PRAMOD DODEJA, MUMBAI V. ITO 21(1)(3), MUMBAI

ITA 3733/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1214 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Earning of tax free income; Source of fund; Revised return
• Section: 143(3); 139(5); 147; 131; 148; 139

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.3733/ MUM/2016 ( / ASSESSMENT YEAR : 2006-07) PRAMOD DODEJA, SHOP NO. 1, KIPWALA COMPOUND, SAKIVIHAR ROAD, POWAI, ANDHERI (E), MUMBAI 400 072. / V. INCOME TAX OFFICER WARD 21(1)(3), BANDRA KURLA COMPLEX, BANDRA, MUMBAI - 400050. ./ PAN : AAQPD3042B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : MR. SUNIL KUMAR AGARWAL, DR / DATE OF HEARING : 11-04-2017 / DATE OF PRONOUNCEMENT :12-04-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER : THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 3733/MUM/2016, IS DIRECTED AGAINST APPELLATE ORDER DATED 21 ST MARCH, 2016 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 38, MUMBAI (H EREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEARS 2006-07, THE APP ELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM PENALTY ORDERS DATE D 27 TH SEPTEMBER, 2013 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTE R CALLED THE AO) U/S 271(1)(C) OF THE INCOME-TAX ACT,1961 (HEREINAFTER C ALLED THE ACT) FOR THE ASSESSMENT YEARS 2006-07. ITA NO. 3733/MUM/2016 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMIN G PENALTY OF RS.1,70,610/- LEVIED BY ASSESSING OFFICER U/S. 271( 1)(C). 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE FA CTS AND CIRCUMSTANCES UNDER WHICH THE APPELLANT HAD FILED ORI GINAL RETURN OF INCOME AND HAD FILED REVISED RETURN OF INCOME BEFOR E RECEIPT OF ANY INQUIRY OR NOTICE U/S.148 FROM THE ASSESSING OFFICER . 3. THE LEARNED CIT (A) FAILED TO CONSIDER THE FACT TH AT THE PENALTY ORDER PASS BY THE ASSESSING OFFICER WAS ONLY ON THE BASIS OF TAX EVASION PETITION AND THE PENALTY ORDER DOES NOT RECORD SATISFACTION OF THE ASSESSING OFFICER THAT ASSESSEE HAS CONCEALED PARTI CULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH I NCOME. 4. THE LEARNED CIT(A) ERRED & IGNORED THE FACT THAT IN PENALTY NOTICE U/S.274 R.W.S.271(1)(C) ISSUED TO THE ASSESSEE THE ASSESSING OFFICER HAS NOT CANCELLED THE SENTENCE 'WHETHER ASSESS EE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURAT E PARTICULARS OF INCOME'. RELIEF CLAIMED IN APPEAL 1. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER B E DIRECTED TO DELETE PENALTY LEVIED U/S. 271(1)(C) OF RS.1,70,610 /-. 2. THE APPELLANT SUBMITS THAT THE ORDER PASSED BY CIT(A ) CONFIRMING THE PENALTY ORDER OF ASSESSING OFFICER BE SET ASIDE AND PENALTY LEVIED BY THE ASSESSING OFFICER BE CANCELLED . 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AS PER AO DID NOT FILED ORIGINAL RETURN OF INCOME WITH JURISDICTIONAL AO NO R FILED REVISED RETURN WITH JURISDICTIONAL AO . THE ASSESSEE CLAIMED THAT HE FI LED ORIGINAL RETURN OF INCOME WITH ITO WARD 2(2), KALYAN DECLARING TOTAL I NCOME OF RS. 2,58,150/- ON 24 TH AUGUST, 2006. THE SAID RETURN OF INCOME WAS REVIS ED BY THE ASSESSEE BY FILING SO CALLED REVISED RETURN OF INCOME ON 28- 02-2011 REVISING INCOME TO RS. 7,65,019/- . INFORMATION WAS RECEIVED BY THE JU RISDICTIONAL AO FROM THE ITO, INVESTIGATION UNIT II, MUMBAI STATING THAT THE MEMBERS OF THE DODEJA ITA NO. 3733/MUM/2016 3 FAMILY HAVE DEPOSITED HUGE CASH IN BANK ACCOUNTS AN D THE SAME WERE NOT SHOWN IN THEIR RETURNS OF INCOME FILED WITH THE REV ENUE. THE CASE WAS REOPENED U/S 147 OF THE ACT BY THE AO . THE NOTICE U/S 148 OF 1961 ACT WAS ISSUED BY THE AO ON 29-03-2012 WHICH WAS SERVED ON THE ASSESSEE ON 30-3- 2012. THE GENESIS OF RE-OPENING BY REVENUE IS DEPOS IT OF RS. 5 LACS IN A BANK ACCOUNT WHICH HAS NOT BEEN DECLARED TO REVENUE. IT IS CLAIMED BY THE ASSESSEE THAT ORIGINAL RETURN OF INCOME WAS FILED O N 24.08.2006 WITH ITO, KALYAN DECLARING INCOME OF RS. 2,58,150/- WHICH WAS REVISED BY FILING RETURN OF INCOME ON 28-02-2011 WHEREIN THE SAID AMOUNT OF RS. 5 LACS WAS DECLARED IN REVISED RETURN AND DUE TAXES AND INTEREST PAID T O REVENUE VOLUNTARILY BEFORE ISSUING OF NOTICE DATED 29-03-2012 U/S 148 O F 1961 ACT BY THE AO. THE REVENUE IS CONTENDING THAT TAX EVASION PETITION WAS FILED AGAINST THE ASSESSEE AND INVESTIGATIONS WERE STARTED AGAINST TH E ASSESSEE SINCE SEPTEMBER 2010 WHICH MADE ASSESSEE FILED THE SO CAL LED REVISED RETURN OF INCOME ON 28-02-2011 WHICH IN ANY CASE IS MUCH BEYO ND THE TIME PRESCRIBED FOR FILING REVISED RETURN OF INCOME AS STIPULATED U /S 139(5) OF 1961 ACT. THE PENALTY U/S 271(1)(C) OF 1961 ACT WAS LEVIED BY THE AO TO THE TUNE OF RS.1,70,610/- ON THE GROUNDS THAT THE ASSESSEE WAS CORNERED AFTER FILING OF TAX EVASION PETITION AGAINST THE ASSESSEE AND START OF INVESTIGATIONS BY REVENUE, AND THE ASSESSEE BEING CORNERED WAS FORCED TO FILE SO CALLED REVISED RETURN OF INCOME WHICH IS BEYOND TIME STIPULATED U/ S 139(5) OF 1961 ACT. THE PENALTY OF RS. 1,70,610/- WAS LEVIED BY REVENUE U/S 271(1)(C) OF 1961 ACT VIDE ORDERS DATED 27-09-2013 WHICH STOOD LATER CONF IRMED BY LEARNED CIT(A) VIDE APPELLATE ORDERS DATED 21-03-2016.. 4. THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBU NAL. NONE APPEARED FOR THE ASSESSEE WHILE THE LEARNED DR HAS PLACED RELIANCE O N THE ORDERS OF LEARNED CIT(A). ITA NO. 3733/MUM/2016 4 5. WE HAVE CONSIDERED THE MATERIAL ON RECORD AS WEL L HEARD LEARNED DR. WE HAVE OBSERVED THAT SIMILAR SITUATION AROSE IN THE C ASE OF ONE OF THE FAMILY MEMBERS OF THE ASSESSEE SH. MURLI DODEJA V. ITO, WH EREIN PENALTY WAS LEVIED BY REVENUE U/S 271(1)(C) WHICH STOOD CONFIRMED BY L EARNED CIT(A) . THE SAID PENALTY WAS DELETED BY TRIBUNAL VIDE ORDERS DATED 1 7-02-2017 IN ITA NO.3847& 3848/MUM/2016 (2017) 79 TAXMANN.COM 102(MU M-TRIB.) WHEREIN ONE OF US(ACCOUNTANT MEMBER) WAS PARTY TO THE SAID ORDER, WHICH ORDER OF THE TRIBUNAL IS REPRODUCED HEREUNDER : 1. THESE TWO APPEALS, FILED BY THE ASSESSEE, BEING ITA NO. 3847/MUM/2016 AND 3848/MUM/2016, ARE DIRECTED AGAIN ST TWO SEPARATE APPELLATE ORDERS BOTH DATED 21ST MARCH, 20 16 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 38, M UMBAI (HEREINAFTER CALLED 'THE CIT(A)'), FOR THE ASSESSMENT YEARS 2005 -06 & 2007-08, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARI SING FROM TWO SEPARATE PENALTY ORDERS BOTH DATED 13TH MAY, 2013 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED 'THE AO') U/S 271(1)(C) OF THE INCOME- TAX ACT,1961 (HEREINAFTER CALLED 'THE ACT') FOR THE ASSESSMENT YEARS 2005-06 & 2007-08. 2. THE COMMON GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF BOTH THE APPEALS FILED WITH THE INCOME-TAX APPELLAT E TRIBUNAL, MUMBAI (HEREINAFTER CALLED 'THE TRIBUNAL') READ AS UNDER ( ONLY DIFFERENCE IN THE AMOUNT): '1. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING PENALTY OF RS.45,900/- (FOR A.Y. 2005-06) (RS. 30,600/- FOR A.Y. 2007- 08) LEVIED BY ASSESSING OFFICER U/S. 271(1)(C). 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE FA CTS AND CIRCUMSTANCES UNDER WHICH THE APPELLANT HAD FILED ORIGINAL RETURN OF INCOME AND HAD FILED REVISED RETURN OF INCOME BEFORE RECEIPT OF ANY INQU IRY OR NOTICE U/S.148 FROM THE ASSESSING OFFICER. 3. THE LEARNED CIT (A) FAILED TO CONSIDER THE FACT THA T THE PE NALTY ORDER PASS BY THE ASSESSING OFFICER WAS ONLY ON THE BASIS OF TAX EVASION PETITION AND THE PENALTY ORDER DOES NOT RECORD SATISFACTION OF THE A SSESSING OFFICER THAT ASSESSEE HAS CONCEALED PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 4. THE LEARNED CIT(A) ERRED & IGNORED THE FACT THAT IN PENALTY NOTICE U/S.274 ITA NO. 3733/MUM/2016 5 R.W.S.271(1)(C) ISSUED TO THE ASSESSEE THE ASSESSIN G OFFICER HAS NOT CANCELLED THE SENTENCE 'WHETHER ASSESSEE HAS CONCEALED THE PA RTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME'. RELIEF CLAIMED IN APPEAL 1. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER BE DIRECTED TO DELETE PENALTY LEVIED U/S. 271(1)(C) OF RS.45,900/- FOR A.Y. 2005- 06 AND RS. 30,600/- FOR A.Y. 2007-08) 2. THE APPELLANT SUBMITS THAT THE ORDER PASSED BY CIT( A) CONFIRMING THE PENALTY ORDER OF ASSESSING OFFICER BE SET ASIDE AND PENALTY LEVIED BY THE ASSESSING OFFICER BE CANCELLED. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS F ILED ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 2,51,293/- ON 9TH AUGUST, 2005. INFORMATION WAS RECEIVED BY THE AO FROM THE ITO, IN VESTIGATION UNIT II, MUMBAI STATING THAT THE MEMBERS OF THE DODEJA FAMIL Y HAVE DEPOSITED HUGE CASH IN BANK ACCOUNTS AND THE SAME WERE NOT SH OWN IN THEIR RETURNS OF INCOME FILED WITH THE REVENUE. THE CASE WAS REOPENED U/S 147 OF THE ACT BY THE AO AFTER OBTAINING SANCTION U /S 151 (1) OF THE ACT FROM JT. COMMISSIONER OF INCOME TAX 21(3), MUMBAI A ND REASONS WERE RECORDED FOR THE REOPENING OF THE ASSESSMENT. NOTIC E DATED 15.3.2012 U/S 148 OF THE ACT WAS ISSUED BY THE AO AND DULY SE RVED UPON THE ASSESSEE. THE ASSESSEE IN RESPONSE TO THE AFORE-STA TED NOTICE SUBMITTED THAT THE ASSESSEE HAS ALREADY RECEIVED NOTICE DATED 19-03-2012 U/S 148 OF THE ACT FROM ASSTT. COMMISSIONER OF INCOME, CIRC LE 2, KALYAN . THE ASSESSEE ALSO SUBMITTED THAT THE ASSESSEE HAS ALREA DY FILED VOLUNTARILY REVISED RETURN OF INCOME ON 28-02-2011 WITH DY. COM MISSIONER OF INCOME TAX, RANGE 2, KALYAN AND PAID THE DUE TAXES DUE ALO NG WITH INTEREST TO THE CREDIT OF CENTRAL GOVERNMENT. SUBSEQUENTLY , TH E RECORDS WERE TRANSFERRED BY ACIT, CIRCLE 2, KALYAN TO THE A.O. O N 30-10-2012 ALONG WITH ALL THE DOCUMENTS SUCH AS REASONS RECORDED AS WELL REPLIES FILED BY THE ASSESSEE. IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS DECLARED INCOME FROM BUSINESS AN D INCOME FROM OTHER SOURCE. IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS. 1,50,000/- IN HIS S.B. ACCOUNT MAI NTAINED WITH UNION BANK OF INDIA , SHAHAD, ULHASNAGAR ON 25TH SEPTEMBE R, 2004. THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE ASSESSEE HAS VOLUNTARILY FILED REVISED RETURN OF INCOME ON 28-02-2011 MUCH BEFORE RECEIPT OF ANY INQUIRY FROM THE A.O. OR NOTICE U/S 148 OF THE ACT DATED 19-03-2012 FROM ACIT, KALYAN AND NOTICE U/S 148 OF THE ACT DATED 29 -03-2012 FROM THE A.O. THE ASSESSEE HAS ALSO SUBMITTED AFFIDAVIT DATE D 21-03-2011 STATING THE FACTS AND CIRCUMSTANCES IN WHICH THE ASSESSEE H AD DEPOSITED THE ITA NO. 3733/MUM/2016 6 CASH OF RS. 1,50,000/- IN HIS BANK ACCOUNT, THE COP Y OF THE AFFIDAVIT WAS SUBMITTED BEFORE THE AO IN RE-OPENING PROCEEDINGS U /S 147 R.W.S. 143(3) OF THE ACT. THE A.O. OBSERVED THAT THE ASSESSEE HAS FILED RETURN OF INCOME ON 28-02-2011 WHICH IS NOT AT ALL A REVISED RETURN AS PER THE PROVISIONS OF SECTION 139(5) OF THE ACT OF 1961 AS THE TIME LIMIT FOR FURNISHING A REVISED RETURN OF INCOME FOR ASSESSMENT YEAR 2005-06 HAS LA PSED ON 31ST MARCH, 2007. THE ASSESSEE HAD FILED ORIGINAL RETURN OF INC OME WITH THE ITO, WARD 21(3)(3) BUT THE ASSESSEE HAD FILED ALLEGED RE VISED RETURN OF INCOME WITH ACIT, CIR. 2, KALYAN. IT WAS OBSERVED BY THE A .O. THAT THE ASSESSEE HAS DEPOSITED AN AMOUNT OF RS. 1,50,000/- IN HIS BA NK ACCOUNT IN SEPTEMBER, 2004 AND STILL DID NOT DECLARE THE SAID INCOME IN THE RETURN OF INCOME WHICH WAS FILED WITH REVENUE ON 09-08-2005. IT WAS OBSERVED BY THE AO THAT DODEJA FAMILY WAS UNDER ENQUIRY AND INV ESTIGATION IN RESPECT OF TAX EVASION PETITION , FROM OCTOBER 2010 AND THUS IT COULD NOT BE SAID THAT REVISED RETURN OF INCOME WAS FILED PRI OR TO THE ENQUIRY AND ISSUE OF NOTICE U/S 148 OF THE ACT.THE AO HELD THAT THE ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.1,50,000/- IN HIS SB A/C IN UNITED BANK OF INDIA , SHAHAD, ULHASNAGAR ON 25-09-2004. IT WAS OBSERVED BY THE AO THAT SINCE THE ASSESSEE HAS FILED A RETURN OF INCOM E ON 28-02-2011 IN WHICH HE HAS DECLARED THE CASH DEPOSIT AS HIS INCOM E FROM OTHER SOURCES, AND REQUESTED TO CONSIDER THE SAME AS A RETURN IN R ESPONSE TO NOTICE U/S 148 OF THE ACT, NO SEPARATE ADDITIONS WERE MADE BY THE AO IN RESPECT OF THE CASH DEPOSITED IN THE BANK ACCOUNT AS THE TOTAL INCOME COMPUTED AS PER THE COMPUTATION IN THE REVISED RETURN WAS TAKEN IN COMPUTATION VIDE ASSESSMENT ORDER DATED 29-11-2012 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT. PENALTY PROCEEDINGS WERE INITIATED BY THE AO BY ISSUE OF NOTICE DATED 29-11-2012 U/S 274 R.W.S. 271 OF THE A CT DATED 29-11-2012 AS THE ASSESSEE HAS FURNISHED INACCURATE PARTICULAR S OF HIS INCOME IN THE RETURN OF INCOME FILED WITH THE REVENUE. IN RESPONS E, THE ASSESSEE FILED AN EXPLANATION VIDE LETTER DATED 18TH MARCH, 2013 W ITH THE AO ON 10-4- 2013, AS UNDER: '1. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS SUBMITTED THAT AS PER ADVICE OF EX-ADVOCATE TAX CONSULTANT THE ASSESSEE H AD DE POSITED CASH IN BANK A/C. AND AS PER THE SAID ADVICE OF EX- TAX CONSULTANT THE ASSESSEE WAS UNDER BONA FIDE IMPRESSION THAT THE SAID CASH DEPOS ITED IS NOT SUBJECT TO INCOME TAX AND THEREFORE SAME WAS NOT INCLUDED IN T HE ORIGINAL RETURN OF INCOME AS FILED WITH INCOME TAX DEPARTMENT. 2. THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR THE ABOVE YEAR BEFORE RECEIPT OF ANY INQUIRY FROM THE ASSESSING OFFICER OR NOTICE U/S 148 WHICH WAS THE RECEIVED BY THE ASSESSEE AFTER FILING THE RETURN OF INCOME. 3. ASSESSEE'S STATEMENT U/S 131 WAS RECORDED BY INCOME TAX OFFICER (INV) IN MAY/JUN 2012 WHICH IS ALSO AFTER FILING RETURN OF I NCOME FOR THE ABOVE YEAR IN ITA NO. 3733/MUM/2016 7 FEBRUARY 2011. 4. THE ASSESSEE HAS FILED VOLUNTARILY REVISED RETURN OF INCOME AND MADE TRUE AND FULL DISCLOSURE OF HIS INCOME IN THE SAID REVIS ED RETURN OF INCOME AND PAID THE TAX DUE TO THE DEPARTMENT ALONG WITH INTEREST P AYABLE U/S 234A/B/C JUST BY THE PIECE AND AVOID PROTECTED LITIGATION WITH IN COME TAX DEPARTMENT. 5. CONSIDERING THE ABOVE FACTS THAT THE ASSESSEE HAS V OLUNTARILY FILED REVISED RETURN OF INCOME AND SAID REVISED RETURN IS REGULAR IZED BY ASSESSING OFFICER NO PENALTY U/S 271(1)(C) IS LEVIABLE.' THE A.O. REJECTED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAS NOT FILED ORIGINAL RETURN OF INCOME U/ S 139(1) OF THE ACT AND HENCE THE ALLEGED REVISED RETURN OF INCOME IS NOT A VALID ONE, AS THE SAME HAS NOT BEEN FILED AS PER PROVISIONS OF SECTION 139 (1) AND 139(5) OF THE ACT AND FURTHER THE TIME LIMIT FOR FILING OF REVISE D RETURN OF INCOME EXPIRED ON 31-03- 2007. IT WAS OBSERVED BY THE A.O. THAT TH E DEPARTMENT STARTED THE ENQUIRY REGARDING THE CASH DEPOSITS BY THE DODE JA FAMILY ON RECEIPT OF TAX EVASION PETITION FROM SEPTEMBER, 2010, WHERE AS THE ALLEGED REVISED RETURN OF INCOME WAS FILED IN FEBRUARY, 201 1 ONLY. THE AO ALSO OBSERVED THAT THE ASSESSEE HAD FILED THE ALLEGED RE VISED RETURN OF INCOME IN FEBRUARY, 2011 WITH ITO, KALYAN WHILE THE ORIGIN AL RETURN OF INCOME WAS FILED IN AUGUST, 2005 WITH ITO, MUMBAI. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS NOT DISCLOSED THE SAID BANK ACCOUN T WITH UNION BANK OF INDIA, SHAHAD , ULHASNAGAR IN THE ORIGINAL RETUR N OF INCOME FILED WITH THE REVENUE. THUS, THE A.O. REJECTED THE CONTENTION S OF THE ASSESSEE THAT THE ASSESSEE HAD DISCLOSED THE SAID INCOME VOLUNTAR ILY BEFORE THE SAME WAS DETECTED BY THE REVENUE. THE ASSESSEE ALSO CONT ENDED THAT HE HAD DEPOSITED CASH OF RS.1,50,000/- IN THE BANK ACCOUNT AND THE SAME HAS NOT BEEN DISCLOSED AS PER THE ADVICE OF THE EX-TAX CONSULTANT , WHICH CONTENTION WAS ALSO REJECTED BY THE A.O. IN VIEW OF THE FACT THAT THE ASSESSEE IS NOW TRYING TO SHIFT THE BLAME ON THE TA X CONSULTANT. THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF T. ASHOK PAI V. CIT [2007] 292 ITR 11/161 TAXMAN 340 WHICH WAS DISTINGUISHED BY THE A.O. AS IN THAT CASE THERE WAS NO ENQUIRY OR DETECTION BY THE DEPARTMENT, BUT WHILE IN THE INSTA NT CASE THERE WAS AN ENQUIRY CARRIED OUT BY THE REVENUE AGAINST THE DODE JA FAMILY. THE ASSESSEE ALSO RELIED UPON THE DECISION OF HON'BLE S UPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS (P.) LTD V. CIT [2012] 348 ITR 306/211 TAXMAN 40/25 TAXMANN.COM 400 HEREIN THE SAID TAX-PAYER FAILED TO DISALLOW THE EXPENSES U/S 40A(7) OF THE ACT , WHILE IN THE INSTANT CASE THE ASSESSE HAD FAILED TO DISCLOSE THE BANK ACCOUNT WHEREIN CASH WAS DEPOSITED AND THE SAID ACCOUNT WAS OPENED PRIOR TO FILING OF THE RETURN OF INCOME WITH THE REVENUE. THE A.O. ACCORDINGLY LEVIE D PENALTY OF RS. 45,900/- BEING 100% OF THE TAX SOUGHT TO BE EVADED U/S 271(1)(C) OF THE ITA NO. 3733/MUM/2016 8 ACT FOR THE ASSESSMENT YEAR 2005-06, VIDE PENALTY O RDER DATED 13-05- 2003 PASSED BY THE AO U/S 271(1)(C) OF THE ACT. 4. AGGRIEVED BY THE PENALTY ORDER DATED 13-05-2013 PAS SED BY THE A.O. U/S 271(1)(C) OF THE ACT , THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AO . THE LEARNED CIT(A) CONFIRMED/SUSTAINED THE PENALTY OF R S. 45,900/- LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT BY HOLDING THAT T HE ASSESSEE FAILED TO PROVE THAT THE EXPLANATION OFFERED BY THE ASSESSEE HAS NOT BEEN SUBSTANTIATED AND THE ASSESSEE HAS FAILED TO PROVE THAT SUCH EXPLANATION WAS BONAFIDE AND ALL THE FACTS RELATING TO THE SAME WERE DISCLOSED BY HIM IN THE RETURN OF INCOME SO FILED BY THE ASSESSE E, VIDE APPELLATE ORDER DATED 21-03-2016 PASSED BY LEARNED CIT(A). THE LEAR NED CIT(A) RELIED UPON THE DECISION OF HON'BLE SUPREME COURT IN THE C ASE OF MAK DATA (P.) LTD. V. CIT [2013] 358 ITR 593/38 TAXMANN.COM 448 AND OTHER DECISIONS WHILE DISMISSING THE APPEAL OF THE ASSESSEE WHILE P ASSING APPELLATE ORDERS DATED 21-03-2016 . 5. AGGRIEVED BY THE APPELLATE ORDER DATED 21-03-2016 P ASSED BY THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 9TH AUGUST, 2005 AND THE SA ID RETURN OF INCOME WAS REVISED BY THE ASSESSEE VOLUNTARILY ON 28-02-20 11. THE ASSESSEE DEPOSITED CASH OF RS. 1,50,000/- IN BANK ACCOUNT MA INTAINED WITH UNION BANK OF INDIA, SHAHAD BRANCH WHICH WAS NOT CONSIDER ED INCOME BY THE ASSESSEE WHILE FILING ORIGINAL RETURN OF INCOME AS PER THE ADVICE OF ADVOCATE EX-TAX CONSULTANT FOR MORE THAN 30 YEARS W HO ADVISED ASSESSEE SAID AMOUNT WAS NOT CHARGEABLE TO TAX. THE ASSESSEE HAD FILED REVISED RETURN OF INCOME ON 28-02-2011 WITH ITO, KA LYAN WHEREIN SAID CASH DEPOSIT OF RS.1,50,000/- WAS INCLUDED AS INCOM E IN THE REVISED RETURN OF INCOME FILED WITH THE REVENUE. IT IS SUBM ITTED THAT THE ASSESSEE IS NOT AN EDUCATED PERSON AND DOES NOT UNDERSTAND T HE COMPLEX INCOME TAX PROCEDURES. IT WAS SUBMITTED THAT THE SAID REVI SED RETURN OF INCOME WAS FILED PRIOR TO ISSUE OF NOTICE U/S 148 OF THE A CT. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD SU BMITTED BONAFIDE EXPLANATIONS AND HENCE THE PENALTY CANNOT BE LEVIED U/S 271(1)(C) OF THE ACT. THE ASSESSEE HAS FILED REVISED RETURN AND THE SAID INCOME WAS DECLARED AND DUE TAXES HAVE BEEN PAID TO THE REVENU E. THUS IT WAS SUBMITTED THAT PENALTY OF RS. 45,900/- LEVIED BY TH E AO U/S 271(1)(C) OF THE ACT AS CONFIRMED BY LEARNED CIT(A) CANNOT BE SU STAINED AND NEED TO BE DELETED. 7. THE LD. D.R., ON THE OTHER HAND RELIED ON THE ORDER S OF AUTHORITIES BELOW. ITA NO. 3733/MUM/2016 9 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO PERUS ED THE MATERIAL AVAILABLE ON RECORD AND CASE LAW'S RELIED UPON BY T HE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE FILED ORIGINAL RETU RN OF INCOME ON 9TH AUGUST, 2005. THE ASSESSEE HELD BANK ACCOUNT WITH U NION BANK OF INDIA, SHAHAD , ULHASNAGAR IN WHICH ASSESSEE HAD DEPOSITED AN AMOUNT OF RS. 1.5 LACS IN CASH WHICH WAS NOT DECLARED AND DISCLOS ED IN THE RETURN OF INCOME ORIGINALLY FILED WITH THE REVENUE ON 09-08-2 005. IT IS THE CONTENTION OF THE ASSESSEE THAT HE RELIED ON THE EX PERT ADVISE OF HIS TAX- CONSULTANT WHO ADVISED HIM THAT THE SAID AMOUNT REC EIVED WAS NOT TAXABLE BEING HIS SHARE IN PROFITS AND INVESTMENT I N DISCONTINUED FAMILY BUSINESS OF PROPERTIES ON REALIZATION OF FUNDS INVE STED IN THE PROPERTIES ON FAMILY SEPARATION . THE ASSESSEE FILED SO CALLED REVISED RETURN OF INCOME ON 28TH FEBRUARY, 2011 WHEREIN SAID CASH DEP OSIT OF RS.1.50 LACS IN UNION BANK OF INDIA, SHAHAD WAS DULY INCLUD ED AS INCOME ALTHOUGH THE PRESCRIBED TIME LIMIT FOR FILING REVIS ED RETURN OF INCOME AS PRESCRIBED U/S 139(5) OF THE ACT HAD LAPSED LONG BA CK ON 31-03-2007. THE SAID SO CALLED REVISED RETURN OF INCOME WAS ALS O NOT FILED BY THE ASSESSEE WITH JURISDICTIONAL AO BUT WITH THE ITO, K ALYAN , BUT SAID SO CALLED REVISED RETURN OF INCOME WAS ADMITTEDLY FILE D PRIOR TO ISSUANCE OF SEPARATE NOTICE'S U/S 148 OF THE ACT BY ITO, KALYAN AND AS WELL BY THE JURISDICTIONAL AO WHICH REMAINED UNCONTROVERTED AND IS AN ADMITTED POSITION BETWEEN THE RIVAL PARTIES AS NOTICES U/S 1 48 OF THE ACT WAS ISSUED BY THE ITO, KALYAN AS WELL JURISDICTIONAL AO ONLY IN THE MONTH OF MARCH 2012 WHILE THE SO CALLED REVISED RETURN OF IN COME WAS FILED EARLIER ON 28-02-2011. IT IS THE SAY OF THE REVENUE THAT TA X EVASION PETITION WAS FILED AGAINST THE ASSESSEE WHICH WAS INVESTIGATED B Y REVENUE SINCE SEPTEMBER 2010 WHICH IS THE MAIN REASON FOR THE ASS ESSEE FILING SO CALLED REVISED RETURN OF INCOME WITH THE REVENUE ON 28-02-2011. IT WAS THE CONTENTION OF THE REVENUE THAT VERY FEW PERCENT AGE OF THE CASES ARE SELECTED FOR SCRUTINY AND HAD THERE BEEN NO TAX EVA SION PETITION FILED AGAINST THE ASSESSEE , THE ASSESSEE WOULD NOT HAD C OME FORWARD TO FILE THE SO CALLED REVISED RETURN OF INCOME ON 28-02-201 1. THUS, IT IS THE CONTENTION OF THE REVENUE THAT THE ALLEGED REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 28- 02-2011 INCLUDING THE SAID U NDISCLOSED INCOME OF RS.1,50,000/- WHICH WAS DEPOSITED IN CASH IN AN UND ISCLOSED BANK ACCOUNT WITH UNION BANK OF INDIA WOULD HAVE NEVER C OME INTO NOTICE OF THE REVENUE AND THERE WOULD HAVE BEEN LOSS OF REVEN UE. MERELY BECAUSE TAX EVASION PETITION IS FILED AGAINST THE TAX- PAYE R DOES NOT MEAN THAT THE TAX-PAYER HAS CONCEALED INCOME OR FURNISHED IN-ACCU RATE PARTICULARS OF INCOME AND IT COULD NOT BE SAID WITH THE CERTAINTY THAT THE REVENUE WILL IN EACH OF SUCH CASES SHALL PROCEED AGAINST THE TAX- P AYER BY RE-OPENING THE CONCLUDED ASSESSMENT IN EACH AND EVERY TAX EVASION PETITION FILED AGAINST THE TAX-PAYER. THE TAX-PAYER CAN ALWAYS COM E FORWARD AND EXPLAIN AND ACCOUNT FOR ITS SOURCES OF INCOME WITH THE RETURN OF INCOME ITA NO. 3733/MUM/2016 10 FILED WITH THE REVENUE. THE TAX-PAYER CAN ALSO COME FORWARD WITH AN EXPLANATION THAT CERTAIN RECEIPTS WERE NOT INCLUDED AS INCOME IN THE RETURN OF INCOME FILED WITH THE REVENUE AS THE SAID RECEIPTS DO NOT BEAR THE CHARACTER OF INCOME WITHIN THE FOUR CORNERS OF CHARGING PROVISIONS OF THE ACT OR THE RECEIPT HAD A CHARACTER OF BEING AN EXEMPT INCOME WITHIN STATUTORY PROVISIONS OF THE ACT OF 1961 . THERE ARE ALSO POSSIBILITIES THAT THE TAX EVASION PETITIONS COULD BE FILED TO CAUSE V ENGEANCE ON THE TAX- PAYER WITH A MALICE TO SEEK REVENGE AND RETRIBUTION AGAINST THE TAX- PAYER. THE FATE OF TAX EVASION PETITION HINGES ON T HE OUTCOME OF AN ENQUIRY AND INVESTIGATION CONDUCTED BY THE REVENUE. THE TAX-PAYER MAY WHEN TAX-EVASION PETITION IS FILED AGAINST HIM ALSO RE-VISIT HIS FINANCIAL DATA FOR THE RELEVANT PERIOD AND IN ORDER TO AVOID UN- NECESSARY AND PROTRACTED LITIGATION WITH REVENUE COME FORWARD TO FILE REVISED COMPUTATION OF INCOME AND PAY TAXES WITH APPLICABLE INTEREST ON SOME ADDITIONAL DISCLOSURE OUT OF CAUTION TO AVOID LITIG ATION. THIS IS A NORMAL AND REASONABLE HUMAN CONDUCT WHICH FALLS WITHIN PRE PONDERANCE OF HUMAN PROBABILITIES . THE ASSESSEE IN THE INSTANT C ASE CAME FORWARD AND FILED SO CALLED REVISED RETURN OF INCOME ON 28-02-2 011 ALBEIT BEYOND STIPULATED TIME U/S 139(5) OF THE ACT OF 1961 WHICH EXPIRED ON 31-03- 2007 BUT BEFORE ISSUANCE OF NOTICE U/S 148 OF THE A CT BY THE REVENUE IN THE MONTH OF MARCH 2012 AS WELL THE ASSESSEE FILED AFFIDAVIT DATED 21- 03-2011 EXPLAINING FACTS AND CIRCUMSTANCES UNDER WH ICH THE SAID CASH OF RS.1,50,000/- WAS DEPOSITED IN HIS BANK ACCOUNT WHICH WAS NOT INCLUDED IN THE RETURN OF INCOME FILED WITH THE REV ENUE WHICH SHOWS AND PROVES BONA-FIDE CONDUCT OF THE ASSESSEE . THE ASSE SSEE HAD SUBMITTED THAT THE SAID RECEIPT OF RS.1,50,000/- WHICH WAS DE POSITED IN CASH IN BANK ACCOUNT WITH UNION BANK OF INDIA, SHAHAD WAS A DVISED TO BE TAX- FREE BY HIS TAX-EXPERT ADVOCATE FOR LAST THIRTY YEA RS .IT IS ALSO SUBMITTED THAT THE ASSESSEE BEING NOT HIGHLY EDUCATED PERSON TRUSTED THE SAID ADVOCATE TAX-EXPERT AND DID NOT INCLUDED THE SAID R ECEIPT OF RS.1,50,000/- IN THE RETURN OF INCOME FILED WITH TH E REVENUE. THE ASSESSEE HAD ALSO FILED AN AFFIDAVIT DATED 21-03-20 11 EXPLAINING THE FACTS AND CIRCUMSTANCES WHEREIN THE SAID INCOME WAS NOT INCLUDED AS INCOME IN THE RETURN OF INCOME ORIGINALLY FILED WIT H THE REVENUE. REVENUE COULD NOT CONTROVERT THE CONTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE TO PROVE THAT THE SAID AFFIDAVIT HAD A FALSE OR UNTRUE AVERMENTS MADE BY THE ASSESSEE. IN OUR CONSIDERED VIEW KEEPING IN VIE W FACTS AND CIRCUMSTANCES OF THE CASE, PENALTY LEVIED U/S 271(1 )(C) OF THE ACT CANNOT BE SUSTAINED UNDER THE AFORE-STATED CIRCUMSTANCES A S THE ASSESSEE HAD CAME FORWARD WITH AN EXPLANATION WHICH IS A REASONA BLE AND BONAFIDE EXPLANATION COMPLYING WITH THE MANDATE OF SECTION 2 71(1)(C) OF THE ACT READ WITH EXPLANATION 1 AND HENCE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT AS CONFIRMED BY LEARNED CIT(A) IS HEREBY ORDERED TO BE DELETED. ITA NO. 3733/MUM/2016 11 THUS, THE ASSESSEE'S APPEAL IN ITA NO. 3847/MUM/201 6 FOR ASSESSMENT YEAR 2005-06 IS ALLOWED . WE ORDER ACCORDINGLY. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E TRIBUNAL IN THE CASE OF MR MURLI DODEJA (SUPRA) , ONE OF THE FAMILY MEMBER OF THE ASSESSEE , WE ARE OF CONSIDERED VIEW THAT PENALTY OF RS. 1,70,610/- LEVI ED BY THE AO U/S 271(1)(C) OF 1961 ACT AND AS CONFIRMED BY LEARNED CIT(A) IS N OT SUSTAINABLE IN THE EYES OF LAW AND IS HEREBY ORDERED TO BE DELETED. WE ORDE R ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 3733/MUM/2016 FOR ASSESSMENT YEAR 2006-07 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH APRIL , 2017. # $% &' 12-04-2017 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 12-04-2017 [ !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. 9 / CIT- CONCERNED, MUMBAI 5. <=( >>?@ , ?@ , $ / DR, ITAT, MUMBAI I BENCH 6. (BC D / GUARD FILE. / BY ORDER, < > //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI