Sh. Karan Khurana, Delhi V. ITO, New Delhi

ITA 2695/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0703 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 06-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JANARDAN DASS SENIOR
• Keywords: Opportunity of being heard; Principle of natural justice; Initiation of penalty proceedings; Reasonable cause; Revised return
• Section: 27; 148; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE HONBLE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.2695/DEL./2015 (ASSESSMENT YEAR : 2007-08) ITA NO.2696/DEL./2015 (ASSESSMENT YEAR : 2008-09) ITA NO.2697/DEL./2015 (ASSESSMENT YEAR : 2009-10) ITA NO.2698/DEL./2015 (ASSESSMENT YEAR : 2010-11) SHRI KARAN KHURANA, VS. ITO, WARD 47 (1), 113, DILKHUSH BUILDING CHOWK, NEW DELHI. TILAK BAZAR, DELHI 110 006. (PAN : AGDPK4271C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH GUPTA, CA REVENUE BY : SHRI JANARDAN DASS, SENIOR DR DATE OF HEARING : 10.09.2018 DATE OF ORDER : 17.09.2018 O R D E R PER BENCH : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN ALL THE AFORESAID APPEALS, THE SAME ARE BEING DI SPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUS SION. ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 2 2. THE APPELLANT, SHRI KARAN KHURANA (HEREINAFTER R EFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUG HT TO SET ASIDE THE IMPUGNED ORDERS ALL DATED 11.03.2015 PASSED BY LD. CIT (APPEALS)-16, NEW DELHI, AFFIRMING THE PENALTY ORDE RS ALL DATED 14.08.2014 PASSED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEARS 2007-08 , 2008-09, 2009-10 AND 2010-11 ON THE IDENTICAL GROUND THAT :- THE LD. CIT (A) HAS ERRED BOTH IN LAW AND ON FACTS IN DISMISSING THE APPEAL AND CONFIRMING THE ORDER OF PENALTY PASSED BY THE AO, REJECTING THE SUBMISSIONS OF THE APPELLANT ON THE VALIDITY OF THE ORDER OF PENAL TY AND ON THE MERITS AS WELL. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE IDENTICAL ISSUE AT HAND IN ALL THE AFORESAID APPEAL S ARE : ON THE BASIS OF COMPLETED ASSESSMENT U/S 147/143(3) OF THE ACT, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED . ASSESSING OFFICER COMPLETED ASSESSMENT ON THE BASIS OF INTIMA TION RECEIVED VIDE LETTER NO.ASSTT.DIT (INV.)-UNIT-III (2)/EP/201 2-13/432 DATED 18.12.2012 FROM THE INVESTIGATION WING OF THE INCOM E-TAX DEPARTMENT THAT THE ASSESSEE HAS NOT DISCLOSED FIVE BANK ACCOUNTS FOR INCOME-TAX PURPOSE FOR THE YEARS 2007-08, 2008- 09, 2009-10 AND 2010-11. PURSUANT TO THE NOTICE ISSUED U/S 148 , ASSESSEE FILED RETURN DECLARING INCOME OF RS.15,58,420/-, RS.6,66, 010/-, RS.1,01,56,450/- AND RS.1,37,43,790/- ON 30.03.2013 FOR AYS ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 3 2007-08, 2008-09, 2009-10 & 2010-11 RESPECTIVELY AS AGAINST THE INCOME SHOWN IN THE ORIGINAL RETURN AT RS.5,11,592/ -, RS.6,32,903/- , RS.7,06,637/- & RS.7,05,834/- FILED ON 29.07.2006 , 31.07.2008, 31.07.2009 & 29.07.2010 FOR AYS 2007-08, 2008-09, 2 009-10 & 2010-11 RESPECTIVELY WHICH WAS ACCEPTED BY THE AO. AO ALSO DIRECTED TO INITIATE THE PENALTY PROCEEDINGS U/S 27 1 (1)(C) SEPARATELY. DECLINING THE CONTENTIONS RAISED BY TH E ASSESSEE, AO AFTER INVOKING FIRST PART OF CLAUSE (A) OF EXPLANAT ION 1 OF SECTION 271 (1)(C) PROCEEDED TO IMPOSE THE PENALTY OF RS.3, 34,980/-, RS.11,145/-, RS.31,80,810/- & RS.43,88,580/- @ 100% ON THE CONCEALED INCOME OF RS.9,95,180/-, RS.33,110/-, RS. 94,49,815/- & RS.1,30,37,960/- FOR AYS 2007-08, 2008-09, 2009-10 & 2010-11 RESPECTIVELY. 3. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS CONFIRMED THE PENALTY BY DISMISSING THE APPEALS FILED BY THE ASSESSEE FOR ALL THE AFORESAID YEARS. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 4 5. UNDISPUTEDLY, ASSESSMENT HAS BEEN REOPENED IN TH IS CASE ON THE BASIS OF INFORMATION RECEIVED BY THE AO FROM TH E INVESTIGATION WING, IT IS ALSO NOT IN DISPUTE THAT IN RESPONSE T O THE NOTICE ISSUED BY THE AO U/S 148, ASSESSEE FILED FRESH RETURN OF I NCOME DECLARING INCOME IN ADDITION TO THE INCOME ALREADY SHOWN IN T HE ORIGINAL RETURN, WHICH WAS ACCEPTED BY THE AO. 6. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, ORDER PASSED BY THE LOWER REVENUE AUTHORI TIES AND ARGUMENTS ADDRESSED BY THE LD. AR TO THE PARTIES, T HE SOLE QUESTION ARISES FOR DETERMINATION IN THIS CASE IS:- AS TO WHETHER THE ASSESSEE HAS CONCEALED PARTICULA RS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME DURING ASSESSMENT PROCEEDINGS WHILE INTERPRETING THE PROVISIONS CONTAINED U/S 271(1)(C) OF THE ACT? 7. THE LD. AR FOR THE ASSESSEE COMPANY CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT SHOW-CAUSE NOTICE ISSUED BY THE AO U/S 274, AVAILABLE AT PAGE 1 OF THE COMPO SITE PAPER BOOK FILED FOR ALL THE ASSESSMENT YEARS, IS NOT A VALID NOTICE TO INITIATE THE PENALTY PROCEEDINGS AS THE ASSESSEE COMPANY HAS NOT BEEN MADE AWARE IF IT HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND RELIED UP ON THE DECISION RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN CAS E OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY & ORS. 359 IT R 565 ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 5 (KARN.) , AFFIRMED BY HONBLE SUPREME COURT; THAT AO HAS NEVER RECORDED HIS SATISFACTION AS TO CONCEALMENT OF PART ICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME B Y THE ASSESSEE IN THE ASSESSMENT ORDER; THAT WHEN THE ADDITIONAL INCO ME DECLARED BY THE ASSESSEE PURSUANT TO THE NOTICE ISSUED U/S 148 OF THE ACT HAS BEEN ACCEPTED BY THE AO, NO CASE OF CONCEALMENT OF INCOME IS MADE OUT; THAT FIRST PART OF CLAUSE (A) OF EXPLANAT ION 1 OF SECTION 271(1)(C) IS NOT ATTRACTED AS THERE IS NO CHARGE OF CONCEALMENT OF INCOME HAS BEEN LEVELED BY THE AO. 8. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVEN UE TO REPEL THE ARGUMENTS ADDRESSED BY THE LD. AR FOR THE ASSES SEE COMPANY CONTENDED INTER ALIA THAT THE NOTICE ISSUED BY THE AO U/S 274 OF THE ACT IS NOT STANDALONE DOCUMENT WHICH IS BASED ON AS SESSMENT ORDER; THAT THE NOTICE HAS BEEN ISSUED IN RESPECT O F FURNISHING INACCURATE PARTICULARS OF INCOME AND RELIED UPON TH E ORDER PASSED BY AO AS WELL AS LD. CIT (A) AND FURTHER RELIED UPO N THE CASE OF TRIMURTI ENGINEERING WORKS 25 TAXMANN.COM 363 . 9. TO PROCEED FURTHER, WE WOULD LIKE TO REPRODUCE N OTICE ISSUED U/S 271(1)(C) OF THE ACT FOR READY PERUSAL :- NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT, 1961 PENALTY U/S 271(1)(C) INCOME TAX OF FICER, NEW DELHI. ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 6 DATED : 24.02.2014 TO SH. KARNA KHURANA, PROP. M/S. KARAN DYES & CHEMICALS, LAXMI TEX PRECESSIONS, 113, DILKHUSH BUILDING, CHOWK TILAK BAZAR, DELHI-6. WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2007-08 IT APPEARS TO ME THAT YOU:- HAVE WITHOUT REASONABLE CAUSE FAILED TO COMPLY WIT H A NOTICE SECTION 142 (1)/143(2) OF THE INCOME TAX ACT , 1961 DATED.. HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION 1,2,3,4 AND 5 YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT 11 .00 AM/PM ON 24.03.2014 AND SHOW CAUSE WHY AN ORDER IMPOSING A PENALTY ON YOU SHOULD NOT BE MADE UNDER SECTION 271 OF THE INCOME TAX ACT, 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD IN PERSON OR THROUG H AUTHORIZED REPRESENTATIVE YOU MAY SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE UNDER SECTION 271(1)(C). SD/- ASSESSING OFFICER NARENDRA KUMAR PUNIA WARD 29 (1), NEW DELHI 10. UNDISPUTEDLY, ADDITIONS MADE AGAINST THE ASSESS EE DURING QUANTUM PROCEEDINGS HAVE ALREADY BEEN CONFIRMED. I T IS SETTLED PRINCIPLE OF LAW THAT THE PENALTY CANNOT BE IMPOSED MERELY ON THE GROUND THAT ADDITIONS MADE IN THE INCOME OF THE ASS ESSEE HAS BEEN CONFIRMED RATHER TO PROCEED WITH IMPOSITION OF PENA LTY U/S 271(1)(C), THE AO HAS TO PROVE THAT THERE WAS CONCE ALMENT OF ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 7 PARTICULARS OF INCOME OR ASSESSEE HAS FURNISHED INA CCURATE PARTICULARS OF SUCH INCOME. 11. BARE PERUSAL OF THE NOTICE ISSUED TO THE ASSESS EE U/S 271(1)(C) OF THE ACT REPRODUCED ABOVE GOES TO PROVE THAT ASSESSEE HAS NOT BEEN CALLED UPON TO EXPLAIN IF HE HAS CONCE ALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF SUCH INCOME RATHER BOTH THE CHARGES HAVE BEEN MENTIONED IN THE PRINTED PROFORMA. HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY & ORS. (SUPRA) DEALT WITH THE IDENTICAL ISSUE THREADBARE AND CAME TO THE FOLLOWING CONCLUSION :- 63. IN THE LIGHT OF WHAT IS STATED ABOVE, WHAT EME RGES IS AS UNDER: A) PENALTY UNDER SECTION 271(1)(C) IS A CIVIL LIABI LITY. B) MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMPOSI NG PENALTY FOR BREACH OF CIVIL OBLIGATIONS OR LIABILITIES. C) WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDI ENT FOR ATTRACTING CIVIL LIABILITY. D) EXISTENCE OF CONDITIONS STIPULATED IN SECTION 2 71(1)(C) IS A SINE QUA NON FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271. E) THE EXISTENCE OF SUCH CONDITIONS SHOULD BE DISC ERNIBLE FROM THE ASSESSMENT ORDER OR ORDER OF THE APPELLATE AUTHORITY OR REVISIONAL AUTHORITY. F) EVER IF THERE IS NO SPECIFIC FINDING REGARDING THE EXISTENCE OF THE CONDITIONS MENTIONED IN SECTION 271(1)(C), A T LEAST THE FACTS SET OUT IN EXPLANATION 1(A) ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 8 & (B) IT SHOULD BE DISCERNIBLE FROM THE SAID ORDER WHICH WOULD BY A LEGAL FICTION CONSTITUTE CONCEALMENT BECAUSE O F DEEMING PROVISION. G) EVEN IF THESE CONDITIONS DO NOT EXIST IN THE AS SESSMENT ORDER PASSED, AT LEAST, A DIRECTION TO INITIATE PRO CEEDINGS UNDER SECTION 271(L)(C) IS A SINE QUA NON FOR THE ASSESSM ENT OFFICER TO INITIATE THE PROCEEDINGS BECAUSE OF THE DEEMING PRO VISION CONTAINED IN SECTION 1(B). H) THE SAID DEEMING PROVISIONS ARE NOT APPLICABLE TO THE ORDERS PASSED BY THE COMMISSIONER OF APPEALS AN D THE COMMISSIONER. I) THE IMPOSITION OF PENALTY IS NOT AUTOMATIC. J) IMPOSITION OF PENALTY EVEN IF THE TAX LIABILITY IS ADMITTED IS NOT AUTOMATIC. K) EVEN IF THE ASSESSEE HAS NOT CHALLENGED THE ORD ER OF ASSESSMENT LEVYING TAX AND INTEREST AND HAS PAID TA X AND INTEREST THAT BY ITSELF WOULD NOT BE SUFFICIENT FOR THE AUTH ORITIES EITHER TO INITIATE PENALTY PROCEEDINGS OR IMPOSE PENALTY, UNL ESS IT IS DISCERNIBLE FROM THE ASSESSMENT ORDER THAT, IT IS O N ACCOUNT OF SUCH UNEARTHING OR ENQUIRY CONCLUDED BY AUTHORITIES IT HAS RESULTED IN PAYMENT OF SUCH TAX OR SUCH TAX LIABILI TY CAME TO BE ADMITTED AND IF NOT IT WOULD HAVE ESCAPED FROM TAX NET AND AS OPINED BY THE ASSESSING OFFICER IN THE ASSESSMENT O RDER. L) ONLY WHEN NO EXPLANATION IS OFFERED OR THE EXPL ANATION OFFERED IS FOUND TO BE FALSE OR WHEN THE ASSESSEE F AILS TO PROVE THAT THE EXPLANATION OFFERED IS NOT BONAFIDE, AN OR DER IMPOSING PENALTY COULD BE PASSED. M) IF THE EXPLANATION OFFERED, EVEN THOUGH NOT SUB STANTIATED BY THE ASSESSEE, BUT IS FOUND TO BE BONAFIDE AND AL L FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, NO PENALTY COULD BE IMP OSED. N) THE DIRECTION REFERRED TO IN EXPLANATION IB TO SECTION 271 OF THE ACT SHOULD BE CLEAR AND WITHOUT ANY AMBIGUIT Y. O) IF THE ASSESSING OFFICER HAS NOT RECORDED ANY S ATISFACTION OR HAS NOT ISSUED ANY DIRECTION TO INITIATE PENALTY PROCEEDINGS, IN APPEAL, IF THE APPELLATE AUTHORITY RECORDS SATISFAC TION, THEN THE PENALTY PROCEEDINGS HAVE TO BE INITIATED BY THE APP ELLATE AUTHORITY AND NOT THE ASSESSING AUTHORITY. P) NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPEC IFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I .E., WHETHER IT ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 9 IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF I NCORRECT PARTICULARS OF INCOME Q) SENDING PRINTED FORM WHERE ALL THE GROUND MENTI ONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIRE MENT OF LAW. R) THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE H AS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED TO THE ASSESSEE. S) TAKING UP OF PENALTY PROCEEDINGS ON ONE LIMB AN D FINDING THE ASSESSEE GUILTY OF ANOTHER LIMB IS BAD IN LAW. T) THE PENALTY PROCEEDINGS ARE DISTINCT FROM THE A SSESSMENT PROCEEDINGS. THE PROCEEDINGS FOR IMPOSITION OF PENA LTY THOUGH EMANATE FROM PROCEEDINGS OF ASSESSMENT, IT IS INDEP ENDENT AND SEPARATE ASPECT OF THE PROCEEDINGS. U) THE FINDINGS RECORDED IN THE ASSESSMENT PROCEED INGS IN SO FAR AS 'CONCEALMENT OF INCOME' AND 'FURNISHING OF I NCORRECT PARTICULARS' WOULD NOT OPERATE AS RES JUDICATA IN T HE PENALTY PROCEEDINGS. IT IS OPEN TO THE ASSESSEE TO CONTEST THE SAID PROCEEDINGS ON MERITS. HOWEVER, THE VALIDITY OF THE ASSESSMENT OR REASSESSMENT IN PURSUANCE OF WHICH PENALTY IS LEVIE D, CANNOT BE THE SUBJECT MATTER OF PENALTY PROCEEDINGS. THE ASSE SSMENT OR REASSESSMENT CANNOT BE DECLARED AS INVALID IN THE P ENALTY PROCEEDINGS. 12. SO, FOLLOWING THE LAW LAID DOWN BY HONBLE HIGH COURT, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE ASSESSEE H AS NOT BEEN SPECIFICALLY MADE AWARE OF THE CHARGES LEVELED AGAI NST HIM AS TO WHETHER THERE IS A CONCEALMENT OF INCOME OR FURNISH ING OF INACCURATE PARTICULARS OF INCOME ON HIS PART, THE P ENALTY U/S 271(1)(C) OF THE ACT IS NOT SUSTAINABLE. THE CASE LAW RELIED UPON BY THE LD. DR ARE NOT APPLICABLE TO THE FACTS AND C IRCUMSTANCES OF THIS CASE IN THE FACE OF THE DECISIONS RENDERED BY THE HONBLE HIGH COURT IN MANJUNATHA COTTON AND GINNING FACTORY & ORS. (SUPRA). ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 10 SO, WE ARE OF THE CONSIDERED VIEW THAT THERE IS A J URISDICTIONAL DEFECT IN INITIATING THE PENALTY PROCEEDINGS AS THE NOTICE ISSUED U/S 274 IS VAGUE AND AMBIGUOUS ONE AND AS SUCH, THE PEN ALTY LEVIED BY AO AND AFFIRMED BY THE CIT (A) IS LIABLE TO BE QUAS HED ON THIS SCORE ONLY. 13. FURTHERMORE, WHEN WE EXAMINE THE ASSESSMENT ORD ER PASSED IN THESE CASES, IT APPARENTLY SHOWS THAT AO HAS NOT APPLIED HIS MIND TO RECORD SATISFACTION THAT IF IT IS A CASE OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME RATHER VAGUELY AND AMBIGUOUSLY RECORDED THAT , PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT HAVE BEEN INIT IATED SEPARATELY. SO, AT THE TIME OF PASSING THE ASSESSMENT ORDER, AO WAS NOT CLEAR ENOUGH AS TO WHETHER THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE P ARTICULARS OF INCOME. MOREOVER, WHEN THE AO HAS HIMSELF ACCEPTED THE ADDITIONAL INCOME DECLARED BY THE ASSESSEE PURSUANT TO THE NOTICE U/S 148 OF THE ACT WITHOUT ANY RIDER, THE QUESTION OF CONCEALMENT TO PARTICULARS OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME DOES NOT ARISE. 14. HONBLE SUPREME COURT IN CASE CITED AS CIT VS. SURESH CHANDRA MITTAL 251 ITR 9 WHILE DECIDING THE IDENTICAL ISSUE HELD THAT, WHEN THE ASSESSEE SURRENDERED ADDITIONAL INCOME BY ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 11 WAY OF REVISED RETURNS AFTER PERSISTENT QUERIES BY AO ONCE THE REVISED RETURNS HAVE BEEN REGULARIZED BY REVENUE TH E EXPLANATION OF THE ASSESSEE THAT HE HAS DECLARED ADDITIONAL INC OME TO BUY PEACE AND TO COME OUT OF VEXED LITIGATION COULD BE TREATE D AS BONA FIDE AND PENALTY UNDER S. 271(1)(C) WAS NOT LEVIABLE. 15. FURTHERMORE, THE AO HAS BASED ITS ENTIRE ORDER ON FIRST PART OF CLAUSE (A) OF EXPLANATION 1 OF SECTION 271(1)(C) BY RELYING UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CIT VS. MAK DATA LTD. 352 ITR 1 . 16. UNDISPUTEDLY, THE AO HAS IMPOSED PENALTY ON THE ASSESSEE FOR FURNISHING INACCURATE PARTICULARS OF INCOME W HICH FACT IS NOT DISCERNIBLE FROM THE NOTICE ISSUED U/S 274 OF THE A CT ITSELF NOR IT IS DISCERNIBLE FROM THE ASSESSMENT ORDER AT THE TIME O F RECORDING SATISFACTION BY THE AO. WHEN WE PERUSE THE MAK DATA LTD. (SUPRA) CASE IT IS BASED UPON THE FACT THAT THE PEN ALTY WAS LEVIED FOR CONCEALMENT OF PARTICULARS OF INCOME, WHEREAS, IN T HE INSTANT CASE, THE PENALTY HAS BEEN IMPOSED FOR FURNISHING OF INA CCURATE PARTICULARS OF INCOME, WHICH CANNOT BE THE CASE IN CASE OF THE ASSESSEE. BECAUSE PURSUANT TO THE NOTICED ISSUED U /S 148 OF THE ACT, THE ASSESSEE FILED REVISED RETURN DECLARING AD DITIONAL INCOME WHICH WAS ACCEPTED BY THE AO WITHOUT ANY FURTHER IN VESTIGATION. IN THESE CIRCUMSTANCES, THE FIRST PART OF CLAUSE (A ) OF EXPLANATION 1 ITA NOS.2695, 2696, 2697 & 2698/DEL./2015 12 OF SECTION 271(1)(C) IS NOT ATTRACTED AS OBSERVED BY THE AO AS WELL AS LD. CIT (A). 17. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT AO/CIT (A) HAVE ERRED IN LEVYI NG/CONFIRMING THE PENALTY OF RS.3,34,980/-, RS.11,145/-, RS.31,80 ,810/- & RS.43,88,580/- FOR AYS 2007-08, 2008-09, 2009-10 & 2010-11 RESPECTIVELY, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE ORDERED TO BE DELETED. CONSEQUENTLY, THE APPEALS F ILED BY THE ASSESSEE ARE HEREBY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 17 TH DAY OF SEPTEMBER, 2018. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBER DATED THE 17 TH DAY OF SEPTEMBER, 2018 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-19, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.