VASWANI TRUST, MUMBAI V. ITO 12(2)(4), MUMBAI

ITA 3005/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5159 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: RAKESH MOHAN
• Keywords: Revised return; Reassessment proceedings
• Section: 147; 148; 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 3005/MUM/18 2005-06 VASWANI TRUST, VASWANI GARDENS, 25, SOBANI ROAD, CUFFE PARADE, MUMBAI [PAN: AAATV6765B] INCOME TAX OFFICER- 12(2)(4), MUMBAI 3006/MUM/18 2006-07 3007/MUM/18 2005-06 VASWANI CHAMBERS, VASWANI GARDENS, 25, SOBANI ROAD, CUFFE PARADE, MUMBAI [PAN: AAAFV7924L] 3008/MUM/18 2006-07 3009/MUM/18 2007-08 VASWANI TRUST, VASWANI GARDENS, 25, SOBANI ROAD, CUFFE PARADE, MUMBAI [PAN: AAATV6765B] APPELLANT BY : SHRI RAKESH MOHAN, AR RESPONDENT BY : SHRI RAJEEV GUBGOTRA, DR DATE OF HEARING : 19-12-2018 DATE OF PRONOUNCEMENT : 01-02-2019 O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE FIVE APPEALS FILED BY TWO DIFFERENT ASSESSEES ARE DIRECTED AGAINST SEPARATE BUT IDENTICAL ORDERS OF THE ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 2 : COMMISSIONER OF INCOME TAX (APPEALS)-28, MUMBAI, BO TH DATED 02-02-2018 AND THEY PERTAIN TO AYS. 2005-06, 2006-07 AND 2007-08. SINCE, THE FACTS ARE IDENTICAL AND ISSUES A RE COMMON IN THESE APPEALS, FOR THE SAKE OF CONVENIENCE ALL THES E APPEALS ARE HEARD TOGETHER AND ARE DISPOSED OF BY THIS CONSOLI DATED ORDER. 2. BOTH OF THE ASSESSEES HAVE TAKEN MORE OR LESS COM MON GROUNDS OF APPEAL FOR ALL THE ASSESSMENT YEARS, CHAL LENGING LEVY OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (ACT). FOR THE SAKE OF BREVITY, GROUNDS RAISED IN ITA NO. 3007/ MUM/2018 FOR THE AY. 2005-06 ARE EXTRACTED BELOW: 1. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED LEVYING PENALTY U/S. 271(1)(C). 2. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT IN THE PRESENT CASE THERE IS NEITHER CONCEALMENT NOR T HE SUBMISSION OF INACCURATE PARTICULARS. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAI LED TO APPRECIATE THAT THE RETURN FILED BY THE ASSESSEE DISCLOSED ALL MATERIAL FACTS OF THE CASE. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N LEVYING PENALTY TWICE FOR THE SAME ISSUE I.E., ON THE ASSESSEE TRUS T AND ON ITS BENEFICIARIES AS WELL. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERR ED IN NOT APPRECIATING AND NOT FOLLOWING THE CASE LAW RELIED UPON BY THE ASSESSEE. ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 3 : 3. BRIEF FACTS OF THE CASE ARE THAT, ASSESSEE IS AN ASS OCIATION OF PERSONS (AOP). THE INCOME OF THE AOP IS ASSESSED IN THE HANDS OF THE MEMBERS AND THERE IS NO TAX LIABILITY ON THE AOP PER SE. THE ASSESSEE HAS RECEIVED INCOME FROM HOUSE PROPERT Y UNDER THREE SEPARATE AGREEMENTS. FIRST AGREEMENT IS A LEAVE AND LICENSE AGREEMENT AND THE SECOND AGREEMENT IS TOWA RDS PROPERTY TAX AND THE THIRD ONE IS FOR MAINTENANCE CHAR GES. ALL THE AMOUNTS RECEIVED ARE DIRECTLY RELATED TO THE PROPERT Y, WHICH IS GIVEN ON RENT. THE INCOME OF THE AOP IS ASSESSED DIRECTLY IN THE HANDS OF THE MEMBERS, SINCE THE DEPARTMENT HAS EXERC ISED THE OPTION U/S. 166 OF THE ACT, CONSEQUENTLY, THERE IS N O TAX LIABILITY ON THE AOP. ASSESSEE HAS FILED ITS RETURN O F INCOME DECLARING RENTAL INCOME ALONG WITH MAINTENANCE CHARGES AND PROPERTY CHARGES RECOVERED UNDER THE HEAD INCOME FR OM HOUSE PROPERTY AND CLAIMED STANDARD DEDUCTION @30% ON TOTAL RECEIPTS. ASSESSMENT HAS BEEN REOPENED U/S. 147 OF TH E ACT, ON THE GROUND THAT INCOME CHARGEABLE TO TAX HAD BEEN ESCAPE D ASSESSMENT ON ACCOUNT OF EXCESSIVE DEDUCTION CLAIMED U /S. 24 TOWARDS EXCESS RECOVERY FROM OUTGOINGS. IN RESPONSE TO NOTICE ISSUED U/S. 148, ASSESSEE HAS FILED ITS RETURN OF INC OME, WITHDRAWING DEDUCTION CLAIMED U/S. 24 TOWARDS EXCESS OF ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 4 : RECOVERY FROM OUTGOINGS. CONSEQUENTLY THE INCOME OF THE AOP BEFORE ALLOCATION TO MEMBERS HAS GONE UP FROM RS. 2,30,66,632/- AS AGAINST INCOME SHOWN IN ORIGINAL RE TURN FILED U/S. 139(1) OF THE ACT AS RS. 2,17,74,217/-. THE ASS ESSMENT HAS BEEN COMPLETED U/S. 143(3) R.W.S.147 OF THE ACT, DETE RMINING TOTAL INCOME AS ADMITTED BY THE ASSESSEE IN ITS RETURN FIL ED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT. 4. THEREAFTER, AO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT, FOR FURNISHING INACCURATE PARTICULARS OF I NCOME IN RESPECT OF COMPUTATION OF INCOME UNDER THE HEAD INCOM E FROM HOUSE PROPERTY. ACCORDINGLY, A SHOW CAUSE NOTICE U/ S. 274 R.W.S. 271(1)(C) DT. 20-03-2013 WAS ISSUED ASKING AS TO WHY PENALTY SHALL NOT BE LEVIED FOR FURNISHING INACCURATE PARTICUL ARS OF INCOME. IN RESPONSE TO NOTICE, THE LD. AR OF THE ASSESS EE APPEARED AND FILED DETAILED SUBMISSIONS VIDE LETTER DT. 03-06- 2013 TO ARGUE THAT ASSESSEE NEITHER CONCEALED ANY INCOM E NOR HAS FURNISHED INACCURATE PARTICULARS OF INCOME, WHICH WARRANTS LEVY OF PENALTY U/S. 271(1)(C) IN RESPECT OF RE-COMP UTATION OF INCOME BY EXCLUDING DEDUCTION CLAIMED TOWARDS EXCESS RECOVERY OF OUTGOINGS U/S. 24 OF THE ACT. THE ENHANCEMENT OF IN COME ALLOCABLE TO MEMBERS OF AOP IS ON ACCOUNT OF CHANGE O F HEAD OF ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 5 : INCOME AS PER WHICH THE ASSESSEES OPINION IS THAT EX CESS RECOVERY OF OUTGOINGS IS CHARGEABLE TO TAX UNDER THE H EAD INCOME FROM HOUSE PROPERTY, WHEREAS THE AO HAS TAKEN A VIEW THAT IT IS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . BUT ALL THE FACTS NECESSARY FOR COMPUTATION OF INCOME HAVE BEEN DISCLOSED IN THE RETURN FILED U/S. 139(1) OF THE ACT AN D ALSO DEDUCTION CLAIMED U/S. 24 TOWARDS EXCESS RECOVERY OF OUTGOINGS HAS BEEN WITHDRAWN IN THE RETURN FILED U/S. 148 OF THE ACT. THEREFORE, THE SAME COULD NOT BE TREATED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME SO AS TO LEVY PENALTY U/S. 271(1)(C) OF THE ACT. 5. THE AO AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE AND ALSO CONSIDERING CERTAIN JUDICIAL PRECE DENTS INCLUDING DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF K.P. MADHUSUDAN VS. CIT [251 ITR 99] (SC) HELD THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND CO NCEALED THE PARTICULARS OF ITS INCOME IN TERMS OF EXPLANATION-1 TO SECTION 271(1)(C) OF THE ACT. THEREFORE, HE OPINED THAT IT IS A FIT CASE FOR LEVYING PENALTY U/S. 271(1)(C) AND ACCORDINGLY LEVI ED PENALTY OF RS. 3,99,356/-, WHICH IS 100% OF TAX SOUGHT TO BE AWAR DED. THE RELEVANT OBSERVATIONS ARE EXTRACTED BELOW: ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 6 : I HAVE GONE THROUGH THE ASSESSEE'S SUBMISSIONS, A ND IT IS SEEN THAT ASSESSEE HAS ACCEPTED THAT THE ORIGINAL RETURN FILE D BY THEM WAS SHOWING INCORRECT INCOME PARTICULARS, WHICH WAS COR RECTED BY THEM IN THE RETURN FILED BY THEM AFTER THEY RECEIVED NOTICE U/S 148 OF I.T.ACT 1961. IT IS CLEAR THAT THE ASSESSEE WAS SHOWING SOM E INCOME UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE ORIGINAL R ETURN WHICH WAS NOT ELIGIBLE UNDER THE SAID HEAD, BUT WAS TO BE TAKEN U NDER THE HEAD 'INCOME FROM OTHER SOURCES'. THIS WAS ACCEPTED BY T HE ASSESSEE WHO FILED RETURN IN RESPONSE TO NOTICE U/S 148 ISSUED, WHEREIN IT HAS TAKEN THE SAID INCOME, WHICH WAS WRONGLY SHOWN UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE ORIGINAL RETURN, TO THE HEAD 'INCOME FROM OTHER SOURCES'. BY SHOWING THE SAID INCOME UNDER TH E HEAD 'INCOME FROM OTHER SOURCES', THE ASSESSEE'S INCOME ON HAND, IS NOW ON THE HIGHER SIDE AS THE CLAIM U/S 24 OF I.TAX ACT 1961, IS NOW NOT AVAILABLE ON THE SAID AMOUNT. HENCE, THE ASSESSEE'S CONTENTIO N THAT THIS IS JUST A CHANGE OF HEAD OF INCOME AND NOT CONCEALMENT AND SU BMISSION OF INACCURATE PARTICULARS IS ABSOLUTELY NOT CORRECT WH ICH IS CLEARLY EVIDENT FROM THE FACT THAT THE TOTAL INCOME NOW WORKS OUT T O RS. 2,30,66,632/- INSTEAD OF RS.2,17,74,217/- SHOWN EARLIER BEFORE DI STRIBUTION TO MEMBERS. BY SHOWING INELIGIBLE INCOME UNDER THE HEA D 'INCOME FROM HOUSE PROPERTY' AND NOT UNDER 'INCOME FROM OTHER SO URCES' THE ASSESSEE WAS WRONGFULLY AND WILLFULLY ENJOYING INCORRECT CLA IM U/S 24 OF I.TAX ACT 1961, THEREBY RENDERING THE PARTICULARS IN ORIGINAL RETURN FILED AS ABSOLUTELY INACCURATE, AND WILLFUL CONCEALMENT OF I NCOME. IT IS PERTINENT TO MENTION HERE THAT THE ASSESSEE AOP FIRST COMPUTE S THE TOTAL INCOME AS PER THE PROVISIONS OF THE ACT AND THEREAFTER, IT MERELY DISTRIBUTES THE PROPORTIONATE SHARES TO ITS MEMBERS IN THEIR RESPEC TIVE SHARING RATIO, WHO, IN TURN, OFFER THESE SHARES FOR TAXATION. IN T HE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S 147 DTD.20-3-2013, THE TOTA L INCOME BEFORE DISTRIBUTION TO MEMBERS IS ASSESSED AT RS. 2,30,66, 632/-. AS AGAINST RS.2,17,74,217/- SHOWN BY THE ASSESSEE IN THE ORIGI NAL RETURN, LEADING TO ENHANCEMENT OF INCOME BY RS. 12,92,4157/-. HAD T HE CASE NOT BEEN REOPENED U/S 148, THE SAID INCOME WOULD HAVE NOT BE EN BROUGHT UNDER THE TAX NET. IT WILL NOT BE AMISS TO SAY THAT HAD T HE CASE NOT BEEN RE- OPENED, THAT THE ASSESSEE'S FURNISHING OF INACCURAT E PARTICULARS WOULD NOT HAVE COME TO LIGHT, AND THE SAID INCOME WOULD H AVE REMAINED CONCEALED. THE ASSESSEE HAS FURNISHED INACCURATE PA RTICULARS IN THE RETURN. THE ASSESSEE'S ACT OF REVISING ITS RETURN B Y ENHANCING ITS TOTAL INCOME BEFORE DISTRIBUTION TO ITS MEMBERS BY RS. 12 ,92,4157/-. ATTRACTS PENAL PROVISIONS OF SECTION 271 (1)( C) AS THE SAID AMOUNT DEPICTS THE PART OF TOTAL INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED AND INACCURATE PARTICULARS FURNISHED. ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 7 : THE ASSESSEE HAS FURTHER SUBMITTED THAT- ....THE AS SESSES IN QUESTION IS AN AOP AND THE TOTAL INCOME OF THE ASSESSEE GETS AL LOCATED I TRANSFERRED TO ITS BENEFICIARIES IN PROPORTION TO THEIR RESPECT IVE SHARES. AFTER THE ALLOCATION THE TOTAL INCOME OF THE AOP BECOMES NIL AND THERE IS NO TAX PAYABLE BY THE ASSESSEE. THEREFORE, ARITHMETICALLY THE COMPUTATION OF PENALTY WOULD RESULT INTO ZERO...THIS SUBMISSION OF THE ASSESSEE IS ALSO NOT ACCEPTABLE AS DISCUSSED BELOW: THE ASSESSEE ITSELF MENTIONED THAT THE ASSESSEE IN QUESTION IS AN AOP AND THAT THE TOTAL INCOME OF THE ASSESSEE GETS ALLO CATED/TRANSFERRED TO ITS BENEFICIARIES IN PROPORTION TO THEIR RESPECTIVE SHARES. IN OTHER WORDS, THE PRIMARY TASK OF COMPUTATION OF THE TOTAL INCOME IN RESPECT OF THE ABOVE ACTIVITY IS IN THE CASE OF THE ASSESSEE AOP A ND NOT IN THE CASE OF THE BENEFICIARIES/MEMBERS TO WHOM MERELY THE SHARES OF TOTAL INCOME ARE ALLOCATED AFTER CALCULATION OF TOTAL INCOME. FO R THE SAKE OF FURTHER CLARITY, THE EXPLANATION 1 TO SECTION 271(1)( C) OF INCOME TAX ACT 1961 IS RE-PRODUCED AS UNDER :- 'EXPLANATION 1 - WHERE IN RESPECT OF ANY FACTS MATE RIAL TO THE COMPUTATION TO THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMM ISSIONER (APPEALS) {OR THE COMMISSIONER} TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS ( NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIA L TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM) THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING T HE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURP OSE OF CLAUSE ( C) OF THIS SUB-SECTION BE DEEMED TO REPRESENT THE INCOME IN RE SPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED.' HENCE, AS PER THE ABOVE EXPLANATION, IT IS SEEN THA T IDENTIFICATION AND PRESENTATION OF PARTICULAR AMOUNT DEPENDING UPON IT S NATURE IS A FACT MATERIAL TO THE COMPUTATION OF TOTAL INCOME OF THE ASSESSEE. IN THIS CASE ALSO, THE PRIMARY RESPONSIBILITY OF PRESENTATION OF SHOWING THE AMOUNT OF 'EXCESS OF RECOVERY FROM OUTGOINGS' UNDER THE HE AD 'INCOME FROM OTHER SOURCES' INSTEAD UNDER HEAD 'INCOME FROM HOUS E PROPERTY' WAS IN THE CASE OF THE ASSESSEE AOP AND NOT ITS MEMBERS, A S THE ASSESSEE FIRST COMPUTES TOTAL INCOME IN ITS CASE AND THEN MERELY A LLOCATES/TRANSFERS TO ITS BENEFICIARIES THEIR SHARES IN PROPORTION TO THE IR SHARING RATIOS. THUS, DEFAULT IS CLEARLY ON THE PART OF THE ASSESSEE AOP WHICH HAS LED TO THESE PENALTY PROCEEDINGS. THIS WOULD BE FURTHER EVIDENT FROM THE EXTRACT OF T HE REPLY RECEIVED FROM THE MEMBERS IN NSE TO THE PENALTY INITIATED U/S 271 (1)(C) AND NOTICE ISSUED TO THEM IN THEIR CASES, WHICH READS AS UNDER :- '.... THE INCOME OF THE ASSESSEE IS ENHANCED CONSEQUE NTIAL TO THE ENHANCEMENT IN THE TOTAL INCOME OF THE AOP. THE MAIN ISSUE IN THIS CASE W AS THAT INCOME OF AOP WAS ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 8 : ORIGINALLY ASSESSED AS INCOME FROM HOUSE PROPERTY. SUBSEQUENTLY, DURING REASSESSMENT PROCEEDINGS, THE SAME WAS ASSESSED UNDE R THE HEAD INCOME FROM OTHER SOURCES. THE GROSS AMOUNT OF INCOME WAS CORRECT LY MENTIONED IN THE ORIGINAL RETURN ALSO. THE ONLY DIFFERENCE IS THAT THE HEAD OF IN COME UNDER WHICH IT WAS ASSESSED NOW IS DIFFERENT. DUE TO THIS AND CONSEQUEN TIAL TO THE SAME, THE INCOME OF THE ASSESSEE, BEING ONE OF THE BENEFICIARIES OF THE SA ID AOP, HAS ALSO BEEN ENHANCED...' IT HAS BEEN ADMITTED BY THE MEMBERS, THAT THEIR INC OME HAS BEEN ENHANCED CONSEQUENTIAL TO THE ENHANCEMENT IN THE TO TAL INCOME OF THE ASSESSEE AOP. THE INCOME OF THE ASSESSEE AOP HAS EN HANCED DUE TO INCLUSION OF THE INCOME OMITTED BY THE ASSESSEE IN ITS RETURN FILED ORIGINALLY. IT HAS ALSO BEEN ADMITTED THAT THE INCO ME OF THE AOP HAS ENHANCED DUE TO REASSESSMENT PROCEEDINGS, WHICH BRO UGHT TO TAX THE ABOVE AMOUNT WHICH HAD ESCAPED ASSESSMENT. FROM THE ABOVE, IT BECOMES AMPLY CLEAR THAT, IN THE CASE OF THE ASSESSEE THE AMOUNT ADDED IN COMPUTING TOTAL INCOME IS RS. 12.92.415/- WHICH, FOR THE PURPOSE OF SEC.271(1)(C) BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED WHICH RESULTS IN TAX SOUGHT TO BE EVADED FOR THE PURPOSES OF LEW OF PENALTY. FROM THE ABOVE, IT IS CLEARLY SEEN THAT IN THE EXPL ANATION FURNISHED DURING PENALTY PROCEEDINGS, THE ASSESSEE HAS NOT ON LY FAILED TO SUBSTANTIATE THE EXPLANATION FURNISHED BY IT BUT AL SO FAILED TO ESTABLISH THAT THE SAID EXPLANATION GIVEN BY IT IS BONA FIDE. IT CAN THUS BE SEEN THAT THE ASSESSEE HAS CLEARLY FURNISHED INACCURATE PARTICULARS OF INCOME AND CONCEALED PARTICULARS OF INCOME IN RESPECT OF F ACTS MATERIAL TO COMPUTING ASSESSEE'S INCOME. IT IS RELEVANT TO MENTION HERE THE STATUTORY POSITI ON WITH REGARD TO THE PENALTY U/S 271(1)( C) AS ON DATE. THE STATUTORY PO SITION ON AND AFTER 1.4.1976 IN VIEW OF THE NEW EXPLANATION-L TO THAT S ECTION IS THAT WHERE, IN RESPECT OF ANY CLAIM, THE ASSESSEE OFFERS NO EXP LANATION OR OFFERS AN EXPLANATION WHICH THE A.O. HAS CONSIDERED TO BE FAL SE OR THE ASSESSEE HAS OFFERED AN EXPLANATION BUT NO MATERIAL OR EVIDE NCE TO SUBSTANTIATE IT, THEN HE SHALL BE DEEMED TO HAVE CONCEALED SUCH INCOME WITHIN THE MEANING OF SECTION 271(1) (C) AND BY THE OPERATION OF THE EXPLANATION, THE ONUS LIES ON THE ASSESSEE TO REBUT SUCH A PRESU MPTION. IN ADDITION TO THE ABOVE STATUTORY POSITION, THE LE GAL PRINCIPLES GOVERNING THE PENALTY U/S 271(1)(C) EMERGE FROM SOME OF THE L ANDMARK DECISIONS OF THE JUDICIAL AUTHORITIES SUCH AS THE FOLLOWING :- A) IN THE CASE OF K.P.MADHUSUDAN VS. CIT 251 ITR 99 (SC) THE APEX COURT HAS HELD THAT IT IS FOR THE ASSESSEE TO PROVE THAT HIS FAILURE TO RETURN THE CORRECT INCOME WAS NOT DUE TO FRAUD OR N EGLIGENCE. IF HE FAILS TO DO SO, HE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF AND CONSEQUENTLY LIABLE FOR PENALTY PROVIDED BY THE SECTION. FURTHER , IN THE CASE OF IT VS. ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 9 : MUSADDILAL RAM BHAROSE (165 ITR 14), THE APEX COURT HAS HELD THAT AFTER INSERTION OF EXPLANATION, THE RESPONSIBILITY OF REBUTTAL LIES ON THE ASSESSEE. B) FURTHER, IN THE JUDGEMENT IN THE CASE OF RAGHU VIRSONI VS. ACIT 258 ITR 239 (RAJ.), THE HON'BLE HIGH COURT HAVE HELD TH AT THE PROVISIONS RELATING TO LEVY OF PENALTY FOR CONCEALMENT OF INCO ME HAVE BEEN MATERIALLY ALTERED W.E.F. APRIL 1, 1976. IT IS NOW CLEARLY POSTULATED THAT WHERE ANY AMOUNT IS ADDED IN COMPUTING THE INCOME O F THE ASSESSEE AND IN THE PENALTY PROCEEDINGS THE ASSESSEE FAILS T O OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE OR WHERE ON FURNISHING AN EXPLANATION HE IS NOT ABLE TO SUBS TANTIATE THE SAME, AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FI DE, THEN FOR THE PURPOSES OF CLAUSE (C)THE SAID ADDITION OR DEDUCTIO N HAS TO BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED. THE ASSESSEE'S ACT OF OMITTING THE SAID INCOME IN T HE ORIGINAL RETURN IS DELIBERATE. IT IS ONLY AFTER DETECTION OF CONCEALED INCOME AND ISSUE OF NOTICE U/S 148 THAT THE ASSESSEE FILED A REVISED RE TURN. REVISING THE RETURN AFTER DETECTION OF CONCEALED INCOME DOES NOT OFFER IMMUNITY FROM PENALTY. RELEVANT FACTS HAVE BEEN NOTED IN ORDER SH EET AND ASSESSMENT ORDER AS STATED ABOVE. THE ASSESSEE HAS ATTEMPTED T O DISTORT AND DILUTE THE ISSUE, BUT CANNOT SUCCEED, AS IN THIS CASE FOR THE REASONS MENTIONED ABOVE AND IN THE ASSESSMENT ORDER, PENALTY U/S 271( 1)(C ) IS ATTRACTED. UPON CAREFULLY CONSIDERING THE SUBMISSION MADE AND AFTER EXAMINING THE ASSESSEE'S CASE IN THE LIGHT OF VARIOUS JUDICIA L PRONOUNCEMENTS AS DISCUSSED ABOVE, I HOLD THAT THE ASSESSEE HAS FURNI SHED INACCURATE PARTICULARS OF INCOME AND CONCEALED THE PARTICULARS OF ITS INCOME BOTH IN TERMS OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT, AND EVEN OTHERWISE, I.E. WITHOUT INVOKING SUCH DEEMING PROVI SIONS, TO THE EXTENT OF RS.20,29,8327-. HENCE, THIS IS A FIT CASE FOR LEVY OF PENALTY U/S 271(1) (C) OF THE ACT. 6. AGGRIEVED BY THE PENALTY ORDER, THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE CIT(A). 7. BEFORE THE CIT(A), ASSESSEE REITERATED ITS SUBMISS IONS MADE BEFORE THE AO TO ARGUE THAT MERE CHANGE OF HEAD OF INCO ME AND CONSEQUENT WITHDRAWAL OF DEDUCTION CLAIMED U/S. 24 OF THE ACT CANNOT BE CONSIDERED AS FURNISHING OF INACCURATE PARTI CULARS OF ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 10 : INCOME, WHICH WARRANTS LEVY OF PENALTY U/S. 271(1)(C ) OF THE ACT. THE ASSESSEE FURTHER SUBMITTED THAT IT HAS BEEN FOLLOWING SIMILAR SYSTEM OF COMPUTATION OF INCOME IN RESPECT OF RENTAL AN D OTHER RECEIPTS FROM PROPERTY, WHICH HAS BEEN ACCEPTED BY TH E DEPARTMENT IN THE PAST. HOWEVER, DURING THE CURRENT FIN ANCIAL YEAR, WHEN THE AO HAS ISSUED 148 NOTICE, THE ASSESSEE HAS WITHDRAWN ITS CLAIM EXCLUDING THE EXCESS OF OUTGOINGS AND CONSEQUENT DEDUCTION CLAIMED U/S. 24 ON SUCH RECOVER IES IN THE RETURN FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. THE ONLY DISPUTE IS WITH REGARD TO HEAD OF INCOME UNDER WH ICH PARTICULAR INCOME IS ASSESSABLE TO TAX, OTHERWISE, ALL PRIMARY FACTS NECESSARY FOR COMPUTATION OF INCOME HAS BEEN DI SCLOSED IN THE RETURN FILED U/S. 139(1) OF THE ACT. THEREFORE, IT IS INCORRECT TO SAY THAT ASSESSEE HAS DELIBERATELY FURNISHED INACCU RATE PARTICULARS OF INCOME, WHICH WARRANTS LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 8. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF A SSESSEE AND ALSO BY FOLLOWING CERTAIN JUDICIAL PRECEDENTS INC LUDING DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE O F CIT VS. ZOOM COMMUNICATION (P.) LTD., (2010) [327 ITR 510] (D EL), AFFIRMED PENALTY LEVIED U/S. 271(1)(C) OF THE ACT BY HOLDING THAT ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 11 : THE ASSESSEE CLAIMED STANDARD DEDUCTION U/S. 24 OF THE ACT IN RESPECT OF MAINTENANCE CHARGES AND OTHER CHARGES CONS IDERING THE SAME AS PART OF RENTAL INCOME, WHICH IS OTHERWISE NOT ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY WHICH IS NOTHING BUT FURNISHING OF INACCURATE PARTICULARS OF IN COME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. ACCORDING LY, THERE IS NO ERROR IN THE FINDINGS OF AO IN LEVYING PENALTY FO R FURNISHING INACCURATE PARTICULARS OF INCOME. THE RELEVANT OBSERV ATIONS OF THE LD. CIT(A) ARE AS UNDER: I HAVE GONE THROUGH THE ASSESSEE'S SUBMISSIONS, AN D IT IS SEEN THAT ASSESSEE HAS ACCEPTED THAT THE ORIGINAL RETURN FILE D BY THEM WAS SHOWING INCORRECT INCOME PARTICULARS, WHICH WAS COR RECTED BY THEM IN THE RETURN FILED BY THEM AFTER THEY RECEIVED NOTICE U/S.148 OF I.T. ACT, 1961. IT IS CLEAR THAT THE ASSESSEE WAS SHOWING SOM E INCOME UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE ORIGINAL R ETURN WHICH WAS NOT ELIGIBLE UNDER THE SAID HEAD, BUT WAS TO BE TAKEN U NDER THE HEAD 'INCOME FROM OTHER SOURCES'. THIS WAS ACCEPTED BY T HE ASSESSEE WHO FILED RETURN IN RESPONSE TO NOTICE U/S.148 ISSUED, WHEREIN IT HAS TAKEN THE SAID INCOME, WHICH WAS WRONGLY SHOWN UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE ORIGINAL RETURN, TO THE HEAD 'INCOME FROM OTHER SOURCES'. BY SHOWING THE SAID INCOME UNDER THE HEAD 'INCOME FROM OTHER SOURCES', THE ASSESSEE'S INCOME ON HAND, IS NOW ON THE HIGHER SIDE AS THE CLAIM U/S.24 OF I.T. ACT, 1961, IS NOW NOT AVAILABLE ON THE SAID AMOUNT. HENCE, THE ASSESSEE'S CONTENTION T HAT THIS IS JUST A CHANGE OF HEAD OF INCOME AND NOT CONCEALMENT AND SU BMISSION OF INACCURATE PARTICULARS IS ABSOLUTELY NOT CORRECT WH ICH IS CLEARLY EVIDENT FROM THE FACT THAT THE TOTAL INCOME NOW WORKS OUT T O RS.2,30,66,632/- INSTEAD OF RS.2,17,74,217/- SHOWN EARLIER BEFORE DI STRIBUTION TO MEMBERS. BY SHOWING INELIGIBLE INCOME UNDER THE HEA D INCOME FROM HOUSE PROPERTY' AND NOT UNDER 'INCOME FROM OTHER SO URCES' THE ASSESSEE WAS WRONGFULLY AND WILLFULLY ENJOYING INCORRECT CLA IM U/S.24 OF IT. ACT, 1961, THEREBY RENDERING THE PARTICULARS IN ORIGINAL RETURN FILED AS ABSOLUTELY INACCURATE, AND WILLFUL CONCEALMENT OF I NCOME. IT IS PERTINENT TO MENTION HERE THAT THE ASSESSEE AOP FIRST COMPUTE S THE TOTAL INCOME ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 12 : AS PER THE PROVISIONS OF THE ACT AND THEREAFTER, IT MERELY DISTRIBUTES THE PROPORTIONATE SHARES TO ITS MEMBERS IN THEIR RESPEC TIVE SHARING RATIO, WHO, IN TURN, OFFER THESE SHARES FOR TAXATION. IN T HE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.147DTD.20.03.2013, THE TOTA L INCOME BEFORE DISTRIBUTION TO MEMBERS IS ASSESSED AT RS. 2,30,66, 632/-, AS AGAINST RS. 2,17,74,217/- SHOWN BY THE ASSESSEE IN THE ORIG INAL RETURN, LEADING TO ENHANCEMENT OF INCOME BY RS.12,92,415/-. HAD THE CASE NOT BEEN REOPENED U/S.148, THE SAID INCOME WOULD HAVE NOT BE EN BROUGHT UNDER THE TAX NET. IT WILL NOT BE AMISS TO SAY THAT HAD T HE CASE NOT BEEN RE- OPENED, THAT THE ASSESSEE'S FAMISHING OF INACCURATE PARTICULARS WOULD NOT HAVE COME TO LIGHT, AND THE SAID INCOME WOULD H AVE REMAINED CONCEALED. THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS IN THE RETURN. THE ASSESSEE'S ACT OF REVISING ITS RETURN BY ENHANCING ITS J TOTAL INCOME BEFORE DISTRIBUTION TO ITS MEMBERS BY RS.12, 92,415/- ATTRACTS PENAL PROVISIONS OF SECTION 271(1) AS THE SAID AMO UNT DEPICTS THE PART OF TOTAL INCOME IN RESPECT OF WHICH PARTICULARS HAV E BEEN CONCEALED AND INACCURATE PARTICULARS FURNISHED........ THE ASSESSEE ITSELF MENTIONED THAT THE ASSESSEE IN QUESTION IS AN AOP AND THAT THE TOTAL INCOME OF THE ASSESSEE GETS ALLO CATED/TRANSFERRED TO ITS BENEFICIARIES TO THEIR RESPECTIVE SHARES. IN OT HER WORDS, THE PRIMARY TASK OF COMPUTATION OF THE TOTAL INCOME IN RESPECT OF THE ABOVE ACTIVITY IS IN THE CASE OF THE ASSESSEE AOP AND NOT IN THE CASE OF THE BENEFICIARIES/MEMBERS TO WHOM MERELY THE SHARES OF TOTAL INCOME ARE ALLOCATED AFTER CALCULATION OF TOTAL INCOME. IT HAS BEEN ADMITTED BY THE MEMBERS, THAT THEIR INC OME HAS BEEN ENHANCED CONSEQUENTIAL TO THE ENHANCEMENT IN THE TO TAL INCOME OF THE ASSESSEE AOP. THE INCOME OF THE ASSESSEE AOP HAS EN HANCED DUE TO INCLUSION OF THE INCOME OMITTED BY THE ASSESSEE IN ITS RETURN FILED ORIGINALLY. IT HAS ALSO BEEN ADMITTED THAT THE INCO ME OF THE AOP HAS ENHANCED DUE TO REASSESSMENT PROCEEDINGS, WHICH BRO UGHT TO TAX THE ABOVE AMOUNT WHICH HAD ESCAPED ASSESSMENT. FROM THE ABOVE, IT BECOMES AMPLY CLEAR THAT, IN THE CASE OF THE ASSESSEE THE AMOUNT ADDED IN COMPUTING TOTAL INCOME IS RS.19 ,05,132/- WHICH, FOR THE PURPOSE OF SEC.271(L) BE DEEMED TO REPRESE NT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED WH ICH RESULTS IN TAX SOUGHT TO BE EVADED FOR THE PURPOSES OF LEVY OF PEN ALTY. 9. LD. AR FOR THE ASSESSEE, AT THE TIME OF HEARING SUB MITTED THAT ON MERITS, THE ISSUE IS COVERED IN FAVOUR OF THE AS SESSEE BY THE DECISION OF THE ITAT, MUMBAI G BENCH IN ONE OF THE ASSESSEES CASES IN ITA NO. 5417/MUM/2016 FOR THE AY . 2007- ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 13 : 08, WHERE THE ITAT UNDER SIMILAR CIRCUMSTANCES HELD T HAT WHEN THE DISPUTE BETWEEN THE PARTIES IS WITH REGARD TO P ROPER HEAD UNDER WHICH THE AMOUNT RECEIVED TOWARDS EXCESS OF R ECOVERY FROM OUTGOINGS IS TO BE ASSESSED, THE SAME CANNOT BE CON SIDERED AS FURNISHING INACCURATE PARTICULARS OF INCOME, WHICH ATTRACTS PENALTY U/S. 271(1)(C) OF THE ACT . LD. AR FURTHER SUBMITTED THAT THE FACTS INVOLVED IN THE PRESENT APPEALS ARE ALSO IDENTICAL TO THE FACTS WHICH HAVE BEEN ALREADY CONSIDERED BY THE TRIBUNAL. THE CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, THEREFORE , THE PENALTY LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT MAY BE DELE TED. THE LD. AR FURTHER REFERRING TO THE ADDITIONAL GROUNDS OF APPEA L TAKEN FIRST TIME BEFORE THE TRIBUNAL, CHALLENGING THE VALIDI TY OF PENALTY ORDERS PASSED BY THE AO IN THE LIGHT OF THE VAGUE NOTI CE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT, SUBMITTED THAT THE AO HAS ISSUED VAGUE NOTICE WITHOUT STRIKING INAPPLICABLE PORTIO NS IN THE NOTICE I.E., WHETHER THE PENALTY HAS BEEN INITIATED F OR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME, WITHOUT APPLICATION OF MIND TO ARRIVE AT A SATISFACTION. THEREFORE, CONSEQUENT PENALT Y PROCEEDINGS BECOME VOID AB INITIO AND LIABLE TO BE QUASHED. IN THIS REGARD HE RELIED UPON THE PLETHORA OF JUDICIAL PR ECEDENTS, ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 14 : INCLUDING DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS (2016) [242 TAXMAN 18 0] (SC). 10. LD. DR ON THE OTHER HAND SUBMITTED THAT IT IS A CLEAR CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME, WH ICH IS EVIDENT FROM THE FACT THAT THE ASSESSEE HAS CLAIMED DEDU CTION U/S. 24 OF THE ACT TOWARDS MAINTENANCE AND OTHER CHARGES ALONG WITH RENTAL INCOME DERIVED FROM PROPERTY UNDER LET WH ICH IS OTHERWISE NOT ALLOWABLE AS PER THE PROVISIONS OF THE AC T. WHEN THE ASSESSMENT HAS BEEN REOPENED TO TAX, EXCESS DEDUCTIO N CLAIMED U/S. 24 TOWARDS MAINTENANCE AND OTHER CHARGES, THE ASSESSEE HAS FILED REVISED RETURN, WITHDRAWING THE CLA IM. IF THE CASE IS NOT REOPENED U/S. 147, THE ASSESSEE WOULD HAV E ESCAPED FROM THE TAX NET IN RESPECT OF EXCESSIVE DEDUCTION CLAIMED U/S. 24. THEREFORE, THERE IS NO MERIT IN THE A RGUMENT OF THE ASSESSEE THAT IT HAS FILED COMPLETE DETAILS IN RESP ECT OF INCOME IN THE RETURN FILED U/S. 139(1) OF THE ACT. 11. AS REGARDS THE ADDITIONAL GROUND TAKEN BY THE ASSES SEE, LD. DR ARGUED THAT THE AO HAS INITIATED PENALTY PROCEEDIN GS FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND WHIC H IS FLOWN FROM THE SATISFACTION ARRIVED AT DURING THE COURSE OF A SSESSMENT PROCEEDINGS, WHERE AO HAS ARRIVED AT A CLEAR SATISFAC TION UNDER ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 15 : WHICH CHARGE, THE PENALTY IS LEVIABLE. THEREFORE, M ERE NON- STRIKING OF INAPPLICABLE PORTION IN THE NOTICE OF THE PE NALTY PROCEEDINGS, MORE PARTICULARLY WHEN THE ASSESSEE HAS FILED ITS EXPLANATION IN REPLY TO NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT CANNOT BE CONSIDERED AS FATAL, WHICH VITIATE WH OLE PROCEEDINGS. 12. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERI AL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF TH E AUTHORITIES BELOW. THE AO LEVIED PENALTY U/S. 271(1 )(C) OF THE ACT, IN RESPECT OF DIFFERENCE BETWEEN INCOME RE-COMP UTED ON THE BASIS OF RETURN FILED U/S. 139(1) OF THE ACT AND RETUR N FILED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT, AS PER WHICH THERE IS A DIFFERENCE BETWEEN INCOME ALLOCABLE TO MEMBERS OF AO P. ACCORDING TO THE AO, ALTHOUGH THE ASSESSEE IS NOT LIAB LE TO PAY TAXES ON ITS INCOME, IN VIEW OF THE SPECIFIC PROVISION S OF SECTION 166, THE FACT REMAINS THAT THE ASSESSEE HAS CLAIMED EX CESSIVE DEDUCTION U/S. 24 OF THE ACT, WHICH RESULTED IN REDUC TION OF INCOME TAXABLE IN THE HANDS OF THE MEMBERS OF AOP. TH EREFORE, HE OPINED THAT IT IS A CLEAR CASE OF FURNISHING INAC CURATE PARTICULARS OF INCOME. WE FIND THAT IDENTICAL ISSUE H AS BEEN CONSIDERED BY THE ITAT, MUMBAI G BENCH IN THE CASE OF ITO VS. ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 16 : VASWANI CHAMBERS IN ITA NO. 5417/MUM/2016 FOR THE AY . 2007-08, WHERE UNDER IDENTICAL SET OF FACTS, THE TRIBUN AL HELD THAT WHEN THE DISPUTE BETWEEN THE ASSESSEE AND THE DEPAR TMENT IS WITH REGARD TO PROPER HEAD UNDER WHICH THE AMOUN T RECEIVED TOWARDS EXCESS OF RECOVERY FROM OUTGOINGS TO BE ASS ESSED AND IT IS ALSO FACT THAT SIMILAR METHOD OF COMPUTING HOUSE PROPERT Y INCOME WAS ACCEPTED IN THE PRECEDING ASSESSMENT YEARS , THERE IS NO REASON FOR THE AO TO ALLEGE THAT ASSESSEE HAS DELIB ERATELY FURNISHED INACCURATE PARTICULARS OF INCOME, SO AS TO EVADE PAYMENT OF TAXES. THE RELEVANT OBSERVATIONS OF THE TRIB UNAL ARE AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECOR D, IN THE ORIGINAL RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE WHILE COMPUTING HOUSE PROPERTY INCOME HAS REDUCED AN AMOU NT OF RS. 1,05,85,862/- FROM THE RENT RECEIVED/RECEIVABLE ON ACCOUNT OF EXCESS OF RECOVERY FROM OUTGOINGS. HOWEVER, IN RESPONSE TO N OTICE ISSUED U/S. 148 OF THE ACT, THE ASSESSEE AGREEING WITH THE VIEW OF THE ASSESSING OFFICER, WITHDREW THE DEDUCTION CLAIMED AND OFFERED THE AMOUNT OF RS. 1,05,85,862/- AS INCOME FROM OTHER SOURCES. THUS, FROM THE AFORESAID FACTS, IT IS CLEAR THAT THE ASSESSEE HAS FURNISHED FULL PARTICULARS OF ITS HOUSE PROPERTY INCOME INCLUDING THE MAINTENANCE CHA RGES RECEIVED BY IT. THIS IS FURTHER VINDICATED FROM THE FACT THAT F ROM THE COMPUTATION OF INCOME OF THE ASSESSEE, THE ASSESSING OFFICER HAVIN G FOUND THAT THE DEDUCTION U/S. 24 OF THE ACT HAS BEEN WRONGLY CLAIM ED, RE-OPENED ASSESSMENT U/S. 147 OF THE ACT. THUS, IT IS EVIDENT , THE DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT IS WITH REGARD TO T HE PROPER HEAD UNDER WHICH THE AMOUNT RECEIVED TOWARDS EXCESS OF RECOVERY FROM OUTGOING IS TO BE ASSESSED. IT IS ALSO A FACT ON R ECORD THAT SIMILAR METHOD FOR COMPUTING HOUSE PROPERTY INCOME WAS ADOP TED BY THE ASSESSEE IN THE PRECEDING ASSESSMENT YEARS AND THE DEPARTMENT HAS ALSO ACCEPTED IT. THUS, ON OVERALL CONSIDERATION OF FACTS AND MATERIAL ON ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 17 : RECORD, WE ARE OF THE OPINION THAT THE ASSESSEE HAS NOT FURNISHED INACCURATE PARTICULARS OF INCOME SO AS TO INVITE TH E RIGOURS OF SECTION 271(1)(C) OF THE ACT. THAT BEING THE CASE, WE DO NO T FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN DELETING THE PENALTY IMP OSED. 13. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH THE VI EW TAKEN BY THE CO-ORDINATE BENCH, WE ARE OF THE CONSIDERE D VIEW THAT MERE CHANGE OF HEAD OF INCOME WHICH RESULTED IN ENHANCEMENT OF INCOME, WHICH IS ALLOCABLE TO MEMBERS OF AOP, CANNOT BE CONSIDERED AS FURNISHING OF INACCURATE PARTI CULARS OF INCOME, WHICH ATTRACTS PENALTY U/S. 271(1)(C) OF THE AC T. THEREFORE, WE DIRECT THE AO TO DELETE PENALTY LEVIED U /S. 271(1)(C) OF THE ACT. 14. THE ASSESSEE HAS TAKEN ADDITIONAL GROUND, CHALLEN GING VALIDITY OF NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT. SINCE, WE HAVE ALREADY DELETED PENALTY LEVIED BY THE AO ON MERITS BY FOLLOWING THE CO-ORDINATE BENCH DECISION IN ASSES SEES GROUP CASES FOR EARLIER YEAR, WE DO NOT DEEM IT TO DECIDE THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE, CHALLENGING THE VALIDITY OF NOTICE AND CONSEQUENT PENALTY ORDER PASSED BY THE AO. HENCE, THE ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE ARE DISMISSED . 15. IN THE RESULT, THIS APPEAL OF ASSESSEE IS PARTLY AL LOWED. ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 18 : 16. SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMM ON IN THE REMAINING APPEALS, AS PER OUR EARLIER DISCUSSION IN ITA NO. 3007/MUM/2018 HEREIN ABOVE, BY FOLLOWING THE CO-ORD INATE BENCH DECISION IN ASSESSEES OWN CASE FOR EARLIER Y EAR, WE DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IN THESE APPEALS ALSO. GROUNDS IN ALL THESE APPEALS ARE PARTLY A7 17. TO SUM-UP, ALL THE APPEALS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST DAY OF FEBRUARY, 2019 SD/- SD/- (SANDEEP GOSAIN) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /MUMBAI; /DATED : ____ FEBRUARY, 2019 TNMM / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 2. #!' / THE RESPONDENT 3. $ % ( ) / THE CIT(A), MUMBAI 4. $ % / CIT, MUMBAI 5. ()* +, , $ .+,$/ , / DR, ITAT, MUMBAI 6. *012 / GUARD FILE $ / BY ORDER, # //TRUE COPY// ITA NOS. 3005, 3006, 3007, 3008 & 3009/MUM/18 : 19 : / $ (DY./ASST. REGISTRAR) $ .+,$/, / ITAT, MUMBAI DETAILS DATE DESIGNATION 1 DRAFT DICTATED ON 23.01.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 24.01.2019 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH OF ORDER 11 DRAFT DICTATION SHEETS IS ENCLOSED YES