Sant Ram Sharma, Panchkula V. ITO, W-4, Chandigarh

ITA 1622/CHANDI/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4315 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Unexplained expenditure
• Section: 147; 148; 271(1)(c); 69C; 143(3)

Judgement Text

3 , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, SMC, CHANDIGARH .. , !' BEFORE SHRI N.K.SAINI, VICE PRESIDENT ./ ITA NO.1622/CHD/2017 / ASSESSMENT YEAR : 2010-11 SH. SANT RAM SHARMA, # 883, SECTOR 8, PANCHKULA VS. THE ITO, WARD-4, PANCHKULA ./PAN NO:AMPPS1995K / APPELLANT /RESPONDENT /ASSESSEE BY : SH. T.N. SINGLA, CA ! / REVENUE BY : SMT.CHANDRAKANTA, SR. DR ' #$ /DATE OF HEARING : 30.01.2019 %&'($ / DATE OF PRONOUNCEMENT : 08. 02.2019 #/ ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.10.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS), PANCHK ULA. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL: 1. THAT THE ORDER OF LEARNED C.I.T. (APPEALS) IS BAD A GAINST THE FACTS & LAW. 2. THAT THE NOTICE ISSUED FOR PENALTY U/S 271(L)(C) WAS DEFECTIVE AND ISSUED WITHOUT ESTABLISHING CONCEALMENT OF INCO ME OR FURNISHING OF INACCURATE PARTICULARS. 3. THAT THE LEARNED CIT(A) WRONGLY LEVIED PENALTY U /S 271( I)(C) OF THE ACT. 4. THAT THE CIT(A) WRONGLY UPHELD OUR OBJECTION FOR NONISSUANCE OF ANY NOTICE OF PENALTY U/S 271(L)(C) OR INITIATIO N OF PENALTY PROCEEDINGS IN THE REASSESSMENT ORDER PASSED U/S 14 8 ON ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 2 27.02.2015. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPO SED OFF. 3. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASS ESSEE FILED RETURN OF INCOME ON23.7.2010DECLARING AN INCOME OF RS. 35,84, 020/- WHICH WAS PROCESSED ON 23.7.2011. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY, THE ASSESSING OFFICER COMPLETED THE ASSES SMENT AT AN INCOME OF RS. 46,02,750/- U/S 143(3) OF THE ACT VIDE ORDER DATED 21.03.2013 AND INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED. THEREAFTER, THE CASE WAS REOPENED U/S 147 OF THE ACT. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CLA IMED POSSESSION EXPENSES OF RS. 7,26,000/- FROM CAPITAL GAIN ON SAL E OF LAND AT PINJORE. HE ASKED THE ASSESSEE TO SUBMIT THE DETAILS OF THE SAID EXPENSES. THE ASSESSING OFFICER OBSERVED THAT THE SAID AMOUNT WAS NOT REFLECTED IN THE CASHBOOK, HE TREATED THE SAME AS AN UNEXPLAINEDEXPE NDITURE U/S 69C OF THE ACT. HOWEVER, THE ASSESSMENT WAS FRAMED VIDE OR DER DATED 27.2.2015 AT THE SAME INCOME OF RS. 46,02,750/- WHI CH WAS ORIGINALLY ASSESSED VIDE ORDER DATED 21.3.2013 U/S 143(3) OF T HE ACT. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE SAME. 5. DURING THE COURSE OF PENALTY PROCEEDINGS, THE A SSESSEE ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 3 SUBMITTEDAS UNDER:- 'I MAY LIKE TO SUBMIT THAT THE COMPLETED ASSESSMENT U/S 143(3) DATED 21.3.2013 WAS RE-ASSESSED VIDE ORDER U/S 143(3) R.W.S. 148 OF THE INCOME-TAX ACT O N 27.2.2015. AS THE NOTICE U/S 148 WAS ISSUED ON 3.2.2014, THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) DATED 21.3.2013 BECAME INFRUCTUOUS AND FRESH ORDER WAS PASSED U/S 148 R.W.S.143(3) ON 27.2.2015. IN THE ASSESSMENT ORDERPASSED U/S 148 R.W.S.143(3) OF THE INCOME-TAX ACT, 1961 DATED 27.2.2015, NO NOTIC E OF CONCEALMENT OF PENALTY U/S 271(1)(C) WASISSUED O R INITIATED IN THE SAID ORDER. HENCE THE PENALTY PROCEEDINGS INITIATED IN ASSESSMENT ORDER DATED 21.3.2013 ARE DEEMED TO BE DROPPED IN REASSESSMENT ORDER DATED 27.2.2015 AND, HENCE, NO PENALTY U/S 271(1)(C) CAN BE LEVIED NOW. 6. IT WAS FURTHER SUBMITTED AS UNDER:- I MAY LIKE TO SUBMIT THAT IN THE ASSESSMENT ORDER DATED 21.3.2013, THE ADDITION ARE MADE ON DISALLOWANCE OF CERTAIN EXPENSES CLAIMED BY ME AND ON SUCH DISALLOWANCE OF EXPENSE, PENALTY U/S 271(1)(C) CANNOT BE LEVIED AS PER JUDGEMENTS QUOTED IN MY REPLY ALREADY SUBMITTED ON 28.9.2016. 7. THE ASSESSING OFFICER AFTER CONSIDERING THE SUB MISSIONS OF THE ASSESSEE OBSERVED THAT THE ADDITION OF RS. 7,26,000 /- WAS MADE ON ACCOUNT OF CAPITALGAIN ON THE SALE OF LAND AT PINJO RE AND THAT THE CASE WAS REOPENED ON ACCOUNT OF CAPITAL GAIN ARISEN ON T HE SALE OF SHOP AT DHARAMPUR. HE FURTHEROBSERVED THAT THE PROPERTY, A S DISCUSSED IN BOTH THE ASSESSMENT ORDERS, WERE DIFFERENT, THEREFORE, T HE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED. HE ALSO OBSERVED THAT TH E ASSESSEE HAD CLAIMED DEDUCTION OF THIS AMOUNTWHEREAS THE ASSESSI NG OFFICER TREATED IT AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. T HE ASSESSING OFFICER LEVIED THE PENALTY AT RS. 1,78,316/- U/S 271(1)(C) OF THE ACT. ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 4 8. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) AND SUBMITTED THE WRITTEN SUBMISSIONS WHICH HAS BEE N INCORPORATED IN PARA 4.3 OF THE IMPUGNED ORDER AND READ AS UNDER:- ' THE ASSESSING OFFICER HAD PASSED AN ORDER U/S 143(3 ) ON 21/03/2013. AFTER COMPLETION OF THE ASSESSMENT U /S 143(3) THE INCOME WAS RE-ASSESSED VIDE ORDER U/S143(3) R.W.S . 148 OF INCOME TAX ACT ON 27/02/15 . THE ORDER U/S SECTION 143(3) DATED 21/03/2013 WAS MERGED WITH REASSESSMENT ORDER U/S 143(3) R.W.S. 14 8 DATED 27/02/2015. IN THE ORDER DATED 27/03/2015 NO NOTICE OF CONCEALMENT OF PENALTY U/S 271(L)(C) WAS ISSUED OR INITIATED. HENCE NO PENALTY U/S 271(L)(C) SHOULD BE LEVIED NOW. THE ABOVE STATED EXPENSE WAS DISALLOWED MAINLY AS T HE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EVIDEN CE OF THE EXPENSES OR OF QUANTUM OF EXPENSE. THE DISALLOWANCE OF CERTAIN EXPENSES FOR THE ABOVE STAT ED REASON IS NEITHER THE CONCEALMENT OF INCOME NOR IT CAN BE TREATED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME AND HENCE NO PENALTY U/S 271(L)(C) SHOULD BE LEVIED IN THIS CASE. FURTHER THE ASSESSING OFFICER LEVIED PENALTY ON WRO NG PREMISE, I.E. UNEXPLAINEDEXPENDITURE U/S 69CWHEREAS THE ADDITION WAS MADE ON ACCOUNT OF DISALLOWANCE OFEXPENSES. FURTHER AS PER JURISDICTIONAL HIGH COURT DECISION I N CASE OF CIT VS.AJAIBSINGH&CO., 253 ITR 630 (P&H) & IN CASE OF CIT VS. RAVAIL SINGH & CO.,254 ITR 191 N O PENALTY SHOULD BE LEVIED IN SUCH CASE. IN THESE CAS ES, IT WAS HELDTHAT DISALLOWANCE OF AN EXPENSE PER SE CANNOT MEAN THAT ASSESSEE HAS CONCEALEDPARTICULARS OF INCOME AND FURNISHED INACCURATE PARTICULARS OF INCO ME AND HENCEPENALTYSHOULD NOTBE LEVIED. FURTHER THE RELIANCE IS PLACED ON APEX COURT JUDGME NT IN CASE OF CIT VS RELIANCE PETRO PRODUCTS. IN THIS CASE SUPREME COURT HELD THAT S.271(L)(C) PENALTY CANNOT BE IMPOSED EVEN FOR MAKING UNSUSTAINABLE CLAIMS. IN TH IS CASE THE INTEREST WAS DISALLOWED U/S 14A. PENALTY U /S 271(1)(C) WAS LEVIED ON THE GROUND THAT CLAIM WAS UNSUSTAINABLE WHICH WAS DELETED BY THE LOWER AUTHORITIES.ON APPEAL BY THE DEPARTMENT TO THE ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 5 SUPREME COURT, HELD DISMISSING THE APPEAL:- S.271(L)(C) APPLIES WHERE ASSESSEE HAS CONCEALED T HE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME'. THE PRESENT WAS NOT A CASE OF CONCEALMENT OF THE INCOME. AS REGARDS THE FURNISHING OF INACCURATE PARTICULARS, NO INFORMATIO N GIVEN IN THE RETURN WAS FOUND TO BEINCORRECT OR INACCURATE. THE WORDS 'INACCURATE PARTICULARS' MEAN THAT THE DETAILS SUPPLIED IN THE RETURN ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TR UTH OR ERRONEOUS. IN THE ABSENCE OF A FINDING BY AO THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND T O BE INCORRECT OR ERRONEOUS OR FALSE, THERE WOULD BE NO QUESTION OF LEVYING PENALTY U/S 271(L)(C). THE ARGUMENT OF THE REVENUE THAT 'SUBMITTING AN INCORRECT CLAIM FOR EXPENDITURE WOULD AMOUNT TO GIVING INACCURATE PARTICULARS OF SUCH INCOME' IS NO T CORRECT. BY NO STRETCH OF IMAGINATION CAN MAKING OF INCORRECT CLAIM IN LAW TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS, A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABL E IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING INCOME OF THE ASSESSEE. IF THE CONTENTION OF THE REVENUE IS ACCEP TED THEN IN EVERY CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT ACCEPTED BY THE AO FOR ANY REASON, THE ASSESSEE WILL INVITE PENALTY U/S 271 (1)(C). THATI IS CLEARLY NOT THE INTENDMENTS OF THE LEGISLATURE THE LAW LAID DOWN IN DILIPSHROFF 291 1TR 519 (SC) A S TO THE MEANINGS OF THE WORDS 'CONCEAL' AND ''INACCURATE' CONTINUES TO BE GOOD LAW BECAUSE WHAT WAS OVERRULED IN DHARMENDRA TEXTILEPROCESSORS 3061TR 277 (SC) WAS ONLY THAT PART. INDILIPSHROFF WHERE IT WAS HELD THATMENSREA WAS AN ESSENTIAL REQUIREMENT FOR PENALTY U/S 271 (L)(C). THE RELIANCE IS ALSO PLACED ON ITAT CHANDIGARH BENC H JUDGMENT IN CASE OF ARVINDKAKKARVS ITO WARD (3) KAITHAL IN 1TA NO. 444/CHANDI/2010. IN VIEW OF ABOVE WE REQUEST TO YOUR HONOR TO CONSID ER OUR ABOVE STATED SUBMISSION AND GIVE REQUISITE RELI EF AS PER THE ACT.' 9. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 6 OBSERVED THAT THE PENALTY HAD BEEN DULY INITIATED I N THE ORDER DATED 21.3.2013 AND PENALTY NOTICE U/S 274 READ WITH SEC TION 271 OF THE ACT OF THE SAME DATE HAD ALSO BEEN ISSUED TO THE ASSESS EE. SHE FURTHER OBSERVED THAT THE RE-ASSESSMENT WAS INITIATED SUBS EQUENTLY DURING WHICH A SEPARATE ISSUE WAS TAKEN UPBY THE ASSESSING OFFICER BUT NO ADVERSE INFERENCE WAS DRAWN.SHE REFERRED TO PARA 3 OF THE ASSESSMENT ORDER DATED 27.2.2015, WHICH READS AS UNDER:- '3. AFTER DISCUSSION AND KEEPING IN VIEW THE INFORMATION FILED BY THE ASSESSEE, INCOME ASSESSED U/S 143(3) VIDE ORDER DATED 21.03.2013 AT RS. 46,02,150/- IS ACCEPTED. 10. THE LD. CIT(A) ON THEBASIS OF THE AFORESAID NO TING OF THE ASSESSING OFFICER OBSERVED THAT THE ASSESSING OFFIC ER HAD NOT MADE ANY CHANGE IN THE ASSESSMENT COMPLETED U/S 143(3)OF THE ACT VIDE ORDER DATED 21.3.2013 AND DID NOT FIND ANY NEW ANOMALY DU RING THE COURSE OF ASSESSMENT PROCEEDINGS BUT HE DID NOT GIVE ANY FIND INGS ON THE ISSUE ALREADY DISCUSSED IN THE ORDER DATED 21.3.2013, THE REFORE, IT COULD NOT HAVE BEEN SAID THAT THE ORDER U/S 143(3) DATED 21.3 .2013 WAS MERGED WITH THE ORDER U/S 148 DATED 27.2.2105. THEREFORE, THE PENALTY INITIATED VIDE EARLIER ORDER COULD ALSO NOT HAVE BEEN DISTING UISHED AND WOULDHAVE TO CONTINUE AS IT IS. THE LD. CIT(A) ALS O OBSERVED THAT THE ASSESSING OFFICER HAD ASKED FOR THE DETAILS OF EXP ENDITURE CLAIMED BY THE ASSESSEE DURING THE ORIGINAL ASSESSMENT PROCEED INGS BUT THE ASSESSEE COULD NOTACCOUNT FOR THE SOURCE OF THE POS SESSION EXPENDITURE CLAIMED AT RS. 7,26,000/- AS NOCORRESPONDING ENTRI ES WERE FOUND IN THE CASHBOOK. THEREFORE, THE SAID AMOUNT WAS TREATED AS UNEXPLAINED EXPENSES U/S 69C OF THE ACT. ACCORDINGLY, THE LD. CIT(A) DID NOT FIND ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 7 FORCE IN THESE SUBMISSIONS OF THE ASSESSEE THAT THE DISALLOWANCE OF CERTAIN EXPENDITURE COULD NOT HAVE BEEN TREATED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A) ALSO HELD THAT THE CASE LAWS RELIED ON BY THE ASSESSEE WERE DISTINGUISHABLE ON FACTS, SHE CONFIRMED THE PE NALTY LEVIED BYTHE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. NOW THE ASSESSEE IS IN APPEAL. 11. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT IN THE NOTICE U/S 274 READ WITH SECTION271 OF THE ACT, THE ASSESSING OFFICER WAS NOT SATISFIEDUNDER WHICH LIMB THE PENALTY PROCEEDINGS W ERE INITIATEDI.E. AS TO WHETHER IT WAS FOR CONCEALMENT OF INCOME OR FURN ISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THE REFERENCE WAS MADE TO PAGE 1 OF THE ASSESSEES PAPER BOOK WHICH IS COPY OF THE SAID NOT ICE DATED 21.3.2013. IT WAS FURTHER SUBMITTED THAT AFTER COMPLETING THE ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER INITIATED THE PR OCEEDINGS U/S 147 OF THE ACT AND REFRAMED THE ASSESSMENT ORDER, THEREFOR E, THE EARLIER ORDER DATED 21.3.2013 WAS NOT IN EXISTENCE AFTER PASSING OF THE ASSESSMENT ORDER DATED 27.2.2015. IT WAS EMPHASIZED THAT IN TH E LATER ORDERDATED 27.2.2015 PASSED U/S 147 READ WITH SECTION 143(3) OF THE ACT, NO PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WAS IN ITIATED, THEREFORE, THE PENALTY LEVIED BY THE ASSESSING OFFICER WAS VOI D AB INITIO . THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS. I) ITO & AR V K.L. SRIHARI (HUF) &ORD 250 ITR 0193 ( SC) II) SPECIAL LEAVE TO APPEAL (CC NO. 11485/2016) OF HON' BLE SUPREME COURT ARISING OUT OF ORDER DATED 23.11.2015 IN CIT &ANR VS. M/S SSAS EMERALD MEADOWS ( ITA NO. 380 OF 2015 ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 8 KARNATAKA HIGH COURT ) III) CIT VS. SAMSON PERNCHERY, (2017) 98 CCH 0039 (MUMBA I HIGH COURT ) IV) JAGDAMBA PRASAD GUPTA, DELHI VS. ACIT, ITA NO. 1834/DELHI/2016 DATED 21.1.2019 (DELHI BENCH) V) M/S REPLIKA PRESS PVT LTD, NEW DELHI VS. DCIT,ITA N O. 120/CHD/2016 ORDER DATED 10.7.2018 12. IN HER RIVAL SUBMISSIONS, THE LD. DR STRONGLY S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING OF INACCU RATE PARTICULARS OF INCOME, THEREFORE, THERE WAS ALSO CONCEALMENT OF IN COME. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD GIVEN REPLY TO THE ASSESSING OFFICER, SO IT CANNOT BE SAID THAT HE WAS NOT AWARE UNDER WHICH LIMB THE PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) O F THE ACT . THE LD. SR. DR REITERATED THE OBSERVATIONS MADE IN THE IMPU GNED ORDER. THE RELIANCE WAS ALSO PLACED ON THE FOLLOWING CASE LAWS : I) SUNDARAM FINANCE LTD VS. ACIT [2018] 403 ITR 407 (M AD.) II) SH. MUNISH JAIN, LUDHIANA VS. DCIT, ITA NOS. 254 & 255/CHD/2017 ITAT CHANDIGARH DATED 19.3.2018 13. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE ASSESSING OFFICER FRAMED THE ASSESSME NT U/S 143(3) OF THE ACT VIDE ORDER DATED 23.1.2013. THEREAFTER, THE CAS E WAS REOPENED U/S 147 OF THE ACT AND THE REASSESSMENT WAS REFRAMED VI DE ORDER DATED 27.2.2015 U/S 147 / 143(3) OF THE ACT. THEREFORE, THE ORIGINAL ASSESSMENT FRAMED VIDE ORDER DATED 23.1.2013 MERGED WITH THE RE- ASSESSMENT ORDER DATED 27.2.2015 FRAMED U/S 147 / 1 43(3) OF THE ACT. ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 9 14. ON A SIMILAR ISSUE, THE HON'BLE SUPREME COURT I N THE CASE OF ITO & ANR VS. K.C.SRIHARI (HUF) &ORS [2001] 250 ITR 19 3 (SC) HELD AS UNDER:- WE HAVE HEARD SHRI RANBIR CHANDRA, LEARNED COUNSEL APPEARING FOR THE PETITIONERS, AND SHRI HARISH N. S ALVE, LEARNED SENIOR COUNSEL APPEARING FOR THE RESPONDENT S. WE HAVE ALSO PERUSED THE ORIGINAL ASSESSMENT ORDER DATED MARCH 19, 1983, AS WELL AS THE SUBSEQUENT ASSESSMENT ORDER THAT WAS PASSED ON JULY 16, 1987, AFTER THE REOPENING OF THE ASSESSMENT UNDER SECTION 147. ON A CONSIDERATION OF THE ORDER DATED JULY 16, 1987 , WE ARE SATISFIED THAT THE SAID ASSESSMENT ORDER MAKES A FRESH ASSESSMENT OF THE ENTIRE INCOME OF THE RESPON DENT- ASSESSEE AND THE HIGH COURT WAS, IN OUR OPINION, RI GHT IN PROCEEDING ON THE BASIS THAT THE EARLIER ASSESSM ENT ORDER HAD BEEN EFFECTED BY THE SUBSEQUENT ORDER. IN THESE CIRCUMSTANCES, WE DO NOT CONSIDER IT NECESSAR Y TO GO INTO THE QUESTION THAT IS RAISED AND THE SAME IS LEFT OPEN. THE SPECIAL LEAVE PETITIONS ARE ACCORDINGLY DISMISSED. 15. CONSIDERING THE RATIO LAID DOWN BY THE HON'BL E SUPREME COURT IN THE AFORESAID REFERRED TO CASE, I AM OF THE OPINION THAT THE EARLIER ASSESSMENT ORDER DATED 23.1.2013 WAS EFFECTED BY TH E SUBSEQUENT ASSESSMENT ORDER DATED 27.2.2015. IN OTHER WORDS, THE ASSESSMENT ORDER IN EXISTENCE WAS THE ORDER DATED 27.2.2015 AN D, IF ANY, PENALTY PROCEEDINGS WERE TO BE INITIATED, THOSE COULD HAVE BEEN INITIATED IN THE SAID ASSESSMENT ORDER DATED 27.2.2015. HOWEVER, TH E ASSESSING OFFICER HAD NOT INITIATED ANY PENALTY PROCEEDINGS IN THE SA ID ASSESSMENT ORDER DT 27.2.2015 AND THIS FACT HAS ALSO BEEN ACCEPTED B Y THE LD. CIT(A) WHO HAD MENTIONED THAT THE PENALTY HAD BEEN DULY IN ITIATED IN THE ORDER DATED 21.1.2013 BUT THE CONTENTION OF THE ASSESSEE THAT NO PENALTY U/S 271(1)(C) OF THE ACT WAS INITIATED IN THE RE-ASSESS MENT ORDER DATED 27.2.2015 WAS REBUTTED. I, THEREFORE, CONSIDERING T HE TOTALITY OF THE FACT AND IN THE ABSENCE OF INITIATION OF PENALTY PROCEED INGS, IN THE RE- ITA NO. 1622-CHD-2017- SH. SANT RAM SHARMA, PANCHKULA 10 ASSESSMENT ORDER DATED 27.2.2015, DELETE THE IMPUGN ED PENALTY U/S 271 (1) (C) OF THE ACT LEVIED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A). 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.02.2019. SD/- ( .. / N.K. SAINI) !'/ VICE PRESIDENT DATED : 08.02.2019 .. &* +,-, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' . / CIT 4. ' . ( )/ THE CIT(A) 5. ,/0 1 , $1 , 23405 / DR, ITAT, CHANDIGARH 6. 046# / GUARD FILE &* ' / BY ORDER, 7! / ASSISTANT REGISTRAR 4