Anand Vipin Sanghavi, Pune V. Deputy Commissioner of Income-tax,

ITA 2183/PUN/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7223 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-10-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Reasonable cause; Documents seized
• Section: 153A; 69; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO S . 2183 TO 2185 /PUN/20 14 / ASSESSMENT YEAR S : 2007 - 08 TO 2009 - 10 ANAND VIPIN SANGHAVI, 1 & 2, BUILDING B, SHARMILA APARTMENTS, GANESHKHIND ROAD, PUNE - 411 007. PAN : ADIPS7670M .... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2(1), PUNE. CENTRAL CIRCLE - 2(1), PUNE. / RESPONDENT A SSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 16.10.2017 / DATE OF PRONOUNCEMENT : 31 .10.2017 / ORDER PER VIKAS AWASTHY, JM THESE THREE APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - CENTRAL, PUNE DATED 05.09.2014 COMMON FOR ASSESSMENT YEARS 2007 - 08 TO 2009 - 10 , CONFIRMING LEVY OF 2 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 PENALTY U/S. 271(1) (C) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2. SHRI NIKHIL PATHAK APPEARING ON BEHALF OF ASSESSEE SUBMITTED THAT A SEARCH ACTION U/S. 132 OF THE ACT WAS CONDUCTED IN THE A PPELLANTS CASE ON 11.09.2009. ACCORDINGLY, ASSESSMENT PROCEEDINGS U/S. 153 A WERE INITIATED. DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE SEIZED WHICH INDICATE D THAT ASSESSEE HAS MADE PAYMENT OF RS.14,25,000/ - TO MR. SAMIT KARIA. THE ASSESSEE ADMITTED THAT RS. 14.25 LAKHS WAS PAID AGAINST BOOKING OF FLAT AND THE SAME HAS NOT BEEN DISCLOSED IN THE BOOKS. OUT OF RS. 14.25 LAKHS, RS. 10 LAKHS WERE PAID DURING FINANCIAL YEAR 2006 - 07 AND RS.4.25 LAKHS WERE PAID IN FINANCIAL YEAR 2007 - 08. IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153A FOR ASSESSMENT YEAR 2007 - 08, THE ASSESSEE OFFERED RS. 12,21,000/ - ( INCLUDING RS.2,21,000/ - DECLARED UNDER THE HEAD INCOME FROM OTHER SOURCES) AS ADDITIONAL INCOME. THE RETURN FILED BY INCOME FROM OTHER SOURCES) AS ADDITIONAL INCOME. THE RETURN FILED BY ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER AND NO FURTHER ADDITION WAS MADE. HOWEVER, THE ASSESSING OFFICER INITIATED PENALTY PROC EEDINGS U/S. 271(1) (C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 2.1 IN ASSESSMENT YEAR 2008 - 09, THE ASSESSEE OFFERED REMAINING AMOUNT OF RS.4.25 LAKHS A S ADDITIONAL INCOME. THE RETURN IN RESP ONSE TO NOTICE U/S. 153A WAS ACCEPTED BY THE ASSESSING O FFICER WITHOUT MAKING ANY FURTHER ADDITION. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S. 271(1) (C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 2.2 THE LD. AR SUBMITTED THAT A PERUSAL OF THE NOTICE ISSUED U/S. 274 R.W.S 271(1) (C) OF THE ACT FOR ALL THE THREE ASSESSMENT YEARS WOULD SHOW THAT IRRELEVANT LIMB HAS NOT BEEN STRUCK OFF IN THE NOTICE. THUS, BOTH THE LIMBS I.E. CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF 3 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 INCOME ARE MENTIONED IN THE NOTICE. A P ERUSAL OF THE NOTICE REVEALS THAT THERE IS AMBIGUITY IN THE MIND OF ASSESSING OFFICER WITH RESPECT TO THE CHARGE FOR LEVYING PENALTY. 2.3 THE LD. AR FURTHER REFERRING TO THE ORDER OF LEVYING PENALTY IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 SUBMITTED THAT PENALTY HAS BEEN LEVIED AFTER INVOKING PROVISION OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE ASSESSING OFFICER IN PENALTY ORDER HAS OBSERVED THAT THERE IS DEEMED CONCEALMENT OF INCOME, AS TRANSACTIONS HAVE NOT BEEN RECORDED BY THE ASSESSEE IN B OOKS OF ACCOUNT. THE ASSESSING OFFICER WHILE CONCLUDING THE ORDER AT THE TIME OF ASCERTAINING QUANTUM OF PENALTY MENTIONED THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. 3 . THE LD. AR MADE TWO FOLD SUBMISSIONS IN RESPECT OF THE MANNER IN WHICH PENALTY HAS BEEN LEVIED . THE FIRST PLANK OF THE ARGUMENT OF THE LD. WHICH PENALTY HAS BEEN LEVIED . THE FIRST PLANK OF THE ARGUMENT OF THE LD. A.R. OF THE ASSESSEE IS THAT IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09, THE ASSESSING OFFICER HAS WRONGLY RECORDED SATISFACTION FOR LEVYING PENALTY U/S. 271(1) (C) OF THE ACT, ON TH E CHARGE OF FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAS NEI THER DISCLOSED ABOUT INVESTMENT IN FLATS IN THE RETURN OF INCOME NOR REFLECTED THE TRANSACTION IN THE BOOKS OF ACCOUNT. THEREFORE, IT IS A CASE OF CONCEALMENT OF INCOME. THIS FACT HAS BEEN RECORDED BY THE ASSESSING OFFICER WHILE LEVYING PENALTY. THE ASSESSING OFFICER CATEGORICALLY RECORDED THAT TRANSACTIONS HAVE NOT BEEN RECORDED IN THE ASSESSEES BOOKS OF ACCOUNT. THE LD. AR FURTHER POINTED THAT AFTER INVOKING THE PROVISION OF E XPLANATION 5A TO SECTION 271(1) (C) OF THE ACT, THE ASSESSING OFFICER CONCLUDED THAT , THE ASSESSEE SATISFIE S ALL THE CONDITIONS FOR LEVY OF PENALTY AND THERE IS A DEEMED CONCEALMENT OF INCOME . THUS, IT IS A CASE OF CONCEALMENT OF INCOME AND NOT FURNISHIN G INACCURATE PARTICULARS 4 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 OF INCOME. THE ASSESSING OFFICER WRONGLY RECORDED SATISFACTION FOR INITIATING PENALTY U/S. 271(1)(C) BY MENTIONING THE CHARGE AS FURNISHING INACCURATE PARTICULARS OF INCOME . THE DISCUSSION MADE BY ASSESSING OFFICER IN PENALTY ORD ER, CLEARLY ESTABLISH ES THAT THE ASSESSING OFFICER WAS NOT CLEAR IN HIS MIND ABOUT LIMBS UNDER WHICH PENALTY IS TO BE LEVIED . THEREFORE, HE MENTIONED TWO DIFFERENT CHARGES/LIMBS AT TWO DIFFERENT PLACES IN HIS ORDER LEVYING PENALTY. THIS AMBIGUITY AND CONFU SION EXISTED IN THE MIND OF ASSESSING OFFICER EVEN AT THE TIME OF RECORDING SATISFACTION U/S. 271(1) (C) OF THE ACT IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. 3 . 1 IN SECOND PLANK OF HIS ARGUMENT, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT PENALTY ORDER S FOR ASSESSMENT YEARS 2007 - 08 & 2008 - 09 ARE LIABLE TO BE SET ASIDE ON THE GROUND THAT SATISFACTION HAS BEEN RECORDED FOR INITIATING PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND WHEREAS, IN ORDER LEVYING PENALTY, THE ASSESSING OFFICER HAS INCOME AND WHEREAS, IN ORDER LEVYING PENALTY, THE ASSESSING OFFICER HAS HELD THAT IT IS A CASE OF DE EMED CONCEALMENT OF INCOME. A GAIN AT THE TIME OF QUANTIFYING PENALTY AMOUNT, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE IS LIABLE FOR PENALTY FOR FURNISHING IN ACCURATE PARTICULARS OF INCOME. THROUGH OUT, THERE WAS CONFUSION IN THE MIND OF ASSESSING OFFICER, WHETHER PENALTY IS TO BE LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. IN SUCH CIRCUMSTANCES, PENALTY ORDER IS LIABLE TO BE SET ASIDE. 4 . THE LD. AR FOR THE ASSESSEE CONTENDED THAT FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME ARE TWO DIFFERENT EXPRESSIONS, HAVING DIFFERENT CONN OTATIONS. THESE EXPRESSIONS CAN NOT BE USED INTER - CHANGEABLY. THE LD. AR IN SUPPORT OF HIS SUBMISSIONS PLACED RELIANCE ON TH E FOLLOWING DECISIONS: - 5 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 I) DILIP N. SHROFF VS. JOINT COMMISSIONER OF INCOME TAX, REPORTED AS 291 ITR 519 (SC) II) T. ASHOK PAI VS. COMMISSIONER OF INCOME TAX, REPORTED AS 292 ITR 11 (SC) III) MEHERJEE CASSINATH HOLDINGS PRIVATE LIMITED VS. ASSISTANT COMMISSIONER OF INCOME TAX, ITA NO.2555/MUM/2012, ASSESSMENT YEAR 2008 - 09 5 . IN RESPECT OF ASSESSMENT YEAR 2009 - 10, T HE LD. AR SUBMITTED THAT THE ASSESSING OFFICER WRONGLY INITIATED AND LEVIED PENALTY U/S. 271(1) (C ) OF THE ACT. THE SEARCH IN CASE OF ASSESSEE WAS CONDUCTED ON 11.09.2009. THE DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) HA D NOT EXPIRED BY THAT TIME . THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME. THEREFORE, PENALTY U/S. 271(1)(C) COULD NOT HAVE BEEN LEVIED . IF AT ALL, PENALTY WAS T O BE LEVIED, IT COULD HAVE BEEN U/S.271AAA OF THE ACT. THE LD. AR REFERRING TO THE DEFINITION OF SPECIFIED PREVIOUS YEAR DEFINED IN CLAUSE - (B) OF EXPLANATION TO SECTION 271 AAA OF THE ACT , THE LD. AR POINTED THAT THE PERIOD RELEVANT TO ASSESSMENT YEAR 200 9 - 10 COVERED UNDER THE DEFINITION OF SPECIFIED PREVIOUS YEAR . WHERE, THE PROVISIONS OF SECTION 271AAA ARE ATTRACTED, PENALTY U/S. 271(1)(C) SHALL NOT BE IMPOSED. TO SUPPORT HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE ON THE DECISION OF CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF SHRI MANGESH TUPE VS. ASSISTANT COMMIS SIONER OF INCOME TAX IN ITA NO. 804 TO 809 FOR ASSESSMENT YEAR 2003 - 04 TO 2008 - 09 DECIDED ON 20.04.2013. 6 . ON THE OTHER HAND, SHRI AJAY MODI REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING LEVY OF PENALTY U/S. 271(1) (C) OF THE ACT. THE LD. DR SUBMITTED THAT THE ASSESSEE HAS SHOWN PART OF THE TRANSACTION WHERE PAYMENT IS 6 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 MADE BY CHEQUE . THEREFORE, IT IS A CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME AND NOT CONCEALMENT OF INCOME. THE LIMB OF THE TRANSACTION WHERE PAYMENT HAVE BEEN MADE IN CASH , HAS NOT BEEN DISCLOSED BY THE ASSESSEE. THUS, ASSESSEE HAS SHOWN PART OF TRANSACTIONS TOWARDS PURCHASE OF FLAT. THE LD. DR FUR THER SUBMITTED THAT THE ASSESSEE HAS NEVER RAISED ANY OBJECTION BEFORE THE AUTHORITIES BELOW ON THE ISSUE OF DEFECT IN THE SATISFACTION RECORDED FOR LEVYING PENALTY. THE ASSESSEE FOR THE FIRST TIME HAS RAISED OBJECTION WITH RESPECT TO RECORDING OF SATISFAC TION BEFORE THE TRIBUNAL. THE LD. DR PRAYED FOR UPHOLDING THE IMPUGNED ORDER AND DISMISSING THE APPEAL S OF THE ASSESSEE. 7 . CONTROVERTING THE SUBMISSIONS ADVANCED ON BEHALF OF THE DEPARTMENT, THE LD. AR SUBMITTED THAT THE ASSESSEE IN ITS BOOKS OF ACCOUN T HAS NOT SHOWN ANY PART OF THE TRANSACTION QUA PURCHAS E OF FLAT. IT IS ONLY DURI NG THE COURSE OF SEARCH THAT THE ASSESSEE ADMITTED INVESTMENT OF DURI NG THE COURSE OF SEARCH THAT THE ASSESSEE ADMITTED INVESTMENT OF RS.14.25 LAKHS TOWARDS PURCHAS E OF FLAT AND THE SAME WAS THEREAFTER OFFERED AS ADDITIONAL INCOME. THE ADDITIO N WAS MADE BY THE ASSESSING OFFICER U/S. 69 OF THE ACT. THE ASSESSEE NEVER CONTESTED THE ADDITION AND PAID TAX ON THE SAME. 8 . WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF R IVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED VARIOUS DECISIONS ON WHICH THE LD. AR HAS PLACED RELIANCE. 9 . IT IS AN UNDISPUTED FACT THAT DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE FOUND AND SEIZED WHICH INDICATE THAT ASSESSEE HAS INVESTED RS. 14.25 LAKHS FOR PURCHAS E OF F LAT . THE UNDISCLOSED INVESTMENT WAS OFFERED BY THE A SSESSEE AS ADDITIONAL INCOME; RS.10 LAKHS IN 7 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 ASSESSMENT YEA R 2007 - 08 AND RS. 4.25 LAKHS IN ASSESSMENT YEAR 2008 - 09. WHILE RECORDING SATISFACTION FOR INITIATING PENALTY PROCEEDINGS , THE ASSESSING OFFICER OBSE RVED THAT PENALTY PROCEEDINGS U/S. 271(1) (C) ARE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. WHILE LEVYING PENALTY, THE ASSESSING OFFICER INVOKED EXPLANATION 5 A TO SECTION 271(1) (C) AND OBSERVED AS UNDER: 6. FROM THE ABOVE EXPLANATION IT IS CRYSTAL CLEAR THAT THE ASSESSEE SATISFIES ALL THE CONDITIONS FOR LEVY OF PENALTY AND THERE IS A DEEMED CONCEALMENT OF INCOME. THE TRANSACTION AS REFLECTED IN THE SEIZED DOCUMENTS HAS COME TO THE LIGHT IN VIEW OF THE SEARCH ACTION. THESE TRANSACTIONS HA VE NOT BEEN RECORDED IN THE ASSESSEES BOOKS OF ACCOUNTS. A MERE SUBMISSION THAT THE ASSESSEE HAS DISCLOSED THE IMPUGNED SUM WHILE FILING THE RETURN OF INCOME AND PAYMENT OF TAXES THEREAFTER, WILL NOT COME TO HELP FOR NON LEVY OF PENALTY IN VIEW OF SPECIFI C PROVISIONS REPRODUCED ABOVE. 7. I AM, THEREFORE, SATISFIED THAT THE ASSESSEE HAS WITHOUT ANY REASONABLE CAUSE FURNISHED INACCURATE PARTICULARS OF INCOME FOR ASSTT. YEAR 2007 - 08 AND MADE HIMSELF LIABLE FOR LEVY OF PENALTY. I , THEREFORE, LEVY A PENALTY OF RS. 3,54,956/ - WHICH IT AT 100% OF THE TAX SOUGHT TO HAVE BEEN EVADED BY HIM. I N ASSESSMENT YEAR 2008 - 09, THE ASSESSING OFFICER IN THE ORDER OF LEVYING PENALTY, AFTER INVOKING EXPLANATION 5A TO SECTION 271(1) (C) MADE IDENTICAL REMARKS. 10 . THE HON'BLE APEX COURT IN THE CASE OF DILIP N. SHROFF VS. JCIT (SUPRA.) HAS OBSERVED THAT CONCEALMENT AND INACCURATE PARTICULARS ARE TWO DIFFERENT EXPRESSIONS CONVEYING DIFFERENT MEANING. THE HONBLE APEX COURT IN THE CASE OF T. ASHOK PAI VS. CIT (SUPR A.) HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. CONCEALMENT REFERS DELIBERATE ACT ON THE PART OF THE ASSESSEE. THE MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERAT E ACT OF SUPPRESSIO - VERI OR SUGGESTIO FALSI. 8 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY & ORS, 359 ITR 565 (KAR.) HAS HELD THAT CONCEALMENT AND FURNISHING INACCURATE PARTICULARS OF INCOME ARE DIFFERENT . THUS, THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION WHETHER IT IS A CASE OF CONCEALMENT OF INCOME OR IT IS FURNISHING OF INACCURATE PARTICULARS OF INCOME. THERE SHOULD BE NO AMBIGUITY IN THE MIND OF ASSESSING OFFICER. 11. THE LAW LAID DOWN BY THE HON'BLE APEX COURT AND HON'BLE HIGH COURT CLEARLY ESTABLISHES THAT FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME ARE TWO DIFFERENT CHARGES. THERE SHOULD BE NO AMBIGUITY IN THE MIND OF ASSESSING OFFICER AT T HE TIME OF RECORDING SATISFACTION AND THEREAFTER, AT THE TIME OF LEVYING PENALTY WITH RESPECT TO THE CHARGE FOR LEVYING PENALTY U/S. 271(1) (C) OF THE ACT. THE ASSESSING OFFICER SHOULD BE CLEAR IN HIS MIND AT THE TIME OF RECORDING SATISFACTION THE LIMB OF SHOULD BE CLEAR IN HIS MIND AT THE TIME OF RECORDING SATISFACTION THE LIMB OF CLAUSE (C) OF SUB SECTION (1) OF SECTION 271 THAT HAS TO BE INVOKED. THE WORD CONCEALMENT MEANS ACT OF HIDING SOMETHING OR PREVENTING IT FROM BEING KNOWN. THE EXPRESSION CONCEALMENT OF INCOME DENOTES WITHHOLDING OR HIDING INFORMATION ABOUT INCOME OR INVESTMENT IN THE BOOKS OR IN THE RETURN OF INCOME. SUCH ACT OF CONCEALMENT IS GENERALLY DELIBERATE. ON THE OTH ER HAND, INACCURATE PARTICULARS DENOTE THAT SOME INFORMATION IS FURNISHED AND THE SAID INFORMATION IS WRONG , INCORRECT, FALSE, DEFECTIVE OR INCOMPLETE. FOR PARTICULARS TO BE INACCURATE, THERE HAS TO BE FIRST FURNISHING OF INFORMATION OR PARTICULARS. 9 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 1 2 . IN THE PRESENT CASE, PENALTY U/S. 271(1) R.W.S 5A HAS BEEN LEVIED IN RESPECT OF ADDITIONAL INCOME OFFERED BY ASSESSEE REPRESENTING INVESTMENT MADE IN THE FLAT. THE ASSESSING OFFICER OBSERVED THAT INVESTMENT MADE FOR PURCHASING FLATS HAS NOT BEEN REFLEC TED IN THE BOOKS OF ASSESSEE. THE RELEVANT EXTRACT OF THE FINDINGS OF ASSESSING OFFICER FROM ORDER LEVYING PENALTY HAVE SEEN EXTRACTED ABOVE IN PARA 9. THUS, IT IS A CASE OF CONC EALMENT OF INCOME. IN THE ORDER LEVYING PENALTY, THE ASSESSING OFFICER HAS REM ARKED THAT IT IS A CASE OF DEEMED CONCEALMENT OF INCOME . A FTER HAVING COMING TO CONCLUSION THAT IT IS A CASE OF DEEMED CONCEALMENT , THE ASSESSING OFFICER THEREAFTER HELD THAT PENALTY U/S. 271(1)(C) HAS BEEN LEVIED ON THE ASSESSEE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. AFTER EXAMINING THE ORDER PASSED U/S. 