Shri Hasmukhbhai Bachubhai Radadia, Ahmedabad V. The Dy. Commissioner of Income Tax, Circle-3(3), Ahmedabad

ITA 2742/AHD/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4428 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 24-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U S BHATI; ABHIMANYU BHATI
• Keywords: Question of law; Cost of acquisition
• Section: 143(3); 260A; 6

Judgement Text

, CKH CKHCKH CKH IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 2742/AHD/2016 / ASSESSMENT YEAR: 2012-13 SHRI HASHMUKHBHAI BACHUBHAI RADADIA, 492, AVADH, OPP. AMUL ICE- CREAM PARLOUR, LAD SOCIETY ROAD, VASTRAPUR, AHMEDABAD. (PAN NO. AAQPR 7176 N) VS. DCIT, CIRCLE 3(3), AHMEDABAD. , , / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI U. S. BHATI & ABHIMANYU BHATI, A.R. REVENUE BY : SHRI MUDIT NAGPAL, SR. D.R. / DATE OF HEARING : 02.08.2018 / DATE OF PRONOUNCEMENT : 23.10.2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF T HE ASSESSEE AGAINST THE APPELLATE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-3, AHMEDABAD [CIT(A) IN SHORT] DATED 22.09.2016 RELEV ANT TO ASSESSMENT YEAR 2012-13. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY ORDER. 2.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN CONCLUDING THAT MISTAKE COMMITTED BY THE APPEL LANT WAS INTENTIONAL. HE HAS FURTHER ERRED IN NOT CONSIDERING THE EXPLANATION OF THE APPELLANT DULY SUPPORTED BY THE AFFIDAVITS TO THE EFFECT T HAT THE ADVOCATE 2 OF THE APPELLANT HAD COMMITTED A MISTAKE DUE TO IDENTIC AL SALE DEEDS OF SAME DATE. 3.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY AMOUNTING TO RS.3,61,330/ - U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 4.0 THE APPELLANT MAY BE ALLOWED TO ADD, AMEND, ALTER OR R AISE ADDITIONAL GROUNDS OF APPEAL. 3. THE SOLITARY ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS THAT LD CIT(A) ERRED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT FOR RS. 3,61,330/-. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIV IDUAL AND DERIVING HIS INCOME FROM LETTING OUT PROPERTY, SHARE IN PROFIT OF PARTNERSHIP FIRM, LONG TERM CAPITAL GAIN (LTCG) ON SALE OF LANDS AND INTEREST INCOME . 4.1 THE ASSESSEE DURING THE YEAR HAS SOLD THREE PROPERTI ES BUT OFFERED THE CAPITAL GAIN INCOME TO TAX IN RESPECT OF TWO PROPERTIE S ONLY. THE NECESSARY DETAIL OF THE PROPERTIES SOLD BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION STANDS AS UNDER: SR. NO. PARTICULARS TOTAL AMOUNT OF TRANSACTION AS SHARE INDEXED COST CAPITAL GAIN 1. F. PLOT NO.61/2, SOLA GAM DASKORI RS.8,50,00,000/- RS.85,00,000/- RS.6,16,331/- RS.78,83,669/- 2. SURVEY NO. 750/2, SOLA VILLAGE DASKORI RS.1,75,40,000/- RS.17,54,000/- RS.38,160/- RS.17,15,840/- 3. 750/2 DATED 20/06/2011 RS.1,75,40,000/- RS.17,54,000/- RS.17,34,920/- 3 HOWEVER, THE AO DURING THE ASSESSMENT PROCEEDINGS OBS ERVED THAT THE CAPITAL GAIN INCOME IN RESPECT OF THE PROPERTY MENTIONED AT S ERIAL NO.3 ABOVE WAS NOT OFFERED TO TAX. THE AO ALSO FOUND THAT THE ASSESSEE HAS C LAIMED INDEX COST OF ACQUISITION AGAINST THE SALE OF PROPERTY MENTIONED AT S ERIAL NO. 2 & 3 AGAINST THE SALE OF PROPERTY MENTIONED AT S. NO. 2 ABOVE. THUS, THE ASS ESSEE HAS CLAIMED MORE DEDUCTION ON ACCOUNT OF INDEX COST OF ACQUISITION. 4.2 ON QUESTION BY THE AO THE ASSESSEE AGREED THAT HE HAS NOT SHOWN CAPITAL GAIN INCOME RESPECT OF PROPERTY MENTIONED AT SERIAL NO .3 VIS--VIS HAS CLAIMED EXCESS INDEX COST OF ACQUISITION. ACCORDINGLY, THE AO MADE THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE FOR RS. 17,34,920/- AND RS. 19,080/-. THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) OF THE ACT DATED 13.03.2015 IN ITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 4.3 SUBSEQUENTLY, THE AO ISSUED A NOTICE U/S 274 R.W.S. 271(1)(C) OF THE ACT DATED 07.09.2015 FOR INITIATING THE PENALTIES ON ACCOUNT OF FUR NISHING INACCURATE PARTICULARS OF INCOME. 4.4 THE ASSESSEE IN COMPLIANCE TO THE NOTICE SUBMITTED THAT HE HAS SOLD ONE PIECE OF PLOT TO DIFFERENT PARTIES AND ACCORDINGLY, TWO SALES DEED WERE REGISTERED. HOWEVER, THE ACCOUNTANT OF THE ASSESSEE INADV ERTENTLY HAS SHOWN THE INCOME FROM THE SALE OF LAND IN RESPECT OF ONE SAL E REGISTRY DOCUMENT DUE TO OVERSIGHT AS THE ADDRESS OF THE PROPERTY WAS SAME. HOWEV ER, THE LD AO DISAGREED WITH THE SUBMISSION OF THE ASSESSEE AND LEV IED THE PENALTY U/S 271(1)(C) OF THE ACT FOR RS. 3,61,324/- BEING 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED. 4 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD CIT(A). T HE ASSESSEE BEFORE THE LD CIT(A) SUBMITTED THAT THE AO HAS SPECIFIED BOT H THE CHARGES IN THE NOTICE ISSUED U/S 274 OF THE ACT I.E. CONCEALMENT OF INCOME AS WELL AS FURNISHING INACCURATE PARTICULARS OF INCOME. THUS, THE ASSESSEE CLAI MED THAT THE PENALTY U/S 271(1)(C) OF THE ACT IS NOT TO BE LEVIED. 5.1 THE ASSESSEE ALSO SUBMITTED THAT HE WAS NOT AWARE OF ANY PROVISION FOR THE INCOME TAX THEREFORE HE WAS DEPENDING UPON THE AC COUNTANT WHO HAS MADE THE MISTAKE BY NOT OFFERING THE CAPITAL GAIN INCOME. TH E ASSESSEE IN RESPECT OF HIS CLAIM ALSO FILED THE COPY OF THE AFFIDAVIT OF THE ACCOUNTANT. HOWEVER, THE LD. CIT(A) DISREGARDED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER: 4. DECISION: I HAVE GONE THROUGH THE PENALTY ORDER OF THE AO AND SUBMISSION FILED BY THE APPELLANT CAREFULLY. THE FIRST G ROUND OF APPEAL READS AS UNDER: (1) THE PENALTY ORDER PASSED U/S.271(1)(C) OF THE INCOME-TAX ACT, 1961 BY THE LEARNED ASSESSING OFFICER IS BAD-IN-LAW. MORE PARTI CULARLY, IN ABSENCE OF CLEAR CUT FINDING ON THE PART OF THE ID A. O. WHETHER THERE IS CONCEALMENT OF INCOME OR INACCURATE PARTICULARS OF INCOME THE APPELLANT HAS SERIOUSLY CONTENDED THE ISSUE AND FILED S PECIFIC SUBMISSION ON THIS ISSUE, BASICALLY SAYING THAT IN THE NOTICE EITHER O F THE TWO SHOULD HAVE BEEN STRUCK OUT I.E. FURNISHING INACCURATE PARTICULARS OR C ONCEALMENT OF INCOME. THE APPELLANT RELIED ON THE HON'BLE GUJARAT HIGH COURT JUD GMENT IN THE CASE OF CIT VS. .MANU ENGINEERING WORKS 122 ITR 306 (GUJ.) WITH THE FURTHE R COMMENTS THAT THE SAME HAS BEEN APPLIED IN SOME OTHER CASES INCL UDING THE CASE OF VIKRAMKUMAR SARDARMAL SHAH VS. ITO BY THE ITAT, AHMEDABAD O N 17.02.2016. I HAVE GONE THROUGH THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT I N THE CASE OF CIT VS. MANU ENGINEERING WORKS 122 ITR 306 (GUJ ) AND FIND THAT THE JUDGMENT IS RELATING TO A.Y.1970-71 WITH DUE RESPECT TO THE JUDGMENT WHEREIN THE OLD DESIGNATIONS OF THE OFFICERS HAVE BEEN MEN TIONED, IT IS MENTIONED THAT THE INCOME TAX ACT, 1961 HAS BEEN AMENDED A NUMBER OF T IME IN THE LAST 45 YEARS, MORE PARTICULARLY IN THE YEAR 1988. THIS IS THE YEAR WHE REFROM THE 'RECORDING OF REASONS' WERE MADE MANDATORY. SUBSEQUENTLY, EVEN THE DISCLOSURE 5 OF REASONS TO THE APPELLANT HAS BECOME MANDATORY AS PER ACCEPTED JUDGEMENTS OF THE COURTS. IN THE GOOD OLD TIME, THE DEPARTMENTAL OFFICER S WERE FOLLOWING A DIFFERENT SET OF PROCEDURES THAN THOSE BEING FOLLOWED IN THE CURRENT DECADE. THE LAW IS NON-STATIC AND IS EVER EVOLVING. THEREFORE, IT IS M Y HUMBLE UNDERSTANDING THAT THE RATIO LAID DOWN FOR A.Y. 1970-71 CANNOT BE APPLIED IN EACH AND EVERY CASE WITHOUT MARSHALING THE FACTUAL MATRIX AND THE CHANGE O F LAW OVER A PERIOD OF TIME. IT IS ALSO MY HUMBLE UNDERSTANDING THAT ONCE THE RE IS A CONCEALMENT OF INCOME IT BECOMES AUTOMATICALLY SUBMISSION OF INACCU RATE PARTICULARS OF INCOME TO THE DEPARTMENT. FOR INSTANCE IN INSTANT CASE, ONE O F THE THREE REAL ESTATE TRANSACTIONS WAS NOT SHOWN IN THE RETURN OF INCOME, THER EFORE, THE INCOME PERTAINING TO ONE OF THE TRANSACTION WAS NOT SHOWN TO T HE DEPARTMENT ON THE DAY OF FILING OF RETURN OF INCOME. IT IS MY UNDERSTANDING T HAT THE APPELLANT CONCEALED THE INCOME FROM THE DEPARTMENT TO THE EXTENT RELATING T O UNDISCLOSED REAL ESTATE TRANSACTION. THE SUBSTANCE OF THE MATTER IS IMPORTANT AND THE SAME WOULD DETERMINE THE TAXABILITY OR OTHERWISE IN ANY PARTICULAR CA SE. THE NATURE OF THE FAULT IS OF UTMOST IMPORTANCE IN DECISION OF IMPOSIN G THE PENALTY U/S.271(1)(C) OF IT ACT, 1961. THE AO HAS INITIATED PENALTY PROCEEDINGS AS P ER LAW. THE NOTICE HAS BEEN ISSUED IN PRESCRIBED FORMAT WITHIN PRESCRIBED TI ME LIMIT AND THE ORDER HAS FINALLY BEEN ISSUED AFTER GIVING PROPER OPPORTUNIT Y TO THE APPELLANT. ALL THE FACTS ARE IN THE KNOWLEDGE OF APPELLANT WHO HAS COOPERATED WITH THE AO TO GET THE PROCEEDINGS FINALIZED. WHATEVER IS NOT DIRECTLY ALLOWABLE OUGHT NOT TO HAVE BEEN INDIRECTLY ALLOWED, IS THE SPIRIT OF THE LAW AND IS WIDELY AC CEPTED BY THE COURTS. IN THE CIRCUMSTANCES, I AM CONSTRAINED TO GO WITH THE IN TERPRETATION AND THE STAND TAKEN BY AO. CONSEQUENTLY THE GROUND NO.1 IS HEREBY DISMISSED. THE GROUND NO.2 READS AS UNDER: 'THE LD AO HAS ERRED IN LAW AND ON FACTS IN IMPOSING A PE NALTY U/S 271(1)(C) OF RS 3,61,330/- ' THE FACTS HAVE BEEN VERY CLEARLY BROUGHT OUT BY THE AO IN T HE PENALTY ORDER WHEREIN IT IS MENTIONED THAT THE APPELLANT DISCLOSED SALE OF ONLY TWO PROPERTIES OUT OF THE TOTAL THREE AT RS.95,99,509/- AGAINST RS.1,13,53 ,509. THE RETURN WAS FILED ON 31.12 2012 AND THE APPELLANT REMAINED SILENT FOR ALMOS T TWO YEARS UNTIL AO INQUIRED DURING ASSESSMENT PROCEEDINGS BASED ON AI R INFORMATION AND CROSS-VERIFIED DOCUMENTARY EVIDENCES. IT MAY BE MENTIONE D THAT MORE THAN 90% OF THE RETURNS ARE NOT SCRUTINIZED AND ENCLOSURES WHIC H ARE VOLUNTARY TO BE FILED, ARE NOT NECESSARILY CHECKED. THE APPELLANT HAS RELIED ON A FEW CASES BUT RATIO IN THO SE CASES IS NOT APPLICABLE. THIS IS NOT INADVERTENT MISTAKE OR A SILLY MISTAKE. THE APPELLAN T IN THIS CASE HAS NOT COME OUT CLEARLY WITH IMPORTANT FACTS TILL THE FIL ING RETURN OF INCOME SO AS TO 6 SHOW THE LACK OF MENS REA. I FEEL THE MISTAKE CLAIMED B Y APPELLANT IS INTENTIONAL AND UNDERTAKEN WITH PURPOSE BY NOT FILING RETURN OF IN COME. IT MAY BE MENTIONED THAT MORE THAN 90% OF THE RETURNS ARE NOT SCRUT INIZED AND ENCLOSURES WHICH ARE VOLUNTARY TO BE FILED, ARE NOT NECESSARILY CHEC KED. AS PER VARIOUS PRONOUNCEMENTS BY THE DIFFERENT COURTS, PENALTY OF CONC EALMENT CANNOT BE IMPOSED BECAUSE THE ASSESSEE HAS TAKEN A PARTICULAR ST AND OR HAD PREFERRED AN INTERPRETATION WHICH WAS PLAUSIBLE AND REASONABLE, BUT HA S NOT BEEN ACCEPTED, UNLESS THE ASSESSEE HAD NOT DISCLOSED FACTS BEFORE THE A UTHORITIES. SUCH CASES HAVE TO BE DISTINGUISHED FROM CASES WHERE THE CLAIM OF THE ASSE SSEE IS FARCICAL OR FARFETCHED. DUBIOUS AND FANCIFUL CLAIMS UNDER THE GARB OF INTERPRETATION, ARE A MERE PRETENCE AND NOT BONAFIDE. SIMILARLY, THE APPELL ANT CAN'T GET BENEFIT OF LAND MARK SUPREME COURT JUDGMENT IN THE CASE OF RELIANCE PETRO PRODUCTS LTD., 322 ITR 158 (SC) WHEREIN IN THE LAST PARA OF JUDGMENT IT HAS BEEN STATED, ........... WHEREIN THERE IS NO FINDINGS BY THE ASSESSING OFFICER FOR THE INA CCURATE PARTICULARS OR CONCEALMENT OF INCOME- INFACT, SAME RATIO IS REI TERATED BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT AHD-IV VS. WHITEFORD INDIA LTD.- 38 TAXMANN.COM 15 (GUJ.) WHEREIN THE RELIEF TO THE ASSESSEE WAS GRANTED WITH FOLLOWING COMMENTS, '..... WHERE NO CLEAR FINDING WAS RECOR DED BY ASSESSING OFFICER WHETHER ASSESSEE WAS GUILTY OF CONCEALING INCOME AND/OR FURNISHING INACCURATE PARTICULARS OF INCOME, .....'. THEREFORE , COURTS HAVE CONSISTENTLY HELD THAT THERE NEED TO BE FINDINGS OF A.O. IF THE PENALTY ORDER IS TO BE CONFIRMED. IN INSTANT CASE, THERE IS SPECIFIC FINDING BY THE A.O. I N A RECENT JUDGMENT DATED 31.10.2013 IN THE CASE OF MAK DATA PVT. LTD. VS. CIT, 38 TAXMANN COM 448 (SC), THE HON'BLE SUPREME COURT HAS RULED, 'VOLUNTARY DIS CLOSURE DOES NOT ABSOLVE ASSESSEE, BONAFIDE EXPLANATION OF INCOME REQU IRED'. THE FACTS OF THE CASE ALSO MAKE IT AMENABLE TO THE JUDGMENT AGAINST IT IN THE CASE OF K.P. MADHUSUDHANAN VS. CIT 251 ITR 99 (SC). FURTHER, AS PER JUDGMEN TS, ADDITIONAL INCOME IN RESPONSE TO NOTICE U/S. 148, PENALT Y ON ADDITIONAL INCOME CONFIRMED IN THE CASE LAWS PC JOSEPH & BROS. VS. CIT 243 ITR 818 (KER.) NARAM DAS SURAJ BHAN VS CST 21 STC 104 (SC) THE DICTIONARY MEANING OF THE WORD CONCEALMENT IS TO HIDE, TO KEEP SECRET. THE EXPLANATION TO SECTION 27L(1)(C) DOES NOT ALTER OR EXTE ND THIS MEANING. IT ONLY ASSUMES THE CONCEALMENT TO EXIST IF THE ASSESSES FAILS TO PROVE THAT THE NON DISCLOSURE WAS NOT DUE TO FRAUD OR WILLFUL CONDUCT, HELD B Y ALLAHABAD HIGH COURT IN THE CASE OF MOHAMMAD IBRAHIM AZIMULLA 131 ITR 680 ( AIL). CONCEALMENT MEANS AN ATTEMPT TO HIDE AN ITEM OF INCOM E OR A PORTION THEREOF FROM THE KNOWLEDGE OF THE INCOME /AX AUTHORITIES, HELD IN CASE OF CIT VS. MAHABIT PRASAD BAJAJ 298 ITR 109 (JHAR) 7 THE A.O. HAS INITIATED PENALTY PERFECTLY AS PER PROVISIONS OF THE I.T. ACT, 1961 AND HAS ONLY IMPOSED PENALTY OF 100% OF AMOUNT PAYABLE ON CO NCEALED INCOME FOR WHICH INACCURATE PARTICULARS HAVE BEEN FURNISHED. IT I S NOT THE CASE WHERE APPELLANT MADE CERTAIN CLAIMS IN THE RETURN OF INCOME WHICH WER E FOUND TO BE NOT ALLOWABLE SUBSEQUENTLY DURING ASSESSMENT PROCEEDINGS, RATHER IT IS A CASE WHERE ADDITIONS HAVE BEEN MADE ON CERTAIN FACTS WHICH CAME TO SU RFACE ONLY DURING THE EXAMINATION OF RECORD BY THE ASSESSING OFFICER. IN VIEW OF FACT S OF THIS CASE AND THE CASE LAWS QUOTED ABOVE, I CONCLUDE THAT PENALTY ORDER U/S .271(1)(C) OF IT ACT, 1961 IS VERY FAIR AND NEED NOT TO BE INTERFERED. BEING AGGRIEVED BY THE ORDER OF LD CIT(A) ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1-48 AND REITERATED THE SUBMISSION AS MADE BEFORE THE LD CIT(A). 7. ON THE OTHER HAND, LD DR VEHEMENTLY SUPPORTED THE O RDER OF AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE DISPUTE RELATES TO T HE PENALTY IMPOSED BY THE AO ON ACCOUNT OF FURNISHING INACCURATE PARTICULARS OF IN COME. IT IS FACT ON RECORD THAT THE ACCOUNTANT HAS FURNISHED AN AFFIDAVIT BEF ORE THE LOWER AUTHORITIES ADMITTING THE MISTAKE COMMITTED BY HIM INAD VERTENTLY IN FILING THE INCOME TAX RETURN OF THE ASSESSEE. COPY OF THE AFFIDAVI T IS PLACED ON PAGES 46 TO 48 OF THE PAPER BOOK. NONE OF THE AUTHORITY BELOW HAS C HALLENGED THE AFFIDAVIT FURNISHED BY THE ACCOUNTANT OF THE ASSESSEE. THEREFORE WE PRESUME THAT THE CONTENTS FURNISHED IN THE AFFIDAVIT OF THE ACCOUNTANT AR E TRUE AND CORRECT. ACCORDINGLY WE DRAW THE INFERENCE THAT THERE WAS NO MALA-FIDE ACT ON THE PART OF THE ASSESSEE TO FURNISH/ CONCEAL THE INCOME ON ACCOUNT OF SALE OF THE PROPERTY. IN THIS REGARD, WE FIND SUPPORT AND GUIDANCE FROM THE J UDGMENT OF HONBLE 8 PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. DIP AK KUMAR REPORTED IN 232 CTR 78 WHEREIN IT WAS HELD AS UNDER: 5. HAVING HEARD LEARNED COUNSEL, WE ARE OF THE VIEW THAT THE QU ESTION CONCERNING BONA FIDE MISTAKE OR BELIEF IS MORE OR LESS A QUESTION OF FACT, WHICH HAS BEEN DECIDED BY THE CIT(A) ON THE BASIS OF THE AFFIDAVIT FI LED BY THE COUNSEL. THERE IS NO FINDING OF INTENTIONAL AND MOTIVATED MISTAKE WHICH MIGHT HAVE BEEN RESORTED TO BY THE ASSESSEE-RESPONDENT. 6. WE ARE NOT IMPRESSED WITH THE ARGUMENT OF MR. SUKANT GUPT A, LEARNED COUNSEL FOR THE APPELLANT-REVENUE, THAT THE ISSUE OF BO NA FIDE BELIEF BASED ON THE ADVISE OF THE COUNSEL SHOULD HAVE BEEN RAISED BEFORE THE AO AND THERE WAS NO SCOPE FOR RAISING SUCH AN ISSUE BEFORE THE CIT(A) BEC AUSE IT IS AN AFTERTHOUGHT. HOWEVER, WE DO NOT FIND ANY MERIT IN THE AFORESAID SUBMIS SION. IT IS NOT UNKNOWN THAT IT RETURNS ARE FILED THROUGH THE EXPERTS IN THE IT LAWS AND, THEREFORE, THE ADVISE GIVEN BY THE LEARNED COUNSEL CAN BE A CTED UPON WITH BONA FIDE BELIEF TO BE CORRECT. THERE IS NO RULE OF LAW THAT T HE AFORESAID ISSUE SHOULD HAVE BEEN PRESSED ONLY BEFORE THE AO OR THERE WAS ANY BAR O N THE ASSESSEE- RESPONDENT NOT TO RAISE THIS ISSUE BEFORE THE APPELLA TE AUTHORITY. THE AFFIDAVIT FILED BY THE COUNSEL OF THE ASSESSEE, HAS BEEN READILY ACC EPTED BY THE CIT(A) AS WELL AS BY THE TRIBUNAL. IT IS WELL SETTLED THAT IF ON THE EVIDENCE ADDUCED BEFORE THE AO OR THE APPELLATE FORUM, A POSSIBLE VIEW HAS BEEN TAKEN TH EN UNDER S. 260A OF THE ACT, NO SUBSTANTIVE QUESTION OF LAW COULD BE F RAMED MERELY BECAUSE ANOTHER VIEW IS POSSIBLE. THE APPEAL IS, THUS, WITHOUT MERI T AND ACCORDINGLY THE SAME IS DISMISSED. 8.1 SIMILARLY, WE ALSO EXTEND OUR RELIANCE ON THE JUDGM ENT OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. RAJ TEXTILE IN 166 ITR 632 WHEREIN IT WAS HELD AS UNDER: 'WHILE FRAMING THE ASSESSMENT FOR THE ASSESSMENT YEAR IN QUESTION THE ITO ADDED CERTAIN AMOUNT, WHICH ACCORDING TO THE ITO HAD NOT BEEN DISCLOSED BY THE ASSESSEE. THE ITO ALSO INITIATED PENALTY PRO- CEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. IN THOSE PROCEEDINGS, THE ASSESSEE CONTENDED THAT A MISTAKE HAD CREPT IN THE RETURN FILED BY THE ASSESSEE DUE TO INADVERTENCE. THE ITO WAS NOT SATISFIED WITH THE EXPLANATION AND FOUND THAT THE ASSESSEE HAD DELIBE- RATELY CONCEALED THE PARTICULARS OF INCOME. THE I TO ACCORDINGLY LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE APPEAL PREF ERRED BY THE ASSESSEE BEFORE THE COMMISSIONER (APPEALS) WAS ALLOWED. THE REVENUE THEREUPON PREFERRED FURTHER APPEAL BEFORE THE TRIBUNAL. THE TRIBUN AL UPHELD THE ORDER OF THE 9 COMMISSIONER (APPEALS) AND FOUND THAT THE MISTAKE HAD BE EN MADE BY THE ASSESSEE INADVERTENTLY AND THAT THERE WAS NO CONSCIOUS CO NCEALMENT OF INCOME. THE TRIBUNAL, THEREFORE, UPHELD THE DECISION OF THE COMMIS SIONER (APPEALS). AGGRIEVED BY THAT ORDER, THE DEPARTMENT SOUGHT A REFERENCE BUT THAT APPLICATION WAS REJECTED. HENCE, THE DEPARTMENT HAS FILED THIS APPLICATION.' 4. HAVING HEARD THE LEARNED COUNSEL SHRI MUKATI FOR THE APPL ICANT, WE HAVE COME TO THE CONCLUSION THAT THIS APPLICATION DESERVES TO BE DISMISSED. THE QUESTION AS TO WHETHER THERE WAS A BONA FIDE MISTAKE MADE BY THE ASSESSEE IN DISCLOSING HIS INCOME AND WHETHER THERE WAS OR WAS NOT CONSCIOUS CONCEAL MENT OF INCOME, ARE QUESTIONS OF FACT. THE LEARNED COUNSEL FOR THE DEPARTMEN T WAS UNABLE TO POINT OUT ANY QUESTION OF LAW ARISING OUT OF THE ORDER PASSED BY THE TRIBUNAL. IN OUR OPINION, THEREFORE, THE APPLICATION DESERVES TO BE REJECT ED. 8.2 AFTER CONSIDERING THE FACTS IN TOTALITY WE ARE OF T HE VIEW THAT THERE WAS NO DELIBERATE ACT ON PART OF THE ASSESSEE TO CONCEAL/ FUR NISH INACCURATE PARTICULARS OF INCOME THEREFORE, WE ARE OF THE VIEW THAT THE PENALT Y LEVIED BY THE AO AND SUSTAINED BY THE LD CIT(A) IS NOT MAINTAINABLE. AS WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON MERIT THEREFORE WE ARE RELUCTANT TO ADJ UDICATE THE ISSUE RAISED BY THE ASSESSEE ON TECHNICAL GROUND. HENCE WE DI RECT THE AO TO DELETE THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT. HENCE, THE G ROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 23 RD OCTOBER, 2018 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER AHMEDABAD; DATED 23/10/2018 PRITI YADAV, SR.PS 10 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # () / THE CIT(A) 3, AHMEDABAD. 5. &'( ! , ! , *+, , / DR, ITAT, AHMEDABAD. 6. (- ./ / GUARD FILE. / BY ORDER, & //TRUE COPY// '/# $% ( DY./ASSTT.REGISTRAR) &'(, #)* / ITAT, AHMEDABAD 1. DATE OF DICTATION 08/10/2018 (PAGE-5) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : .. 16/10/2018 3. OTHER MEMBER .. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S25/10/2018. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DESPATCH OF THE ORDER