Kiran Sitaram Chavan, Nashik V. Income-tax Officer,

ITA 1900/PUN/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7317 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-10-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: ADITYA MUNDADA
• Keywords: Search and seizure; Loose papers; Document seized; Revised return; Documents seized
• Section: 143(3); 133A; 153A; 32; 27; 132; 139

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NOS.1895 TO 1900/PUN/2014 [ [ / ASSESSMENT YEARS : 2005-06 TO 2010-11 KIRAN SITARAM CHAVAN, GREEN SPACE, YASHWANT SOCIETY, MODEL COLONY, COLLEGE ROAD, NASHIK 422 005. PAN : AAYPC1108K. . / APPELLANT V/S INCOME TAX OFFICER, CENTRAL 1, NASHIK. . / RESPONDENT ASSESSEE BY : SHRI ADITYA MUNDADA REVENUE BY : SHRI MUKESH JHA. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE SIX APPEALS FILED BY ASSESSEE ARE EMANATING OUT OF CONSOLIDATED ORDER OF COMMISSIONER OF INCOME-TAX (A)-1, NASHIK DT.19.08.2014 FOR A.YS 2005-06 TO 2010-11. 2. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THOUGH THESE SIX APPEALS OF THE ASSESSEE ARE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (A)-1, NASHIK FOR DIFFERENT ASSESSMENT YEARS BUT SINCE THE ISSUES INVOLVED IN ALL THE ASSESSMENT YEARS ARE IDENTICAL EXCEPT FOR THE ASSESSMENT YEARS AND THE AMOUNTS IN EACH OF THE YEARS, HIS ARGUMENTS WILL ALSO BE COMMON AND THEREFORE ALL THE APPEALS CAN BE / DATE OF HEARING : 16.10.2017 / DATE OF PRONOUNCEMENT: 17 .10.2017 2 HEARD AND DISPOSED OF TOGETHER. LD. D.R. DID NOT OBJECT TO THE AFORESAID SUBMISSION OF LD.A.R. WE THEREFORE FOR THE SAKE OF CONVENIENCE PROCEED TO DISPOSE OF ALL THE APPEALS OF THE ASSESSEE BY A CONSOLIDATED ORDER, BUT HOWEVER, PROCEED WITH NARRATING THE FACTS IN ITA NO.1895/PUN/2014 FOR ASSESSMENT YEAR 2005-06. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 17.09.2010 AND SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE. THEREAFTER A NOTICE U/S 153A WAS ISSUED ON 10.01.2012 AND SERVED ON THE ASSESSEE AND IN RESPONSE TO WHICH ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y.S. 2005-06 TO 2010-11. FOR A.Y. 2005-06 ON 09.02.2012 ASSESSEE DECLARED TOTAL INCOME OF RS.9,00,270/- AND AGRICULTURAL INCOME OF RS.75,000/-. THEREAFTER THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 153A OF THE ACT VIDE ORDER DT.20.03.2013 AND THE TOTAL INCOME FOR A.Y. 2005-06 WAS DETERMINED AT RS.9,00,270/- AND AGRICULTURAL INCOME OF RS.75,000/- BEING THE SAME AS RETURNED INCOME. ON THE AMOUNT OF ADDITIONAL INCOME OF RS.13,830/- WHICH WAS DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME IN A.Y. 2005- 06, AO VIDE ORDER DT.05.08.2013 LEVIED PENALTY OF RS.4,655/- U/S 271 (1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO UPHELD THE ORDER OF AO BY HOLDING AS UNDER : 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDERS, PENALTY ORDERS, APPRAISAL REPORT, SUBMISSIONS OF THE APPELLANT AND THE MATERIAL AVAILABLE ON RECORD. A SEARCH U/S 1 32 OF THE IT . ACT, 1961 WAS CONDUCTED AT THE APPELLANT'S RESIDENTIAL PREMISES ON 3 17/09/2010 . DURING THE COURSE OF SEARCH UNDISCLOSED CASH AND JEWELLERY WERE FOUND, BESIDES VARIOUS DOCUMENTS SHOWING TRANSACTIONS OF UNRECORDED SALE/PURCHASE CONSIDERATION IN RESPECT OF TRADING OF LAND . STATEMENT OF THE APPELLANT WAS RECORDED U/S 132(4) OF THE A C T ON 17/09/2010 WHEREIN H E WAS C O N FRONTED WITH TH E T RANSA C TIO N S RECORDED IN THE SAID VARIOUS SEIZED DOCUMENTS. AS MENTIONED EARLIER THE APPELLANT IS ENGAGED IN PURCHASE , DEVELOPMENT AND SALE OF LAND UNDER THE PROPRIETARY CONCERN VIZ. KIRAN SITARAM CHAVAN. THE APPELLANT'S WIFE SMT . SUVARNA KIRAN CHAVAN AND HIS SON SHRI TEJAS KIRAN CHAVAN ARE ALSO ENGAGED IN SIMILAR BUSINESS ACTIVITIES IN THEIR RESPECTIVE PROPRIETORSHIP CONCERNS. DURING THE COURSE OF RECORDING OF HIS STATEMENT U/S 132(4) , THE APPELLANT WAS CONFRONTED WITH VARIOUS MESSAGES THAT HE HAD RECEIVED ON HIS MOBILE PHONE IN REGARD TO RECEIPT OF CASH IN RESPECT OF VARIOUS LANDS. THE APPELLANT WAS CONFRONTED WITH THE CASH FOUND AT HIS PREMISES DURING THE SEARCH . HE WAS HOWEVER UNABLE TO MATCH PHYSICAL CASH FOUND FROM H I S PREMISES WITH THE CASH BOOKS OF VARIOUS PROPRIETORSHIP CONCERNS OF HIS FAMILY MEMBERS . THE APPELLANT DISCLOSED CASH AMOUNTING TO RS. 11,79,730/- AS HIS ADDITIONAL INCOME FOR A . Y. 2011- 12. THE APPELLANT DURING THE COURSE OF RECORDING OF STATEMENT ALSO ADMITTED IN REPLY TO QUESTION NO . 13 THAT RS.. 10 LACS THAT HE HAD PAID IN CASH FOR PURCHASE OF LAND AT GUT NO.9/1B LOCATED AT MAUJE VILHOLI, BLOCK AND DIST . NASHIK WERE ALSO NOT RECORDED IN HIS REGULAR BOOKS OF ACCOUNT . HE ALSO CONFIRMED THAT CASH PAYMENTS FOUND RECORDED IN LOOSE PAPERS NUMBERS, 4 , 12, 20 , 40, 47 , 55, 63, 71, 79 AND 87 OF BUNDLE NO.2 , ANNEXURE A AMOUNTING TO RS. 15,64,000/ - FOR PURCHASE OF LAND AT GUT NO.91 AT MAUJE NAVE, DHONGUR TAL . DINDORI WERE NOT RECORDED IN HIS REGULAR BOOKS OF ACCOUNT . . THE APPELLANT WAS ALSO CONFRONTED WITH VARIOUS OTHER SEIZED DOCUMENTS DETAILS OF WHICH ARE GIVEN IN HIS STATEMENT DATED 17/09/2010. THE APPELLANT IN REPLY TO QUESTION NO.23 VOLUNTARILY DECLARED RS. 2.50 CRORE ON ACCOUNT OF VARIOUS INCRIMINATING PAPERS/DOCUMENTS AND CASH/JEWELLERY THAT WERE FOUND/SEIZED FROM HIS RESIDENTIAL/BUSINESS PREMISES DURING SEARCH ON 17/09/2010 FOR A . Y . 2011 - 12. THE APPELLANT ALSO STATED THAT ASSESSEE WISE/ENTITY-WISE/YEAR - WISE BIFURCATION OF THE ADDITIONAL INCOME WOULD BE FURNISHED SHORTLY. THE STATEMENT WAS GIVEN WITHOUT ANY PRESSURE/THREAT INTIMIDATION. 6.1 THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A . YS. 2005-06 TO 2010-11 FILED REVISED RETURNS IN RESPONSE TO NOTICE U/S 153A DECLARING - THEREIN HIS UNDISCLOSED INCOME ON THE BASIS OF VARIOUS PAPERS/DOCUMENTS FOUND AND . SEIZED FROM HIS RESIDENTIAL PREMISES DURING SEARCH ON 17/09/2010. THE AO ACCEPTED THE RETURNED INCOME AND MADE THE ASSESSMENTS U/S 143(3) R . W.S. 153A OF THE IT . ACT, 1961 . THE DETAILS OF WHICH ARE ALREADY GIVEN IN PARA 3 OF THE ORDER . THE AO LEVIED PENALTIES U / S 2 7 1(1)(C) READ WITH EXPLANATION 5A ON THE UNDISCLOSED INCOME DECLARED IN THE RETURNS FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT . 6 . 2 THE APPELLANT'S CONTENTION THAT NO PENALTY U / S 271(1)(C) IS LEVIABLE AS THE AO HAD ACCEPTED THE RETURNED INCOME FILED IN RESPONSE TO NOTICE U / S - 153A IS NOT TENABLE ESPECIALLY IN VIEW OF THE ORDER OF THE HON'BLE ITAT, PUNE IN IT . A . NOS. 1389 TO 1395/PN/2012, 1922 TO 1938/PN/2012; 1946 TO 1953/PN/2012 AND 1957 AND 1958/PN/2012 DATED 20/12/2013 IN THE CHHORIYA GROUP OF CASES. THE HON'BLE ITAT PUNE HAS ELABORATELY DISCUSSED THE APPLICABILITY OF SECTION 5A TO SECTION 271(1)(C) WHICH IS AS FOLLOWS: - 'TO OUR MIND, THE CONCLUSION OF THE CIT(A) IS QUITE MISPLACED SINCE HE HAS REFERRED TO CLAUSE (I) OF 4 EXPLANATION 5A ONLY AND HAS TOTALLY GLOSSED-OVER THE PRESCRIPTION OF CLAUSE (II) OF EXPLANATION 5A, WHICH CLEARLY COVERS THE CASE OF THE ASSESSEE. IN THE PRESENT CASE, ADDITIONAL INCOME DECLARED BY THE ASSESSEE IS BASED ON INCRIMINATING DOCUM E NTS IN THE SHAPE OF DIARIES AND LOOSE PAPERS FOUND DURING THE COURSE OF SEARCH , WHICH INDICATED RECEIPT OF UNRECORDED CONSIDERATION FOR SALE OF PLOTS AND ALSO UNRECORDED EXPENDITURE ON PURCHASE/OTHER EXPENSES ON ACQUISITION/DEVELOPMENT OF PLOTS. QUITE CLEARLY, ASSESSEE HAS ADMITTED ADDITIONAL INCOME BASED ON THE INCRIMINATING DOCUM E NTS AND TRANSACTIONS FOUND IN THE COURSE OF SEARCH, A SITUATION WHICH IS C LEARLY COVERED BY CLAUSE (II) OF EXPLANATION SA TO SECTION 271 (1)(C) OF THE ACT. IN OUR VIEW, NON-CONSIDERATION OF CLAUSE(II) OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT HAS LEAD THE CIT(A) TO WRONGLY INFER THAT EXPLANATION 5A IS INAPPLICABLE TO THE ASSESSEE. IN FACT, THE AFORESAID POSITION IS NOT CONTROVERTED EVEN BY THE LEARNED COUNSEL APPEARING FOR THE RESPONDENT-ASSESSEE BEFORE US AT THE TIME OF HEARING. IN OUR CONSIDERED OPINION, THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT DO NOT LEAVE ANY DOUBT TOWARDS UNDERSTANDING THAT THE SAME ARE APPLICABLE IN CASES WHERE A SEARCH HAS BEEN INITIATED U / S 132 OF THE ACT 'ON OR AFTER THE 1 ST DAY OF JUNE, 2007'. THE PHRASEOLOGY OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT MAKES IT CLEAR THAT IT COVERS (A) ANY PRECIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED; AND, (B) ANY PREVIOUS YEAR WHOSE DUE DATE OF FILING OF THE RETURN OF INCOME HAS EXPIRED BUT ASSESSEE HAS NOT FILED THE RETURN TILL THE DATE OF SEARCH, AND, THUS AN ASSESSMENT YEAR FOR WHI C H ASS E SSEE HAS FILED RETURN U / S 139 OF THE ACT PRIOR TO THE SEARCH AND BEFORE 0 1/06/2007 WOULD ALSO BE COVERED, IF OTHER CONDITIONS PRESCRIBED THEREIN ARE SATISFIED. IN OTHER WORDS, EXPLANATION 5A IS AVAILABLE TO THE ASSESSING OFFICER IN ALL CASES, WHERE A SEARCH HAS BEEN INITIATED U/S 132 OF THE ACT ON OR AFTER THE I' DAY OF JUNE, 2007, AND IT IS WRONG ON THE PART OF THE RESPONDENT-ASSESSEE TO CANVASS THAT IT IS EXPLANATION 5 AND NOT EXPLANATION 5A WHICH WOULD APPLY TO YEARS FOR WHICH ASSESSEE HAS FILED RETURNS U / S 139 OF THE ACT PRIOR TO THE SEARCH AND BEFORE 01/06/2007. WE HAVE ALSO PERUSED THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF BRIJ MOHAN (SUPRA) WHICH HAS BEEN RELIED UPON BY THE ASSESSEE FOR THE PROPOSITION THAT FOR LEVYING PENALTY FOR CONCEALMENT, IT IS THE LAW IN FORCE ON THE DATE OF FILING OF RETURN U / S 139 OF THE ACT, WHICH IS RELEVANT AND NOT EXPLANATION 5A, WHICH WAS NOT ON THE STATUTE AS ON THE DATE OF FILING OF RETURN U/S 139 OF THE ACT BEFORE THE DATE OF SEARCH . IN THE CASE BEFORE THE HON'BLE SUPREME COURT, ASSESSEE WAS A PARTNER IN TWO F IRMS, FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 1964-65 ON 24/04/1968 IN WHICH ASSESSEE DISCLOSED ONLY HIS SHARE IN THE PROFITS OF ONE OF THE FIRMS AND DID NOT INCLUDE HIS SHAR E IN THE PROFIT OF THE OTHER. THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS UNDER CLAUSE (III) TO SECTION 271(1) OF THE ACT AS IT STOOD AMENDED BY THE FINANCE ACT, 1968 W.E.F. 01/04/1968. THE PLEA OF THE ASSESSEE WAS THAT THE PENALTY WAS LIABLE TO BE CONSIDERED ON THE BASIS OF THE LAW AS IT STOOD DURING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE INCOME WAS EARNED, WHICH WAS PRIOR TO COMING INTO FORCE OF THE AMENDED CLAUSE(III) TO SECTION 271 (1) INSERTED BY THE FINANCE A CT, 1968. THE HON'BLE SUPREME COURT NEGATED THE PLEA OF THE 5 ASSESSEE AND HELD THAT PENALTY IS IMPOSED ON ACCOUNT OF COMMISSION OF A WRONGFUL ACT, AND PLAINLY IT IS THE LAW OPERATING ON THE DATE ON WHI C H THE WRONGFUL ACT, AND PLAINLY IT IS THE LAW OPERATING ON THE DATE ON WHICH THE WRONGFUL ACT IS COMMITTED WHICH DETERMINES THE PENALTY. ACCORDINGLY, THE HON'BLE SUPREME COURT HELD THAT THE CONCEALMENT OF THE PARTICULARS OF INCOME WAS EFFECTED BY THE ASSESSEE WHILE FILING THE RETURN OF TOTAL INCOME ON 24/04/1968 AND THUS, IT WAS THE AMENDED CLAUSE (III) BROUGHT ON THE STATUTE BY THE FINANCE ACT, 1968 W.E.F. 01/04/1968 WHICH WOULD GOVERN THE CASE. IN OUR CONSIDERED OPINION, THE AFORESAID JUDGMENT OF THE HON'BLE SUPREME COURT CANNOT BE STRAIGHTWAY APPLIED IN THE PRESENT CASE TO SAY THAT THE LAW AS ON THE DATE OF THE FILING OF RETURN U / S 139 OF THE ACT BEFORE THE DATE OF SEARCH IS TO BE APPLIED . THE UNAMBIGUOUS PHRASEOLOGY OF THE EXPLANATION 5A, WHICH WE HAVE ALREADY ELUCIDATED EARLIER, CLEARLY MAKES OUT THAT THE LEGISLATIVE INTENT DEPICTS THAT EXPLANATION 5A IS APPLICABLE WHERE A SEARCH HAS BEEN INITIATED U / S 132 OF THE ACT ON OR AFTER 01/06/2007 AND IT COVERS (A) ANY PRECIOUS YEAR WHICH HAS E NDED BEFORE THE DATE OF SEARCH AND WHERE TH E R E TURN OF INCOME FOR SUCH PREVIOUS YEAR HA S BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED; AND, (B) ANY PREVIOUS YEAR WHOSE DUE DATE OF FILING OF THE RETURN OF INCOME HAS EXPIRED BUT ASSESSEE HAS NOT FILED THE RETURN TILL THE DATE OF SEARCH, IF OTHER CONDITIONS PRESCRIBED THEREIN ARE SATISFIED. THEREFORE, THE AFORESAID PLEA OF THE ASSESSEE, IN OUR VIEW, DOES NOT MERIT INDULGENCE AND IS REJECTED ACCORDINGLY. FOR ALL THE ABOVE REASONS, WE THEREFORE, FIND NO JUSTIFICATION. FOR ALL THE ABOVE REASONS, WE THEREFORE, FIND NO JUSTIFICATION FOR THE CIT(A) TO HOLD THAT THE PROVISIONS OF EXPLANATION 5A TO SECTION 271 (1)(C) OF THE ACT ARE INAPPLICABLE IN THE PRESENT CASE. ON THE CONTRARY, AS THE AFORESAID DISCUSSION SHOWS, THE CASE OF THE ASSESSEE IS LIABLE TO BE EXAMINED IN TERMS OF EXPLANATION 5A TO SECTION 271 (1)(C) OF THE ACT AND ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ASPECT IS SET-ASIDE AND THAT OF THE ASSESSING OFFIC E R IS RESTORED'. FURTHER, THE HON ' BLE ITAT , PUNE WHILE CON C LUDING HAS STATED THAT PROVISIONS OF EXPLANATION 5A TO S E CTION 2 71 (1)(C) OF THE ACT ARE APPLICABLE IN THE PRESENT CASE, THE MATTER IS REMANDED BACK TO THE FILE OF THE CIT(A) FOR CONSIDERATION OF OTHER PLEATS) THAT MAY BE RAI S ED BY THE ASSESSE E IN SUPPORT OF ITS STAND AGAINST THE LEVY OF PENALTY'. SINCE IT IS AN UNDISPUTED FACT THAT THE APPELLANT FURNISHED INACCURATE PARTICULARS IN THE RETURNS OF INCOME FILED U / S 139 AND THEREBY CONCEALED INCOME AND EVADED TAX, APPELLANT'S CASE IS A FIT CASE FOR LEVY OF PENALTY U/S 27L(1)(C) OF THE ACT . IN VIEW OF THE ABOVE, THE A O HAS CORRECTLY LEVIED PENALTY U / S 2 71(1)(C) R.W . EXPLANATION 5A ATTACHED TO SECTION 271(1)(C) OF THE ACT . THE APPELLANT'S ANOTHER CONTENTION THAT IT HAS VOLUNTARILY MADE DISCLOSURES TO BUY 'PEACE OF MIND' AND TO 'AVOID LITIGATION' IS ALSO NOT TENABLE IN THE LIGHT OF TH E SEI Z UR E OF VARIOU S PAPERS/DOCUMENTS GIVING DETAILS OF HIS UNACCOUNTED SALE/PURCHASE TRANSACTIONS IN RESPECT OF SALE/PURCHASE CONSIDERATION FOR LAND. MOREOVER, THE HON ' BLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD. HAS HELD THAT WHILE LEVYING PENALTY U/S 27L(1)(C) OF THE ACT, THE AO SHALL NOT BE CARRIED AWAY BY THE BELIEF OF THE ASSESSEE 'VOLUNTARY DISCLOSURE', 'BUY PEACE', 'AVOID LITIGATION', 'AMICABLE SETTLEMENT', ETC . TO EXPLAIN AWAY ITS CONDUCT . IN THE FACTS 6 AND THE CIRCUMSTANCES GIVEN ABOVE, I AM OF THE CONSIDERED VIEW THAT AO WAS JUSTIFIED IN LEVYING PENALTIES U/S 271(1)(C) R.W. EXPLANATION 5A . THE VARIOUS CASE LAWS CITED BY THE APPELLANT DO NOT SUPPORT HIM AS THEY ARE DISTINGUISHABLE ON FACTS VIS-A-VIS FACTS OF THE PRESENT CASE. THE PENALTIES OF RS. 4,655/-, RS. 1,34,640/-, RS. 2,99,641/-, RS. 13,39,932/- , RS. 13,19 , 425/- AND RS. 9,36,130/- FOR A . YS. 2005- 06 , 2006-07, 2007-08 , 2008 - 09, 2009-10 AND 2010-11 RESPE C TIVELY ARE, THEREFORE , CONFIRMED. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING LEVY OF PENALTY U/S 271(1)(C) AMOUNTING TO RS.4,655/-. 2. THE APPELLANT PRAYS THAT : I) PENALTY OF RS.4,655/- LEVIED U/S 271(1)(C) MAY BE DELETED; II) RECOVERY OF DEMAND IN DISPUTE MAY BE STAYED; III) PERSONAL HEARING MAY BE GRANTED; IV) ANY OTHER RELIEF YOUR HONOURS MAY DEEM FIT. SIMILAR GROUNDS HAVE BEEN RAISED BY ASSESSEE IN A.Y. 2006-07 TO A.Y. 2010-11. 4. BEFORE US, LD.A.R. SUBMITTED THAT IN THE RETURN OF INCOME FILED U/S 153A OF THE ACT, THE ADDITIONAL INCOME DISCLOSED BY THE ASSESSEE WAS ACCEPTED BY AO. HE SUBMITTED THAT SINCE THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME HAS BEEN ACCEPTED IN TOTO, THERE WAS NO QUESTION OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND THEREFORE NO QUESTION OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. HE FURTHER SUBMITTED THAT WHILE PASSING THE ASSESSMENT ORDER AO HAS NOT RECORDED ANY SATISFACTION FOR LEVY OF PENALTY BUT WHILE PASSING THE PENALTY ORDER U/S 271(1)(C) OF THE ACT, THE AO HAS LEVIED PENALTY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HE, RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINCHERY (ITA NO.1154 OF 2014 ORDER DT.05.01.2017), SUBMITTED THAT WHEN INITIATION OF PENALTY IS FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND PENALTY WAS LEVIED ON CONCEALMENT OF INCOME, THEN IN THE ABSENCE OF PROPER SHOW CAUSE 7 NOTICE TO ASSESSEE, PENALTY U/S 271(1)(C) CANNOT BE LEVIED. HE THEREFORE SUBMITTED THAT PENALTY LEVIED BY AO BE DELETED. LD.D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN THE PRESENT CASE, PENALTY HAS BEEN LEVIED ON THE ADDITIONAL INCOME OF RS.13,830/- DISCLOSED IN THE RETURN OF INCOME AND ACCEPTED IN TOTO BY THE REVENUE. THE PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT REVEALS THAT AO HAD INITIATED PENALTY PROCEEDING BUT NO SATISFACTION WAS RECORDED FOR ITS INITIATION. THEREAFTER IN THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT, AO HELD THAT ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED THE INCOME TO THE EXTENT OF RS.13,830/-. IT IS A SETTLED LAW THAT WHILE LEVYING PENALTY FOR CONCEALMENT, THE AO HAS TO RECORD SATISFACTION AND THEREAFTER COME TO A FINDING IN RESPECT OF ONE OF THE LIMBS, WHICH IS SPECIFIED UNDER SECTION 271(1)(C) OF THE ACT. THE FIRST STEP IS TO RECORD SATISFACTION WHILE COMPLETING THE ASSESSMENT AS TO WHETHER THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED ITS INCOME. THEREAFTER, NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT IS TO BE ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER THEREAFTER HAS TO LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR NON-SATISFACTION OF EITHER OF THE LIMBS. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER HAS TO COME TO A FINDING AS TO WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME OR HAS CONCEALED THE INCOME. THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 WITH OTHER ITA NOS.953 OF 2014, 1097 OF 2014 AND 1226 OF 2014, VIDE JUDGMENT 8 DATED 05.01.2017 HELD THAT WHERE INITIATION OF PENALTY IS ONE LIMB AND THE LEVY OF PENALTY IS ON OTHER LIMB, THEN IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY. 6. IN THE PRESENT CASE, AS NOTED HEREINABOVE, IT IS SEEN THAT THE AO HAS NOT RECORDED ANY SATISFACTION AND FURTHER LEVIED PENALTY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND ALSO FOR CONCEALMENT OF INCOME. CONSIDERING THE AFORESAID FACTS IN THE LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SOMSON PERINCHERY (SUPRA), WE ARE OF THE VIEW THAT IN THE PRESENT CASE THE BASIC CONDITION FOR LEVY OF PENALTY HAS NOT BEEN FULFILLED AND THAT THE PENALTY ORDER SUFFERS FROM NON-EXERCISING OF JURISDICTION POWER OF AO AND THEREFORE PENALTY ORDER CANNOT BE UPHELD. WE ACCORDINGLY SET ASIDE THE PENALTY ORDER PASSED BY AO. THUS, THE GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.1895/PUN/2014 IS ALLOWED. 8. AS FAR AS THE GROUNDS RAISED IN APPEALS IN ITA NOS.1896/PUN/2014 TO 1900/PUN/2014 FOR A.YS. 2006-07 TO 2010-11 ARE CONCERNED IN VIEW OF THE SUBMISSION OF BOTH THE PARTIES THAT THE FACTS OF THE CASE IN ALL THESE YEARS BEING IDENTICAL TO THE FACTS AND ISSUE OF THE CASE IN ITA NO.1895/PUN/2014 FOR A.Y. 2005- 06, WE FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.1895/PUN/2014 FOR A.Y. 2005-06 AND FOR SIMILAR REASONS, ALLOW THE GROUNDS OF APPEAL OF ASSESSEE. THUS, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 9 9. IN THE RESULT, ALL THE FIVE APPEALS OF THE ASSESSEE ARE ALLOWED. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON 17 TH OCTOBER, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 17 TH OCTOBER, 2017. YAMINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT (A)-1, NASHIK. 4. CIT (CENTRAL), NAGPUR. 5. , , / DR, ITAT, B PUNE; 6. [ / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE