Shri Kulwant Singh Bhatia, Indore V. The Addl. CIT, Range-3, Indore

ITA 414/IND/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2233 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 18-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 26-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Search and seizure; Principle of natural justice; Retrospective amendment; Question of law
• Section: 153A

Judgement Text

SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 1 OF 23 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . /. I.T.A NO.414 TO 419/IND/2012 / ASSESSMENT YEAR : 2002-03 TO 2007-08 SHRI KULWANT SINGH BHATIA, 178 VISHNUPURI ANNEXE, INDORE . . . /PAN: AEKPB 7313K V. ADDL. CIT RANGE 3(1), INDORE /APPELLANT /RESPONDENT /APPELLANT BY SHRI ANIL GARG, CA /RESPONDENT BY SHRI MOHD. JAVED, SR. D.R. / DATE OF HEARING 08-08-2017 /DATE OF PRONOUNCEMENT 11-08-2017 /O R D E R O. P. MEENA AM. 1. THESE SIX APPEALS FILED BY THE ASSESSEE IS DIRECTED AGAINST THE SEPARATE ORDERS OF LD. COMMISSIONER OF INCOME T AX (APPEALS)- I, INDORE, [IN SHORT REFERRED TO AS THE CIT (A)] EA CH DATED 30.04.2012. THESE APPEALS PERTAINS TO ASSESSMENT YE ARS 2002- 03 TO 2007-08, ARISEN FROM THE PENALTY ORDER PASSED UNDER SECTION 271(1) (C) OF INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 2 OF 23 AS THE ACT) BY THE ADDL. CIT RANGE- 3(1), INDORE DTD. 29-06- 2010 (HEREINAFTER REFERRED AS THE AO). THESE SIX AP PEALS INVOLVE A COMMON ISSUE, ARISING OUT OF THE SAME SET OF FACTS AND WERE HEARD TOGETHER. AS A MATTER OF CONVENIENCE, THEREFO RE, ALL THE SIX APPEALS ARE BEING DISPOSED OF BY WAY OF THIS CONSOL IDATED ORDER. 2. WHILE MATERIAL FACTS OF ALL THESE CASES ARE THE SAM E, INASMUCH AS ALL THE SIX APPEALS BEFORE US RELATES T O THE ASSESSEE SHRI KULWANT SINGH BHATIA WHO BELONGS TO BHATIA GRO UP OF INDORE, IN WHICH SEARCH AND SEIZURE OPERATION CARRI ED OUT ON 25 SEPTEMBER 2007 AT VARIOUS BUSINESS PREMISES AND RE SIDENTIAL PREMISES. THIS GROUP IS ENGAGED IN THE COAL TRADI NG. WE ARE TAKING UP THE APPEAL FOR THE ASSESSMENT YEAR 2002-0 3, THERE FINDINGS OF WHICH WOULD MUTATIS MUTANDIS APPLY FOR OTHER ASSESSMENT YEARS AS WELL. THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN TAKEN I.T.A. NO.414/IND/2016 FOR THE ASSESSMEN T YEAR 2002-03: 1. THAT, THE LEARNED CIT (A) GROSSLY ERRED, BOTH ON FA CTS AND IN LAW, IN UPHOLDING THE ORDER OF PENALTY U/S 271(1)(C) OF INCOME TAX ACT,1961 RESULTING INTO CONFIRMATION OF THE PENALTY OF RS. 2,84,090/- 2. THAT, THE LEARNED CIT (A) GROSSLY ERRED IN CONFIRMI NG THE PENALTY WITHOUT CONSIDERING THE MATERIAL FACT T HAT THE APPELLANT HAD NEITHER CONCEALED NOR FURNISHED INACCURATE PARTICULARS OF HIS INCOME FOR THE YEAR UNDER CONSIDERATION AND THEREFORE,, HE WAS NOT LIAB LE FOR ANY PENALTY U/S. 271(1)(C) OF THE ACT. SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 3 OF 23 3A) THAT, THE LEARNED CIT (A) GROSSLY ERRED IN CONFIRMING THE IMPOSITION OF PENALTY, WHICH IS SOLE LY BASED ON THE ADDITIONAL INCOME DECLARED BY THE APPELLANT IN HIS RETURN OF INCOME FURNISHED UNDER SECTION 153A. 3B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARN ED CIT (A) GROSSLY ERRED IN CONFIRMING THE PENALTY WHICH HAS BEEN IMPOSED BY THE LEARNED AO WITHOUT FIRST REACHING TO ANY OBJECTIVE SATISFACTION AS CONTEMPLATED UNDER THE PROVISIONS OF SUB-SECTION (1 ) OF SECTION 271 OF THE ACT. 2. ADDITIONAL GROUND OF APPEAL: DURING THE CURRENCY OF APPEAL, THE ASSESSEE HAS ALSO FILED AN ADDITIONAL G ROUND OF APPEAL AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPOSITION OF PENALTY IS ILLEGAL INASMUCH AS A VAGUE AND CRYPTIC SHOW-CAUSE NOTICE WAS ISSUED TO THE APPELLANT UNDER SECTION 274 WITHOUT MAKING HIM AWARE OF THE SPECIFIC CHARGE LEVELED AGAINST HIM AND THEREFORE, IN VIEW OF THE DECISION OF THE HON`BLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. MANJUNATHA COTTON GINNING FACTORY [2013] 359 ITR 565 (KAR), THE PENALTY SO IMPOSED BY THE LEARNED AO DESERVE TO BE DELETED. 3. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT THE ADDITIONAL GROUND OF APPEAL BE A DMITTED AS IT IS BEING PURELY QUESTION OF LAW, GOES TO THE ROOT O F THE MATTER AND NO FURTHER INQUIRY IS REQUIRED FOR DECIDING THE SA ME AS ALL FACTS SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 4 OF 23 ARE ALREADY ON RECORD AND ISSUE ARISE OUT OF IMPUGN ED ORDER. THE LD. A.R. ALSO PLACED RELIANCE ON FOLLOWING DECISION S: NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (S C) [1999] 157 CTR 249 (SC), AND NATIONAL NEWS PRINT & PAPER M ILLS LTD. 223 ITR 688 (MP). 4. ON THE OTHER HAND, THE LD. SR. D.R. OPPOSED THE ADM ISSION OF ADDITIONAL GROUND. 5. WE HAVE CONSIDERED THE FACTS AND MATERIAL ON RECOR D. THE ADDITIONAL GROUND BEING LEGAL ONE, HENCE, ADMITTED. RELIANCE IS PLACED ON THE DECISION OF APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (S C) : [1999] 157 CTR 249 (SC) WHEREIN IT WAS HELD AS UNDER: THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO ISSU ES ARISING OUT OF THE APPEAL BEFORE THE COMMISSIONER OF INCOME -TAX (APPEALS) TAKES TOO NARROW A VIEW OF THE POWERS OF THE APPELLATE TRIBUNAL (VIDE, E.G., CIT V. ANAND PRASAD [1981] 128 ITR 388 (DELHI) , CIT V. KARAMCHAND PREMCHAND P. LTD. [1969] 74 ITR 254 (GUJ) AND CIT V. CELLULOSE PRODUCTS OF INDIA LTD. [1985] 151 ITR 499 (GUJ) [FB]) . UNDOUBTEDLY, THE TRIBUNAL WILL HAVE THE DISCRETION TO ALLOW OR NOT A LLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACT S WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS WE FAIL TO SEE WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO COR RECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. THE REFRAMED QUESTION, THEREFORE, IS ANSWERED IN TH E AFFIRMATIVE, I.E., THE TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AS FOUN D BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX L IABILITY OF SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 5 OF 23 THE ASSESSEE. WE REMAND THE PROCEEDINGS TO THE TRIB UNAL FOR CONSIDERATION OF THE NEW GROUNDS RAISED BY THE ASSE SSEE ON THE MERITS. 6. FURTHER, THE HON`BLE JURISDICTIONAL HIGH COURT IN THE CASE OF DY. CIT VS. TURQUOISE INVESTMENT & FINANCE LTD.[ 20 06] 154 TAXMAN 80 (MP)[ 2008] 299 ITR 143(MP) AFFIRMED BY H ON`BLE SUPREME COURT [2008] 168 TAXMAN 107(SC) WHEREIN IT WAS LAID DOWN THAT IN VIEW OF THE WIDE POWERS THAT THE TRIBUNAL IS VES TED WITH AS REFERRED TO AND SPELT OUT BY APEX COURT IN NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 , THE TRIBUNAL CANNOT BE PRECLUDED FROM CONSIDERING THE QUESTIONS OF LAW ARISING IN AN ASSESSMENT PROCEEDIN G NOT RAISED EARLIER, AND RESTRICTED TO ISSUES ARISING OU T OF APPEAL BEFORE THE COMMISSIONER. [PARA 16] THUS, THE TRIBUNAL WAS JUSTIFIED IN LAW IN RECORDIN G A FINDING ON AN ISSUE WHICH WAS NOT RAISED BY THE ASS ESSEE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE COMMISSIONER (APPEALS) BUT WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THAT TOO IN AN APPEAL FILED BY THE DEPARTMENT. 7. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, THE ADDIT IONAL GROUND CAN BE ADMITTED WHERE FACTS ARE ALREADY ON R ECORD AND THERE IS PURE QUESTION OF LAW AND NO FURTHER ENQUIR Y OR INVESTIGATION ON FACTS IS REQUIRED. IN VIEW OF THES E FACTS AND CIRCUMSTANCES, THE ADDITIONAL GROUND IS ALLOWED IS TO BE ADMITTED AND THE SAME IS THEREFORE, BEING DISPOSED-OF ON MER ITS IN THE SUCCEEDING PARAS. SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 6 OF 23 8. A SEARCH AND SEIZURE OPERATION CONDUCTED ON SEPTEMB ER 25, 2007, WHEREIN THE ASSESSEE ADMITTED ADDITIONAL INCO ME OF RS. 1,25,48,154. CONSEQUENTLY, A NOTICE U/S 153A WAS IS SUED AND SERVED UPON AN ASSESSEE FOR THE ASSESSMENT YEAR UND ER APPEAL. IN RESPONSE TO NOTICE UNDER SECTION 153A FOR ABOVE ASSESSMENT YEARS, THE ASSESSEE HAS SHOWN ADDITIONAL INCOME OF RS. 2,05,21, 580/- IN THE RETURNS OF INCOME FILED UNDER SECTION 153A OF THE ACT FOR THE ASSESSMENT YEAR 2002-03 TO 2007-08 AS A GAINST THE SURRENDER MADE DURING SEARCH AT RS. 1,25,48, 154 UN DER SECTION 132(4) OF THE ACT. BRIEF FACTS RELATED TO ASSESSMEN T YEAR 2002-03 ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOM E DECLARING TOTAL INCOME AT RS.12,48,650/- INCLUDING ADDITIONAL INCOME OF RS.9,28,400/-.THE ASSESSMENT WAS COMPLETED U/S. 153 A ON DECEMBER 18, 2009 BY ACCEPTING RETURNED INCOME UNDE R SECTION 153A FOR A.Y. 2002-03. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAS SHO WN ADDITIONAL INCOME DUE TO SEARCH HENCE, PENALTY PROC EEDING UNDER SECTION 271(1) (C) WERE INITIATED FOR ALL THE ASSES SMENT YEARS. FURTHER, THE AO NOTED THAT THE ASSESSEE HAS OFFERED AN ADDITIONAL INCOME OF RS.9,28,400/- IN THE RETURN OF INCOME FIL ED U/S 153A. SINCE THE SAID INCOME WAS NOT DECLARED IN THE RETUR N FILED U/S SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 7 OF 23 139, HENCE THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1) (C) OF THE ACT. THE SUBMISSIONS FILED BY THE ASSESSEE HAS BEEN REPRODUCED BY THE AO IN THE PENALTY ORDER. THE AO H ELD THAT AFTER INSERTION OF EXPLANATION 5A OF SECTION 271(1)(C) WI TH EFFECT FROM 01.06.2007, THE LEGAL POSITION IS VERY CLEAR AND PE NALTY FOR CONCEALED INCOME HELD TO BE LEVIED. SINCE, THE ASSE SSEE HAS DECLARED UNDISCLOSED INCOME ONLY AFTER THE DATE OF SEARCH. THEREFORE, THE FACT THAT SUCH INCOME WAS OFFERED U/ S 132(4) DURING SEARCH PROCEEDINGS DOES NOT TAKE THE ASSESSE ES CASE OUT OF THE CLUTCHES OF THE ABOVE DEEMING PROVISIONS. IN VIEW OF THESE FACTS, THE AO LEVIED A PENALTY OF RS. 2,48,090/- BE ING MINIMUM PENALTY @100% OF THE CONCEALED INCOME OF RS.9,28,40 0/-. IN THE ADDITIONAL GROUND, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF NOTICE UNDER SECTION 271(1)(C). 9. BEING AGGRIEVED THE ASSESSEE HAS FILED AN APPEAL BE FORE THE CIT (A). THE ASSESSEE AGGRIEVED WITH ORDER OF THE A O FILED APPEAL BEFORE LD. CIT (A) WHO HAS ALSO CONFIRMED THE SAID PENALTY. ACCORDING TO LD. CIT (A) THE PROVISIONS OF SECTION 271(1)(C) TOGETHER WITH EXPLANATION 5A BRINGS THE ASSESSEE LI ABLE FOR PENALTY IN RESPECT OF ADDITIONAL INCOME DISCLOSED A FTER SEARCH AS THE SAME WAS BASED ON INCRIMINATING MATERIAL. ACCOR DINGLY, THE SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 8 OF 23 PENALTIES IMPOSED BY THE AO FOR THE ASSESSMENT YEAR S 2002-03 TO 2007-09 WERE SUSTAINED. IN ADDITION, PENALTY OF RS. 2,48,090/- FOR THE YEAR UNDER CONSIDERATION WAS CONFIRMED. 10. BEING AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ADDITIONAL GROUND OF APPEAL TAKEN UNDER RULE 11 OF INCOME TAX APPELLATE TRIBUNAL RULES 1963 IS AGAINST THE IMPOSI NG PENALTY BY ISSUING VAGUE AND CRYPTIC SHOW-CAUSE NOTICE FOR IM POSITION OF PENALTY WITHOUT MAKING THE ASSESSEE AWARE OF SPECIF IC CHARGE, HENCE, PENALTY DESERVE TO BE CANCELLED. THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED INCOME SHOWN IN THESE RETURN WER E OFFERED U/S. 132(4) AS WELL AS RETURNS FILED UNDER SECTION 153A. THESE INCOMES HAVE BEEN ACCEPTED IN THE ASSESSMENT ORDERS AS SUCH WITHOUT ANY VARIATION AND OBJECTION. THE LEARNED CO UNSEL SUBMITTED THAT THE BLANKET PENALTY PROCEEDINGS WERE INITIATED IN ALL THE CASES UNDER SECTION 271(1) (C). THE LD. COU NSEL FOR THE ASSESSEE TOOK US THROUGH PAPER BOOK PAGE NO. 13 TO 18 WHICH ARE THE COPIES OF SHOW-CAUSE NOTICES UNDER SECTION 274 WHICH ARE VAGUE AND CRYPTIC NOTICE INASMUCH AS IN THE SAID NO TICE, NON APPLICABLE CLAUSE WAS NOT STRUCK OFF BY THE AO . TH E PENALTY NOTICES UNDER SECTION 274 READ WITH SECTION 271(1) (C) WERE SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 9 OF 23 ISSUED IN THE TYPED FORMAT WITHOUT THE STRIKING OFF EITHER OF THE TWO CHARGES I.E. WHICH IS REPRODUCED AS UNDER: * HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR ...OR FURNISHED INACCURATE PARTICULARS OF INCOME . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SHOW-CAUSE NOTICE U NDER SECTION 274 IS NOT MERE EMPTY FORMALITY BUT IT HAS A DEFINI TE PURPOSE TO MAKE THE ASSESSEE AWARE OF THE EXACT CHARGES AGAINS T HIM AND THE CASE, WHICH IS REQUIRED TO MEET OUT. A CLEAR NO TICE NOT ONLY A STATUTORY REQUIREMENT BUT EVEN FOR THE PURPOSE OF PRINCIPLE OF AUDI ALTERAM PARTEM WHICH REQUIRES THAT NO ONE SHOULD BE CONDEMNED UNHEARD, A NOTICE IN CLEAR TERM SPECIFYI NG THE CLEAR CHARGES AGAINST AN ASSESSEE IS REQUIRED TO BE GIVEN BY AN ASSESSING OFFICER BEFORE IMPOSING A PENALTY. IT WAS SUBMITTED THAT BY NOT STRIKING OFF THE INAPPLICABLE CLAUSE, T HE LD. AO HAS LEFT THE MATTER OPEN FOR A COMPLETE GUESS WORK ON T HE PART OF THE APPELLANT FOR PRESUMING CHARGES LEVELED AGAINST HIM AND IN SUCH SITUATION, IT CANNOT BE SAID THAT AN EFFECTIVE OPPO RTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLANT AS CONTEMPLATED UN DER SECTION 274 OF THE ACT. THUS, THE PENALTY PROCEEDINGS WERE INITIATED WITHOUT SPECIFYING ANY PARTICULARS OR SPECIFIC CHAR GE AGAINST THE ASSESSEE IN EITHER THE ASSESSMENT ORDER OR EVEN THE PENALTY SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 10 OF 23 NOTICE. IT IS IMPORTANT TO POINT OUT THAT NO CHARGE EITHER OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS WAS MADE IN THE ASSESSMENT ORDERS IN ALL THESE CASE S. THE LEARNED COUNSEL REFERRED THE ASSESSMENT ORDER AND S UBMITTED THAT THE PERUSAL OF THE ASSESSMENT ORDER WOULD SHOW THAT IT WAS SIMPLY STATED THAT PENALTY PROCEEDINGS ARE INITIATE D U/S. 271(1)(C) AND UNDER SECTION 271AAA . ON THIS PROPOSITION THE LD. COUNSEL FOR THE ASSESSEE RELIED IN THE CASE OF CIT V. MANJU NATHA COTTON GINNING FACTORY [2013] 359 ITR 565 (KAR)/263 CTR 15 3/ 93 DTR 111(KARN)[2012] 82 CCH 282 KAR HC, ASST. CIT V. M. P. STATE TOURISM DEVELOPMENT CORPORATION [2015] 26 ITJ 225 ( TRIB- INDORE), SAFINA HOTELS (P) LTD. V. CIT [2016] 137 D TR 089 (KAR HC) , UMA SHANKAR AGARWAL V. DCIT [2016] 46 CCH 005 7 (KOL- TRIB), SHABBIR ALLAUDIN LATIWALA V. DCIT [2011] 29 CCH 0713(RAJKOT-TRIB) , DILIP N SHROFF V. JCIT [2007] 2 91 TTR 519 (SC), RISHI KUMAR AGARWAL V. DCIT [2017] 6 TMI 396( KOL-TRIB) ,ANAND SATISH KUMAR BHUTADA V. IKTO [2017] 5 TMI 4 82 (PUNE- TRIB) , SIDDHI HOME MAKERS V. ITO 5 TMI 121 (ITAT- MUM) [2017] AND CIT V. SSA`S EMERALD MEADOWS [2016] 8 TMI 1145( SC) IN SUPPORT OF HIS CLAIM. IT WAS SUBMITTED IN THE CASE OF CIT V. MANJUNATHA COTTON GINNING FACTORY [2013] 359 ITR 56 5 SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 11 OF 23 (KAR)/263 CTR 153/ 93 DTR 111(KARN) IT WAS OBSERVED IN PARA 59 THAT THE PRACTICE OF THE DEPARTMENT SENDING A PR INTED FORM WHERE ALL THE GROUND MENTIONED IN SECTION 271 ARE M ENTIONED WOULD NOT SATISFY THE REQUIREMENT OF LAW WHEN THE C ONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INITIATED PRESUMP TION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 30 0% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HE LD TO BE STRICTLY CONSTRUED, NOTICES ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS, WHICH HE HAS TO MEET SPECIFICALLY. OTHERWI SE, PRINCIPLE OF NATURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE NO TICE IS VAGUE. BASED ON SUCH PROCEEDINGS, NO PENALTY COULD BE IMPO SED ON THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT FOLLOWING THE THIS DECISION, THE HON`BLE KARNATAKA HIGH COURT IN CIT V. SSA`S EMERALD MEADOWS [2016] 73 TAXMANN.COM 248 (SC) [2016] 8 TMI 1145(SC) HAS DISMISSED THE APPEAL OF T HE REVENUE, WHICH WAS FILED AGAINST THE RATIO OF REITERATED BY THE HON`BLE KARNATAKA HIGH COURT BY WHICH HON`BLE HIGH COURT QU ASHED THE PENALTY ON THE GROUND OF IMPROPER NOTICE. THE LEARN ED COUNSEL ALSO SUBMITTED THAT EVEN IN THE MATTER OF SEARCH CA SE WHERE PENALTY IS LEVIED UNDER EXPLANATION 5A TO SECTION 2 71(1)(C), FOLLOWING DECISION OF CIT V. MANJUNATHA COTTON GINN ING FACTORY SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 12 OF 23 [2013] 359 ITR 565 (KARNATAKA), IT HAS BEEN HELD TH AT THE SHOW CAUSE NOTICE U/S. 274 WAS DEFECTIVE AS IT DOES NOT SPELL OUT THE GROUNDS ON WHICH THE PENALTY IS SOUGHT TO BE IMPOSE D AND CONSEQUENTLY, PENALTY IMPOSED WAS CANCELLED. THE LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE CASE OF ASST. CI T V. M. P. STATE TOURISM DEVELOPMENT CORPORATION [2015] 26 ITJ 225 (TRIB- INDORE), THIS BENCH HAS HELD THAT THE SATISFACTION OF THE AO ABOUT CONCEALMENT OF PARTICULARS OF INCOME OF FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME IS ESSENTIAL BEFORE LEV YING ANY PENALTY UNDER SECTION 271(1)(C). THE LD. COUNSEL FO R THE ASSESSEE ALSO STATED THAT IN DILIP N SHROFF V. JCIT [2007] 2 91 TTR 519 (SC) AT PARA 83 AND 84 IT WAS OBSERVED THAT STANDARD PRE FORMA USED BY THE AO IN ISSUING A NOTICE WITHOUT DELETING INAP PROPRIATE WORDS TANTAMOUNT TO NON APPLICATION OF MIND AND THE REBY IT IS NOT IN ACCORDANCE WITH PRINCIPLE OF NATURAL JUSTICE . WITH REGARD TO OBSERVATION OF THE CIT (A), THAT EXPLANATION 5A TO SECTION 271(1) (C) ARE APPLICABLE, IT WAS SUBMITTED THAT QU ESTION OF APPLICABILITY WOULD ONLY ARISE WHEN PENALTY PROCEED INGS ARE PROPERLY INITIATED BY ISSUING VALID AND PROPER SHOW CAUSE NOTICE UNDER SECTION 274. THEREFORE, THIS CONTENTION OF TH E LD. CIT (A) BECOMES REDUNDANT AND OUT OF CONTEXT. SO FAR AS REF ERENCE TO SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 13 OF 23 SECTION 271(1B) IS CONCERNED THE LEARNED COUNSEL SU BMITTED THAT THE SAME IS NOT RELEVANT IN THE CONTEXT OF THE BASI C ISSUE THAT THE PENALTY NOTICES ISSUED WERE DEFECTIVE AS THEY DID N OT SPELL OUT THE GROUND ON WHICH PENALTY SOUGHT TO BE IMPOSED AND TH EREFORE, NOT VALIDLY ISSUED. IT WAS SUBMITTED THAT THE ISSUE OF AMENDMENT OF SECTION 271(1B) WITH RETROSPECTIVE EFFECT WAS RAISE D BEFORE THE HON`BLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SSA`S EMERALD MEADOWS [2016] 73 TAXMANN.COM 248 (SC) AS E VIDENT FROM THE SECOND SUBSTANTIAL QUESTION OF LAW RAISED BY THE DEPARTMENT, WHICH THE HON`BLE HIGH COURT DECLINED T O ADMIT. THEREFORE, IT WAS SUBMITTED THAT THE LD. CIT (A) GR OSSLY ERRED IN CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1) (C) IN THESE CASES, WHICH MAY KINDLY BE DELETED. 11. ON THE OTHER HAND, THE LD. CIT (DR) SUPPORTED THE O RDERS OF THE LOWER AUTHORITIES. THE LD. DR REFERRING PARA 59 OF THE ORDER OF CIT V. MANJUNATHA COTTON & GINNING FACTORY (SUPRA) SUBMITTED THAT IN SOME CASES CASE BOTH OFFENCES IN CLAUSE (C) ARE ATTRACTED. THE LD. DR REFERRED DECISION OF MAK DATA P. LTD. VS . CIT [2013] 358 ITR 593(SC) AND CONTENDED THAT THE AO HAS TO SA TISFY WHETHER PENALTY PROCEEDINGS BE INITIATED OR NOT DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE AO IS NOT REQUIRE D TO RECORD SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 14 OF 23 HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE I N WRITING. THE LD. DR FURTHER SUBMITTED THAT IN THE CASE OF NEMICH AND JAIN V. ITO 2(1) INDORE [I.T.A. NO. 331/IND/2015) DTD. 08.0 6.2016, THE SMC BENCH THIS TRIBUNAL HELD THAT IT IS SUFFICE WHE RE THE AO HAS MENTIONED THAT PENALTY PROCEEDINGS ARE INITIATED SE PARATELY. THE LD. DR SUBMITTED THAT IN THE CIRCUMSTANCES CO MAHES H GANDHI V. ACIT [I.T.A. NO. 2976/MUM/2016 DTD. 27-02-2017, MUMBAI BENCH WHERE TYPED SHOW-CAUSE NOTICE UNDER SECTION 2 71(1) (C) IS ISSUED MENTIONING BOTH LIMBS AFTER RECORDING SATISF ACTION IN ASSESSMENT ORDER. THEREFORE, IT WAS URGED UPON US T O UPHOLD THE ORDER OF LD. CIT (A). 12. WE HAVE CONSIDERED THE FACTS, PERUSED THE MATERIAL ON RECORD, AND GONE THROUGH THE ASSESSMENT ORDER AND P ENALTY ORDER AND CASE LAWS RELIED BY THE PARTIES. A PERUSAL OF T HE PENALTY ORDER REVEALS THAT THE AO HAS REJECTED THE CONTENTIONS OF THE ASSESSEE ON THE BASIS THAT THE UNDISCLOSED INCOME IS DECLARE D AS RESULT OF SEARCH WAS NOT RECORDED IN BOOKS OF ACCOUNTS BEFORE THE DATE OF SEARCH. WE FIND THAT THE PENALTY NOTICES UNDER SECTION 274 READ WITH SECTION 271(1)(C)AND U/S. 271AAA WERE ISSUED I N THE TYPED FORMAT WITHOUT THE STRIKING OFF EITHER OF THE TWO C HARGES I.E. * HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR ..OR SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 15 OF 23 FURNISHED INACCURATE PARTICULARS OF INCOME . THUS, THE PENALTY PROCEEDINGS WERE INITIATED WITHOUT SPECIFYI NG ANY PARTICULAR OR SPECIFIC CHARGE AGAINST THE ASSESSEE IN EITHER THE ASSESSMENT ORDER OR EVEN THE PENALTY NOTICE. IT IS IMPORTANT TO POINT OUT THAT NO CHARGE EITHER OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS WAS MADE IN THE ASSESSMENT ORDERS IN ALL THESE CASES. FURTHER PERUS AL OF THE ASSESSMENT ORDER REVEALS THAT IT IS SIMPLY STATED T HAT PENALTY PROCEEDINGS ARE INITIATED U/S. 271(1)(C) AND SECTIO N 271AA. THUS, WE FIND THAT THE CHARGE AGAINST WHICH THE PENALTY I S TO BE LEVIED WAS NOT SPECIFIC. IT IS NOW A SETTLED PROPOSITION T HAT WHEN THE CHARGE ITSELF IS NOT A SPECIFIC AND IS VAGUE, PENAL TY CANNOT BE LEVIED. THE HON`BLE SUPREME COURT IN THE CASE OF T. ASHOK PAI V. CIT (2007) 292 ITR 11 (SC) HAS LAID DOWN THAT IT IS A SETTLED PROPOSITION THAT CONCEALMENT OF INCOME AND FURNISHI NG INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CO NNOTATION. IT IS SETTLED PROPOSITION THAT WHERE THE CHARGE FOR LEVYI NG PENALTY IS NOT SPECIFIC, THE NOTICE ISSUED UNDER SECTION 271(1 )(C) IS BAD IN LAW AS IT DOES NOT SPECIFY BY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT UNDER WHICH IT HAS BEEN INITIATED. WHEN THE NOT ICE DOES NOT SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 16 OF 23 SPECIFY THE CHARGE FOR LEVY OF PENALTY, IT HAS BEEN HELD THAT THE PENALTY CANNOT BE LEVIED. 13. FURTHER RELIANCE IN THE CASE OF CIT V. MANJUNATHA C OTTON GINNING FACTORY [2013] 359 ITR 565 (KAR)/263 CTR 15 3/ 93 DTR 111(KARN)[2012] 82 CCH 282 KAR HC, WHEREIN, IT WAS OBSERVED IN PARA 59 AS UNDER: THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED F ORM WHERE ALL THE GROUND MENTIONED IN SECTION 271 ARE MENTION ED WOULD NOT SATISFY THE REQUIREMENT OF LAW WHEN THE CONSEQU ENCES OF THE ASSESSEE NOT REBUTTING THE INITIATED PRESUMPTIO N IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 1 00% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS H AVE TO BE HELD TO BE STRICTLY CONSTRUED, NOTICES ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS, WHICH HE HAS TO MEET SP ECIFICALLY. OTHERWISE, PRINCIPLE OF NATURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, N O PENALTY COULD BE IMPOSED ON THE ASSESSEE. 14. THE ABOVE DECISION WAS FURTHER FOLLOWED BY THE HON` BLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SSA`S E MERALD MEADOWS [I.T.A. NO. 380/2015 DATED 23 RD NOVEMBER 2015] WHEREIN THE HON`BLE HIGH COURT HAS DISMISSED THE AP PEAL OF THE REVENUE BY OBSERVING THAT THE TRIBUNAL HAD ALLOWED THE APPEAL OF THE ASSESSEE HOLDING THAT THE NOTICE ISSUED BY THE ASSESSING SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 17 OF 23 OFFICER UNDER SECTION 274 READ WITH SECTION 271(1)( C) OF INCOME TAX ACT,1961 WAS BAD-IN-LAW AS IT DID NOT SPECIFY W HICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDIN GS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULA RS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. THE TRIBUNAL , WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAD RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CA