Nanasaheb ShankarraoGaikwad, Pune V. Deputy Commissioner of Income-tax,

ITA 2095/PUN/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7229 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-12-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU SHEKHAR
• Assessee Lawyers: HARI KRISHAN
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Opportunity of being heard; Principle of natural justice; Retrospective amendment; Initiation of penalty proceedings; Documents seized
• Section: 69C; 143(3); 153A; 69; 27; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2090 /P U N/20 1 3 / ASSESSMENT YEAR : 20 0 9 - 1 0 GAIKWAD ASSOCIATES, S.NO.50, KIRTI NAGAR, NR. HIGHWAY RESIDENCY, WADGAON BK, PUNE 411041 . / APPELLANT PAN: AA FFG8549P VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2( 1 ), PUNE . / RESPONDENT . / ITA NO S . 2095 TO 2098 /P U N/20 13 / ASSESSMENT YEAR S : 20 04 - 05 TO 2007 - 08 NANASAHEB SHANKARRAO GAIKWAD, S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 . / APPELLANT PAN: AAVPG2849L VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . / RESPONDENT ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 2 . / ITA NO S . 2091 TO 2094 /P U N/20 13 / ASSESSMENT YEAR S : 20 05 - 06 TO 2008 - 09 KEDAR NANASAHEB GAIKW AD, S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 . / APPELLANT PAN: AHOPG0632P VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . / RESPONDENT . / ITA NO. 2 1 00 TO 2103 /P U N/20 13 / A SSESSMENT YEAR S : 20 0 4 - 05 TO 2007 - 08 MRS. NANDA NANASAHEB GAIKWAD, S.NO. 126/2, BANER ROAD, AUNDH, PUNE 4110 07 . / APPELLANT PAN: ADEPG5065A VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . / RESPONDENT . / ITA NO. 2099 /P U N/20 13 / ASSESSMENT YEAR : 20 08 - 09 NANASAHEB SHANKARRAO GAIKWAD (HUF), S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 . / APPELLANT PAN: AACHG5734M VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . / RESPONDENT / APPELLANT BY : S HRI HARI KRISHA N / RESPONDENT BY : S HRI SUDHANSHU SHEKHAR / DATE OF HEARING : 29 . 1 2 .201 6 / DATE OF PRONOUN CEMENT: 20 . 0 1 .201 7 ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 3 / ORDER PER SUSHMA CHOWLA, J M : TH IS BUNCH OF APPEALS FILED BY DIFFERENT ASSESSEE ARE AGAINST RESPECTIVE ORDER S OF CIT (A) - CENTRAL , PUNE , ALL DATED 22 . 08 .20 1 3 RELATING TO RESPECTIVE ASSESSMENT YEAR S 20 0 4 - 0 5 TO 20 08 - 0 9 A GAINST PENALTY LEVIED UNDER SECTION 271(1)( C ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 2 . ALL THE SE APPEALS RELATING TO CONNECTED ASSESSEE ON IDENTICAL ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE O F CONVENIENCE. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN VIEW OF RULE 29 OF ITAT RULES, ALL THE ASSESSEE IN THE APPEALS LISTED FOR HEARING WANT TO PLEAD THAT THE SATISFACTION RECORDED BY THE ASSESSING OFFICER WHILE INI TIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IS NOT CORRECT SINCE THE PENALTY PROCEEDINGS HAVE BEEN INITIATED FOR BOTH THE LIMBS OF SECTION I.E. FOR CONCEALMENT OF INCOME AND FOR FURNISHING INACCURATE PARTICULARS OF INCOME. NANASAHEB S HANKARRAO GAIKWAD NANASAHEB S HANKARRAO GAIKWAD ITA NOS.2095/PUN/2013 TO 2098/PUN/2013 ASSESSMENT YEARS : 2004 - 05 TO 2 007 - 08 4 . THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 5 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD 5 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD POINTED OUT THAT THE ASSESSEE HAD DECLARED ADDITIONAL INCOME PURSUANT TO THE ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 4 SEARCH ON THE PREMISES OF ASSESSEE WHICH WAS ADDED AS ADDITIONAL INCOME IN THE RETURN OF INCOME AND THEREAFTER, PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED. THE FIRST OBJECTION RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS AS TO WHETHER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT IS ATTRACTED. THE SECOND LIMB OF OBJECTION OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS FAILED TO RECORD SATISFACTION AS TO WHETHER THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AND IN THE ABSENCE OF THE SAME, THERE IS NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN VIEW OF RULE 29 OF ITAT RULES, THE ASSESSEE CAN RAISE THE SAID JURISDICTIONAL ISSUE DURING THE COURSE OF HEARING. THE LEARNED AUTHORIZED REPRES ENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT EVEN IN THE NOTICE ISSUED UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT, THERE IS NO STRIKING OF F OF EITHER OF THE LIMBS. IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELI ANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN KANHAIYALAL D. JAIN VS. ACIT IN ITA NOS.1201 TO 1205/PN/2014, RELATING TO ASSESSMENT YEARS 2003 - 04 TO 2007 - 08 , DATED 30.11.2016 . 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT LOOKING AT THE PROVISIONS OF SECTION 271(1)(1B) OF THE ACT, WHERE DIRECTION HAS BEEN GIVEN BY THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT; HENCE SATISFACTION HAS BEEN RECORDED. THU S, THERE IS NO MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD. HE FURTHER PLACED RELIANCE ON THE ORDERS OF ASSESSING OFFICER AND CIT(A). ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 5 7 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, SEARCH UNDER SEC TION 132 OF THE ACT WAS CONDUCTED ON THE RESIDENCE AND BUSINESS PREMISES OF ASSESSEE AT AUNDH, PUNE ON 28.04.2009 . THE PROCEEDINGS AGAINST THE ASSESSEE WERE INITIATED UNDER SECTION 153A OF THE ACT AND IN RESPONSE, THE ASSESSEE FILED RETURNS OF INCOME FOR THE RESPECTIVE YEARS AND OFFERED ADDITIONAL INCOME. DURING THE COURSE OF SEARCH, THE ASSESSEE OFFERED ADDITIONAL INCOME IN RESPECT OF VARIOUS ASSESSMENT YEARS . THE ASSESSING OFFICER ACCEPTED THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE RETURNS OF INCOME AND WAS OF THE VIEW THAT SINCE THE ADDITIONAL INCOME WAS OFFERED ONLY AS A RESULT OF SEARCH ACTION IN HIS CASE, PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE BEING SEPARATELY INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME A ND CONCEALING THE INCOME . THEREAFTER, HE DIRECTS THAT NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT BE INITIATED. SUCH WAS THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT IN ASSESSMENT YEAR 200 4 - 0 5 . SIMILAR OBSERVATIONS HAVE BEEN MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEARS 200 5 - 0 6 TO 20 07 - 08 . THE CASE OF THE ASSESSEE BEFORE US IS IN THE ABSENCE OF SATISFACTION BEING RECORDED AS TO WHICH LIMB OF SECTION 271(1)(C) OF THE ACT IS SATISFIED, THEN SUCH SATISFACTION RECOR DED BY THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS BOTH FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME AGAINST THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IS INCORRECT. IT IS FURTHER CONTENDED THAT WHERE THE ASSES SEE IS NOT AWARE OF EXACT CHARGE AGAINST HIM, THE AMBIGUITY IN THE NOTICE ISSUED, THEREAFTER WITHOUT STRIKING OFF OF INAPPLICABLE PORTION, IT PREJUDICES THE RIGHT OF REASONABLE OPPORTUNITY ALLOWED TO THE ASSESSEE TO MEET THE CASE OF REVENUE, IN THE ABSENCE OF EXACT CHARGE HE HAD TO FACE. IN THE FACTS OF THE PRESENT CASE, WHERE THE ADDITIONAL INCOME WAS ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 6 OFFERED PURSUANT TO SEARCH, IT WAS CLEAR - CUT CASE OF CONCEALMENT OF INCOME AND THE ASSESSING OFFICER SHOULD HAVE RECORDED SATISFACTION ACCORDINGLY AND ISSUE D NOTICE. THE ASSESSING OFFICER HAD LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT WHICH WAS CONFIRMED BY THE CIT(A), AGAINST WHICH THE ASSESSEE IS IN APPEAL. 8 . WE FIND THAT SIMILAR ISSUE OF RECORDING OF SATISFACTION BY THE ASSESSING OFFICER BEFORE I SSUE OF NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT AROSE BEFORE THE TRIBUNAL IN KANHAIYALAL D. JAIN VS. ACIT (SUPRA), WHEREIN IT WAS HELD AS UNDER: - 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESEN T BUNCH OF APPEALS IS JURISDICTIONAL ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE REQUIREMENT OF SECTION IS THAT WHERE THE ASSESSING OFFICER OR THE COMMISSIONER OF APPEALS OR THE PRINCIPAL COMMISSIONER OR COMMISSIONER, IN THE COURSE OF ANY PROCEEDINGS UNDER THE ACT, IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, THEN HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY THE AMOUNTS AS SPECIFIED IN SUB - CLA USE (III) WHICH WOULD BE IN ADDITION TO TAX, IF ANY, PAYABLE BY THE SAID PERSON. THE SECTION THUS REQUIRES THE CONCERNED OFFICER TO RECORD SATISFACTION IN THE COURSE OF ANY PROCEEDINGS UNDER THE ACT, THAT THE PERSON HAS CONCEALED THE OF ANY PROCEEDINGS UNDER THE ACT, THAT THE PERSON HAS CONCEALED THE PARTICULARS OF HIS IN COME OR FURNISHED INACCURATE PARTICULARS OF HIS INCOME. AFTER RECORDING THE SATISFACTION, DURING THE COURSE OF PENALTY PROCEEDINGS ALSO, THE CONCERNED OFFICER HAS COME TO A FINDING THAT AS TO WHETHER THE PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND THEREAFTER, LEVY THE PENALTY ACCORDINGLY. THE WORD USED BETWEEN THE TWO ACTS I.E. CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME IS OR. SO THE PENALTY LEVIED BY THE CONCERNED OFFICER IS ON SATISFACTION OF ANY OF THE LIMBS AND NOT THE SATISFACTION OF BOTH THE LIMBS. WHERE THE ASSESSEE HAD CONCEALED THE PARTICULARS OF INCOME IN PARTICULAR CIRCUMSTANCES, THEN THE ASSESSING OFFICER MAY RECORD SATISFACTION T O THAT EFFECT AND INITIATE PENALTY PROCEEDINGS AND THEREAFTER ON FIXATION OF CHARGE, LEVY THE PENALTY FOR SUCH ACT OF CONCEALING THE PARTICULARS OF INCOME. SIMILARLY, IN CASES WHERE THE ASSESSEE CONCERNED HAD FURNISHED INACCURATE PARTICULARS OF SUCH INCOM E, THEN SIMILAR EXERCISE HAS TO BE CARRIED OUT BY THE CONCERNED OFFICER. 14. THE FIRST STAGE OF INVOCATION OF PROVISIONS OF SECTION 271(1)(C) OF THE ACT IS THE SATISFACTION TO BE RECORDED BY THE ASSESSING OFFICER, WHICH ADMITTEDLY, HAS TO BE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SO, WHERE THE ASSESSMENT PROCEEDINGS ARE PENDING, THEN THE ASSESSING OFFICER HAS TO APPLY HIS MIND AND ON BEING SATISFIED, HE HAS TO GIVE A FINDING THAT THE ASSESSEE BEFORE HIM HAS EITHER CONCEALED THE PARTICULARS OF INCO ME OR FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE ISSUE BEFORE HIM. THEREAFTER, THE NOTICE SHOULD BE ISSUED TO SUCH PERSON BY THE CONCERNED OFFICER, WHEREIN IT SHOULD BE CLEAR THAT THE ASSESSEE HAS TO JUSTIFY ITS CASE EITHER FOR CONCEALME NT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THERE MAY BE CASES WHERE THERE IS ISSUE OF BOTH CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME, BASED ON THE NATURE OF ADDITIONS, THEN IN SUCH CASES, SATISFACTION AN D NOTICE THEREON SHOULD ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 7 SPECIFY EXACT CHARGE AGAINST THE ASSESSEE. THE CHARGE HAS TO BE FURTHER SPECIFIED WHILE COMPLETING PENALTY PROCEEDINGS AND THE ASSESSING OFFICER HAS TO COME TO A CONCLUSION AS TO WHETHER IT IS CASE OF CONCEALMENT OF INCOME OR FURNI SHING OF INACCURATE PARTICULARS OF INCOME. THE QUESTION WHICH FURTHER ARISES WHERE THE SATISFACTION RECORDED BY THE ASSESSING OFFICER AND THE NOTICE ISSUED THEREAFTER IS WITHOUT APPLICATION OF MIND, THEN CAN THE SUBSEQUENT ORDER PASSED LEVYING PENALTY BE HELD TO BE VALID?. THE HONBLE KARNATAKA HIGH COURT IN CIT & ANR. VS. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) HAD DEALT UPON THE ISSUE OF NOTICE UNDER SECTION 274 OF THE ACT FOR THE PURPOSE OF LEVYING PENALTY FOR CONCEALMENT AND OBSERVED AS UNDER: - 59. AS THE PROVISION STANDS, THE PENALTY PROCEEDINGS CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGARDING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY P ROCEEDINGS 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 NOT BE DIS CERNED FROM THE SAID ORDER AND IF IT IS A CASE OF RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION - 1 OR IN EXPLANATION - 1(B), THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NATURE OF CIVIL LIABILITY, IN FACT, IT IS PENAL IN NATURE. IN EITHER EVENT, THE PER SON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR THAT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL O PPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(1)(C) DO NOT EXIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED FARM WHERE ALL THE GROUND MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY GROUND MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INITIAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HEL D TO BE STRICTLY CONSTRUED, NOTICE ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY OTHERWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE NOTICE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY CO ULD BE IMPOSED ON THE ASSESSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES, THAT IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. NO DOUBT, THE FACTS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOME CASES THERE MAY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES THE INITIATION OF THE PENALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE OFFENCES. BUT DRAWING UP PENALTY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSEE GUILTY OF ANOTHER OFFENCE OR FIND ING 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 QUA NON FOR INITIATION OR PROCEEDINGS, THE PENALTY PROCEEDI NGS SHOULD BE CONFINED ONLY TO THOSE GROUNDS AND THE SAID GROUNDS HAVE TO BE SPECIFICALLY STATED SO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MEET THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRIES TO SUBSTANTIATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOULD BE IMPOSED ONLY ON THE GROUNDS ON WHICH HE IS CALLED UPON TO ANSWER. IT IS NOT OPEN TO THE AUTHORITY, AT THE TIME OF IMPOSING PENALTY TO IMPOSE PENALTY ON THE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOU GH THE INITIATION OF PENALTY PROCEEDINGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PENALTY WOULD OFFEND PRINCIPLES ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 8 OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND, THE PENALTY SHOULD ALSO BE IMPOSED ON THE SAME GROUND. WHERE THE BASIS OF THE INITIATION OF PENALTY PROCEEDINGS IS NOT IDENTICAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED, THE IMPOSITION OF PENALTY IS NOT VALID. THE VALIDITY OF THE ORDER OF PENALTY MUST BE DETERMINED WITH REFERENCE T O THE INFORMATION, FACTS AND MATERIALS IN 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 VALIDATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS N OT SUSTAINABLE. 61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE ACT TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COURSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF TOTAL INCOME UNDER C LAUSE (C). CONCEALMENT, FURNISHING INACCURATE PARTICULARS OF INCOME ARE DIFFERENT. THUS 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 PAI REPORTED IN [2007] 292 ITR 11 (SC) 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 MANU ENGINEERING WORKS REPORTED IN [1980] 122 ITR 306 (GUJ) AND THE DELHI HIGH COURT IN THE CASE OF CIT V. VIRGO MARKETING P. LTD. REPORTED IN [2008] 171 TAXMAN 156, HAS HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POS ITION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFORE, WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE THE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE STANDARD PROFORMA WITHOUT INACCURATE PARTICULARS OF INCOME. THE STANDARD PROFORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON - APPLICATION OF MIND . 15. THE HONBLE KARNATAKA HIGH COURT HAS LAID DOWN THE PROPOSITION THAT THE ASSESSING OFFICER IS TO BE SATISFIED IN THE COURSE OF PROC EEDINGS THAT THERE IS EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME UNDER CLAUSE (C) TO SECTION 271(1) OF THE ACT. IT HAS BEEN CATEGORICALLY HELD THAT CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOM E ARE DIFFERENT. THE HONBLE HIGH COURT HAS THUS, LAID DOWN THAT THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO CONCLUSION THAT WHETHER IT IS CASE OF CONCEALMENT OF INCOME OR CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE RELIANCE IN THIS REGARD WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN T. ASHOK PAI VS. CIT (2007) 292 ITR 11 (SC), WHEREIN AT PAGE 19 IT WAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTA TION. APPLYING THE SAID PROPOSITION, IT WAS HELD THAT WHERE THE ASSESSING OFFICER PROPOSES TO INVOKE THE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILARLY, FOR FURNISHING INACCURATE PARTICULARS OF INCOME, THE STANDAR D PROFORMA WITHOUT STRIKING OF RELEVANT CLAUSES, AS PER THE HONBLE HIGH COURT WOULD LEAD TO INFERENCE AS TO NON - APPLICATION OF MIND. 16. FURTHER, THE HONBLE KARNATAKA HIGH COURT IN CIT VS. SSAS EMERALD MEADOWS (SUPRA) HAS DISMISSED THE APPEAL OF REVE NUE, WHERE THE TRIBUNAL HAD ALLOWED THE APPEAL OF ASSESSEE HOLDING THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT TO BE BAD IN LAW AS IT DOES NOT SATISFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT UNDER WHICH IT HAS BEEN INITIATED THE HONBLE HIGH COURT HAD RELIED ON DECISION OF DIVISION BENCH OF THE COURT RENDERED IN CIT & ANR. VS. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA). THE HONBLE SUPREME COURT IN CIT VS. SSAS EMERALD MEADOWS (SUPRA) HAS DISMISSED THE SPECIAL LEAVE PETITION. ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 9 17. THE PUNE BENCH OF TRIBUNAL IN M/S. SAI VENKATA CONSTRUCTION VS. ADDL. CIT (SUPRA) AND IN SANJOG TARACHAND LODHA VS. ITO (SUPRA) HAVE APPLIED THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT (SUPRA) AND HELD THAT WH ERE THERE IS NO STRIKING OFF OF EITHER OF LIMBS, THEN NOTICE ISSUED UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT WAS INVALID AND SUBSEQUENT PENALTY PROCEEDINGS WERE HELD TO BE VITIATED. 18. THE MUMBAI BENCH OF TRIBUNAL IN SANGHAVI SAVLA COMMODITY BROKE RS P. LTD. VS. ACIT IN ITA NO.1746/MUM/2011, RELATING TO ASSESSMENT YEAR 2007 - 08, ORDER DATED 22.12.2015 WHILE DECIDING SIMILAR ISSUE, WHEREIN THE ASSESSING OFFICER HAD INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF PARTICULARS OF INCOME WITHOUT STRIKING INAPPROPRIATE WORDS OR ANY PARTS OF NOTICE AND PROCEEDED TO LEVY PENALTY FOR CONCEALMENT, THEN FOLLOWING THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT, THE TRIBUNAL HELD THAT NOTICE ISSUED FOR INITIATING PENALTY PROCEEDINGS WERE INVALID AND CONS EQUENTLY PENALTY PROCEEDINGS WERE INVALID. 19. SIMILAR PROPOSITION HAS BEEN LAID DOWN BY KOLKATA BENCH OF TRIBUNAL IN SHRI DEEPAK KUMAR PATWARI VS. ACIT IN ITA NOS.616 TO 618/KOL/2013, RELATING TO ASSESSMENT YEARS 2007 - 08 TO 2009 - 10, ORDER DATED 03.02.2 016 AND IT HAS BEEN FURTHER HELD THAT THE PROVISIONS OF SECTION 292B OF THE ACT CANNOT CURE THE BASIC DEFECT IN ASSUMPTION OF JURISDICTION AND COULD ONLY CURE THE MISTAKE, DEFECT OR OMISSION IN THE RETURN OF INCOME, ASSESSMENT, NOTICE OR THE PROCEEDINGS. THE TRIBUNAL FURTHER HELD THAT SHOW CAUSE NOTICE AND THE REASONS MENTIONED IN THE SHOW CAUSE NOTICE WERE PART OF PROCESS OF NATURAL JUSTICE AND THE DEFECT IN SUCH NOTICE COULD NOT BE OVERLOOKED. SIMILAR PROPOSITION HAS FURTHER BEEN LAID DOWN IN OTHER DECI SIONS OF VARIOUS BENCHES OF TRIBUNAL WHICH HAVE BEEN RELIED UPON BY THE ASSESSEE BEFORE US. 20. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED 20. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED HEAVY RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SMT. KAUSHAL YA (SUPRA). IN THE FACTS OF THE CASE BEFORE THE HONBLE BOMBAY HIGH COURT, THE HONBLE HIGH COURT QUASHED THE PENALTY LEVIED FOR ASSESSMENT YEAR 1967 - 68 AS THE SAME WAS IMPOSED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN RESPE CT OF OTHER TWO YEARS WHERE THERE WAS NON - STRIKING OF INACCURATE PORTION, THE HONBLE HIGH COURT HELD THAT THE SAME WOULD NOT INVALIDATE THE NOTICE ISSUED UNDER SECTION 274 OF THE ACT. IT WAS FURTHER HELD THAT THE ASSESSMENT ORDERS WERE ALSO MADE AND REAS ONS FOR ISSUING NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT WERE RECORDED BY THE ASSESSING OFFICER AND SINCE THE ASSESSEE FULLY KNEW IN DETAIL THE EXACT CHARGE OF DEPARTMENT AGAINST HIM, IT COULD NOT BE SAID THAT EITHER THERE WAS NON - APPLICATION O F MIND BY THE ITO OR SO - CALLED AMBIGUITY WORDING IN THE NOTICE IMPAIRED OR PREJUDICED THE RIGHT OF ASSESSEE OF REASONABLE OPPORTUNITY OF BEING HEARD. THE JURISDICTIONAL HIGH COURT DELIBERATED UPON THE PROVISIONS OF SECTION 274 OF THE ACT WHICH CONTAINED P RINCIPLE OF NATURAL JUSTICE OF THE ASSESSEE BEING HEARD BEFORE LEVYING PENALTY. IT ALSO HELD THAT MERE MISTAKE IN THE LANGUAGE USED OR MERE NON - STRIKING OF INAPPROPRIATE PORTION COULD NOT ITSELF BE INVALIDATED THE NOTICE. IT WAS HELD THAT THE ENTIRE FACT UAL BACKGROUND WOULD FALL FOR CONSIDERATION IN THE MATTER AND NO ONE ASPECT WOULD BE DECISIVE. 21. IN RESPECT OF ASSESSMENT YEAR 1967 - 68, THE HONBLE HIGH COURT IN CIT VS. SMT. KAUSHALYA (SUPRA) ACKNOWLEDGED THAT THERE COULD EXIST A CASE WHERE VAGUENESS AND AMBIGUITY IN THE NOTICE COULD DEMONSTRATE NON - APPLICATION OF MIND BY THE AUTHORITY AND / OR ULTIMATE PREJUDICE TO THE RIGHT OF OPPORTUNITY OF HEARING CONTEMPLATED UNDER SECTION 274 OF THE ACT. THE SHOW CAUSE NOTICE FOR ASSESSMENT YEAR 1967 - 68 WAS ISS UED EVEN BEFORE THE ASSESSMENT ORDER WAS MADE AND WHERE THE ASSESSEE HAD NO KNOWLEDGE OF EXACT CHARGE OF DEPARTMENT AGAINST HIM AS IN THE NOTICE NOT ONLY THERE WAS USE OF WORD OR ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 10 BETWEEN THE GROUP OF CASES BUT THERE WAS USE OF WORD DELIBERATELY ALSO. THE HONBLE HIGH COURT HELD THAT NOTICE CLEARLY DEMONSTRATED NON - APPLICATION OF MIND ON THE PART OF ASSESSING OFFICER. THE VAGUENESS AND AMBIGUITY IN THE NOTICE HAD ALSO PREJUDICED THE RIGHT OF REASONABLE OPPORTUNITY TO THE ASSESSEE SINCE HE DID NOT KNOW OF EXACT CHARGES HE HAD TO FACE. IN THIS BACKGROUND, QUASHING OF PENALTY PROCEEDINGS FOR ASSESSMENT YEAR 1967 - 68 WAS HELD TO BE JUSTIFIED. APPLYING THE SAID PRINCIPLE LAID DOWN BY THE JURISDICTIONAL HIGH COURT, APPLICATION OF MIND BEFORE ISSUING THE NOTI CE UNDER SECTION 274 OF THE ACT HAS TO BE CONSIDERED. THE HONBLE HIGH COURT CLEARLY HELD THAT WHERE THERE IS VAGUENESS AND AMBIGUITY IN THE NOTICE ISSUED WHICH COULD DEMONSTRATE NON - APPLICATION OF MIND BY THE AUTHORITY WHICH IN TURN, WOULD ULTIMATELY PRE JUDICE THE RIGHT OF OPPORTUNITY OF HEARING OF THE ASSESSEE AS CONTEMPLATED UNDER SECTION 274 OF THE ACT, THEN SUCH NOTICE IS INVALID. 22. NOW, COMING TO THE FACTS OF THE CASE BEFORE US, WHEREIN SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT ON CHHORIYA GROUP OF CONCERNS ON 22.08.2008 AND DECLARATION OF RS.11.44 CRORES WAS MADE IN THE HANDS OF WHOLE GROUP FOR VARIOUS YEARS. CONSEQUENT TO THE NOTICES ISSUED UNDER SECTION 153A OF THE ACT FOR VARIOUS YEARS, DIFFERENT ENTITIES FILED THE RETURN OF INCOME FOR THE RESPECTIVE YEARS AND CUMULATIVELY FOR RS.13.99 CRORES AS ADDITIONAL INCOME. THE INCOME WAS DECLARED ON ACCOUNT OF ON - MONEY ON SALE OF PLOTS, WHICH WAS DETECTED FROM THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH. ADMITTEDLY, EXPLANATION 5A TO SECTI ON 271(1)(C) OF THE ACT IS ATTRACTED IN SUCH CASES. HOWEVER, THE CASE OF ASSESSEE BEFORE US IS THAT THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT PROCEEDINGS HAD TO BE SATISFIED THAT THE ASSESSEE HAD EITHER CONCEALED THE INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME AND IS LIABLE TO LEVY OF PENALTY UNDER SECTION 271(1)(C) R.W.S. EXPLANATION 5A OF THE ACT. THE NOTICE IS TO BE ISSUED TO THE ASSESSEE UNDER SECTION 274 OF THE ACT. BEFORE ISSUING SUCH NOTICE, SATISFACTION HAS TO COME OUT FROM T HE PROCEEDINGS GOING ON BEFORE THE ASSESSING OFFICER. THE COME OUT FROM T HE PROCEEDINGS GOING ON BEFORE THE ASSESSING OFFICER. THE PERUSAL OF ASSESSMENT ORDER PASSED IN THE PRESENT CASE REFLECTS THAT THE ASSESSING OFFICER WHILE INITIATING PROCEEDINGS HAS RECORDED SATISFACTION AS TO THE ASSESSEE HAS FURNISHED INACCURATE PARTICU LARS OF INCOME AND HAS ALSO CONCEALED THE INCOME. THE ONLY SOURCE OF ADDITION IN THE HANDS OF ASSESSEE IS ADDITIONAL INCOME OFFERED BY THE ASSESSEE PURSUANT TO SEARCH OPERATIONS. IN SUCH CIRCUMSTANCES, IT IS CATEGORICALLY A CASE OF CONCEALMENT. HOWEVER, THE ASSESSING OFFICER REFERS TO BOTH THE LIMBS OF SECTION 271(1)(C) OF THE ACT AND THE SATISFACTION RECORDED IN THIS CASE SUFFERS FROM INFIRMITY. FURTHER, EVEN IN THE NOTICE ISSUED UNDER SECTION 274 OF THE ACT, IRRELEVANT PART HAS NOT BEEN STRUCK OFF. W HILE COMPLETING PENALTY PROCEEDINGS ALSO, THE ASSESSING OFFICER MAKES REFERENCE TO BOTH THE LIMBS I.E. CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME AND IN THE FINAL, LEVIES PENALTY FOR CONCEALMENT OF INCOME. 23. HOWEVER, THE QUESTION WHICH IS RAISED BEFORE US BY WAY OF ADDITIONAL GROUND OF APPEAL IS ROOT OF START OF THE PROCEEDINGS I.E. RECORDING OF SATISFACTION AND THE ISSUE OF NOTICE, WHICH HAS BEEN CHALLENGED BY THE ASSESSEE TO BE INVALID. APPLYING THE RATIO LAID DOWN BY T HE HONBLE KARNATAKA HIGH COURT IN CIT & ANR. VS. MANJUNATH COTTON AND GINNING FACTORY (SUPRA) AND CIT VS. SSAS EMERALD MEADOWS (SUPRA) AND IN VIEW OF SLP BEING DISMISSED, WE FIND MERIT IN THE PLEA OF ASSESSEE THAT THE SATISFACTION RECORDED IN THE PRESENT CASE TO INITIATE PENALTY PROCEEDINGS BOTH FOR CONCEALMENT OF INCOME AND FURNISHING OF PARTICULARS OF INCOME AGAINST ADDITIONAL INCOME OFFERED BY THE ASSESSEE IS INCORRECT. FURTHER, WHERE THE ASSESSEE IS NOT AWARE OF EXACT CHARGE AGAINST HIM, THE AMBIGUIT Y IN THE NOTICE ISSUED UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT BY NOT STRIKING OF PORTION WHICH IS NOT APPLICABLE, PREJUDICE THE RIGHT OF REASONABLE OPPORTUNITY TO THE ASSESSEE, AS HE WAS NOT MADE AWARE OF EXACT CHARGE HE HAD TO FACE. IT IS A CLEAR - CUT CASE OF CONCEALMENT SINCE THE ASSESSEE HAD OFFERED ADDITIONAL INCOME PURSUANT TO ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 11 SEARCH CARRIED OUT AT ITS PREMISES. IT IS NOT THE CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND HENCE, THE ASSESSING OFFICER SHOULD HAVE RECORDED THE SATISFA CTION ACCORDINGLY AND ISSUED THE NOTICE ACCORDINGLY. 24. WE FIND NO MERIT ON THE PARTIAL RELIANCE PLACED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE DECISION OF JURISDICTIONAL HIGH COURT IN CIT VS. SMT. KAUSHALYA (SUPRA). THE HONBLE HIGH COURT HAS CLEARLY LAID DOWN THE PROPOSITION THAT THE ASSESSING OFFICER HAS TO MAKE THE ASSESSEE FULLY AWARE OF EXACT CHARGE OF THE DEPARTMENT AGAINST HIM. AS POINTED OUT, IN PRESENT CASE, IN THE ASSESSMENT ORDER ITSELF WHILE RECORDING SATISF ACTION FOR INITIATING PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT, EXACT CHARGE OF THE DEPARTMENT AGAINST THE ASSESSEE IS NOT CLEAR. THE ASSESSING OFFICER RECORDS THE SATISFACTION FOR INITIATING PENALTY PROCEEDINGS ON BOTH THE COUNTS I.E. CONCEALMENT O F INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE HONBLE BOMBAY HIGH COURT HAD ALSO UPHELD THE QUASHING OF PENALTY PROCEEDINGS FOR ASSESSMENT YEAR 1967 - 68 TO BE JUSTIFIED ON ACCOUNT OF VAGUENESS AND AMBIGUITY IN THE NOTICE ISSUED. BUT THE HONBLE HIGH COURT FURTHER HELD THAT WHERE THE ASSESSEE WAS FULLY AWARE OF EXACT CHARGE OF THE DEPARTMENT AGAINST HIM, THEN TECHNICAL NON - STRIKING OF CERTAIN TERMS IN THE NOTICE WOULD NOT INVALIDATE THE PROCEEDINGS. WHERE THERE IS DEFAULT IN THE FIRST ST AGE OF MAKING THE ASSESSEE AWARE OF EXACT CHARGE OF THE DEPARTMENT, THEN INITIATION OF PENALTY PROCEEDINGS ARE VITIATED AND THE SAME ARE TO BE QUASHED. THE ISSUE OF NOTICE UNDER SECTION 274 OF THE ACT ON SUCH VAGUENESS AND AMBIGUITY MAKES SUCH NOTICE INVA LID AND PROCEEDINGS THEREAFTER ARE TO BE QUASHED. 25. THE HONBLE SUPREME COURT IN T. ASHOK PAI VS. CIT (SUPRA) HAD HELD AS UNDER: - 23. SECTION 271(1)(C) REMAINS A PENAL STATUTE. THE RULE OF STRICT CONSTRUCTION SHALL APPLY THERETO. THE INGREDIENTS FOR IMPOSING PENALTY CONSTRUCTION SHALL APPLY THERETO. THE INGREDIENTS FOR IMPOSING PENALTY REMAIN THE SAME. THE PURPOSE OF THE LEGISLATURE THAT IT IS MEANT TO BE A DETERRENT TO TAX EVASION IS EVIDENCED BY THE INCREASE IN THE QUANTUM OF PENALTY, FROM 20 PER CENT UNDER THE 1922 ACT TO 300 PER CENT IN 1985. 24. CONCEALMENT OF I NCOME AND FURNISHING OF INACCURATE PARTICULARS CARRY DIFFERENT CONNOTATIONS. CONCEALMENT REFERS TO A DELIBERATE ACT ON THE PART OF THE ASSESSEE. A MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERATE ACT OF SUPPRESSION VERY OR SUGGESTION FALS I. 26. WHERE CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME ARE TWO DIFFERENT CONNOTATIONS, THEN AS PER PROVISIONS OF THE ACT, THE SATISFACTION HAS TO BE RECORDED BY THE ASSESSING OFFICER BEFORE INITIATING PENALTY PROCEEDINGS AS TO UNDER WHICH LIMB THE CASE OF ASSESSEE FALLS. IN THE PRESENT SET OF FACTS, THE SATISFACTION AS RECORDED BY THE ASSESSING OFFICER WHICH IS EVIDENT FROM THE ASSESSMENT ORDER ITSELF DOES NOT ESTABLISH THE CASE OF REVENUE AGAINST THE ASSESSEE THAT IT IS LI ABLE FOR LEVY OF PENALTY FOR CONCEALMENT UNDER WHICH LIMB I.E. FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE NOTICE ISSUED UNDER SECTION 274 OF THE ACT BY THE ASSESSING OFFICER ALSO DOES NOT SHOW CAUSE THE ASSESSEE A S TO MAKE HIM AWARE OF EXACT CHARGE LEVIED AGAINST HIM. IN THE ABSENCE OF SAME, IT CAUSES PREJUDICE TO THE RIGHT OF REASONABLE OPPORTUNITY TO BE ALLOWED TO THE ASSESSEE BEFORE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. CONSEQUENTLY, PENALTY NOTI CE ISSUED IN THE PRESENT CASE SUFFERS FROM INFIRMITIES I.E. LACK OF SATISFACTION AND LACK OF NOTICE BEING ISSUED IN MAKING THE ASSESSEE AWARE OF EXACT CHARGE AGAINST HIM, HENCE THE SAME IS QUASHED. THE PENALTY PROCEEDINGS COMPLETED PURSUANT TO SUCH NOTICE ARE VITIATED AND THE SAME ARE HELD TO BE INVALID. ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 12 27. NOW, COMING TO THE MERITS OF CASE, THE ASSESSEE HAD OFFERED ADDITIONAL INCOME ON ACCOUNT OF ON - MONEY ON SALE OF PLOTS. THE ASSESSING OFFICER HAD ACCEPTED THE SAME AND HAD INITIATED PENALTY PROCEEDING S UNDER SECTION 271(1)(C) OF THE ACT. THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS RELATING TO SECTION 271(1)(C) OF THE ACT ISSUED ENHANCEMENT NOTICE TO THE ASSESSEE. THEREAFTER, HE HAD GONE THROUGH THE SEIZED DOCUMENTS AND ELABORATELY REFERRED TO THEM AND EVEN REPRODUCED THE SCANNED COPIES OF SUCH DOCUMENTS AND COMES TO CONCLUSION THAT LOANS WERE RECEIVED FROM RATANLAL BAFNA, BUT STILL UPHOLDS THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. ONCE THE FINDING OF CIT(A) IS THAT THESE ARE LO ANS RECEIVED FROM BAFNA AND ARE NOT ON - MONEY RECEIVED ON SALE OF PLOTS, THEN IN CASES WHERE PENALTY PROCEEDINGS HAVE BEEN INITIATED ON A DIFFERENT FOOTING AND THE CIT(A) REVERSES THE SAME AND HOLDS THE SAME TO BE LOANS RECEIVED BY THE ASSESSEE, THERE IS CH ANGE IN OPINION AND BASIS FOR LEVY OF PENALTY FOR CONCEALMENT VARIES. IN SUCH CIRCUMSTANCES, THERE IS NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND THERE IS NO MERIT AT ALL IN LEVYING THE PENALTY @ 150%. ACCORDINGLY, WE ALLOW THE CLA IM OF ASSESSEE EVEN ON MERITS. THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND ADDITIONAL GROUND OF APPEAL RAISE D BY THE ASSESSEE ARE ALLOWED. 9 . FURTHER, IN BUNCH OF CASES I.E. IN NANDKISHOR TULSIDAS KATORE VS. ACIT IN ITA NOS.2174 TO 2180/PN/20 14, RELATING TO ASSESSMENT YEARS 2002 - 03 TO 2008 - 09, ORDER DATED 14.12.2016, REFERENCE WAS MADE TO THE JUDGMENT OF HONBLE HIGH COURT OF KARNATAKA IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 241 (KAR), WHEREIN THE ISSUE S RAISED BEFORE THE HONBL E HIGH COURT WERE AS UNDER: - (1) WHETHER, OMISSION IF ASSESSING OFFICER TO EXPLICITLY MENTION THAT PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCEL LATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HAD CONCEALED INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE? (2) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN LAW IN HOLDING THA T THE PENALTY NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) IS BAD IN LAW AND INVALID DESPITE THE AMENDMENT OF SECTION 271(1B) WITH RETROSPECTIVE EFFECT AND BY VIRTUE OF THE AMENDMENT, THE ASSESSING OFFICER HAS INITIATED THE PENALTY BY PROPERLY RECORDING THE S ATISFACTION FOR THE SAME? 10 . THE HONBLE HIGH COURT HAD ALLOWED THE CLAIM OF ASSESSEE WHERE THE ASSESSING OFFICER HAD NOT EXPLICITLY MENTIONED THAT AS TO WHETHER THE PENALTY PROCEEDINGS WERE INITIATED FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURA TE PARTICULARS OF INCOME, SUFFERS FROM INFIRMITY EVEN IF IT IS ESTABLISHED ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 13 THAT THE ASSESSEE HAD CONCEALED THE INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APEX COURT HAS DISMISSED THE SLP FILED BY THE DEPARTMENT. 1 1 . THE LEARNED DEPARTMENTAL R EPRESENTATIVE FOR THE REVENUE HAS STRE SSED THAT IN VIEW OF THE PROVISIONS OF SECTION 271(1)(1B) OF THE ACT, WHERE THE ORDER CONTAINS DIRECTIONS FOR INITIATION OF PENALTY PROCEEDINGS, SUCH AN ORDER OF ASSESSMENT OR RE - ASSESSMENT SHALL BE DEEMED TO CONSTITUT E SATISFACTION OF THE ASSESSING OFFICER FOR INITIATING PENALTY PROCEEDINGS UNDER CLAUSE (C). THE SAID OBJECTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS ALSO BEEN TAKEN NOTE OF BY THE HONBLE HIGH COURT IN CIT VS. SSAS EMERALD MEADO WS (SUPRA) BY WAY OF QUESTION NO.2 WHICH HAS BEEN DECIDED AGAINST THE REVENUE. ADMITTEDLY, THE SATISFACTION HAS TO BE RECORDED IN THE ORDER OF ASSESSMENT OR RE - ASSESSMENT BY THE ASSESSING OFFICER WHILE FINALIZING THE ASSESSMENT ORDER. HOWEVER, THE ASSESS ING OFFICER HAS TO AT INITIAL STAGE ITSELF COME TO A FINDING AS TO WHETHER THE ADDITIONS MADE IN THE HANDS OF ASSESSEE JUSTIFY THE LEVY OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ON ACCOUNT OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME. WE FIND THAT IN THE PRESENT SET OF FACTS, THE ASSESSING OFFICER IN THE FIRST YEAR I.E. ASSESSMENT YEAR 200 4 - 0 5 HAS RECORDED SATISFACTION FOR INITIATING PENALTY PROCEEDINGS ON ACCOUNT OF CONCEALMENT OF INCOME AND FURNISHING OF INAC CURATE PARTICULARS OF INCOME. UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT, PENALTY FOR CONCEALMENT IS LEVIABLE WHERE THE ASSESSEE HAS FULFILLED EITHER CONDITIONS I.E. CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE A SSESSING OFFICER WHILE INITIATING PENALTY PROCEEDINGS HAS TO BE SATISFIED AS TO UNDER WHICH LIMB, THE PENALTY IS LEVIABLE AND CONSEQUENT THERETO, ISSUE NOTICE IN THIS REGARD. HOWEVER, IN THE FACTS OF THE PRESENT CASE AND AS POINTED OUT HEREINABOVE, THE ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 14 AS SESSING OFFICER HAS FAILED TO RECORD SATISFACTION CORRECTLY AND CONSEQUENTLY, WE HOLD THAT INITIATION OF PENALTY PROCEEDINGS AGAINST THE ASSESSEE ARE NOT VALID FOR NON - RECORDING OF SATISFACTION BY THE ASSESSING OFFICER WHILE COMPLETING ASSESSMENT PROCEEDIN GS. FURTHER, THE ASSESSING OFFICER HAS FAILED TO STRIKE OFF EITHER OF THE LIMBS OF SECTION 271(1)(C) OF THE ACT, WHICH ARE NOT SATISFIED BY THE ASSESSEE AND CONSEQUENTLY, NOTICE ISSUED UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT IS BAD IN LAW AND ORDER LEVYING PENALTY FOR CONCEALMENT THEREAFTER, IS INFRUCTUOUS. ACCORDINGLY, WE HOLD SO. THE STATUTE HAS PROVIDED DISTINCTION BETWEEN CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME, WHICH MAY BE THIN LINE OF DISTINCTION, BUT THE SAM E HAS TO BE KEPT IN MIND WHILE RECORDING SATISFACTION BY THE ASSESSING OFFICER. FOLLOWING THE SAME PARITY OF REASONING AS LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA IN CIT & ANR. VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 (KAR), CI T VS. SSAS EMERALD MEADOWS (SUPRA) AND THE PUNE BENCH OF TRIBUNAL IN KANHAIYALAL D. JAIN VS. ACIT (SUPRA), WE SET ASIDE THE ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT LEVYING PENALTY FOR CONCEALMENT IN THE RESPECTIVE YEARS. THE GROUNDS OF APPEAL RAI SED BY THE ASSESSEE ARE THUS, ALLOWED. M/S. GAIKWAD ASSOCIATES ITA NO.2090/PUN/2013 ASSESSMENT YEAR: 2009 - 10 1 2 . THE ASSESSEE IN ITA NO. 2090 /P U N/201 3 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, T HE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT SINCE THERE IS NO DIFFERENCE IN THE ASSESSED INCOME AND INCOME DECLARED BY THE APPELLANT IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED BY THE LEARNED ASSESSING OFFICER U/S 153A OF THE I.T. ACT 19 61, THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT 1961 WAS BAD IN LAW, PATENTLY ILLEGAL, WITHOUT JURISDICTION AND VOID AB INITIO. THE IMPUGNED ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 15 PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT 1961 BY THE LEARNED ASSESSING O FFICER AND AS CONFIRMED BY THE LEARNED CIT(A) BEING BAD IN LAW THE SAME MAY PLEASE BE DELETED. 2. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 13. WE ALLOW THE PLEA OF ASSESSEE IN RAISING JURISDICTIONAL ISSUE OF NOT RECORDING CORRECT SATISFACTION WHILE INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT DURING THE COURSE OF COMPLETION OF ASSESSMENT PROCEEDIN GS. 1 4 . THE ASSESSMENT PROCEEDINGS IN THE CASE WERE INITIATED BECAUSE OF SEARCH ACTION IN THE GAIKWAD GROUP, WHEREIN THE RESIDENCE OF MR . DEEPAK GAWARE WAS COVERED AND CERTAIN DOCUMENTS WERE SEIZED, WHICH PERTAINED TO THE ASSESSEE. THE SAID DOCUMENTS WER E SHOWN TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN REPLY, THE ASSESSEE EXPLAINED THAT INCOME OF RS.32,19,750/ - WAS DECLARED BY IT FOR COVERING OMISSIONS AND ERRORS. THE ASSESSING OFFICER ACCEPTED THE DECLARATION FILED BY THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS AND CONCEALING THE INCOME. THE ASSESSING OFFICER RECORDED SATISFACTION TO THAT EFFECT THAT UNACCOUNTED INCOME WAS NOT SHOWN BY THE ASSESSEE AND CON SEQUENTLY PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS AND CONCEALING THE INCOME. THE SATISFACTION RECORDED IN THE PRESENT CASE BY THE ASSESSING OFFICER IS NOT CORRECT AND CONSEQUENTLY, THE ISSUE ARISING IN THE PRESENT APPEAL I S SQUARELY COVERED BY THE RATIO LAID DOWN IN EARLIER BUNCH OF APPEALS WITH LEAD ORDER IN KANHAIYALAL D. JAIN VS. ACIT (SUPRA). WE HAVE ALREADY REFERRED TO THE AFORESAID DECISION IN THE PARAS HEREINABOVE AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT INITIATION OF PENALTY PROCEEDINGS AGAINST THE ASSESSEE ARE NOT VALID FOR ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 16 NON - RECORDING OF SATISFACTION BY THE ASSESSING OFFICER WHILE COMPLETING ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE ORDER LEVYING PENALTY FOR CONCEALMENT IS HELD TO BE INVALID. K EDAR NANASAHEB GAIKWAD ITA NOS.2091/PUN/2013 TO 2094/PUN/2013 ASSESSMENT YEARS 2005 - 06 TO 2008 - 09 15. WE ALLOW THE PLEA OF ASSESSEE IN RAISING JURISDICTIONAL ISSUE OF NOT RECORDING CORRECT SATISFACTION WHILE INITIATING PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) OF THE ACT DURING THE COURSE OF COMPLETION OF ASSESSMENT PROCEEDINGS. 1 6 . THE FACTS OF PRESENT CASE I.E. CARRYING OUT OF SEARCH OPERATION AGAINST THE ASSESSEE ON 28.04.2009 ON THE RESIDENTIAL AND BUSINESS PREMISES IS IDENTICAL TO THE FACTS IN ITA NOS.2095/PUN/2013 TO 2098/PUN/2013 . THE IDENTICAL TO THE FACTS IN ITA NOS.2095/PUN/2013 TO 2098/PUN/2013 . THE ADDITIONAL INCOME DECLARED BY THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER. HOWEVER, SINCE THE ASSESSEE HAD NOT DECLARED THE SAID ADDITIONAL INCOME IN THE ORIGINAL RETURN OF INCOME, THE ASSESSING OFFICER WAS OF THE VIEW THAT IF THE SEARCH WOULD NOT HAVE TAKEN PLACE THEN HE WOULD NOT HAVE FILED THE RETURN OF INCOME. THE ASSESSING OFFICER NOTES THAT THIS AMOUNTS TO CONCEALMENT OF INCOME AND PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED S EPARATELY ON THIS COUNT. WHILE ISSUING NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT, THE ASSESSING OFFICER HAS FAILED TO STRIKE OFF EITHER OF PORTIONS OF THE NOTICE. FURTHER, WHILE LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THE ASSESSING OFFICER HAS HELD THE ASSESSEE TO HAVE CONCEALED ITS INCOME AND HENCE PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED AGAINST THE ASSESSEE AT RS.10,55,284/ - . THE ASSESSING OFFICER APPLIED THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 17 17. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE IS COVERED BY ORDER OF THE TRIBUNAL IN KANHAIYALAL D. JAIN VS. ACIT (SUPRA) . IN THE PRESENT CASE, WHERE THE ASSESSING OFFICER HAS RECORDED SATISFACTION AS TO CONC EALMENT OF INCOME AND HAS ALSO LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR CONCEALING THE INCOME, MERELY BECAUSE ONE OF THE LIMBS IN THE NOTICE ISSUED UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT HAVE NOT BEEN STRUCK OFF, CAN IT BE HELD THAT PEN ALTY PROCEEDINGS HAS BEEN WRONGLY INITIATED AND WRONGLY FINALIZED. FIRST OF ALL, WHERE THE ASSESSING OFFICER HAD INITIATED PENALTY PROCEEDINGS ON THE SATISFACTION THAT THE ASSESSEE HAD CONCEALED ITS INCOME AND HAD ALSO LEVIED PENALTY ON THE SAID LIMB OF C ONCEALMENT OF INCOME, THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER MERITS TO BE UPHELD SINCE THE FINAL ORDER PASSED BY THE ASSESSING OFFICER WAS ON FIRST LIMB I.E. CONCEALMENT OF INCOME. THE HONBLE BOMBAY HIGH COURT IN CIT VS. SMT. KAUSHALYA (SUPRA) WHILE DECIDING THE ISSUE FOR ASSESSMENT YEAR 1968 - 69, HAD HELD THAT WHERE THE ASSESSEE WAS AWARE OF THE CHARGE AGAINST HIM, MERELY BECAUSE ONE OF THE LIMBS WAS NOT STRUCK OFF WOULD NOT VITIATE THE NOTICE ISSUED UNDER SECTION 274 OF THE ACT. IN THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER HAD RECORDED SATISFACTION WHILE COMPLETING ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAD CONCEALED ITS INCOME AND HAD ISSUED THE ASSESSMENT ORDER. HENCE, THE ASSESSEE WAS AWARE OF EXACT CHARGE AGAINST HIM AND MERE LY BECAUSE ONE OF THE PORTIONS WERE NOT STRUCK OFF IN THE NOTICE ISSUED UNDER SECTION 274 OF THE ACT DOES NOT MAKE THE SAID NOTICE AS IN - APPROPRIATE. 18. SINCE IT IS THE CASE OF SEARCH CARRIED OUT AFTER 01.06.2007 , THEN THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT ARE ATTRACTED. SIMILAR ISSUE WAS DECIDED BY THE PUNE BENCH OF TRIBUNAL IN MRS.SARITA KAUR ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 18 MANJEET SINGH CHOPRA VS. ITO IN ITA NO.1562/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 30.10.2015, WHEREIN IT WAS HELD AS UNDER: - 15. NOW, COMING TO THE ISSUE THAT WHERE THE ASSESSEE HAD OFFERED THE INCOME IN THE RETURN OF INCOME FILED AFTER SURRENDERING THE ADDITIONAL INCOME, CAN THE ASSESSEE BE HELD TO HAVE CONCEALED ITS INCOME VIS - - VIS ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE. SECTION 271(1) OF THE ACT MAKES PROVISION FOR LEVYING PENALTIES ON ASSESSEE IN DIFFERENT EVENTUALITIES, ONE SUCH EVENTUALITY IS FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. ONLY ON FULFILLMENT OF THE COND ITIONS STIPULATED IN SECTION 271(1)(C) OF THE ACT, THERE ARISES A QUESTION OF EXERCISING POWER UNDER THE SAID PROVISION TO IMPOSE PENALTY. THE SAID SECTION LAYS DOWN THAT WHERE THE ASSESSING OFFICER OR THE CIT(A) IN THE COURSE OF ANY PROCEEDINGS UNDER THE ACT IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, THEN HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY STIPULATED IN THE AFORESAID PROVISION. THE EXPLANATION/S UNDE R SECTION 271(1)(C) OF THE ACT SET OUT THE CIRCUMSTANCES, WHICH JUSTIFIES THE LEVY OF PENALTY. FOR SEARCHES INITIATED UNDER SECTION 132 OF THE ACT BEFORE FIRST DAY OF JUNE, 2007, EXPLANATION 5 WAS INTRODUCED BY THE FINANCE ACT, 2007 WITH RETROSPECTIVE EFF ECT FROM 01.04.2003. UNDER THE SAID SECTION, WHERE THE ASSESSEE WAS FOUND TO BE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING, WHOLLY OR IN PART HIS INCOME, FOR ANY PREVIOUS YEAR, WHICH HAD ENDED BEFORE THE DATE OF SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAD NOT BEEN FURNISHED BEFORE THE SAID DATE, OR WHERE THE RETURN OF INCOME HAD BEEN FURNISHED BUT SUCH INCOME HAD NOT BEEN DECLARED THEREIN OR FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFTER THE DATE OF SEARCH, THEN NOTWITHSTANDING THAT SUCH INCOME WAS DECLARED BY HIM IN THE RETURN OF INCOME, HE WAS DEEMED TO HAVE CONCEALED PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF IN COME, UNLESS THE INCOME OR THE TRANSACTIONS WERE RECORDED IN THE BOOKS OF ACCOUNT OR THE PERSON IN THE COURSE OF SEARCH MAKES A STATEMENT UNDER SECTION 132(4) OF THE ACT THAT THE SAID MONEY, BULLION, JEWELLERY, VALUABLE ARTICLES OR THINGS, HAS BEEN ACQUIRE D BY HIM OUT OF HIS INCOME, WHICH HAS NOT BEEN SO FAR DISCLOSED, BUT SPECIFIES THE MANNER IN WHICH THE SAID INCOME HAS BEEN DERIVED AND PAYS THE TAXES TOGETHER WITH INTEREST. UNDER EXPLANATION 5, AN EXEMPTION WAS PROVIDED TO THE PERSON WHO WAS SEARCHED AN D WAS FOUND IN POSSESSION OF MONEY, BULLION, JEWELLERY, VALUABLE ARTICLES OR THINGS, THEN IN CASE HE DECLARED THE SAME UNDER THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT AND THEREAFTER, PAYS THE TAXES ON THE SAME, NO PENALTY UNDER SECTION 271(1)( C) OF THE ACT WAS LEVIED ON SUCH PERSON. 16. HOWEVER, FOR SEARCHES INITIATED UNDER SECTION 132 OF THE ACT ON OR AFTER FIRST DAY OF JUNE, 2007, ANOTHER EXPLANATION 5A WAS APPLICABLE, WHICH WAS INTRODUCED BY THE FINANCE ACT, 2007 W.E.F. 01.06.2007. THE ORI GINAL EXPLANATION 5A PROVIDED THAT WHERE IN THE COURSE OF SEARCH, THE ASSESSEE WAS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY, VALUABLE ARTICLES OR THINGS AND THE ASSESSEE CLAIMS THAT SUCH ASSET HAD BEEN ACQUIRED BY HIM BY UTILIZING WHOLLY OR I N PART HIS INCOME FOR ANY PREVIOUS YEAR OR ANY INCOME IS BASED ON ANY ENTRY IN BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT THE SAME REPRESENTS HIS INCOME FOR ANY PREVIOUS YEAR, THEN WHERE THE PERIOD HAS ENDED BEFORE THE DATE OF S EARCH AND THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH YEAR HAS EXPIRED AND THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME, THEN NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL FOR THE PURPOSE OF IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 19 ACT, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THE SAID EXPLANATION 5A WAS SUBSTITUTED BY THE FINANCE (NO.2) A CT, 2009 WITH RETROSPECTIVE EFFECT FROM 01.06.2007 WITH THE AMENDMENT THAT WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAD BEEN FURNISHED BEFORE THE DATE OF SEARCH, BUT SUCH INCOME HAD NOT BEEN DECLARED THEREIN OR WHERE THE DUE DATE OF FILING THE RET URN OF INCOME FOR OTHER PREVIOUS YEAR HAS EXPIRED, BUT THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME, THEN NOTWITHSTANDING THE FACT THAT THE SAID INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL BE DEEM ED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF HIS INCOME. 17. THE DEEMING PROVISIONS OF EXPLANATION 5A UNDER SECTION 271(1)(C) OF THE ACT ARE APPLICABLE TO ALL THE SEARCHES INITIATED UNDER SECTION 132 OF THE ACT ON OR AFTER FIRST DAY OF JUNE, 2007. THE CONDITIONS LAID DOWN IN THE EXPLANATION 5A IS WHERE DURING THE COURSE OF SEARCH, THE ASSESSEE IS FOUND TO BE IN POSSESSION OF ANY MONEY, BULLION, JEWELLERY, VALUABLE ARTICLES OR THINGS AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING WHOLLY OR IN PART HIS INCOME, FOR ANY PREVIOUS YEAR ON ANY INCOME BASED ON ANY ENTRIES IN BOOKS OF ACCOUNT, OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRIES IN THE BOOKS OF ACCOUNT OR OT HER DOCUMENTS OR TRANSACTIONS REPRESENT HIS INCOME FOR ANY PREVIOUS YEAR, THEN IN CASES WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAD BEEN FURNISHED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH, BUT THE SAID INCOME HAD NOT BEEN DECLARED IN THE SAID RETURN OF INCOME OR THE DUE DATE FOR FILING THE RETURN OF INCOME HAD EXPIRED FOR SUCH PREVIOUS YEAR AND THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME, IT IS FURTHER LAID DOWN THAT NOTWITHSTANDING THE FACT THAT SUCH INCOME WHICH HAS BEEN DISCOVERED DUE TO THE SEARCH PROCEEDINGS, IS DECLARED BY HIM IN ANY RETURN FURNISHED ON OR AFTER THE DATE OF SEARCH, BUT IRRESPECTIVE OF THE SAME, HE WOULD BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME OF THE SAME, HE WOULD BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. READING THE ABO VE SAID PROVISIONS OF THE EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT, IT IS NOTED THAT THE PERSON IS DEEMED TO HAVE CONCEALED PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, WHICH IS EQUIVALENT TO THE VALUE OF MONEY, BULLI ON, JEWELLERY, VALUABLE ARTICLES OR THINGS FROM THE POSSESSION OF THE ASSESSEE DURING THE COURSE OF SEARCH CONDUCTED ON OR AFTER FIRST DAY OF JUNE, 2007. FURTHER, WHERE ANY INCOME IS BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSAC TIONS AND HE CLAIMS THAT ALL THE ABOVE SAID REPRESENTS HIS INCOME FOR ANY PREVIOUS YEAR, THEN THE EXPLANATION LAYS DOWN TO THAT EXTENT, THE PERSON WOULD BE DEEMED TO HAVE CONCEALED HIS PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. 1 8. NOW, COMING TO THE MAIN PROVISIONS WHICH CONSTITUTE TWO PORTIONS I.E. WHAT IS CONCEALMENT AND QUANTUM OF PENALTY TO BE LEVIED. THE QUESTION IS QUANTUM OF INCOME ON WHICH PENALTY IS TO BE LEVIED. THE SAID ISSUE WAS BEFORE THE PUNE BENCH OF TRIBUNAL IN ACIT VS. MULAY CONSTRUCTION P. LTD. & ORS. IN ITA NOS.116 TO 119/PN/2012 & ORS. AND IT WAS HELD AS UNDER: - 16. THE NEXT LIMB OF ARGUMENT OF THE LD. COUNSEL IS THAT EXPLANATION 5A(II) CONTEMPLATES INCOME AND NOT THE EXPENDITURE. IN THIS CASE, IT IS U NDISPUTED FACT THAT THE ASSESSEE CAME FORWARD AND DECLARED INCOME WHICH WAS PERTAINING TO THE AMOUNT COVERED BY THE UNRECORDED EXPENDITURE BUT THE FACT REMAINS THAT THE ASSESSEE DID NOT DECLARE ANY EXPENDITURE BUT IT IS ONLY THE INCOME. THE LD. COUNSEL REFERRED TO THE DEFINITION OF THE INCOME GIVEN IN SEC. 2(24) OF THE ACT. THE SCOPE OF THE SAID DEFINITION HAS BEEN EXPLAINED BY THE HONBLE SUPREME COURT IN THE CASE OF EMIL WEBBER (SUPRA) WHICH HAS BEEN RELIED UPON BY THE LD. COUNSEL THE RELEVANT PORT ION IS IN PARA NO 7 WHICH READS AS UNDER: ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 20 7. THE DEFINITION OF 'INCOME' IN CLAUSE (24) OF SECTION 2 OF THE ACT IS AN INCLUSIVE DEFINITION. IT ADDS SEVERAL ARTIFICIAL CATEGORIES TO THE CONCEPT OF INCOME BUT ON THAT ACCOUNT THE EXPRESSION 'INCOME' DOES NOT LOSE ITS NATURAL CONNOTATION. INDEED, IT IS REPEATEDLY SAID THAT IT IS DIFFICULT TO DEFINE THE EXPRESSION 'INCOME' IN PRECISE TERMS. ANYTHING WHICH CAN PROPERLY BE DESCRIBED AS INCOME IS TAXABLE UNDER THE ACT UNLESS, OF COURSE, IT IS EXEMPTED UNDER ONE OR THE OTHER PROVISION OF THE ACT. IT IS FROM THE SAID ANGLE THAT WE HAVE TO EXAMINE WHETHER THE AMOUNT PAID BY BALLARPUR BY WAY OF TAX ON THE SALARY AMOUNT RECEIVED BY THE ASSESSEE CAN BE TREATED AS THE INCOME OF THE ASSESSEE. IT CANNOT BE OVERLOOKED THAT T HE SAID AMOUNT IS NOTHING BUT A TAX UPON THE SALARY RECEIVED BY THE ASSESSEE. BY VIRTUE OF THE OBLIGATION UNDERTAKEN BY BALLARPUR TO PAY TAX ON THE SALARY RECEIVED BY THE ASSESSEE AMONG OTHERS, IT PAID THE SAID TAX. THE SAID PAYMENT IS, THEREFORE, FOR AND ON BEHALF OF THE ASSESSEE. IT IS NOT A GRATUITOUS PAYMENT. BUT FOR THE SAID AGREEMENT AND BUT FOR THE SAID PAYMENT, THE SAID TAX AMOUNT WOULD HAVE BEEN LIABLE TO BE PAID BY THE ASSESSEE HIMSELF HE COULD NOT HAVE RECEIVED THE SALARY WHICH HE DID BUT FOR THE SAID PAYMENT OF TAX. THE OBLIGATION PLACED UPON BALLARPUR BY VIRTUE OF SECTION 195 OF THE INCOME TAX ACT CANNOT ALSO BE IGNORED IN THIS CONTEXT. IT WOULD BE UNREALISTIC TO SAY THAT THE SAID PAYMENT HAD NO INTEGRAL CONNECTION WITH THE SALARY RECEIVED BY TH E ASSESSEE. WE ARE, THEREFORE, OF THE OPINION THAT THE HIGH COURT AND THE AUTHORITIES UNDER THE ACT WERE RIGHT IN HOLDING THAT THE SAID TAX AMOUNT IS LIABLE TO BE INCLUDED IN THE INCOME OF THE ASSESSEE DURING THE SAID TWO ASSESSMENT YEARS. 17. AS PER INT ERPRETATION MADE BY THE HON'BLE SUPREME COURT OF SEC. 2(24) OF THE ACT, IT IS CLEAR THAT IT IS AN INCLUSIVE DEFINITION AND IT COVERS ALL INCOME COME UNDER CHARGING PROVISIONS OF THE ACT. IF THE ARGUMENT OF THE LEARNED COUNSEL IS TO BE ACCEPTED THEN NO INCOME CAN BE TAXED U/S. 68, 69, 69A, 69B, 69C & 69D. 18. IT IS NECESSARY TO REFER TO EXPLANATION 5A WHICH READS AS UNDER: EXPLANATION 5A WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR BEFORE THE 1 ST DAY OF JUNE 2007, THE ASSES SEE IS FOUND TO BE THE OWNER OF ( I ) ANY MONEY, BULLION, JEWELER OR OTHER VALUABLE ARTICLE OR THING (HEREINAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING (WHOLLY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR ( II ) ANY OTHER INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND ( A ) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN OR ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 21 ( B ) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A P ENALTY UNDER CLAUSE (C) OF SUB - SECTION (1) OF THIS SECTION, HE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 19. SO FAR AS THE PRESENT ASSESSEE IS CONCERNED, CLAUSE (II) TO EXPLANATION 5A IS AP PLICABLE. ADMITTEDLY, THE EXPENDITURE WHICH WAS NOT RECORDED HAS BEEN FOUND BY WAY OF ENTRIES IN THE SEIZED DOCUMENTS. WHILE EXPLAINING THE SCOPE OF EXPLANATION 5A IN THE CASE OF CHANDAN K. SHEWANI (SUPRA) THE TRIBUNAL HAS HELD THAT TO PATCH OUT THE LACU NA DUE TO THE JUDICIAL INTERPRETATION OF EXPL. 5 OF SEC. 271(1)(C) WHICH WAS ON THE STATUTE BOOK UPTO 31 - 5 - 2007, EXPLANATION 5A HAS BEEN SUBSTITUTED FOR EXPL. 5 BY THE FINANCE ACT, 2007 W.E.F 1 - 6 - 2007. THE SAID EXPLANATION WAS FURTHER AMENDED BY THE FINANC E(NO.2) ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 01 - 07 - 2007 WHICH IS REPRODUCED HEREINABOVE. THE LD. COUNSEL HAS RAISED AN IMPORTANT LEGAL QUESTION WHETHER THE INCOME DECLARED BY THE ASSESSEE WHICH IS PERTAINING TO THE UNRECORDED EXPENDITURE CAN SAID TO B E THE INCOME WHICH IS CONTEMPLATED IN EXPLANATION 5A(II)? THE ANSWER TO THIS QUESTION IS IN SEC. 69 - C WHICH READS AS UNDER: - WHERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS INCURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPEN DITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, SUCH EXPEN DITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE [ASSESSING] OFFICER, SATISFACTORY, THE AMOUNT COVERED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE F OR SUCH FINANCIAL YEAR; 20. SO FAR AS THE EXPL. - 5 WHICH WAS ON THE STATUTE BOOK, THE COURTS HAVE TAKEN A VIEW THAT IT WAS HAVING A LIMITED APPLICATION ONLY TO THE EXTEND OF THE MONEY, BULLION, JEWELLERY OR ANY VALUABLE ASSETS OR THINGS WHICH WERE FOUND DURING THE COURSE OF SEACH AND SEIZER OPERATION AND OWNED BY THE ASSESSEE. BUT THE OTHER INCOME WHICH WAS FOUND RECORDED BY ANY ENTRY IN THE DOCUMENT SEIZED OR OTHERWISE WAS NOT COVERED. IT IS PERTINENT TO NOTE THAT SEC. 69C PROVIDES THAT IF ANY UNRECORD ED EXPENDITURE IS FOUND AND THE ASSESSEE FAILS TO EXPLAIN THE SOURCE OF THE SAID EXPENDITURE OR EXPLANATION OF THE ASSESSEE IS NOT SATISFACTORY, THEN TO THE EXTENT OF THE AMOUNT COVERED BY SUCH EXPENDITURE IS TREATED AS INCOME. ULTIMATELY WHAT IS TAXED UN DER SEC. 69 C OF THE ACT IS NOT THE EXPENDITURE BUT IT IS BASICALLY THE UNDISCLOSED INCOME WHICH HAS BEEN APPLIED FOR INCURRING THE UNRECORDED EXPENDITURE. IN OUR VIEW, THERE IS NO MERIT IN THE ARGUMENT OF THE LD. COUNSEL THAT THE ASSESSEE HAS ONLY DECLA RED THE AMOUNT EXPENDITURE. WE THEREFORE, HOLD THAT TO THE EXTENT OF THE INCOME OFFERED BY THE ASSESSEE PERTAINING TO THE EXPENDITURE IN THE RETURNS FILED IN RESPONSE TO NOTICE U/S 153A, EXPLANATION - 5A IS APPLICABLE AND AS THERE IS A LEGAL PRESUMPTION AGA INST THE ASSESSEE IN RESPECT OF THE SAID INCOME DETECTED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, THE ASSESSEE CASE IS SQUARELY COVERED BY EXPLANATION - 5(II) AS THE ASSESSEE HIMSELF HAS ADMITTED THE SAID UNDISCLOSED INCOME. ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 22 19. APPLYING THE SA ID PROPOSITION TO THE FACTS OF THE PRESENT CASE, WE HOLD THAT THE INCOME OFFERED BY THE ASSESSEE PERTAINING TO THE CASH SEIZED FROM THE ASSESSEE AND THE DECLARATION OF THE ASSESSEE THAT THE SAID CASH RELATES TO THE UNACCOUNTED CASH RECEIVED VIDE THE SALE T RANSACTION ENTERED INTO BY THE ASSESSEE, WHICH IN TURN, WAS DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED PURSUANT TO ISSUE OF NOTICE UNDER SECTION 153A OF THE ACT, IS THE INCOME DETECTED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION. THE CAS E OF THE ASSESSEE IS SQUARELY COVERED BY THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT AND THE ASSESSEE IS EXIGIBLE TO LEVY OF PENALTY ON SUCH INCOME WHICH WAS DETECTED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, WHICH IN TURN HAS BEEN OFFERED BY THE ASSESSEE IN RETURN OF INCOME FILED PURSUANT TO NOTICE ISSUED UNDER SECTION 153A OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE OTHER HAND HAS PLACED RELIANCE ON THE RATIO LAID DOWN IN DCIT VS. PURTI SAKHAR K ARKHANA (SUPRA), WHICH IS A DECISION OF NAGPUR BENCH OF TRIBUNAL AND HYDERABAD BENCH OF TRIBUNAL IN SHRI PV RAMANA REDDY VS. ITO (SUPRA). IN VIEW OF BINDING PRECEDENT OF PUNE BENCH ON THE SAID ISSUE, WE FIND NO MERIT IN THE RELIANCES PLACED UPON BY THE LE ARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON DCIT VS. PURTI SAKHAR KARKHANA (SUPRA) AND SHRI PV RAMANA REDDY VS. ITO (SUPRA). THE OTHER RELIANCE PLACED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE DECISION OF PUNE BENCH OF TRIBUNAL IN SMT. PRAMILA D. ASHTEKAR VS. ITO (2013) 39 TAXMANN.COM 103 (PUNE TRIB.), IT MAY BE POINTED OUT THAT THE SAID ORDER OF PUNE BENCH OF TRIBUNAL HAS BEEN RECALLED IN MA NO.112/PN/2013, ORDER DATED 21.06.2013 AND HAS NO BINDING EFFECT FOR DECIDING THE PRESENT ISSUE. FURTHER REFERENCE WAS MADE TO THE DECISION OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. & ANR. (SUPRA), WHERE THE HONBLE BOMBAY HIGH COURT HAS DELIBERATED UPON THE SCOPE OF 153A PROVISIONS AND HAS NO RELEVANCE TO THE ISSUE BEFORE US. 1 9 . APPL YING THE SAID RATIO LAID DOWN IN M RS.SARITA KAUR MANJEET SINGH CHOPRA VS. ITO (SUPRA), WE HOLD THAT THE ASSESSEE IN THE PRESENT BUNCH OF APPEALS IS EXIGIBLE TO LEVY OF PENALTY IN VIEW OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT . S INCE THE SATISFACTION HAS BEEN CORRECTLY RECORDED BY THE ASSESSING OFFICER REGARDING CONCEALMENT OF INCOME , WE CONFIRM THE ORDER OF ASSESSING OFFICER IN THIS REGARD. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. MRS. NANDA NANASAHEB GAIKWAD ITA NOS.210 0 /PUN/2013 TO 2103/PUN/2013 ASSESSM ENT YEARS : 200 4 - 0 5 TO 200 7 - 0 8 NANASAHEB SHANKARRAO GAIKWAD (HUF) ITA NO.2099/PUN/2013 ASSESSMENT YEAR 2008 - 09 ITA NO. 2090 /PN/20 1 3 & ORS GAIKWAD ASSOCIATES & ORS 23 20 . THE FACT S ARE IDENTICAL TO THE FACTS IN ITA NOS.2091/PUN/2013 TO 2094/PUN/2013 AND OUR DECISION IN ITA NOS.2091/PUN/2013 TO 2094/PUN/2013 S HALL APPLY MUTATIS MUTANDIS TO ITA NOS.2101/PUN/2013 TO 2103/PUN/2013 AND ITA NO.2099/PUN/2013 . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 2 1 . IN THE RESULT, APPEALS IN ITA NOS.2095/PUN/2013 TO 2098/PUN/2013 AND ITA NO. 2090 /PUN/201 3 ARE ALLOWED AND APPEALS IN ITA NOS. 2091 /PUN/2013 TO 2094 /PUN/2013 , ITA NOS. 210 0 /PUN/2013 TO 2103 /PUN/2013 AND ITA NO.2099/PUN/2013 ARE DISMISSED. ORDER P RONOUNCED ON THIS 20 TH DAY OF JANUARY , 201 6 . SD/ - SD/ - SD/ - SD/ - (ANI L CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 20 TH JANUARY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - CENTRAL , PUNE ; 4. / THE CIT , CENTRAL, PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE