Adam Haji Osman Bhaya, Jam Salaya V. The Income Tax Officer, Ward-3(2), JAMNAGAR

ITA 229/RJT/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72602 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 01-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: GYAN PIPARA
• Keywords: Gift; Search and seizure; Revised return; Reassessment proceedings
• Section: 68; 148; 132; 154; 139; 153A

Judgement Text

: : IN THE INCOME TAX APPELLATE TRIBUNAL: RAJKOT BENCH: RAJKOT .. .. BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTA VA AM ITA NO. 228/RJT/2012 / ASSESSMENT YEAR : 2004-05 SHRI ABUBAKAR HAJI ISMAIL BHAYA, V. ITO, WARD 3 (2) BARLOWAS, STATION ROAD JAMNAGAR JAM-SALAYA PAN: ADRPB 1546 L ITA NO. 229/RJT/2012 / ASSESSMENT YEAR : 2004-05 ADAM HAJI OSMAN BHAYA V. ITO, WARD 3 (2) PAN: ABVPB 6212 B JAMNAGAR ITA NO. 230/RJT/2012 / ASSESSMENT YEAR : 2004-05 BASHIR HAJI OSMAN BHAYA V. ITO, WARD 3 (2) PAN: AHXPB 0350 N JAMNAGAR ITA NO. 231/RJT/2012 / ASSESSMENT YEAR : 2004-05 JUNUS HAJI ISMAIL BHAYA V. ITO, WARD 3 (2) PAN: ADRPB 1545 K JAMNAGAR ITA NO. 232/RJT/2012 / ASSESSMENT YEAR : 2004-05 HAJRABEN HAJI OSMAN BHAYA V. ITO, WARD 3 (2) PAN: ABVPB 6211 C JAMNAGAR ITA NO. 233/RJT/2012 / ASSESSMENT YEAR : 2004-05 HUSSAIN HAJI OSMAN BHAYA V. ITO, WARD 3 (2) PAN: AGCPB 5735 F JAMNAGAR ITA NO. 234/RJT/2012 / ASSESSMENT YEAR : 2005-06 RASHID SALEMAMAD BHAYA V. ITO, WARD 3 (2) PAN: AGCPB 5676 P JAMNAGAR ITA NO. 235 TO 240 /RJT/2012 / ASSESSMENT YEAR : 2000-01 TO 2005-06 HAJI ISMAIL HAJI SALEMAN BHAYA V. ITO, WARD 3 ( 2) PAN: ARAPS 4883 N JAMNAGAR ITA NO. 241& 242/RJT/2012 / ASSESSMENT YEAR : 2004-05 & 2005-06 SALIM HAJI ISMAIL SALEMAN BHAYA V. ITO, WARD 3 (2) PAN: AHTPB 7547 D JAMNAGAR ITA NO. 243 TO 247/RJT/2012 / ASSESSMENT YEAR : 2001-02 TO 2005-06 HAJI OSMAN HAJI SALEMAN BHAYA V. ITO, WARD 3 (2 ) PAN: ABVPB 6213 A JAMNAGAR 2 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA DATE OF HEARING : 23.08.2013 DATE OF PRONOUNCEMENT : 30.09.2013 FOR THE ASSESSEES : SHRI GYAN PIPARA, CA FOR THE REVENUE : SHRI VILAS V. SHINDE, DR / ORDER D K SRIVASTAVA: PRESENT BUNCH OF APPEALS HAS BEEN FILED BY SEVERAL ASSESSEES OF HAJI FAMILY OF JAM-SALAYA AGAINST THE ORDERS SEPARATELY PASSED BY THE CIT (A), JAMNAGAR BY WHICH HE HAS CONFIRMED FOL LOWING PENALTIES LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX A CT ON THE BASIS OF DIFFERENCE IN INCOME ORIGINALLY RETURNED U/S 139 AND THE TOTAL IN COME FINALLY ASSESSED BY THE ASSESSING OFFICER U/S 153(A)/153(C) OF THE INCOME-T AX ACT:- 2. AT THE TIME OF HEARING, THE LD. AUTHORIZED REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT FACTUAL ASPECTS AND THE ISSUES IN AL L THE APPEALS WERE SUBSTANTIALLY IDENTICAL AND THEREFORE A COMMON ORDER MAY BE PASSE D TO DISPOSE OF THE PRESENT BENCH OF APPEALS. AFORESAID SUBMISSION MADE BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS SUPPORTED BY THE LD. DEPARTMEN TAL REPRESENTATIVE. WE FIND SR NO. ITA NO. NAME OF THE ASSESSEE AY INCOME AS ORIGINALLY RETURNED U/S 139 INCOME AS RETURNED U/S 153A/153C FINAL LY ASSESSED INCOME DIFFERENCE BETWEEN INCOME ORIGINALLY RETURNED U/S 139 AND INCOME RETURNED U/S 153A/153C PENALTY LEVIED BY AO 1 228/RJT/2012 ABUBAKAR ESMAIL BHAYA 2004-05 47270 47270 338570 291300 75570 2 229/RJT/2012 ADAM OSMAN BHAYA 2004-05 38940 14894 0 148940 110000 18790 3 230/RJT/2012 BASIR OSMAN BHAYA 2004-05 50320 1503 20 150320 100000 19060 4 231/RJT/2012 JUNUS ISMAIL BHAYA 2004-05 47290 157 290 157290 110000 21190 5 232/RJT/2012 HAJRABEN OSMAN BHAYA 2004-05 96770 1 46770 146770 50000 5000 6 233/RJT/2012 HUSSEIN OSMAN BHAYA 2004-05 29280 12 9280 129280 100000 14860 7 234/RJT/2012 RASHID SALEMAMAD BHAYA 2005-06 93500 93500 154200 60700 132560 8 235/RJT/2012 ISMAIL SALEMAN BHAYA 2000-01 48050 1 48050 148050 100000 20470 9 236/RJT/2012 ISMAIL SALEMAN BHAYA 2001-02 48430 1 48430 148430 100000 20930 10 237/RJT/2012 ISMAIL SALEMAN BHAYA 2002-03 45220 145220 145220 100000 18410 11 238/RJT/2012 ISMAIL SALEMAN BHAYA 2003-04 44280 194280 194280 150000 33900 12 239/RJT/2012 ISMAIL SALEMAN BHAYA 2004-05 47080 197080 197080 150000 33120 13 240/RJT/2012 ISMAIL SALEMAN BHAYA 2005-06 95190 245190 481290 386100 112560 14 241/RJT/2012 SALIM ISMAIL SALEMAN BHAYA 2004-05 50620 150620 150620 100000 169124 15 242/RJT/2012 SALIM ISMAIL SALEMAN BHAYA 2005-06 102010 202010 1000110 898100 294682 16 243/RJT/2012 OSMAN SALEMAN BHAYA 2001-02 51000 1 41000 141000 90000 17100 17 244/RJT/2012 OSMAN SALEMAN BHAYA 2002-03 33100 1 43100 143100 110000 17620 18 245/RJT/2012 OSMAN SALEMAN BHAYA 2003-04 45730 1 45730 145730 100000 18146 19 246/RJT/2012 OSMAN SALEMAN BHAYA 2004-05 59810 1 49810 149810 90000 112136 20 247/RJT/2012 OSMAN SALEMAN BHAYA 2005-06 107380 147380 147380 40000 8000 TOTAL 1181270 3031270 4417470 3236200 11632 28 3 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA THAT THE FACTS AS WELL AS ISSUES IN ALL THE APPEALS ARE SIMILAR. IT IS THEREFORE CONVENIENT TO DISPOSE OF THE PRESENT BUNCH OF APPEA LS BY A CONSOLIDATED ORDER. 3. FOR THE SAKE OF CONVENIENCE, FACTS AS WELL AS IS SUES ARE BEING EXTRACTED FROM THE CASE RECORDS OF SHRI ABUBAKAR HAJI ISMAIL BHAYA V. ITO, ITA NO.228/RJT/2012, IN WHICH THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF RS.75,570/- LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT ON THE SUO-MOTTO ADHOC DISCLOSURE MADE IN THE R ETURN OF INCOME FILED U/S 153C OF THE ACT. IN VIEW OF FACTS AND SUBMISSIONS F ILED, THE IMPUGNED PENALTY OF RS.75,570/- OUGHT TO HAVE BEEN DELETED. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE FINAL ASSESSED INCOME HAVING NOT BEEN PROPERLY DETERMINED AS PER T HE DIRECTIONS OF THE HONBLE ITAT IN THE QUANTUM APPEAL AND THE RECTIFIC ATION U/S 154 OF THE ACT FOR THE SAME BEING YET PENDING FOR DISPOSAL AT AOS END, THE PENALTY LEVIED ON THE ADHOC DISCLOSURE MADE BY THE APPELLANT AS WE LL AS GIFT FINALLY SUSTAINED IS EVEN OTHER WISE NOT JUSTIFIED. 4. SEARCH AND SEIZURE OPERATIONS U/S 132OF THE INCO ME-TAX ACT WERE CARRIED OUT BY THE INCOME-TAX AUTHORITIES ON 29.12.2005 IN HAJI GROUP OF CASES OF JAM-SALAYA DURING WHICH RESIDENTIAL PREMISES OF SHRI ABDULLABH AI HAJI SALEMAN BHAYA AND SHRI HASAMBHAI HAJI SALEMAN BHAYA WERE COVERED. THE ASSE SSEE-GROUP IS ENGAGED IN THE BUSINESS OF PLYING SEA VESSELS BETWEEN INDIA AN D DUBAI AND OTHER NEARBY COUNTRIES IN THE MIDDLE-EAST. DURING THE COURSE OF SEARCH, SOME INCRIMINATING MATERIALS/INFORMATION WERE GATHERED SUGGESTING INTR ODUCTION OF ASSESSEES OWN MONEY THROUGH GIFTS SHOWN AS RECEIVED FROM OVERSEAS . THE ASSESSEE THEREAFTER FILED A LETTER DATED 28.03.2006 IN THE OFFICE OF TH E ADDITIONAL DIRECTOR OF INCOME-TAX (INVESTIGATION) IN WHICH DISCLOSURE OF UNDISCLOSED INCOME OF RS.1.40 CRORES (COVERING THE AMOUNT OF GIFTS SHOWN AS RECEIVED FRO M OVERSEAS) WAS MADE. THE AFORESAID DISCLOSURE WAS MADE AT THE RATE OF RS.35 LAKHS EACH IN THE CASE OF FAMILY MEMBERS OF (I) ABDULLABHAI HAJI SULEMAN BHAYA, (II) HASAMBHAI HAJI SULEMAN BHAYA, (III) ISMAILBHAI HAJI SALEMAN BHAYA, AND (IV ) OSMANBHAI HAJI SULEMAN 4 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA BHAYA. IT IS QUITE EVIDENT THAT THE AFORESAID DISC LOSURE OF UNDISCLOSED INCOME WAS MADE BY THE ASSESSEE-GROUP FOLLOWING THE RECOVERY O F INCRIMINATING MATERIALS/INFORMATION DURING THE COURSE OF SEARCH O PERATIONS CARRIED OUT BY THE INCOME-TAX AUTHORITIES. 5. THE ASSESSEE, NAMELY, SHRI ABUBAKAR HAJI ISMAIL BHAYA, IS A MEMBER OF THE AFORESAID FAMILY. HE FILED HIS ORIGINAL RETURN OF I NCOME U/S 139 ON 03.08.2004, I.E., BEFORE THE DATE OF SEARCH IN WHICH HE RETURNED TOTA L INCOME OF RS.47,270/-. ON THE BASIS OF MATERIALS RECOVERED IN THE COURSE OF SEARC H AND POST SEARCH ENQUIRIES, THE ASSESSEE FILED A SUO-MOTO RETURN ON 29.03.2007 IN W HICH TOTAL INCOME OF RS.47,270 WAS ONCE AGAIN SHOWN. IN RESPONSE TO NOTICE ISSUED BY THE AO U/S 153C, RETURN WAS FILED BY THE SAID ASSESSEE NAMELY SHRI ABUBAKAR HAJI ISMAIL BHAYA ON 09.10.2007 RETURNING TOTAL INCOME ONCE AGAIN AT RS. 47,270/-. TOTAL INCOME OF THE SAID ASSESSEE WAS FINALLY ASSESSED AT RS.3,38,570/- AFTER GIVING EFFECT TO THE ORDER PASSED BY THIS TRIBUNAL IN QUANTUM APPEAL. IT IS TH E DIFFERENCE (I.E., RS.2,91,300/-) BETWEEN THE INCOME AS ORIGINALLY RETURNED U/S 139 ( RS.47,270/-) AND THE INCOME FINALLY ASSESSED (RS.3,38,570/-) ON THE BASIS OF WH ICH PENALTY AMOUNTING TO RS.75,570/- HAS BEEN LEVIED BY THE ASSESSING OFFICE R, WHICH, ON APPEAL, HAS BEEN CONFIRMED BY THE LD. CIT(A) FOR THE DETAILED REASON S GIVEN BY HIM IN HIS APPELLATE ORDER. SAME IS THE CASE WITH ALMOST ALL THE ASSESSE ES. ON IDENTICAL FACTS AND SITUATION, THE LD CIT(A) HAS CONFIRMED THE PENALTIE S LEVIED BY THE ASSESSING OFFICER, AGAINST WHICH THE PRESENT BUNCH OF APPEALS HAS BEEN FILED BEFORE THIS TRIBUNAL. 6. IN SUPPORT OF APPEAL, THE LD. AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS IN WHICH HE HAS PLACED TH E ASSESSEES IN FOUR DISTINCT CATEGORIES. CATEGORY I COVERS, ACCORDING TO HIM, CA SES IN WHICH PENALTY HAS BEEN LEVIED ON AMOUNT WHICH HAS ALREADY BEEN DELETED BY THE ITAT OR THE AMOUNT CONSIDERED BY THE ASSESSING OFFICER FOR THE PURPOSE OF PENALTY IS HIGHER THAN FINALLY ASSESSED INCOME. CATEGORY II COVERS THE CASES IN WH ICH FINALLY ASSESSED INCOME IS THE SAME AS SHOWN IN THE VOLUNTARILY REVISED RETURN S OF INCOME FILED AFTER SEARCH. CATEGORY III COVERS CASES IN WHICH FINALLY ASSESSED INCOME IS SAME AS THE ONE SHOWN IN THE RETURN OF INCOME FILED IN PURSUANCE OF NOTICES ISSUED U/S 153A/153C. 5 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA CATEGORY IV COVERS CASES IN WHICH FINALLY ASSESSED INCOME IS HIGHER THAN INCOME SHOWN IN THE RETURNS FILED PURSUANT TO THE NOTICE I SSUED U/S 153A/153C. HE HAS MADE WRITTEN SUBMISSIONS IN RESPECT OF EACH CATEGOR Y OF CASES WHICH READ AS UNDER:- THE 20 APPEALS PERTAINING TO PENALTY U/S 271(1)(C ) ARE DIVIDED IN TO FOLLOWING 4 CATEGORIES. 1. CATEGORY 1: WHERE PENALTY HAS BEEN IMPOSED ON AMOUNT WHICH HAS ALREADY BEEN DELETED BY THE ITAT OR AMOUNT CONSIDERED BY TH E AO FOR THE PURPOSE OF PENALTY IS HIGHER THAN FINALLY ASSESSED INCOME. SR. NO. OF THE CHART ITA NO. NAME OF THE ASSESSEE FINALLY ASSESSED INCOME (AS PER COLUMN NO.12 OF THE CHART) INCOME TAKEN BY THE AO FOR PENALTY (AS PER COLUMN NO.13 OF THE CHART) DIFFERENCE BETWEEN COLUMN NO.13 &12 7 234/RJT/12 RASHID SALEMAMAD BHAYA 1,54,200/- 5,54,200/- 4,00,000/- 14 241/RJT/12 SALIM ISMAIL SALEMAN BHAYA 1,50,620/- 6,50,620/- 5,00,000/- 15 242/RJT/12 SALIM ISMAIL SALEMAN BHAYA 10,00,110/- 11,00,110/- 1,00,000/- 19 246/RJT/12 OSMAN SALEMAN BHAYA 1,49,810/- 5,23,660/- 3,73,850/- THEREFORE, NO PENALTY CAN BE IMPOSED ON THE ABOVE R EFERRED TOTAL SUM OF RS.13,73,850/- IN THE ABOVE REFERRED CASES AS AO HA S WRONGLY CONSIDERED HIGHER AMOUNT AS ASSESSED INCOME AS AGAI NST CORRECT ASSESSED INCOME AS STATED HEREINABOVE. FURTHER, IN ITA NO.241/RJT/12 THOUGH AO HAS CONSIDE RED RS.6,50,620/- AS FINAL ASSESSED INCOME FOR THE PURPOSE OF PENALTY, B UT RS.7,00,000/- PENALTY HAS BEEN IMPOSED. THUS, THE DIFFERENCE BETW EEN RS.7,00,000/- AND RS.6,50,000/- I.E. RS.49,380/- IS ALSO MISTAKE APPARENT FROM RECORD ON WHICH NO PENALTY CAN BE IMPOSED. SIMILARLY, IN ITA 246/RJT/12 PENALTY HAS BEEN IMPOS ED ON RS.5,53,850/-; WHEREAS AO HAS CONSIDERED FINAL ASSESSED INCOME OF RS.5,23,660/-. THUS THIS DIFFERENCE OF RS.30,190/- IS ALSO MISTAKE APPARENT, ON WHICH NO PENALTY CAN BE IMPOSED. 6 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA 2. CATEGORY 2: WHERE FINALLY ASSESSED INCOME IS SAME AS PER VOLUNT ARY REVISED INCOME. SR. NO. OF THE CHART ITA NO. NAME OF THE ASSESSEE DATE OF FILING VOLUNTARY /SUO-MOTO RETURN (AS PER COLUMN 7) INCOME AS PER VOLUNTARY / SUO-MOTO RETURN (AS PER COLUMN 8) FINAL ASSESSED INCOME (AS PER COLUMN 12) AMOUNT ON WH ICH PENALTY LEVIED (AS PER COLUMN 16) 2 229/RJT/12 ADAM OSMAN BHAYA 29/03/2007 1,48,940/- 1,48,940/ - 1,10,000/- 3 230/RJT/12 BASIR OSMAN BHAYA 29/03/2007 1,50,320/- 1,50,320/ - 1,00,000/- 4 231/RJT/12 JUNUS ISMAIL BHAYA 29/03/2007 1,57,290/- 1,57,290/ - 1,10,000/- 5 232/RJT/12 HAJRABEN OSMAN BHAYA 29/03/2007 1,46,770/- 1,46,770/ - 50,000/- 6 233/RJT/12 HUSSEIN OSMAN BHAYA 29/03/2007 1,29,280/- 1,29,280/ - 1,00,000/- 14 241/RJT/12 SALIM ISMAIL SALEMAN BHAYA 29/03/2007 1,50,620/- 1,50,620/ - 1,00,000/- (INCLUDES RS.1,00,000/- AS PER INCOME OF REVISED RETURN) 15 242/RJT/12 SALIM ISMAIL SALEMAN BHAYA 29/03/2007 2,02,010/- 10,00,110/ - 9,98,100/- (INCLUDES RS.1,00,000/- AS PER INCOME OF REVISED RETURN) TOTAL OF THIS CATEGORY 6,70,000 SINCE BEFORE RECEIPT OF ANY NOTICE U/S 153A OR 153C , RETURN OF INCOME HAS BEEN REVISED SUO-MOTO AND SUCH INCOME BEING THE FINAL ASSESSED INCOME, NO PENALTY U/S 251(1)(C) CAN BE LEVIED. FURTHER, RELIANCE IS PLACED ON CBDT CIRCULAR DATED 30/09/1969 WHEREIN THE WORD VOLUNTARY HAS BEEN EXPLAINED WHICH HAS BEEN CONSIDERED BY THE DELHI BENCH OF ITAT IN THE CASE OF PREM ARORA V S. DCIT 149 TTJ 590 (PLEASE REFER PAGE NO.31 OF THE PAPER BOOK DATED 22 /8/13). IN THE OTHER GROUP CASES ON THE SIMILAR SET OF FACT S, PENALTY DELETED BY CIT(A) HAS NOT BEEN APPEALED BY DEPARTMENT BEFORE I TAT. COPY OF ORDER OF CIT(A) IN ONE OF SUCH CASES HAS BEEN FILED ALONG WITH EARLIER SUBMISSION DATED 16/07/2012 IN CASE OF ADAM HAJI OS MAN BHAYA PASSED BY CIT(A)-IV, AHMEDABAD. 7 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA THE PROVISIONS OF SECTION 268A(3) ARE NOT APPLICABL E IN THIS CASE AS EVEN AS PER BOARD CIRCULAR REGARDING MONETARY LIMIT FOR NOT FILING APPEAL, SUCH MONETARY LIMIT IS NOT APPLICABLE WHERE ISSUE IS REP ETITIVE IN NATURE. THEREFORE, THE ISSUE HAS ATTAINED FINALITY AS DEPAR TMENT HAS NOT PREFERRED FURTHER APPEAL AGAINST THE ORDER OF CIT(A). THEREFORE, PENALTY WITH RESPECT TO RS.6,70,000/- AS ABOVE, IS REQUIRED TO BE DELETED PERTAINING TO 7 CASES. 3. CATEGORY 3: WHERE FINALLY ASSESSED INCOME IS SAME AS PER RETURN OF INCOME FILED PURSUANT TO NOTICE U/S 153A/153C. SR. NO. OF THE CHART ITA NO. NAME OF THE ASSESSEE DATE OF FILING RETURN U/S 153A / 153C (AS PER COLUMN NO.9/10) INCOME AS PER RETURN U/S 153A /153C(AS PER COLUMN 11) FINAL ASSESSED INCOME (AS PER COLUMN 12) AMOUNT ON WHICH PENALTY LEVIED (AS PER COLUMN 16) 8 235/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 1,48,050/- 1,48,050/- 1,00,000/- 9 236/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 1,48,430/- 1,48,430/- 1,00,000/- 10 237/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 1,45,220/- 1,45,220/- 1,00,000/- 11 238/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 1,94,280/- 1,94,280/- 1,50,000/- 12 239/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 1,97,080/- 1,97,080/- 1,50,000/- 13 240/RJT/12 ISMAIL SALEMAN BHAYA 29/03/2007 2,45,190/- 4,81,290/- 3,86,100/- (INCLUDES RS.1,50,000/ - OF THIS CATEGORY) 16 243/RJT/12 OSMAN SALEMAN BHAYA 28/03/2007 1,41,000/- 1,41,000/- 90,000/- 17 244/RJT/12 OSMAN SALEMAN BHAYA 28/03/2007 1,43,100/- 1,43,100/- 1,10,000/- 18 245/RJT/12 OSMAN SALEMAN BHAYA 28/03/2007 1,45,730/- 1,45,730/- 1,00,000/- 19 246/RJT/12 OSMAN SALEMAN BHAYA 28/03/2007 1,49,810/- 1,49,810/- 5,53,850/- (INCLUDES RS.90,000/- OF THIS CATEGORY) 20 247/RJT/2012 OSMAN SALEMAN BHAYA 28/03/2007 1,47,380/- 1,47,380/- 40,000/- TOTAL OF THIS CATEGORY 10,80,000 / - THEREFORE, (I) FOLLOWING THE JUDGMENT OF ITAT, DELHI BENCH IN THE CASE OF PREM ARORA VS. DCIT 149 TTJ 590, NO PENALTY CAN BE IMP OSED IN SUCH CASES. IN THESE CASES, THE FOLLOWING OBSERVATIONS A RE VERY IMPORTANT \ 8 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA (A) PARA NO.5 WHEREIN JUDGMENT OF AHMEDABAD, ITAT, IN THE CASE OF ACIT V. RUPESH BHOLIDAS PATEL [2009] 309 ITR (AT) 2 17 HAS BEEN CONSIDERED. (B) PARA NO.6.2 WHEREIN DECISION OF ACIT VS. KIRIT DAHYABHAI PATEL [2009] 121 ITD 159 (AHD) HAS BEEN DISTINGUISHED. (C) VARIOUS JUDGMENTS OF THE SUPREME COURT HAS BEEN CONSIDERED IN PARA 8.1 (D) THE JUDGMENT OF DELHI HIGH COURT IN CASE OF SAS PHARMACEUTICALS (PARA 27) HAS BEEN CONSIDERED. (E) IN PARA NO.9 & 10, PROVISIONS OF SECTION 153A H AS BEEN CONSIDERED. ACCORDINGLY, FOLLOWING THE JUDGMENT OF DELHI ITAT, IN THE CASE OF PREM ARORA AND DELHI HIGH COURT IN CASE OF SAS PHARMACEU TICALS, NO PENALTY CAN BE IMPOSED IN THE ABOVE REFERRED CASES. (II) RELIANCE IS ALSO PLACED IN THE JUDGMENT OF HIG H COURT OF GUJARAT IN THE CASE OF CIT-I V. JYOTI LTD. [2013] 34 TAXMANN.COM 6 5 (GUJARAT) (PLACED AT PAGE NO.6 & 7 OF THE PAPER BOOK). (III) RELIANCE IS ALSO PLACED IN THE JUDGMENT OF HI GH COURT OF GUJARAT IN CASE OF CIT V. GIRISH DEVCHAND RAJANI [2013] 33 TAX MANN.COM 174 (GUJARAT) (PLACED ON PAGE NOS. 8 TO 11 OF THE PAPER BOOK). (IV) RELIANCE IS ALSO PLACED IN THE JUDGMENT OF AHM EDABAD ITAT IN THE CASE OF JAYSUKH M. PARMAR V. ACIT [2013] 33 TAXMANN .COM 422 (AHMEDABAD TRIB) (PLACED ON PAGE NO.12 TO 23 OF THE PAPER BOOK) (V) IN THE SIMILAR SET OF FACTS IN OTHER FAMILY MEM BERS, ADDITION WAS DELETED BY CIT(A) ON WHICH NO FURTHER APPEAL HAS BE EN PREFERRED BY THE DEPARTMENT. THE PROVISIONS OF SECTION 268A(3) ARE NOT APPLICABL E IN THIS CASE AS EVEN AS PER BOARD CIRCULAR REGARDING MONETARY LIMIT FOR NOT FILING APPEAL, SUCH MONETARY LIMIT IS NOT APPLICABLE WHERE ISSUE IS REPETITIVE IN NATURE. THEREFORE, THE ISSUE HAS ATTAINED FINALI TY AS DEPARTMENT HAS NOT PREFERRED FURTHER APPEAL AGAINST THE ORDER OF C IT(A). 9 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA (VI) THUS PENALTY WITH RESPECT OF TOTAL AMOUNT OF R S.10,80,000/- REQUIRES TO BE DELETED. 4. CATEGORY 4: WHERE FINAL ASSESSED INCOME IS HIGHER THAN INCOME P URSUANT TO RETURN U/S SR. NO. OF THE CHART ITA NO. NAME OF THE ASSESSEE INCOME AS PER RETURN U/S 153A / 153C (AS PER COLUMN NO.11) FINAL ASSESSED INCOME AS PER COLUMN NO.12 DIFFERENCE ON WHICH PENALTY REQUIRED TO BE CONFIRMED 1 228/RJT/12 ABUBAKAR ISMAIL BHAYA 47,270/- 3,38,570/- 2,91,300/- 7 234/RJT/12 RASHID SALEMAMAD BHAYA 93,500/- 1,54,200/- 60,700/- 13 240/RJT/12 ISMAIL SALEMAN BHAYA 2,45,190/- 4,81,290/- 2,36,100/- 15 242/RJT/12 SALIM ISMAIL SALEMAN BHAYA 2,02,010/- 10,00,110/- 7,98,100/- TOTAL OF THIS CATEGORY 13,86,200/ - THEREFORE FOLLOWING THE JUDGMENT OF DELHI ITAT IN T HE CASE OF PREM ARORA (SUPRA), PENALTY WITH RESPECT TO ADDITION OF RS.13, 86,200/- REQUIRED TO BE CONFIRMED. DISTINCTION BETWEEN FACTS OF OUR CASE AND ITSS 11 T O 16/RJT/12 AND OTHERS:- 1. AS PER PARAGRAPH NO.5, OF THE ORDER IN OTHER CAS ES WHICH HAS ALREADY BEEN DECIDED BY HONBLE ITAT, THERE IS A FINDING TH AT THE STATEMENT U/S 132(4) WAS RECORDED; WHEREAS IN THE PRESENT CASES N O STATEMENT U/S 132(4) HAS BEEN RECORDED. 2. IN THE OTHER CASES DECIDED, THERE IS A FINDING T HAT INCRIMINATING MATERIALS WERE FOUND DURING THE COURSE OF SEARCH; WHEREAS IN THE PRESENT CASES, EXCEPT IN ONE CASE I.E. OSMAN HAJI SULEMAN BHAYA, N O MATERIALS WERE FOUND. THEREFORE, THE AMOUNT OFFERED IN THE LETTER WAS SUO MOTO AND NOT BASED ON ANY EVIDENCES/INQUIRIES. 3. AS PER PARA 9 OF THE ORDER IN ITSS 11 TO 16/RJT/ 2012 AND OTHERS, THE FINDING IS BASED ON STATEMENT RECORDED U/S 132(4) A ND CASES AS RELIED UPON. IN THE PRESENT APPEALS THERE WAS NO STATEMENT RECORDED U/S 132(4) AND VARIOUS JUDGMENTS AS STATED HEREINABOVE ARE REQ UIRED TO BE CONSIDERED. 10 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA 7. IN REPLY, THE LD. DEPARTMENTAL REPRESENTATIVE SU PPORTED THE ORDER PASSED BY THE LD. CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CON SIDERED THEIR SUBMISSIONS. 58 APPEALS FILED BY THE ASSESSEES OF THE SAME GROUP IN IDENTICAL FACT-SITUATION HAVE ALREADY BEEN DISMISSED BY THIS TRIBUNAL BY ITS ORDE R DATED 28.02.2013. WE ARE NOW LEFT TO DISPOSE OF REMAINING 20 APPEALS OF THE GROU P. 9. AT THE TIME OF HEARING, THE LD. AUTHORIZED REPRE SENTATIVE FOR THE ASSESSEE SOUGHT TO DISTINGUISH THE FACTS IN THE PRESENT BENC H OF APPEALS WITH THOSE IN THE OTHER BUNCH OF 58 APPEALS OF THE SAME GROUP, WHICH HAS ALREADY BEEN DISMISSED BY US. HE HAS HIGHLIGHTED THE POINTS OF DISTINCTION BE TWEEN THE EARLIER BUNCH OF APPEALS AND THE PRESENT BUNCH OF APPEALS. THEY ARE; ONE, EA RLIER CASES OF THE GROUP WERE DISPOSED OF ON THE BASIS OF STATEMENT RECORDED U/S 132(4) WHEREAS NO SUCH STATEMENT WAS RECORDED IN THE GROUP OF CASES BEFORE US; AND, TWO, INCRIMINATING MATERIALS WERE FOUND, ACCORDING TO HIM, IN THE EARL IER GROUP OF CASES AND NOT IN THE PRESENT GROUP OF CASES. WE HAVE CONSIDERED THE AFOR ESAID SUBMISSIONS OF THE ASSESSEE BY WHICH HE HAS SOUGHT TO DISTINGUISH THE FACTS OF THE PRESENT GROUP OF CASES WITH THOSE IN THE EARLIER GROUP OF CASES WHIC H HAVE SINCE BEEN DISPOSED OF BY US. THE ASSESSEE-GROUP COMPRISES NOT ONLY OF 58 APP EALS WHERE WERE EARLIER DISPOSED OF BY US BUT ALSO OF 20 APPEALS PRESENTLY UNDER CONSIDERATION. SEARCH OPERATIONS WERE CARRIED OUT IN THE GROUP CASES COMP RISING 58 APPEALS, WHICH HAVE SINCE BEEN DISPOSED OF BY US, AND THE PRESENT BUNCH OF 20 APPEALS, WHICH IS UNDER CONSIDERATION. STATEMENT U/S 132(4) WAS RECORDED FO R THE GROUP AS A WHOLE. DISCLOSURES WERE MADE BY THE WHOLE GROUP INCLUDING THE PRESENT BUNCH OF APPEALS. THEREFORE, THERE IS NO EFFECTIVE DISTINCTION IN THE FACT-SITUATION IN THESE 20 APPEALS WITH THE ONE IN 58 APPEALS. 58 APPEALS FILED BY THE ASSESSEES OF THIS GROUP WERE EARLIER DISMISSED BY THIS TRIBUNAL WITH THE FOLLOWI NG OBSERVATIONS:- 9. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY C ONSIDERED THEIR SUBMISSIONS INCLUDING THE AUTHORITIES REFERRED TO B Y THEM IN SUPPORT OF THEIR CASES. FACTS OF THE CASE ARE ABSOLUTELY CLEAR IN TH AT THE ASSESSEES HAD FILED 11 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA ORIGINAL RETURNS OF INCOME U/S 139 BEFORE THE DATE OF SEARCH IN WHICH NOMINAL INCOME WAS RETURNED. SEARCH & SEIZURE OPERATIONS WE RE CARRIED OUT BY THE DEPARTMENT U/S 132 WHICH LED TO RECORDING OF STATEM ENT U/S 132(4) IN WHICH IT WAS CLAIMED THAT SUBSTANTIAL AMOUNTS HAD BEEN RECEI VED AS GIFTS IN EARLIER YEARS. THOUGH THE ASSESSEES FILED THEIR RETURNS BEF ORE NOTICES U/S 153A/153C WERE ISSUED BY THE AO, THEY NEVERTHELESS CLAIMED SUBSTANTIAL AMOUNT AGGREGATING TO ABOUT RS. 1.15 CRORES AS GIFT S RECEIVED FROM CERTAIN PERSONS IN DUBAI. THE AO HAS GIVEN DETAILED REASONS IN THE ASSESSMENT ORDER TO ESTABLISH THE BOGUS NATURE OF GIFTS. THE A SSESSEES ALSO DECLARED ADDITIONAL INCOME IN THE RETURNS FILED U/S 153A/153 C, WHICH CONFIRMS THE FACT THAT THEIR TAXABLE INCOME WAS MUCH MORE THAN WHAT W AS SHOWN BY THEM IN THEIR ORIGINAL RETURNS OF INCOME FILED U/S 139 BEFO RE THE DATE OF SEARCH. IF THE DEPARTMENT HAD NOT CARRIED OUT SEARCHES U/S 132, TH E ENTIRE INCOME NOW ASSESSED AS ADDITIONAL INCOME WOULD HAVE ESCAPED FR OM TAX NET. 10. IT IS QUITE OBVIOUS ON BARE PERUSAL OF THE MATE RIALS AVAILABLE ON RECORD THAT ADDITIONAL INCOME WHICH WAS SURRENDERED BY THE ASSESSEES AFTER SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT WERE NOT SH OWN BY THEM IN THEIR ORIGINAL RETURNS OF INCOME FILED U/S 139 BEFORE THE DATE OF SEARCH. IT IS WELL- SETTLED THAT IT IS THE ORIGINAL RETURN OF INCOME WI TH REFERENCE TO WHICH CONCEALMENT HAS TO BE SEEN. THIS POSITION IS WELL B ROUGHT OUT IN THE JUDGMENT OF THE HONBLE SUPREME COURT IN CIT V. ONKAR SARAN AND SONS, 195 ITR 1, 6- 9 (SC). RELEVANT PORTION OF THE SAID JUDGMENT READS AS UNDER:- WE HAVE HEARD BOTH COUNSEL AND ALSO HAVE BEEN TAKE N THROUGH THE VARIOUS DECISIONS CITED BEFORE US WE ARE OF THE OPI NION THAT THE VIEW TAKEN BY THE MAJORITY OF THE HIGH COURTS IS THE MOR E ACCEPTABLE AND MORE PRACTICAL VIEW WE DO NOT WISH TO REITERATE THE REASONING GIVEN IN THESE DECISIONS SUFFICE IT TO SAY THAT, AMONG OTHER DECISIONS, THE ISSUE HAS BEEN DISCUSSED AT LENGTH IN THE DECISION OF THE MADRAS HIGH COURT IN CIT VS S S K G ARTHANARISWAMY CHETTIAR [1982] 13 6 ITR 145 (TO WHICH ONE OF US - RAMASWAMY J - WAS A PARTY) AND TH E DECISION OF THE 12 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA DELHI HIGH COURT IN CIT (ADDL) VS JOGINDER SINGH [1 985] 151 ITR 93 (TO WHICH ANOTHER OF US - RANGANATHAN J - WAS A PAR TY) FOR THE REASONS EXPLAINED IN THESE DECISIONS AND BRIEFLY SU MMARISED BELOW, WE THINK WE SHOULD UPHOLD THE VIEW TAKEN BY THE HIG H COURT IN THE PRESENT CASE. WE MAY START WITH THE POSITION THAT, AFTER THE DECI SION OF THIS COURT IN BRIJ MOHAN VS CIT [1979] 120 ITR 1, THERE CAN BE NO DOUBT THAT THE LAW APPLICABLE TO PENALTY PROCEEDINGS UNDER SECTION 271(1) (A) OR (C) IS THE LAW AS IN FORCE ON THE DATE ON WHICH THE OFFEND ING RETURN HAS BEEN FILED THE QUESTION IS, WHICH IS THE OFFENDING RETUR N RELEVANT FOR THE PURPOSE IN QUESTION? IT IS TRUE, AS SRI AHUJA SAYS, THAT, IN THIS CASE, THE ASSESSEE HAS FILED TWO RETURNS IN BOTH OF WHICH HE HAD CONCEALED THE INCOME FROM THE SALE OF LANDS IT NO DOUBT APPEARS P LAUSIBLE TO ARGUE THAT THE PRESENT PENALTY PROCEEDINGS HAVE BEEN INIT IATED ONLY BECAUSE OF THE UNDERSTATEMENT OR CONCEALMENT IN THE RETURN FILED IN 1969 AND THAT, IN DOING SO, THE FACT THAT THE ASSESSEE HAD A LSO FILED EARLIER A RETURN OF INCOME IN RESPECT OF WHICH HE WAS GUILTY OF THE SAME CONCEALMENT, IS TOTALLY IRRELEVANT. BUT, ATTRACTIVE AS THIS ARGUMENT SOUNDS, IT CANNOT BE ACCEPTED THE VARIOUS SITUATIONS IN WHICH MULTIPLE RETURNS ARE FI LED HAVE BEEN ANALYSED IN THE TWO JUDGMENTS EARLIER REFERRED TO A ND DETAILED REASONS HAVE BEEN GIVEN TO COME TO THE CONCLUSION THAT, EVE N IN SUCH A CASE, THE LAW APPLICABLE TO THE PENALTY PROCEEDINGS SHOUL D BE TAKEN TO BE THE LAW IN FORCE ON THE DATE OF THE ORIGINAL RETURN , IF ANY WE MAY JUST EMPHASISE FOUR CONSIDERATIONS WHICH JUSTIFY THE ABO VE CONCLUSION: (1) IN THE CASE OF N A MALBARY AND BROS [1964] 51 ITR 295 (SC), THE ASSESSEE HAD FILED A RETURN ORIGINALLY AND THE ASSESSMENT PROCEEDINGS HAD BEEN COMPLETED AFTER ADDING THE EST IMATED PROFITS FROM A BUSINESS IN BANGKOK WHICH HAD NOT BEEN SHOWN IN THE RETURN 13 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA PENALTY PROCEEDINGS HAD ALSO BEEN INITIATED AND A P ENALTY HAD BEEN IMPOSED SUBSEQUENTLY, REASSESSMENT PROCEEDINGS WERE INITIATED THE ASSESSEE FILED A RETURN WHICH SHOWED A LARGER INCOM E FROM THE BANGKOK BUSINESS THAN HAD BEEN ESTIMATED BEFORE AND THIS WAS ACCEPTED THE ITO INITIATED PENALTY PROCEEDINGS AGAI N AND LEVIED A PENALTY WITH REFERENCE TO THE DIFFERENCE BETWEEN TH E INCOME ORIGINALLY RETURNED AND THE INCOME FINALLY REASSESSED IF THE A RGUMENTS OF SRI AHUJA WERE CORRECT, THERE COULD HAVE BEEN NO PENALT Y AT ALL IMPOSED ON SUCH REASSESSMENT AS THERE WAS NO CONCEALMENT IN THE REASSESSMENT PROCEEDINGS THIS COURT, HOWEVER, UPHEL D THE IMPOSITION OF THE PENALTY WITH REFERENCE TO THE ORIGINAL RETUR N BUT IT WAS OBSERVED THAT, IF A PENALTY HAD BEEN LEVIED EARLIER IN THE C OURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS, THAT PENALTY ORDER SHOULD B E RECALLED AND SUBSTITUTED BY THE NEW PENALTY ORDER THE DECISION O F THE MADRAS HIGH COURT IN GOVINDARAJULU IYER (C V) VS CIT [1948] 16 ITR 391, WHICH WAS APPROVED BY THE SUPREME COURT IN MALBARY (N A) AND BROS CASE [1964] 51 ITR 295 ALSO ESTABLISHES THE PROPOSITION THAT, EVEN IN THE COURSE OF REASSESSMENT PROCEEDINGS, A PENALTY COULD BE IMPOSED WITH REFERENCE TO THE CONCEALMENT IN THE ORIGINAL ASSESS MENT PROCEEDINGS. (2) RECENT DECISIONS OF THIS COURT IN V JAGANMOHAN RAOS CASE [1970] 75 ITR 373 (SC), AND OTHER CASES INDICATE A VIEW THAT, ONCE AN ORIGINAL ASSESSMENT IS REOPENED, THE WHOLE ASSESSME NT PROCEEDINGS FOR THE YEAR ARE THROWN OPEN FOR A FRESH ASSESSMENT FOR ALL PRACTICAL PURPOSES, IT IS AS IF THE ORIGINAL ASSESSMENT ORDER DOES NOT EXIST WHETHER THIS PRINCIPLE CAN BE TAKEN AS APPLICABLE F OR ALL PURPOSES OR NOT, THE REAL POSITION IS THAT, THOUGH, TECHNICALLY SPEAKING, THE ORIGINAL ASSESSMENT PROCEEDINGS HAVE BEEN FINALISED AND REAS SESSMENT PROCEEDINGS HAVE BEEN INITIATED TO ASSESS ESCAPED I NCOME, IT IS ONLY THE DETERMINATION OF THE CORRECT TOTAL INCOME FOR T HE ASSESSMENT YEAR IN QUESTION THAT IS BEING REDONE FOR THIS ASSESSMEN T YEAR, THE 14 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA ASSESSEE FILED A RETURN OF INCOME ORIGINALLY AND IN DOING SO, EFFECTED A CONCEALMENT FINALLY, HE IS BEING REASSESSED FOR