SE OF CIT V. MANJUNATHA COTTON GINNING FACTORY [2013] 359 ITR 56 5. IT WAS FURTHER POINTED OUT THAT SLP FILED BY THE DEPARTMEN T AGAINST THIS DECISION WAS DISMISSED BY HON`BLE SUPREME COURT ON 05-08- 2016 REPORTED AS CIT V. SSA`S EMERALD MEADOWS [2016 ] 73 TAXMANN.COM 248 (SC). THE LEARNED COUNSEL ALSO SUBM ITTED THAT EVEN IN THE MATTER OF SEARCH CASE WHERE PENALTY IS LEVIED UNDER EXPLANATION 5A TO SECTION 271(1)(C), FOLLOWING DECI SION OF CIT V. MANJUNATHA COTTON GINNING FACTORY [2013] 359 ITR 56 5 (KARNATAKA), IT HAS BEEN HELD THAT THE SHOW CAUSE N OTICE UNDER SECTION 274 WAS DEFECTIVE AS IT DOES NOT SPELL OUT THE GROUNDS ON WHICH THE PENALTY IS SOUGHT TO BE IMPOSED AND CONSE QUENTLY, PENALTY IMPOSED WAS CANCELLED. THE CASE LAW IN THE CASE OF MAHABIR PRASAD AGARWAL V. ACIT KOLKATA TRIBUNAL IN [I.T.A. NO. 738 & 739/KOL/2013 DATED 15-10-2016] ALSO SUPPORT THE CASE OF SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 18 OF 23 THE ASSESSEE AS THE FACTS ARE IDENTICAL WITH THE FA CTS OF THE PRESENT APPEALS AS IN THESE APPEALS THE SHOW CAUSE NOTICES ISSUED BEFORE IMPOSING PENALTY DID NOT SPECIFIED WH ETHER AS TO THE ASSESSEE IS GUILTY OF HAVING FURNISHED INACCURA TE PARTICULARS OF INCOME OR OF HAVING CONCEALED PARTICULARS OF SUC H INCOME. WE MAY ALSO DRAW SUPPORT FROM THE RECENT DECISION OF C OORDINATED BENCH MUMBAI TRIBUNAL IN THE CASE OF MEHARJEE CASSI NATH HOLDINGS PVT. LTD. V. ACIT CIRCLE 4(2) IN I.T.A. N O. 2555/ MUM/2012 ORDER DTD. 28.04.2017 HAS ALSO HELD THAT T HE NOTICE ISSUED U/S. 274 BY THE AO IS UNTENABLE AS IT SUFFER S FROM THE VICE OF NON-APPLICATION OF MIND. IN THIS CASE THOUGH THE AO RECORDED IN THE ASSESSMENT ORDER THAT PENALTY PROCEEDING UND ER SECTION 271(1)(C) ARE TO BE INITIATED FOR FURNISHING OF INA CCURATE PARTICULARS OF INCOME, HOWEVER, IN THE NOTICE U/S. 274 BOTH THE LIMBS OF SECTION 271(1)(C) WERE REPRODUCED IN THE P REFORMA NOTICE AND THE RELEVANT CLAUSES WERE NOT STRUCK OFF. WHERE AS IN THE CASE OF THE ASSESSEE NO SPECIFIC CHARGES WERE LEVIED IN THE ASSESSMENT ORDER AS WELL AS PENALTY SHOW CAUSE NOTICE. 15. THE LD. COUNSEL FOR THE ASSESSEE RELIED THE CASE OF M.P. TOURISM DEVELOPMENT CORPORATION (SUPRA) WHICH HELD THAT SATISFACTION OF THE AO ABOUT CONCEALMENT IS MUST BE FORE LEVYING SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 19 OF 23 PENALTY UNDER SECTION 271(1)(C). IN THIS REGARD, OU R VIEW IS ALSO SUPPORTED BY THE DECISION OF HON`BLE SUPREME COURT IN CASE OF CIT V. SURESH CHANDRA MITTAL [2000] 251 ITR 9(SC), WHEREIN THE SUPREME COURT HAS UPHELD THE DECISION OF THE HON`BL E MADHYA PRADESH HIGH COURT CIT IN THE CASE OF SURESH CHANDR A MITTAL [20OO] 241 ITR 124 (MP), WHEREIN IN SIMILAR CIRCUMS TANCES; IT WAS HELD THAT THE INITIAL BURDEN LIES ON THE REVENU E TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED THE INCOME OR HAD F URNISHED INACCURATE PARTICULARS OF SUCH INCOME. THEREAFTER, IN SO FAR AS THE MANNER IN WHICH THE STATUTORY NOTICE WAS REQUIRED T O BE ISSUED, THE HON'BLE COURT CONCLUDED AS: NOTICE U/S 274 OF THE ACT SHOULD BE SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I.E. WHETHER IT IS FOR CONCEALME NT OF INCOME OR FOR FURNISHING OF INCORRECT PARTICULARS OF INCOM E. 16. THE HON'BLE SUPREME COURT IN DILIP N. SHROFF V. JCI T, [2007] 291 ITR 519 (SC), HAS OBSERVED THAT WHILE ISSUING THE NOTICE UNDER SECTION 274 R/W SECTION 271, IN THE ST ANDARD FORMAT, THE ASSESSING OFFICER SHOULD DELETE THE INAPPROPRIATE WORDS OR PARAGRAPHS, OTHERWISE, IT MA Y INDICATE THAT THE ASSESSING OFFICER HIMSELF WAS NOT SURE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE A SSESSEE SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 20 OF 23 HAD CONCEALED HIS INCOME OR HAD FURNISHED INACCURAT E PARTICULARS OF INCOME. WE FIND THAT THE AO HAS NOT STRUCK DOWN THE RELEVANT WORD/SENTENCE IN THE CYCLOSTYLED PERFORMA OF PENALTY SHOW CAUSE NOTICE; THEREFORE, THE AO WAS NO T SURE THAT ON WHAT GROUND HE IS LEVYING THE PENALTY. THE CASE LAWS SAFINA HOTELS (P) LTD. V. CIT [2016] 137 DTR 089 (KAR HC), UMA SHANKAR AGARWAL V. DCIT [2016] 46 CCH 0057 (KOL-TRI B), SHABBIR ALLAUDIN LATIWALA V. DCIT [2011] 29 CCH 0713(RAJKOT -TRIB) , DILIP N SHROFF V. JCIT [2007] 291 TTR 519 (SC), RIS HI KUMAR AGARWAL V. DCIT [2017] 6 TMI 396(KOL-TRIB) ,ANAND S ATISH KUMAR BHUTADA V. ITO [2017] 5 TMI 482 (PUNE-TRIB), SIDDH I HOME MAKERS V. ITO 5 TMI 121 (ITAT-MUM) [2017] ALSO SUPP ORTS THE CONTENTION OF THE ASSESSEE. 17. THE DECISION OF MAK DATA P. LTD. VS. CIT [2013] 358 ITR 593(SC) RELIED BY REVENUE SAYS THAT THE AO HAS TO S ATISFY WHETHER PENALTY PROCEEDINGS ARE TO BE INITIATED OR NOT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, BUT IN THE INSTAN T CASE, THE AO STATED HE IS SATISFIED THE IT IS FIT CASE FOR IN ITIATION OF THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AND 271 AA , MEANING THEREBY THAT THE AO WAS NOT SURE UNDER WHICH SECTIO N HE IS INITIATING PENALTY PROCEEDINGS. FURTHER, IN SHOW-CA USE NOTICE THE SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 21 OF 23 AO HAS NOT SPECIFIED SPECIFIC CHARGES, HENCE, SAID DECISION IS DISTINGUISHABLE ON FACTS AND LAW. IN THE CASE OF NE MICHAND JAIN (SUPRA) SHOW-CAUSE NOTICE FOR PENALTY PROCEEDINGS H AS SPECIFICALLY STATED THAT THE PENALTY PROCEEDINGS UN DER SECTION 271(1)(C) ARE SEPARATELY INITIATED. HOWEVER, IN THE CASE IN HAND, THERE WAS NO SUCH MENTION. THE DECISION OF MAHESH G ANDHI (SUPRA) RELIED BY THE LD. DR IS ALSO INAPPLICABLE A S IN THAT CASE THE ASSESSEE HAS FILED REVISED COMPUTATION OF INCOM E ON DIRECTORS FEE AND CAPITAL GAIN ON HDFC MUTUAL FUND DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE AO HAS SPECIFICALLY RECORDED FINDINGS IN PARA 5 OF THE ASSESSMENT ORDER IS DETAI LS ABOUT CONCEALMENT OF INCOME. HENCE, FACTS OF THE SAID C ASE ARE ENTIRELY DIFFERENT. 18. CONSIDERING ABOVE FACTS AND CIRCUMSTANCES AND RELYI NG JUDICIAL PRECEDENTS AS DISCUSSED ABOVE, WE ARE OF T HE CONSIDERED OPINION THAT PENALTY LEVIED UNDER SECTION 271(1)(C) IS NOT SUSTAINABLE IN LAW, AS NO SPECIFIC CHARGE WAS LEVIE D IN PENALTY SHOW CAUSE NOTICES, HENCE, IT IS CANCELLED. ACCORDI NGLY, ALL SIX APPEALS OF ASSESSEE ARE ALLOWED. 19. AS THE LEARNED REPRESENTATIVES OF BOTH SIDES HAVE F AIRLY AGREED, THAT WHATEVER WE DECIDE FOR THE ASSESSMENT YEAR 2002-03 SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 22 OF 23 IN I.T.A. NO. 414/IND/2012 WILL EQUALLY APPLY FOR A SSESSMENT YEAR 2003-04 TO 2007-08 AS MENTIONED IN ABOVE FORMAT OF APPEAL OF THIS ORDER, AS WELL. ALL THE MATERIAL FACTS, BUT FO R DIFFERENCES IN QUANTUM, ARE THE SAME. THERE IS NO DISPUTE ON THIS ASPECT AT ALL, AND THE SAME CONSEQUENCES MUST, THEREFORE, FOLLOW. ACCORDINGLY, THE PENALTIES LEVIED UNDER SECTION 271(1)(C) IN ALL SIX APPEALS OF THE ASSESSEE AS MENTIONED ABOVE STANDS CANCELLED AN D OUR OBSERVATIONS FOR THE ASSESSMENT YEAR 2002-03 ABOVE WILL APPLY MUTATIS MUTANDIS FOR ALL ASSESSMENT YEARS UNDER APPEALS AS WELL. ACCORDINGLY, LEVY OF PENALTY FOR THE ASSESSME NT YEARS 2002- 03 TO 2007-08 IS CANCELLED AND ADDITIONAL GROUND F OR ALL ABOVE YEARS IS ALLOWED. 20. SINCE WE HAVE ALLOWED THE APPEAL ON ADDITIONAL GRO UND AS DISCUSSED ABOVE, WERE THEREFORE, REFRAIN FROM DECID ING THE OTHER GROUNDS OF APPEAL ON MERITS AS SAME BECOME INFRUCTU OUS 21. IN THE RESULT, ALL THE IX APPEALS AS MENTIONED ABOV E ARE ALLOWED. 22. THE ORDER PRONOUNCED IN OPEN COURT ON 11.08.2017. SD/- SD/- ( C.M. GARG) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SHRI KULWANT SINGH BHATIA V. ADDL. CIT-RANGE 3(1) I NDORE/I.T.A. NO. 414 TO 419/IND/2012/A.Y.: 02-03 TO 07-08 PAGE 23 OF 23 DATED :11 TH AUGUST 2017 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE