Sh. Anurag Dalmia, New Delhi V. DCIT, New Delhi

ITA 3807/DEL/2014

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1439 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 30-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Residential status; Search and seizure; Salary income; Reasonable cause; Non compliance
• Section: 142(1); 153A; 201; 13; 22; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.AS. NO.3802 TO 3808/DEL/2014 ASSESSMENT YEARS: 2006-07 TO 2012-13 ANURAG DALMIA, 2 ND FLOOR, INDRAPRAKASH BUILDING, 21, BARAKHAMBA ROAD, NEW DELHI. VS. DCIT, CENTRAL CIRCLE-2, NEW DELHI. TAN/PAN: AADPD 9439P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI V.K. BINDAL, CA, MS. SWEETY KOTHARI, CA & SHRI RINKI SHARMA, CA RESPONDENT BY: SHRI RAJESH KUMAR, SR.D.R. DATE OF HEARING: 17 02 2020 DATE OF PRONOUNCEMENT: 06 05 2020 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEALS HAVE BEEN FILED BY THE ASSESS EE AGAINST SEPARATE IMPUGNED ORDERS OF EVEN DATE, 06.0 5.2014, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)- III, NEW DELHI IN RELATION TO PENALTY PROCEEDINGS U/S.271(1) (B) FOR THE ASSESSMENT YEARS 2006-07, 2007-08, 2008-09, 2009-10 , 2010-11, 2011-12 AND 2012-13. IN ALL THE APPEALS, T HE ASSESSEE HAS CHALLENGED THE LEVY OF PENALTY OF RS.1 0,000/- FOR THE AFOREMENTIONED ASSESSMENT YEARS IN VARIOUS GROU NDS OF APPEAL. SINCE THE FACTS AND ISSUES INVOLVED IN ALL THE APPEALS ARE COMMON ARISING OUT OF IDENTICAL SET OF FACTS, T HEREFORE, I.T.AS. NO.3802 TO 3808/DEL/2017 2 SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN I NDIVIDUAL DERIVING INCOME FROM SALARY, SHORT TERM CAPITAL GAI N AND INCOME FROM OTHER SOURCES. A SEARCH AND SEIZURE ACT ION U/S.132(1) WAS CARRIED OUT IN THE CASE OF THE ASSES SEE ON 20.01.2012 AND IN PURSUANCE OF SUCH ACTION, NOTICES U/S.153A WAS ISSUED ON 17.10.2012 FOR SIX ASSESSMEN T YEARS PRIOR TO THE YEAR IN WHICH SEARCH TOOK PLACE AND AL SO FOR THE YEAR OF SEARCH. IN RESPONSE TO SUCH NOTICES FOR ALL THE IMPUGNED ASSESSMENT YEARS, THE ASSESSEE HAS FILED T HE RETURN OF INCOME DECLARING THE SAME INCOME AS SHOWN IN THE EARLIER RETURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A NOTICE U/S. 142(1) WAS ISSUED TO THE ASSESSEE ON 18.07.2013 REQUIRING THE ASSESSEE TO FILE CERTAI N INFORMATION IN RESPECT OF HSBC BANK ACCOUNT, GENEVA SWITZERLAND. THE RELEVANT CONTENT OF THE NOTICE WHI CH IS COMMON FOR ALL THE YEARS IS REPRODUCED HEREUNDER:- F.NO. ACIT/CC-18/2013-14/75 SH. ANURAG DALMIA, IIND FLOOR, INDRA PRAKASH BUILDING, 21, BARAKHAMBA ROAD, NEW DELHI PAN: AADPD9439D SIR, SUB: ASSESSMENT PROCEEDINGS- REQUISITION OF INFORMA TION U/S. 142(1) OF THE I.T. ACT FOR THE A.YS. 2006-07 TO 201 2-13-REG. I.T.AS. NO.3802 TO 3808/DEL/2017 3 REF: NOTICE U/S 153A DATED 1.7.10.2012, QUESTIONNAI RE DATED 26.11.2012, NOTICE U/S 142(1) ISSUED ON 6.5.2013. KINDLY REFER TO THE SUBJECT MENTIONED ABOVE. 2. AS PER THE INFORMATION AVAILABLE WITH THE DEPART MENT YOU ARE HAVING AN ACCOUNT IN HSBC GENEVA, SWITZERLAND HAVIN G CODE BUPJ3IFIC_PER_ID 5090157548, PROFILE CODE 509144544 8, PROFILE CODE 5091321617, PROFILE CODE 5091312057 & PROFILE CODE 509'310070. 3. IN THIS CONNECTION, IT HAS BEEN LEARNT THAT THE HSBC BANK, SWITZERLAND HAS DECIDED TO SEND THE COPIES OF DOCUM ENTS SUCH AS ACCOUNT OPENING FORM, COPY OF PASS BOOK, TRANSAC TION DETAILS, INSTRUCTIONS FROM ACCOUNTS HOLDERS AND ALERT RECEIV ED BY THEM TO FIVE ACCOUNT HOLDERS IN RESPECT OF ALL THE INDIAN A CCOUNT HOLDERS MAINTAINING ACCOUNT WITH THEM, EITHER AS THE ACCOUN T HOLDER OR AS BENEFICIARY, ACCORDINGLY, AS A FOREIGN BANK ACCO UNT HOLDER IN THE HSBC BANK AT GENEVA/ZURICH, SWITZERLAND, YOU MU ST HAVE RECEIVED ALL THE RELEVANT DETAILS AS MENTIONED SUPR A. THEREFORE, YOU ARE REQUESTED TO FURNISH THE FOLLOWING DETAILS/ EVIDENCES: I) ACCOUNT OPENING FORM IN RESPECT OF FOREIGN BANK ACCOUNT MENTIONED AT PARA 2 ABOVE. II) COMPLETE BANK STATEMENTS, IN ORIGINAL, IN THE F OREIGN BANK MENTIONED AT POINT I) ABOVE, SINCE BEGINNING TILL D ATE. (III) RESIDENTIAL STATUS AS PER THE I.T. ACT AS ON THE DATE OF OPENING OF FOREIGN BANK ACCOUNTS MENTIONED AT POINT I) AND THEREAFTER FOR ALL ASSESSMENT YEARS TILL DATE. 4. IN CASE YOU DO NOT HAVE THE BANK ACCOUNT STATEM ENT, PLEASE FURNISH DULY FILLED UP, SIGNED AND NOTARIZED CONSE NT LETTER SO I.T.AS. NO.3802 TO 3808/DEL/2017 4 THAT WE MAY HELP YOU OBTAIN THE ACCOUNT STATEMENT F ROM BANK. COPY OF THE CONSENT LETTER (2 PAGES) IS ENCLOSED. 5. YOU ARE REQUESTED TO ATTEND THE OFFICE OF THE U NDERSIGNED AT 11:30 AM ON 22.07.2013 ALONG WITH THE ABOVE MENTION ED INFORMATION. NO FURTHER ADJOURNMENT WILL BE GRANTED . THE ABOVE INFORMATION IS REQUIRED U/S.142(1) OF THE INCOME TA X ACT, 1961. PLEASE NOTE, THAT IN CASE OF NON-COMPLIANCE, PENAL PROVISION IN TERMS OF PENALTY/PROSECUTION UNDER THE INCOME TAX A CT, 1961 MAY BE INVOKED. 3. IN RESPONSE TO SUCH NOTICE, THE ASSESSEE FILED H IS REPLY VIDE LETTER DATED 22 ND JULY, 2013 WHICH IS INCORPORATED HEREUNDER: RE: ASSESSMENT YEARS 2006-07 TO 2012-13 P.A. NO. AADPD9438N YOUR NOTICE UNDER SECTION 142(1) AND PROCEEDINGS U/ S 153A OF THE INCOME TAX ACT,1961 I AM IN RECEIPT OF YOUR COMMUNICATION NO. F. NO. AC IT/CC- 18/2013- 14/81 DATED 18.7.2013 REQUIRING ME TO SUBM IT INFORMATION U/S 142(1) OF THE INCOME TAX ACT, 1961 WITH REGARD TO CERTAIN INFORMATIONS CLAIMED TO BE AVAILABLE WIT H THE DEPARTMENT IN RELATION TO ALLEGED ACCOUNTS IN HSBC, GENEVA, SWITZERLAND, AND IS SURPRISED TO NOTE THE CONTENTS THEREOF. IN THIS CONNECTION, I WOULD LIKE TO SUBMIT THAT I H AVE NO CONNECTION WITH ANY OF THE ALLEGED ACCOUNTS AND TRA NSACTIONS DETAILED IN YOUR NOTICE AND DENY THAT ANY OF THESE ACCOUNTS, TRANSACTIONS OR CODES BELONG TO ME. SINCE, THESE TR ANSACTIONS, ACCOUNTS OR CODES DO NOT BELONG TO ME, THERE IS NO QUESTION OF MY RECEIVING ANY INFORMATION FROM HSBC BANKS, SWITZERL AND, OR MY I.T.AS. NO.3802 TO 3808/DEL/2017 5 SUBMITTING ANY OF THE DETAILS CALLED FOR IN YOUR AB OVE REFERRED LETTER, AND ALSO SIGNING ANY CONSENT LETTER IN THIS REGARD. IT IS FURTHER SUBMITTED NO PROCEEDINGS U/S 153A ARE PENDING FOR ASSTT. YEAR 2012-13. 4. THEREAFTER, THE LD. ASSESSING OFFICER ISSUED A S HOW CAUSE NOTICE FOR LEVY OF PENALTY U/S.271(1)(B) AND IN RES PONSE TO WHICH THE ASSESSEE VIDE LETTER DATED 30 TH SEPTEMBER, 2013 HAS SUBMITTED HIS REPLY AS UNDER: I AM SURPRISED TO HAVE RECEIVED YOUR NOTICE NO. AC IT/CC- 2/2013-14/463 DATED 26TH SEPTEMBER, 2013 DELIVERED PERSONALLY IN MY OFFICE AT 5.40 P.M. ON 27TH SEPTEM BER, 2013 REQUIRING ME TO SHOW CAUSE WHY PENALTY SHOULD NOT B E IMPOSED U/S 271(1)(B) OF THE INCOME TAX ACT,1961 FOR ALLEGE D NON COMPLIANCE OF NOTICE U/S. 142(1) OF THE INCOME TAX ACT,1961 DATED 18 TH JULY, 2013 REQUIRED TO BE COMPLIED BY 22 ND JULY, 2013. IT IS INCORRECT TO STATE THAT THE NOTICE DATED 18 TH JULY, 2013 WAS NOT COMPLIED WITH. REPLY TO THE SAID NOTICE DATED 2 2 ND JULY, 2013 (COPY ENCLOSED) WAS SUBMITTED IN YOUR OFFICE ON 23 RD JULY, 2013. PHOTOCOPY OF THIS REPLY WAS PERSONALLY HANDED OVER BY MY REPRESENTATIVE TO YOUR GOODSELF ON 23 RD SEPTEMBER, 2013 IN RESPONSE TO YOUR TELEPHONIC ENQUIRY. STILL YOU HAVE CHOSEN TO SEND THIS NOTICE. THEREFORE, THERE BEING COMPLETE COMPLIANCE OF THE S AID NOTICE, THERE IS NO REASON FOR ISSUE OF NOTICE U/S 271(1)(B ) OF THE INCOME TAX ACT, 1961. YOU ARE, THEREFORE, REQUESTED TO KIN DLY DROP THE PROCEEDINGS AND FILE THE NOTICE. I.T.AS. NO.3802 TO 3808/DEL/2017 6 5. HOWEVER, THE LD. ASSESSING OFFICER LEVIED A PENA LTY OF RS.10,000/- U/S.271(1)(B) ON THE GROUND THAT ASSESS EE HAS NOT FURNISHED THE REQUISITE INFORMATION/DOCUMENT, I .E., COMPLETE BANK STATEMENT AS WELL AS FAILURE TO GIVE CONSENT LETTER. 6. LD. CIT (A) HAS CONFIRMED THE SAID PENALTY AFTER MAKING CERTAIN GENERAL OBSERVATIONS ABOUT HOW THERE WAS IN FORMATION RECEIVED ABOUT UNDISCLOSED BANK ACCOUNTS OPENED ABR OAD AND HELD THAT, SINCE THERE WAS AN INFORMATION THAT ASSE SSEE WAS ENGAGED IN SUSPECTED TAX EVASION BY TRANSFERRING OR KEEPING FUNDS OVERSEAS IN AN ILLICIT MANNER AND ASSESSEE WA S ONE OF THE SUSPECTED PERSON HAVING OPEN AND MAINTAINED UNDISCLOSED OVERSEAS BANK ACCOUNT AND THEREFORE HE WAS REQUIRED TO SIGN CONSENT FORM TO VERIFY THE ALLEGAT ION. FURTHER, IT WAS A DUTY OF THE ASSESSEE AS A CITIZEN OF INDIA TO COOPERATE AND JOIN THE INVESTIGATION AND JEOPARDY IS CAUSED TO THE ASSESSEE. FURTHER, THE PURPOSE OF LEVY OF PENALTY U /S. 271(1)(B) IS TO ENSURE COMPLIANCE TO INVESTIGATION AND THUS FAILURE TO SEND THE CONSENT FORM WITHOUT ANY REASON ABLE CAUSE ENTAILS LEVY OF PENALTY. 7. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. VIN OD BINDAL SUBMITTED THAT HERE IN THIS CASE, FIRST OF ALL, IN THE QUANTUM PROCEEDINGS ADDITION STANDS DELETED FROM THE STAGE OF THE TRIBUNAL, WHEREIN THE TRIBUNAL HAS HELD THAT THE AD DITIONS MADE IN THE ASSESSMENTS PASSED U/S.153A/143(3) ARE NOT SUSTAINABLE AS THE SAME WAS BEYOND THE SCOPE OF PRO CEEDINGS I.T.AS. NO.3802 TO 3808/DEL/2017 7 U/S.153A. THE TRIBUNAL HAS GIVEN A VERY CATEGORICAL FINDING THAT NO MATERIAL OR EVIDENCE WAS FOUND EITHER DURIN G THE COURSE OF SEARCH OR LATER THAT ASSESSEE WAS HAVING ANY BANK ACCOUNT WITH HSBC, GENEVA SWITZERLAND. EVEN IN THE STATEMENT RECORDED U/S.132(4), THE ASSESSEE HAS NOT ONLY CATEGORICALLY DENIED THAT HE HAS NEVER MAINTAINED A NY BANK ACCOUNT IN HSBC, GENEVA SWITZERLAND BUT ALSO DURING THE COURSE OF THE ENTIRE ASSESSMENT PROCEEDINGS OR INVE STIGATION PROCEEDINGS NO SUCH DOCUMENTS WAS SHOWN OR PRODUCED THAT ASSESSEE WAS HAVING ANY BANK ACCOUNT WITH HSBC BANK GENEVA SWITZERLAND. REGARDING THE DETAILS OF INFORM ATION AS MENTIONED IN THE ASSESSMENT ORDER, MR. BINDAL SUBMI TTED THAT FROM THE BARE PERUSAL OF THE DOCUMENT, IT CAN BE SEEN THAT THERE IS NO MENTION ABOUT HSBC BANK, GENEVA SWITZERLAND, AND THEREFORE, THE INFORMATION AVAILAB LE WITH THE DEPARTMENT PRIOR TO THE DATE OF SEARCH WAS IRRELEVA NT. EVEN DURING THE COURSE OF SEARCH, NO MATERIAL OR EVIDENC E WAS FOUND TO REBUT THE STAND TAKEN BY THE ASSESSEE AND DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS ALSO ASSES SEE HAS REITERATED THE SAME STATEMENT THAT HE HAS NOT MAINT AINED ANY SUCH BANK ACCOUNT NOR HE WAS CONFRONTED WITH ANY SU CH MATERIAL. THUS, EVEN THE STATEMENT CANNOT BE SAID T O BE INCRIMINATING AGAINST THE ASSESSEE. ONCE, ASSESSEE DID NOT HAD ANY SUCH INFORMATION OR MATERIAL, THEN WHERE TH E QUESTION OF NON COMPLIANCE OF THE NOTICE U/S. 142(1 ). 8. MR. BINDAL FURTHER SUBMITTED THAT WHAT IS CONTEM PLATED IN SECTION 142(1) IS THAT, FOR THE PURPOSE OF MAKIN G THE I.T.AS. NO.3802 TO 3808/DEL/2017 8 ASSESSMENT, ASSESSING OFFICER MAY REQUIRE THE ASSES SEE TO PRODUCE OR CALL TO PRODUCE SUCH DOCUMENT OR ACCOUNT AS ASSESSING OFFICER MAY REQUIRE OR TO FURNISH IN WRIT ING OR VERIFY IN THE PRESCRIBED MANNER, THE INFORMATION IN SUCH F ORM AS ASSESSING OFFICER MAY REQUIRE. THE ASSESSEE CAN ONL Y PRODUCE OR FILE ANY DOCUMENTS WHICH ARE AVAILABLE WITH THE ASSESSEE AND HE CANNOT PRODUCE OR CAUSE TO PRODUCE ANY SUCH DOCUMENT WHICH IS NOT IN HIS POSSESSION OR IN HIS K NOWLEDGE. IN FACT, ASSESSEE FROM THE DAY ONE HAS DENIED THE D OCUMENT SO WHERE IS THE QUESTION OF ANY DEFAULT ON THE PART OF THE ASSESSEE. IN SO FAR AS NOTICE U/S.142(1) IS CONCERN ED, THE ASSESSEE HAS DULY COMPLIED WITH BY SUBMITTING THE L ETTER, (WHICH HAS BEEN REPRODUCED HEREINABOVE) AND FROM BA RE PERUSAL OF THE SAID LETTER, IT COULD BE SEEN THAT A SSESSEE HAS DULY INFORMED THAT HE HAS NO CONNECTION WITH ANY OF THE ALLEGED ACCOUNT AND THE TRANSACTION MENTIONED IN TH E NOTICE. THERE IS NO FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE NOTICE U/S. 142(1) AS SENT BY THE ASSESSING OFF ICER. 9. OTHER CONTENTION RAISED BY THE LD. COUNSEL WAS THAT, HERE THE SCOPE OF INQUIRY OR ADDITION AS PER THE PR INCIPLE LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT WAS T O DONE ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND OR SE IZED DURING THE COURSE OF SEARCH. ONCE, THERE IS A CATEGORICAL FINDING BY THE TRIBUNAL THAT THERE WAS NO INCRIMINATING MATERI AL OR EVIDENCE WHATSOEVER FOUND DURING THE COURSE OF SEAR CH, THEN THE SCOPE OF ANY INQUIRY IS LIMITED TO SUCH MATERIA L OR EVIDENCE FOR THE PURPOSE OF MAKING THE ASSESSMENT. THUS, I.T.AS. NO.3802 TO 3808/DEL/2017 9 UNDER NO CIRCUMSTANCES THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE FOR COMPLYING WITH THE NOTICE U/S 142( 1). 10. LASTLY, HE SUBMITTED THAT THERE WAS A BONA FIDE AND REASONABLE CAUSE IN TERMS OF SECTION 273B; FIRSTLY, BECAUSE NEITHER DURING THE COURSE OF PENALTY PROCEEDINGS NO R AT THE TIME OF SEARCH ASSESSEE WAS EVER CONFRONTED WITH AN Y SPECIFIC INFORMATION THAT ASSESSEE HAD ANY ACCOUNT IN HSBC, GENEVA SWITZERLAND. SECONDLY, ASSESSEE FROM THE DAY ONE HA S CATEGORICALLY DENIED MAINTAINING ANY BANK ACCOUNT A ND ONCE ASSESSEE HAS DENIED HAVING ANY BANK ACCOUNT THEN TH ERE WAS NO QUESTION OF SIGNING ANY WAIVER FORM. UNDER THESE CIRCUMSTANCES, IF ASSESSEE HAS NOT SIGNED THE CONSE NT WAIVER THEN THERE IS A REASONABLE CAUSE THAT HE WAS REQUIR ED TO DO SO. THE LD. COUNSEL SUBMITTED THAT EVEN TILL DATE T HE REVENUE COULD NOT PRODUCE ANY INFORMATION OR DOCUMENT SHOWI NG THAT ASSESSEE WAS MAINTAINING ANY BANK ACCOUNT WITH HSBC GENEVA SWITZERLAND ALMOST 9 YEARS HAVE LAPSED. ONCE THERE IS NO SUCH INFORMATION AVAILABLE WITH THE ASSESSING OF FICER ARRIVED FROM THE DATE OF SEARCH TILL DATE, THEN HOW ASSESSEE CAN BE HELD TO BE IN DEFAULT FOR NOT SIGNING THE CO NSENT WAIVER FORM. ACCORDINGLY, HE SUBMITTED THAT PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(B) AND CONFIRMED BY T HE LD. CIT(A) IS FACTUALLY ILLEGAL AND SAME DESERVES TO BE DELETED. HE HAS ALSO CITED MANY JUDICIAL PRECEDENTS AND DECISION S, HOWEVER, THE SAME WERE NOT BEING REPRODUCED HEREUND ER. I.T.AS. NO.3802 TO 3808/DEL/2017 10 11. ON THE OTHER HAND, LD. DR SUBMITTED THAT FROM T HE BARE PERUSAL OF THE MATERIAL AND IMPUGNED ORDERS, IT CAN BE SEEN THAT CERTAIN INFORMATION WAS RECEIVED TO THE GOVERN MENT OF INDIA FROM THE FRENCH AUTHORITIES, WHEREIN NAME OF THE ASSESSEE WAS APPEARING AND THERE WERE CERTAIN AMOUN TS DEPOSITED IN THE SAID BANK ACCOUNT. IN THE WAKE OF SUCH INFORMATION, THE DEPARTMENT HAS CONDUCTED SEARCH AN D ALSO THE SAID VERY INFORMATION WAS CONFRONTED TO THE ASS ESSEE. IT WAS ONLY ON THIS BACKGROUND THE ASSESSING OFFICER H AD ISSUED A NOTICE U/S. 142(1) TO SUBMIT THE DETAILS OF THE S AID BANK ACCOUNT AND IF THE SAME IS NOT AVAILABLE, THEN HE S HOULD FILE CONSENT WAIVER FORM SO THAT DEPARTMENT CAN CARRY OU T INQUIRY AND VERIFICATION. FAILURE TO SUBMIT OR SIGN CONSENT WAIVER FORM IS A DEFAULT, AND THEREFORE, PENALTY U/S.271(1 )(B) HAS RIGHTLY BEEN LEVIED. HE ALSO STRONGLY RELIED UPON T HE ORDER OF THE LD. CIT (A) WHEREBY HE HAS CONFIRMED THE SAID P ENALTY AFTER MAKING VARIOUS OBSERVATIONS. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AS W ELL AS MATERIAL REFERRED TO BEFORE US AT THE TIME OF HEARI NG. THE SOLE REASON FOR LEVY OF PENALTY U/S. 271(1)(B) IS THAT A SSESSEE HAS NOT COMPLIED WITH THE NOTICE U/S.142(1) DATED 18.07 .2013. THIS WAS THE ONLY NOTICE ON WHICH ASSESSING OFFICER HAS LEVIED THE PENALTY FOR NON COMPLIANCE. THE REASON GIVEN BY THE AUTHORITIES BELOW ARE THAT, THE ASSESSEE HAS REFUSE D TO SIGN THE CONSENT WAIVER FORM FOR BANK ACCOUNT HSBC GENEV A SWITZERLAND. FROM THE BARE PERUSAL OF THE NOTICE WH ICH HAS I.T.AS. NO.3802 TO 3808/DEL/2017 11 BEEN REPRODUCED ABOVE, IT IS SEEN THAT ASSESSING OF FICER MENTIONED THAT THERE WAS A CERTAIN INFORMATION AVAI LABLE WITH THE DEPARTMENT THAT THE ASSESSEE IS HAVING ACCOUNT IN HSBC GENEVA SWITZERLAND, AND THEREFORE, THE ASSESSEE WAS REQUIRED TO FURNISH THE DETAILS/EVIDENCES REGARDING ACCOUNT OPENING FORM IN RESPECT OF HSBC GENEVA SWITZERLAND, COMPLET E STATEMENT OF THE ALLEGED BANK ACCOUNT, RESIDENTIAL STATUS OF THE ASSESSEE ON THE OPENING OF THE FOREIGN BANK ACC OUNT; AND FURTHER, IT WAS REQUIRED BY THE ASSESSING OFFICER T HAT IN CASE ASSESSEE DOES NOT HAVE A BANK ACCOUNT, BANK STATEME NT, THEN ASSESSEE SHOULD SIGN CONSENT LETTER SO THAT DEPARTM ENT CAN IS ABLE TO OBTAIN THE STATEMENT FROM THE BANK. FIRST O F ALL, FROM THE PERUSAL OF THE INFORMATION AS SCANNED IN THE AS SESSMENT ORDER AS WELL AS MATERIAL AVAILABLE ON RECORD, IT I S SEEN THAT NOWHERE THE SAID DOCUMENT CONTAINS THE NAME OF HSBC BANK ACCOUNT GENEVA SWITZERLAND. EVEN DURING THE COURSE OF SEARCH WHEN ASSESSEE WAS CONFRONTED WITH THIS FACT, HE UNDER THE STATEMENT ON OATH STATED THAT HE HAS NEVER OPEN ED ANY BANK ACCOUNT IN OVERSEAS AND HE DENIED HAVING MAINT AINED SUCH ACCOUNT. THIS STAND HAS BEEN TAKEN ALL THROUGH OUT THE PROCEEDINGS. EVEN IN THE STATEMENT RECORDED U/S 132 (4) DURING THE COURSE OF SEARCH, THERE WAS NO MENTION O F ACCOUNT IN HSBC BANK GENEVA SWITZERLAND NOR WAS ANY SUCH INFORMATION OR MATERIAL CONFRONTED TO THE ASSESSEE WITH THE DETAILS OF PARTICULAR BANK ACCOUNT TILL THE DATE OF INITIATION AND LEVY OF PENALTY. IN RESPONSE TO THE SAID NOTICE U/S. 142(1), THE ASSESSEE HAS REITERATED THE SAME AND HAS DULY C OMPLIED I.T.AS. NO.3802 TO 3808/DEL/2017 12 WITH IN HIS REPLY TO THE ASSESSING OFFICER. IT IS P ERTAINING TO NOTE HERE THAT IN THE QUANTUM PROCEEDINGS FROM THE STAGE OF THE TRIBUNAL THE ENTIRE ADDITION STANDS DELETED ON THE GROUND THAT THE SAME WERE BEYOND THE SCOPE AND AMBIT OF SE CTION 153A. 13. SECTION 142(1) EMPOWERS THE ASSESSING OFFICER TO CALL FOR ANY INFORMATION OR DOCUMENT FOR THE PURPOSE OF MAKING AN ASSESSMENT. IF SCOPE OF THE ASSESSMENT AS PER THE L AW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS. KABUL CHAWLA, (2016) 380 ITR 0573 (DEL), CIT VS. MEETA GUTGUTIA, 395 ITR 0526 [DEL] AND PCIT VS. BES T INFRASTRUCTURE (INDIA) PVT. LTD., [2017] 397 ITR 82 ; IS CIRCUMSCRIBED TO THE INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH, THEN INQUIRY SHOULD ALSO BE CONFI NED TO THAT MATERIAL ONLY. ONCE THERE WAS NO INCRIMINATING MATE RIAL, NEITHER ANY SUCH INFORMATION WAS AVAILABLE WITH ASS ESSING OFFICER, THEN WHERE IS THE QUESTION OF ROPING SUCH AN ADDITION OR MAKING SUCH INQUIRY IN THE ASSESSMENT PROCEEDING S. IF THERE WOULD HAVE BEEN ANY INCRIMINATING DOCUMENT PERTAINING TO THE ALLEGED BANK ACCOUNT FOUND DIRECT LY OR INDIRECTLY LINKING THE SAID BANK ACCOUNT WITH THE A SSESSEE DURING THE COURSE OF SEARCH, THEN ONLY THE ENTIRE S COPE OF INQUIRY FOR THE PURPOSE OF ASSESSMENT COULD HAVE BE EN MADE; AND IF THERE IS NO SUCH INCRIMINATING MATERIAL OR S EIZED DOCUMENT, THEN OSTENSIBLY ASSESSMENT HAS TO BE CONF INED TO THE SEIZED DOCUMENT RELATING TO THE ASSESSEE. HERE THE INFORMATION WHICH WAS AVAILABLE PRIOR TO THE DATE O F SEARCH I.T.AS. NO.3802 TO 3808/DEL/2017 13 WAS ITSELF VAGUE IN SO FAR AS THERE WAS NO MENTION OF ANY ACCOUNT WITH HSBC GENEVA SWITZERLAND FOR WHICH ASSE SSING OFFICER HAS LEVIED THE PENALTY THAT THE ASSESSEE HA S NOT SIGNED THE CONSENT WAIVER FORM. THE CONSENT WAIVER FORM WA S ADDRESSED TO THE HSBC BANK GENEVA SWITZERLAND AND W HEN THE INFORMATION ITSELF DID NOT MENTION SUCH BANK AC COUNT, THEN WHERE WAS THE DEFAULT OF THE ASSESSEE. THUS ON THESE FACTS AND CIRCUMSTANCES IN OUR OPINION IT COULD BE VERY DIFFICULT TO JUSTIFY THE LEVY OF PENALTY FOR NON CO MPLIANCE OF NOTICE U/S. 142(1), FIRSTLY, WHEN THE SCOPE OF INQU IRY BY THE ASSESSING OFFICER IS CIRCUMSCRIBED TO MATERIAL FOUN D DURING THE COURSE OF SEARCH; AND SECONDLY, THERE IS NO SPE CIFIC INFORMATION OR DOCUMENT THAT THE ASSESSEE WAS MAINT AINING ANY ACCOUNT WITH HSBC BANK GENEVA SWITZERLAND. FURT HER, THERE IS NO PROVISION U/S.142(1) THAT ASSESSEE IS R EQUIRED TO SIGN THE DOCUMENT THRUST UPON HIM WHEN THE ASSESSEE HIMSELF HAS DENIED THE CONTENT OF THE DOCUMENT AND DENIED HAVING MAINTAINING SUCH BANK ACCOUNT. THE PENALTY U /S. 271(1)(B) IS LEVIABLE ONLY WHEN THERE IS FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE NOTICE ISSUED U/S.1 42(1). HERE THERE IS NO FAILURE ON PART OF THE ASSESSEE FO R NON COMPLIANCE AS ASSESSEE HAS DULY REPLIED AND FILED S UBMISSION BEFORE THE ASSESSING OFFICER AND ALSO BEFORE THE LD . CIT (A). 14. FROM A PLAIN READING OF SECTION 142(1), IT EN VISAGES THAT, FOR THE PURPOSE OF MAKING THE ASSESSMENT THE ASSESS ING OFFICER MAY SERVE NOTICE TO THE ASSESSEE, EITHER TO : I.T.AS. NO.3802 TO 3808/DEL/2017 14 FIRSTLY, TO FILE RETURN OF INCOME WHERE PERSON HAS NOT MADE A RETURN WITHIN THE TIME ALLOWED; OR SECONDLY, TO PRODUCE OR CAUSE TO PRODUCE SUCH DOCUMENTS OR ACCOUNTS AS ASSESSING OFFICER MADE REQUIRE OR; LASTLY, TO FURNISH IN WRITING AND VERIFY IN THE PRE SCRIBED MANNER THE INFORMATION IN SUCH FORM AND SUCH POINT AS THE ASSESSING OFFICER MAY REQUIRE. THE ASSESSEE THUS CAN PRODUCE ANY SUCH DOCUMENT OR ACCOUNT, WHICH IS NECESSARY FOR THE PURPOSE OF MAKI NG AN ASSESSMENT; OR IF ASSESSEE IS HAVING SUCH ACCOUNT O R DOCUMENT, THEN IF REQUIRED BY THE ASSESSING OFFICER , HE HAS TO FILE OR PRODUCE THE SAME. HOWEVER, IF ASSESSEE IS N EITHER HAVING SUCH DOCUMENT NOR SHE WAS IN POSSESSION OF A NY SUCH DOCUMENT OR IS DENYING THE DOCUMENT, THEN WHERE IS THE QUESTION OF DEFAULT ON THE PART OF THE ASSESSEE IN TERMS OF SECTION 142(1). NOWHERE SECTION PROVIDES THAT THE A SSESSEE HAS TO CREATE A DOCUMENT FOR FURNISHING IT BEFORE T HE ASSESSING OFFICER WHAT IS CONTEMPLATED IS THAT WHAT EVER THE INFORMATION OR DOCUMENT OR ACCOUNT IS AVAILABLE WIT H THE ASSESSEE THE SAME HAS TO BE PRODUCED BEFORE THE ASS ESSING OFFICER. 15. A PART FROM THAT, WE ARE IN TANDEM WITH THE SUB MISSION OF MR. BINDAL THAT, UNDER THESE FACTS AND CIRCUMSTA NCES THERE IS GENUINE AND BONA FIDE BELIEF THAT THE ASSESSEE W AS NOT REQUIRE TO SIGN THE CONSENT WAIVER FORM, BECAUSE AS PER THE I.T.AS. NO.3802 TO 3808/DEL/2017 15 AVERMENTS MADE BY ASSESSEE, HE NEVER HAD ANY KIND O F BANK ACCOUNT IN OVERSEAS LEAVE ALONE HSBC BANK GENEVA SWITZERLAND; AND SECONDLY, NOTHING INCRIMINATING W AS FOUND DURING THE COURSE OF SEARCH WHEREIN THE ASSESSEE WA S FOUND TO BE DIRECTLY OR INDIRECTLY INVOLVED IN OPENING AN Y BANK ACCOUNT WITH HSBC GENEVA SWITZERLAND. IF ALL THESE CIRCUMSTANCES HAVE BEEN DULY EXPLAINED BEFORE THE A SSESSING OFFICER, THEN NOT SIGNING OF CONSENT WAIVER FORM CO NSTITUTES REASONABLE CAUSE AND THEREFORE IN TERMS OF SECTION 273 B PENALTY IS LEVIABLE. ACCORDINGLY, THE PENALTY IS DE LETED ON THIS COUNT ALSO. 16. SINCE IN ALL THE YEARS, PENALTY HAS BEEN LEVI ED ON SIMILAR NOTICE OF EVEN DATE, I.E., 08.07.2013, THEREFORE, T HE AFORESAID FINDING WILL APPLY MUTATIS MUTANDIS IN ALL THE YEAR S. 17. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH MAY, 2020. SD/- SD/- [B.R.R. KUMAR] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 06 TH MAY, 2020 PKK: I.T.AS. NO.3802 TO 3808/DEL/2017 16 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR