Shyam Pratap Singh Shekhawat, Ludhiana V. Principal Commissioner of Income Tax-2, Bhopal

ITA 304/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7515 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SB
• Assessment Year: 2010-2011
• Appeal Filed On: 12-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: N D PATWA
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 148; 263; 28; 271(1)(c); 143(3); 244A

Judgement Text

SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.304/IND/2018 ASSESSMENT YEAR 2010-11 SHRI SHYAM PRATAP SINGH SHEKHAWAT VS PR. CIT, ZONAL OFFICE, BHAI BALA CHOWK, BH OPAL 5 TH FLOOR, NOBLE ENCLAVE, LUDHIANA (APPELLANT) (RESPONDENT) PAN ACAPS0740F REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY S/ S HRI ASHISH GOYAL & N.D. PATWA, ADVOCATES DATE OF HEARING 22 .0 5 . 201 9 DATE OF PRONOUNCEMENT 26 .0 7 . 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL RELATING TO ASSESSMENT Y EAR 2010- 11 IS DIRECTED AGAINST THE ORDERS OF LD. PR. COMMIS SIONER OF INCOME TAX -2, BHOPAL (IN SHORT CIT(A)), DATED 28.02.20 18, WHICH IS ARISING OUT OF ORDER U/S 143(3) R.W.S 147 OF THE I NCOME TAX ACT (IN SHORT THE ACT) DATED 30.03.2016 FRAMED BY ITO-4(4 ), BHOPAL. SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 2 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND RETIRED FROM DEFE NCE SERVICES. HE ALSO DERIVES INCOME FROM HOUSE PROPERTY AND INCOME FROM BUSINESS AND PROFESSION. ORIGINAL RETURN OF INCOME WAS FILED ON 29.07.2010 SHOWING INCOME OF RS.3,19,179/- THE CASE WAS REOPEN ED U/S 147 BY ISSUING NOTICE U/S 148 ON 24.03.2015 AND IN PURS UANCE TO SAME, THE ASSESSEE HAS FILED THE RETURN SHOWING INC OME OF RS.7,43,010/- AND ATTACHED THE TAX AUDIT REPORT ALO NG WITH THE RETURN. ASSESSMENT U/S 143(3)/ 147 WAS COMPLETED VI DE ORDER DATED 30.03.2016. ADDITION OF RS. 1,00,000/- WAS MA DE IN THIS ASSESSMENT. NOTICE U/S 263 OF THE INCOME TAX ACT, 1 961 WAS ISSUED BY THE PRINCIPLE COMMISSIONER OF INCOME TAX-2, BHOP AL ON 02.02.2018 FOR THE REASONS THAT THE ASSESSEE IN THE RETURN FILED IN COMPLIANCE TO NOTICE U/S 148 OF THE ACT HAS INCREAS ED HIS INCOME BY RS.4,05,697/- BUT THE ASSESSING OFFICER HAS NOT INITIATED PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT. LD. PCIT ALS O OBSERVED THAT INTEREST OF RS.1,229/- RECEIVED BY THE ASSESSEE U/S 244A ON INCOME TAX REFUND FOR A.Y. 2008-09 HAS BEEN NOT OFFERED F OR TAXATION. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE T HE LD. PCIT FRAMED ORDER U/S 263 OF THE ACT DIRECTING THE LD. A .O TO FRAME THE SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 3 ASSESSMENT DENOVO AS PER THE FINDING GIVEN IN THE O RDER U/S 263 OF THE ACT. 3. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE T RIBUNAL RAISING FOLLOWING GROUNDS OF APPEAL; 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE ORDER PASSED U/S 263 OF THE ACT BY THE PRINCIPLE COMMISSIONER OF INC OME TAX-2, BHOPAL IS UNJUST, UNFAIR AND BAD IN LAW AS T HE REASONS STATED IN THE ORDER ARE NOT PROPER AND SUFFICIENT FOR SETT ING ASIDE THE ASSESSMENT AND THE ORDER PASSED BY THE ASSESSING OF FICER U/S 143(3)/147 OF THE ACT IS NOT ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF REVENUE. 