WINSMILE INFRASTRUCTURE P. LTD, MUMBAI V. ACIT 8(3), MUMBAI

ITA 2935/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2364 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 29-09-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHUA SARKAR
• Assessee Lawyers: DR K SHIVARAM; RAHUL HAKANI ARS
• Keywords: Question of law; Difference of opinion; Revised return
• Section: 133A; 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH G, MU MBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2935/MUM/2013 (ASSESSMENT YEAR : 2006-2007) M/S WINSMILE INFRASTRUCTURE PVT. LTD., 255, SHARMA ESTATE, S. V. ROAD, JOGESHWARI (WEST), MUMBAI. PAN: AAACW3470D VS. ACIT-8(3), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DR. K.SHIVARAM & RAHUL HAKANI (ARS) REVENUE BY : MS. MAHUA SARKAR ( DR) DATE OF HEARING : 29.09.2016 DATE OF PRONOUNCEMENT : 19.10.2016 O R D E R PER PAWAN SINGH, JM: 1. THIS APPEAL U/S. 253 OF INCOME TAX ACT (,ACT) I S DIRECTED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-38, MUMBAI DATED 21.02.2013 FOR ASSESSMENT YEARS (AY) 2006-07. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE-CO MPANY FILED ITS RETURN OF INCOME FOR RELEVANT AY ON 21.11.2009, DECLARING TOT AL INCOME OF RS.95,530/-. SUBSEQUENTLY, THE ACTION U/S 133A OF THE ACT WAS CA RRIED OUT ON 08.03.2010. AND THE CASE OF ASSESSEE WAS REOPENED. NOTICE U/S 1 48 WAS ISSUED ON 20.10.2010. IN RESPONSE TO THE NOTICE, THE ASSESSEE -COMPANY FILED REVISED RETURN OF INCOME ON 12.08.2011 DECLARING TOTAL INCO ME OF RS. 62,38,023/-. IN THE REVISED RETURN OF INCOME, THE ASSESSEE INCLUDED RS. 45 LAKHS WHICH THE ASSESSEE HAS WRITE OFF IN ITS BOOKS OF ACCOUNT IN A Y 2006-07, THUS THE PENALTY PROCEEDING WAS INITIATED AGAINST THE ASSESS EE AND THE ASSESSING OFFICER (AO) LEVIED THE PENALTY OF RS. 20,67,563/- BEING MINIMUM PENALTY ON ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 2 THE IMPUGNED INCOME SOUGHT TO BE EVADED. AGGRIEVED BY THE ORDER OF AO, ASSESSEE FILED APPEAL BEFORE THE CIT(A). IN THE APP EAL, IT WAS CONTENDED THAT AO LEVIED PENALTY ON RS. 61,42,493/- IN PLACE OF RS . 45 LAKHS. LD. CIT(A) WHILE SUSTAINING THE ORDER OF PENALTY, LD. CIT(A) D IRECTED THE AO TO VERIFY THE FACT AND CORRECT THE SAME AND RE-COMPUTED THE AMOUN T OF PENALTY. THUS, FURTHER AGGRIEVED BY THE ORDER OF CIT(A), THE ASSES SEE FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE AND THE LD DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REV ENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LD AR OF THE ASSESSEE ARGUED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH PROCEEDING. THE ASSESSEE HAS FILED REVISED RETURN OF INCOME ON RECE IPT OF NOTICE U/S 148. THE NOTICE U/S 148 WAS RECEIVED ON 20.10.2010 AND REVIS ED RETURN OF INCOME WAS FILED ON 12.08.2011. THE ASSESSEE-COMPANY ACTED IN BONAFIDE MANNER AND IMMEDIATELY REVISED THE RETURN OF INCOME. THE AO WH ILE INITIATING THE PENALTY HAS NOT SPECIFIED THE CHARGE IN THE NOTICE U/S 274 OF THE ACT, IF THE PENALTY IS LEVIED FOR FILING OF INACCURATE PARTICULAR OR FOR C ONCEALMENT OF INCOME. THE AO HAS ACCEPTED THE RETURN OF INCOME WITHOUT ANY ADDIT ION. LD. AR OF THE ASSESSEE FURTHER RELIED UPON THE DECISION OF CIT VS . MANJUNATH COTTON AND GINNING FACTORY 359 ITR 565 (KARNATAKA) AND FURTHER IN CASE OF CIT VS. S.S.A. MEDOWS (2016) 73 TAXMAN.COM 241 (KARNATAKA) AND FURTHER ARGUED THAT THE SLP AGAINST THE ORDER OF HONBLE HIGH COUR T WAS DISMISSED BY HONBLE APEX COURT. IT WAS FURTHER ARGUED THAT NEIT HER THE AO NOR THE CIT(A) CONSIDERED THE FACT THAT DURING THE COURSE OF SURVE Y PROCEEDING, IT WAS SEEN THAT THE ASSESSEE HAS WRITTEN OFF OF THE COST OF LA ND AMOUNTING TO RS. 45 LAKHS SURRENDERED TO GOVERNMENT AUTHORITIES IN THE BOOKS OF ACCOUNTS IN AY 2006-07. THE COMPENSATION IN RESPECT OF THE SAID LA ND FROM LAND ACQUISITION OFFICER-7, MUMBAI, MUMBAI SUBURBAN DISTRICT WAS REC EIVED IN AY 2010-11 (FY-2009-10). ON THE OTHER HAND, LD. DR FOR THE REV ENUE ARGUED THAT THE ASSESSEE HAS NOT EXPLAINED THE AMOUNT OF COMPENSATI ON RECEIVED BY THE ASSESSEE AND IT WAS ONLY UNEARTHED DURING THE SURVE Y ON 08.03.2010. IN THE ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 3 SURVEY, THE SAID INCOME WAS SURRENDERED BY THE ASSE SSEE. HAD THE SURVEY NOT BEEN CONDUCTED, THE ASSESSEE COULD EASILY CONCE AL THE INCOME OF COMPENSATION. THE LD. DR FOR THE REVENUE FURTHER RE LIED UPON THE DECISION OF HONBLE APEX COURT IN MAK DATA PVT. LTD. VS. CIT IN CIVIL APPEAL NO. 9772 OF 2013. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE P ARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE HAVE SEEN THAT DUR ING THE SURVEY ACTION AT THE BUSINESS PREMISES OF THE ASSESSEE ON 08.03.2010 , THE AUTHORIZED OFFICER NOTICED THAT ASSESSEE RECEIVED AN AMOUNT OF RS. 1,9 1,23,813/- DURING THE AY 2010-11 (FY 2009-10) FROM SPECIAL LAND ACQUISITION OFFICER, MUMBAI AGAINST THE SURRENDER OF LAND PURCHASED BY IT IN THE YEAR 2 006. ON FURTHER VERIFICATION, THE AUTHORIZED OFFICER NOTICED THAT ASSESSEE HAS WR ITTEN OFF OF THE COST OF LAND AMOUNTING TO RS. 45 LAKHS WHICH WAS SURRENDERE D TO THE GOVERNMENT AUTHORITIES IN ITS BOOKS OF ACCOUNTS IN AY 2006-07. WHEN THESE FACTS WERE CONFRONTED, SHRI ABDUL RAHIM S. GHASAWALA ACCEPTED THE MISTAKE AND AGREED TO FILE THE REVISED RETURN. THE REVISED RETU RN FILED BY ASSESSEE WAS ACCEPTED, NO FURTHER ADDITION WAS MADE. INFACT THE COMPENSATION OF LAND WAS RECEIVED IN AY 2010-11. THE ASSESSEE HAS NO OCCASIO N TO OFFER THE AMOUNT WHICH WAS RECEIVED IN FY 2009-10, THE AO TREATED TH IS AMOUNT AS CONCEALED INCOME OF ASSESSEE FOR THE AY 2006-07 AND LEVIED TH E PENALTY. THE AO HAS EVEN NOT APPRECIATED THE ACTUAL DIFFERENCE OF AMOUN T WHILE LEVYING THE PENALTY. 5. THE HONBLE DELHI HIGH COURT IN NEW HOLLAND TRAC TORS (INDIA) PVT. LTD. VS. CIT (2014) 49 TAXMANN.COM 573 (DEL.) HELD AS UNDER: TEST OF BONA FIDE HAS TO BE APPLIED KEEPING IN MIN D THE POSITION AS IT EXISTED, WHEN THE RETURN OF INCOME WAS FILED. THE ACT, I.E. THE I NCOME TAX ACT, IS A COMPLEX LEGISLATION INVOLVING INTRICATE AND OFTEN DEBATABLE LEGAL POSITIONS. THE LEGAL ISSUE INVOLVED MAY RELATE TO PRINCIPLES OF ACCOUNTANCY. I NVARIABLY, ON QUESTIONS OF INTERPRETATION, THE ASSESSEES DO ADOPT A LEGAL POSI TION WHICH THEY PERCEIVED AS MOST BENEFICIAL OR SUITABLE. THIS WOULD NOT BE CONS TRUED AS LACK OF BONA FIDES AS LONG AS THE LEGAL POSITION SO ADOPTED IS NOT PER SE CONTRARY TO THE LANGUAGE OF THE STATUTE OR AN UNDEBATABLE LEGAL POSITION NOT CAPABL E OF A DIFFERENT CONNOTATION AND ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 4 UNDERSTANDING. WHEN TWO LEGAL INTERPRETATIONS WERE PLAUSIBLE AND THERE WAS A GENUINE OR CREDIBLE PLEA, PENALTY FOR CONCEALMENT/F URNISHING OF INACCURATE PARTICULARS, SHOULD NOT AND CANNOT BE IMPOSED. IF T HE VIEW TAKEN BY THE ASSESSEE REQUIRED CONSIDERATION AND WAS REASONABLY ARGUABLE, HE SHOULD NOT BE PENALIZED FOR TAKING THE POSITION. THE TAX STATUTES ARE CONVOLUTE D AND COMPLEX AND THERE CAN BE MANIFOLD OPINIONS ON INTERPRETATION AND UNDERSTANDI NG OF A PROVISION OR THE TAX TREATMENT. IN SUCH CASES, EVEN WHEN THE INTERPRETATION PLACED BY THE REVENUE IS AC CEPTED, PENALTY SHOULD NOT BE IMPOSED IF THE CONTENTION OF THE ASSESSEE WAS PLAUS IBLE AND BONA FIDE. OF COURSE FULL FACTS SHOULD BE DISCLOSED. WHILE APPLYING THE TEST OF BONAFIDE, WE HAVE TO ALSO KEEP IN MIND THAT EVEN BEST OF LEGAL MINDS CAN HAVE DIFFERENCE OF OPINION. IT IS NOT UNCOMMON TO HAVE DISSENTING OPINION ON THE QUESTION OF LAW, IN THE COURTS. 32. ON THE AFORESAID ASPECT, WE WOULD LIKE TO REFER TO THE FOLLOWING OBSERVATIONS OF THE SUPREME COURT IN THE CASE OF RELIANCE PETROPROD UCTS (P.) LTD., (SUPRA):- '10. SECTION 27 1 (1)(C) IS AS UNDER: ''271. FAILURE TO FURNISH RETURNS, COMPLY WITH NOTI CES, CONCEALMENT OF INCOME, ETC.- (1) IF THE ASSESSING OFFICER OR THE COMMISSIO NER (APPEALS) IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT A NY PERSON - ** (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. A GLANCE AT THIS PROVISION WOULD SUGGEST THAT IN OR DER TO BE COVERED, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICU LARS OF HIS INCOME. PRESENT IS NOT THE CASE OF CONCEALMENT OF THE INCOME. THAT IS NOT THE CASE OF THE REVENUE EITHER. HOWEVER, THE LEARNED COUNSEL FOR TH E REVENUE SUGGESTED THAT BY MAKING INCORRECT CLAIM FOR THE EXPENDITURE ON IN TEREST, THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF THE INCOME. AS PER LAW LEXICON, THE MEANING OF THE WORD ''PARTICULAR'' IS A DETAIL OR D ETAILS (IN PLURAL SENSE); THE DETAILS OF A CLAIM, OR THE SEPARATE ITEMS OF AN ACC OUNT. THEREFORE, THE WORD ''PARTICULARS'' USED IN SECTION 271(1)(C) WOULD EMB RACE THE MEANING OF THE DETAILS OF THE CLAIM MADE. IT IS AN ADMITTED POSITI ON IN THE PRESENT CASE THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INC ORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR ANY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE, AT LEAST, PRIMA FACIE, THE ASSESS EE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 5 11. THE LEARNED COUNSEL ARGUED THAT 'SUBMITTING AN INCORRECT CLAIM IN LAW FOR THE EXPENDITURE ON INTEREST WOULD AMOUNT TO GIVING INACCURATE PARTICULARS OF SUCH INCOME'. WE DO NOT THINK THAT SUCH CAN BE THE INTERPRETATION OF THE WORDS CONCERNED. THE WORDS ARE PLAIN AND SIMPLE. IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY ANY STRETCH OF IMAG INATION, MAKING AN INCORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCU RATE PARTICULARS. IN CIT V. ATUL MOHAN BINDAL [(2009) 9 SCC 589] WHERE THIS COU RT WAS CONSIDERING THE SAME PROVISION, THE COURT OBSERVED THAT THE ASSESSI NG OFFICER HAS TO BE SATISFIED THAT A PERSON HAS CONCEALED THE PARTICULA RS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THIS COURT R EFERRED TO ANOTHER DECISION OF THIS COURT IN UNION OF INDIA V. DHARAMENDRA TEXT ILE PROCESSORS [(2008) 13. SCC 369] AS ALSO THE DECISION IN UNION OF INDIA V. RAJASTHAN SPG. & WVG. MILLS [(2009) 13 SCC 448] AND REITERATED IN PARA 13 THAT: (ATUL MOHAN BINDAL CASE [(2009) 9 SCC 589] , SCC P. 597, PARA 13) '13. IT GOES WITHOUT SAYING THAT FOR APPLICABILITY OF SECTION 271 (1)( C), CONDITIONS STATED THEREIN MUST EXIST.' 12. THEREFORE, IT IS OBVIOUS THAT IT MUST BE SHOWN THAT THE CONDITIONS UNDER SECTION 271 (1)(C) MUST EXIST BEFORE THE PENALTY IS IMPOSED. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETUR N FILED BECAUSE THAT IS THE ONLY DOCUMENT, WHERE THE ASSESSEE CAN FURNISH THE P ARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, T HE LIABILITY WOULD ARISE. 13. IN DILIP N. SHROFF V. CIT [(2007) 6 SCC 329] TH IS COURT EXPLAINED THE TERMS 'CONCEALMENT OF INCOME' AND 'FURNISHING INACCURATE PARTICULARS'. THE COURT WENT ON TO HOLD THEREIN THAT IN ORDER TO ATTRACT TH E PENALTY UNDER SECTION 271 (1)( C), MENS REA WAS NECESSARY, AS ACCORDING TO TH E COURT, THE WORD 'INACCURATE' SIGNIFIED A DEHBERATE ACT OR OMISSION ON BEHALF OF THE ASSESSEE. IT WENT ON TO HOLD THAT CLAUSE (III) OF SECTION 271(1) PROVIDED FOR A DISCRETIONARY JURISDICTION UPON THE ASSESSING AUTHORITY, INASMUCH AS THE AMOUNT OF PENALTY COULD NOT BE LESS THAN THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF SUCH CONCEALMENT OF PARTICULARS OF INCOME, BUT IT MAY NO T EXCEED THREE TIMES THEREOF IT WAS POINTED OUT THAT THE TERM 'INACCURATE PARTIC ULARS' WAS NOT DEFINED ANYWHERE IN THE ACT AND, THEREFORE, IT WAS HELD THA T FURNISHING OF AN ASSESSMENT OF THE VALUE OF THE PROPERTY MAY NOT BY ITSELF BE F URNISHING INACCURATE PARTICULARS. 14. IT WAS FURTHER HELD IN DILIP N. SHROFF [(2007) 6 SCC 329] THAT THE ASSESSEE MUST BE FOUND TO HAVE FAILED TO PROVE THAT HIS EXPL ANATION IS NOT ONLY NOT BONA ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 6 FIDE BUT ALL THE FACTS RELATING TO THE SAME AND MAT ERIAL TO THE COMPUTATION OF HIS INCOME WERE NOT DISCLOSED BY HIM. IT WAS THEN HELD THAT THE EXPLANATION MUST BE PRECEDED BY A FINDING AS TO HOW AND IN WHAT MANN ER, THE ASSESSEE HAD FURNISHED THE PARTICULARS OF HIS INCOME. THE COURT ULTIMATELY WENT ON TO HOLD THAT THE ELEMENT OF MENS REA WAS ESSENTIAL 15. IT WAS ONLY ON THE POINT OF MENS REA THAT THE J UDGMENT IN DILIP N. SHROFF V. CIT [(2007) 6 SCC 329] WAS UPSET. IN UNION OF INDIA V. DHARAMENDRA TEXTILE PROCESSORS [(2008) 13 SCC 369] AFTER QUOTING FROM S ECTION 271 EXTENSIVELY AND ALSO CONSIDERING SECTION 271(1)(C), THE COURT C AME TO THE CONCLUSION THAT SINCE SECTION 271 (1)(C) INDICATED THE ELEMENT OF S TRICT LIABILITY ON THE ASSESSEE FOR THE CONCEALMENT OR FOR GIVING INACCURATE PARTIC ULARS WHILE FILING RETURN, THERE WAS NO NECESSITY OF MENS REA. THE COURT WENT ON TO HOLD THAT THE OBJECTIVE BEHIND ENACTMENT OF SECTION 271 (1)( C) READ WITH T HE EXPLANATIONS INDICATED WITH THE SAID SECTION WAS FOR PROVIDING REMEDY FOR LOSS OF REVENUE AND SUCH A PENALTY WAS A CIVIL LIABILITY AND, THEREFORE, WILFU L CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS WAS TH E CASE IN THE MATTER OF PROSECUTION UNDER SECTION 276-C OF THE ACT. THE BAS IC REASON WHY THE DECISION IN DILIP N. SHROFF V. CLT [(2007) 6 SCC 329] WAS OV ERRULED BY THIS COURT IN UNION OF INDIA V. DHARAMENDRA TEXTILE PROCESSORS[(2 008) 13 SCC 369] WAS THAT ACCORDING TO THIS COURT THE EFFECT AND DIFFERE NCE BETWEEN SECTION 271(L)(C) AND SECTION 276-C OF THE ACT WAS LOST SIGHT OF IN D ILIP N. SHROFF V. CLT [(2007) 6 SCC 329] . 16. HOWEVER, IT MUST BE POINTED OUT THAT IN UNION O F INDIA V. DHARAMENDRA TEXTILE PROCESSORS [(2008) 13 SCC 369] NO FAULT WAS FOUND WITH THE REASONING IN THE DECISION IN DILIP N. SHROFF V. CIT [(2007) 6 SCC 329] WHERE THE COURT EXPLAINED THE MEANING OF THE TERMS 'CONCEAL' AND 'I NACCURATE', IT WAS ONLY THE ULTIMATE INFERENCE IN DILIP N. SHROFF V. CIT [(2007 ) 6 SCC 329] TO THE EFFECT THAT MENS REA WAS AN ESSENTIAL INGREDIENT FOR THE PENALT Y UNDER SECTION 271 (1)( C) THAT THE DECISION IN DILIP N. SHROFF V. CIT [(2007) 6 SCC 329] WAS OVERRULED. ** ** ** 18. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, T HERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE, THERE WOULD BE NO QUESTION OF INVITING THE PENALTY UNDER SECTION 27L(L)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF; WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO INACCURATE PARTICULA RS. ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 7 ** ** ** 20. WE DO NOT AGREE, AS THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN, WHICH DETAILS, IN THEMSELVES, WERE NOT FOUND TO BE INACCURATE NOR COULD BE VIEWED AS T HE CONCEALMENT OF INCOME ON ITS PART. IT WAS UP TO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NOT. MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDI TURE, WHICH CLAIM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY' ITSELF WOULD NOT, IN OUR OPINION, ATTRACT THE PENALTY UNDER SECTION 271( 1)(C). IF WE ACCEPT THE CONTENTION OF THE REVENUE THEN IN CASE OF EVERY RET URN WHERE THE CLAIM MADE IS NOT ACCEPTED BY THE ASSESSING OFFICER FOR ANY REASO N, THE ASSESSEE WILL INVITE PENALTY UNDER SECTION 271 (1)( C). THAT IS CLEARLY NOT THE INTENDMENT OF THE LEGISLATURE.' 33. IN VIEW OF THE LEGAL POSITION, WHEN WE EXAMINE THE QUESTION OF BONA FIDE, WE FIND THAT THE ASSESSEE HAD DISCHARGED THE SAID ONUS FUR THE REASONS SET OUT ABOVE. WE ALSO RECORD THAT WHILE EXAMINING THE QUESTION OF BO NAFIDES, WE HAVE TAKEN INTO ACCOUNT THE CONDUCT OF THE APPELLANT ASSESSEE IN DI SCLOSING FULL AND TRUE PARTICULARS IN RETURN OF INCOME AS WELL AS BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. IN THE PRESENT CASE, AS NOT ICED ABOVE, THERE IS NO ALLEGATION THAT FULL DETAILS WITH REGARD TO THE AGR EEMENT, QUANTUM OF RECEIPT, THE FACTUM WHY THE PAYMENT WAS MADE AND ALSO THE FACT T HAT THE RECEIPTS HAD BEEN OFFERED FUR TAXATION IN FOUR SEPARATE ASSESSMENT YE ARS, WERE DULY DISCLOSED AND STATED. WE HAVE NOTED THAT THE APPELLANT ASSESSEE H AD CLAIMED THAT TECHNICAL KNOW-HOW WOULD BE USED FOR THREE YEARS AND, THEREFO RE, CONSIDERATION RECEIVED WAS RELATABLE TO THREE YEARS. WE HAVE REJECTED THE SAID CONTENTION BUT IN CASE THE TERMS OF PAYMENT AND THE AGREEMENT HAD BEEN WORDED DIFFER ENTLY, THE ASSESSEE MAY WELL HAVE SUCCEEDED. IN FACT THE ASSESSEE DID NOT TRY TO DRAFT THE AGREEMENT IN A WAY, WHICH COULD HAVE ENSURED THAT THE AMOUNT RECEIVED W AS BIFURCATED/DIVIDED AS INCOME OF FOUR ASSESSMENT YEARS. 6. CONSIDERING THE ABOVE LEGAL POSITION, AS NO ADDI TION WAS MADE AFTER RE- OPENING OF THE ASSESSMENT. INFACT THE COMPENSATION OF LAND WAS RECEIVED IN AY 2010-11. THE ASSESSEE HAS NO OCCASION TO OFFER T HE AMOUNT WHICH WAS RECEIVED IN FY 2009-10. THOUGH THE ASSESSEE IN THE REPLY OF NOTICE FOR INITIATION OF PENALTY PROCEEDING CLARIFIED THAT DUE TO MISTAKE IN THE P&L A/C FOR THE YEAR ENDING ON 31.03.2006, THE ACCOUNTANT HAS W RITTEN OFF THE ENTIRE LAND I.E. TRANSFER TO WORK-IN-PROGRESS, HOWEVER, THE ASS ESSEE IN REVISED RETURN OF ITA NO.2935/M/2013 M/S WI NSMILE INFRASTRUCTURE PVT. LTD. 8 INCOME HAS SHOWN THE INCOME AND NO FURTHER ADDITION WAS MADE. MOREOVER, THE AO LEVIED THE PENALTY WITHOUT CONSIDERING THE A CTUAL AMOUNT WHICH WAS WRITTEN OFF. AS PER OUR CONSIDERED OPINION, THERE W AS NO CONCEALMENT OF INCOME FOR CLAIMING DEDUCTION WHEN THE ASSESSEE HIM SELF OFFERED THE SAME IN REVISED RETURN OF INCOME. THE ASSESSEE HAS SUFFI CIENTLY EXPLAINED THE FACT IN REPLY OF THE NOTICE OF INITIATION OF PENALTY. AS PER OUR CONSIDERED OPINION, THE ASSESSEE HAS SUFFICIENTLY EXPLAINED. THUS, THE ORDER OF PENALTY IS SET- ASIDE AND BY ACCEPTING THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS A LLOWED. ORDER ANNOUNCED IN OPEN COURT ON 19 TH OF OCTOBER 2 016. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 19/10/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, M UMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/