HARDING LOEVNER FUNDS INC, MUMBAI V. ADIT (IT) 3(1), MUMBAI

ITA 2316/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7624 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CGL NAIR
• Assessee Lawyers: R R VORA
• Keywords: Bonafide belief; Question of law; Revised return; Bonafide mistake; Reassessment proceedings
• Section: 142(1); 27; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, A.M. AND SHRI V. DUR GA RAO, J.M. ITA NO. 2316/MUM/2011 ASSESSMENT YEAR : 2007-08 HARDING LOEVNER FUNDS INC., APPELLANT C/O, S.R.BATLIBOI & CO., 18 TH FLOOR, EXPRESS TOWER, NARIMAN POINT, MUMBAI 400 021. (PAN AABCH 4746C) VS. ASSTT. DIRECTOR OF INCOME TAX, RESPONDENT (INTERNATIONAL TAXATION) 3(1), SCINDIA HOUSE, MUMBAI 400 038. APPELLANT BY : MR. R.R. VORA RESPONDENT BY : MR. CGL NAIR DATE OF HEARING : 11/01/12 & 19/03/201 2 DATE OF PRONOUNCEMENT : 28/03/201 2 ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF CIT(A)- 10, MUMBAI, PASSED ON 25/01/2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS IN RESPECT OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A FOREIGN COMPANY INCORPORATED IN USA. THE ASSEESSEE HAS REGI STERED WITH SEBI AS FOREIGN INSTITUTIONAL INSTITUTION (FII). THE ASS ESSEE HAD FILED ITS ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 2 RETURN OF INCOME ON 30/10/2007 DECLARING TOTAL TAXA BLE INCOME AT RS. 47,67,16,502/- AND CLAIMED REFUND OF RS. 32,64,578/ -. THE ASSESSEE'S CASE WAS SELECTED FOR SCRUTINY U/S 143(2) OF THE AC T, AND A NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE. AFTER RECEIVING THE SAID NOTICE, THE ASSESSEE INTIMATED TO THE AO THAT THE NET SHORT TER M CAPITAL GAIN OF RS. 97,31,044/- WAS INDAVERTENTLY MISSED OUT WHILE FILING THE RETURN OF INCOME. THE AO COMPLETED THE ASSESSMENT BY ADDIN G THE SAID NET SHORT TERM CAPITAL GAIN OF RS. 97,31,044/- AS INCOM E OF THE ASSESSEE. SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, ON THE GROUND THAT THE ASSESSEE HAD FILED INACCURATE PARTICULARS OF ITS INCOME. DURING THE PENALTY PRO CEEDINGS, THE AR OF THE ASSESSEE SUBMITTED THAT THE TAX LIABILITY OF RS . 10,17,380/- ON THE SAID SHORT TERM CAPITAL GAIN OF RS. 97,31,044/- WAS DULY DISCHARGED BY THE ASSESSEE BY WAY OF ADVANCE TAX AND AS A RESU LT OF THE SUO-MOTO DISCLOSURE BY ASSESSEE THE AMOUNT OF REFUND DUE TO ASSESSEE WAS REDUCED FROM RS. 32,64,578/- TO RS. 22,47,197/-. TH E AR OF THE ASSESSEE POINTED OUT THAT THE AO COMPUTED THE REVIS ED INCOME OF ASSESSEE BASED ON THE ABOVE DISCLOSURE. AFTER CONSI DERING THE SUBMISSIONS OF THE ASSESSEE, THE AO CONCLUDED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS NOTICED THAT THE A SSESSEE WAS NOT OFFERED THE SHORT TERM CAPITAL GAIN OF RS. 97,31,04 4/-, THIS FACT WAS ADMITTED BY THE ASSESSEE DURING THE COURSE OF ASSES SMENT PROCEEDINGS VIDE LETTER DATED 18/12/2009. THIS IS CLEARLY PROVE D THAT THE ASSESSEE CONCEALED ITS INCOME AND, THEREFORE, THE PROVISIONS OF SECTION 271(1)(C) WERE ATTRACTED. THE AO FURTHER OBSERVED THAT THE A SSESSEE IS NOT ABLE TO SUBSTANTIATE ITS EXPLANATION BEFORE HIM AND INVO KED EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT AND IMPOSED PENALTY ACCORDINGLY. 4. BEFORE THE CIT(A), THE AR OF THE ASSESSEE CONTEN DED THAT DURING THE HEARING, NO DETAILS OF SHORT TERM CAPITAL GAIN WERE CALLED FOR BY THE AO BUT THE ASSESSEE HIMSELF OFFERED THE SAME TO TAX ONCE THE ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 3 MISTAKE WAS DISCOVERED BY THE ASSESSEE. IT WAS SUBM ITTED THAT THE SHORT TERM CAPITAL GAINS ON SALE OF SHARES UNDERLYI NG GDRS INADVERTENTLY REMAINED TO BE OFFERED IN RETURN OF I NCOME, WHICH WAS SUO-MOTO AND WITHOUT ANY NOTICE ISSUED BY THE AO DI SCLOSED BY THE ASESSSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESEE HAD ALREADY DISCHARGED THE TAX LIABILITY OF RS. 10,17,380/- ON THE AMOUNT OF SHORT TERM CAPITAL GAIN BY WAY OF ADVANCE TAX ON 12 TH JULY, 2006, THEREFORE, THE ASSESSEE DID NOT HAVE ANY MALAFIDE INTENTION TO CONCEAL THE INCOME. THE AR OF THE ASESSSEE RELIED UPON VARIOUS CASE LAWS INCLUDING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD., 322 ITR 1 58 (SC). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LE ARNED CIT(A) HELD AS UNDER:- 3.4. I HAVE CONSIDERED THE FACTS AND PERUSED THE M ATERIAL ON RECORD. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER DATED 2 5-11-2009 AS AGAINST WHICH NO APPEAL WAS PREFERRED BEFORE THE CI T (A). IT IS SEEN THAT THE CASE WAS SELECTED UNDER_SCRUTINY AND NOTIC E UNDER SECTION 143(2) OF THE ACT WAS ISSI ON 11-8-2008. SUBSEQUENT LY A NOTICE U/S 142(1) D QUESTIONNAIRE WAS ALSO ISSUED ON 03/09/200 9. I ALSO FIND FROM THE PENALTY ORDER THAT THE A AS CONCLUDED THAT THE APPELLANT HAS NOT O ERED THE AMOUNT OF SHORT TERM CAPITAL GAINS O F RS.97, 31,044 PERTAINING TO CAPITAL GAINS ON SALE OF SHARES OF UN DERLYING GDRS VOLUNTARILY AS THE SAME WAS DISCLOSED IN RESPONSE T O NOTICE ISSUED U/S.142 (1)OF THE ACT WHEREIN THE ASSESSEE WAS SPEC IFICALLY ASKED TO FURNISH THE DETAILS CAPITAL GAINS AND LONG TERM CAP ITAL GAINS SEPARATELY). THE HEARING WAS FIXED FOR 14-9-2009, B UT NO DETAIL WAS FURNISHED ON THAT DATE AS NO ONE ATTENDED ON THAT D ATE NEITHER SOUGHT ANY ADJOURNMENT AFTER A LONG TIME ON 28-10-2009, SM AMIT GOURL FROM S.R. BAFILBOL & CO. ATTENDED AND FILED DETAIL VIDE LETTER DATED 26-10- 2009. HOWEVER THE DETAILS FILED BY THE ASSESSEE WER E NOT COMPLETE AND THEREFORE THE AR WAS REQUIRED TO FILE COMPLETE DETA ILS VIDE ORDER SHEET NOTINGS DATED 28-10-2009, AND THE ASSESSEE WAS ASKE D TO FILE COMPLETE DETAIL OF CAPITAL GAINS STATEMENT IN RESPO NSE TO WHICH THE ASSESSEE FILED DETAILS VIDE LETTER DATED 29-10-2009 , HOWEVER, AGAIN SAME WERE NOT STILL FOUND TO BE INCOMPLETE AND SUFF ICIENT AND THEREFORE THE ASSESSEE WAS ASKED TO FILE DETAILS REGARDING CO MPUTATION OF LONG TERM CAPITAL GAINS/LONG TERM CAPITAL LOSS/SHORT TER M CAPITAL GAINS AND SHORT TERM CAPITAL LOSS. IN RESPONSE TO WHICH THE A R OF ASSESSEE STATED VIDE LETTER DATED 9-11-2009 THAT NET SHORT TERM CAP ITAL GAINS OF RS. 97,31,044 WAS INADVERTENTLY NOT REPORTED UNDER THE CAPITAL GAINS. THIS FACT SHOWS THAT THE ASSESSEE HAS NOT OFFERED THE CA PITAL GAINS VOLUNTARILY AS IT WAS FILED AFTER RECEIPTS OF SO MA NY NOTICES ISSUED BY THE ASSESSING OFFICER AND HEARING CONDUCTED. THEREF ORE, THE DETAILS ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 4 FILED AFTER LONG DRAWN PROCESS AND HEARINGS IN THE CASE IS SUCH THAT IT CANNOT BE SAID TO BE VOLUNTARILY AND SUO-MOTO COMPL IANCE BY THE ASSESSEE TO OFFER THE SHORT TERM CAPITAL GAINS OF S UCH A SUBSTANTIAL QUANTUM. THEREFORE, THE APPELLANT HAS CONCEALED ITS INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME. IN SUCH CIRCUMSTANCES, IT WOULD BE APPROPRIATE TO REFER TO THE PROVISIONS OF SECTION 271 (1)(C) WHICH READS AS UNDER: (1) IF THE (ASSESSING) OFFICER OR THE R**J [COMMIS SIONER (APPEALS)) (OR THE COMMISSIONER] IN THE COURSE OF ANY PROCEEDINGS UNDER THE ACT, IS SATISFIED THAT ANY PERSON (A) (B) (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR( J FURNISHED INACCURATE PARTICULARS OF INCOME), HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY PEN ALTY (I) (II) THE CASES REFERRED TO IN CLAUSE FIN ADDITION T O TAX, IF ANY, PAYABLE] BY HIM (A SUM OF TEN THOUSAND RUPEES) FOR EACH SUCH FAILURE] (III) IN THE CASE REFERRED TO IN CLAUSE (C) [OR CLA USE (CI))] [ADDITION TO TAX IF ANY, PAYABLE) BY HIM, A SUM WHICH SHALL NOT BE L ESS THAN, BUT WHICH SHALL NOT EXCEED (THREE TIMES], THE AMOUNT OF TAX S OUGHT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INCOME [OR FRINGE BENEFITS) OR THE FURNISHING OF INACCURATE PARTICULA RS OF SUCH INCOME (OR FRINGE BENEFITS). EXPLANATION I WHERE IN RESPECT OF ANY ACTS MATERI ALS TO THE COMPUTATION OF TOTAL INCOME OF ANY PERSON UNDER THI S ACT (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE (ASSESSING) OFFICER OR THE (C OMMISSIONER (APPEALS)) (OR THE COMMISSIONER) TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE (FAILS TO PROVE THAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM) 3.4.1 A PERUSAL OF THE ABOVE PROVISION WOULD SHOW T HAT THE EXPLANATION (1) TO SECTION 271(1) (C) PROVIDES THAT THE PENALTY WOULD DULY ATTRACT WHEREIN EITHER NO EXPLANATION IS OFFER ED OR EXPLANATION OFFERED IS FOUND TO BE FALSE. IN THIS CASE, THE APP ELLANT HAS OFFERED THE EXPLANATION THAT IT INADVERTENTLY NOT DISCLOSED THE SHORT TERM CAPITAL GAINS ON UNDERLYING SHARES OF GDRS IN THE RETURN. H OWEVER IT IS SEEN THAT SHORT TERM CAPITAL GAINS WAS DISCLOSED AFTER I SSUE OF NOTICE UNDER SECTION 142(1) AND AFTER HEARING TAKEN PLACE ON 28- 10-09 AND ON 29- 10-09. IT MAY BE NOTED THAT THE APPELLANT FAILED TO ATTEND THE HEARING TAKEN SCHEDULED FOR 14-9-09. THEREFORE, THE EXPLANA TION OFFERED BY THE APPELLANT IS NOT FOUND TO BE CORRECT AND IT IS CONT RARY TO THE FACTS OBSERVED DURING THE COURSE OF ASSESSMENT PROCEEDING S. THEREFORE, THE EXPLANATION OFFERED BY THE APPELLANT IS FOUND TO BE FALSE AND ACCORDINGLY ITS CASE IS COVERED BY CLAUSE (A) OF EX PLANATION-I. CLAUSE LB) OF EXPLANATION I PROVIDES THAT WHERE THE ASSESS EE IS NOT ABLE TO ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 5 SUBSTANTIATE ITS EXPLANATION AND FAILS TO PROVE THA T SUCH EXPLANATION IS BONA-FIDE AND THAT ALL THE FACTS RELATING TO THE SA ME HAVE BEEN DISCLOSED, PENALTY IS LEVIABLE. THE AMOUNT OF RS.97 ,31,044/- WAS ADDED AS THE SAME AMOUNTED TO INCOME OF THE ASSESSE E EARNED DURING THE YEAR UNDER APPEAL. I FOUND THAT THE DETAILS OF SUCH CAPITAL GAINS WERE ONLY FILED AFTER ISSUE OF NOTICE ON 3-9-2009 A ND AFTER RECORDING NOTINGS VIDE ORDER SHEET ENTRY DATED 28-10-09. I.E. AFTER TWO YEARS OF THE FILING OF THE RETURN OF INCOME AND THEREFORE TH E SAME CANNOT BE TREATED AS FILED SUO-MOTO. IF THE INTENTION OF THE ASSESSEE WAS TO OFFER THE SHORT TERM CAPITAL GAINS, IT SHOULD HAVE DONE I T PRIOR TO RECEIPT NOTICE UNDER SECTION 142(1) OF THE ACT. ITS CASE WA S SELECTED UNDER SCRUTINY AND THE NOTICE U/S.143 (2) OF THE I.T. ACT WAS ISSUED ON 11-8- 2008 WHEREAS SUCH CAPITAL GAINS WAS OFFERED ONLY IN THE MONTH OF NOVEMBER,2009 I.E. ONE YEAR AFTER SELECTION OF CASE UNDER SCRUTINY. FURTHER THE APPELLANT HAS NOT DISCLOSED SHORT TERM CAPITAL GAINS EVEN AFTER IMMEDIATELY ON RECEIPTS OF NOTICE U/S 142(1) DATED 3-9-2009 FOR WHICH HEARING WAS FIXED ON 14-9-2009. THE APPELLANT HAS ALSO NOT FILED ANY REVISED RETURN. I AM, THEREFORE, OF THE CONSIDE RED VIEW THAT THE APPELLANT HAS NOT BEEN ABLE TO SUBSTANTIATE ITS EXP LANATION. THEREFORE, THE CONDITIONS AS ENVISAGED UNDER CLAUSE (B) OF EXP LANATION-I ARE FURTHER SATISFIED. FURTHER, THIS EXPLANATION CANNOT BE CONSIDERED AS SUBSTANTIATED PARTICULARLY WHEN THE APPELLANT IS A NONRESIDENT IS BEING ASSISTED IN FILING OF RETURN BY REPUTED INTERNATION AL COUNSELS/C.AS. EVEN, IF, THERE HAD BEEN SUCH MISTAKE, THE APPELLAN T COULD HAVE BROUGHT TO THE NOTICE OF THE A.O BEFORE THE SCRUTIN Y OF ASSESSMENT OR IMMEDIATELY AFTER THE SELECTION OF CASE FOR SCRUTIN Y OF ASSESSMENT BUT NO SUCH ATTEMPT HAS BEEN MADE WHICH, LEADS TO INFER THAT THE CAPITAL GAINS OFFERED BY THE APPELLANT IS NOT BONAFIDE. THE APPELLANT HAS CLAIMED THAT IT HAD PAID ADVANCE TAX OF RS. 10,17,3 80 ON 13-7-2006 ON EARNING OF SUCH SHORT TERM CAPITAL GAINS, HENCE, TH ERE WAS NO MALAFIDE INTENTION IS ALSO CANNOT BE ACCEPTED AS CORRECT, RA THER THE PAYMENT OF ADVANCE TAX MEANS THAT THE APPELLANT WAS WELL AWARE THAT IT HAS EARNED SHORT TERM CAPITAL GAINS OF UNDERLYING SHARE S OF GDRS, THEREFORE , THERE IS NO REASON AS TO WHY THEY SAID INCOME WAS NOT DISCLOSED PARTICULARLY WHEN THE APPELLANT HAS DULY CLAIMED SUCH REFUND ON PAYMENT OF ADVANCE TAX WHILE FILING THE R ETURN OF INCOME. THIS IS CONTRARY SUSTAINED THAT ONE SIDE IT PAYS TH E ADVANCE TAX AND OTHER SIDE IT CLAIM S REFUND ON SUCH ADVANCE TAX WI TH OFFERING THE INCOME CORRESPONDING TO THE SAID INCOME. THUS IT CR YSTAL CLEAR THAT THE EXPLANATION OFFERED BY THE APPELLANT HAS NOT BEEN B ACKED UP BY BONAFIDE BELIEF AND GENUINENESS OF REASONS AND WELL FOUNDED INTENTION. THEREFORE, I HOLD THAT THE AO HAS RIGHTLY LEVIED PE NALTY IN THIS CASE. 3.4.2 EARLIER THERE WAS SOME DISPUTE AS TO WHETHER PENALTY PROCEEDINGS UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT ARE QUASI CRIMINAL IN NATURE OR NOT. THIS CONTROVERSY HAS BEE N BROUGHT TO AN END BY RECENT JUDGMENT OF THREE MEMBER BENCH OF SUPREME COURT IN THE CASE OF M/S. DHARMENDRA TEXTILE PROCESSORS AND OTHE RS 166 TAXMAN 65 WHEREIN HONBLE SUPREME COURT HAS SAID THALITY I MPOSED UNDER SECTION 271(1) (C) IS PU1IY A CIVIL LIABILITY AND T HERE IS NO REQUIREMENT TO ESTABLISH MENS REA BEFORE LEVYING PENALTY. IT I S USEFUL TO REPRODUCE ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 6 THE OBSERVATION OF THE SUPREME COURT IN PARA 24 AND PARA 25 OF THE ORDER: 24. IT OF SIGNIFICANCE TO NOTE THAT THE CONCEPTUAL AND CONTEXTUAL DIFFERENCE BETWEEN SECTIONS 2 71(1) (C) AND SECTION 276C OF THE I. T. ACT WAS LOST SIGHT OF IN DILIP SHROFFS CASE (SUP RA) 25. THE EXPLANATIONS APPENDED TO SECTION 27 1(1) (C ) OF THE I. T. ACT ENTIRELY INDICATES THE ELEMENT OF STRICT LIABIL ITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE P ARTICULARS WHILE FILING RETURN. THE JUDGMENT IN DILIP N. SHROF FS CASE (SUPRA) HAS NOT CONSIDERED THE EFFECT AND RELEVANCE OF SECT ION 276C OF THE I. T. ACT. OBJECT BEHIND ENACTMENT OF SECTION 2 71(1) (C) READ WITH EXPLANATIONS INDICATE THAT THE SAID SECTION HA S BEEN ENACTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE . THE PENALTY UNDER THAT PROVISION IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABIL ITY AS IS THE CASE IN THE MATTER OF PROSECUTION UNDER SECTION 276C OF THE I. T. ACT. 3.4.3 SINCE AS PER THIS JUDGMENT OF SUPREME COURT, LIABILITY IMPOSED UNDER SECTION 271(1) (C) IS CIVIL LIABILITY, IT IS NOT MORE NECESSARY FOR THE ASSESSING OFFICER TO ESTABLISH WHETHER THE APPELLAN T HAS CONSCIOUSLY FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCE ALED PARTICULARS OF INCOME. THEREFORE PENALTY IS LEVIABLE IF THE CLAIM FOR DEDUCTION MADE IS NOT BONAFIDE CLAIM. QUESTION WHETHER IN A PARTICULA R CASE PENALTY U/S. 271(1) (C) OF THE ACT IS IMPOSABLE OR NOT IS TO BE DECIDED AFTER TAKING INTO CONSIDERATION ALL THE FACTS AND CIRCUMSTANCES OF EACH CASE. 3.4.4 THERE CANNOT BE ANY PRECEDENT ON FACTS. PRECE DENT CAN BE ONLY ON THE POINT OF LAW. EVERY DECISION HAS TO BE UNDER STOOD IN THE LIGHT OF THE FACTS OF THAT PARTICULAR CASE. AS RIGHTLY SAID BY THE SUPREME COURT IN WILLIE (WILLIAM) SIANEY V. STATE OF M. P., MR 19 56 SC 116; [195512 SCR 1140, THERE IS NO SUCH THING AS A JUDICIAL PRE CEDENT ON FACTS THAT COUNSEL AND EVEN JUDGES, ARE SOMETIMES, PRONE TO AR GUE AND TO ACT AS IF THEY WERE. A DECISION IS AVAILABLE AS PRECEDENT ONLY IF IT DECIDES A QUESTION OF LAW. IN OTHER WORDS, THE PRINCIPLES LAI D DOWN FOR ARRIVING AT A DECISION ALONE WILL BIND AS A PRECEDENT. THEREFOR E IT IS NOT NECESSARY TO REFER TO ALL JUDGMENTS RELIED UPON BY THE AR OF THE APPELLANT IN THE WRITTEN SUBMISSION FILED. 3.4.5 IT IS FURTHER SEEN THAT THE APPELLANT HAS NOT FILED ANY APPEAL AGAINST THE ADDITION. THEREFORE PENALTY WOULD BE LE VIABLE IN LIGHT OF SUPREME COURT DECISION IN THE CASE OF K. P. MADHUSU DHAN V CIT (2001) 251 ITR 99(SC) WHEREIN, IT WAS HELD THAT PENALTY IS LEVIABLE EVEN IF THE ASSESSEE HAS OFFERED ANY AMOUNT TO BUY PEACE OF MIN D. IN THE LIGHT OF ABOVE FACTS, I AM OF THE VIEW THAT THE AO HAS RIGHT LY IMPOSED THE PENALTY ON THE APPELLANT. 3.4.6 IT IS FURTHER SEEN PENALTY IS IMPOSABLE EVEN IF ADDITIONAL INCOME SHOWN IN REVISED RETURN PURSUANT TO QUESTIONNAIRE A S HELD IN FOLLOWING CASES-IN THE CASE OF SHIV RATAN R. KAPADIA V ACIT ( 2007) 1ISOT 15 ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 7 (PUNE) WHERE INCOME SURRENDERED AND REVISED RETURN FILED AFTER INVESTIGATION, PENALTY LEVIABLE AS NO PLAUSIBLE EXP LANATION OFFERED DEEPAK CONSTRUCTION CO. V CIT (2007) 293 ITR 285(GU J) IT WAS HELD THAT WHERE THE AC DETECTED CONCEALMENT OF INCOME MU CH BEFORE FILING OF REVISED RETURN, PENALTY LEVIABIE IN THE CASE OF RAV I & CO. V ACIT (2004) 271 ITR 286 (MAD) IT WAS HELD THAT THE TRIBUNAL HAD COME TO A CONCLUSION THAT MUCH BEFORE THE REVISED RETURNS WER E FILED BY THE ASSESSEE, THE QUESTIONNAIRE HAD BEEN ISSUED BY THE ASSESSING OFFICER CALLING FOR CERTAIN DETAILS AND THE ASSESSEE FILED THE REVISED RETURNS ONLY WHEN FT WAS CORNERED. IN OTHER WORDS, THE TRIB UNAL FOUND THAT THE REVISED RETURNS HAD NOT BEEN TILED VOLUNTARILY IN A BONA FIDE MANNER, BUT WITH A VIEW TO ESCAPE FROM THE CONSEQUENCES OF NOT FILING A PROPER RETURN. [PARA 5] HAVING CONSIDERED THE MATERIALS ON RECORD, NOTHING SUBSTANTIAL IN NATURE WAS FOUND TO COME TO A DIFFERENT CONCLUSION. AS A MATTER OF FACT, IN THE REPLY TO THE NOTICE UNDER SECTION 271(1) (C) , THE ASSESSEE DID NOT OFFER ANY CREDIBLE EXPLANATION INDICATING THE REASO NS FOR WHICH THE AMOUNT HAD NOT BEEN DISCLOSED IN THE ORIGINAL RETUR NS. [PARA 6] IN THE RESULT, IF WAS TO BE HELD THAT THE TRIBUNAL WAS JUSTIFIED IN CONCLUDING THAT THE RETURNS WERE NOT TILED VOLUNTAR ILY AND, HENCE, THERE WAS CONCEALMENT OF THE AMOUNTS OFFERED BY THE ASSES SEE IN THE REVISED RETURNS. 3.4.7 IN THE CASE OF SAJJANRAJ NAHAR VS CIT (2006) 155 TAXMAN 536 (MAD)IT WAS HELD THAT WHERE IF THE ASSESSEE HAS DIS CLOSED INCOME SUBSEQUENT TO COMPLETION OF ORIGINAL ASSESSMENT, AS SESSEE FLIED REVISED RETURN DECLARING INCOME AND THE A.O. ACCEPT ED REVISED RETURN AND MADE INDICATION OF INITIALING PENALTY PROCEEDIN GS U/S 271(1)(C). THE AO ACCORDINGLY CALLED FOR EXPLANATION FROM ASSE SSEE. AS NO EXPLANATION WAS OFFERED BY THE ASSESSEE, A.O. LEVIE D PENALTY. HELD ON FACTS, THE A.O. WAS JUSTIFIED IN LEVYING PENALTY. I N VIEW OF RATIO LAID DOWN BY THIS DECISION THE PENALTY IS LEVIABLE IN TH E CASE OF THE APPELLANT. 3.4.8 IN THE LIGHT OF ABOVE FACTS, I AM OF THE VIEW THAT THE AO HAS RIGHTLY IMPOSED THE PENALTY ON THE APPELLANT. ACCOR DINGLY THE ACTION OF THE AO IS UPHELD AND GROUND NO 1 TO 3 OF THE APPEAL ARE TREATED AS DISMISSED. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A USA BASED FII COMPANY. DURING THE YEAR UNDER CONSIDERATION, IT HAD COMPLETED MORE THAN 500 TRANS ACTIONS AND ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 8 ADVANCE TAX WAS PAID ON EACH AND EVERY TRANSACTION, FOR WHICH THE CERTIFICATE FROM CA ALSO OBTAINED. HE FURTHER SUBMI TTED THAT TOTAL SALE TRANSACTIONS AMOUNTING TO RS. 5,411,763,293/-, OUT OF WHICH ONE TRANSACTION AMOUNTING TO RS. 97,31,044/- WAS MISSED . THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT FROM PAGE 34 O F THE PAPER BOOK OF THE ASSESSEE, WHICH IS A NOTICE U/S 142(1) ISSUE D BY THE AO ON 03/09/09 WHEREIN AT SL.NO. 10, THE AO ASKED THE ASS ESSEE TO FURNISH DETAILS OF CAPITAL GAINS BOTH SHORT TERM AND LONG T ERM, IF ANY, SUBJECTED TO SECURITY TRANSACTION TAX, AND SUBMITTE D THAT WHATEVER THE AO ASKED, THOSE DETAILS WERE FILED AND IT IS NO T THE CASE OF THE AO THAT HE ASKED COMPLETE DETAILS OF SHORT TERM AND LO NG TERM CAPITAL GAINS. HE HAS ALSO REFERRED PAGE 53 OF THE PAPER BO OK, WHICH IS A LETTER ADDRESSED TO AO DATED 09/11/09 INTIMATING TH AT FOR AY 2007-08 THE NET SHORT-TERM CAPITAL GAIN AMOUNTING TO RS. 97 ,31,044/- WAS INADVERTENTLY NOT REPORTED UNDER THE HEAD CAPITAL GAINS IN THE RETURN OF INCOME FILED BY THE ASSESSEE. IT IS SUBMI TTED THAT IN RESPONSE TO THE NOTICE ISSUED BY THE AO, THE ASSESS EE HAD FILED VARIOUS DETAILS VIDE LETTER DATED 26/10/09, PARTICU LARLY, ALL THE DETAILS OF CAPITAL GAINS FOR AY 2007-08 WERE FILED. IT IS F URTHER SUBMITTED THAT THE ASSESSEE HAS DISCLOSED THE AMOUNT OF RS. 97,31, 044/- VOLUNTARILY PRIOR TO THE DETECTION BY THE AO. THE LEARNED COUNS EL FOR THE ASSESSEE CONTENDED THAT THE AO WITHOUT INVESTIGATING OR EXAM INING THE DETAILS FILED BY THE ASSESSEE, FOUND THAT THE ASSESSEE CONC EALED ITS INCOME. HE POINTED OUT THAT IF THE DETAILS ARE NOT FILED BY THE ASSESSEE, THE AO IS NOT ABLE TO DETECT THE NON-DISCLOSURE OF THE SHO RT TERM CAPITAL GAIN OF RS. 97,31,044/-. THE LEARNED COUNSEL FOR THE ASS ESSEE CONTENDED THAT THE CIT(A) WRONGLY FOLLOWED THE CASE OF DHARME NDRA TEXTILES LTD., WHICH IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE . THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PENALTY CAN BE LEVIED ON VOLUNTARY DISCLOSURE DURING THE ASSESSMENT PROCEEDI NGS, WHEREIN NO ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 9 SPECIFIC QUESTION RAISED BY THE AO ON IMPUGNED DISC LOSURE. FOR THIS PROPOSITION, HE RELIED UPON THE FOLLOWING CASE LAWS :- 1. OM PRAKASH TANDON DATED15/07/2011 (ITA NO. 3313/DEL/2010(DELHI) 2. HANS CHRISTIAN GASS DATED 22/06/11 (ITA NO. 2209 OF 2010(BOM.) 3. HANS CHRISTIAN GASS (ITA NO. 1583 AND 505 TO 509 /PN/09 (PUNE) DATED 26 MAY 2010. 4. ALEXANDER REUSS DATED 30 SEPTEMBER 2010 (ITA NO. 662/PN/2010 (PUNE) ) 5. BABITABEN RAMESHBHAI PATEL [116 TTJ 421 (AHM) ] 6. BHANWAR LAL MAHENDRA KUMAR SONI 138 TTJ 381 (JD) 7. NITON VALVE INDUSTRIES (P) LTD., 30 SOT 236 (MUM .) 8. K DEEDAR AHMED 97 ITD 240 (HYD) 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT NOT SHOWING THE SHORT TERM CAPITAL GAIN OF RS. 97,31,04 4/- IN THE RETURN OF INCOME WAS A BONAFIDE MISTAKE AND THE SAME WAS W ITHDRAWN ON BEING POINTED OUT BY THE AO DURING THE ASSESSMENT P ROCEEDINGS, THEREFORE, NO PENALTY CAN BE LEVIED U/S 271(1)(C) O F THE ACT. FOR THIS PROPOSITION, HE RELIED UPON THE FOLLOWING CASE LAWS :- 1. A.H. WHEELERS & CO. PVT. LTD., [142 TTJ 112 (AL L) 2. SHAHABAD CO-OP SUGAR MILL, 129 TTJ 92 (CHD.) 3.LINO ALBERTO MARQUES DATED 30 TH APRIL 2008 (ITA NO. 497/PUNE/08 (PUNE) ) 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT NO PENALTY SHOULD BE LEVIED ON THE BONA-FIDE MISTAKE OF THE AS SESSEE IN NOT SHOWING THE SHORT TERM CAPITAL GAIN IN THE RETURN O F INCOME. FOR THIS PROPOSITION, HE RELIED UPON THE FOLLOWING CASE LAWS :- 1. PRECISION ELECTRICAL WIRING DATED 19 JANUARY 201 1 (ITO NO. 2349/MUM/2009 (MUM) ). 2. NTN MANUFACTURING INDIA (P) LTD. [140 TTJ 33 (DE L.) ] 3. HANS CHRISTIAN GASS DATED 22/06/11 (ITA NO. 2209 OF 2010(BOM.) 4.HANS CHRISTIAN GASS (ITA NO. 1583 AND 505 TO 509/ PN/09 (PUNE) DATED 26 MAY 2010. 5.ALEXANDER REUSS DATED 30 SEPTEMBER 2010 (ITA NO. 662/PN/2010 (PUNE) ) ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 10 8. ON THE OTHER HAND, THE LEARNED DR BESIDES RELYIN G UPON THE ORDERS OF THE AUTHORITIES BELOW SUBMITTED THAT THE ASSESSEE HAS NOT DISCLOSED THE CAPITAL GAINS VOLUNTARILY. HE POINTED OUT BY REFERRING PAGE NO. 37 OF THE PAPER BOOK THAT THE AO REPEATED LY ASKED THE ASSESSEE TO SUBMIT THE DETAILS WITH REGARD TO SHORT TERM CAPITAL GAINS, THEN THE ASSESSEE, SUBSEQUENTLY, FILED A LETTER BE FORE THE AO STATING THAT IT HAS ONLY HAVING FEW DETAILS AND THE REMAINI NG DETAILS ARE AVAILABLE WITH CUSTODIAN. THE LEARNED DR, THEREFORE , CONTENDED THAT THE EXPLANATION OFFERED BY THE ASSESEE IS ITSELF A CONTRADICTORY AND NOT A BONA-FIDE EXPLANATION FOR THE SIMPLE REASON THAT IF THE ASSESSEE DOES NOT HAVE ALL THE DETAILS HE IS SUPPOSED TO HAVE EXP LAINED TO THE AO THAT HE DOES NOT HAVE FULL INFORMATION WITH REGARD TO SHORT TERM CAPITAL GAIN. THE LEARNED DR, THEREFORE, SUBMITTED THAT THE ASSESSEE HAD FILED INACCURATE PARTICULARS OF INCOME, WHICH RESULTED INTO CONCEALMENT OF INCOME, THEREFORE, THE AO HAS RIGHTL Y INVOKED THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT, AND LEV IED PENALTY ACCORDINGLY. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W AS WELL AS THE PRECEDENTS CITED. IT IS OBSERVED THAT THE ASSESSEE IS A US BASED INVESTMENT COMPANY FILED RETURN OF INCOME SHOWING C APITAL GAINS OF RS. 47,67,16,502/- CLAIMING REFUND OF RS. 32,64,578 /-. WHEN THE RETURN WAS SELECTED FOR SCRUTINY U/S 143(2), NOTICE U/S 142(1) WAS ISSUED AND, IN RESPONSE TO WHICH, THE ASSESSEE HAS OFFERED ADDITIONAL INCOME OF SHORT TERM CAPITAL GAIN AMOUNTING TO RS. 97,31,044/- EXPLAINING THAT THE SAID GAIN WAS INADVERTENTLY NOT SHOWN IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION U NDER THE HEAD CAPITAL GAINS. THE AO COMPLETED THE ASSESSMENT TA XING THE SAID CAPITAL GAINS OFFERED BY THE ASSESSEE IN THE HANDS OF THE ASSESSEE. SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 11 THE ACT, ON THE GROUND THAT ASSESSEE CONCEALED INCO ME BY FURNISHING INACCURATE PARTICULARS AND ISSUED NOTICE DATED 31/ 12/09, WHICH WAS DULY SERVED ON THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT SHOULD NOT B E LEVIED AGAINST HIM. WHEN THE ASSESSEE HAS NOT FILED ITS REPLY AGAI NST THE SAID NOTICE, THE AO ISSUED ANOTHER NOTICE ON 19/06/10 FIXING THE HEARING ON 24/06/10. IN RESPONSE TO THE SAID NOTICE, THAT THE ASSESSEE SUBMITTED BEFORE THE AO THAT TAX LIABILITY OF RS. 10,17,380/- ON THE ABOVE AMOUNT OF SHORT TERM CAPITAL GAIN OF RS. 97,31,044/ - WAS DULY DISCHARGED BY THE ASSESSEE BY WAY OF ADVANCE TAX. H E FURTHER SUBMITTED THAT AS A RESULT OF SUO-MOTO DISCLOSURE B Y THE ASSESSEE, THE AMOUNT OF REFUND DUE TO THE ASSESSEE WAS REDUCED FR OM 32,64,578/- TO RS. 22,47,197/-. IT WAS STATED BEFORE THE AO TH AT THE AO COMPUTED THE REVISED INCOME OF ASSESSEE BASED ON THE DISCLOS URE OF THE DETAILS BY THE ASSESSEE. IT WAS FURTHER STATED THAT THE ASS ESSEE DID NOT HAVE ANY MALA-FIDE INTENTION TO FURNISH INACCURATE PARTI CULARS OF ITS INCOME OR CONCEALING ITS INCOME. AFTER CONSIDERING THE SUB MISSIONS OF THE ASSESSEE, THE AO HELD THAT THE ASSESSEE HAD DISCLOS ED THE SHORT TERM CAPITAL GAINS OF RS. 97,31,044/- ONLY AFTER ASKING REPEATEDLY BY HIM, THEREFORE, THE ASSESSEE FURNISHED INACCURATE PARTIC ULARS OF ITS INCOME, WHICH LED TO ATTRACT THE PROVISIONS OF SECTION 271( 1)(C) OF THE ACT, AND ACCORDINGLY, IMPOSED PENALTY ON THE INCOME SOUGHT T O BE EVADED BY THE ASSESSEE. 10. BEFORE THE CIT(A), IT WAS SUBMITTED THAT ONCE T HE MISTAKE CAME TO THE NOTICE OF THE ASSESSEE, THE ASSESSEE HIMSELF OFFERED THE SHORT TERM CAPITAL GAINS FOR TAXATION AND THE ASSESSEE DI SCHARGED ITS TAX LIABILITY OF RS. 10,17,380/- BY PAYING ADVANCE TAX ON 12/08/06. HE, THEREFORE, SUBMITTED THAT THE ASSESSEE DID NOT HAVE ANY MALA-FIDE INTENTION OR MENS-REA TO CONCEAL THE INCOME. HE POI NTED OUT THAT PENALTY PROCEEDINGS BEING QUASI-CRIMINAL IN NATURE, MERE REJECTION OF ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 12 THE CLAIM OF THE ASSESSEE DOES NOT, AUTOMATICALLY, LEAD TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IT WAS STATED THA T WHEN SUCH CLAIM IS NOT BASED ON A DELIBERATE ATTEMPT TO EVADE TAX, THE SAME MAY BE TREATED AS BONA-FIDE MISTAKE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) GAVE SPECIFIC FINDING THAT WHE N THE CASE WAS SELECTED FOR SCRUTINY U/S 143(2) AND NOTICE U/S 142 (1) WAS ISSUED ON 11/08/09 AND QUESTIONNAIRE WAS ALSO ISSUED ON 3 RD SEPTEMBER, 09 FIXING THE CASE FOR HEARING ON 14/09/09. HOWEVER, N O DETAILS WERE FILED BY THE ASSESSEE NOR APPEARED BEFORE THE AO OR ADJOURNMENT WAS SOUGHT. ON 28/10/09 SHRI AMIT GOWRI APPEARED ON BE HALF OF THE ASSESSEE AND FILED THE DETAILS VIDE LETTER DATED 26 /10/09. HOWEVER, THE DETAILS FILED BY THE ASSESSEE WERE NOT COMPLETE AND THE AO ASKED THE AR, WHO APPEARED ON BEHALF OF THE ASSESSEE DIRE CTED HIM TO FILE COMPLETE DETAILS OF CAPITAL GAINS STATEMENT VIDE OR DER SHEET NOTING DATED 28/10/09. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED DETAILS VIDE LETTER DATED 29/10/09. HOWEVER, AFTER EXAMINING THE DETAILS, THE AO FOUND THAT THE DETAILS WERE INCOMPL ETE AND INSUFFICIENT AND, THEREFORE, ASKED THE ASSESSEE TO FILE THE DETA ILS REGARDING COMPUTATION OF LONG TERM AND SHORT TERM CAPITAL GAI NS AND THE ASSESSEE FILED THE DETAILS VIDE LETTER DATED 09/11/ 09 STATING THAT THE SHORT TERM CAPITAL GAINS OF RS. 97,31,044/- WAS INA DVERTENTLY NOT REPORTED UNDER THE CAPITA GAINS IN THE RETURN OF IN COME. 11. THE CIT(A), THEREFORE, NOTED THAT THIS FACT SHO WS THAT THE ASSESSEE HAS NOT OFFERED THE SAID CAPITAL GAINS VOL UNTARILY AS IT WAS FILED AFTER REPEATEDLY REQUESTED BY THE AO. THE CIT (A), THUS, HELD THAT THE AMOUNT OF RS. 97,31,044/- OFFERED BY THE ASSESS EE IS NOT VOLUNTARY OFFER AND THE SAME WAS OFFERED AFTER REPE ATED REQUESTS MADE BY THE AO TO FILE THE DETAILS. IN THIS CONNECTION, WE REFER TO PAGE 34 OF THE PAPER BOOK, WHICH IS THE NOTICE ISSUED BY THE A O U/S 142(1) ON 03/09/09, WHEREIN AT SL.NO. 10, THE AO ASKED THE AS SESSEE AS UNDER:- ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 13 10. PLEASE FURNISH THE DETAILS OF CAPITAL GAIN (SHO RT TERM & LONG TERM SEPARATELY), IF ANY, SUBJECT TO SECURITY TRANS ACTION. THE ASSESSEE FILED ITS REPLY ON 26/10/09, WHICH IS PLACED AT PAGE NO. 37 AT SL.NO. 11, WHICH IS EXTRACTED BELOW: - WE HAVE ENCLOSED AS ANNEXURE 10, THE DETAILS OF CAP ITAL GAINS COMPUTATION FOR AY 2007-08. FURTHER, WE HAVE ATTACH ED THE DETAILS OF SECURITIES TRANSACTION TAX PAID AS ANNEX URE 11. FROM THE ABOVE, IT IS CLEAR THAT THE AO ASKED THE ASSESSEE TO SUBMIT THE DETAILS OF CAPITAL GAINS AND, IN RESPONS E, THE ASSESSEE SUBMITTED ALL THE DETAILS. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS POINTED OUT THAT THE AO HAS NO T ASKED ALL THE DETAILS OF SHORT TERM AND LONG CAPITAL GAINS, BUT, ONLY ASKED SHORT TERM AND CAPITAL GAINS SUBJECTED TO SECURITY TRANSA CTION TAX ACCORDINGLY FILED. WE DO NOT AGREE WITH THE SAID SU BMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE FOR THE SIMPLE REA SON THAT THE AO HAS SPECIFICALLY ASKED THE DETAILS OF SHORT TERM AND LO NG TERM CAPITALS, THEN, THE ASSESSEE IN REPLY SUBMITTED THAT ALL THE DETAILS ARE FILED. WHEN THE AO ASKED THE ASSESSEE THAT THE DETAILS FIL ED ARE NOT SUFFICIENT, THE ASSESSEE AGAIN VIDE LETTER DATED 29 /10/09 SUBMITTED THE DETAILS STATING THEREIN AS UNDER:- WE WISH TO SUBMIT THAT IN RESPECT OF THE INFORMATIO N REQUESTED BY YOU IN THE NOTICE ISSUED U/S 142(1) OF THE ACT, WE WERE LIAISONING WITH THE LOCAL CUSTODIAN OF HLFI FOR PRO VISION OF THE SAME. THE CUSTODIAN TOOK MORE THAN ANTICIPATED TIME IN PROVIDING THE INFORMATION AND THAT WE RECEIVED ONLY PART INFO RMATION BY END OF SEPTEMBER 2009 WHICH WAS THE DEADLINE FOR FI LING TAX RETURNS FOR THE AY 2009-10. AS SOON AS WE RECEIVED THE BALANCE INFORMATION, WE COLLATED THE SAME AND FILED THE SUB MISSION WITH ALL THE INFORMATION REQUESTED BY YOU. 12. FROM THE ABOVE, IT IS CLEAR THAT WHEN THE AO AS KED THE ASSESSEE TO FILE ALL THE DETAILS PERTAINING TO CAPITAL GAINS VIDE LETTER DATED 03/09/09, THE ASSESSEE FILED DETAILS VIDE LETTER DA TED 26/10/09. IT IS TO BE NOTED HERE THAT THE ASSESSEE MUST BE AWARE TH AT IT DOES NOT ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 14 HAVE FULL DETAILS OF SHORT TERM AND LONG TERM CAPIT AL GAINS, THEREFORE, SUBMITTED SOME DETAILS BEFORE THE AO TO TAKE A CHAN CE THAT IF THE AO SATISFIES, FURTHER INFORMATION NEED NOT BE DISCLOSE D. IT APPEARS THAT THE ASSESSEE WANTED TO TAKE A CHANCE TO FILE SOME I NFORMATION THOUGH IT HAS GOT FULL DETAILS. THEREFORE, IT CANNOT BE SA ID THAT THE ASSESSEE IS VOLUNTARILY SURRENDERED THE SHORT TERM CAPITAL GAIN OF RS.97,31,044/-, WHICH WAS DELIBERATELY NOT SHOWN IN THE RETURN OF I NCOME, BUT, WHEN THE AO SUSPECTED THE SAME, THE ASSESSEE SUBMITTED T HAT THE SAID CAPITAL GAIN WAS INADVERTENTLY MISSED IN THE REVISE D RETURN OF INCOME, WHICH, IN OUR VIEW, UNDER COMPELLING CIRCUMSTANCES ONLY THE ASSESSEE OFFERED THE SHORT TERM CAPITAL GAIN FOR TAXATION BY SAYING THAT ADVANCE TAX HAS ALREADY BEEN PAID AND IT IS SUO-MOTO OFFERE D FOR TAXATION. FROM THE ABOVE, THE CONDUCT OF THE ASSESSEE SHOWS T HAT THE ASSESSEE DOES NOT WANT TO DISCLOSE THE AMOUNT IN THE ORIGINA L RETURN OF INCOME, BUT, AFTER SUSPECTED BY THE AO, UNDER COMPELLING CI RCUMSTANCES, THE ASSESSEE OFFERED THE SAME FOR TAXATION. WE, THEREFO RE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A), IN SO FAR AS THIS ASPECT, IS CONCERNED. 13. THE LEARNED CIT(A) FURTHER NOTED THAT THE ASSES SEE HAS CLAIMED THAT IT HAD PAID ADVANCE TAX OF RS. 10,17,380/- ON EARNING OF SUCH SHORT TERM CAPITAL GAIN, HENCE, THERE WAS NO MALAFI DE INTENTION IS ALSO CANNOT BE ACCEPTED AS CORRECT, RATHER THE PAYMENT O F ADVANCE TAX MEANS THAT THE ASSESSEE WAS WELL AWARE THAT IT HAS EARNED SHORT TERM CAPITAL GAINS OF UNDERLYING SHARES OF GDRS, THEREFO RE, THERE IS NO REASON AS TO WHY THE SAID INCOME WAS NOT DISCLOSED PARTICULARLY WHEN THE ASSESSEE HAS DULY CLAIMED SUCH REFUND ON PAYMEN T OF ADVANCE TAX WHILE FILING THE RETURN OF INCOME. FROM THE ABOVE F INDING OF THE CIT(A), IT IS VERY CLEAR THAT WHILE FILING THE RETURN OF IN COME REFUND OF ADVANCE TAX, WHICH THE ASSESSEE WAS PAID WAS CLAIMED, WHY T HE SHORT TERM CAPITAL GAIN HAS NOT OFFERED FOR TAXATION, FOR WHIC H THERE IS NO PROPER ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 15 EXPLANATION FROM THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. THE LEARNED CIT(A) REFERRED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S DHARMENDRA TEXTILE PROCESSORS AND OTHERS, 166 TAXMAN 65 WHEREIN THE AP EX COURT HELD THAT LIABILITY IMPOSED U/S 271(1)(C) IS PURELY A CI VIL LIABILITY AND THERE IS NO REQUIREMENT TO ESTABLISH MENS-REA BEFORE LEV YING PENALTY. IN THIS CONNECTION, THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE CIT(A) WRONGLY FOLLOWED THE DECISION OF THE DHA RMENDRA TEXTILE (SUPRA) AS THIS DECISION WAS SUBSEQUENTLY WAS EXPL AINED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIAN CE PETROPRODUCTS PVT. LTD., 322 ITR 158 (SC). HE, THEREFORE, CONTEND ED THAT THE ACTION OF THE CIT(A) IN FOLLOWING THE DECISION OF DHARMEND RA TEXTILE (SUPRA) IS BAD IN LAW. WE HAVE CONSIDERED THE DECISIONS OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS AND DHA RMENDRA TEXTILES (SUPRA). IN THE CASE OF DHARMENDRA TEXTILES, THE HO NBLE SUPREME COURT HAS EXPLAINED THAT MENS-REA IS NOT THE REQUIS ITE CONDITION IN CASE OF LEVYING PENALTY U/S 271(1)(C) OF THE ACT. I N THE CASE OF RELIANCE PETROPRODUCTS, THE APEX COURT HAS OBSERVED THAT THE APPLICATION OF MENS-REA IS NOT AN ISSUE BEFORE US AND THE HONBLE SUPREME COURT HAS EXPLAINED THE DIFFERENCE BETWEEN 271(1)(C) AND 276C. IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT, WE MADE IT CLEAR THAT TO INITIATE PENALTY PROCEEDINGS U/S 271(1)(C) MENS-REA IS NOT A PREREQUISITE CONDITION, WHAT IS NECESSARY IS EITHER 'CONCEALED PARTICULARS OF INCOME' OR 'FURNISHING INACCURATE PA RTICULARS OF INCOME'. IF EITHER OF THE CONDITIONS ARE SATISFIED PENALTY PROCEEDINGS CAN BE INITIATED. DURING THE COURSE OF PENALTY PROCEEDING S, IF THE ASSESSEE IS IN A POSITION TO ESTABLISH BY FILING COGENT MATERI AL BEFORE THE AO TO PROVE THE BONAFIDES, AND IF THE AO IS SATISFIED WIT H THE EXPLANATION OFFERED BY THE ASSESSEE IS BONA-FIDE ONE, NO PENALT Y CAN BE LEVIED. IN THE PRESENT CASE, THE LEARNED CIT(A) FOLLOWING THE DECISION OF THE ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 16 HON'BLE SUPREME COURT IN THE CASE OF DHARMENDRA TEX TILE PROCESSORS (SUPRA) FOR THE REASON THAT THE ASSESSEE HAS EXPLAI NED BEFORE HIM THAT THE ASSESSEE IS NOT HAVING ANY MALAFIDE INTENTION T O EVADE TAX. THEREFORE, THE CONTENTION OF THE ASSESSEE IS THAT T HE CIT(A) WRONGLY FOLLOWED THE DECISION OF THE DHARMENDRA TEXTILES PR OCESSORS(SUPRA) IS NOT CORRECT. IN THE PRESENT CASE, WHEN THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THE AO NOTICED THAT THE ASSE SSEE HAS NOT SHOWN THE SHORT TERM CAPITAL GAINS IN THE RETURN OF INCOM E FILED BY THE ASSESSEE. HE, THEREFORE, ISSUED NOTICE U/S 142(1) TO THE ASSESSEE TO FILE ALL THE DETAILS OF SHORT TERM CAPITAL GAINS, A ND THE ASSESSEE FILED ALL THE DETAILS WITH REGARD TO SHORT TERM CAPITAL G AINS (VIDE PAGE 7 OF PAPER BOOK). HOWEVER, THE AO NOTICED THAT THE DETA ILS FILED BY THE ASSESSEE WERE INCOMPLETE, HENCE, ON 26/10/09 AGAIN ASKED THE ASSESSEE TO FILE SOME MORE DETAILS VIDE ORDER SHEET NOTE DATED 28/10/09. IN RESPONSE, THE ASSESSEE FILED SOME DETA ILS ON 29/10/09 AND ACCORDING TO THE AO, EVEN THESE DETAILS WERE NO T COMPLETE AND AGAIN ASKED THE ASSESSEE TO FILE SOME MORE DETAILS. THE ASSESSEE FILED DETAILS VIDE LETTER DATED 09/11/09 STATING THAT ALL THE DETAILS ARE NOT AVAILABLE WITH THE ASSESSEE AND MOST OF THE DETAILS ARE WITH THE CUSTODIAN OF THE ASSESSEE. FROM THE ABOVE, WE ARE O F THE VIEW THAT IF THE ASSESSEE IS NOT HAVING ALL THE DETAILS, WHEN TH E AO ASKED TO SUBMIT THE DETAILS IN THE FIRST INSTANCE ON 26/10/0 9, THE ASSESSEE OUGHT TO HAVE EXPLAINED BEFORE THE AO THAT FULL DET AILS ARE NOT AVAILABLE WITH IT AS OTHER DETAILS ARE AVAILABLE WI TH THE CUSTODIAN OF THE ASSESSEE. THE CONDUCT OF THE ASSESSEE, THEREFO RE, SHOWS THAT THE ASSESSEE WANTED TO TAKE A CHANCE WITH THE AO THAT I F THE AO IS SATISFIED WITH THE DETAILS FILED BY THE ASSESSEE, T HE ASSESSEE DOES NOT WANT TO DISCLOSE THE REMAINING DETAILS, WHEREIN, TH E DETAILS INCLUDE NON-DISCLOSURE OF SHORT TERM CAPITAL GAINS AMOUNTIN G TO RS. 97,31,044/-. FROM THE ABOVE, IT CAN SAFELY BE CONCL UDED THAT THE DISCLOSURE MADE BY THE ASSESSEE IS NOT VOLUNTARY DI SCLOSURE AS THE ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 17 DETAILS ABOUT SHORT TERM CAPITAL GAIN OF RS. 97,31, 044/- WERE DISCLOSED AGAINST THE REPEATED DEMANDS/REQUESTS MAD E BY THE AO ONLY. IN SO FAR AS THE EXPLANATION OFFERED BY THE A SSESSEE THAT THE SHORT TERM CAPITAL GAINS OF RS. 97,31,044/- WAS MIS SED OUT INADVERTENTLY IN THE RETURN OF INCOME AND THE DETAI LS FOR THE SAME WERE AVAILABLE WITH THE CUSTODIAN, IN OUR CONSIDERE D VIEW, IS NOT A BONAFIDE EXPLANATION FOR THE REASON THAT THE ASSESS EE WANTED TO TAKE CHANCE WITH THE AO BY FILING SOME DETAILS THINKING THAT THE SAME ARE ENOUGH FOR THE AO TO COMPLETE THE ASSESSMENT PROCEE DINGS. THEREFORE, THE ASSESSEE DELIBERATELY WANTED TO HIDE SOME PARTI CULARS TO EVADE TAX IN AS MUCH AS THE ASSESSSEE FILED THE FULL PARTICUL ARS PERTAINING TO THE SHORT TERM CAPITAL GAIN OF RS. 97,31,044/- AFTER RE PEATED DEMANDS/REQUESTED BY THE AO. 14. AS REGARDS THE SUBMISSION OF THE ASSESSEE THAT THE ASSESSEE MISSING OUT THE SHORT TERM CAPITAL GAIN OF RS. 97,3 1,044/- IN THE ORIGINAL RETURN OF INCOME IS A BONA-FIDE MISTAKE, I T IS OBSERVED THAT WHETHER THE MISTAKE IS A BONA-FIDE OR NOT, IT HAS T O BE DECIDED TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF E ACH CASE. IN THE PRESENT CASE, WHEN THE AO TOOK UP THE RETURN FILED BY THE ASSESSEE FOR SCRUTINY AND NOTICE WAS ISSUED U/S 1432(1) TO THE A SSESSEE TO FILE ALL THE DETAILS IN RESPECT OF SHORT TERM CAPITAL GAINS, THE ASSESSEE IS EXPECTED TO SUBMIT THE FULL DETAILS BEFORE THE AO I N RESPECT OF THE SHORT TERM CAPITAL GAINS OF RS. 97,31,044/- HAVING PAID THE ADVANCE TAX AND CLAIMED THE REFUND OF THE SAME IN THE RETUR N OF INCOME, BUT, THE ASSESSEE AFTER DEMANDING/REQUESTING TO FILE THE DETAILS BY THE AO ON NUMBER OF OCCASIONS, FINALLY FILED THE DETAILS B Y STATING THAT THE ASSESEE IS HAVING ONLY FEW DETAILS AND THE OTHER DE TAILS ARE AVAILABLE WITH THE CUSTODIAN AND OFFERED THE SHORT TERM CAPIT AL GAINS OF RS. 97,31,044/-, WHICH WAS STATED TO HAVE BEEN MISSED I N THE RETURN OF INCOME. FROM THE ABOVE, WE FIND THAT IT IS NOT A BO NAFIDE MISTAKE FOR ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 18 THE SIMPLE REASON THAT THE ASSESSEE HAS TRIED TO TA KE CHANCE BEFORE THE AO THAT IF THE AO IS NOT DEMANDED FURTHER DETAI LS, HE COULD HAVE CONSCIOUSLY CONCEALED THE PARTICULARS IN RESPECT OF SHORT TERM CAPITAL GAIN OF RS. 97,31,044/-. 15. NOW WE EXAMINE THE CASE LAWS RELIED UPON BY THE ASSESSEE AS UNDER:- THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PENALTY CAN BE LEVIED ON VOLUNTARY DISCLOSURE DURING THE AS SESSMENT PROCEEDINGS, WHEREIN NO SPECIFIC QUESTION RAISED BY THE AO ON IMPUGNED DISCLOSURE. FOR THIS PROPOSITION, HE RELIE D UPON THE FOLLOWING CASE LAWS:- 1. OM PRAKASH TANDON DATED15/07/2011 (ITA NO. 3313/DEL/2010(DELHI) IN THIS CASE, THE ASSESSEE CAME FORWARD TO DISCLOSE THE INCOME AS SOON AS HE CAME TO KNOW THAT THE INCOME OF RS. 8 ,89,457/- WAS OMITTED TO OFFER IN THE HANDS OF THE ASSESSEE. THE ASSESSEE NOT FILED THE REVISED RETURN BECAUSE TIME WAS ALREA DY EXPIRED, THEREFORE, BY WAY OF A LETTER HE OFFERED THE MISSED OUT INCOME FOR TAXATION. IN THE PRESENT CASE, THE ASSESSEE DISCLO SED THE PARTICULARS ONLY AFTER REPEATED DEMANDS/REQUESTS MA DE BY THE AO. THEREFORE, THIS CASE CASE LAW IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. 2. HANS CHRISTIAN GASS DATED 22/06/11 (ITA NO. 2209 OF 2010(BOM.) IN THIS CASE, DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE AO ASKED THE ASSESSEE TO INFORM AS IF THERE WAS ANY SOURCE OF INCOME EXCLUDING THE INCOME SHOWN IN THE RETURN OF INCOME AND WHETHER INCOME ARISE IN CONSEQUENCE OF THE SERV ICES RENDERED IN INDIA TO THE EMPLOYER AND ANY OTHER COM PANY. IN RESPONSE, THE ASSESSEE ACCEPTED THAT THE TAX PEREQU ISITE SHOULD ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 19 BE INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE AND ACCORDINGLY THE ASSESSEE PAID THE TAXES ON THE SAME. IN THIS CA SE, THE ASSESSEE HAS NOT MADE REPEATED DEMANDS TO FILE MORE DETAILS, THEREFORE, THIS CASE IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. 3. ALEXANDER REUSS DATED 30 SEPTEMBER 2010 (ITA NO. 662/PN/2010 (PUNE) ) IN THIS CASE, THE TRIBUNAL GAVE A FINDING THAT WE A RE NOT INCLINED TO INTERFERE WITH THE PENALTY DELETED BY T HE CIT(A) BECAUSE THE ASSESSEE HAS FILED REVISED COMPUTATION OF INCOME OF INCOME PRIOR TO ANY REASSESSMENT PROCEEDINGS INITIA TED BY THE ASSESSEE. IN THE PRESENT CASE, EVEN AFTER THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE WAS I SSUED U/S 142(1), THE ASSESSEE WAS NOT READY TO OFFER THE MIS SED OUT ITEM IN THE RETURN OF INCOME. THEREFORE, THIS CASE HAS N O APPLICATION TO THE CASE OF THE ASSESSEE. 4. BABITABEN RAMESHBHAI PATEL [116 TTJ 421 (AHM) ] IN THIS CASE ALSO, REVISED RETURN OF INCOME FILE D VOLUNTARILY BY THE ASSESSEE WITHOUT POINTING OUT ANYTHING BY THE A O, THEREFORE, THIS CASE HAS NO APPLICATION TO THE CASE OF THE ASS ESSEE. 5. BHANWAR LAL MAHENDRA KUMAR SONI 138 TTJ 381 (JD) IN THIS CASE, SURRENDER OF INCOME WAS MADE DURING T HE COURSE OF SURVEY AND THE ASSESSEE HAS EXPLAINED EAC H AND EVERY ITEM AND THE EXPLANATION OFFERED BY THE ASSESSEE HA S NOT BEE FOUND TO BE FALSE BY THE AO. SINCE FACTS ARE ENTIRE LY DIFFERENT IN THIS CASE, THIS CASE HAS NO APPLICATION TO THE CASE OF THE ASSESSEE UNDER CONSIDERATION. ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 20 6. K DEEDAR AHMED 97 ITD 240 (HYD) IN THIS CASE, THE ASSESSEE DISCLOSED ADDITIONAL IN COME IN REVISED RETURN. THE TRIBUNAL HELD THAT REVISED RETU RN FILED BY THE ASSESSEE AFTER DETECTION BY THE DEPARTMENT AND THE FACT THAT INCOME WAS ASSESSED ON PROTECTIVE BASIS THAT SHOWS THAT THE AO HAS NOT DETECTED ANY CONCEALMENT OF INCOME BY THE A SSESSEE. SINCE THE FACTS ARE DIFFERENT IN THIS CASE, THIS CA SE IS NOT APPLICABLE TO THE CASE UNDER CONSIDERATION. 16. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NOT SHOWING THE SHORT TERM CAPITAL GAIN OF RS. 97,31,04 4 IN THE RETURN OF INCOME WAS A BONA-FIDE MISTAKE, FOR WHICH HE RELIED UPON THE FOLLOWING CASE LAWS:- 1. A.H. WHEELERS & CO. PVT. LTD., (SUPRA) IN THIS CASE, CAPITAL LOSS SHOWN AS WRONG FIGURE AND THE MISTAKE OCCURRE D ON THE PART OF THE TAX CONSULTANT, WHO FILED IT RETURN ON THE BASIS OF AUDIT REPORT U/S 44AB. ON BEING POINTED OUT THE MIS TAKE, THE SAME WAS RECTIFIED BEFORE FINALISING THE ASSESSMENT . NO PENALTY WAS LEVIED IN THIS CASE. THEREFORE, THIS CASE HAS N O APPLICATION TO THE CASE UNDER CONSIDERATION. 2. PRECISION ELECTRICAL WIRING (SUPRA) IN THIS CA SE ASSESSEE CLAIMED DEDUCTION U/S 80IB. THE TRIBUNAL GAVE A FIN DING THAT THE CLAIM IS A BONA-FIDE AS THE ASSESSEE WITHDREW T HE EXCESS CLAIM AND PAID TAX IMMEDIATELY ON BEING POINTED OUT BY THE AO. WE ARE, THEREFORE, OF THE OPINION THAT THERE IS NEI THER FURNISHING OF INACCURATE PARTICULARS OF INCOME NOR CONCEALING THE INCOME, AS DONE BY THE ASSESSEE IN THE CASE UNDER CONSIDERA TION. HENCE, THIS CASE IS NOT APPLICABLE TO THE CASE UNDER CONSI DERATION. 3. NTN MANUFACTURING INDIA (P) LTD. (SUPRA) IN TH IS CASE, ASSESSEE COMPANY HAVING DECLARED LOSS IN ITS RETURN FOR THE RELEVANT YEAR WHICH IS THE FIRST YEAR AFTER ITS INC ORPORATION ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 21 WHEN THERE WAS NO BUSINESS ACTIVITY AND LATER SURRE NDERED THE SAID CLAIM DURING THE ASSESSMENT PROCEEDINGS, IT CA N BE ACCEPTED THAT THE CLAIM MADE IN THE RETURN WAS A BO NAFIDE MISTAKE COMMITTED ON ACCOUNT OF INADVERTENT CLERICA L ERROR AND THERE WAS NO DELIBERATE ATTEMPT ON THE PART OF THE ASSESSEE TO SUBMIT INACCURATE PARTICULARS OF INCOME AND THEREFO RE, MERE REJECTION OF THE CLAIM OF DEDUCTION OF EXPENDITURE CANNOT JUSTIFY LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. SINCE THE FACTS ARE DIFFERENT, THIS CASE ALSO IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. 4. KANBAY SOFTWARE INDIA (P) LTD. VS. DCIT (SUPRA) IN THE PRESENT CASE, THERE WAS NO CONCEALMENT AS THE ASSES SEE HAS MADE A CLAIM, AND THAT TOO BY REVISED RETURN WHICH VIRTUALLY ENSURED THAT THE FACT OF ASSESSEE HAVING MADE THIS CLAIM CANNOT REMAIN UNNOTICED BY THE AO, AND HAS GIVEN SPECIFIC JUSTIFICATION AND ALL THE SUPPORTING DETAILS FOR THE SAME. IN THE CASE UNDER CONSIDERATION, THE ASSESSEE DISCLOSED THE PARTICULA RS OF INCOME ONLY AFTER REPEATED DEMANDS MADE BY THE AO. THEREFO RE, THIS CASE IS ALSO NOT OF ANY HELP TO THE CASE OF THE ASS ESSEE UNDER CONSIDERATION. 17. IN VIEW OF THE ABOVE DISCUSSION AND ALSO TAKIN G INTO THE FACTS AND CIRCUMSTANCES OF THE CASE UNDER CONSIDERATION, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT, AND THE SAME IS HE REBY UPHELD. ITA NO. 2316/MUM/2011 M/S HARDING LOEVNER FUNDS INC. 22 18. IN THE RESULT, APPEAL OF THE ASESSSEE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MARCH, 2012. SD/- SD/- (J. SUDHAKAR REDDY) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 28 TH MARCH, 2012 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.