271(1) (C), WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT CLEAR IN HIS UNDERSTANDING WHETHER IT IS A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. A MBI GUITY AND CONFUSION IN THE MIND OF ASSESSING OFFICER IS WRIT LARGE. A MBI GUITY AND CONFUSION IN THE MIND OF ASSESSING OFFICER IS WRIT LARGE. UNDER SUCH CIRCUMSTANCES, PENALTY U/S. 271(1) (C) IS NOT SUSTAINABLE. ACCORDINGLY, THE IMPUGNED ORDER FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 ARE SET ASIDE AND APPEAL OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS ARE ALLOWED. 13 . IN ASSESSMENT YEAR 2009 - 10, IT IS AN UNDISPUTED FACT THAT DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) HAD NOT EXPIRED. THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME U/S. 139(1) OF THE ACT. THE ONLY RETURN FILED BY ASSESSEE WAS IN RESPONSE TO THE NOTICE U/S. 153A OF THE ACT. THE PERIOD RELEVANT TO ASSESSMENT YEAR 2009 - 10 IS SPECIFIED PREVIOUS YEAR AS DEFINED UNDER SECTION 271AAA. THE CONTENTION OF THE ASSESSEE IS THAT IN ASSESSMENT YEAR 2009 - 10 PENALTY U/S. 271(1)(C) IS NOT LEVIABLE, IF AT ALL, PENALTY WAS BE LEVIED , IT COULD BE U/S. 2 71AAA OF THE ACT. BEFORE 10 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 PROCEEDING FURTHER, IT WOULD BE RELEVANT TO REFER TO THE PROVISIONS OF SECTION 271AAA. THE RELEVANT EXTRACT OF SECTION 271AAA IS REPRODUCED HEREIN BELOW: (1) THE ASSESSING OFFICER MAY, NOT WITHSTANDING ANYTHING CONTAINED IN ANY OT HER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1 ST DAY OF JUNE, 2007 [BUT BEFORE THE 1 ST DAY OF JULY, 2012], THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. THE E XPLANATION TO SECTION 271AAA DEFINES SPECIFIED PREVIOUS YEAR IS HEREIN BELOW: (B) SPECIFIED PREVIOUS YEAR MEANS THE PREVIOUS YEAR - (I) WHICH ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB - SECTION (1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEA R BEFORE THE SAID DATE ; OR (II) IN WHICH SEARCH WAS CONDUCTED . (II) IN WHICH SEARCH WAS CONDUCTED . A PERUSAL OF THE ABOVE PROVISION S OF SECTION 271AAA MAKES IT CLEAR THAT PROVISIONS OF SECTION 271AAA ARE ATTRACTED IN RESPECT OF UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. THE FOLLOWING CONDITIONS ARE TO BE SATISFIED FOR A PARTICULAR RELEVANT YEAR TO FALL WITHIN THE AMBIT OF DEFINITION OF SPECIFIED PREVIOUS YEAR; I) THE PREVIOUS YEAR SHOULD END BEFORE THE DATE OF SEARCH II) T HE DATE OF FILING RETURN OF INCOME U/S. 139 (1) FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH . III) THE ASSESSEE HAS NOT FURNISHED RETURN OF INCOME FOR SAID PREVIOUS YEAR. IN THE INSTANT CASE, THE DATE OF SEARCH IS 11.09.2009. THE DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) OF THE ACT IN THE PRESENT CASE IS 11 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 30.09.2009. UNDISPUTEDLY, THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR 2009 - 10. THUS, ALL THE THREE CO NDITIONS ARE SATISFIED. THUS, W E ARE OF CONSIDERED VIEW THAT PREVIOUS YEAR 2008 - 09 RELEVANT TO ASSESSMENT YEAR 2009 - 10 FALLS WITHIN CLAUSE ( I ) OF THE DEFINITION OF SPECIFIED PREVIOUS YEAR AS GIVEN IN EXPLANATION (B) TO SECTION 271AAA. THE ASSESSING OFFIC ER HAS ERRED IN INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT IN ASSESSMENT YEAR 2009 - 10 . 14. THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHRI MANGESH TUPE VS. ACIT (SUPRA.) UNDER SIMILAR CIRCUMSTANCES DELETED THE LEVY OF PENALTY U/S. 271(1) (C) OF THE ACT. THE R ELEVANT EXTRACT OF THE FINDINGS OF TRIBUNAL ARE REPRODUCED AS UNDER : 34. INSOFAR ASSESSMENT YEAR 2008 - 09 IS CONCERNED, A PRELIMINARY ISSUE HAS BEEN RAISED BY THE ASSESSEE, WHICH IS TO THE EFFECT THAT THE ORDER PASSED BY THE ASSESSING OFFICER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NULL AND VOID. THE AFORESAID PLEA IS RAISED ON THE BASIS OF SECTION 271AAA OF THE ACT. 35. SECTION 271AAA DEALS WITH LEVY OF PENALTY ON THE UNDISCLOSED INCOME OF THE SPECIFIED PREVI OUS YEAR IN THE CASE OF AN ASSESSEE WHERE SEARCH UNDER SECTION 132 OF THE ACT HAS BEEN INITIATED ON OR AFTER 01.06.2007. IN THE PRESENT CASE, THE SEARCH HAS BEEN INITIATED UNDER SECTION 132 OF THE ACT ON 21.02.2008 AND ACCORDINGLY THE SPECIFIED PREVIOUS YEAR AS PER EXPLANATION (B)(II) OF SECTION 271AAA OF THE ACT IS THE PREVIOUS YEAR ENDING ON 31.03.2008 CORRESPONDING TO THE ASSESSMENT YEAR 2008 - 09. MOREOVER, IT IS ALSO CLEAR THAT THE INCOME ASSESSED BY THE ASSESSING OFFICER FALLS WITHIN THE MEANING OF UNDISCLOSED INCOME DEFINED IN EXPLANATION (A) (I) TO SECTION 271AAA OF THE ACT. THUS, THE PROVISIONS OF SECTION 271AAA OF THE ACT GOVERN THE LEVY OF PENALTY FOR THE ASSESSMENT YEAR 2008 - 09, AND ACCORDINGLY IN VIEW OF SUB SECTION (3) OF SECTION 271AAA OF T HE ACT, NO PENALTY UNDER SECTION 271(1) (C) OF THE ACT CAN BE LEVIED IN RESPECT OF THE IMPUGNED INCOME. 36. IN VIEW OF THE AFORESAID LEGAL POSITION, WE HOLD THAT THE IMPUGNED ORDER OF THE ASSESSING OFFICER DATED 30.06.2010 LEVYING PENALTY UNDER SECTION 271 (1) (C) OF THE AC IS UNTENABLE. WE HOLD SO. ACCORDINGLY, THE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2008 - 09 IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT. THUS, IN VIEW OF THE FACT S OF THE CASE , WE HOLD THAT THE PROVISIONS OF SECTION 271(1) (C) ARE NOT ATTRACTED IN ASSESSMENT YEAR 2009 - 10 AND HENCE, 12 ITA NOS. 2183 TO 2185/ PUN/2014 A.YS.2007 - 08 TO 2009 - 10 PENALTY LEVIED U/S. 271(1) (C) IS NOT SUSTAINABLE. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF THE ASSESSEE IS ALLOWED. 15. IN THE RESULT, APPEAL S OF THE ASSESSEE FOR ALL THE THREE ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2007 - 08, 2008 - 09 AND 2009 - 10 ARE ALLOWED. ORDER PRO NOUNCED ON TUESDAY , THE 31 ST DAY OF OCTOBER , 201 7 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 31 ST OCTOBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - CENTRAL, PUNE. 3. THE CIT (APPEALS) - CENTRAL, PUNE. 4. THE CIT, CENTRAL, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .