEITHER CONCEALMENT NOR FURNISH ING OF INACCURATE PARTICULARS OF INCOME. THE APPELLANT CRAVES LEAVE TO ADD MODIFY, OR DELETE ANY OF THE GROUNDS BEFORE THE COMMENCEMENT OF THE HEARING FOR THESE AND OTHER WRITTEN SUBMISSION THAT MAY BE FURNISHED AND ALSO THE ARGUMENTS THAT MAY BE ADVANCED, THE HONORABLE ITA T MAY BE PLEASED TO ALLOW THE APPEAL IN THE INTEREST OF EQUITY AND JUST ICE.' 2.2 SUBSEQUENTLY, THE ASSESSEE FILED ADDITIONAL GRO UNDS NO.8 WHICH IS EXTRACTED HEREUNDER:- 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PENALTY LEVIED ON THE APPELLANT IT A NO.162/B/14 4 OUGHT TO BE QUASHED AS NEITHER IN THE NOTICE ISSUED NOR IN THE ASSESSMENT ORDER, THE SPECIFIC CHANGE AS TO UNDER WHICH LIMB THE PENALTY WAS TO BE LEVIED IS NOT SPECIFIED. IT IS PRAYED THAT THIS HONBLE ITAT MAY BE PLEASED TO DELETE THE PENALTY LEVIED BY THE AO AND CONFIRMED BY THE CIT(A) IN VIEW OF THE GROUNDS RAISED HEREUNDER. 2.3 IN SUPPORT OF THE ADDITIONAL GROUND RAISED (SUP RA) THE ASSESSEE SUBMITTED THAT THE SAID GROUND IS A PURE L EGAL GROUND THAT GOES TO THE ROOT OF THE MATTER AND CAN BE DECI DED ON THE BASIS OF MATERIAL ALREADY ON THE RECORDS. ACCORDIN G TO THE ASSESSEE THE OMISSION TO RAISE SPECIFIC GROUNDS TO THIS EFFECT WAS NEITHER INTENTIONAL NOR DELIBERATE AND PRAYED T HAT THE ADDITIONAL GROUND RAISED BE ADMITTED FOR ADJUDICATI ON IN THE INTEREST OF EQUITY AND JUSTICE. IN THIS REGARD REL IANCE WAS PLACED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NTPC LTD., VS. CIT (229 ITR 383) (SC). 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD AND THE LEGAL PRECEDENTS IN THIS REGARD. IN OUR VIEW THE LEGAL I SSUE IN THE ADDITIONAL GROUND RAISED (SUPRA) WOULD GO TO THE RO OT OF THE MATTER AND CAN BE DECIDED ON THE BASIS OF MATERIAL ALREADY ON RECORD. FOLLOWING THE RATIO OF THE DECISION OF THE HONBLE IT A NO.162/B/14 5 APEX COURT IN THE CASE OF NTPC LTD; (SUPRA), WE ADM IT THE ADDITIONAL GROUND (SUPRA) FOR ADJUDICATION. 3 GROUND NO: 2 3.1 IN THIS GROUND (SUPRA), THE SUM AND SUBSTANCE O F THE ASSESSEES CONTENTIONS ARE THAT THE PENALTY PROCEEDINGS INITIA TED BY THE AO FOR ASST. YEAR 2004-05 VIDE NOTICE ISSUED U/S 274 R.W .S 271 OF THE ACT DATED 31/12/2009 FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, IS DEFECTIVE. IN THIS REGARD THE LD AR FOR THE ASSESS EE HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE KARNATAKA H IGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (359 IT R 565) (KAR) AND THE REJECTION OF THE REVENUES SLP BY THE HONB LE APEX COURT IN THE CASE OF SSAS EMERALD MEADOWS IN SLP: (CC 11485/ 2016) DATED 5/8/2016. THE LD AR ALSO PLACED RELIANCE ON THE D ECISION OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE FOLLOWING CA SES OF - (1) C RAMAIAH REDDY IN ITA NO.977/BANG/2017 DATED 2 2/9/2017 AND (II) ARUN KUMAR IN ITA NO.117/BANG/2016 DATED 1 6/12/2106 IN SUPPORT OF THE ASSESSEES CASE. IT IS CONTENDED TH AT IN SIMILAR CIRCUMSTANCES, AS IN THE CASE ON HAND, THE CO-ORDIN ATE BENCHES OF THIS TRIBUNAL HAVE HELD THAT THE PENALTY PROCEEDINGS INI TIATED ON THE BASIS OF DEFECTIVE NOTICE HAS TO BE CANCELLED. 3.2 PER CONTRA, THE LD DR FOR REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. IT WAS SUBMITTED THAT SINCE THE LD CIT(A) HAD NOT CONSIDERED AND DECIDED THE ISSUE OF DEFECTIVE NOTI CE U/S 274 R.W.S 271 OF THE ACT FOR INITIATION OF PENALTY PROCEEDING S U/S 271(1)(C) OF THE ACT, THEREFORE THE MATTER REQUIRES TO BE SENT B ACK TO THE FILE OF THE IT A NO.162/B/14 6 CIT(A) FOR ADJUDICATION OF THIS GROUND. RELIANCE W AS PLACED ON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF JA YSONS INFRASTRUCTURE INDIA PVT. LTD., IN ITA NO.997/BANG/2015. 3.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUD ING THE JUDICIAL PRONOUNCEMENTS CITED. AT THE OUTSET WE MAY MENTION THAT WHILE THE AFORESAID ISSUE OF DEFECTIVE NOTICE WAS NOT BEFORE THE LD CIT(A), HOWEVER, SINCE THE FACTS OF THE MATTER ON THIS ISSU E ARE APPARENT FROM THE COPY OF THE SAID NOTICE ISSUED U/S 274 R.W.S 27 1 OF THE ACT DATED 31/12/2009 (FILED BY THE ASSESSEE AT PAGE 10 AND 11 OF PAPER BOOK PAGES 1 TO 11) AND THE JUDICIAL VIEW OF COURTS AND ITAT CO-ORDINATE BENCHES IN THE MATTER (SUPRA) IN OUR VIEW, NO USEFU L PURPOSE WOULD BE SERVED IN RESTORING THE MATTER TO THE FILE OF TH E LD CIT(A) AS PRAYED FOR BY THE LD DR FOR REVENUE. WE HAVE PERUSED THE COPY OF THE NOTICE ISSUED U/S 274 R.W.S 271 OF THE ACT; DATED 31/12/2009 AND FIND THAT IT REVEALS THAT THE AO HAS NOT DELETED THE INA PPROPRIATE WORDS AND PARTS IN THE RELEVANT PARAGRAPH OF THE NOTICE, WHEREBY IT IS NOT CLEAR AS TO WHICH DEFAULT HAS BEEN COMMITTED BY THE ASSESSEE; I.E WHETHER IT IS FOR FURNISHING OF INACCURATE PARTICU LARS OF INCOME OR CONCEALING PARTICULARS OF INCOME THAT PENALTY U/S 271(1)(C) OF THE ACT IS SOUGHT TO BE LEVIED. 3.3.2 THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF M/S MANJUNATHA COTTON & GINNING FACTORY IN (359 ITR 565 ) (KAR) HAS HELD THAT A NOTICE ISSUED U/S 274 R.WS 271 OF THE A CT WITHOUT SPECIFYING THE NATURE OF DEFAULT; I.E; WHETHER THE NOTICE IS ISSUED FOR IT A NO.162/B/14 7 CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME; IS INVALID AND THE CONSEQUEN TIAL PENALTY PROCEEDINGS/ORDER ARE ALSO NOT VALID. THE RELEVANT PORTION OF THE AFORESAID JUDGMENT OF THE HONBLE KARNATAKA HIGH CO URT (SUPRA) AT PARAS 59 TO 61 ARE EXTRACTED HEREUNDER:- 59 AS THE PROVISION STANDS, THE PENALTY PROCEEDING S CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN, IF THE ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FIN DING REGARDING THE EXISTENCE OF ANY SAID GROUNDS MENTION ED THEREIN AND THEN PENALTY PROCEEDINGS IS INITIATED, IN THE NOTICE TO BE ISSUED UNDER SECTION 274, THEY COULD CONVENIENTLY REFER TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION OF THE AUTHORITY WHICH HAS PASSED THE ORDER. HOWEVER, IF THE EXISTENCE OF THE CONDITIONS COULD N OT BE DISCERNED FROM THE SAID ORDER AND IF IT IS A CASE O F RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION-I OR IN EXPLANATION- L(B), THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NATURE OF CIVIL LIABILITY, IN FACT, IT IS' P ENAL IN NATURE. IN EITHER EVENT, THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSI NG PENALTY OIL AS THE SECTION 274 MAKES IT CLEAR THAT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271( I)(C) IT A NO.162/B/14 8 C/A NOT EXIST AS SUCH HE IS NOT LIABLE TO PAY PENAL TY. THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED FARM W HERE ALL THE GROUND MENTIONED IN SECTION 271 ARE MENTION ED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INIT IAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HELD TO BE STANDBY CONSTRUED NOTICE ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUND S WHICH HE HAS TO MEET SPECIFICALLY. OTHERWISE, PRINC IPLES OF NATURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE NO TICE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES, TH AT IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. NO DOUBT, THE FAC TS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOM E CASES THERE MAY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES THE INITIATION OF THE PENALTY PROCEEDING S ALSO MUST BE FOR BOTH THE OFFENCES. BUT DRAWING UP PENAL TY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSE E GUILTY OF ANOTHER OFFENCE OR FINDING HIM GUILTY FOR EITHER THE ONE OR THE OTHER CANNOT BE SUSTAINED IN LAW. IT IS NEEDLESS TO POINT OUT SATISFACTION OF THE EXISTENCE OF THE GROUNDS MENTIONED IN SECTION 271(1)(C) WHEN IT IS A SINE IT A NO.162/B/14 9 QUA NON FOR INITIATION OR PROCEEDINGS, THE PENALTY PROCEEDINGS SHOULD BE CONFINED ONLY TO THOSE GROUND S AND THE SAID GROUNDS HAVE TO BE SPECIFICALLY STATED SO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MEE T THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRI ES TO SUBSTANTIATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOULD BE IMPOSED ONLY ON THE GROUNDS ON WHICH H E IS CALLED UPON TO ANSWER. IT IS NOT OPEN TO THE AUTHOR ITY, AT THE TIME OF IMPOSING PENALTY TO IMPOSE PENALTY ON T HE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOUGH THE INITIATION OF PENALTY PROCEEDINGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PENALTY WOULD OFFEND PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND, THE PENALT Y SHOULD ALSO BE IMPOSED ON THE SAME GROUND. WHERE TH E BASIS OF THE INITIATION OF PENALTY PROCEEDINGS IS N OT IDENTICAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED, THE IMPOSITION OF PENALTY IS NOT VALID. TH E VALIDITY OF THE ORDER OF PENALTY MUST BE DETERMINED WITH REFERENCE TO THE INFORMATION, FACTS AND MATERIALS I N THE HANDS OF THE AUTHORITY IMPOSING THE PENALTY AT THE TIME THE ORDER WAS PASSED AND FURTHER DISCOVERY OF FACTS SUBSEQUENT TO THE IMPOSITION OF PENALTY CANNOT VALI DATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS NOT SUSTAINABLE. IT A NO.162/B/14 10 61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE AC T TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED I N THE COURSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF T OTAL INCOME UNDER CLAUSE (C). CONCEALMENT, FURNISHING INACCURATE PARTICULARS OF INCOME ARE DIFFERENT. THU S THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION THAT WHETHER IS IT A CASE OF CONCEALMENT OF INCOME OR IS IT A CASE OF FURNISHING OF INACCURATE PARTICULARS. THE APEX COURT IN THE CASE OF ASHOK PA I REPORTED IN 292 ITR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJARAT HIGH COURT IN THE CASE OF M4NU ENGINEERING REPORTED IN 122 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF VIRGO IVL4RKETING REPORTED IN 171 TAXMAN 156, HAS HELD THAT PENALTY H AS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE ACTION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFOR E, WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE THE F IRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS THE CASE FOR FURNI SHING INACCURATE PARTICULARS OF INCOME. THE STANDARD PROF ORMA WITHOUT STRIKING OF. THE RELEVANT1 CLAUSES WILL LEA D TO AN INFERENCE AS TO NON-APPLICATION OF MIND.' IT A NO.162/B/14 11 3.3.3 THE AFORESAID VIEW TAKEN BY THE HONBLE KARNA TAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) WAS FOLLOWED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23/11/2 015; WHEREIN THE HONBLE COURT UPHELD THE ORDER OF CO-O RDINATE BENCH OF THIS TRIBUNAL, CANCELLING THE PENALTY LEVIED ON THE BASIS OF THE DEFECTIVE NOTICE ISSUED BY THE AO. REVENUES SLP FI LED AGAINST HE SAID JUDGMENT OF THE HONBLE HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) HAS ALSO BEEN DISMISSED BY THE HONBLE APEX COURT IN CC/1485/2016 DATED 5/8/2016. IN VIEW OF THE AFORESAID DECISIONS OF HONBLE KARNATAKA HIGH COURT HOLDING THE GROUND (SUPRA), THE DECISION CITED BY THE LD DR WOU LD NOT COME TO REVENUES RESCUE. 3.3.4 RESPECTFULLY FOLLOWING THE JUDGMENTS OF THE HONBLE KARNATAKA HIGH COURT IN THE CASES OF M/S MANJUNATHA COTTON & GINNING FACTORY (359 ITR 565( (KAR) AND SSAS EMERAL D MEADOWS IN ITA NO:380 OF 2015 DATED 23/11/2015, WE HOLD THA T THE NOTICE ISSUED BY THE AO U/S 274 R.W.S 271 OF THE ACT DATED 2/1/2014 FOR INITIATING PENALTY PROCEEDINGS FOR ASST. YEAR 2011 -12 IS INVALID AND CONSEQUENTLY, THE PENALTY PROCEEDINGS CONDUCTED IN PURSUANCE THEREOF, ARE ALSO INVALID AND WE THEREFORE DELETE T HE PENALTY LEVIED U/S 271(1)(C) OF THE ACT FOR ASST. YEAR 2011-12. CONSE QUENTLY, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AT S.NO. 8 (SUPRA) IS ALLOWED. IT A NO.162/B/14 12 4. SINCE THE VERY BASIS FOR LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT HAS BEEN HELD BY US TO BE INVALID AS DISCUSSED IN P ARAS 3.1 TO 3.3.4 OF THIS ORDER (SUPRA), THE OTHER GROUNDS OF APPEAL AT S.NOS. 1 TO 7 RAISED ON THE MERITS OF THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT REQUIRE NO ADJUDICATION BY US AT THIS STAGE. 5. IN THE RESULT, ASSESSEES APPEAL FOR ASST. YEAR 2004-05 IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2018 . SD/- SD/- (LALIET KUMAR) (J ASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMB ER BANGALORE DATED : 28/3/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGAL ORE.