THE YEAR AND, AS POINTED OUT BY MALBARY (N A) AND BROS CASE [1964] 51 ITR 295 (SC), IT IS OPEN TO THE ITO TO IMPOSE A PENALTY ON HIM FO R CONCEALMENT ON THE BASIS FOR DETERMINING THE QUANTUM OF PENALTY IM POSSIBLE ON THE REASSESSMENT, THERE IS NO REASON WHY THE ORIGINAL R ETURN SHOULD ALSO NOT FORM THE BASIS FOR DETERMINING THE DATE ON WHIC H THE CONCEALMENT WAS EFFECTED BY THE ASSESSEE. (3) IT WILL BE APPRECIATED THAT, IF THE CONTENTION OF SRI AHUJA IS ACCEPTED, AN ANOMALOUS RESULT WILL FOLLOW IN CERTAI N GLARING CASES OF CONCEALMENT LET US TAKE THE FOLLOWING ILLUSTRATION AN ASSESSEE CONCEALS INCOME IN HIS ORIGINAL RETURN HE GETS AWAY WITH IT AND THE ORIGINAL ASSESSMENT IS COMPLETED WITHOUT DETECTING THE CONCEALMENT SUBSEQUENTLY, A NOTICE IS GIVEN FOR ASSESSING THE E SCAPED INCOME IN THIS SITUATION, THE ARGUMENT OF SRI AHUJA, IF ACCEP TED, WILL RESULT IN THE CONCLUSION THAT THE DEPARTMENT WILL BE HELPLESS IN IMPOSING A PENALTY IN SUCH A CASE THAT CERTAINLY CANNOT BE THE EFFECT OF THE LEGAL PROVISIONS AGAIN, AN ASSESSEE WOULD COMPLETELY ESCA PE PENALTY, IF HE DOES NOT ALL FILE A RETURN IN RESPONSE TO THE NOTIC E UNDER SECTION 148 THE ARGUMENT COULD BE THAT, SINCE A PENALTY CAN BE IMPOSED ONLY WITH REGARD TO THE RETURN FILED IN THE REASSESSMENT PROC EEDINGS AND, SINCE HE HAD FILED NO SUCH RETURN, HE CANNOT BE PENALISED AT ALL. 11. THE AFORESAID JUDGMENT HAS BEEN FOLLOWED CONSIS TENTLY BY ALL THE COURTS/TRIBUNALS. IN HENRY ISIDORE V. CIT, 222 ITR 496, 506-507 (MAD.), THE POSITION IN THIS BEHALF HAS BEEN EXPLAINED AS UNDER :- THE PROVISIONS CONTAINED IN THE INCOME-TAX ACT CON TEMPLATE THE CONCEALMENT IN THE ORIGINAL RETURN FILED UNDER SECT ION 139 ALONE, AND THE PENALTY IS TO BE IMPOSED WITH REFERENCE TO THAT CONCEALMENT. THE SUBSEQUENT RETURNS (REVISED) FILED ONLY TO ENABLE T HE INCOME-TAX 15 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA OFFICER TO DETERMINE THE REAL INCOME OF THE ASSESSE E AND THE AMOUNT CONCEALED. HOWEVER, FILING OF A REVISED RETURN WILL NOT CREATE A FRESH CAUSE OF ACTION OR A FRESH CONCEALMENT. EVEN THOUGH SAME CONCEALMENT EXISTED IN THE RETURN FILED IN THE REAS SESSMENT PROCEEDINGS, NO FRESH CAUSE OF ACTION AROSE FOR THE LEVY OF PENALTY WHEN THE SECOND RETURN WAS FILED AS IT WAS ONLY A C ONTINUATION OF WHAT HAD HAPPENED EARLIER, AND THAT THE REPETITION OF TH E SAME MISTAKE DOES NOT GIVE RISE TO A FRESH CAUSE OF ACTION. ACCO RDINGLY, THE PENALTY WILL HAVE TO BE CALCULATED IN ACCORDANCE WITH THE L AW AS IT EXISTED WHEN THE ORIGINAL RETURN FOR WEALTH-TAX (?) WAS FIL ED. FOR A PARTICULAR YEAR, AN ASSESSEE CAN COMMIT THE OFFENCE ONLY ONCE WHEN HE FURNISHES INCORRECT PARTICULARS OF HIS INCOME, AND THAT HE DOES, BY FILING THE ORIGINAL RETURN. EVEN IF HE IS ASKED TO FILE A NUMBER OF RETURNS FOR THAT VERY YEAR AND HE STICKS TO HIS ORIGINAL POSITI ON, HE WILL NOT COMMITTING THE OFFENCE AGAIN AND AGAIN. THE OFFENCE BEING CONCEALMENT OF INCOME, PERSISTENCE IN SUCH CONCEALM ENT CANNOT BE TAKEN AS A FRESH OFFENCE OMITTED EVERY TIME A RETUR N IS FILED THAT DOES NOT DISCLOSE THE REAL INCOME. NEITHER THE PROVISION S OF THE ACT NOR THE DECIDED CASES AUTHORIZE THE IMPOSITION OF PENALTIES WITH REFERENCE TO EACH OF THE RETURNS FOR THE SAME ASSESSMENT YEAR, O R MORE THAN ONCE FOR THE SAME OFFENCE. BUT IT IS POSSIBLE TO RECALL AN EARLIER ORDER OF PENALTY AND PASS ANOTHER ORDER IMPOSING HIGHER PENA LTY, IF ON THE LATER OCCASION THE TRUE FACTS ASCERTAINED SHOW A HIGHER A MOUNT OF CONCEALMENT. THIS POSITION IS CLEAR BY THE DECISION REPORTED IN CIT V. S. S. K. G. ARTHANARISWAMY CHETTIAR [1982] 136 ITR 145 (MAD) WH ICH WAS RENDERED ON THE BASIS OF THE FOLLOWING EARLIER DECISIONS: 1. MOHAMMAD IBRAHIM MARACAIR (K. E. M.) V. CIT [19 64] 52 ITR 890(MAD) ; 2. GURDAYA BERLIA V. CIT [1966] 62 ITR 494 (CAL) ; 3. MALBARY (N. A.) AND BROS. V. CIT [1964] 51 ITR 2 59 (SC) ; 16 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA 4. CWT V. RAJAMMA (M. V.) [1979] 120 ITR 132 (MAD) ; AND 5. CIT V. RAM SINGH HARMOHAN SINGH [1980] 121 ITR 3 81 (P & H) [FB]. THE DECISION RENDERED IN CIT V. S. S. K. G. ARTHANA RISWAMY CHETTIAR [1982] 136 ITR 145 (MAD) WAS APPROVED BY THE SUPREM E COURT IN THE DECISION REPORTED IN CIT V. ONKAR SARAN AND SONS [1 992] 195 ITR 1 (SC). 12. IT IS THUS QUITE CLEAR THAT CONCEALMENT HAS TO BE SEEN IN THE ORIGINAL RETURN OF INCOME AND NOT IN THE RETURN OF INCOME FU RNISHED AFTER SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT. IN THIS VIEW O F THE MATTER, THE SUBMISSION OF THE ASSESSEE THAT THERE IS NO CONCEAL MENT IN THE RETURNS OF INCOME FURNISHED U/S 153A/153C AFTER SEARCH AND SEI ZURE OPERATIONS IS BEREFT OF MERIT AND IS THEREFORE REJECTED. 