Snehal Sameer Mulay, Aurangabad V. DCIT, Central Circle, Aurangabad

ITA 290/PUN/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7223 (ITAT-PUNE)
• Duration Of Justice: 4 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-12-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 30-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Search and seizure; Reasonable cause
• Section: 143(3); 142(1); 153A; 148; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 288/PUN/2013 $& ' !(' / ASSESSMENT YEAR : 2002-03 ROHINI RANJEET MULAY, SAHYADRI, RACHNAKAR COLONY, STATION ROAD, AURANGABAD-431005 PAN : AJZPM4518M ....... / APPELLANT )& /VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AURANGABAD / RESPONDENT / ITA NO. 289/PUN/2013 $& ' !(' / ASSESSMENT YEAR : 2006-07 PADMAKAR HARIBHAU MULAY, SAHYADRI, RACHNAKAR COLONY, STATION ROAD, AURANGABAD-431005 PAN : AEIPM3632E ....... / APPELLANT )& /VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AURANGABAD / RESPONDENT / ITA NO. 290/PUN/2013 $& ' !(' / ASSESSMENT YEAR : 2003-04 SNEHAL SAMEER MULAY, 2 ND FLOOR, TAPADIYA TERRACES, ADALAT ROAD, AURANGABAD-431001 PAN : AJZPM4516F ....... / APPELLANT )& /VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AURANGABAD / RESPONDENT 2 ITA NOS. 288, 289 & 290/PUN/2013 ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI ANIL CHAWARE / DATE OF HEARING : 27-12-2016 / DATE OF PRONOUNCEMENT : 30-01-2017 * / ORDER PER VIKAS AWASTHY, JM : THESE THREE APPEALS BY THE DIFFERENT ASSESSEES ARE TAK EN UP TOGETHER FOR HEARING AS THE ISSUES RAISED IN THE APPEALS ARE ARISING FROM SAME SET OF FACTS. IN ITA NO. 288/PUN/2013, THE ASSESS EE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), AURANGA BAD DATED 03-12-2012 FOR THE ASSESSMENT YEAR 2002-03 CONFIRMING T HE LEVY OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFT ER REFERRED TO AS THE ACT). IN ITA NO. 289/PUN/2013, THE ASSESSEE HAS IMPUGNED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), AURANGAB AD DATED 03-12-2012 FOR THE ASSESSMENT YEAR 2006-07 CONFIRMING T HE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT AND IN ITA NO. 290/PUN/2 013, THE ASSESSEE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS), AURANGABAD DATED 03-12-2012 FOR THE ASSESSMEN T YEAR 2003-04 CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CARRIE D OUT ON MULAY GROUP ON 10-10-2007. ALL THE THREE ASSESSEES ARE PART OF MULAY GROUP. NOTICE U/S. 153A WAS ISSUED TO THE ASSESSEES. IN RESPO NSE TO THE SAID NOTICE, THE ASSESSEES FILED THEIR RESPECTIVE RETURN OF INCOM E FOR THE IMPUGNED ASSESSMENT YEARS. DURING THE COURSE OF ASSES SMENT, CERTAIN ADDITIONS/DISALLOWANCES WERE MADE BY THE ASSESSING OFFICER IN THE 3 ITA NOS. 288, 289 & 290/PUN/2013 INCOME RETURNED BY THE ASSESSEES. THE ASSESSEES ACCE PTED THE ADDITIONS AND DID NOT FILE ANY APPEAL. THEREAFTER, PENALTY PR OCEEDINGS U/S. 271(1)(C) WERE INITIATED AND PENALTIES WERE LEVIED IN THE C ASE OF RESPECTIVE ASSESSEES AS UNDER : ITA NO. NAME OF ASSESSEE ASSESSMENT YEAR PENALTY LEVIED 288/PUN/2013 ROHINI RANJEET MULAY 2002 - 03 ` 1,13,220/ - 289/PUN/2013 PADMAKAR HARIBHAU MULAY 2006 - 07 ` 3,47,606/ - 290/PUN/2013 SNEHAL SAMEER MULAY 2003 - 04 ` 5,73,090/ - AGGRIEVED BY THE ORDER LEVYING PENALTY, THE ASSESSEES FILED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN T HEIR RESPECTIVE CASES. THE COMMISSIONER OF INCOME TAX (APPEA LS) IN THE CASE OF ROHINI RANJEET MULAY AND SNEHAL SAMEER MULAY UPHELD THE LEVY OF PENALTY IN TOTO. IN THE CASE OF PADMAKAR HARIBHAU MU LAY, THE COMMISSIONER OF INCOME TAX (APPEALS) GRANTED PART RELIEF T O THE ASSESSEE BY RESTRICTING THE LEVY OF PENALTY ON ADDITION OF ` 4,30,830/-. THE ASSESSING OFFICER HAD LEVIED PENALTY ON ADDITION OF ` 12,64,840/-. NOW, THE ASSESSEES ARE IN SECOND APPEAL BEFORE THE TRIBU NAL ASSAILING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING THE LEVY OF PENALTY. 3. SHRI SUNIL GANOO APPEARING ON BEHALF OF THE ASSESSEES S UBMITTED THAT THE ASSESSEES ARE HAVING AGRICULTURAL LAND AND ARE DERIVING AGRICULTURAL INCOME THERE FROM. THE ASSESSEES HAVE NOT FILE D RETURN OF INCOME U/S. 139 OF THE ACT IN THE ASSESSMENT YEARS UNDE R APPEAL. AFTER SEARCH AND SEIZURE ACTION ON MULAY GROUP ON 10-1 0-2007, NOTICE U/S. 153A WAS ISSUED TO THE ASSESSEES. IN PURSUANCE TO THE SAID NOTICE, THE ASSESSEES FILED THEIR RESPECTIVE RETURN OF INCOM E. ASSESSMENTS WERE FRAMED U/S. 143(3) R.W.S. 153A OF THE ACT . THE 4 ITA NOS. 288, 289 & 290/PUN/2013 ADDITIONS MADE DURING THE ASSESSMENT PROCEEDINGS WERE A CCEPTED BY THE ASSESSEE AND NO APPEALS WERE FILED AGAINST THE ADDIT IONS. THEREAFTER, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDING S U/S. 271(1)(C) IN THE CASE OF ALL THE ASSESSEES. THE LD. AR POINTE D THAT A PERUSAL OF ASSESSMENT ORDER SHOWS THAT SATISFACTION FOR LE VY OF PENALTY WAS RECORDED U/S. 271(1)(C) R.W. EXPLANATION 1. HOWEVER, AT THE TIME OF LEVY OF PENALTY, THE ASSESSING OFFICER INVOKED THE PROVISIONS OF EXPLANATION 5A. WHEN THE MATTER TRAVELLED TO THE FIRST A PPELLATE AUTHORITY, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THA T PENALTY LEVIED AS PER EXPLANATION 5A TO SECTION 271(1)(C) IS NOT JUST IFIED. THE COMMISSIONER OF INCOME TAX (APPEALS) LEVIED THE PENALTY BY IN VOKING THE PROVISIONS OF EXPLANATION 3 TO SECTION 271(1)(C) OF THE A CT. THE LD. AR SUBMITTED THAT THE PROVISIONS OF EXPLANATION 3 TO SECT ION 271(1)(C) ARE NOT APPLICABLE IN THE CASE OF ASSESSEES. PROVISIONS O F EXPLANATION 3 APPLIES WHERE THE RETURN OF INCOME IS FILED U/S. 142 AND/OR U/S. 148 OF THE ACT. IN THE PRESENT CASE, THE ASSESSEES HAVE FILED RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED U/S. 153A. THE LD. AR FURTHE R SUBMITTED THAT IN THE PRESENT SET OF APPEALS NO PENALTY IS LEVIABLE A S NO INCRIMINATING MATERIAL WAS SEIZED DURING THE COURSE OF SEARC H. WHERE DURING SEARCH ACTION NO INCRIMINATING DOCUMENT IS FOUND AND SEIZED NO ADDITION CAN BE MADE. IN SUPPORT OF HIS SUBMISSIONS THE LD . AR PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF COMMISSIONER OF INCOME TAX VS. CONTINENTAL WAREHOUSING CO RPORATION REPORTED AS 374 ITR 645. 3.1 THE LD. AR SUBMITTED THAT THE ASSESSEE IN ITA NO. 288 /PN/2013 HAS PRIMARILY DERIVED AGRICULTURAL RECEIPTS FROM M/S. AJEET SEEDS LTD. THE TRIBUNAL IN THE CASE OF AJEET SEEDS LTD. HAS DELETED THE ADDITION U/S. 40A(2)(B) OF THE ACT. THE DEPARTMENT FILED APPEAL AGAINST THE 5 ITA NOS. 288, 289 & 290/PUN/2013 ORDER OF TRIBUNAL BEFORE THE HONBLE HIGH COURT BUT THE ISSUE OF DISALLOWANCE U/S. 40A(2) WAS NOT RAISED BY THE DEPARTMENT IN APPEAL BEFORE THE HONBLE HIGH COURT. THE LD. AR PLACED ON RECOR D THE COPY OF THE ORDER OF TRIBUNAL IN THE CASE OF ACIT VS. AJEET SEED S LTD. IN ITA NOS. 109 TO 115/PN/2012 FOR THE ASSESSMENT YEARS 2002 -03 TO 2008- 09 DECIDED ON 22-03-2013 AND THE COPY OF ORDER OF HON BLE BOMBAY HIGH COURT, AURANGABAD BENCH IN THE CASE OF THE COMMISSIO NER OF INCOME TAX VS. AJEET SEEDS LTD. IN INCOME TAX APPEAL NO S. 20 TO 26 OF 2014 DECIDED ON 18-06-2015. 4. AU CONTRAIRE SHRI ANIL CHAWARE REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS) IN CONFIRMING THE LEVY OF PENALTY. THE LD. DR FURTHE R PLACED RELIANCE ON THE DECISION RENDERED IN THE CASE OF INCOME TAX OFFICER VS. SMT. GURINDER KAUR REPORTED AS 102 ITD 189 (ITAT-DEL.). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. IT IS AN UNDISPUTED FACT THAT THE ASSESSEES HAVE NOT FILED THE IR RETURN OF INCOME U/S. 139 OF THE ACT. A SEARCH ACTION U/S. 132 OF T HE ACT WAS CARRIED OUT ON MULAY GROUP ON 10-10-2007. THE ASSESSE ES BEING MEMBER OF MULAY GROUP WERE SERVED WITH THE NOTICE U/S. 1 53A OF THE ACT ON 21-05-2008. THE ASSESSEES FILED THEIR RESPECTIVE RETURN OF INCOME FOR THE ASSESSMENT YEARS UNDER APPEAL IN PURSUA NCE TO THE NOTICE ISSUED U/S. 153A OF THE ACT ON 20-06-2008. ITA NO. 288/PUN/2013 6. A PERUSAL OF THE ASSESSMENT ORDER IN THE CASE OF ASS ESSEE IN ITA NO. 288/PN/2013 SHOWS THAT CERTAIN ADDITIONS WERE MADE IN THE 6 ITA NOS. 288, 289 & 290/PUN/2013 INCOME RETUNED BY THE ASSESSEE. THE ASSESSING OFFICER WH ILE RECORDING SATISFACTION FOR LEVY OF PENALTY U/S. 271(1)(C) R.W. EXPLANATION 1 HAS NOT SPECIFIED WHETHER PENALTY PROCEEDINGS ARE INITIATED FOR CONC EALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE REAFTER, WHILE PASSING PENALTY ORDER ON 13-05-2010 THE PENALTY WA S LEVIED U/S. 271(1)(C) R.W. EXPLANATION 5A. DURING THE FIRST APPELLATE PROC EEDINGS, THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE PROVISIONS OF EXPLANATION 5A ARE NOT ATTRACTED AS NO INCRIMINATING MA TERIAL WAS FOUND DURING SEARCH ACTION. HOWEVER, THE COMMISSIONER OF I NCOME TAX (APPEALS) CONFIRMED THE LEVY OF PENALTY BY INVOKING EXPLANATION 3 TO SECTION 271(1)(C) OF THE ACT. 7. BEFORE PROCEEDINGS FURTHER IT WOULD BE RELEVANT TO REFE R TO THE PROVISIONS OF EXPLANATION 3. THE SAME ARE REPRODUCED HERE-IN-UNDE R : EXPLANATION 3.WHERE ANY PERSON FAILS, WITHOUT REA SONABLE CAUSE, TO FURNISH WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1) OF SECTION 153 A RETURN OF HIS INCOME WHICH HE IS REQUIRED TO FURNIS H UNDER SECTION 139 IN RESPECT OF ANY ASSESSMENT YEAR COMMENCING ON OR AFT ER THE 1ST DAY OF APRIL, 1989, AND UNTIL THE EXPIRY OF THE PERIOD AFO RESAID, NO NOTICE HAS BEEN ISSUED TO HIM UNDER CLAUSE (I) OF SUB-SECTION (1) OF SECTION 142 OR SECTION 148 AND THE ASSESSING OFFICER OR THE COMMIS SIONER (APPEALS) IS SATISFIED THAT IN RESPECT OF SUCH ASSESSMENT YEAR S UCH PERSON HAS TAXABLE INCOME, THEN, SUCH PERSON SHALL, FOR THE PU RPOSES OF CLAUSE (C) OF THIS SUB-SECTION, BE DEEMED TO HAVE CONCEALED THE P ARTICULARS OF HIS INCOME IN RESPECT OF SUCH ASSESSMENT YEAR, NOTWITHS TANDING THAT SUCH PERSON FURNISHES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF THE PERIOD AFORESAID IN PURSUANCE OF A NOTICE UNDER SEC TION 148. A BARE PERUSAL OF EXPLANATION 3 SHOWS THAT THE SAME IS APPLICABLE WHERE THE ASSESSEE HAS TAXABLE INCOME BUT HAS NOT FILED RETURN OF INCOME WITHOUT REASONABLE CAUSE WITHIN THE TIME PRESCRIBED U/S. 153(1) AND UNTIL THE EXPIRY OF PERIOD U/S. 153(1) NO NOT ICE U/S. 142(1) OR 148 OF THE ACT HAS BEEN ISSUED. THE ASSESSE E SHALL BE HELD TO 7 ITA NOS. 288, 289 & 290/PUN/2013 HAVE CONCEALED THE INCOME AND PENALTY IS LEVIABLE ON HIM ACCORDINGLY, IF HE IS LATER FOUND TO HAVE TAXABLE INCOME IN THAT YEAR. TH IS PROVISION IS APPLICABLE EVEN IF SUCH PERSON FURNISHES RETURN OF INCOME AT ANY TIME AFTER THE EXPIRY OF PERIOD SPECIFIED U/S. 153(1) IN PURSUANCE OF NOTICE U/S. 148 OF THE ACT. EXPLANATION 3 TO SECTION 271(1)(C) IS A TTRACTED IF ALL THE CONDITIONS LAID DOWN THEREIN ARE SATISFIED. THUS, EACH CONDITION HAS TO BE ESTABLISHED FOR THE PURPOSE OF INVOKING EXPLANATION 3. 8. IN THE PRESENT CASE, AS HAS BEEN POINTED EARLIER, THE ASSESSEE HAS NOT FILED RETURN OF INCOME U/S. 139 OF THE ACT WITHIN THE TIM E SPECIFIED U/S. 153(1) OF THE ACT. THE ASSESSEE HAS FILED RETURN OF INC OME IN PURSUANCE TO NOTICE ISSUED U/S. 153A OF THE ACT. IN OUR CONSIDERED OPINION EXPLANATION 3 IS NOT ATTRACTED IN THE FACTS AND CIRCUMSTANC ES OF INSTANT CASE. AFTER SEARCH, THE ASSESSMENT AND SUBSEQU ENT PROCEEDINGS ARE CARRIED OUT UNDER SPECIAL PROVISIONS OF TH E ACT. THE LEGISLATURE IN ITS WISDOM HAS SPECIFICALLY MENTIONED ABOUT I SSUANCE OF NOTICES U/S. 142(1) OR U/S. 148 IN EXPLANATION 3. THERE IS N O REFERENCE TO NOTICE U/S. 153A OF THE ACT. WHERE RETURN OF INCOME IS FILED IN PURSUANCE TO SEARCH ACTION, PROVISIONS OF EXPLANATION 5 OR 5A AS THE CASE MAY BE ARE ATTRACTED, PROVIDED OTHER CONDITIONS SE T OUT IN THE SAID EXPLANATIONS ARE FULFILLED. EXPLANATION 3 IS ATTRACTED ONLY WH ERE THE ASSESSMENT IS MADE UNDER REGULAR PROVISIONS AND NOT IN C ASE OF SEARCH. THUS, WE ARE OF THE CONSIDERED VIEW THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN INVOKING THE PROVISIONS OF EXPLAN ATION 3 FOR CONFIRMING PENALTY U/S. 271(1)(C) OF THE ACT IN THE PRESENT CA SE. THEREFORE, NO CASE FOR LEVY OF PENALTY U/S. 271(1)(C) R.W. EXPLA NATION 3 IS MADE OUT AGAINST THE ASSESSEE. THE DEPARTMENT IS NO T IN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). HENCE, IN 8 ITA NOS. 288, 289 & 290/PUN/2013 THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPU GNED ORDER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 289/PUN/2013 9. A PERUSAL OF ASSESSMENT ORDER DATED 31-12-2009 PAS SED U/S. 143(3) R.W.S. 153A OF THE ACT IN ITA NO. 289/PUN/2013 FOR ASSESSMENT YEAR 2006-07 SHOWS THAT WHILE RECORDING SATISFACTION FOR IN ITIATING PENALTY U/S. 271(1)(C) R.W. EXPLANATION 1 SPECIFIC CHARGE I.E. W HETHER THE PENALTY PROCEEDINGS ARE INITIATED FOR CONCEALMENT OF INC OME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME HAS NOT BEEN MENTIONED BY THE ASSESSING OFFICER. WHILE PASSING ORDER U/S. 271(1)(C) LEVYING PENALTY, THE ASSESSING OFFICER INVOKED THE PROVISIONS OF EXP LANATION 5A. A PERUSAL OF THE ORDER LEVYING PENALTY REVEAL THAT THE AS SESSING OFFICER WAS NOT CLEAR WHETHER THE PENALTY U/S. 271(1)(C) IS TO BE LE VIED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. THE ASSESSING OFFICER WHILE LEVYING PENALTY U/S. 271(1)(C ) HAS OBSERVED THAT THE ASSESSEE HAS RENDERED HIMSELF AS ASS ESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT BY NOT FILING THE RETURN OF INCOME IN TIME AND FURNISHING OF INACCURATE OF PART ICULARS OF INCOME/CONCEALING THE PARTICULARS OF INCOME. THUS, THE ASS ESSING OFFICER HAS LEVIED PENALTY U/S. 271(1)(C) FOR NOT ONLY THE CHAR GES MENTIONED UNDER THE SAID SECTION BUT FOR DELAY IN FILING OF RETURN OF INCOME AS WELL. PENALTY U/S. 271(1)(C) IS LEVIED WHERE THE ASS ESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS IS SATISFIED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. PENALTY U/S. 271(1)(C) IS NO T ATTRACTED FOR DELAY IN FILING OF THE APPEAL. IN FIRST APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) HA S CONFIRMED THE LEVY OF PENALTY U/S. 271(1)(C) WITHOUT INVOKING P ROVISIONS 9 ITA NOS. 288, 289 & 290/PUN/2013 OF EXPLANATION 5A. WE FIND THAT THE REASONS RECORDED FOR INITIATING PENALTY PROCEEDINGS, ORDER LEVYING PENALTY U/S. 271(1)(C) AND THE ORDER OF APPELLATE AUTHORITY ARE INCOHERENT IN SO FAR AS CHARG E FOR LEVY OF PENALTY AND THE PROVISIONS UNDER WHICH PENALTY IS TO BE LE VIED. THE PROCEEDINGS U/S. 271(1)(C) ARE PENAL IN NATURE. THEREFORE, T HE PROVISIONS UNDER THE SAID SECTION HAVE TO BE CONSTRUED STRICTLY. ONE OF THE ESSENTIAL CONDITION FOR LEVY OF PENALTY IS THAT THE SA TISFACTION RECORDED BY THE ASSESSING OFFICER FOR INITIATING PENALTY PRO CEEDINGS U/S. 271(1)(C) AND THE ORDER LEVYING PENALTY U/S. 271(1)(C) SHOULD BE CONGRUENT IN SO FAR AS THE CHARGE FOR LEVY OF PENALTY IS C ONCERNED. IN THE PRESENT CASE, WE OBSERVE THAT THERE IS DISCORD BET WEEN THE RECORDING OF SATISFACTION FOR INITIATING PENALTY PROCEEDINGS U/S. 271(1)(C), ORDER LEVYING PENALTY U/S. 271(1)(C) AND THE FINDINGS O F FIRST APPELLATE AUTHORITY CONFIRMING PENALTY. UNDER SUCH CIRCUMST ANCES WE ARE OF THE CONSIDERED VIEW THAT THE PENALTY LEVIED IS NOT SUSTAINABLE. HENCE, THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 290/PUN/2013 10. A PERUSAL OF THE ASSESSMENT ORDER DATED 22-12-200 9 PASSED U/S. 143(3) R.W.S. 153A OF THE ACT IN ITA NO. 290/PUN/2013 FOR ASSESSMENT YEAR 2003-04 SHOWS THAT THE ASSESSING OFFICER HAS ACCEP TED THE RETURN OF INCOME FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A WITHOUT ANY ADDITION. THE ASSESSING OFFICER INITIATED PENALTY PROCEE DINGS U/S. 271(1)(C) FOR CONCEALMENT OF INCOME. HOWEVER, WHILE LEVYING PENA LTY U/S. 271(1)(C) VIDE ORDER DATED 13-05-2010 THE ASSESSING OFFICER INVOKED EXPLANATION 5A. IN FIRST APPEAL, THE COMMISSIONER O F INCOME TAX (APPEALS) OBSERVED THAT SINCE, NO INCRIMINATING MATERIAL W AS FOUND DURING THE COURSE OF SEARCH, EXPLANATION 5A IS NOT ATTRAC TED. HOWEVER, 10 ITA NOS. 288, 289 & 290/PUN/2013 THE COMMISSIONER OF INCOME TAX (APPEALS) INVOKED EXPLANATION 3 FOR CONFIRMING THE LEVY OF PENALTY. FOR THE DETAILED REASONS GIV EN WHILE DECIDING THE APPEAL OF THE ASSESSEE IN ITA NO. 288/PUN/2 013, THE PROVISIONS OF EXPLANATION 3 ARE NOT ATTRACTED WHERE THE RETURN OF INCOME HAS BEEN FILED IN RESPONSE TO NOTICE ISSUED U/S. 15 3A OF THE ACT. THE FINDINGS GIVEN BY US IN PARAGRAPHS 7 AND 8 ABOVE WOU LD MUTATIS MUTANDIS APPLY IN THE APPEAL OF THE PRESENT ASSESSEE AS WELL. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND THE APP EAL OF THE ASSESSEE IS ALLOWED. 11. IN THE RESULT, ALL THE THREE APPEALS BY THE ASSESSEES ARE ALLOWE D. ORDER PRONOUNCED ON MONDAY, THE 30 TH DAY OF JANUARY, 2017. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 30 TH JANUARY, 2017 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A), AURANGABAD 4. ' / THE CIT, CENTRAL, NAGPUR 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE