MURLI DODEJA, MUMBAI V. ITO 21(3)(3), MUMBAI

ITA 3848/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8429 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A DHYANI
• Keywords: Earning of tax free income; Source of fund; Revised return
• Section: 143(3); 139(5); 147; 131; 148

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.3847/ MUM/2016 ( / ASSESSMENT YEAR : 2005-06) ./ I.T.A. NO.3848/ MUM/2016 ( / ASSESSMENT YEAR : 2007-08) MURLI DODEJA, SHOP NO. 1, KIPWALA COMPOUND, SAKIVIHAR ROAD, POWAI, ANDHERI (E), MUMBAI 400 072. / V. INCOME TAX OFFICER WARD 21(3)(3), BANDRA KURLA COMPLEX, BANDRA, MUMBAI - 400050. ./ PAN : AFUPD1268G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : MR. BHUPENDRA SHAH REVENUE BY : MR. R.A. DHYANI, DR / DATE OF HEARING : 08-02-2017 / DATE OF PRONOUNCEMENT : 17-02-2017 / O R D E R PER BENCH : THESE TWO APPEALS, FILED BY THE ASSESSEE, BEING IT A NO. 3847/MUM/2016 AND 3848/MUM/2016, ARE DIRECTED AGAIN ST TWO SEPARATE APPELLATE ORDERS BOTH 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 2005-06 & 2007-0 8, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM TWO SEPARATE PENALTY ORDERS BOTH DATED 13 TH MAY, 2013 PASSED BY THE LEARNED ASSESSING OFFICER ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 2 (HEREINAFTER CALLED THE AO) U/S 271(1)(C) OF THE INCOME-TAX ACT,1961 (HEREINAFTER CALLED THE ACT) FOR THE ASSESSMENT Y EARS 2005-06 & 2007-08. 2. THE COMMON GROUNDS OF APPEAL RAISED BY THE ASSES SEE 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 CONFIRMIN G 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 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 THA T 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.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 HA S FILED ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 2,51,293/- ON 9 TH AUGUST, 2005. ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 3 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 SHOWN I N THEIR RETURNS OF INCOME FILED WITH THE REVENUE. THE CASE WAS REOPEN ED 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 AND REASONS WERE RECOR DED FOR THE REOPENING OF THE ASSESSMENT. NOTICE DATED 15.3.2012 U/S 148 OF THE ACT WAS ISSUED BY THE AO AND DULY SERVED UPON THE ASSESSEE. THE ASSESSEE IN RESPONSE TO THE AFORE-STATED NOTICE SUBMITTED THAT THE ASSESSEE HAS ALREADY RECEIVED NOTICE DATED 19-03-2012 U/S 148 OF THE ACT FROM ASSTT. COM MISSIONER OF INCOME, CIRCLE 2, KALYAN . THE ASSESSEE ALSO SUBMITTED THA T THE ASSESSEE HAS ALREADY FILED VOLUNTARILY REVISED RETURN OF INCOME ON 28-02 -2011 WITH DY. COMMISSIONER OF INCOME TAX, RANGE 2, KALYAN AND PAI D THE DUE TAXES DUE ALONG WITH INTEREST TO THE CREDIT OF CENTRAL GOVERN MENT. SUBSEQUENTLY , THE RECORDS WERE TRANSFERRED BY ACIT, CIRCLE 2, KALYAN TO THE A.O. ON 30-10-2012 ALONG WITH ALL THE DOCUMENTS SUCH AS REASONS RECORD ED 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 AND INCOME FR OM OTHER SOURCE. IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAD DEPOSI TED CASH AMOUNTING TO RS. 1,50,000/- IN HIS S.B. ACCOUNT MAINTAINED WITH UNION BANK OF INDIA , SHAHAD, ULHASNAGAR ON 25 TH SEPTEMBER, 2004. THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE ASSESSEE HAS VOLUNTARILY FIL ED REVISED RETURN OF INCOME ON 28-02-2011 MUCH BEFORE RECEIPT OF ANY INQUIRY FR OM THE A.O. OR NOTICE U/S 148 OF THE ACT DATED 19-03-2012 FROM ACIT, KALYAN A ND NOTICE U/S 148 OF THE ACT DATED 29-03-2012 FROM THE A.O. THE ASSESSEE HAS ALSO SUBMITTED AFFIDAVIT DATED 21-03-2011 STATING THE FACTS AND CIRCUMSTANCE S IN WHICH THE ASSESSEE HAD DEPOSITED THE CASH OF RS. 1,50,000/- IN HIS BAN K ACCOUNT, THE COPY 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 T HE ASSESSEE HAS FILED RETURN OF INCOME ON 28-02-2011 WHICH IS NOT AT ALL A REVIS ED RETURN AS PER THE ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 4 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 LAPSED ON 31 ST MARCH, 2007. THE ASSESSEE HAD FILED ORIGINAL RETUR N OF INCOME 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 BANK A CCOUNT IN SEPTEMBER, 2004 AND STILL DID NOT DECLARE THE SAID INCOME IN T HE RETURN OF INCOME WHICH WAS FILED WITH REVENUE ON 09-08-2005. IT WAS OBSER VED BY THE AO THAT DODEJA FAMILY WAS UNDER ENQUIRY AND INVESTIGATION I N RESPECT OF TAX EVASION PETITION , FROM OCTOBER 2010 AND THUS IT COULD NOT BE SAID THAT REVISED RETURN OF INCOME WAS FILED PRIOR TO THE ENQUIRY AND ISSUE OF NOTICE U/S 148 OF THE ACT.THE AO HELD THAT THE ASSESSEE HAS DEPOSITED CAS H 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 TH E ASSESSEE HAS FILED A RETURN OF INCOME ON 28-02-2011 IN WHICH HE HAS DECL ARED THE CASH DEPOSIT AS HIS INCOME FROM OTHER SOURCES, AND REQUESTED TO CON SIDER THE SAME AS A RETURN IN RESPONSE 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 PROCE EDINGS WERE INITIATED BY THE AO BY ISSUE OF NOTICE DATED 29-11-2012 U/S 274 R.W. S. 271 OF THE ACT DATED 29-11-2012 AS THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME IN THE RETURN OF INCOME FILED WITH THE REVEN UE. IN RESPONSE, THE ASSESSEE FILED AN EXPLANATION VIDE LETTER DATED 18 TH MARCH, 2013 WITH 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 CON SULTANT THE ASSESSEE HAD DEPOSITED CASH IN BANK A/C. AND AS PER THE SAID ADVICE OF EX-TAX CONSULTANT THE ASSESSEE WAS UNDER BONA FIDE ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 5 IMPRESSION THAT THE SAID CASH DEPOSITED IS NOT SUBJ ECT TO INCOME TAX AND THEREFORE SAME WAS NOT INCLUDED IN THE ORIG INAL 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 ASSESSI NG OFFICER OR NOTICE U/S 148 WHICH WAS THE RECEIVED BY THE ASSESS EE AFTER FILING THE RETURN OF INCOME. 3. ASSESSEE'S STATEMENT U/S 131 WAS RECORDED BY INC OME TAX OFFICER (INV) IN MAY/JUN 2012 WHICH IS ALSO AFTER F ILING RETURN OF INCOME FOR THE ABOVE YEAR IN FEBRUARY 2011. 4. THE ASSESSEE HAS FILED VOLUNTARILY REVISED RETUR N OF INCOME AND MADE TRUE AND FULL DISCLOSURE OF HIS INCOME IN THE SAID REVISED RETURN OF INCOME AND PAID THE TAX DUE TO TH E DEPARTMENT ALONG WITH INTEREST PAYABLE U/S 234A/B/C JUST BY TH E PIECE AND AVOID PROTECTED LITIGATION WITH INCOME TAX DEPARTME NT. 5. CONSIDERING THE ABOVE FACTS THAT THE ASSESSEE HA S VOLUNTARILY FILED REVISED RETURN OF INCOME AND SAID REVISED RETURN IS REGULARIZED 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 REVISED RETURN OF INCOME EXPIRED ON 31-03- 2007. IT WAS OBSERVED BY THE A.O. THAT THE DEPARTM ENT STARTED THE ENQUIRY REGARDING THE CASH DEPOSITS BY THE DODEJA FAMILY ON RECEIPT OF TAX EVASION PETITION FROM SEPTEMBER, 2010, WHEREAS THE ALLEGED REVISED RETURN OF INCOME WAS FILED IN FEBRUARY, 2011 ONLY. THE AO ALSO OBSE RVED THAT THE ASSESSEE HAD FILED THE ALLEGED REVISED RETURN OF INCOME IN FEBRU ARY, 2011 WITH ITO, KALYAN WHILE THE ORIGINAL RETURN OF INCOME WAS FILED IN AU GUST, 2005 WITH ITO, MUMBAI. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS NOT DISCLOSED THE SAID BANK ACCOUNT WITH UNION BANK OF INDIA, SHAHAD , ULH ASNAGAR IN THE ORIGINAL ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 6 RETURN OF INCOME FILED WITH THE REVENUE. THUS, THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE THAT THE ASSESSEE HAD D ISCLOSED THE SAID INCOME VOLUNTARILY BEFORE THE SAME WAS DETECTED BY THE REV ENUE. THE ASSESSEE ALSO CONTENDED THAT HE HAD DEPOSITED CASH OF RS.1,50,000 /- IN THE BANK ACCOUNT AND THE SAME HAS NOT BEEN DISCLOSED AS PER THE ADVI CE OF THE EX-TAX CONSULTANT , WHICH CONTENTION WAS ALSO REJECTED B Y THE A.O. IN VIEW OF THE FACT THAT THE ASSESSEE IS NOW TRYING TO SHIFT THE B LAME ON THE TAX CONSULTANT. THE ASSESSEE RELIED UPON THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF T. ASHOK PAI V. CIT 292 ITR 11(SC) WHICH WAS DISTIN GUISHED BY THE A.O. AS IN THAT CASE THERE WAS NO ENQUIRY OR DETECTION BY THE DEPARTMENT, BUT WHILE IN THE INSTANT CASE THERE WAS AN ENQUIRY CARRIED OUT B Y THE REVENUE AGAINST THE DODEJA FAMILY. THE ASSESSEE ALSO RELIED UPON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS PRIVA TE LTD V. CIT (2012) 348 ITR 306(SC) WHEREIN THE SAID TAX-PAYER FAILED TO DI SALLOW THE EXPENSES U/S 40A(7) OF THE ACT , WHILE IN THE INSTANT CASE THE A SSESSE 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 LEVIED PENALTY OF RS. 45,900/- BEING 10 0% OF THE TAX SOUGHT TO BE EVADED U/S 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR 2005-06, VIDE PENALTY ORDER 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 PASSED BY THE A.O. U/S 271(1)(C) OF THE ACT , THE ASSESSEE CARRIED THE MAT TER BEFORE THE LD. CIT(A) AND REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AO . THE LEARNED CIT(A) CONFIRMED/SUSTAINED THE PENALTY OF RS. 45,900/- LE VIED BY THE A.O. U/S 271(1)(C) OF THE ACT BY HOLDING THAT THE ASSESSEE F AILED TO PROVE THAT THE EXPLANATION OFFERED BY THE ASSESSEE HAS NOT BEEN SU BSTANTIATED 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 ASSESSEE, VIDE APPELLATE ORDER DATED 2 1-03-2016 PASSED BY ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 7 LEARNED CIT(A). THE LEARNED CIT(A) RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA PRIVATE LIMIT ED V. CIT (2013) 358 ITR 593(SC) AND OTHER DECISIONS WHILE DISMISSING THE AP PEAL OF THE ASSESSEE WHILE PASSING APPELLATE ORDERS DATED 21-03-2016 . 5. AGGRIEVED BY THE APPELLATE ORDER DATED 21-03-20 16 PASSED 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 9 TH AUGUST, 2005 AND THE SAID RETURN OF INCOME WAS REVISED BY THE ASSESSEE VOLUNTARILY ON 28-02-2011. THE ASSESSEE DEPOSITED CASH OF RS. 1,50,000/- IN BANK ACCOUNT MAINTAINED W ITH UNION BANK OF INDIA, SHAHAD BRANCH WHICH WAS NOT CONSIDERED INCOME BY TH E ASSESSEE WHILE FILING ORIGINAL RETURN OF INCOME AS PER THE ADVICE OF ADVO CATE EX-TAX CONSULTANT FOR MORE THAN 30 YEARS WHO ADVISED ASSESSEE SAID AMOUNT WAS NOT CHARGEABLE TO TAX. THE ASSESSEE HAD FILED REVISED RETURN OF INCO ME ON 28-02-2011 WITH ITO, KALYAN WHEREIN SAID CASH DEPOSIT OF RS.1,50,000/- W AS INCLUDED AS INCOME IN THE REVISED RETURN OF INCOME FILED WITH THE REVENUE . IT IS SUBMITTED THAT THE ASSESSEE IS NOT AN EDUCATED PERSON AND DOES NOT UND ERSTAND THE COMPLEX INCOME TAX PROCEDURES. IT WAS SUBMITTED THAT THE S AID REVISED RETURN OF INCOME WAS FILED PRIOR TO ISSUE OF NOTICE U/S 148 O F THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E HAD SUBMITTED 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 REVENUE. THUS IT W AS SUBMITTED THAT PENALTY OF RS. 45,900/- LEVIED BY THE AO U/S 271(1)(C) OF T HE ACT AS CONFIRMED BY LEARNED CIT(A) CANNOT BE SUSTAINED AND NEED TO BE D ELETED. 7. THE LD. D.R., ON THE OTHER HAND RELIED ON THE OR DERS OF AUTHORITIES BELOW. ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 8 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO PE RUSED THE MATERIAL AVAILABLE ON RECORD AND CASE LAWS RELIED UPON BY T HE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 9 TH AUGUST, 2005. THE ASSESSEE HELD BANK ACCOUNT WITH UNION BANK OF I NDIA, SHAHAD , ULHASNAGAR IN WHICH ASSESSEE HAD DEPOSITED AN AMOUN T OF RS. 1.5 LACS IN CASH WHICH WAS NOT DECLARED AND DISCLOSED IN THE RE TURN OF INCOME ORIGINALLY FILED WITH THE REVENUE ON 09-08-2005. IT IS THE CO NTENTION OF THE ASSESSEE THAT HE RELIED ON THE EXPERT ADVISE OF HIS TAX-CONS ULTANT WHO ADVISED HIM THAT THE SAID AMOUNT RECEIVED WAS NOT TAXABLE BEING HIS SHARE IN PROFITS AND INVESTMENT IN DISCONTINUED FAMILY BUSINESS OF PROPE RTIES ON REALIZATION OF FUNDS INVESTED IN THE PROPERTIES ON FAMILY SEPARATI ON . THE ASSESSEE FILED SO CALLED REVISED RETURN OF INCOME ON 28 TH FEBRUARY, 2011 WHEREIN SAID CASH DEPOSIT OF RS.1.50 LACS IN UNION BANK OF INDIA, SHA HAD WAS DULY INCLUDED AS INCOME ALTHOUGH THE PRESCRIBED TIME LIMIT FOR FILIN G REVISED RETURN OF INCOME AS PRESCRIBED U/S 139(5) OF THE ACT HAD LAPSED LON G BACK ON 31-03-2007. THE SAID SO CALLED REVISED RETURN OF INCOME WAS ALSO NO T FILED BY THE ASSESSEE WITH JURISDICTIONAL AO BUT WITH THE ITO, KALYAN , BUT SA ID SO CALLED REVISED RETURN OF INCOME WAS ADMITTEDLY FILED PRIOR TO ISSUANCE OF SEPARATE NOTICES U/S 148 OF THE ACT BY ITO, KALYAN AND AS WELL BY THE JURISD ICTIONAL AO WHICH REMAINED UNCONTROVERTED AND IS AN ADMITTED POSITION BETWEEN THE RIVAL PARTIES AS NOTICES U/S 148 OF THE ACT WAS ISSUED BY THE ITO, K ALYAN AS WELL JURISDICTIONAL AO ONLY IN THE MONTH OF MARCH 2012 WHILE THE SO CAL LED REVISED RETURN OF INCOME WAS FILED EARLIER ON 28-02-2011. IT IS THE S AY OF THE REVENUE THAT TAX EVASION PETITION WAS FILED AGAINST THE ASSESSEE WHI CH WAS INVESTIGATED BY REVENUE SINCE SEPTEMBER 2010 WHICH IS THE MAIN REAS ON FOR THE ASSESSEE FILING SO CALLED REVISED RETURN OF INCOME WITH THE REVENUE ON 28-02-2011. IT WAS THE CONTENTION OF THE REVENUE THAT VERY FEW PER CENTAGE 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 COME FORW ARD TO FILE THE SO CALLED ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 9 REVISED RETURN OF INCOME ON 28-02-2011. THUS, IT IS THE CONTENTION OF THE REVENUE THAT THE ALLEGED REVISED RETURN OF INCOME F ILED BY THE ASSESSEE ON 28- 02-2011 INCLUDING THE SAID UNDISCLOSED INCOME OF RS .1,50,000/- WHICH WAS DEPOSITED IN CASH IN AN UNDISCLOSED BANK ACCOUNT WI TH UNION BANK OF INDIA WOULD HAVE NEVER COME INTO NOTICE OF THE REVENUE AN D THERE WOULD HAVE BEEN LOSS OF REVENUE. MERELY BECAUSE TAX EVASION PETITIO N IS FILED AGAINST THE TAX- PAYER DOES NOT MEAN THAT THE TAX-PAYER HAS CONCEALE D INCOME OR FURNISHED IN-ACCURATE PARTICULARS OF INCOME AND IT COULD NOT BE SAID WITH THE CERTAINTY THAT THE REVENUE WILL IN EACH OF SUCH CASES SHALL P ROCEED AGAINST THE TAX- PAYER BY RE-OPENING THE CONCLUDED ASSESSMENT IN EAC H AND EVERY TAX EVASION PETITION FILED AGAINST THE TAX-PAYER. THE TAX-PAYER CAN ALWAYS COME FORWARD AND EXPLAIN AND ACCOUNT FOR ITS SOURCES OF INCOME W ITH THE RETURN OF INCOME 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 PROVI SIONS OF THE ACT OR THE RECEIPT HAD A CHARACTER OF BEING AN EXEMPT INCOME W ITHIN STATUTORY PROVISIONS OF THE ACT OF 1961 . THERE ARE ALSO POSSIBILITIES T HAT THE TAX EVASION PETITIONS COULD BE FILED TO CAUSE VENGEANCE ON THE TAX-PAYER WITH A MALICE TO SEEK REVENGE AND RETRIBUTION AGAINST THE TAX-PAYER. THE FATE OF TAX EVASION PETITION HINGES ON THE OUTCOME OF AN ENQUIRY AND INVESTIGATI ON CONDUCTED BY THE REVENUE. THE TAX-PAYER MAY WHEN TAX-EVASION PETITIO N IS FILED AGAINST HIM ALSO RE-VISIT HIS FINANCIAL DATA FOR THE RELEVANT P ERIOD AND IN ORDER TO AVOID UN- NECESSARY AND PROTRACTED LITIGATION WITH REVENUE CO ME 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 PREPOND ERANCE OF HUMAN PROBABILITIES . THE ASSESSEE IN THE INSTANT CASE CAME FORWARD AND FILED SO CALLED REVISED RETURN OF INCOME ON 28-02-2011 ALBEI T BEYOND STIPULATED TIME U/S 139(5) OF THE ACT OF 1961 WHICH EXPIRED ON 31-0 3-2007 BUT BEFORE ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 10 ISSUANCE OF NOTICE U/S 148 OF THE ACT BY THE REVENU E IN THE MONTH OF MARCH 2012 AS WELL THE ASSESSEE FILED AFFIDAVIT DATED 21- 03-2011 EXPLAINING FACTS AND CIRCUMSTANCES UNDER WHICH THE SAID CASH OF RS.1 ,50,000/- WAS DEPOSITED IN HIS BANK ACCOUNT WHICH WAS NOT INCLUDED IN THE R ETURN OF INCOME FILED WITH THE REVENUE WHICH SHOWS AND PROVES BONA-FIDE CONDU CT OF THE ASSESSEE . THE ASSESSEE HAD SUBMITTED THAT THE SAID RECEIPT OF RS. 1,50,000/- WHICH WAS DEPOSITED IN CASH IN BANK ACCOUNT WITH UNION BANK O F INDIA, SHAHAD WAS ADVISED TO BE TAX-FREE BY HIS TAX-EXPERT ADVOCATE F OR LAST THIRTY YEARS .IT IS ALSO SUBMITTED THAT THE ASSESSEE BEING NOT HIGHLY EDUCAT ED PERSON TRUSTED THE SAID ADVOCATE TAX-EXPERT AND DID NOT INCLUDED THE S AID RECEIPT OF RS.1,50,000/- IN THE RETURN OF INCOME FILED WITH TH E REVENUE. THE ASSESSEE HAD ALSO FILED AN AFFIDAVIT DATED 21-03-2011 EXPLAI NING THE FACTS AND CIRCUMSTANCES WHEREIN THE SAID INCOME WAS NOT INCLU DED AS INCOME IN THE RETURN OF INCOME ORIGINALLY FILED WITH THE REVENUE. REVENUE COULD NOT CONTROVERT THE CONTENTS OF THE AFFIDAVIT FILED BY T HE ASSESSEE TO PROVE THAT THE SAID AFFIDAVIT HAD A FALSE OR UNTRUE AVERMENTS MADE BY THE ASSESSEE. IN OUR CONSIDERED VIEW KEEPING IN VIEW FACTS AND CIRCUMSTA NCES OF THE CASE, PENALTY LEVIED U/S 271(1)(C) OF THE ACT CANNOT BE SUSTAINED UNDER THE AFORE-STATED CIRCUMSTANCES AS THE ASSESSEE HAD CAME FORWARD WITH AN EXPLANATION WHICH IS A REASONABLE AND BONAFIDE EXPLANATION COMPLYING WITH THE MANDATE OF SECTION 271(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. THUS, THE ASSESSEES APPEAL IN ITA NO. 3847/MUM/2016 FOR ASSESSMENT YEAR 2005-06 IS ALLOWE D . WE ORDER ACCORDINGLY. 9. THE FACTS IN ASSESSEES APPEAL IN ITA NO. 3848/M UM/2016 FOR ASSESSMENT YEAR 2007-08 ARE SIMILAR TO FACTS IN ASSESSEES APP EAL IN ITA 3847/MUM/2016 FOR ASSESSMENT YEAR 2005-06 AND HENCE OUR DECISION IN ITA NO. 3847/MUM/2016 SHALL APPLY MUTATIS MUTANDIS TO T HE ASSESSEES APPEAL ITA NO. 3847/MUM/2016 & ITA NO. 3848/MUM/2016 11 IN ITA NO 3848/MUM/2016 FOR ASSESSMENT YEAR 2007-08 . THUS, THE ASSESSEE APPEAL IN ITA NO. 3848/MUM/2016 FOR ASSESSMENT YEAR 2007-08 STAND ALLOWED. 10. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA N O. 3847/MUM/2016 FOR ASSESSMENT YEAR 2005-06 AND ITA NO. 3848/MUM/2016 F OR ASSESSMENT YEAR 2007-08 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2017. # $% &' 17-02-2017 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 17-02-2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI I BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI