ACIT CIRCLE-1, GWALIOR V. FAIRYLAND HOTEL & RESPORTS PVT LTD, GWALIOR

ITA 274/AGR/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1847 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 16-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SITA SRIVASTAVA
• Keywords: Loose papers; Principle of natural justice; Question of law; Set aside
• Section: 271(1)(c); 143(3); 142(1); 133A; 250; 274; 143(2); 207; 73; 13

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 274/AGRA/2018 ASSESSMENT YEAR: 2013-14 ACIT, CIRCLE - 1, GWALIR. (APPELLANT) VS. M/S. FAIRYLAND HOTEL & RESORTS PVT. LTD., A-225, CITY CENTER, PATEL NAGAR, GWALIOR. PAN: AAACF9992K (RESPONDENT) C.O. NO. 45/AGRA/2018 (IN ITA NO. 274/AGRA/2018) ASSESSMENT YEAR: 2013-14 M/S. FAIRYLAND HOTEL & RESORTS PVT. LTD., A-225, CITY CENTER, PATEL NAGAR, GWALIOR (APPELLANT) VS. ACIT, CIRCLE - 1, GWALIR. (RESPONDENT) REVENUE BY SHRI DEEPENDRA MOHAN, CA ASSESSEE BY SMT. SITA SRIVASTAVA, SR. DR ORDER PER LALIET KUMAR, J.M.: THE APPEAL BY THE REVENUE AND CROSS OBJECTION BY TH E ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 10.01.2018 OF LD. CIT(A), G WALIOR FOR ASSESSMENT YEAR 2013- 14. THE GROUNDS RAISED IN REVENUES APPEAL READ AS UNDER : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE ORDER OF THE CIT(A) IS PERVERSE TO THE FACTS OF THE CASE. DATE OF HEARING 03.03.2021 DATE OF PRONOUNCEMENT 09 .03.2021 ITA NO. 274/AGRA/2018 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS JUSTIFIED IN LAW IN DELETING PENALTY OF RS.70,00,000/- BY IGNORING BINDI NG SUPREME COURT DECISION GIVEN IN THE CASE OF MAK DATA (P) LTD. V. CIT (2013) 358 ITR 593 (SC) 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) WAS JUSTIFIED IN LAW IN HOLDING THAT ADMISSION OF ADDITIONAL INCOME OF RS.1 ,80,00,000/- WAS NOT DISCERNIBLE FROM STATEMENTS OR FROM IMPOUNDED MATERIAL FOUND DURING SURVEY OUT OF WHICH RS.1,50,00,000/- WAS OFFERED AS ADDITIONAL INCOME DURING ASSESSMENT DID NOT REPRESENT SPECIFIC ITEM OF UNEXPLAINED/UNDISCLOSED INCOME/INVESTMENT/EXPENSES NOT SHOWN IN REGULAR BOOKS OF ACCOUNT/RETURN OF INCOME AND WAS NOT BACKED BY ANY I NCRIMINATING MATERIAL IGNORING THE DIRECT EVIDENCE AND MATERIAL FOUND DURING SURVEY AN D ACCEPTED AS UNEXPLAINED BY THE MANAGING DIRECTOR IN HIS STATEMENT. 2. THE ASSESSEE HAS RAISED CROSS-OBJECTIONS STATING THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN LEVYING TH E PENALTY U/S. 271(1)(C) ON A NON- SPECIFIC NOTICE INITIATING THE PENALTY. 3. BRIEF FACTS OF THE CASE ARE THAT A SURVEY U/S.13 3A WAS CARRIED OUT ON 25.07.2012 AT THE BUSINESS PREMISES OF THE ASSESSEE . DURING THE COURSE OF SURVEY, LOOSE PAPERS AND OTHER DOCUMENTS WERE FOUND WHICH W ERE IMPOUNDED AND INVENTORIZED. THE ASSESSEE WAS CONFRONTED WITH THE DOCUMENTS SO FOUND AND IMPOUNDED. THE ASSESSEE AFTER BEING CONFRONTED WITH THE DOCUMENTS, HAD GIVEN STATEMENTS AND THE RELEVANT PORTION OF THE STATEMEN TS GIVEN WAS AS UNDER : IZK 10 VKIDKS VKSJ DQN DGUK GSA MRRJ ------------------------- ESJS ;GK LS IZKIR GK MZ FMLD O VU; DKXTAKS O ESJS FN;S X;S O;KU ESA TKS HKH PHTS ESJS ESJH IRUH VKSJ ESJH IQW=H O IQ= DS OGH [KRKSA ESA NTZ UGH GS MU LELR V?KKSFKR VK; LEIFRR O DFE;K SA DS ,OT ESA ES :IK;S 1]80]00]000 ?KKSFKR DJRK GWW VKSJ ML IJ VSDL NSUS DKS RS;KJ GWW ;G ?KSKK.KK ES VIUH EKUFLD KKAFR DS FY;S ?KKSFKR DJ JGK GWW FTLLS FD HKFO; ESA ESJS DKS FOHKKX LS FDLH HKH IZDKJ DH IJSKKUH U GKS FTLDK VK/KK VSDL FORRH; OKZ 2012&13 RFKK VK/KK VSD L FORRH; OKZ 2013&14 ESA TEK DJ NWWXK A MIJKSDR VK; ESJH FU;FER VK; DS VFRJDR GKSXH A 4. BASED ON THIS STATEMENT, DURING THE ASSESSMENT P ROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INCOME OF RS.1.50 CR ORES, WHICH WAS NOT SHOWN BY THE ITA NO. 274/AGRA/2018 3 ASSESSEE DURING THE ASSESSMENT YEAR 2013-14. IN REP LY, THE ASSESSEE HAS SUBMITTED AS UNDER : ..THAT HOWEVER, IN SPITE OF ALL THESE FACTUAL P OSITION SUPRA, AS DISCUSSED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AM OUNT OFRS.1,50,00,000/- (RS.1,80,00,000 RS.30,00,000) AS DECLARED DURING THE COURSE OF SURVEY, IS BEING HEREBY OFFERED FOR TAXATION JUST TO AVOID AVOIDABLE LITIGATION TO BUY PEACE AND HAVE A COOPERATION WITH THE DEPARTMENT WITH THE CON DITION THAT NO PENAL ACTION MAY KINDLY BE TAKEN UNDER THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT THE PENALTY U/S.271(1)(C) OF T HE ACT IS NOT LEVIABLE FOR ANY INCOME OFFERED FOR TAXATION DURING COURSE OF ASSESS MENT PROCEEDINGS.. 5. THE ASSESSING OFFICER HAD COMPLETED THE ASSESSME NT ON THE BASIS OF THE REPLY GIVEN BY THE ASSESSEE AND MADE ADDITION OF RS.1,50, 00,000/-. THE ASSESSING OFFICER HAS ALSO MENTIONED IN THE ASSESSMENT ORDER THAT PEN ALTY BE INITIATED ON THE ASSESSEE U/S. 271(1)(C) OF THE ACT. 6. THE ASSESSING OFFICER HAD ISSUED THE NOTICE FOR IMPOSITION OF PENALTY VIDE NOTICE DATED 23.03.2016, 07.09.2016 AND 20.09.2016. THE SCANNED COPIES OF THE THREE NOTICES ARE AS UNDER : DATED 23/03/2016 TO M/S. FAIRYLAND HOTELS AND RESORTS PRIVATE LIMITED A-225, PATEL NAGAR, CITY CENTER, GWALIOR MADHYA PRADESH 474011 SIR/MADAM, WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2013-14, IT APPEARS THAT YOU HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME ON 25/ 04/2016 AT 11.30 AM AND SHOW CAUSE WHY AN ORDER IMPOSING A PENALTY ON YOU S HOULD NOT BE MADE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. IF NO ONE AT TENDS THIS OFFICE ON THE SAID DATE OF HEARING, THE CASE SHALL BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORDS. ITA NO. 274/AGRA/2018 4 YOURS FAITHFULLY DCIT/ACIT 1(1), GWL DATED 07/09/2016 TO M/S. FAIRYLAND HOTELS AND RESORTS PRIVATE LIMITED A-225, PATEL NAGAR, CITY CENTER, GWALIOR, MP 474011 SIR/MADAM, WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2013-14, IT APPEARS THAT YOU HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME ON 21/ 09/2016 AT 11.30 AM AND SHOW CAUSE WHY AN ORDER IMPOSING A PENALTY ON YOU S HOULD NOT BE MADE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. IF NO ONE AT TENDS THIS OFFICE ON THE SAID DATE OF HEARING, THE CASE SHALL BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORDS. YOURS FAITHFULLY (YADUVANSH YADAV) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), GWALIOR. DATED 20/09/2016 TO M/S. FAIRYLAND HOTELS AND RESORTS PRIVATE LIMITED A-225, PATEL NAGAR, CITY CENTER, GWALIOR, MP 474011 SIR/MADAM, WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2013-14, IT APPEARS THAT YOU HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME ON 23/ 09/2016 AT 11.30 AM AND SHOW CAUSE WHY AN ORDER IMPOSING A PENALTY ON YOU S HOULD NOT BE MADE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. IF NO ONE AT TENDS THIS OFFICE ON THE SAID DATE OF HEARING, THE CASE SHALL BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORDS. YOURS FAITHFULLY (R.K. GARHWAL) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), GWALIOR. ITA NO. 274/AGRA/2018 5 7. THE ASSESSEE AFTER RECEIPT OF NOTICES HAD FILED REP LY ON 10.03.2016. RELEVANT PORTION OF THE REPLY WAS ALSO REPRODUCED BY THE ASS ESSING OFFICER IN THE PENALTY ORDER AS UNDER : ..THAT HOWEVER, IN SPITE OF ALL THESE FACTUAL PO SITION SUPRA, AS DISCUSSED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, THE AMOUNT OFRS.1,50,00,000/- (RS.1,80,00,000 RS.30,00,000) AS DECLARED DURING THE COURSE OF SURVEY, IS BEING HEREBY OFFERED FOR TAXATION JUS T TO AVOID AVOIDABLE LITIGATION TO BUY PEACE AND HAVE A COOPERATION WITH THE DEPART MENT WITH THE CONDITION THAT NO PENAL ACTION MAY KINDLY BE TAKEN UNDER THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT THE PENALTY U/S.271(1)(C) OF T HE ACT IS NOT LEVIABLE FOR ANY INCOME OFFERED FOR TAXATION DURING COURSE OF ASSESS MENT PROCEEDINGS.. THE ASSESSING OFFICER CONSIDERED THE REPLY OF THE A SSESSEE AND AFTER FINDING IT NOT SATISFACTORY, IMPOSED PENALTY. 8. ASSESSEE FILED APPEAL BEFORE THE CIT(A), FEELING AGGRIEVED BY THE PENALTY ORDER. THE LD. CIT(A) HAD DELETED THE PENALTY IMPOS ED BY ASSESSING OFFICER VIDE IMPUGNED ORDER. 9. THE LD. DR FOR THE REVENUE HAD SUBMITTED THAT TH E DELETION MADE BY THE LD. CIT(A) WAS WITHOUT ANY BASIS. LD. CIT(A) HAS FAILED TO APPRECIATE THAT IN THE PRESENT CASE, THE STATEMENT GIVEN BY THE ASSESSEE WAS NOT V OLUNTARY, BUT WAS ON ACCOUNT OF THE FACT THAT THE ASSESSEE WAS CONFRONTED WITH THE SPECIFIC DOCUMENTS WHICH WERE DULY INVENTORISED, DISCLOSING THE ESCAPEMENT OF INC OME AND OTHER INFORMATION . IT WAS SUBMITTED THAT THE DISCLOSURE WAS NOT VOLUNTARY , BUT WAS TRIGGERED ON ACCOUNT ITA NO. 274/AGRA/2018 6 OF THE ABOVE NOTED FACTS, AND DUE TO THIS, THE AS SESSEE ACCEPTED THE UNDISCLOSED INCOME IN THEIR STATEMENT AND ADMITTEDLY THE INCO ME SO DISCLOSED WAS NOT EARLIER DECLARED IN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION BY THE ASSESSEE . THE LD. DR HAD SUBMITTED THAT THE FINDIN G RECORDED BY THE LD.CIT(A) THAT NO DOCUMENT, NO CASH NO STOCK OR INCRIMINATING MATE RIAL WAS FOUND DURING THE SURVEY, WAS INCORRECT AND IS CONTRARY TO CATEGORI CAL FINDING RECORDED IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS MENTION ED, IN ORDER THAT LOOSE PAPERS AND OTHER MATERIALS WHICH WERE FOUND, IMPOUNDED AND INVENTORISED. SHE HAD ALSO SUBMITTED THAT THE JUDGMENT RELIED UPON BY THE CIT( A) IN THE CASE OF MAK DATA VS. CIT, 38 TAXMAN.COM 448 (SC) WAS IN FACT FULLY APPLI CABLE AGAINST THE ASSESSEE AND THE DECISION OF THE TRIBUNAL IN THE CASE OF ARPANA TIWARI VS. ITO AND UTTAM VALUE STEELS LTD VS. ACIT WERE ON ITS OWN FACTS AND CANNO T DILUTE THE PROPOSITION LAID DOWN BY HONBLE SUPREME COURT. 10. PER CONTRA, LD. AR SUPPORTED THE ORDER PASSED B Y THE LD.CIT(A) AND HAD ALSO SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) WAS I N ACCORDANCE WITH LAW. THE LD.AR HAS FURTHER SUBMITTED THAT THE CROSS OBJECTIO N WAS FILED BY THE ASSESSEE WHEREIN IT WAS SUBMITTED THAT THE PENALTY ORDER IS REQUIRED TO BE SET ASIDE NOT ONLY ON THE GROUND MENTIONED BY THE CIT(A), BUT ALSO ON ACCOUNT OF FACT THAT ALL THE THREE NOTICES REPRODUCED ABOVE WERE NOT SPECIFIC ON CHARG E OF PENALTY. HE RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CAS E OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 565 (KAR) AND OF HONBLE S UPREME COURT IN THE CASE OF SSA ITA NO. 274/AGRA/2018 7 EMRALD MEADOWS, 73 TAXMAN 248 (SC). FURTHER, IT WAS SUBMITTED BY THE LD. AR THAT THERE WAS NO MATERIAL IN POSSESSION OF THE ASSESSIN G OFFICER TO CONFIRM THE ADDITION AND HE RELIED UPON THE RECENT DECISION IN THE CASE OF BASIR AHMED SISODIA VS. ITO [2020] 116 TAXMANN.COM 375 (SC). 11. IN REBUTTAL LD. DR HA SUBMITTED THAT NO PREJUDI CE WAS CAUSED TO THE ASSESSEE AS THE ASSESSEE HAD NOT ONLY PARTICIPATED IN THE PE NALTY PROCEEDINGS, BUT WAS AWARE OF THE FACT AS IS CLEAR FROM THE REPLY SUBMITTED BY THE ASSESSEE REPRODUCED HEREINABOVE. SHE HAD ALSO RELIED UPON THE DECISION IN THE CASE OF SUDHIR KUMAR SINGH AND OTHERS VS. STATE OF UP (CIVIL APPEAL NO. 3498 OF 2020) WHEREIN IN PARAGRAPH NO. 39, IT WAS HELD AS UNDER : 39. WE ARE NOT CONCERNED WITH THESE ASPECTS IN THE PRESENT CASE AS THE ISSUE RELATES TO GIVING OF NOTICE BEFORE TAKING ACTION. WHILE EMPHASISING TH AT THE PRINCIPLES OF NATURAL JUSTICE CANNOT BE APPLIED IN STRAITJACKET FORMULA, THE AFORESAID IN STANCES ARE GIVEN. WE HAVE HIGHLIGHTED THE JURISPRUDENTIAL BASIS OF ADHERING TO THE PRINCIPLES OF NATURAL JUSTICE WHICH ARE GROUNDED ON THE DOCTRINE OF PROCEDURAL FAIRNESS, ACCURACY OF OU TCOME LEADING TO GENERAL SOCIAL GOALS, ETC. NEVERTHELESS, THERE MAY BE SITUATIONS WHEREIN FOR SO ME REASONPERHAPS BECAUSE THE EVIDENCE AGAINST THE INDIVIDUAL IS THOUGHT TO BE UTT ERLY COMPELLINGIT IS FELT THAT A FAIR HEARING WOULD MAKE NO DIFFERENCEMEANING THAT A H EARING WOULD NOT CHANGE THE ULTIMATE CONCLUSION REACHED BY THE DECISION- MAKERTHEN NO L EGAL DUTY TO SUPPLY A HEARING ARISES. SUCH AN APPROACH WAS ENDORSED BY LORD WILBERFORCE IN MALLOCH V. ABERDEEN CORPN. [(1971) 1 WLR 1578], WHO SAID THAT: (WLR P. 1595) A BREACH OF PROCEDURE CANNOT GIVE [RISE TO] A REMEDY IN THE COURTS, UNLESS BEHIND IT THERE IS SOME THING OF SUBSTANCE WHICH HAS BEEN LOST BY THE FAILURE. THE COURT DOES NOT ACT IN VAIN. RELYI NG ON THESE COMMENTS, BRANDON L.J. OPINED IN CINNAMOND V. BRITISH AIRPORTS AUTHORITY [(1980) 1 W LR 582] THAT: (WLR P. 593) NO ONE CAN COMPLAIN OF NOT BEING GIVEN AN OPPORTUNITY TO MA KE REPRESENTATIONS IF SUCH AN OPPORTUNITY WOULD HAVE AVAILED HIM NOTHING. IN SUC H SITUATIONS, FAIR PROCEDURES APPEAR TO SERVE NO PURPOSE SINCE THE RIGHT RESULT CAN BE SEC URED WITHOUT ACCORDING SUCH TREATMENT TO THE INDIVIDUAL. ITA NO. 274/AGRA/2018 8 12. SHE HAS ALSO REFERRED TO THE DECISION OF MADRAS HIGH COURT IN THE MATTER OF SUNDARAM FINANCE LT. V. ACIT, 93 TAMANN.COM 250 (MA DRAS) AND SANDEEP CHANDAK, 93 TAXMAN.COM 405. 13. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PART IES AND PERUSED THE MATERIAL BEFORE US INCLUDING THE JUDGMENTS RELIED BY BOTH TH E PARTIES. WELL FIRST DEAL WITH THE CO FILED BY THE ASSESSEE WHEREBY THE ASSESSEE SOUGH T TO SUPPORT THE ORDER PASSED BY THE COMMISSIONER (APPEAL) ON THE GROUND THAT THE NOTICES ISSUED BY THE ASSESSING OFFICER WERE NON-SPECIFIC. IN THIS REGARD, IT WOULD BE RELEVANT TO RECORD THE FACTS OF THE PRESENT CASE. A SURVEY WAS CARRIED OUT IN THE P REMISES OF THE ASSESSEE ON 25 TH OF JULY 2012 WHEN DURING THE SURVEY LOOSE PAPERS AND O THER MATERIALS WERE FOUND, WHICH WERE IMPOUNDED AND INVENTORIED. THE STATEMENT WAS ALSO RECORDED AND THE ASSESSEE AGREED TO DECLARE INCOME OF 1, 80, 00000 /-AS THE DOCUMENTS WERE FOUND IN THE HARD DISK WHICH WERE NOT RECORDED IN THE BOO KS OF ACCOUNT OF THE ASSESSEE, HIS DAUGHTERS AND SON.(AO PAGE 2) 14. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD ONLY SURRENDERED 30.00 LAKHS INSTEAD OF INCOME OF 1,80,00, 000/-. THE AS SESSEE WAS ASKED BY THE ASSESSING OFFICER TO FURNISH HIS EXPLANATION REGARD ING NON-SURRENDER OF AMOUNT OF 1,50,00,000/-. AFTER THAT THE ASSESSEE FILED A WRIT TEN REPLY ON 10 MARCH 2016 WHEREBY HE HAD AGREED TO DECLARE THE ADDITIONAL INC OME OF RS 1,50,00,000/-. ITA NO. 274/AGRA/2018 9 15. IN THE PENALTY PROCEEDINGS THE NOTICE WAS ISSU ED TO THE ASSESSEE AND IN RESPONSE TO THE NOTICE THE ASSESSEES COUNSEL HAD S TATED THAT THE AMOUNT OF 1.5 CRORE WAS DECLARED DURING THE COURSE OF SURVEY AND WAS OF FERED FOR TAXATION TO AVOID LITIGATION AND TO BUY PEACE. IN OUR OPINION THERE W AS NO AMBIGUITY IN THE MIND OF THE ASSESSEE EITHER AT THE ASSESSMENT STAGE OR AT THE S TAGE OF IMPOSITION OF PENALTY THAT THE ASSESSEE HAD NOT DISCLOSED THE INCOME OF 1.5 CRORE IN THE RETURN OF INCOME, DESPITE SURRENDERING RS.1,80,00,000/- DURING SURVEY PROCEEDINGS. THE ABOVE SAID PLEA OF NON-SPECIFIC NOTICE WAS NOT RAISED BY THE A SSESSEE BEFORE THE COMMISSIONER (APPEAL). IN OUR CONSIDERED OPINION THE NOTICE WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE HAD ALSO FILED THE REPLY DECLARING THE ENT IRE UNDISCLOSED AMOUNT IN THE RETURN OF INCOME, AS WAS SURRENDERED ON SURVEY. THE SUM AND SUBSTANCE OF THE SUBMISSION WAS THAT THE ASSESSEE WAS WELL AWARE OF THE CHARGE AGAINST THE ASSESSEE AND THE ASSESSEE WAS REQUIRED TO PLEAD NOT ONLY THE PLEA OF NON-SPECIFIC NOTICE BUT IS ALSO REQUIRED TO RAISE THE DEFENSE OF PREJUDICE CAU SED TO HIM ON ACCOUNT OF NON- SPECIFIC NOTICE. IN OUR CONSIDERED OPINION THE ASSE SSEE HAS NOT RAISED THE PLEA OF NON-SPECIFIC NOTICE BEFORE THE LOWER AUTHORITIES AN D HAVE FURTHER NOT RAISED THE PLEA OF PREJUDICE CAUSED TO HIM ON ACCOUNT OF NON-SPECIF IC NOTICE. UNDOUBTEDLY THE JUDGEMENT RELIED UPON BY THE ASSESSEE IN THE MATTER OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 565 (KAR) AND OF HONBLE S UPREME COURT IN THE CASE OF SSA EMRALD MEADOWS, 73 TAXMAN 248 (SC), PROVIDES THAT I N CASE OF NON-SPECIFIC NOTICE ITA NO. 274/AGRA/2018 10 THE PENALTY PROCEEDINGS ARE REQUIRED TO BE DROPPED. HOWEVER, HONOURABLE SUPREME COURT IN A SUBSEQUENT JUDGEMENT IN THE MATTER OF SU DHIR KUMAR SINGH AND OTHERS VS. STATE OF UP (CIVIL APPEAL NO. 3498 OF 2020), HAD T HE LAID DOWN THAT IT IS NOT ONLY NECESSARY FOR THE ASSESSEE TO RAISE THE PLEA OF VIO LATION OF PRINCIPLE OF NATURAL JUSTICE BUT IT IS ALSO NECESSARY TO PROVE AND PLEAD THE PRE JUDICE CAUSED TO HIM ON ACCOUNT OF NON-COMPLIANCE OF PRINCIPLE OF NATURAL JUSTICE AS I N THE PRESENT CASE OF NON-SPECIFIC NOTICE. NOTHING HAS BEEN PLEADED BEFORE US OR BEFOR E THE LOWER AUTHORITIES TO PROVE THE PREJUDICE CAUSED TO THE ASSESSEE ON ACCOUNT OF NON-SPECIFIC NOTICE. IN THE LIGHT OF THE ABOVE WE DO NOT FIND ANY MERIT IN THE CONTENTIO N OF THE ASSESSEE AND THEREFORE THE CO FILED BY THE ASSESSEE IS REQUIRED TO BE DISM ISSED AS NO PREJUDICE HAD BEEN CAUSED TO THE ASSESSEE. FURTHER WE ARE ALSO OF THE OPINION THAT THE CHARGE AGAINST THE ASSESSEE WAS KNOWN TO THE ASSESSEE AND HAD FILED TH E REPLY THERETO SETTING UP THE PLEA OF BUYING THE PEACE AND TO CURTAIL THE LITIGAT ION. HOWEVER IN THE REPLY THE ASSESSEE HAS NOT SUBMITTED THAT HE WAS NOT AWARE OF THE CHARGES FOR WHICH THE PENALTY NOTICES WERE ISSUED BY THE ASSESSING OFFICE R. 16. NOW COMING TO THE FINDING OF THE COMMISSIONER A PPEAL CHALLENGED BY THE REVENUE. THE COMMISSIONER APPEAL HAD DELETED THE PE NALTY BY DISTINGUISHING THE JUDGEMENT OF THE HONOURABLE SUPREME COURT IN THE MA TTER OF MAK DATA AND RELIED UPON THE DECISION OF UTTAM VALUE STEELS (SUPRA). TH E SC IN MAK DATA HAD HELD AS UNDER : 9. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTIO N MADE BY THE AO IN THE SEARCH CONDUCTED IN ITA NO. 274/AGRA/2018 11 THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATI ON, IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURING THE COURSE OF ASSES SMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOCUMENTS COMPRISING OF SHARE APPLICATION FORMS, BA NK STATEMENTS, MEMORANDUM OF ASSOCIATION OF COMPANIES, AFFIDAVITS, COPIES OF INC OME TAX RETURNS AND ASSESSMENT ORDERS AND BLANK SHARE TRANSFER DEEDS DULY SIGNED, HAVE BEEN I MPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CONDUCTED ON 16.12.2 003, IN THE CASE OF A SISTER CONCERN OF THE ASSESSEE. THE SURVEY WAS CONDUCTED MORE THAN 10 MON THS BEFORE THE ASSESSEE FILED ITS RETURN OF INCOME. HAD IT BEEN THE INTENTION OF THE ASSESSEE T O MAKE FULL AND TRUE DISCLOSURE OF ITS INCOME, IT WOULD HAVE FILED THE RETURN DECLARING AN INCOME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERED LATER DURING THE COURSE OF THE ASSESSME NT PROCEEDINGS. CONSEQUENTLY, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS T RUE INCOME. IT IS THE STATUTORY DUTY OF THE ASSESSEE TO RECORD ALL ITS TRANSACTIONS IN THE BOOK S OF ACCOUNT, TO EXPLAIN THE SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCOME IN THE RE TURN OF INCOME FILED BY IT FROM YEAR TO YEAR. THE AO, IN OUR VIEW, HAS RECORDED A CATEGORICAL FIN DING THAT HE WAS SATISFIED THAT THE ASSESSEE HAD CONCEALED TRUE PARTICULARS OF INCOME AND IS LIA BLE FOR PENALTY PROCEEDINGS UNDER SECTION 271 READ WITH SECTION 274 OF THE INCOME TAX ACT, 1961. 17. IN THE MATTER OF SAMSON MARITIME LTD.[2017] 8 8 TAXMANN.COM 671 (BOMBAY) IT WAS HELD AS UNDER : 8. THE GRIEVANCE OF THE APPELLANT-ASSESSEE BEFORE US IS THAT IT HAD ITSELF BROUGHT ITS MISTAKE OF DEBITING THE LOSS ON ACCOUNT OF FOREIGN EXCHANGE FLUCTUATION TO DETERMINE ITS NON-TONNAGE INCOME TO THE NOTICE OF THE ASSESSING O FFICER. THIS, ACCORDING TO HIM, IS STATED IN ITS AFFIDAVIT DATED 23RD JUNE, 2010 FILED DURING THE PENALTY PROCEEDINGS BEFORE THE ASSESSING OFFICER. HOWEVER, THE ABOVE AFFIDAVIT AS FILED BY THE APPELLANT DURING PENAL PROCEEDINGS, HAS BEEN IGNORED BY ALL THE AUTHORITIE S INCLUDING THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. IT IS SUBMITTED THAT THE ABOVE FACT ITSELF WOULD JUSTIFY DROPPING OF ANY PENAL PROCEEDINGS AGAINST APPELLANT-ASSESSEE. I T WAS ALSO SUBMITTED BEFORE US THAT DEBITING OF THE FOREIGN EXCHANGE LOSS TO ARRIVE ITS NON-TONNAGE INCOME, WAS A MISTAKE AND NO PENALTY BE IMPOSED FOR THE MISTAKE COMMITTED. RE LIANCE WAS PLACED UPON THE APEX COURT'S DECISION IN PRICE WATERHOUSE COOPERS (P.) LTD. V. CIT [2012] 25 TAXMANN.COM 400/211 TAXMAN 40/348 ITR 306 TO CONTEND THAT MISTAKES MADE BY AN ASSESSEE CANNO T BE THE BASIS FOR IMPOSITION OF PENALTY. IN THE ABOVE V IEW, IT IS SUBMITTED THAT THE APPEAL BE ADMITTED. 9. FROM THE RECORD IT IS CLEAR THAT THE NOTICE UNDER SECTIONS 142(1) AND 143(2) OF THE ACT WERE ISSUED TO THE APPELLANT ON 14TH JANUARY, 2009. THE NOTICE ALSO CONTAINS AN ANNEXURE, SEEKING DETAILS OF EXPENSES DEBITED TO PROFIT AND L OSS ACCOUNT, ALONG WITH DETAILS OF FOREIGN EXCHANGE EXPENSES. EVEN ACCORDING TO THE AP PELLANT, THE ALLEGED MISTAKE ON ITS PART WAS POINTED OUT BY A LETTER DATED 23RD SEPTEMB ER, 2009 DURING ASSESSMENT PROCEEDINGS WHERE IT STATED THAT IT HAD COMMITTED A MISTAKE IN DEBITING FOREIGN EXCHANGE LOSS TO ITS DETERMINE NON-TONNAGE INCOME, WHEN IN F ACT, NO FOREIGN EXCHANGE LOSS WAS INVOLVED IN RESPECT OF ITS NON-TONNAGE BUSINESS. TH US, IT IS CLEAR THAT SO-CALLED MISTAKE AS CLAIMED BY THE APPELLANT-ASSESSEE, WAS ONLY AFTER N OTICES DATED 14TH JANUARY, 2009 WERE ISSUED UNDER SECTIONS 142 AND 143 OF THE ACT. IT WA S ONLY AN ATTEMPT TO PRE-EMPT THE REVENUE FINDING OUT THE APPELLANT HAD FURNISHED INA CCURATE PARTICULARS. THEREFORE, IT CANNOT BE SAID THAT IT WAS VOLUNTARY DISCLOSURE. IN FACT, THE APEX COURT IN MAKDATA (P.) ITA NO. 274/AGRA/2018 12 LTD. ( SUPRA ) HAS OBSERVED THAT ' THE ASSESSING OFFICER, IN OUR VIEW, SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE 'VOLUNTARY DI SCLOSURE', 'BUY PEACE', 'AVOID LITIGATION' 'AMICABLE SETTLEMENT' ETC. TO EXPLAIN I TS CONDUCT.' THE APEX COURT HAS ALSO FURTHER OBSERVED THAT 'IT IS TRITE LAW THAT THE VOL UNTARY DISCLOSURE DOES NOT RELEASE APPELLANT-ASSESSEE FROM THE MISCHIEF OF PENAL PROCE EDINGS. THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HI S CONCEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY.' IN THE PECULIAR FACT OF THE PRESENT CASE, THE SO-CALLED VOLUNTARY DISCLOSURE WAS ONLY AFTER THE ASSESSING OFFICER INI TIATED PROCEEDINGS UNDER SECTION 142 OF THE ACT. THUS, IT WAS NOT A VOLUNTARY DISCLOSURE . IN FACT, THE ASSESSMENT ORDER DATED 24TH DECEMBER, 2009 UNDER SECTION 143(3) OF THE ACT ALSO RECORDS THE FACT OF VERIFICATION BY THE ASSESSING OFFICER, LEADING TO A FINDING THAT THE APPELLANT-ASSESSEE HAD DEBITED FOREIGN EXCHANGE LOSS TO ARRIVE ITS NON-TONNAGE INC OME. THIS ORDER WAS ACCEPTED AND NO GRIEVANCE IN RESPECT OF THE SAME BEING FOUND BY THE ASSESSING OFFICER, WAS MADE BY THE APPELLANT-ASSESSEE. IT IS ONLY IN PENALTY PROCEEDIN GS THAT THIS ISSUE IS RAISED FOR THE FIRST TIME. FURTHER, THE APPELLANT-ASSESSEE BESIDES STATI NG IT IS A MISTAKE, HAS NOT OFFERED ANY EXPLANATION. THEREFORE, THE EXPLANATION UNDER SECTI ON 271(1)(C) OF THE ACT WAS NOT FOUND TO BE SATISFACTORY BY THE AUTHORITIES UNDER THE ACT AND PENALTY IMPOSED AND SUSTAINED. 10. RELIANCE PLACED BY THE APPELLANT-ASSESSEE UPON THE DECISION OF THE APEX COURT IN PRICE WATERHOUSE COOPERS (P.) LTD. ( SUPRA ), IS INAPPROPRIATE IN THE FACTS OF THE PRESENT CASE. IN THE ABOVE CASE, THE APEX COURT NOTED THE F ACT THAT TRIBUNAL HAD ITSELF COME TO A FINDING THAT THERE WAS A SILLY MISTAKE ON THE PART OF THE ASSESSEE IN NOT HAVING ADDED THE PROVISION FOR GRATUITY TO ITS TOTAL INCOME EVEN WHE N THE DOCUMENTS ACCOMPANYING THE RETURN OF INCOME, DID SHOW THAT PROVISION FOR GRATU ITY IS NOT ALLOWABLE AS DEDUCTION UNDER SECTION 40(7) OF THE ACT. THUS, IT WAS ONLY A COMPU TATION ERROR IN THE RETURN OF INCOME. IN THE PRESENT FACTS, NONE OF THE AUTHORITIES INCLUDIN G THE TRIBUNAL HAVE FOUND THE DEBIT OF FOREIGN EXCHANGE LOSS TO ITS NON-TONNAGE BUSINESS W AS MADE ON ACCOUNT OF A MISTAKE. NOR CAN IT BE CLASSIFIED AS AN COMPUTATION ERROR AFTER COMPLETE DISCLOSURE. THUS, THE AFORESAID DECISION DOES NOT ASSIST THE APPELLANT-ASSESSEE. 11. WE NOTE THAT ALL THE THREE AUTHORITIES HAVE COME T O A FINDING OF FACT, ADVERSE TO THE APPELLANT, THAT THE SO-CALLED VOLUNTARY DISCLOSURE WAS NOT VOLUNTARY, BUT MADE ONLY IN RESPONSE TO NOTICES UNDER SECTIONS 142 AND 143 OF T HE ACT. THIS FINDING OF FACT IS NOT SHOWN TO BE PERVERSE AND/OR ARBITRARY, WARRANTING I NTERFERENCE. IN VIEW OF THE ABOVE, THE QUESTION AS FRAMED DOES NOT GIVE RISE TO ANY SUBSTA NTIAL QUESTION OF LAW. 18 . IN THE MATTER OF GANGOTRI TEXTILES LTD.[2020] 121 TAXMANN.COM 171 (MADRAS) 4. WE HAVE CAREFULLY PERUSED THE PENALTY ORDER DATE D 25-9-2015 AND WE FIND THAT THE ASSESSING OFFICER CONSIDERED ALL THE FACTUAL ASPECT S RAISED BY THE ASSESSEE AND REJECTED THE SAME TO BE ABSOLUTELY WITHOUT BONAFIDES. THE DE CISIONS RELIED ON BY THE ASSESSEE WERE ALSO TAKEN NOTE OF AND EACH OF THE DECISIONS WAS DE ALT WITH. THE ASSESSING OFFICER PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COU RT IN MAKDATA (P.) LTD. (SUPRA) AND STATED THAT VOLUNTARY DISCLOSURE DOES NOT RELEASE T HE ASSESEE FROM MISCHIEF OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THE REFORE, WE FIND THAT THE PENALTY ORDER IS A REASONED ORDER. ITA NO. 274/AGRA/2018 13 15. THE LEARNED COUNSEL HAD ARGUED THAT THE DEFECT IN THE PENALTY NOTICE IS A QUESTION OF LAW WHICH CAN BE RAISED BY THE ASSESSEE AT ANY POIN T OF TIME. WE HAVE CONSIDERED THIS SUBMISSION AND WE HAVE REJECTED IT. THE LEARNED COU NSEL RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF K. LUBNA TO SU BMIT THAT IF THE FACTUAL FOUNDATION FOR A CASE HAS BEEN LAID AND THE LEGAL CONSEQUENCES OF THE SAME HAVING BEEN EXAMINED, THE EXAMINATION OF SUCH LEGAL CONSEQUENCES WOULD BE A PURE QUESTION OF LAW. WE HAVE NOTED THE FACTUAL POSITION. THE ASSESSEE UNDERSTOOD THE NOTICE TO BE UNDER BOTH HEADS, NAMELY, FURNISHING OF INACCURATE PARTICULARS AND CO NCEALMENT OF INCOME. THIS IS EVIDENT FROM THE ASSESSEE'S REPLY DATED 8-4-2015 TO THE SHO W CAUSE NOTICE DATED 12-3-2015. THEREFORE, THE DECISION IN THE CASE OF K. LUBNA DOE S NOT HELP THE ASSESSEE, AS THERE IS NO SUBSTANTIAL QUESTION OF LAW ARISING FROM SUCH CONTE NTION. 16. THE LEAREND COUNSEL ARGUED THAT THE FINANCIAL C ONDITION OF THE ASSESSEE COMPANY WAS ALSO A RELEVANT FACTOR TO ASSESS THEIR BONA FIDES. THIS CONTENTION CANNOT BE ACCEPTED BECAUSE THE SETTLED LEGAL POSITION IS THAT PENALTY CANNOT BE CANCELLED ON THE MERE GROUND THAT RETURN OF INCOME AND ASSESSED INCOME WAS A LOS S. IN THE SAID DECISION, THE HON'BLE SUPREME COURT HAD RELIED UPON THE DECISION IN THE C ASE OF CIT V. GOLD COIN HEALTH FOOD (P.) LTD. [2008] 172 TAXMAN 386/304 ITR 308 WHEREIN IT WAS HELD THAT EXPLANATION 4(A) TO SECTION 271(1)(C)(III) IS INTENDED TO LEVY PENAL TY NOT ONLY IN A CASE WHERE AFTER ADDITION OF CONCEALED INCOME, A LOSS RETURNED, AFTER ASSESSM ENT BECOMES POSITIVE INCOME, BUT ALSO IN A CASE WHERE ADDITION OF CONCEALED INCOME REDUCE S THE RETURNED LOSS AND FINALLY THE ASSESSED INCOME IS ALSO A LOSS OR A MINOR FIGURE. I N THIS REGARD, IT WILL BE BENEFICIAL TO REFER TO THE DECISION IN UNION OF INDIA V. DHARMEND RA TEXTILE PROCESSORS [2008] 174 TAXMAN 571/306 ITR 277(SC), WHICH HAS BEEN REFERRED TO AND RELIED ON IN THE CASE OF N. G. TECHNOLOGIES LTD. 17. AS AGAINST THE ECISION IN THE CASE OF JIVANLAL AND SONS, A SPECIAL LEAVE PETITION FILED AGAINST THE DECISION OF THE HIGH COURT WHICH CONFIR MED THE PENALTY ORDER PASSED BY THE TRIBUNAL REJECTING THE ASSESSEE'S EXPLANATION THAT IT HAD CLAIMED DEDUCTION ON WRONG ADVICE GIVEN BY THE CHARTERED ACCOUNTANT WAS DISMIS SED. THE OPERATIVE PORTION OF THE JUDGMENT OF THE HIGH COURT OF BOMBAY IN JIVANLAL& S ONS V. ASSTT. CIT [2019] 103 TAXMANN.COM 207 IS AS FOLLOWS: 2. WE ARE UNABLE TO AGREE FOR MORE THAN ONE REASON. THE ASSESSEE IS A FIRM. IT WAS THROUGHOUT BEING ADVISED AND REPRESENTED BY A CHART ERED ACCOUNTANT. THE TRIBUNAL RIGHTLY PROCEEDED ON THE BASIS THAT A CHARTERED ACC OUNTANT IS DEEMED TO BE AWARE OF THE LAW AND ITS INTRICACIES. BEING A PROFESSIONAL, HE C OULD NOT HAVE COMMITTED A MISTAKE AS WAS ATTRIBUTED TO HIM. THE TAX PAID IS UNDISPUTEDLY AN INADMISSIBLE EXPENDITURE FROM THE PROFITS OF THE BUSINESS. HENCE THIS AMOUNT SHOULD H AVE BEEN STATUTORILY ADDED BACK. FURTHER, FROM THE COMPUTATION OF INCOME, THE ASSESS EE ADDED BACK CERTAIN INADMISSIBLE EXPENDITURE. HOWEVER, HE EXCLUDED THE AMOUNT OF INC OME TAX PAID TO THE EXTENT OF RS. 48,90,114/-. THUS, THE ADDITION WAS ONLY PARTIAL AN D NOT FULL. UNLESS AND UNTIL THE LEGAL PROVISION THEN IN FORCE PERMITTED EXCLUSION OF THE AMOUNT OF INCOME TAX ALREADY PAID, THE CHARTERED ACCOUNTANT COULD NOT HAVE DONE THIS. THE CHARTERED ACCOUNTANT CANNOT FEIGN IGNORANCE OF SECTION 40(II) OF THE INCOME-TAX ACT A S HE IS WELL TRAINED AND WELL VERSED IN LAW REPRESENTING NOT ONLY THE ASSESSEE, BUT VARIOUS OTHER CLIENTS. AS FAR AS THE ASSESSEE'SMALAFIDE INTENTION IS CONCERNED, THE BURD EN WAS ENTIRELY ON THE ASSESSEE TO THEN SHOW IN TERMS OF EXPLANATION-I TO THE PROVISION PER MITTING IMPOSITION OF PENALTY THAT SUCH INTENTION NEVER EXISTED WHEN THE ABOVE ACT WAS COMMITTED. FOR THAT, THERE WAS NO MATERIAL EITHER IN THE FORM OF EVIDENCE OF THE ASSE SSEE OR THE AFFIDAVIT OF THE CHARTERED ITA NO. 274/AGRA/2018 14 ACCOUNTANT. HENCE THE COMMISSIONER WAS RIGHT, ACCOR DING TO THE TRIBUNAL, IN IMPOSING THIS PENALTY. THE ATTEMPT TO BLAME THE CHARTERED AC COUNTANT CANNOT RESULT IN THE ASSESSEE'S EXONERATION AND CLAIMED IN ABSOLUTE TERM S. IN THE CIRCUMSTANCES, THE PENALTY WAS RIGHTLY IMPOSED. 18. THUS, FOR THE ABOVE REASONS, WE FIND THAT THE O RDER PASSED BY THE TRIBUNAL DOES NOT CALL FOR ANY INTERFERENCE AND THE SUBSTANTIAL QUEST IONS OF LAW FRAMED FOR CONSIDERATION HAVE TO BE ANSWERED AGAINST THE ASSESSEE. 19. SIMILAR VIEWS WERE EXPRESSED BY THE JURISDICTI ONAL HIGH COURT IN THE MATTER OF SANDEEP CHANDAK (SUPRA). THEREFORE IN OUR VIEW THE JUDGMENT RELIED UPON BY THE ASSESSEE AND CIT(A) WERE NOT APPLICABLE TO THE FA CTS AND CIRCUMSTANCES OF THE CASE. 20. IF WE LOOK INTO THE FACTS OF THE PRESENT CASE, IT IS ABUNDANTLY CLEAR THAT THE ASSESSEE HAD SURRENDERED THE INCOME DURING THE COUR SE OF SURVEY ON 25 JULY 2012, HOWEVER DESPITE SURRENDER THE ASSESSEE HAD NOT DISC LOSED THE SAID INCOME IN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013- 2014 . IN THE ASSESSMENT PROCEEDING THE ASSESSEE WAS SHOW CAUSED BY THE ASSESSING OFFIC ER AND ASKED TO EXPLAIN THE REASONS FOR NOT SURRENDERING THE COMPLETE INCOME. T HEREAFTER THE ASSESSEE IN THE WRITTEN SUBMISSION ON 10 MARCH 2016 HAD AGREED TO S URRENDER THE REMAINING AMOUNT AND IN THE WRITTEN SUBMISSION IT WAS SUBMITT ED THAT THE ASSESSEE IS DOING IT ONLY TO AVOID LITIGATION AND TO BUY PEACE. 20. IN OUR CONSIDERED OPINION THE INITIAL SURRENDE R MADE BY THE ASSESSEE ON 25 JULY 2012 WAS ON ACCOUNT OF THE RECOVERY OF LOOSE P APERS, HARD DISK AND OTHER DOCUMENTS SHOWING THE UNDISCLOSED INCOME AND INVEST MENT MADE BY THE ASSESSEE, HIS DAUGHTER AND SON. IT WAS NOT VOLUNTARY BUT IT W AS ON ACCOUNT OF THE RECOVERY OF THE SAID DOCUMENTS MADE DURING SURVEY. FURTHER, FR OM THE CONDUCT OF THE ASSESSEE, ITA NO. 274/AGRA/2018 15 IT IS CLEAR THAT THE SURRENDER WAS LACKING VOLUNTAR INESS. IN OUR VIEW THE ASSESSEE WAS FORCED TO DISCLOSE THE INCOME ON ACCOUNT OF SURVEY AND SUBSEQUENT SHOW CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER. IN VIEW OF THE ABOVE SAID WE DO NOT FIND ANY JUSTIFICATION FOR THE CIT(APPEALS) TO DELETE THE PE NALTY . HENCE THE ORDER PASSED BY THE CIT (APPEALS) IS REQUIRED TO BE ANNULLED AND TH E ORDER OF THE ASSESSING OFFICER IMPOSING THE PENALTY IS REQUIRED TO BE CONFIRMED. A CCORDINGLY WE CONFIRM THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 21. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED AND THE CO FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/03/2021. SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09 MARCH, 2021 *AKS*