2. THAT UNDER THE CIRCUMSTANCES, THE ORDER U/S 263 PAS SED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX IS BAD IN LAW BECAUSE THE SAME WAS PASSED FOR THE REASON THAT THE ASSESSING O FFICER FAILED TO INITIATE PENALTY PROCEEDINGS DURING ASSESSMENT PROC EEDINGS THOUGH THIS BASIS IS NOT SUFFICIENT FOR SETTING ASIDE THE ASSESSMENT COMPLETED U/S 143(3)/147 OF THE ACT. 3. THAT THE ORDER PASSED U/S 263 IS ALSO NOT CORRECT BECAUSE THE SAME WAS PASSED FOR THE REASON THAT THE ASSESSEE HAS NOT OFFERED THE INTEREST OF RS.1229/- U/S 244A ON INCOME TAX REFUND FOR A.Y.2008-09 THOUGH THE ASSESSEE HAS NOT RECEIVED ANY INTEREST O N SUCH REFUND AS THE SAME WAS NOT REFLECTING IN FORM 26AS. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO URGE, TO ALTER OR TO AMEND ANY OF THE GROUND OF APPEAL ON OR BEFORE THE DATE O F HEARING. 4. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE WAS F AIR ENOUGH TO CONCEDE THAT THE ISSUE RAISED IN THIS APPEAL IS SQU ARELY COVERED SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 4 AGAINST THE ASSESSEE BY THE JUDGMENT OF HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. INDIAN PHARMACEUTICAL S (1980) 123 ITR 0874 WHEREIN THE HONBLE HIGH COURT HELD THAT THE COMMISSIONER WAS RIGHT IN EXERCISING JURISDICTION C ONFERRED ON HIM U/S 263 OF THE ACT AS THE LD. A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS FAILED TO TAKE NOTICE OF THE FACTS ATTR ACTING THE PENALTY U/S 271(1)(C) OF THE ACT WHICH ALTERNATIVELY ENDED IN AN ORDER OF ASSESSMENT BEING ERRONEOUS. 5. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUE D AND SUPPORTING THE ORDER OF LD. PCIT AND ALSO CONTENTIO N MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THROUGH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE ORDER U/S 263 OF THE ACT FRAMED BY LD. PCIT. T HE FACTS IN BRIEF ARE THAT THE ASSESSMENT U/S 143(3) R.W.S. 147 OF TH E ACT WERE4 COMPLETED ON 30.03.2016 ASSESSING INCOME AT RS.11,2 2,890/-. THE CASE WAS REOPENED U/S 148 OF THE ACT FOR MISMATCH B ETWEEN TDS CLAIMED BY THE ASSESSEE AND DATA AVAILABLE AT 26AS. IN COMPLIANCE U/S 148 OF THE ACT THE ASSESSEE FILED REVISED RETUR N OF INCOME AT SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 5 RS.10,22,892/-. ADDITIONS WERE MADE BY LD. A.O BUT HE FAILED TO INITIATE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE A CT. SUBSEQUENTLY LD. PCIT EXERCISING POWER U/S 263 OF THE ACT OBSERV ED THAT THE LD. A.O FAILED TO INITIATE PENALTY PROCEEDINGS U/S 271( 1)(C) OF THE ACT AND ALSO THE ASSESSEE HAS NOT OFFERED THE INTEREST INCOME OF INCOME TAX REFUND FOR TAXATION. ON THE BASIS OF THESE TWO OBSERVATIONS LD. PCIT HELD THE ORDER OF THE LD. A.O AS ERRONEOUS AN D GAVE DIRECTION TO PASS THE ASSESSMENT ORDER AFRESH. 7. NOW WE HAVE TO ADJUDICATE THE ISSUE THAT WHETHER THE FAILURE ON THE PART OF LD. A.O TO INITIATE PENALTY PROCEEDI NGS IS A SUFFICIENT REASON FOR THE LD. PCIT TO PASS AN ORDER U/S 263 OF THE ACT FOR REVISING THE ASSESSMENT ORDER. 8. LD. COUNSEL FOR THE ASSESSEE FAIRLY ACCEPTED THA T THE SIMILAR ISSUE HAS BEEN DECIDED BY THE HONBLE JURISDICTIONA L HIGH COURT IN FAVOUR OF THE REVENUE IN THE CASE OF ACIT V/S INDIA N PHARMACEUTICALS (SUPRA). THE RELEVANT EXTRACT OF THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IS EXTRACTED BELO W; 7. IN CIT V. BHIKAJI DADABHAI AND CO . [1961] 42 ITR 123, THEIR LORDSHIPS OF THE SUPREME COURT WERE CONSIDERING THE PROVISION S OF THE HYDERABAD SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 6 ACT , WHICH WERE SIMILAR TO THE PROVISIONS CONTAINED IN T HE INDIAN I.T. ACT , THEIR LORDSHIPS QUOTED THE VIEW TAKEN BY THE HIGH C OURT : ' THE HYDERABAD INCOME-TAX ACT ALSO USED THE EXPRESSION ' ASSESSMENT' IN DIFFERENT SENSES. IN CERTAIN SECTIONS, FOR INSTANCE SECTIONS 31 AND 39 , THE EXPRESSION IS USED AS IN THE SENSE OF MERE COMPUTAT ION OF INCOME ; IN OTHER SECTIONS IT IS USED IN THE SENSE OF DETERMINATION O F LIABILITY AND IN CERTAIN OTHER SECTIONS IN THE SENSE OF MACHINERY FOR IMPOSI NG LIABILITY AND PROCEDURE IN THAT BEHALF. BY THE FINANCE ACT , 1950, THE HYDERABAD INCOME-TAX ACT WAS EXPRESSLY KEPT ALIVE IN RESPECT OF PERIODS WHIC H INCLUDE THE ASSESSMENT YEAR IN QUESTION FOR PURPOSE S OF LEVY, ASSESSMENT AND COLLECTION OF INCOME-TAX. THE HIGH COURT EXPRES SED THE VIEW THAT THE WORD 'ASSESSMENT' IN SECTION 13(1) INCLUDED THE WHOLE PROCEDURE FOR IMPOSING LIABILITY UPON THE TAXPAYER BUT NOT TO THE PROCEDURE FOR IMPOSING A PENALTY, THEY THOUGHT THAT THE HYDERABAD INCOME-TAX ACT DEALT WITH LIABILITY TO PAY INCOME-TAX AND PENALTY IN DISTINCT PROVISIONS, BOTH RELATING TO IMPOSITION AND RECOVERY AND THAT IF THE LEGISLAT URE HAD INTENDED TO KEEP ALIVE THE HYDERABAD INCOME-TAX ACT FOR ALL PURPOSES INCLUDING THE LEVY OF PENALTY WITH RESPECT TO ANY PARTICULAR YEAR OR YEAR S OF ASSESSMENT, IT COULD HAVE SAID SO IN TERMS CLEAR AND UNAMBIGUOUS INSTEAD OF LIMITING THE OPERATION ONLY TO ' LEVY, ASSESSMENT AND COLLECTION '. IN THE VIEW OF THE HIGH COURT, IMPOSITION OF PENALTY WAS NOT A NECESSARY CO NCOMITANT OR INCIDENT OF THE PROCESS OF ASSESSMENT, LEVY AND COLLECTION OF T AX. THE HIGH COURT PROCEEDED UPON THE VIEW THAT BY SAVI NG THE HYDERABAD INCOME-TAX ACT FOR THE PURPOSES OF LEVY, ASSESSMENT AND COLLECTIO N OF INCOME-TAX, THE ENTIRE PROCEDURE FOR IMPOSING LIABI LITY TO PAY TAX AND FOR COLLECTION OF TAX WAS SAVED, BUT PENALTY NOT BEING TAX, PROVISIONS RELATING TO IMPOSITION OF AND COLLECTION OF PENALTY DID NOT SUR VIVE THE REPEAL OF THE HYDERABAD INCOME-TAX ACT .' SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 7 AND THEREAFTER FOLLOWING THE DECISION IN C. A. ABRAHAM V. ITO [1961] 41 ITR 425 (SC) QUOTED WITH APPROVAL (AT P. 127): 'THE EXPRESSION 'ASSESSMENT' USED IN THESE SECTIONS (PROVISIONS OF CHAPTER IV OF THE INDIAN INCOME-TAX ACT) IS NOT USED MERELY IN THE SENSE OF COMPUTATION OF INCOME AND THERE IS IN OUR JUDGMENT NO GROUND FOR HOLDING THAT WHEN BY SECTION 44 , IT IS DECLARED THAT THE PARTNERS OR MEMBERS OF THE ASSOCIATION SHALL BE JOINTLY AND SEVERALLY LIABLE T O ASSESSMENT, IT IS ONLY INTENDED TO DECLARE THE LIABILITY TO COMPUTATION OF INCOME UNDER SECTION 23 AND NOT TO THE APPLICATION OF THE PROCEDURE FOR DE CLARATION AND IMPOSITION OF TAX LIABILITY AND THE MACHINERY FOR E NFORCEMENT THEREOF...BY SECTION 28 , THE LIABILITY TO PAY ADDITIONAL TAX WHICH IS DESIGNATED PENALTY IS IMPOSED IN VIEW OF THE DISHON EST OR CONTUMACIOUS CONDUCT OF THE ASSESSEE. ' AND ON THIS BASIS ALLOWED THE APPEAL. IT IS, THEREF ORE, CLEAR THAT ACCORDING TO THE VIEW OF THEIR LORDSHIPS OF THE SUPREME COURT THE WORD 'ASSESSMENT' IS NOT USED IN THE INDIAN I.T. ACT IN THE NARROW SENSE OF COMPUTING INCOME ONLY BUT IS USED IN A WIDER PERSPECTIVE AND, THEREF ORE, WHEN PROCEEDINGS FOR ASSESSMENT ARE PENDING BEFORE THE ITO, IF FACTS ATTRACTING THE PROVISIONS OF SECTION 271(1)(A) COME TO HIS NOTICE WHILE PROCEEDING WITH THE ASSESSMENT, IT IS NECESSARY FOR THE ITO TO INVOKE T HE PROVISIONS FOR THE RECOVERY OF PENALTY. 8. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE NOTE AT PAGE 1207 IN KANGA AND PALKHIVALA'S ' THE LAW AND PRACTICE OF IN COME-TAX ', SEVENTH EDN., VOL. I, WHEREIN THE OBSERVATIONS OF THEIR LOR DSHIPS OF THE SUPREME COURT IN C.A. ABRAHAM V. ITO [1961] 41 ITR 425 HAVE BEEN ANALYSED AND IT APPEARS THAT THE LEARNED AUTHOR HAS SUGGESTED THAT TAX AND PENALTY ARE DISTINCT AND DIFFERENT CONCEPTS AND HAS NOTED SOME CASES OF THEIR LORDSHIPS OF THE SUPREME COURT. BUT IN THE PRESENT CASE WE ARE NOT CONCERNED WITH THE OBSERVATIONS IN [1961] 41 ITR 42 5 ABOUT PENALTY BEING SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 8 DESCRIBED AS ADDITIONAL TAX, BUT WE ARE ONLY CONCER NED WITH THE MEANING OF THE WORD 'ASSESSMENT' AND LEARNED COUNSEL FOR TH E ASSESSEE COULD NOT CONTEND THAT THAT VIEW TAKEN BY THEIR LORDSHIPS OF THE SUPREME COURT HAS BEEN GIVEN UP IN SUBSEQUENT DECISIONS. 9. THE DECISION REPORTED IN M. A. ABDUL WAHEED V. C CT [1972] 30 STC 277 ON WHICH RELIANCE HAS BEEN PLACED BY THE TRIBUNAL I S A SALES TAX MATTER. IN THAT DECISION, A DIVISION BENCH OF THE MADRAS HIGH COURT TOOK THE VIEW THAT UNDER SECTION 12(2) OF THE TAMIL NADU GENERAL SALES TAX ACT POWER IS CONFERRED TO MAKE THE ASSESSMENT AND ONCE THE ASSES SMENT IS MADE THE POWER HAS BEEN EXERCISED PROPERLY AS, ACCORDING TO THEIR LORDSHIPS, THE ASSESSMENT COULD NOT BE SET ASIDE ON THE GROUND THA T THE ASSESSING OFFICER OVERLOOKED THE PROVISIONS OF SECTION 12(3) OF THAT ACT AND FAILED TO EXERCISE THE POWER WHILE MAKING THE ASSESSMENT. IN THAT CASE , THEIR LORDSHIPS WERE DEALING WITH THE TAMIL NADU SALES TAX ACT AND IT IS NOT CLEAR AS TO WHAT IS THE SCHEME OF ASSESSMENT IN THAT LAW. SO FAR AS THE I.T. ACT IS CONCERNED, THE SCHEME OF ASSESSMENT AS CONSIDERED BY THEIR LOR DSHIPS OF THE SUPREME COURT IS NOT RESTRICTED TO THE MERE COMPUTATION OF INCOME AND TAX BUT A NUMBER OF OTHER THINGS AND, THEREFORE, IN THE PROCE EDINGS FOR ASSESSMENT IF THE ITO FAILS TO TAKE NOTICE OF THE FACTS ATTRACTIN G THE PROVISIONS CONTAINED IN SECTION 271(1)(A) , IT COULD NOT BE SAID THAT HIS FAILURE TO TAKE NOT ICE OF THE FACTS WHICH WERE BEFORE HIM ATTRACTING THE PROVISIO NS OF SECTION 271(1)(A) DOES NOT AMOUNT TO AN ERROR PREJUDICIAL TO THE INTE RESTS OF THE REVENUE. 10. IT WAS CONTENDED BY LEARNED COUNSEL THAT EVEN I F THE ITO OMITTED TO TAKE NOTE OF THE FACTS ATTRACTING THE PROVISIONS UN DER SECTION 271(1)(A) DURING THE PROCEEDINGS OF ASSESSMENT IT MAY BE THA T SOME ERROR IN THE PROCEEDINGS HAS BEEN COMMITTED. BUT SO FAR A S THE ORDER OF ASSESSMENT IS CONCERNED, ACCORDING TO LEARNED COUNS EL, FAILURE TO TAKE ACTION UNDER SECTION 271(1)(A) COULD NOT BE SAID TO BE AN ERROR IF THE ORDER OF ASSESSMENT OTHERWISE IS FOUND TO BE IN ORDER. TH IS CONTENTION OF LEARNED COUNSEL FOR THE ASSESSEE CANNOT BE ACCEPTED IN VIEW OF THE WIDE MEANING GIVEN TO THE TERM 'ASSESSMENT' AS LAID DOWN BY THEI R LORDSHIPS OF THE SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 9 SUPREME COURT IN THE CASES REFERRED TO ABOVE. IT IS ALSO NOT DISPUTED BEFORE US THAT THE PROCEEDINGS OF ASSESSMENT ARE, NOT ONLY COMPUTATION OF INCOME AND TAX BUT VARIOUS OTHER THINGS WHICH FALL WITHIN THE SCHEME OF CHAP- XIV WHICH TALKS OF PROCEDURE FOR ASSESSMENT. AND IT ALS O COULD NOT BE DISPUTED THAT WHEN SECTION 271(1) TALKS OF 'PROCEEDINGS PENDING' IT WILL INCLUDE THE PROCEEDINGS FOR ASSESSMENT WITHIN THE SCHEME OF CHA P. XIV OF THE ACT, AND THE PROCEEDINGS OF ASSESSMENT UNDER THE SCHEME OF T HIS LAW ULTIMATELY CULMINATING IN AN ORDER OF ASSESSMENT. SECTION 263(1) OF THE ACT READS : ' 263. (1) THE COMMISSIONER MAY CALL FOR AND EXAMIN E THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE INCOME-TAX OFFICER IS ERRONEOUS IN S O FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUS ING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THER EON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSM ENT AND DIRECTING A FRESH ASSESSMENT. ' 11. UNDER THIS PROVISION, JURISDICTION IS CONFERRED ON THE COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING U NDER THIS ACT AND ON SUCH EXAMINATION IF HE FINDS THAT THE ORDER PASSED THEREIN BY THE ITO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, HE MAY REVISE THE ORDER AFTER FOLLOWING THE PROCEDURE PRESCRIBED UNDER THIS PROVISION. IF, THEREFORE, THE ITO DURING THE PENDEN CY OF THE PROCEEDINGS HAS OMITTED TO TAKE NOTICE OF FACTS ATTRACTING SECTION 271(1)(A) OF THE ACT DURING THE PENDENCY OF PROCEEDINGS WHICH ULTIMATELY ENDED IN AN ORDER OF ASSESSMENT, THE ORDER WOULD BE ERRONEOUS AND IN THI S VIEW OF THE MATTER, THE COMMISSIONER WAS RIGHT IN EXERCISING JURISDICTI ON CONFERRED ON HIM UNDER SECTION 263 OF THE ACT. IN THIS VIEW OF THE MATTER, THEREFORE, OUR ANSWER T O THE QUESTION REFERRED TO US IS IN THE NEGATIVE. IN THE CIRCUMSTANCES OF THE CASE PARTIES SHALL BEAR THEIR OWN COSTS. SHYAM PRATAP SINGH SHEKHAWAT ITA NO.304/2018 10 9. FROM GOING THROUGH THE ABOVE REFERRED JUDGMENT A ND EXAMINING THE FACT OF THE INSTANT APPEAL WE FIND TH AT IN THIS CASE ALSO LD. A.O FAILED TO INITIATE THE PENALTY PROCEED INGS U/S 271(1)(C) OF THE ACT TOWARDS THE INCOME CONCEALED BY THE ASSE SSEE. THEREFORE IN OUR CONSIDERED VIEW LD. PCIT WAS RIGHT IN EXERCI SING THE POWER CONFERRED TO HIM U/S 263 OF THE ACT AND SETTING ASI DE THE ASSESSMENT ORDER U/S 143(3) OF THE ACT TREATING IT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGL Y THE GROUNDS RAISED BY THE ASSESSEE ARE LIABLE TO BE DISMISSED. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISS ED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 26 JULY, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER ASSISTANT REGISTRAR, ITAT, INDORE