13. THE FACTS ON THE RECORD ARE QUITE CLEAR THAT A LL THE ASSESSEES HAD DELIBERATELY CONCEALED THE PARTICULARS OF THEIR INC OME IN THE ORIGINAL RETURNS OF INCOME FURNISHED U/S 139 BEFORE THE DATE OF SEARCH. NONE OF THE ASSESSEES HAS PLACED ANY MATERIAL ON RECORD TO SHOW THAT ANY ONE OF THEM HAD MADE FULL AND TRUE DISCLOSURE OF ALL PARTICULARS/FACTS M ATERIAL TO THE COMPUTATION OF THEIR TOTAL INCOME WHILE FURNISHING THEIR ORIGINAL RETURNS OF INCOME U/S 139 BEFORE THE DATE OF SEARCH. THE DETAILS AND PARTICUL ARS WHICH WERE DISCLOSED IN THE RETURNS FILED AFTER SEARCH WERE CERTAINLY NOT D ECLARED WHILE FILING THEIR ORIGINAL RETURNS OF INCOME BEFORE SEARCH. IT IS THE REFORE QUITE OBVIOUS THAT PARTICULARS OF INCOME WERE NOT ONLY COMPLETELY CONC EALED FROM THE DEPARTMENT IN THE ORIGINAL RETURNS OF INCOME BUT TH AT THEY WERE CONCEALING SUCH PARTICULARS WAS ALSO KNOWN TO THEM. THE CASE O F THE ASSESSEES IS ALSO COVERED BY EXPLANATION 1 TO SECTION 271(1)(C). THE CONDUCT OF THE ASSESSEES, APART FROM BEING BEREFT OF BONA-FIDE, IS CONTUMACIOUS IN NATURE. IF THE DEPARTMENT HAD NOT BEEN VIGILANT AND CARRIED OU T THE SEARCH U/S.132, THE ENTIRE ADDITIONAL INCOME THAT HAS NOW BEEN ASSESSED TO TAX WOULD HAVE ESCAPED ASSESSMENT. IN THIS VIEW OF THE MATTER, THE LD. CIT(A) IS PERFECTLY JUSTIFIED IN CONFIRMING THE IMPUGNED PENALTIES LEVI ED BY THE AO. 17 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA 14. ONE OF THE SUBMISSIONS OF THE ASSESSEE AT THE T IME OF HEARING WAS THAT THE PROCEEDING INITIATED BY THE AO U/S 153A/15 3C WAS BAD IN LAW. IN SUPPORT OF HIS ARGUMENT, HE RELIED UPON THOSE VERY SUBMISSIONS WHICH HE HAD MADE BEFORE THIS TRIBUNAL AT THE TIME OF HEARIN G OF QUANTUM APPEAL. ALL THOSE SUBMISSIONS HAVE BEEN CONSIDERED BY THIS TRIB UNAL AND REJECTED. WE ARE IN AGREEMENT WITH THE AFORESAID DECISION. BESID ES, WE HAVE NO POWER TO REVIEW THE ORDERS OF THE COORDINATE BENCH. WITHOUT PREJUDICE TO THE AFORESAID, THE LD. CIT (A) HAS GIVEN COGENT REASONS FOR REJECT ING THE SUBMISSIONS OF THE ASSESSEE IN THIS BEHALF. WE ARE IN COMPLETE AGREEME NT WITH THEM. 15. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY RELIED UPON THE EXCEPTIONS LAID DOWN IN EXPLANATION 5 TO SECTION 271(1)(C) OF THE I-T ACT. THIS ASPECT OF THE MATTER HAS BEEN CON SIDERED QUITE ELABORATELY BY THE CIT(A) IN HIS APPELLATE ORDER. THE CASE OF T HE ASSESSEE IS NOT AT ALL COVERED BY ANY OF THE EXCEPTIONS PROVIDED IN EXPLAN ATION TO SECTION 271(1)(C). JUDGMENTS CITED BY THE LD. DEPARTMENTAL REPRESENTATIVE IN THIS BEHALF ARE ALSO APPOSITE. 16. THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY R ELIED UPON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT I N CIT V. JALARAM OIL MILLS, 253 ITR 192 (GUJ.). WE HAVE CAREFULLY GONE THROUGH THE AFORESAID JUDGMENT. THAT JUDGMENT APPLIES WHERE ADDITIONS HAVE BEEN MAD E U/S 68 AFTER REJECTING THE EXPLANATION OF THE ASSESSEE. IN THE MATTER BEFO RE US, THE FACTS ARE COMPLETELY DIFFERENT. IT IS THE ASSESSEE WHO CONCEA LED PARTICULARS OF HIS INCOME IN THE ORIGINAL RETURNS OF INCOME. EVEN AT T HE STAGE OF PROCEEDINGS U/S 153A/153C, THE ASSESSEE CLAIMED TO HAVE RECEIVE D GIFTS. NONE OF THE ASSESSEE COULD SUBSTANTIATE HIS CLAIM. THE ASSESSEE THEN PLEADED THAT UNEXPLAINED GIFTS SHOULD BE TELESCOPED AGAINST THE INCOME SURRENDERED BY THEM. ALL THESE FACTS SHOW CONTUMACIOUS CONDUCT ON THE PART OF THE ASSESSEES BUT ALSO THEIR EVIL DESIGN IN CONCEALING THE PARTICULARS OF THEIR INCOME WHILE FURNISHING THE ORIGINAL RETURNS. THE A FORESAID JUDGMENT HAS NO APPLICATION TO THE FACTS OF THE CASE BEFORE US. FOR SIMILAR REASONS, OTHER 18 228 TO 247 (20 APPEALS)-RJ-2012 - ABUBAKAR HAJI ISMAIL BHAYA DECISIONS/JUDGMENTS RELIED UPON BY THE LD. COUNSEL IN SUPPORT OF HIS CASE ARE ALSO DISTINGUISHABLE ON FACTS. 17. BEFORE PARTING WITH THE MATTER, WE WOULD LIKE T O STATE THAT THE CIT(A) HAS GIVEN DETAILED REASON IN SUPPORT OF HIS DECISIO N. WE ENDORSE HIS ORDER AS ALSO THE REASONS GIVEN BY HIM IN SUPPORT OF HIS ORD ER. FOR THE SAKE OF BREVITY, WE ARE NOT REITERATING THEM HERE. 10. FOR THE REASONS AS AFORESAID, ALL THE APPEALS F ILED BY THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED ON 30.09.2013 SD/- SD/- ( .. / T. K. SHARMA) ( .. ! / D. K. SRIVASTAVA) '# /JUDICIAL MEMBER $ '# / ACCOUNTANT MEMBER /RAJKOT: 30.09.2013 *BT ! '# $ / COPY OF ORDER FORWARDED TO:- 1.&' /APPELLANT- SHRI ABUBAKAR HAJI ISMAIL BHAYA 2 )*&' / RESPONDENT- THE INCOME-TAX OFFICER, WARD 3(1), J AMNAGAR 3. ',-, ! . /! / CONCERNED CIT, JAMNAGAR 4. . /!- / CIT (A), JAMNAGAR 5. 345 )! , , / DR, ITAT, RAJKOT 6. 5 89 / GUARD FILE # ' / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT