DHANRAJ MILLS P. LTD, MUMBAI V. ACIT (OSD)-II CEN RG-7, MUMBAI

ITA 3830/MUM/2009

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7959 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-02-2015
• Assessment Year: 1987-1988
• Appeal Filed On: 12-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR D DANIELDR
• Assessee Lawyers: DEEPAK TIKEKAR
• Keywords: Unexplained cash credit; Gift; Depreciation; Principle of natural justice; Deemed to accrue or arise in india; Additional evidence; Question of law; Reasonable cause; Wrong claim
• Section: 68; 69; 148; 139

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NOS.3830 & 3833/MUM/2009 ASSESSMENT YEARS: 1987-88 & 1998-99 DHANRAJ MILLS PVT. LTD. C/O- PANDYA GANDHI & CO. ADVOCATES & SOLICITORS, ADORE HOUSE, K. DUBASH MARG, MUMBAI-400001 / VS. ACIT(OSD - II) CR-7, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( '# $ /ASSESSEE) ( ) / REVENUE) P.A. NO. AAACD5580D ITA NOS.3831 & 3832 /MUM/2009 ASSESSMENT YEARS: 1987-88 & 1998-99 DHANRAJ MILLS PVT. LTD. C/O- PANDYA GANDHI & CO. ADVOCATES & SOLICITORS, ADORE HOUSE, K. DUBASH MARG, MUMBAI-400001 / VS. ACIT(OSD - II) CR-7, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( '# $ /ASSESSEE) ( ) / REVENUE) P.A. NO. AAACD5580D DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 2 ITA NOS.4115 & 4116/MUM/2012 ASSESSMENT YEARS: 1989-90 & 1990-91 DHANRAJ MILLS PVT. LTD. C/O- PANDYA GANDHI & CO. ADVOCATES & SOLICITORS, ADORE HOUSE, K. DUBASH MARG, MUMBAI-400001 / VS. ACIT(OSD - II) CR-7, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( '# $ /ASSESSEE) ( ) / REVENUE) P.A. NO. AAACD5580D '# $ / ASSESSEE BY SHRI DEEPAK TIKEKAR ) / REVENUE BY DR. D. DANIEL-DR * )+ , $ - / DATE OF HEARING : 20/03/2017 , $ - / DATE OF ORDER: 21/03/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS BUNCH OF SIX APPEALS IS BY THE ASSESSEE AGAIN ST THE IMPUGNED ORDERS OF THE LD. FIRST APPELLATE AUTH ORITY, MUMBAI, CHALLENGING IMPOSITION/CONFIRMATION OF PENA LTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAF TER THE ACT) (ITA NO.3830 & 3833/MUM/2009, ITA NO.4115 & 4116/MUM/2012) AND U/S 273 OF THE ACT (ITA NO.3831 & 3832/MUM/2009). 2. FIRST, WE SHALL TAKE UP THE APPEAL, WHEREIN, IMPOSITION/CONFIRMATION HAS BEEN MADE U/S 271(1)(C) OF THE ACT. DURING HEARING, THE LD. COUNSEL FOR THE ASSES SEE, SHRI DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 3 DEEPAK TIKEKAR, FAIRLY AGREED THAT THE QUANTUM APPE AL HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL. IT WAS EXPLAINED THAT THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF SECTION 68 OF THE ACT, FINANCE CHARGES A ND INTEREST INCOME. OUR ATTENTION WAS INVITED TO VARI OUS PAGES OF THE ASSESSMENT ORDER, SPECIFICALLY PARA-2 AND 2. 4. RELIANCE WAS PLACED UPON THE DECISION IN COMMISSION ER OF INCOME TAX & ANR. VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KARN.), COMMISSIONER OF INCOME TAX VS. VIKAS PROMOTERS (P) LTD. (277 ITR 337) (DEL.), DR. SARITA MILIND DAVARE VS ACIT IN ITA NO.2187/MUM/2014 AND ITA NO.1154 OF 2014. THE CRU X OF THE ARGUMENT IS THAT WHEN SUBSTANTIAL QUESTION OF L AW HAS BEEN FRAMED AND ADMITTED, THEREFORE, THE ISSUE HAS BECOME DEBATABLE, THEREFORE, PENALTY IS NOT LEVIABLE, FOR WHICH RELIANCE WAS PLACED UPON THE DECISION IN 231 TAXMAN 665 (BOM.). 2.1. ON THE OTHER HAND, DR. D. DANIEL, LD. SPECIAL COUNSEL FOR THE DEPARTMENT, CONTENDED THAT PURSUANT TO THE DIRECTION FROM THE HON'BLE JURISDICTIONAL HIGH COUR T, THE TRIBUNAL HAS TAKEN A DECISION, THEREFORE, THERE IS NO QUESTION OF ADMISSION OF SUBSTANTIAL QUESTION OF LA W, FOR WHICH, OUR ATTENTION WAS INVITED TO THE ORDER OF TH E DECISION FROM HON'BLE JURISDICTIONAL HIGH COURT. IT WAS CON TENDED THAT THIS APPEAL HAS NOT BEEN ADMITTED AND ADVOCATE S FROM BOTH SIDES ADMITTED THAT THE MATTER MAY BE SENT TO THE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 4 TRIBUNAL. RELIANCE WAS PLACED UPON THE DECISION IN ITA NO.996/MUM/2014, ORDER DATED 30/09/2007, (2017) 98 CCH 39 (MUMBAI HIGH COURT) (PARA-7), 216 ITR 660 (B OM.). SO FAR AS THE MERITS OF THE CASES CONCERNED, THE LD . SPECIAL COUNSEL, EXPLAINED THAT THE ASSESSEE HIMSELF DISCLO SED THE STOCKS AND THE UNITS IN ITS BOOKS OF ACCOUNTS AND L ATER ON CHANGED ITS VERSION BY CLAIMING THE SAME AS FINANCE CHARGES. IT WAS ASSERTED THAT IT IS A CASE OF SECUR ITY SCAM AND NO PROOF OF FINANCE TRANSACTION WAS AT ANY STAG E PRODUCED BY THE ASSESSEE. IT WAS CLAIMED THAT THE S TATEMENT OF SHRI CHAMPAKLAL WAS RECORDED, WHEREIN; HE CATEGO RICALLY ADMITTED THE FAULT OF THE ASSESSEE. IT WAS CONTENDE D THAT ASSESSEE WAS PROVIDED SUFFICIENT OPPORTUNITY, WHERE IN, NOTHING WAS PRODUCED BY THE ASSESSEE AND FINALLY TH E TRIBUNAL CONFIRMED THE ADDITION ON THE BASIS OF WHI CH PENALTY WAS IMPOSED/CONFIRMED. THE CRUX OF THE ARGU MENT IS THAT THE ASSESSEE WAS AWARE THAT THE PARTICULARS OF INCOME WERE CONCEALED AND THUS BOGUS CLAIM WAS MADE BY FURNISHING INACCURATE PARTICULARS OF INCOME. OUR AT TENTION WAS INVITED TO THE PENALTY ORDER, WHEREIN, IT HAS B EEN CLEARLY MENTIONED THAT ASSESSEE HAS CONCEALED ITS INCOME. I T WAS CONTENDED THAT PENALTY NOTICE IS MERELY A PROCEDURE FOR PROVIDING OPPORTUNITY TO EXPLAIN ITS CASE BY THE AS SESSEE. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT ORIGINAL ASSESSMENT WAS COMPLETED U/S 143( 1) OF DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 5 THE ACT ON A TOTAL INCOME OF RS.46,19,390/- ON 30/1 2/1988. THE ASSESSMENT WAS REOPENED U/S 147/148 OF THE ACT. IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE DECLARED SAME INCOME AS DECLARED IN THE ORIGINAL RETURN. THE LD. ASSESSING OFFICER COMPLETED THE ASSESSMENT AT A TOT AL INCOME OF RS.7,56,29,780/- ON 28/02/1995 AGAINST TH E RETURNED INCOME OF RS.46,19,390/-. THE ASSESSEE IS A NOTIFIED PERSON, NOTIFIED BY THE SPECIAL COURT, IN CONNECTION WITH SECURITY SCAM. THE ASSESSING OFFICER MADE THE FOLLOWING ADDITIONS:- (A) RS.6,69,35,305/- U/S 68 OF THE ACT REPRESENTING FUNDS FROM UNEXPLAINED SOURCES (B) RS.3,85,248/-, BEING UNDISCLOSED INTEREST INCOM E, (C) RS.33,96,164/- BEING INTEREST PAYABLE TO M/S CHAMPAKLAL DEVIDAS, (D) RS.3,526/-, BEING DEPRECIATION DISALLOWED AND (E) RS.2,000/- U/S 40A(12) OF THE ACT. 2.3. SO FAR AS, ADDITION U/S 68 OF THE ACT IS CONC ERNED, THE LD. ASSESSING OFFICER, DURING ASSESSMENT PROCEE DINGS, FOUND THAT THE ASSESSEE HAS INDULGED IN HUGE TRANSA CTION IN SECURITIES THROUGH ITS BANK ACCOUNTS MAINTAINED IN ANDHRA BANK, FORT BRANCH, MUMBAI. THE LD. ASSESSING OFFIC ER DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 6 ASKED THE ASSESSEE TO FURNISH THE NECESSARY DETAILS WITH RESPECT TO THESE TRANSACTIONS. IN SPITE OF REPEATE D OPPORTUNITIES, PROVIDED TO THE ASSESSEE, SUCH DETAI LS COULD NOT BE FURNISHED. THE NOTICES WERE ALSO REMAINED UN - COMPLIED. AT LATER STAGE, IT WAS CLAIMED BY THE ASS ESSEE THAT IT NEVER ENTERED INTO THESE TRANSACTIONS AND THE FU NDS WERE ARRANGED BY A BROKER. AS PER THE REVENUE, THIS EXP LANATION ALSO REMAINED UNSUBSTANTIATED. IT WAS NOTICED BY T HE ASSESSING OFFICER THAT SUBSTANTIAL AMOUNT WAS TRANS ACTED THROUGH THIS ACCOUNT, WHICH RESULTED INTO CREDIT BA LANCE OF RS.6,69,35,305/-. THE ASSESSEE COULD NOT EXPLAINED THE SOURCE OF THESE CREDITS. THE STAND OF THE REVENUE I S THAT THE ASSESSEE GENERATED HUGE ASSET AND GOT BENEFIT FROM THE FUNDS, THE SOURCE OF WHICH WAS NEVER EXPLAINED, THE REFORE, ADDITION U/S 68 WAS MADE. 2.4. SO FAR AS, INTEREST PAYABLE TO M/S CHAMPAKLAL DEVIDAS IS CONCERNED, IT WAS NOTICES BY THE ASSESSI NG OFFICER THAT INTEREST OF RS.33,96,164/- WAS SHOWN AS PAYABL E ON ACCOUNT OF LOAN RECEIVED FROM M/S CHAMPAKLAL DEVIDA S. THIS INTEREST AMOUNT WAS CLAIMED AS INTEREST PAID B Y THE ASSESSEE TO M/S CHAMPAKLAL DEVIDAS. HOWEVER, THE ASSESSEE DID NOT FURNISH ANY CONFIRMATION TO THIS E FFECT. THE STATEMENT OF CHAMPAKLAL DEVIDAS WAS RECORDED, WHERE IN, HE DENIED THAT ANY INTEREST WAS RECOVERABLE FROM THE A SSESSEE. CONSIDERING THE TOTALITY OF FACTS, THE CLAIMED AMOU NT WAS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE. DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 7 2.5. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THE ASSESSEE IS A NOTIF IED PERSON, NOTIFIED BY THE SPECIAL COURT IN CONNECTION WITH SECURITY SCAM CASES. THE ASSESSEE INDULGED IN HUGE TRANSACTIONS IN SECURITIES THROUGH ITS BANK ACCOUNT MAINTAINED WITH ANDHRA BANK, FORT BRANCH, MUMBAI. A S OBSERVED IN THE ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORDER, THE ASSESSEE DID NOT FURNISH THE NE CESSARY DETAILS WITH REGARD TO THE TRANSACTIONS AND THE NOT ICES SENT TO THE CONCERNED PARTIES REMAINED UN-COMPLIED WITH. THE ASSESSEE ALSO COULD NOT EXPLAIN THE SOURCE OF THE C REDITS. THE ASSESSEE GOT THE BENEFIT OF THE FUNDS, WHICH WE RE OUT OF UNEXPLAINED SOURCES. EVEN ON QUANTUM ADDITION, THE TRIBUNAL SUSTAINED THE ADDITION. IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION, IT IS EVIDENT THAT THE ASSES SEE CONCEALED ITS INCOME, WHICH AROSE FROM THE TRANSACT IONS OF SALE AND PURCHASE OF SECURITIES AND SPECIFICALLY, T HESE TRANSACTIONS DID NOT FEATURE IN THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE AND MERELY SHOWED IN THE BALANCE SHEET AS CREDIT BALANCE IN ANDHRA BANK. THE ASSESSEE DID NOT DISCHARGE ITS ONUS TO EXPLAIN THE CREDIT BALANCE AT ANY STAGE. 2.6. NOW, WE SHALL DEAL WITH THE ARGUMENT OF THE L D. COUNSEL FOR THE ASSESSEE THAT SUBSTANTIAL QUESTION OF LAW DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 8 WAS ADMITTED BY THE HON'BLE JURISDICTIONAL HIGH COU RT VIDE ORDER DATED 27/08/2009, THEREFORE, IT HAS BECOME DEBATABLE, CONSEQUENTLY, PENALTY IS NOT LEVIABLE. W E NOTE THAT THE HON'BLE JURISDICTIONAL HIGH COURT VIDE ORD ER DATED 27/08/2009 HEARD THE RESPECTIVE PARTIES. IN PARA-2 , IT HAS BEEN MENTIONED AS UNDER:- AT THE OUTSET, LD. COUNSEL APPEARING FOR THE ASSESSEE MAKES A STATEMENT THAT ASSESSEE DOES NOT WANT TO PRESS QUESTIONS SAID TO BE QUESTION OF LAW BEARING NO. (III) AND (VI). THE STATEMENT MADE IS TAKEN ON RECORD. SO FAR AS, REMAINING QUESTIONS ARE CONCERNED, AFTER SOME DEBATE, BOTH ADVOCATES, ULTIMATELY, SUBMITTED THAT THE MATTER REMITTED BACK TO THE TRIBUNAL FOR CONSIDERATION AFRESH BY SETTING ASIDE THE IMPUGNED ORDER TO THAT EXTENT WITHOUT EXAMINING MERITS OR DEMERITS THEREOF, SO FAR AS, QUESTIONS NOS. (I), (II), (IV) AND (V) RAISED IN THE PRESENT APPEAL. 2.7. IN THE AFORESAID BACKGROUND/FACTUAL MATRIX, T HE HON'BLE HIGH COURT SET ASIDE THE ISSUES (ITA NO.135 3 OF 2009) TO THE FILE OF THE TRIBUNAL WITH A DIRECTION TO RE- EXAMINE AND RE-ADJUDICATE AFRESH, THE NATURE AND TH E CHARACTER OF THE TRANSACTION INVOLVED IN THE APPEAL WITH FURTHER DIRECTION TO ALLOW ADDITIONAL EVIDENCE, IF ANY, FILED BY THE ASSESSEE AND THEREAFTER ADJUDICATE THE SAME. IN THIS BACKGROUND, THE MATTER WAS EXAMINED BY THE TRIBUNAL AND WAS DECIDED AGAINST THE ASSESSEE VIDE ORDER DATED 29/10/2014 (PAGES 31 TO 40 OF THE PAPER BOOK). IT IS NOTED THAT THE TRIBUNAL HAS DULY NOTED THAT THE ASSESSEE WAS DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 9 ASKED TO EXPLAIN THE AMOUNT OF RS.6,69,35,305/- AND ALSO ITS NATURE. THE TRIBUNAL ALSO CONSIDERED THE CASE LAWS RELIED UPON BY THE ASSESSEE ALONG WITH THE ARGUMENT FROM BOTH SIDES. THE TRIBUNAL HAS ALSO DISCUSSED SECTION 106 OF THE EVIDENCE ACT AND FINALLY, CONCLUDED THAT THE AS SESSEE COULD NOT ADDUCE ANY EVIDENCE IN SUPPORT OF ITS CON TENTION WITH RESPECT TO THE IMPUGNED TRANSACTIONS AND EVEN IN THE YEAR 2014, NO CONFIRMATION WERE FILED BY THE ASSESS EE AT ANY STAGE EITHER FROM ANDHRA BANK OR FROM THE BROKER M/ S CHAMPAKLAL DEVIDAS AND CONCLUDED THAT THE ASSESSEE MISERABLY FAILED IN DISCHARGING ITS ONUS CAST UPON IT BY VIRTUE OF SECTION 68 OF THE ACT R.W.S 106 OF THE EV IDENCE ACT, THUS, IN VIEW OF THE OVERALL FACTUAL MATRIX, ADDITI ONS WERE SUSTAINED. 2.8. BEFORE US, THE ASSESSEE WANTS SHELTER ON TECH NICAL GROUNDS. THE HON'BLE HIGH COURT NEVER ADMITTED THE SUBSTANTIAL QUESTION OF LAW TO THE EXTENT THAT THE ISSUE HAS BECOME DEBATABLE. AS MENTIONED EARLIER, RATHER, THE LD. COUNSEL FOR THE ASSESSEE MADE A STATEMENT THAT THE ASSESSEE DOES NOT WANT TO PRESS QUESTIONS SAID TO BE THE QUE STIONS OF LAW AND AFTER CONSIDERING THIS STATEMENT, THE MATTE R WAS REMITTED BACK TO THE TRIBUNAL FOR FRESH CONSIDERATI ON. IN OUR HUMBLE OPINION, IN THE BACKGROUND OF FACTUAL MATRIX , THERE WAS NO SUBSTANTIAL QUESTION OF LAW ON THE BASIS OF WHICH, IT CAN BE SAID THAT ISSUE HAS BECOME DEBATABLE. SINCE , THE ASSESSEE NEVER DISCHARGED ITS ONUS U/S 68 OF THE AC T R.W.S DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 10 106 OF THE EVIDENCE ACT, THEREFORE, WE DONT FIND A NY MERIT IN THE CLAIM OF THE ASSESSEE. AS PER THE PROVISIONS O F SECTION 68 OF THE ACT, THE ASSESSEE IS EXPECTED TO OFFER AN EXPLANATION WITH RESPECT TO THE NATURE AND SOURCE O F CASH CREDITS TO THE SATISFACTION OF THE ASSESSING OFFICE R. FOR READY REFERENCE SECTION 68 OF THE ACT IS REPRODUCED HEREU NDER:- 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE T HEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINI ON OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITE D MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR : PROVIDED THAT WHERE THE ASSESSEE IS A COMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTER ESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION M ONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEV ER NAME CALLED, ANY EXPLANATION OFFERED BY SUCH ASSESSEE-CO MPANY SHALL BE DEEMED TO BE NOT SATISFACTORY, UNLESS (A) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH CREDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS A N EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND (B) SUCH EXPLANATION IN THE OPINION OF THE ASSESSIN G OFFICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY: PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRST PROVISO SHALL APPLY IF THE PERSON, IN WHOSE NAME THE SUM RE FERRED TO THEREIN IS RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY AS REFERRED TO IN CLAUSE (23FB)OF S ECTION 10. 2.9. AS PER SECTION 68 OF THE ACT, ONUS IS UPON TH E ASSESSEE TO DISCHARGE THE BURDEN SO CAST UPON. FIRS T BURDEN DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 11 IS UPON THE ASSESSEE TO SATISFACTORILY EXPLAIN THE CREDIT ENTRY CONTAINED IN HIS BOOKS OF ACCOUNTS. THE BURDEN HAS TO BE DISCHARGED WITH POSITIVE MATERIAL (OCEANIC PRODUCTS EXPORTING COMPANY VS CIT 241 ITR 497 (KERALA.). THE LEGISLATURE HAD LAID DOWN THAT IN THE ABSENCE OF SA TISFACTORY EXPLANATION, THE UNEXPLAINED CASH CREDIT MAY BE CHA RGED U/S 68 OF THE ACT. OUR VIEW IS FORTIFIED BY THE RAT IO LAID DOWN IN HONBLE APEX COURT IN P. MOHANKALA (2007)(291 IT R 278)(SC). A CLOSE READING OF SECTION 68 AND 69 OF T HE ACT MAKES IT CLEAR THAT IN THE CASE OF SECTION 68, THER E SHOULD BE CREDIT ENTRY IN THE BOOKS OF ACCOUNT WHEREAS IN THE CASE OF 69 THERE MAY NOT BE AN ENTRY IN SUCH BOOKS OF ACCOU NT. THE LAW IS WELL SETTLED, THE ONUS OF PROVING THE SOURCE OF A SUM, FOUND TO BE RECEIVED/TRANSACTED BY THE ASSESSEE, IS ON HIM AND WHERE IT IS NOT SATISFACTORILY EXPLAINED, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS INCOME OF THE ASSESSEE A ND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT INC OME IS FROM ANY OTHER PARTICULAR SOURCE. WHERE THE ASSESSE E FAILED TO PROVE SATISFACTORILY THE SOURCE AND NATURE OF SU CH CREDIT, THE REVENUE IS FREE TO MAKE THE ADDITION. THE PRIN CIPLE LAID DOWN IN GANPATI MUDALIAR (1964) 53 ITR 623/A. GOVIN DA RAJULU MUDALIAR (34 ITR 807)(SC) AND ALSO CIT VS DU RGA PRASAD MORE (72 ITR 807)(SC) ARE THE LANDMARK DECIS IONS. THE RATIO LAID DOWN THEREIN ARE THAT IF THE EXPLANA TION OF THE ASSESSEE IS UNSATISFACTORY, THE AMOUNT CAN BE TREAT ED AS INCOME OF THE ASSESSEE. THE RATIO LAID DOWN IN DAU LAT RAM RAWATMAL 87 ITR 349 (SC) FURTHER SUPPORTS THE CASE OF THE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 12 REVENUE. IN THE CASE OF A CASH ENTRY, IT IS NECESS ARY FOR THE ASSESSEE TO PROVE NOT ONLY THE IDENTITY OF THE CRED ITOR BUT ALSO THE CAPACITY OF THE CREDITOR AND GENUINENESS O F THE TRANSACTIONS. THE ONUS LIES ON THE ASSESSEE, UNDER THE FACTS AVAILABLE ON RECORD. A HARMONIOUS CONSTRUCTION OF SECTION 106 OF THE EVIDENCE ACT AND SECTION 68 OF THE INCOM E TAX ACT WILL BE THAT APART FROM ESTABLISHING THE IDENTI TY OF THE CREDITOR, THE ASSESSEE MUST ESTABLISH THE GENUINENE SS OF THE TRANSACTION AS WELL AS THE CREDITWORTHINESS OF THE CREDITORS. IN CIT VS KORLAY TRADING COMPANY LTD. 232 ITR 820 ( CAL.), IT WAS HELD THAT MERE MENTION OF FILE NUMBER OF CREDIT OR WILL NOT SUFFICE AND EACH ENTRY HAS TO BE EXPLAINED SEPA RATELY BY THE ASSESSEE (CIT VS R.S. RATHAORE) 212 ITR 390 (RA J.). THE HONBLE GUWAHATI HIGH COURT IN NEMI CHANDRA KOTHARI VS CIT (264 ITR 254)(GAU) HELD THAT TRANSACTION BY CHE QUES MAY NOT BE ALWAYS SACROSANCT. IN THE PRESENT APPEA L, THE ASSESSEE NEITHER FULFILLED THE CONDITIONS ENSHRINED U/S 68 OF THE ACT NOR PRODUCED NECESSARY EVIDENCE FOR ITS CLA IM. 2.10. THE RATIO LAID DOWN IN ACIT VS RAJEEV TANDON 294 ITR (AT) 219 (DEL.), WHICH WAS CONFIRMED BY HONBLE HIGH COURT , IN 294 ITR 488, SUPPORTS THE CASE OF THE RE VENUE. IDENTICAL RATIO WAS LAID DOWN IN CIT VS ANIL KUMAR 392 ITR 552 (DEL.), WHEREIN IT WAS HELD THAT MERE IDENTIFIC ATION OF THE DONOR AND MOVEMENT OF GIFT THROUGH BANKING CHANNEL IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF GIFT. KEEPIN G IN VIEW, THE TOTALITY OF FACTS, ATTENDANT CIRCUMSTANCES, HUM AN DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 13 PROBABILITIES, AND IN THE ABSENCE OF PLAUSIBLE EXPL ANATION BY THE ASSESSEE, RELEVANT MATERIAL, AND NON-FULFILLMEN T OF INGREDIENTS ENSHRINED IN SECTION 68 OF THE ACT, WE FIND THAT ONUS CAST UPON THE ASSESSEE WAS NEVER DISCHARGED. 2.11. IN THE AFORESAID BACKGROUND, NOW, WE SHALL D EAL WITH SECTION 271(1)(C) OF THE ACT, WHICH IS REPRODU CED HEREUNDER FOR READY REFERENCE AND ANALYSIS:- 271. (1) IF THE ASSESSING OFFICER OR THE COMMISSIONER (APP EALS) OR THE 47 [PRINCIPAL COMMISSIONER OR] COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERS ON (A) [* * *] (B) HAS FAILED TO COMPLY WITH A NOTICE UNDER SUB-SE CTION (2) OF SECTION 115WD OR UNDER SUB-SECTION (2) OF SECTION 115WE OR UNDER SUB- SECTION (1) OF SECTION 142 OR SUB-SECTION (2) OF SECTION 143 OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB-SECTION (2A) OF SECTION 142 , OR (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FU RNISHED INACCURATE PARTICULARS OF SUCH INCOME, OR (D) HAS CONCEALED THE PARTICULARS OF THE FRINGE BENE FITS OR FURNISHED INACCURATE PARTICULARS OF SUCH FRINGE BENEFITS, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PE NALTY, (I) [* * *] (II) IN THE CASES REFERRED TO IN CLAUSE (B), IN ADDIT ION TO TAX, IF ANY, PAYABLE BY HIM, A SUM OF TEN THOUSAND RUPEES FOR EAC H SUCH FAILURE ; (III) IN THE CASES REFERRED TO IN CLAUSE (C) OR CLAUSE (D), IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM WHICH SHALL NOT BE LE SS THAN, BUT WHICH SHALL NOT EXCEED THREE TIMES, THE AMOUNT OF TAX SOUG HT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INC OME OR FRINGE BENEFITS OR THE FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME OR FRINGE BENEFITS. EXPLANATION 1.WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFE RS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 14 COMMISSIONER (APPEALS) OR THE 48 [PRINCIPAL COMMISSIONER OR] COMMISSIONER TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATIO N IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING TH E TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR TH E PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION, BE DEEMED TO REPRESE NT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. EXPLANATION 2.WHERE THE SOURCE OF ANY RECEIPT, DEPOSI T, OUTGOING OR INVESTMENT IN ANY ASSESSMENT YEAR IS CLAIMED BY AN Y PERSON TO BE AN AMOUNT WHICH HAD BEEN ADDED IN COMPUTING THE INC OME OR DEDUCTED IN COMPUTING THE LOSS IN THE ASSESSMENT OF SUCH PERSON FOR ANY EARLIER ASSESSMENT YEAR OR YEARS BUT IN RESPECT OF W HICH NO PENALTY UNDER CLAUSE (III) OF THIS SUB-SECTION HAD B EEN LEVIED, THAT PART OF THE AMOUNT SO ADDED OR DEDUCTED IN SUCH EARLIE R ASSESSMENT YEAR IMMEDIATELY PRECEDING THE YEAR IN WHICH THE RECEIP T, DEPOSIT, OUTGOING OR INVESTMENT APPEARS (SUCH EARLIER ASSESSMEN T YEAR HEREAFTER IN THIS EXPLANATION REFERRED TO AS THE FIRST PRE CEDING YEAR) WHICH IS SUFFICIENT TO COVER THE AMOUNT REPRESENTED BY SUCH RECEIPT, DEPOSIT OR OUTGOING OR VALUE OF SUCH INVESTMENT (SUCH AMOUNT OR VALUE HEREAFTER IN THIS EXPLANATION REFERRED TO AS THE U TILISED AMOUNT) SHALL BE TREATED AS THE INCOME OF THE ASSESS EE, PARTICULARS OF WHICH HAD BEEN CONCEALED OR INACCURATE PARTICULARS O F WHICH HAD BEEN FURNISHED FOR THE FIRST PRECEDING YEAR; AND WHERE T HE AMOUNT SO ADDED OR DEDUCTED IN THE FIRST PRECEDING YEAR IS NOT SUFFICIENT TO COVER THE UTILISED AMOUNT, THAT PART OF THE AMOUNT SO ADDED OR DEDUCTED IN THE YEAR IMMEDIATELY PRECEDING THE FIRST P RECEDING YEAR WHICH IS SUFFICIENT TO COVER SUCH PART OF THE UTILISE D AMOUNT AS IS NOT SO COVERED SHALL BE TREATED TO BE THE INCOME OF THE A SSESSEE, PARTICULARS OF WHICH HAD BEEN CONCEALED OR INACCURATE P ARTICULARS OF WHICH HAD BEEN FURNISHED FOR THE YEAR IMMEDIATELY PRECE DING THE FIRST PRECEDING YEAR AND SO ON, UNTIL THE ENTIRE UTILIS ED AMOUNT IS COVERED BY THE AMOUNTS SO ADDED OR DEDUCTED IN SUCH E ARLIER ASSESSMENT YEARS. EXPLANATION 3. WHERE ANY PERSON FAILS, WITHOUT REASONABLE CAUSE, TO FURNISH WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1) OF SECTION 153 A RETURN OF HIS INCOME WHICH HE IS REQUIRED TO FURNISH UNDERSECTION 139 IN RESPECT OF ANY ASSESSMENT YEAR COMMENCING ON DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 15 OR AFTER THE 1ST DAY OF APRIL, 1989, AND UNTIL THE EXP IRY OF THE PERIOD AFORESAID, NO NOTICE HAS BEEN ISSUED TO HIM UNDER CLA USE (I) OF SUB- SECTION (1) OF SECTION 142 OR SECTION 148 AND THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) IS SATISFIED THAT IN RESPE CT OF SUCH ASSESSMENT YEAR SUCH PERSON HAS TAXABLE INCOME, THEN, SUCH PERSON SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB-SE CTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME IN RESPEC T OF SUCH ASSESSMENT YEAR, NOTWITHSTANDING THAT SUCH PERSON FU RNISHES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF TH E PERIOD AFORESAID IN PURSUANCE OF A NOTICE UNDER SECTION 148 . . 2.12. IF THE AFORESAID PROVISIONS OF THE ACT IS AN ALYZED WITH THE FACTS OF THE PRESENT APPEAL, WE ARE OF THE VIEW THAT BEFORE PENALTY IS IMPOSED THE ENTIRETY OF CIRCUMSTA NCES MUST REASONABLY POINT TO THE CONCLUSION THAT THE DI SPUTED AMOUNT REPRESENT THE INCOME AND THE ASSESSEE HAS CONSCIOUSLY CONCEALED THE PARTICULARS OF INCOME OR HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS AS WA S HELD BY HONBLE APEX COURT IN CIT VS ANWAR ALI 76 ITR 696. PROCEEDINGS CAN BE INITIATED AT ANY TIME AS WAS HEL D IN JYOTI PRAKASH MITTER VS UOI 112 ITR 378 (CAL.). IN AM SH AH AND COMPANY VS. CIT 108 TAXMAN 137 (GUJ). IT WAS HELD THAT CONCEALMENT/INACCURACY MUST BE CONSIDERED UP TO FIN AL STAGE. THE HONBLE JURISDICTIONAL HIGH COURT IN TH E SHERETON APPARELS VS ACIT 256 ITR 20 (BOM.) HELD THAT BOOKS OF ACCOUNT REFERS TO THOSE BOOKS WHICH ARE MAINTAINED FOR INCOME TAX PURPOSES. THE ASSESSEE HAS MAINTAINED I TS BOOKS OF ACCOUNTS IN SUCH A MANNER SO THAT THE LEGI TIMATE TAXES, DUE TO THE DEPARTMENT, ARE REDUCED WITHOUT T HE PERMISSION OF THE LAW MEANING THEREBY WITH WRONG IN TENTION DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 16 AND SUCH BOOKS ARE NOT DEPICTING TRUE PICTURES OF I TS ACCOUNTS. OUR VIEW FIND SUPPORT FROM THE DECISION O F THE TRIBUNAL DATED 13/01/2012 IN THE CASE OF SHREEJI TR ADERS VS DCIT (2012) 21 TAXMAN.COM 541 (MUMBAI ITAT). THERE IN ALSO ADDITIONAL INCOME WAS FILED U/S 153A, PURSUANT TO A SEARCH LEADING TO DETECTION OF INCRIMINATING DOCUME NTS, SHOWING SUPPRESS SALES/PURCHASES, IT WAS HELD THAT ASSESSEE WOULD NOT HAVE DISCLOSED THE INCOME WHICH WAS FOUND DURING THE COURSE OF SEARCH. THE PENALTY WAS HELD TO BE RIGHTLY IMPOSED. IT IS PERTINENT TO MENTION HER E THAT THE AFORESAID CONCLUSION WAS ARRIVED AT BY THE TRIBUNAL EVEN AFTER CONSIDERING THE FOLLOWING CASES. I. K.P. MADHUSUDAN VS CIT (2001) 251 ITR 99 (SC)(PARA -3) II. CIT VS RELIANCE PETRO PRODUCT LTD. 322 ITR 158 (SC) (PARA-5). III. SHERATON APPEALERS VS. ACIT 256 ITR 20 (BOM) (PARA- 6) IV. CIT VS KANHAIYALAL SARUPAIA 299 ITR 19 (RAJ.)(PARA- 11) V. ACIT VS KIRIT DAHYABHAI PATEL 121 ITD 159 (AHD.)(P ARA-12) VI. CIT VS S.D.V. CHANDRU 266 ITR 175 (MAD.)(PARA-12) VII. AJIT B. ZOTA VS ACIT 40 SOT543 (MUM)(PARA-12) VIII. MAHENDRA MITTAL VS. ACIT 132 ITD 80 (MUM) (PARA-12) IX. CIT VS SHRI SUNIL V.SANGOI (ITA NOS. 615 TO 619/MUM /2010) (PARA-12) X. ACIT VS RUPESH BHALIDAS PATEL 309 ITR (AT) 217 (AHD ) (PARA- 14) XI. CIT VS AVINASH CH. GUPTA 40 SOT 85 (KOL.) (PARA-14 ) XII. DCIT VS OMKARESHWAR R. KALANTRI 42 DTR 489 (PUNE) DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 17 XIII. SARLA M. AHUJA VS DCIT (ITA NO.1301/PN/2007 (PARA-1 6) 2.13. IF THE TOTALITY OF FACTS AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED HEREINABOVE INCLUDING RELI ED UPON BY THE LD. REPRESENTATIVES FROM BOTH SIDES ARE ANALYZED, WE FIND THAT THE PENALTY WAS IMPOSED BY T HE ASSESSING OFFICER FOR CONCEALMENT OF INCOME. THE S TAND OF THE ASSESSING OFFICER WAS AFFIRMED BY THE LD. FIRST APPELLATE AUTHORITY AND ALSO BY THE TRIBUNAL. THUS, THE TOTA LITY OF FACTS CLEARLY INDICATES THAT FROM THE BEGINNING ITS ELF THE ASSESSEE TRIED TO CONCEAL ITS INCOME IN SUCH A WAY SO THAT THE LEGITIMATE TAX, DUE TO THE DEPARTMENT, CAN BE R EDUCED WITH AN INTENTION TO DEFRAUD THE REVENUE. THERE IS A DIFFERENCE BETWEEN TAX PLANNING AND TAX AVOIDANCE. IT IS A CLEAR CASE OF CONCEALMENT OF INCOME, THEREFORE, IN OUR HUMBLE OPINION, EVEN THE DECISION FROM HONBLE APEX COURT IN RELIANCE PETRO PRODUCTS (322 ITR 158)(SC) CANNOT COME TO THE RESCUE OF THE ASSESSEE. IT IS NOT A CASE OF BONA-FIDE MISTAKE WHEREIN A BENEFIT OF THE DECISION IN CIT VS SKYLINE AUTO PRODUCTS PVT. LTD. 271 ITR 335 (MP) CAN BE EXT ENDED TO THE ASSESSEE, RATHER IT IS A CASE OF INTENTIONAL CO NCEALMENT OF INCOME. FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT EITHER THERE SHOULD BE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TERM BOOKS OF ACCOUNT REFERRED TO IN SUB-CLAUSE(1) OF EXPLANATIO N 5 TO SECTION 271(1)(C) OF THE ACT MEANS BOOKS OF ACCOUNT WHICH HAVE BEEN MAINTAINED FOR DETERMINING ANY SOURCE OF INCOME DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 18 FOR THE PURPOSES OF COMPUTATION OF TOTAL INCOME AND FOR CHARGING INCOME TAX THEREON. MEANING THEREBY, IN S UCH BOOKS OF ACCOUNT THE ASSESSEE IS EXPECTED TO PROVID E CREDIBLE DATA AND INFORMATION WITH THE PURPOSE OF FILING TAX RETURN. A CREDIBLE ACCOUNTING RECORD PROVIDES THE BEST FOUNDA TION FOR FILING RETURN OF BOTH DIRECT AND INDIRECT TAXES. T HIS IS NOT POSSIBLE UNLESS THE MAIN OBJECTIVES OF THE BOOKS OF ACCOUNTS ARE TO MAINTAIN A RECORD OF BUSINESS, TO CALCULATE PROFIT EARNED OR LOSS SUFFERED DURING THE RELEVANT PERIOD, TO DEPICT THE FINANCIAL POSITION OF THE BUSINESS, TO PORTRAY THE LIQUIDITY POSITION, TO PROVIDE UP-TO-DATE INFORMATION OF ASSE TS AND LIABILITIES WITH A VIEW TO DERIVE INFORMATION SO AS TO PREPARE PROFIT AND LOSS ACCOUNT AND DRAW A BALANCE SHEET TO DETERMINE INCOME AND SOURCE THEREOF. IT CANNOT BE UNDERSTOOD TO MEAN TO COMPILATION ARE COLLECTION OF SHEETS IN ONE VOLUME, THUS BOOKS OF ACCOUNTS ARE THOSE BOOKS OF ACCOUNT WHICH ARE MAINTAINED FOR THE PURPOSES OF IN COME TAX ACT AND NOT DIARIES MAINTAINED FOR PRIVATE RECO RD. POWER TO IMPOSE PENALTY U/S 271(1)(C) OF THE ACT DEPENDS UPON THE SATISFACTION OF THE ASSESSING OFFICER IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. OUR VIEW FINDS SUPPORT FRO M THE RATIO LAID DOWN BY THE FULL BENCH OF HONBLE DELHI HIGH COURT IN CIT VS RAMPUR ENGINEERING COMPANY LTD. (2009) 30 9 ITR 143 (DEL.)(FB). EVEN OTHERWISE, THE WORD INCOME IS READ TO INCLUDE LOSSES. IT BECOMES CRYSTAL CLEAR THAT EVEN IN A CASE WHERE ON ACCOUNT OF ADDITION CONCEALED INCOME IS RE TURNED LOSS STAND REDUCED AND EVEN IF FINAL ASSESSED INCOM E IS LOSS DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 19 PENALTY IS LEVIABLE BECAUSE INCOME INCLUDES DEEMED INCOME ALSO. OUR VIEW FIND SUPPORT FROM THE DECISION IN C IT VS UNIPOL CHEMICALS INTERMEDIATES LTD. 211 TAXMAN 45 ( SC), CIT VS GOLD COIN HEALTH FOOD PVT. LTD. 304 ITR 308 (SC) AND CIT VS RMP PLASTO (P.) LTD. (2009) 184 TAXMAN 372 ( SC). BEFORE PENALTY CAN BE IMPOSED, THE ENTIRETY OF CIRC UMSTANCES MUST REASONABLY POINT TO THE CONCLUSION THAT THE DI SPUTED AMOUNT REPRESENTED INCOME AND THE ASSESSEE HAS CONSCIOUSLY CONCEALED AS WAS HELD IN CIT VS ANWAR A LI 76 ITR 696 (SC). IN VIEW OF THESE FACTS AND THE FOREGO ING DISCUSSIONS, THE STAND OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) IS UPHELD. 2.14. SO FAR AS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT APPROPRIATE SECTION WAS NOT MENTIONED OR INAPPLICABLE LANGUAGE CONTAINED IN THE NOTICE WAS N OT DELETED IS CONCERNED, THE LD. COUNSEL FOR THE ASSES SEE ARGUED THAT IN THE NOTICE OF PENALTY THE ASSESSING OFFICER HAS NOT SPECIFIED WHETHER THE PENALTY IS PROPOSED ON CONCEA LMENT OF FACTS/INCOME OR FOR FILING INACCURATE PARTICULARS O F INCOME. THE NOTICE OF PENALTY PROCEEDING IS ILLEGAL. THUS, FURTHER ACTION INITIATED BY THE ASSESSING OFFICER AND SUBSE QUENT ORDER OF PENALTY IS INVALID. THE LD. COUNSEL OF TH E ASSESSEE FURTHER RELIED UPON VARIOUS DECISIONS OF THE TRIBUN AL LIKE:- (A) HAFIZ CONTACTOR VERSUS ACIT IN ITA 6222&23/M/2 013 (B) SAMSON PARINCHERRY VERSUS ACIT IN ITA NO. 4625 -30/M/2013 (C) GANGABEN P CHAUDHARY VERSUS ITO IN ITA NO.696/M /2013 DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 20 (D) SANGHAVI SAVLA COMMODITY BROKER P. LIMITED VERS US ACIT IN 1746/M/2011 (E) A.R. CHADHA VERSUS ACIT 80 ITD (DELHI)TM (F) JNC INTERNATIONAL VERSUS ITO IN ITA NO. 1058/M/ 2014 (G) RAHMAN KRISHNAMACHARI SOLD VS ACIT(2015) (D1) G JX -1712- TPAN (H) RAMKUMAR JALAN VERSUS ITO (105 TAXMAN 296) BOM (I) CIT VERSUS MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 2.15. ON THE OTHER HAND, THE LD. SPECIAL COUNSEL, DR. D. DANIEL, ARGUED THAT THE ASSESSING OFFICER ISSUED NON STATUTORY NOTICE AND NOT STRIKING OF THE COLUMN OR MAKING A SPECIFIC REFERENCE IN THE SAID NOTICE WHETHER THE P ENALTY IS INITIATED OR CONCEALMENT OF PARTICULAR OR FURNISHED INACCURATE PARTICULAR ARE NOT FATAL. THE ASSESSEE D ULY PARTICIPATED IN THE PENALTY PROCEEDING AND WAS GIVE N OPPORTUNITY BY ASSESSING OFFICER TO SUBSTANTIATE HI S EXPLANATION IN THE SAID PROCEEDING. THE ASSESSEE IS NOW PRECLUDED FROM TAKING SUCH TECHNICAL OBJECTION IN V IEW OF SECTION 292BB OF THE ACT, WHEN HE HIMSELF NOT OBJEC TED EITHER BEFORE ASSESSING OFFICER OR BEFORE LD. COMMI SSIONER OF INCOME TAX (APPEAL). THE ASSESSEE HAS NEVER DISCLOS ED DURING THE PENALTY PROCEEDING OR AT THE STAGE OF FI RST APPELLATE PROCEEDING THAT ASSESSEE SUFFERED ANY PRE JUDICE FOR NONDISCLOSURE OF SPECIFIC LIMB OF THE SECTION 271(1 ) (C) OF THE ACT FOR LEVY OF THE PENALTY. THE LEARNED SPECIAL CO UNSEL DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 21 ARGUED THAT SECTION 274 CONTAINS THAT OPPORTUNITY O F HEARING BE GIVEN TO THE ASSESSEE BEFORE CLAIMING THE PENALT Y. THE LANGUAGE OF THE SECTION DOES NOT SPEAK ABOUT THE IS SUANCE OF NOTICE. OPPORTUNITY OF HEARING IS ALWAYS LARGER THA N THE ISSUANCE OF NOTICE. THE ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE AB OUT THE PROPOSAL OF LEVY OF PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN WHY IT SHOULD NOT BE LEVIED AGAINST HIM. IF IT IS T AKEN FOR THE SAKE OF ARGUMENT THAT MERE MISTAKE IN THE LANGUAGE IN THE NOTICE FOR NON-STRIKING OFF OF INACCURATE PARTICUL AR OR MARKING ON CONCEALMENT OF INCOME PORTION CANNOT B Y ITSELF INVALIDATE THE NOTICE. ENTIRE FACTS AND BACKGROUNDS THEREOF ARE TO BE KEPT IN MIND. EVERY CONCEALMENT OF FACTS MAY ULTIMATELY RESULT IN FILING OF OR FURNISHING INACCU RATE PARTICULAR. IT WAS FURTHER ARGUED THAT NO STATUTORY NOTICE HAS BEEN PRESCRIBED IN THIS BEHALF IN THE INCOME TAX AC T. THE ASSESSEE WAS VERY WELL AWARE ABOUT THAT THE CHARGE AGAINST THE ASSESSEE IS CONCEALMENT OF INCOME. THE LD. SPEC IAL COUNSEL FURTHER RELIED UPON THE DECISION OF JURISDI CTIONAL HIGH COURT IN CIT VERSUS SMT. KAUSHALYA ( 216 ITR 660)(BOM) , DECISION OF PATNA HIGH COURT IN CIT VER SUS MITHILA MOTORS 149 ITR 751 (PAT) AND THE JUDGMENT O F HONBLE APEX COURT IN MAK DATA P. LTD 358 ITR593(S C). 2.16. WE HAVE CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE VARIOUS DECISIONS RELIED BY THEM. WE HA VE ALSO GONE THROUGH THE ORDER OF PENALTY PASSED BY ASSESSI NG DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 22 OFFICER AND THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEAL). WE ARE CONSCIOUS THAT ANY OF THE PAR TY MAY RAISE LEGAL ISSUE AT THIS STAGE, IF THE SAME CAN BE EMANATED FROM THE RECORD OF THE CASE. THE HONBLE JURISDICT IONAL HIGH COURT IN CIT VS SMT. KAUSHALYA (SUPRA) WHILE DEALIN G WITH THE SIMILAR GROUND ABOUT THE LIMB OF CHARGE, WHETHE R MERE MISTAKE IN LANGUAGE USED OR MERE NOT STRIKING OFF O F INACCURATE PORTION CANNOT BY ITSELF INVALIDATE NOTI CE ISSUED UNDER SECTION 274 OF THE ACT. THE LANGUAGE OF THE S ECTION DOES NOT SPEAK ABOUT THE ISSUANCE OF NOTICE. ALL T HAT IS REQUIRED IS THAT THE ASSESSEE BE GIVEN AN OPPORTUNI TY OF SHOW CAUSE. THE ISSUANCE OF NOTICE IS AN ADMINISTRA TIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSA L OF LEVY OF PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN WHY IT SHOULD NOT BE LEVIED AGAINST HIM. IF IT IS TAKEN FOR THE S AKE OF ARGUMENT THAT MERE MISTAKE IN THE LANGUAGE IN THE N OTICE FOR NON-STRIKING OFF OF INACCURATE PARTICULAR OR MARKING ON CONCEALMENT OF INCOME PORTION CANNOT BY ITSELF IN VALIDATE THE NOTICE. ENTIRE FACTS AND BACKGROUNDS THEREOF AR E TO BE KEPT IN MIND. EVERY CONCEALMENT OF FACT MAY ULTIMAT ELY RESULT IN FILING OF OR FURNISHING INACCURATE PARTIC ULAR. IT WAS FURTHER ARGUED THAT NO STATUTORY NOTICE HAS BEEN PR ESCRIBED IN THIS BEHALF IN THE INCOME TAX ACT. 2.17. THE HONBLE KARNATAKA HIGH COURT IN CIT VERS US MANJUNATHA COTTON & GINNING FACTORY (SUPRA) HELD T HAT NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPECIFIC ALLY STATE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 23 THE GROUNDS MENTIONED IN SECTION 271(1)(C) THAT IS, WHETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING O F INACCURATE PARTICULAR OF INCOME, SENDING PRINTED FO RM WHERE ALL THE GROUNDS MENTIONED IN THE SECTION 271 ARE ME NTIONED WOULD NOT SPECIFY THE REQUIREMENT OF LAW, THE ASSES SEE SHOULD KNOW THE GROUNDS WHICH HE HAS TO MEET SPECIF ICALLY. OTHERWISE, THE PRINCIPLES OF NATURAL JUSTICE ARE OF FENDED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. TAKING UP THE PENALTY PROCEEDING O N ONE LIMB AND FINDING THE ASSESSEE GUILTY ON ANOTHER LIM P IS ALSO BAD IN LAW. THOUGH THE PENALTY PROCEEDING EMANATE F ROM PROCEEDING OF ASSESSMENT, THEY ARE INDEPENDENT AND SEPARATE ASPECT OF PROCEEDING. ALL THE OTHER DECISI ONS RELIED BY THE LD COUNSEL FOR THE ASSESSEE IS BASED ON THE DECISION OF CIT VS MANJUNATHA COTTON & GINNING FACTORY (SUPR A), WHEREIN THE DECISION OF CIT VS KAUSHLYA (SUPRA) WA S NOT BROUGHT IN THE NOTICE OF COORDINATE BENCH OF MUMBAI TRIBUNAL. 2.18. THE HONBLE KARNATAKA HIGH COURT IN CIT VERS US SSAS EMERALD MEADOWS IN ITA NO. 380 OF 2015 ORDER DATED 23/11/2015, WHILE DISMISSING THE APPEAL OF REVENUE FOLLOWED THE DECISION OF CIT VERSUS MANJUNATHA COTT ON & GINNING FACTORY (SUPRA). AGAINST THE JUDGMENT OF KA RNATAKA HIGH COURT THE REVENUE FILED SPECIAL LEAVE PETITIO N BEFORE THE HONBLE APEX COURT AND THE SAME WAS DISMISSED VIDE SLP (CC NO. 11485/2016) ON 05/08/2016. THERE IS NO DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 24 DISPUTE TO THE SETTLED PROPOSITION OF LAW THAT DISM ISSAL OF THE SPECIAL LEAVE PETITION IN LIMINE BY HONBLE APEX COURT DOES NOT MEAN THAT THE REASONING OF THE JUDGMENT OF THE HIGH COURT AGAINST WHICH THE SPECIAL LEAVE PETITION HAS BEEN FILED BEFORE THIS COURT STANDS AFFIRMED OR THE JUDGMENT AND ORDER IMPUGNED MERGES WITH SUCH ORDER OF THIS C OURT ON DISMISSAL OF THE PETITION. IT SIMPLY MEANS THAT APE X COURT DID NOT CONSIDER THE CASE FOR WORTH EXAMINING FOR T HE REASON, WHICH MAY BE OTHER THAN MERIT OF THE CASE. NOR SUCH AN ORDER OF APEX COURT OPERATES AS RES-JUDICATA . AN ORDER REJECTING THE SPECIAL LEAVE PETITION AT THE THRESHO LD WITHOUT DETAILED REASONS THEREFORE DOES NOT CONSTITUTE ANY DECLARATION OF LAW OR A BINDING PRECEDENT. AND THE SIMILAR VIEW WAS EXPRESSED IN VARIOUS JUDGMENTS, VIZ, A. THE WORKMEN OF COCHIN PORT TRUST VS THE BOARD OF TRUSTEE S OF THE COCHIN PORT TRUST & ANR AIR 1978 SC 1283; B. AHMEDABAD MANUFACTURING & CALICO PRINTING CO LTD VS T HE WORKMEN & ANR AIR 1981 SC 960; C. INDIAN OIL CORPORATION LTD. VS. STATE OF BIHAR & ORS. AIR 1986 SC 1780; D. SUPREME COURT EMPLOYEES WELFARE ASSOCIATION VS. UNION OF INDIA & ORS. AIR 1990 SC 334; E. YOGENDRA NARAYAN CHOWDHURY & ORS VS. UNION OF INDIA & O RS AIR 1996 SC 751; F. UNION OF INDIA & ANR. VS SHER SINGH & ORS, AIR 1997 S C 1796; G. V.M. SALGAOCAR & BROS. (P) LTD. VS. COMMISSIONER OF IN COME TAX AIR 2000 SC 1623; DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 25 H. SAURASHTRA OIL MILLS ASSOCIATION GUJRAT VS. STATE OF G UJRAT & ANR. AIR 2002 SC 1130; I. UNION OF INDIA & ORS VS. JAIPAL SINGH (2004) 1 SCC 1 21; AND J. Y. SATYANARAYAN REDDY VS MANDAL REVENUE OFFICER, AND HRA PRADESH (2009) 9 SCC 447. 2.19. THE HONBLE APEX COURT IN KUNHAYAMMED & ORS VS STATE OF KERALA & ANR. AIR 2000 SC 2587, CONSIDE RED THE SIMILAR ISSUE AND SOME OF THE EARLIER JUDGMENTS AND CAME TO THE CONCLUSION THAT DISMISSAL OF SPECIAL LEAVE PETI TION IN LIMINE BY A NON-SPEAKING ORDER MAY NOT BE A BAR FOR FURTH ER RECONSIDERATION OF THE CASE FOR THE REASON THAT THE COURT MIGHT NOT HAVE BEEN INCLINED TO EXERCISE ITS DISCRE TION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA. THE DECLA RATION OF LAW WILL BE GOVERNED BY ARTICLE 141 WHERE THE MATTE R HAS BEEN DECIDED ON MERIT BY A SPEAKING JUDGMENT AS IN THAT CASE DOCTRINE OF MERGER WOULD COME INTO PLAY. THIS COURT LAID DOWN THE FOLLOWING PRINCIPLES:- (I) WHERE AN APPEAL OR REVISION IS PROVIDED AGAINST AN ORDER PASSED BY A COURT, TRIBUNAL OR ANY OTHER AUTHORITY BEFO RE SUPERIOR FORUM AND SUCH SUPERIOR FORUM MODIFIES, REVERSES OR AFFIRMS THE DECISION PUT IN ISSUE BEFORE IT, THE DECI SION BY THE SUBORDINATE FORUM MERGES IN THE DECISION BY THE SUPERIO R FORUM AND IT IS THE LATTER WHICH SUBSISTS, REMAINS OPE RATIVE AND IS CAPABLE OF ENFORCEMENT IN THE EYE OF LAW. (II) THE JURISDICTION CONFERRED BY ARTICLE 136 OF THE C ONSTITUTION IS DIVISIBLE INTO TWO STAGES. THE FIRST STAGE IS UP TO THE DISPOSAL OF PRAYER FOR SPECIAL LEAVE TO FILE AN APPEAL. THE SEC OND STAGE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 26 COMMENCES IF AND WHEN THE LEAVE TO APPEAL IS GRANTED AND THE SPECIAL LEAVE PETITION IS CONVERTED INTO AN APPEAL. (III) DOCTRINE OF MERGER IS NOT A DOCTRINE OF UNIVERSA L OR UNLIMITED APPLICATION. IT WILL DEPEND ON THE NATURE OF JURISDICTION EXERCISED BY THE SUPERIOR FORUM AND THE CONTENT OR SUBJECT-MATTER OF CHALLENGE LAID OR CAPABLE OF BEIN G LAID SHALL BE DETERMINATIVE OF THE APPLICABILITY OF MERGER. THE SUPERIOR JURISDICTION SHOULD BE CAPABLE OF REVERSING, MO DIFYING OR AFFIRMING THE ORDER PUT IN ISSUE BEFORE IT. UNDER A RTICLE 136 OF THE CONSTITUTION THE SUPREME COURT MAY REVERSE, MOD IFY OR AFFIRM THE JUDGMENT-DECREE OR ORDER APPEALED AGAINST WH ILE EXERCISING ITS APPELLATE JURISDICTION AND NOT WHILE E XERCISING THE DISCRETIONARY JURISDICTION DISPOSING OF PETITION F OR SPECIAL LEAVE TO APPEAL. THE DOCTRINE OF MERGER CAN THEREFORE BE APPLIED TO THE FORMER AND NOT TO THE LATTER. (IV) AN ORDER REFUSING SPECIAL LEAVE TO APPEAL MAY BE A NON- SPEAKING ORDER OR A SPEAKING ONE. IN EITHER CASE IT DO ES NOT ATTRACT THE DOCTRINE OF MERGER. AN ORDER REFUSING SPECIAL LEAVE TO APPEAL DOES NOT STAND SUBSTITUTED IN PLACE OF TH E ORDER UNDER CHALLENGE. ALL THAT IT MEANS IS THAT THE COURT WAS NOT INCLINED TO EXERCISE ITS DISCRETION SO AS TO ALLOW TH E APPEAL BEING FILED. (V) IF THE ORDER REFUSING LEAVE TO APPEAL IS A SPEAKIN G ORDER, I.E., GIVES REASONS FOR REFUSING THE GRANT OF LEAVE, THEN THE ORDER HAS TWO IMPLICATIONS. FIRSTLY, THE STATEMENT OF LAW CONTAINED IN THE ORDER IS A DECLARATION OF LAW BY THE SUPREME COURT W ITHIN THE MEANING OF ARTICLE 141 OF THE CONSTITUTION. SECO NDLY, OTHER THAN THE DECLARATION OF LAW, WHATEVER IS STATED IN T HE ORDER ARE THE FINDINGS RECORDED BY THE SUPREME COURT WHICH WOULD BIND THE PARTIES THERETO AND ALSO THE COURT, TRIBUNAL OR AUTH ORITY IN ANY PROCEEDINGS SUBSEQUENT THERETO BY WAY OF JUDICIAL DISCIPLINE, THE SUPREME COURT BEING THE APEX COURT OF THE COUNTRY. BUT, THIS DOES NOT AMOUNT TO SAYING THAT THE DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 27 ORDER OF THE COURT, TRIBUNAL OR AUTHORITY BELOW HAS STOOD MERGED IN THE ORDER OF THE SUPREME COURT REJECTING THE SP ECIAL LEAVE PETITION OR THAT THE ORDER OF THE SUPREME COURT IS THE ONLY ORDER BINDING AS RES-JUDICATA IN SUBSEQUENT PROCEE DINGS BETWEEN THE PARTIES. 2.20. AS THERE IS NO DECLARATION OF LAW WHICH MAY BE GOVERNED BY ARTICLE 141 OF THE CONSTITUTION OF INDI A IN THE CASE OF CIT VERSUS SSAS EMERALD MEADOWS DISMISSED BY HONBLE APEX COURT, VIDE SLP (CC NO. 11485/2016) ON 05/08/2016. THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN CIT VS KAUSHALYA (SUPRA) IS STILL HAVING A BINDING FORCE ON US. THUS, WITH UTMOST REGARDS TO THE JUDGM ENT OF KARNATAKA HIGH COURT IN CIT VS MANJUNATHA COTTON & GINNING FACTORY (SUPRA) WE ARE BOUND TO FOLLOW THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN CIT VS KAUSHALYA (S UPRA). OUR VIEW ALSO FIND SUPPORT FROM A DECISION OF THE M UMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DHAWAL K. JAIN VS INCOME TAX OFFICER (ITA NO.996/MUM/2014) ORDER DATE D 30/09/2016. WITH THESE OBSERVATIONS, THE ARGUMENT O F LD. COUNSEL OF THE ASSESSEE ON THE LEGAL/TECHNICAL GROU ND IS REJECTED. THUS, ALL THESE FOUR APPEALS ARE, THEREFO RE, DISMISSED AND THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS AFFIRMED. 3. NOW, WE SHALL TAKE UP ITA NO.3831 & 3832/MUM/2009, WHEREIN PENALTY U/S 273 WAS CONFIRME D. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO SECTION WAS MENTIONED IN THE PENALTY ORDER, THEREFORE, THE PENALTY DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 28 HAS TO BE DELETED. IT WAS CONTENDED THAT IT WAS A DEBATABLE ISSUE AND LOSS HAS BEEN ACCEPTED BY THE TRIBUNAL AN D MERELY QUANTUM ADDITION WAS CONFIRMED DOES NOT MEAN THAT INCOME WAS CONCEALED. 3.1. ON THE OTHER HAND, THE LD. SPECIAL COUNSEL FO R THE DEPARTMENT, EXPLAINED THAT SECTION HAS BEEN MENTION ED AT THE TOP OF THE PENALTY NOTICE, THEREFORE, THE CLAIM OF THE ASSESSEE THAT NO SECTION WAS MENTION IS FACTUALLY I NCORRECT. THE ADDITION/PENALTY WAS RIGHTLY CLAIMED TO BE MADE BY CONTENDING THAT THE CASES RELIED UPON BY THE LD. CO UNSEL FOR THE ASSESSEE ARE NOT APPLICABLE TO THE FACTS. 3.2. ON PERUSAL OF THE NOTICE ISSUED U/S 273 R.W. S 274, (PAGE-35 OF THE PAPER BOOK), IT WAS FAIRLY AGR EED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SECTION 273(2)(B) OF THE ACT HAS BEEN MENTIONED IN THE AFORESAID NOTICE. SINCE, WE HAVE DELIBERATED UPON THE FACTS/CASE LAWS IN DETAIL, WHI LE DELIBERATING/ADJUDICATING THE APPEALS OF THE ASSESS EE U/S 271(1)(C) OF THE ACT IN EARLIER PARAS OF THIS ORDER , THEREFORE, CONSIDERING THE ELABORATE DISCUSSION MADE THEREIN A ND THE FACTUAL MATRIX AVAILABLE ON RECORD, ON IDENTICAL RE ASONING, WE FIND THAT THE ASSESSEE NEITHER PAID THE ADVANCE TAX NOR FILED THE ESTIMATE OF ADVANCE TAX PAYABLE IN TERMS OF SECTION 209A OF THE ACT, THE ASSESSEE FAILED TO FULFILL THE STATUTORY OBLIGATION. THE ORIGINAL RETURN WAS ACCEPTED U/S 1 43(1) OF THE ACT AND AS A RESULT, EFFECTIVELY, THE SUBSEQUEN T DHANRAJ MILLS PVT. LTD. ITA NOS.3830 TO 3831/MUM/2009 AND ITA NOS. 4115 & 4116/MUM/2012 29 ASSESSMENT IS THE ONLY ASSESSMENT IN THE CASE OF TH E ASSESSEE. EVEN BONA-FIDE BELIEF IS NOT BORNE OUT OF FACTS. CONSIDERING THE TOTALITY OF FACTS, WE FIND NO INFIR MITY IN THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (A PPEAL), THUS, THESE APPEALS ARE ALSO DISMISSED. FINALLY, THE APPEALS OF THE ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21/03/2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; / DATED : 21/03/2017 F{X~{T? P.S / 0) !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. 1234 / THE APPELLANT 2. 534 / THE RESPONDENT. 3. 6 6 * 7$ ( 12 ) / THE CIT, MUMBAI. 4. 6 6 * 7$ / CIT(A)- , MUMBAI 5. 8)9$ , 6 12-1 : , * / DR, ITAT, MUMBAI 6. '; / GUARD FILE. / BY ORDER, 582$$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , * / ITAT, MUMBAI,