D.C.I.T CC - XII,kolkata., Kolkata V. M/s Akshara Shelters Consortium, Kolkata

ITA 246/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3460 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 30-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2013
• Court: TRIBUNAL
• Department Lawyers: NONGOTHUN G JUNGIO JCITLD
• Assessee Lawyers: S M SURANA LD
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Tax effect; Documents seized
• Section: 143(3); 133A; 153A; 147; 131; 27; 132; 11; 139

Judgement Text

ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI M.BALAGANESH, ACCOUNTANT MEMBER, AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NOS. 246 & 247/KOL/2013 A.Y: 2008-09 DCIT, CC-XII, KOLKATA VS. M/S. AKSHARA SHELT ERS CONSORTIUM PAN: AAAAA 9124G (APPELLANT) (RES PONDENT) FOR THE APPELLANT: SHRI NONGOTHUNG JUNGIO, JCIT, LD.SR.DR FOR THE RESPONDENT: SHRI S.M SUR ANA, ADVOCATE, LD.AR DATE OF HEARING: 06-01-2016 DATE OF PRONOUNCEMENT: 22 -01-20 16 ORDER SHRI M.BALAGANESH, AM THESE APPEALS OF THE REVENUE ARISE OUT OF THE ORDE RS OF THE LEARNED CIT(A), CENTRAL-II, KOLKATA IN APPEAL NO. 76/CC-XII/CIT(A)C -II/11-12 DATED 21.11.2012 IN THE CASE OF AKSHARA SHELTERS CONSORTIUM AND APPEAL NO. 75/CC-XII/CIT(A)C-II/11- 12 DATED 21.11.2012 IN THE CASE OF AKSHARA PROJECTS CONSORTIUM AGAINST THE ORDER OF THE LEARNED AO LEVYING PENALTY U/S 271(1)(C ) OF T HE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AS THE FACTS INVOLVED IN BOTH THESE APPEALS ARE IDENTICAL, THEY ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ONLY ISSUE TO BE DECIDED IN THESE APPEAL S IS THAT WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED AO IS JUSTIF IED IN LEVYING PENALTY U/S 271(1)(C ) OF THE ACT. ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 2 4. FACTS OF AKSHARA SHELTERS CONSORTIUM ITA NO. 2 46/KOL/2013 THE BRIEF FACTS OF THE CASE ARE THAT THE SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED IN THE BUSINESS AND RESIDENTI AL PREMISES OF AKSHARA GROUP OF CASES ON 11.9.2008 WHICH IS ENGAGED IN REAL ESTATE BUSINESS. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, SHRI PRAKASH CHANDRA AGRAWALLA, ONE OF THE KEY PERSONS OF THE GROUP, FILED A DISCLOSURE PETITION U/S 132(4 ) OF THE ACT BEFORE THE ADIT (INVESTIGATION) , KOLKATA DISCLOSING AN AMOUNT OF R S. 80,82,140/- BEING THE UNACCOUNTED INCOME OF THE ASSESSEE CONSORTIUM FROM SALE OF RESIDENTIAL FLATS DURING THE FINANCIAL YEAR 2007-08 RELEVANT TO ASST YEAR 20 08-09 BASED ON THE DOCUMENTS SEIZED U/S 132 OF THE ACT WITH IDENTIFICATION MARK ALT/5 (PAGE 15) FROM THE OFFICE PREMISES OF M/S AKSHARA SHELTERS PVT LTD AND OTHERS AT SUPRA COURT , 35, LANSDOWNE TERRACE, KOLKATA 700026. CONSIDERING T HE ABOVE, NOTICES U/S 153C READ WITH SECTION 153A OF THE ACT WERE ISSUED TO THE ASS ESSEE CONSORTIUM CALLING FOR RETURNS OF INCOME FOR THE ASST YEARS 2003-04 TO 2008-09. I N RESPONSE TO THE SAID NOTICES, RETURN FOR THE ASST YEAR 2008-09 WAS FILED ON 1.10. 2010 SHOWING TOTAL INCOME OF RS. 80,82,140/-. SHRI PRAKASH CHANDRA AGRAWALLA GAVE A STATEMENT U/S 131 OF THE ACT ON BEHALF OF THE GROUP AND DEMONSTRATED THE MANNER OF RECEIVING THE UNDISCLOSED INCOME OF RS. 80,82,140/- FROM SALE OF PREMIUM FLATS TO C ERTAIN CUSTOMERS IN CASH IN RESPECT OF SEVEN PARTIES, WHEREIN COSTLY AND SPECIAL MARBLE S AND FITTINGS OF THE CHOICE OF FLAT BUYERS WERE PROVIDED . THE LEARNED AO OBSERVED TH AT THE SINCE THE PROJECT UNDER CONSORTIUM I/E AKSHARA GOLD AT 32, RAMKRISHNA SAM ADHI ROAD, KANKURGACHHI, KOLKATA HAS NOT BEEN COMPLETED DURING THE YEAR, THE ASSESSEE CONSORTIUM HAS NOT SHOWN ANY INCOME FROM THE SAME OTHER THAN ITS UNDIS CLOSED CASH RECEIPTS OF RS. 80,82,140/-. THE ASSESSMENT WAS COMPLETED U/S 153C / 143(3) OF THE ACT ON 31.12.2010 ACCEPTING THE INCOME RETURNED OF RS. 80, 82,140/- FOR THE ASST YEAR 2008- 09. ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 3 4.1. FACTS OF AKSHARA PROJECTS CONSORTIUM ITA N O. 247/KOL/2013 THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY OPERA TION U/S 133A OF THE ACT WAS CONDUCTED ON 11.93.2008 IN THE OFFICE /BUSINESS PRE MISES OF ASSESSEE CONSORTIUM AT NO. 74, LENIN SARANI, KOLKATA 700013 IN CONNECTIO N WITH THE SEARCH OPERATION U/S 132 OF THE ACT IN THE AKSHARA GROUP OF CASES. DU RING THE COURSE OF SURVEY OPERATION, LOT OF ASSETS AND DOCUMENTS WERE FOUND A ND IMPOUNDED BY THE SURVEY TEAM. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION U /S 132 OF THE ACT, SHRI PRAKASH CHANDRA AGRAWALLA , ONE OF THE KEY PERSONS OF THE G ROUP, FILED A DISCLOSURE PETITION U/S 132(4) OF THE ACT BEFORE THE ADIT (INVESTIGATION) , KOLKATA DISCLOSING AN AMOUNT OF RS. 37,85,080/- AND RS. 8,37,200/- BEING THE UNACCO UNTED INCOME OF THE ASSESSEE CONSORTIUM FROM SALE OF RESIDENTIAL FLATS DURING TH E FINANCIAL YEAR 2007-08 RELEVANT TO ASST YEAR 2008-09 BASED ON THE DOCUMENTS SEIZED U/S 132 OF THE ACT WITH IDENTIFICATION MARK ALT/22 (PAGE 2 AND PAGE 3 RESPE CTIVELY) FROM THE OFFICE PREMISES OF M/S AKSHARA SHELTERS PVT LTD AND OTHERS AT SUPR A COURT , 35, LANSDOWNE TERRACE, KOLKATA 700026. CONSIDERING THE ABOVE, NOTICES U /S 153C READ WITH SECTION 153A OF THE ACT WERE ISSUED TO THE ASSESSEE CONSORTIUM CALL ING FOR RETURNS OF INCOME FOR THE ASST YEARS 2003-04 TO 2008-09. IN RESPONSE TO THE SAID NOTICES, RETURN FOR THE ASST YEAR 2006-07 WAS FILED ON 1.10.2010 SHOWING TOTAL I NCOME OF RS. NIL AND THE RETURNS FOR ASST YEAR 2007-08 AND ASST YEAR 2008-09 WERE FI LED ON 4.10.2010 SHOWING TOTAL INCOME OF RS. NIL AND RS. 46,22,280/- RESPECTIVELY. NO RETURN OF INCOME WAS FILED FOR THE ASST YEARS 2003-04 TO 2005-06 SINCE THE ASSESSE E CONSORTIUM WAS INCORPORATED ONLY ON 2.6.2005. SHRI PRAKASH CHANDRA AGRAWALLA G AVE A STATEMENT U/S 131 OF THE ACT ON BEHALF OF THE GROUP AND DEMONSTRATED THE MAN NER OF RECEIVING THE UNDISCLOSED INCOME OF RS. 46,22,280/- FROM SALE OF FLATS TO CE RTAIN CUSTOMERS IN CASH . THE LEARNED AO OBSERVED THAT THE SINCE THE PROJECT UNDE R CONSORTIUM I/E WHISPERING WILLOW AT RAJARHAT, KOLKATA HAS NOT BEEN COMPLETED DURING THE YEAR, THE ASSESSEE CONSORTIUM HAS NOT SHOWN ANY INCOME FROM THE SAME O THER THAN ITS UNDISCLOSED CASH RECEIPTS OF RS. 46,22,280/- (37,85,080 + 8,37,200). THE ASSESSMENT WAS COMPLETED U/S ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 4 153C / 143(3) OF THE ACT ON 31.12.2010 ACCEPTING TH E INCOME RETURNED OF RS. 46,22,280/- FOR THE ASST YEAR 2008-09. 4.2. THE LEARNED AO INITIATED PENALTY PROCEEDINGS U /S 271(1)(C ) OF THE ACT IN RESPECT OF BOTH THE ASSESSES FOR THE ASST YEAR 2008-09 AFTE R COMPLETION OF SECTION 153C ASSESSMENTS. DURING PENALTY PROCEEDINGS, IT WAS P LEADED BY THE ASSESSEE THAT THE ASSESSEE GAVE A DISCLOSURE PETITION U/S 132(4) OF T HE ACT AGREEING TO OFFER CERTAIN UNDISCLOSED INCOME PURSUANT TO THE SEARCH AND PROVE D HIS BONAFIDE BY OFFERING THE SAME UNDISCLOSED INCOME IN THE RETURN FILED IN RESP ONSE TO NOTICE ISSUED U/S 153C OF THE ACT AND ASSESSMENT U/S 153C OF THE ACT WAS COMP LETED ACCEPTING THE SAID INCOME RETURNED. HENCE THERE CANNOT BE ANY CONCEALMENT T HAT COULD BE ATTRIBUTED ON THE ASSESSEE. THE LEARNED AO DID NOT ACCEPT TO THESE PLEADINGS OF THE ASSESSEE AND PROCEEDED TO LEVY PENALTY U/S 271(1)(C ) OF THE ACT ON THE GROUND THAT BUT FOR THE SEARCH AND SURVEY ACTION, THE ASSESSES WOULD NOT HA VE COME FORWARD TO OFFER THIS UNDISCLOSED INCOME AND HENCE THE SAME CANNOT BE CON STRUED AS VOLUNTARY OFFER MADE BY THE ASSESSES. 4.3. ON FIRST APPEAL, THE ASSESSES RAISED AN ADDIT IONAL GROUND BEFORE THE LEARNED CIT(A) CHALLENGING THE IMPOSITION OF PENALTY U/S 27 1(1)(C ) OF THE ACT ON THE GROUND THAT THE INCOME ON WHICH PENALTY WAS IMPOSED WAS NO T ASSESSABLE AT ALL IN ASST YEAR 2008-09. THE ASSESSES PLEADED THAT THEY WERE FOLL OWING COMPLETED CONTRACT METHOD FOR RECOGNITION OF REVENUE FOR THEIR CONSTRUCTION O F FLATS ACTIVITY AND ACCORDINGLY THE CONSTRUCTION PROJECTS GOT COMPLETED ONLY IN ASST YE AR 2009-10 AND REGULAR RETURNS WERE FILED BY THE ASSESSES OFFERING THE PROFIT DERI VED THEREON. IT WAS FURTHER ARGUED THAT ADMITTEDLY THE INCOME OFFERED IN ASST YEAR 2008-09 REPRESENTED THE CASH PORTION RECEIVED ON SALE OF THOSE FLATS WHICH HAVE BEEN DUL Y REGULARLY OFFERED TO TAX IN ASST YEAR 2009-10. THE ASSESSES PLEADED THAT THIS COULD BE EVIDENT FROM THE SWORN STATEMENT RECORDED BY THE LEARNED AO U/S 131 OF THE ACT FROM ONE OF THE KEY PERSONS OF THE GROUP SHRI PRAKASH CHANDRA AGRAWALLA WHO HAD CLEARLY DEMONSTRATED THE ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 5 MANNER OF DERIVING THE UNDISCLOSED INCOME VIS A VIS THE RELEVANT SEIZED DOCUMENTS. IN OTHER WORDS, IT WAS PLEADED BEFORE THE LEARNED C IT(A) THAT DURING THE COURSE OF SEARCH, A PAPER SHOWING SALE OF FLATS WAS FOUND WHI CH INCLUDED FULL DETAILS OF SALE OF FLATS COMPRISING CASH AND CHEQUE PORTION SEPARATELY . THE KEY PERSON OF THE GROUP SHRI PRAKASH CHANDRA AGRAWALLA ADMITTED THAT THE CA SH AMOUNT RECEIVED ON SALE OF PROPERTIES WAS KEPT OUTSIDE THE BOOKS FOR WHICH DET AILS WERE MENTIONED IN THE SEIZED DOCUMENT. HENCE IT WAS ARGUED BY THE ASSESSEE THA T THE DETAILS ON THE SEIZED DOCUMENT SHOWS WITHOUT ANY DOUBT OR DISPUTE THAT TH E AMOUNT DISCLOSED BY THE ASSESSEE U/S 132(4) OF THE ACT WAS NOTHING , BUT TH E SALE PROCEEDS OF THE FLATS RECEIVED IN CASH. SINCE THE ASSESSEE IS FOLLOWING THE PROJE CT COMPLETION METHOD AND SINCE DURING THE ASST YEAR 2008-09 THE PROJECT WAS NOT CO MPLETED, AS ADMITTED AND ACCEPTED BY THE LEARNED AO IN THE ASSESSMENT ORDER, THEREFOR E, THE INCOME FROM SALE OF THESE FLATS HAVE BEEN ASSESSED ONLY IN ASST YEAR 2009-10. ACCORDINGLY ANY CONSIDERATION RECEIVED ON SALE OF FLATS AND INCOME THEREFROM COUL D BE ASSESSED ONLY IN THE ASST YEAR 2009-10. IT WAS FURTHER ARGUED THAT IN THE EVENT O F THE PURCHASER OF FLAT CANCELLING THE AGREEMENT BEFORE THE SALE WAS MADE, THE ASSESSEE HA D TO RETURN THE CASH PORTION ALSO TO HIM. THE CONSIDERATION WAS RECEIVED AGAINST SALE O F FLATS WHICH FLATS WERE GIVEN POSSESSION OF OR TRANSFERRED TO THE PURCHASERS IN A SST YEAR 2009-10 AND INCOME FROM SALE OF SAID FLATS HAVE BEEN RECOGNIZED IN ASST YEA R 2009-10 WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. IT WAS ALSO PLEADED THAT THE RE TURN OF INCOME FOR THE ASST YEAR 2009-10 WAS FILED DECLARING TOTAL INCOME OF RS. 59, 97,588/- IN THE CASE OF AKSHARA SHELTERS CONSORTIUM AND ASSESSMENT U/S 143(3) OF TH E ACT WAS COMPLETED ON 31.12.2010 ACCEPTING THE RETURNED INCOME. SIMILARL Y IN THE CASE OF AKSHARA PROJECTS CONSORTIUM, RETURN OF INCOME FOR THE ASST YEAR 2009 -10 WAS FILED ON 30.9.2009 DECLARING TOTAL INCOME OF RS. 2,95,64,546/- AND ASS ESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 31.12.2010 ACCEPTING THE RETURNED INCO ME. 4.3.1. IT WAS FURTHER ARGUED BEFORE THE LEARNED CI T(A) THAT THE ASSESSEE COULD RAISE A NEW POINT EVEN IN THE PENALTY PROCEEDINGS THAT THE PARTICULAR INCOME WAS NOT ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 6 ASSESSABLE IN THE ASST YEAR UNDER CONSIDERATION OR WAS NOT TAXABLE AT ALL. IT WAS ARGUED THAT PENALTY PROCEEDINGS ARE SEPARATE AND IN DEPENDENT OF ASSESSMENT PROCEEDINGS AND ANY FINDINGS GIVEN IN THE ASSESSMEN T ORDER ARE NOT CONCLUSIVE IN THE PENALTY PROCEEDINGS. ACCORDINGLY IT WAS ARGUED TH AT SINCE THE INCOME ITSELF WAS NOT ASSESSABLE IN ASST YEAR 2008-09, THERE CANNOT BE AN Y CONCEALMENT IN THE YEAR UNDER CONSIDERATION AND CONSEQUENTLY NO PENALTY COULD BE IMPOSED. 4.3.2. THE LEARNED CIT(A) FORWARDED THESE SUBMISSI ONS TO THE LEARNED AO FOR HIS COMMENTS IN THE REMAND PROCEEDINGS. THE LEARNED AO IN THE REMAND REPORT GAVE A COUNTER ARGUMENT THAT SHRI PRAKASH CHANDRA AGRAWALL A HIMSELF IN HIS STATEMENT U/S 132(4) OF THE ACT ADMITTED THAT THE ASSESSEE RECEIV ED THE CASH COMPONENT ON SALE OF FLATS (SOLD IN ASST YEAR 2009-10) IN THE ASSESSMENT YEAR 2008-09 AND IT WAS ON THAT BASIS THE INCOME WAS CORRECTLY ASSESSED IN ASST YEA R 2008-09. IN RESPONSE TO THIS, THE ASSESSEE FILED OBJECTIONS BEFORE THE LEARNED CITA S TATING THAT THERE IS NO DISPUTE ABOUT THE FACTS BETWEEN THE DEPARTMENT AND ASSESSEE THAT THE SAID AMOUNT WAS RECEIVED AGAINST PROPOSED SALE OF FLATS, THE INCOME OF WHICH HAVE BEEN RECOGNIZED BY THE ASSESSEE AND ASSESSED BY THE DEPARTMENT U/S 143(3) OF THE ACT IN ASST YEAR 2009-10 ON THE BASIS OF SYSTEM OF ACCOUNTING BEING SALE OR PRO JECT COMPLETION METHOD WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT IN ALL THE YEARS. HENCE EVEN IF SHRI PRAKASH CHANDRA AGRAWALLA HAD STATED THAT THE CASH WAS RECEIVED IN ASST YEAR 2008-09 AND HE, NOT KNOWING THE PROVISIONS OF LAW, HAVE DISCLOSED SUCH RECEIPTS FOR ASSESSMENT IN ASST YEAR 2008-09, THE SAME CANNOT BE ASSESSED AS INCOME FOR ASST YEAR 2008-09. THE AGREEMENT BY THE ASSESSEE CANNOT OVERRIDE THE PROVI SIONS OF THE ACT. IT WAS FURTHER ARGUED THAT THE ASSESSEE IS FOLLOWING SALE OR PROJE CT COMPLETION METHOD UNDER MERCANTILE SYSTEM OF ACCOUNTING AND THEREFORE, EVEN IF, THE CASH WAS RECEIVED AS ADVANCE OR EARNEST MONEY AGAINST PROPOSED SALE OF F LATS, IT CANNOT BE ASSESSED IN THE YEAR OF RECEIPT BUT HAS TO BE ASSESSED AS PER THE S YSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE AND ACCEPTED BY THE DEPARTMENT. IT WAS FU RTHER ARGUED THAT FOR THE PURPOSE OF ASSESSMENT OF SALE CONSIDERATION AND REVENUE RECOGN ITION OF THE PROJECT, DIFFERENT ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 7 TREATMENT CANNOT BE GIVEN TO THE AMOUNT RECEIVED BY CASH AND AMOUNT RECEIVED BY CHEQUE FOR SAME VERY FLATS OR PROJECT. 4.4 THE LEARNED CIT(A) APPRECIATED THE AFORESAID C ONTENTIONS OF THE ASSESSEE AND DELETED THE LEVY OF PENALTY U/S 271(1)(C ) OF THE A CT. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- THE LD, CIT(A) ERRED IN DELETING THE PENALTY MADE B Y AO AMOUNTING TO RS. 24,97,381/- U/S 271(1) (C) OF THE ACT FOR TH E A.Y. 2008-09. THE ASSESSEE CONSORTIUM ITSELF ADMITTED RECEIPT OF MONEY NOT DISCLOSED IN THE BOOKS OF ACCOUNTS AND ON THE BASIS OF THE SA ID DISCLOSURE BEFORE DDIT (INV), ADDITION WAS MADE IN ITS INCOME. THE ASSESSEE CONSORTIUM WAS NOT IN APPEAL FOR ADDIT ION IN THE ORDER PASSED U/S 153C/143(3) AND ON THE BASIS OF THE SAI D DISCLOSURE PENALTY PROCEEDING WAS INITIATED AND PENALTY U/S 271(1)(C) WAS IMPOSED. IN THE ASSESSMENT ORDER NO PROFIT WAS ESTIMATED IN THE HAND OF THE ASSESSEE ON THE BASIS OF PROJECT COMPLETION METHOD, THEREFORE, LD. CIT(A)'S GROUND OF DELETION OF PENALTY IMPOSED. IS NOT ACCEP TABLE. AS PER INCOME TAX LAW IT IS A WELL SETTLED PRINCIPL E THAT BASIS OF CHARGE OF INCOME WHICH IS TO TAX EITHER ON 'DUE' BA SIS OR 'RECEIPT' BASIS WHICHEVER MATURES EARLIER. THE UNACCOUNTED CASH RECEIVED BY THE ASSE SEE ON TH E A.Y.2008-09 ITSELF AND NOT IN A.Y. 2009- 10. HENCE, THE DECISION OF THE HONBLE CIT(A) CENTRAL-I L, KOLKATA, IS NOT ACCEPTABLE, MOREOVER THE TAX EFFECT IS ABOVE THE MO NETARY LIMIT SPECIFIED IN THE INSTRUCTION NO.3/2011, DT. 09.02.2011 OF CBDT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. THE FACTS STATED HEREINABOVE AND THE VARIOUS ARGUME NTS ADVANCED BY THE ASSESSEE BEFORE THE LEARNED CITA REMAIN UNDISPUTED AND HENCE THE SAME ARE NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. 5.1. FRESH PLEA COULD BE TAKEN IN PENALTY PROCEEDINGS. WE HOLD THAT THE ISSUE OF JURISDICTION TO IMPOSE PE NALTY IN A PARTICULAR YEAR CAN BE RAISED AT ANY TIME IN THE COURSE OF PROCEEDINGS . W E PLACE RELIANCE ON THE DECISION OF ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 8 THE HONBLE SUPREME COURT IN THE CASE OF KIRAN SINGH VS CHAMAN PASWAN REPORTED IN AIR 1954 SC 340 AT PAGE 342 , WHEREIN IT WAS HELD THAT : IT IS A FUNDAMENTAL PRINCIPLE WELL ESTABLISHED THA T A DECREE PASSED BY A COURT WITHOUT JURISDICTION IS A NULLITY, AND THAT ITS INV ALIDITY COULD BE SET UP WHENEVER AND WHEREVER IT IS SOUGHT TO BE ENFORCED O R RELIED UPON, EVEN AT THE STAGE OF EXECUTION AND EVEN IN COLLATERAL PROCEEDIN GS. A DEFECT OF JURISDICTION WHETHER IT IS PECUNIARY OR TERRITORIAL, OR WHETHER IT IS IN RESPECT OF THE SUBJECT MATTER OF THE ACTION, STRIKES AT THE VERY AUTHORITY OF THE COURT TO PASS ANY DECREE, AND SUCH A DEFECT CANNOT BE CURED EVEN BY C ONSENT OF PARTIES. 5.1.1. WE ALSO PLACE RELIANCE ON THE DECISION OF TH E CO-ORDINATE BENCH OF DELHI TRIBUNAL IN THE CASE OF TIDEWATER MARINE INTERNATIO NAL INC VS DCIT REPORTED IN 96 ITD 406 WHEREIN, AN APPEAL WAS FILED BEFORE THE TRIBUNAL AG AINST THE CONFIRMATION OF PENALTY U/S 271(1)(C ) OF THE ACT BY THE LEARNED CI T(A) AND IT WAS POINTED OUT BEFORE THE TRIBUNAL THAT THOUGH THE APPELLANT DID NOT CHAL LENGE THE VALIDITY OF THE ASSESSMENT ORDER, ON A PARTICULAR GROUND, THE ASSESSEE IS LEGA LLY ENTITLED TO CHALLENGE THE VALIDITY OF IMPUGNED PENALTY ORDER ON THE GROUND THAT A PROPER AND VALID ASSESSMENT WAS NOT COMPLETED IN THE CASE OF ASSESSEE. 5.1.2. RELIANCE IS PLACED ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF JAIDAYAL PYARELAL VS CIT REPORTED IN (1973) TAX LR 880 (ALL) , WHEREIN IT WAS HELD THAT WITH REFERENCE TO A NEW PLEA TAKEN IN THE PENALTY PROCEEDINGS WHICH WAS NOT TAKEN IN THE REGULAR ASSESSMENT PROCEEDINGS AS UNDE R:- IT IS THUS CLEAR THAT THE REGULAR ASSESSMENT ORDER IS NOT A FINAL WORD UPON THE PLEA TAKEN THEREIN OR WHICH MIGHT HAVE BEE N TAKEN AT THIS STAGE. THE ASSESSEE IS ENTITLED TO SHOW CAUSE IN PENALTY P ROCEEDINGS AND TO ESTABLISH BY THE MATERIAL AND RELEVANT FACTS WHICH MAY GO TO AFFECT HIS LIABILITY OR THE QUANTUM OF PENALTY. HE CANNOT BE HELD TO BE DEBARRED FROM TAKING APPROPRIATE PLEA SIMPLY ON THE GROUND T HAT SUCH A PLEA WAS NOT TAKEN IN THE REGULAR ASSESSMENT PROCEEDINGS. ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 9 5.1.3. RELIANCE IS ALSO PLACED ON THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF DEEP CHAND KOTHARI VS CIT REPORTED I N 171 ITR 381 (RAJ) WHEREIN IT WAS HELD THAT AN ORDER PASSED BY AN AUTHORITY WITHO UT JURISDICTION IS A NULLITY AND ITS INVALIDITY CAN BE CHALLENGED WHENEVER AND WHEREVER IT IS SOUGHT TO BE ENFORCED OR RELIED UPON. 5.2. WE FIND THAT THE UNDISPUTED FACTS ARE THAT THE ASSESSEE HAS RECOGNIZED THE REVENUE ON SALES MADE IN ASST YEAR 2009-10 , WHEN SIMULTANE OUSLY, ALONG WITH THE EXECUTION OF SALE DEED, POSSESSION WAS GIVEN TO THE PARTIES A ND FULL CONSIDERATION WAS RECEIVED. WE ARE IN FULL AGREEMENT WITH THE ARGUMENTS OF THE LEARNED AR THAT FOR THE PURPOSE OF ASSESSMENT OF SALE CONSIDERATION AND REVENUE RECOGN ITION OF THE PROJECT, DIFFERENT TREATMENT CANNOT BE GIVEN TO THE AMOUNT RECEIVED BY CASH AND AMOUNT RECEIVED BY CHEQUE FOR SAME VERY FLATS OR PROJECT. WE HOLD THA T AN ASSESSMENT CANNOT BE MADE ON MERE AGREEMENT WITH THE ASSESSEE BUT HAS TO BE COMP LETED IN ACCORDANCE WITH THE STATUTORY PROVISIONS OF THE ACT. THE GOVERNMENT SH OULD NOT BE UNJUSTLY ENRICHED BY COLLECTION OF UNDUE TAXES / PENALTY FROM THE ASSESS EE IN ORDER TO BE IN CONSONANCE WITH THE ARTICLE 265 OF THE CONSTITUTION WHICH STATES TH AT NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY AUTHORITY OF LAW. WE ALSO P LACE RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF OUR PROPOSITION :- 5.2.1. DECISION OF HONBLE SUPREME COURT IN THE CASE OF CO -OPERATIVE SUGAR (CHITPUR) LTD VS STATE OF TAMILNADU REPORTED IN 199 3 SUPP (4) SCC 42 , WHEREIN IT WAS HELD THAT THE ICNOME IS TO BE ASSESSED IN ACCOR DANCE WITH THE PROVISIONS OF LAW AND NOT IN ACCORDANCE WITH THE AGREEMENT WITH THE ASSES SEE TO BE ASSESSED IN A PARTICULAR YEAR. 5.2.2. DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS A.GAJAPATHY NAIDU REPORTED IN (1964) 53 ITR 114 (SC) , WHEREIN IT WAS HELD THAT NO POWER IS CONFERRED ON THE ITO UNDER THE ACT TO RELATE BACK ON INCOME T HAT ACCRUED OR AROSE IN A ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 10 SUBSEQUENT YEAR TO ANOTHER EARLIER YEAR ON THE GROU ND THAT THE SAID INCOME AROSE OUT OF AN EARLIER TRANSACTION. 5.2.3. DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS NADIAD ELECTRIC SUPPLY CO LTD REPORTED IN 80 ITR 650 , WHEREIN IT WAS HELD THAT EVEN IF THE ASSESSEE CREDITED MORE AMOUNT OR EXCESS AMOUNT, INC OME CAN BE ASSESSED ONLY WHICH RELATES TO THE PARTICULAR YEAR. 5.2.4. DECISION OF CO-ORDINATE BENCH DECISION OF PUNE TRIB UNAL IN THE CASE OF DHANVARSHA BUILDERS & DEVELOPERS PVT LTD VS DCIT RE PORTED IN (2006) 102 ITD 375 , WHEREIN IT WAS HELD THAT : THE CONDUCT OF SEARCH AND SEIZURE OPERATION IN A P ARTICULAR YEAR DOES NOT LEAD TO AN INFERENCE THAT THE UNDISCLOSED INCOM E DETECTED AS A CONSEQUENCE THEREOF HAS TO BE TAXED IN THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED. I N OTHER WORDS, ACCOUNTING OF PROFITS HAVE TO BE MADE ON THE BASIS OF THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. 5.2.5. DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS BILAHARI INVESTMENTS P LTD REPORTED IN 299 ITR 1(SC) , WHEREIN IT WAS HELD THAT INCOME IS TO BE ASSESSED IN ACCORDANCE WITH THE METHOD OF ACCOUN TING FOLLOWED BY THE ASSESSEE. 5.2.6. DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS MOTILAL C. PATEL & CO REPORTED IN (1988) 173 ITR 666 (GUJ) , WHEREIN IT WAS HELD THAT EARNEST MONEY RECEIVED FOR SALE OF PROPERTY IS NOT ASSESSABLE IN THE YEAR OF RECEIPT BUT IS ASSESSABLE IN THE YEAR OF COMPLETION OF SALE OF THE SAID FLATS. 5.2.7. DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F JAINARAYAN BABULAL VS CIT REPORTED IN (1988) 170 ITR 399 (BOM) , WHEREIN IT WAS HELD THAT THE ENTRIES AGGREGATING TO RS. 24,600/- WERE MADE DURING THE CO URSE OF THE FINANCIAL YEAR THAT ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 11 BEGAN ON 1 ST APRIL 1948, AND ENDED ON 31 ST MARCH, 1949. THE RELEVANT ASSESSMENT YEAR FOR THAT FINANCIAL YEAR WAS THE ASST YEAR 1949-50. THE ASSESSMENT OF THE SAID AMOUNT OF RS. 24,600/- AS INCOME FROM UNDISCLOSED SOURCES FOR THE ASST YEAR 1950-51 WOULD, THEREFORE, APPEAR TO HAVE BEEN MADE IN ERROR. AT AN Y RATE, NO PENALTY CAN BE IMPOSED FOR NON-DISCLOSURE OF THAT INCOME FOR THE ASST YEAR 1950-51. 5.2.8. DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS KUSUM PRODUCTS LTD REPORTED IN 203 ITR 672 (CAL) WHEREIN IT WAS HELD THAT : THE QUESTION IS WHETHER THE INCOME WHICH, ACCORDING TO THE REVENUE, THE ASSESSEE SOUGHT TO CONCEAL OR FURNISH INACCURATE PA RTICULARS OF INCOME WAS FOR THE ASSESSMENT YEAR IN QUESTION. IF CERTAI N INCOME IS NOT LIABLE TO BE ASSESSED AS INCOME OF ANY PARTICULAR ASSESSMENT YEAR, THE QUESTION OF CONCEALING SUCH INCOME OR FURNISHING INACCURATE PAR TICULARS OF SUCH INCOME BY THE ASSESSEE WHILE FILING THE RETURN FOR THE SAID ASSESSMENT YEAR COULD NOT ARISE AT ALL. 5.2.9. DECISION OF CO-ORDINATE BENCH OF KOLKATA TRIBUNAL IN THE CASE OF URMILA DEVI VS ITO IN ITA NO. 1046/KOL/2009 FOR ASST YEAR 2005- 06 DATED 30.6.2011 , WHEREIN IT WAS HELD THAT 6. WE FIND FROM THE ABOVE FACTS AND THE CASE LAW OF HONBLE BOMBAY HIGH COURT IN THE CASE OF JAYNARAIN BABULAL (SUPRA) THAT IN CASE THE INCOME IS DISCLOSED, IN RESPECT TO CAPITAL GAIN, IN ASSESSMEN T YEAR 2005-06 AND THE SAME IS TO BE ASSESSED IN ASSESSMENT YEAR 2008-09, PENALTY U/S 271(1)(C ) CANNOT BE LEVIED IN THE RELEVANT ASSESSMENT YEAR 20 05-06 BECAUSE THE INCOME OF CAPITAL GAIN IS NOT AT ALL ASSESSABLE IN THAT ASSESSMENT YEAR. ACCORDINGLY, WE DELETE THE PENALTY LEVIED AND CONFI RMED BY LOWER AUTHORITIES AND THIS APPEAL OF THE ASSESSEE IS ALLO WED. 5.3. BUT FOR THE SEARCH, INCOME WOULD NOT HAVE BEEN DISC LOSED WE FIND THAT THE LEARNED DR ARGUED THAT BUT FOR THE SEARCH AND SURVEY ACTION, THE ASSESSEE WOULD NOT HAVE COME FORWARD WITH THE OFFER OF UNDISCLOSED INCOME BY WAY OF ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 12 DISCLOSURE PETITION U/S 132(4) OF THE ACT FOLLOWED BY OFFERING THE SAME IN THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 153C OF THE ACT. IN THIS REGARD, WE FIND THAT THIS ASPECT HAS BEEN DULY CONSIDERED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS SAS PHARMACEUTICALS REPORTED IN 335 ITR 259 (DEL ) , WHEREIN IT WAS HELD AS UNDER:- 14. WE MAY, FIRST OF ALL, REJECT THE CONTENTION OF THE LEARNED COUNSEL FOR THE REVENUE RELYING UPON THE EXPRESSION IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT OCCURRING IN SUB-SECTION (1) OF SEC TION 271 OF THE ACT AND CONTENDING THAT EVEN DURING SURVEY WHEN IT WAS FOUN D THAT THE ASSESSEE HAD CONCEALED THE PARTICULAR OF HIS INCOME, IT WOULD AM OUNT CONCEALMENT IN THE COURSE OF ANY PROCEEDINGS. THE WORDS IN THE COUR SE OF ANY PROCEEDINGS UNDER THIS ACT ARE PREFACED BY THE SATISFACTION OF THE ASSESSING OFFICER OR THE COMMISSIONER OF INCOME-TAX (APPEALS). WHEN THE SURVEY IS CONDUCTED BY A SURVEY TEAM, THE QUESTION OF SATISFACTION OF A SSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE COMMISSIONER DOES NOT ARISE. WE HAVE TO KEEP IN MIND THAT IT IS THE ASSESSING OFFICER WHO I NITIATED THE PENALTY PROCEEDINGS AND DIRECTED THE PAYMENT OF PENALTY. HE HAD NOT RECORDED ANY SATISFACTION DURING THE COURSE OF SURVEY. DECISION TO INITIATE PENALTY PROCEEDINGS WAS TAKEN WHILE MAKING ASSESSMENT ORDER . IT IS, THUS, OBVIOUS THAT THE EXPRESSION IN THE COURSE OF ANY PROCEEDIN GS UNDER THIS ACT CANNOT HAVE THE REFERENCE TO SURVEY PROCEEDINGS, IN THIS C ASE. 15. IT NECESSARILY FOLLOWS THAT CONCEALMENT OF PARTICU LARS OF INCOME OR FURNISHING OF INACCURATE PARTICULAR OF INCOME BY TH E ASSESSEE HAS TO BE IN THE INCOME-TAX RETURN FILED BY IT. THERE IS SUFFICI ENT INDICATION OF THIS IN THE JUDGMENT OF THIS COURT IN THE CASE OF CIT V. MOHAN DAS HASSA NAND [1983] 141 ITR 203 / 13 TAXMAN 328 AND IN RELIANCE PETRO PRODUCTS (P.) LTD. (SUPRA), THE SUPREME COURT HAS CLINCHED THIS A SPECT, VIZ., THE ASSESSEE CAN FURNISH THE PARTICULARS OF INCOME IN HIS RETURN AND EVERYTHING WOULD DEPEND UPON THE INCOME-TAX RETURN FILED BY THE ASSE SSEE. THIS VIEW GETS SUPPORTED BY EXPLANATION 4 AS WELL AS EXPLANATIONS 5 AND 5A TO SECTION 271 OF THE ACT AS CONTENDED BY THE LEARNED COUNSEL FOR THE RESPONDENT. 16. NO DOUBT, THE DISCREPANCIES WERE FOUND DURING THE SURVEY. THIS HAS YIELDED INCOME FROM THE ASSESSEE IN THE FORM OF AMO UNT SURRENDERED BY THE ASSESSEE. PRESENTLY, WE ARE NOT CONCERNED WITH THE ASSESSMENT OF INCOME, BUT THE MOOT QUESTION IS TO WHETHER THIS WOULD ATTR ACT PENALTY UPON THE ASSESSEE UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. OBVIOUSLY, NO PENALTY CAN BE IMPOSED UNLESS THE CONDITIONS STIPUL ATED IN THE SAID PROVISIONS ARE DULY AND UNAMBIGUOUSLY SATISFIED. SI NCE THE ASSESSEE WAS EXPOSED DURING SURVEY, MAY BE, IT WOULD HAVE NOT DI SCLOSED THE INCOME BUT FOR THE SAID SURVEY. HOWEVER, THERE CANNOT BE ANY P ENALTY ONLY ON SURMISES, ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 13 CONJECTURES AND POSSIBILITIES. SECTION 271(1)(C) OF THE ACT HAS TO BE CONSTRUED STRICTLY. UNLESS IT IS FOUND THAT THERE I S ACTUALLY A CONCEALMENT OR NON-DISCLOSURE OF THE PARTICULARS OF INCOME, PENALT Y CANNOT BE IMPOSED. THERE IS NO SUCH CONCEALMENT OR NON-DISCLOSURE AS T HE ASSESSEE HAD MADE A COMPLETE DISCLOSURE IN THE INCOME-TAX RETURN AND OF FERED THE SURRENDERED AMOUNT FOR THE PURPOSES OF TAX. 17. WE, THUS, ANSWER THE QUESTIONS AS FORMULATED ABOVE , IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE FINDING NO FAULT W ITH THE DECISIONS OF THE CIT(A) AS WELL AS THE TRIBUNAL. AS A RESULT, THIS A PPEAL IS DISMISSED. *IN FAVOUR OF ASSESSEE. 5.3.1. IT WILL BE RELEVANT TO DISCUSS THE FOLLOWIN G CASE LAW AT THIS JUNCTURE I.E THE DECISION OF ITAT DELHI BENCH IN THE CASE OF PREM ARORA VS DCIT REPORTED IN (2012) 24 TAXMANN.COM 260 (DELHI) WHEREIN THE HEAD NOTES ARE REPRODUCED HEREIN BELOW:- SECTION 271(1)(C ), READ WITH SECTION 153A, OF THE INCOME TAX ACT, 1961 PENALTY FOR CONCEALMENT OF INCOME ASSESSMENT YE AR 2004-05 WHETHER FOR PURPOSE OF IMPOSITION OF PENALTY UNDER SECTION 271(1)(C ) RESULTING AS A RESULT OF SEARCH ASSESSMENTS MADE UN DER SECTION 153A, ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 C ANNOT BE CONSIDERED HELD, YES WHETHER CONCEALMENT OF INCOME HAS TO BE SEEN WITH REFERENCE TO ADDITIONAL INCOME BROUGHT TO TAX OVER AND ABOVE INCOME RETURNED BY ASSESSEE IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A AND, THEREFORE, ONCE RETURNED INCOME UNDER SECTION 153A IS ACCEPTED BY ASSESSING OFFICER, IT CAN NEITHER BE A CASE OF CONCEALMENT OF INCOME N OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME HELD, YES SEARCH WAS CONDUCTED ON 22-11-2006 AND CASH WAS FOUND FROM POSSESSION OF ASSESSEE ASSESSEE HAD DRAWN CASH FLOW STATEMENT FOR ENTIRE PERIOD OF SIX YEARS IN ORDER TO DETERMINE UNDISCLOSED INCOME BASED ON SEIZED MATERI AL FOR EACH OF SIX ASSESSMENT YEARS WHETHER PENALTY UNDER SECTION 27 1(1)(C ) CANNOT BE IMPOSED BY INVOKING EXPLANATION 5 IN ASSESSMENT YEA R 2004-05 IN RESPECT OF CASH FOUND IN PREVIOUS YEAR RELEVANT TO ASSESSME NT YEAR 2007-08 , MERELY ON PRESUMPTION THAT ASSESSEE MIGHT HAVE BEEN IN POSSESSION OF CASH THROUGHOUT PERIOD COVERED BY SEARCH ASSESSMENTS H ELD, YES [ IN FAVOUR OF ASSESSEE.] ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 14 5.3.2. WE FIND THAT THIS DECISION OF DELHI TRIBUNA L HAS BEEN FOLLOWED BY THIS TRIBUNAL IN THE CASE OF DCWT VS VIVEK KR. KATHOTIA IN WTA NOS. 02 TO 08 / KOL / 2013 DATED 15.5.2015, WHEREIN IT WAS HELD THAT :- THAT THE CONCEPT OF A VOLUNTARY RETURN OF INCOME MA Y BE IMPORTANT IN PENALTY PROCEEDINGS INITIATED IN THE NORMAL ASSESSM ENT PROCEEDINGS U/S 143(3) OR 147 OF THE ACT BUT NOT U/S 153A OF THE AC T. WHEN ACCEPTED BY THE AO THEN THERE IS NO CONCEALMENT OF INCOME AND CONSE QUENTLY PENALTY U/S 271(1)(C ) OF THE ACT CANNOT BE IMPOSED. THE CONCE ALMENT OF INCOME IS TO BE DETERMINED WITH REGARD TO THE RETURN OF INCOME I N RESPONSE TO NOTICE U/S 153A OF THE ACT. THEREFORE, IN THE PRESENT CIRCUMSTANCES AND FACT S OF THE CASE ONCE THE RETURNED WEALTH IS ACCEPTED BY THE AO U/S 153A OF THE ACT THEN THERE CANNOT BE A CASE OF CONCEALMENT OF INCO ME OR FURNISHING INACCURATE PARTICULARS OF INCOME. IN THE CIRCUMSTA NCES AND FACTS OF THE CASE THE DECISION IN THE CASE OF PREM ARORA VS DCIT (24 TAXMANN.COM 260) (DELHI TRIBUNAL) IS SQUARELY APPLICABLE IN THE PRES ENT CASE, SINCE IN THE PRESENT CASE THE ASSESSEE HAS DISCLOSED GOLD AND DI AMOND IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT DURING THE SEARCH OP ERATION ITSELF, IN THE WEALTH TAX RETURN THE TRIBUNAL HAS APPROVED THE FIN DINGS IN QUANTUM WITH REGARD TO THE GENUINENESS OF THE DECLARATION OF GOL D AND DIAMONDS. ACCORDINGLY THE ASSESSEE IS NOT LIABLE TO HAVE PENA LTY U/S 271(1)(C ) OF THE ACT. 5.3.3. WE WOULD LIKE TO PLACE RELIANCE ON THE DECI SION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SHRI SAMIT ROY IN ITA 3 54 OF 2009 DATED 3.9.2015, WHEREIN THE QUESTIONS RAISED BEFORE THEIR LORDSHIPS AND THEIR DECISION RENDERED THEREON IS AS BELOW:- (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE INCOME TAX APPELLATE TRIBUNAL ERRED IN LAW IN UPHOL DING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) HOLDING THEIR A MOUNTS DISCLOSING AFTER SEARCH, WHICH WAS NOT PREVIOUSLY OFFERED TO T AX IS NOT A CONCEALMENT ON THE PART OF THE RESPONDENT / ASSESSEE ? (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE INCOME TAX APPELLATE TRIBUNAL ERRED IN LAW IN UPHOLDING TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) HOLDING THE ASS ESSING OFFICER WAS NOT JUSTIFIED IN LEVYING PENALTY UNDER SECTION 271( 1)(C ) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2003-04 TO 2005- 06 ? ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 15 SINCE BOTH THE QUESTIONS ARE COVERED BY THE JUDGEME NTS PASSED BY THIS COURT IN ITA 39 OF 2010 (COMMISSIONER OF INCOME TA X , CENTRAL I, KOLKATA VS AMARDEEP SINGH DHANJAL) AND IN ITA 330 O F 2009 (COMMISSIONER OF INCOME TAX, CENTRAL III, KOLKATA VS BRIJENDRA GUPTA), BOTH THE QUESTIONS ARE ANSWERED IN THE NEGATIVE, AG AINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. THE APPEAL IS DISMISSED. 5.4. WE HOLD THAT THE ASSESSEE HAD OFFERED THE BU SINESS INCOME ON SALE OF FLATS IN ASST YEAR 2009-10 IN RESPECT OF CHEQUE PORTION OF SALE C ONSIDERATION WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT IN SECTION 143(3) PROCEE DINGS. THEREFORE THE UNACCOUNTED CASH ELEMENT RECEIVED ON SALE OF FLATS WAS ALSO ASS ESSABLE ONLY IN ASST YEAR 2009-10 AND NOT IN ASST YEAR 2008-09 AS PER THE ACCOUNTING PRACTICE FOLLOWED BY THE ASSESSEE AND ALSO AS HELD IN THE VARIOUS DECISIONS RELIED UP ON HEREINABOVE. WE HOLD THAT INCOME HAS TO BE ASSESSED IN THE YEAR TO WHICH IT P ERTAIN TO AND NOT IN ANY OTHER ASSESSMENT YEAR BASED ON THE OFFERING OF THE ASSESS EE. HENCE WE HOLD THAT THE CASH RECEIPTS ON SALE OF FLATS AS PER THE SEIZED DOCUMEN T WAS NOT TAXABLE IN ASST YEAR 2008- 09 THOUGH THE SAME WAS OFFERED BY THE ASSESSEE ITSE LF IN THAT YEAR. THIS WOULD BE AN EXCRUCIATING FACTOR IN THE PENALTY PROCEEDINGS AND HENCE THE ASSESSEE CANNOT BE ATTRIBUTED WITH ANY CONCEALMENT OF INCOME OR FURNIS HING OF INACCURATE PARTICULARS OF INCOME FOR THE ASST YEAR 2008-09 IN THIS REGARD. 6. IN VIEW OF THE AFORESAID FINDINGS AND JUDICIAL PRECEDENTS, WE HOLD THAT ONCE A PARTICULAR INCOME WAS NOT ASSESSABLE IN THE ASST YE AR 2008-09 THEN EVEN THOUGH THE INCOME MIGHT HAVE BEEN ASSESSED IN ASST YEAR 2008-0 9, PENALTY U/S 271(1)(C ) OF THE ACT CANNOT BE IMPOSED ON THE SAME. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. ITA NOS.246,247/KOL/2013-C-AM M/S. AKSHARA SHELTERS CONSORTIUM 16 7. IN THE RESULT, THE APPEALS OF THE REVENUE A RE DISMISSED. 1.. THE APPELLANT: THE DCIT, CC-XII AAYKAR BHAWAN PURBA 110 SHANTIPALLY, KOL-107 2 THE RESPONDENT: M/S. AKSHARA SHELTERS CONSORTIU M 35 KAVI SABITRI PRASANNA CHATTOPADHYAY ROAD, KOL-26. 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS THIS ORDER IS PRONOUNCED IN OPEN COURT ON 2 2 -01-2016 SD/- ( S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 22 -01/2016 COPY OF THE ORDER FORWARDED TO:-