Appeal details
Counselvise Citation
[2017] 128 COUNSELVISE.COM (IT) 0354 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-06-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Assessment Year
2004-2005
Appeal Filed On
09-06-2014
Judgement Text
P A G E | 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI G.S. PANNU , AM AND SHRI RAVISH SOOD, JM ./ I.T.A(S). NO. 4188, 4189 & 4190/MUM/2014 ( / ASSESSMENT YEAR: 2004 - 05, 2006 - 07 & 2007 - 08 ) PBA INFRASTRUCTURE LIMITED 6/11, PRAKASH, V.N. PURAV MARG CHEMBUR MUMBAI 400071 TEL NO. 6775 3702 / VS. ACIT CENTRAL CIRCLE 36 GR. FLOOR ROOM NO. AAYAKAR BHAVAN M.K. ROAD CHURCHGATE MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACP7564K ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI Y.P. TRIVEDI SMT. USHA DALAL / RESPONDENT BY : SHRI A.B. KOLI (D.R.) / DATE OF HEARING : 05/06 /2017 / DATE OF PRONOUNCEMENT : 16 /06 /2017 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT SET OF THREE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) - 39, MUMBAI, EACH DATED 18.03.2014, PERTAINING TO A.Y(S): 2004 - 05, 2006 - 07 AND 2007 - 08, RESPECTIVELY, WHICH IN ITSELF ARISES P A G E | 2 FROM THE RESPECTIVE ORDERS PASSED BY THE ASSESSING OFFICER U/S 271(1)(C), DATED. 21.03.2012, 30.03.2012 AND 30.03.2012 FOR A.Y(S). 2004 - 05, 2006 - 07 AND 2007 - 08, RESPECTIVELY. THAT AS COMMON ISSUES ARE INVOLVED IN ALL THE THREE APPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED AND DISPOSED OF BY WAY OF A CONSOLIDATED ORDER. WE HEREIN FIRST TAKE UP THE APPEAL FOR A.Y. 2004 - 05, MARKED AS ITA NO. 4188/MUM/2014, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - 'BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 39, MUMBAI THIS APPEAL PETI TION IS SUBMITTED ON THE FOLLOWING GROUNDS: 1. THE ID. CIT (A) ERRED IN UPHOLDING THE PENALTY UNDER SECTION 271 (1) (C) OF THE INCOME TAX ACT AMOUNTING TO RS 16,73,2171 - WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE ID CIT (A), WHILE UPHOLDING THE AFORESAID PENALTY , ERRED IN CONCLUDING THAT EXPLANATION 5A TO THE SECTION 271(1)(C) IS ATTRACTED TO THE PRESENT CASE. 3. THE PROVISO STATES THAT WHEN DURING THE COURSE OF SEARCH UNDER SECTION 132 ON OR AFTER PT JUNE 2007, THE ASSESSEE IS FOUND TO BE OWNER OF ANY INCOME BASED ON ANY ENTRY IN BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTIONS AND THE ASSESSEE CLAIMS THAT SUCH INCOME REPRESENTS HIS INCOME, HOWEVER NO SUCH ENTRY, DOCUMENT OR TRANSACTION HAS BEEN FO UND DURING THE COURSE OF SEARCH UNDER SECTION 132 AND HENCE THE PROVISION OF EXPLANATION 5A TO THE SECTION 271(1)(C) IS NOT APPLICABLE. 4. IN THE CASE OF APPELLANT, THE ID. CIT(A) - 4 1 HAD IN A SEPARATE APPEAL FILED BY THE APPELLANT AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT DELETED THE ENTIRE ADHOC ADDITION ON INCOME AS DECLARED UNDER SEC. 153A WAS ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDING. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR MODIFY ANY OF THE ABOVE GROUNDS AT THE TIME OR BEFORE THE TIME OF HEARING.' 2 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WHICH IS ENGAGED IN EXECUTION OF INFRASTRUCTURE PROJECTS INCLUDING ROAD CONTRACTS AND OTHER BASIC DEVELOPMENT PROJECTS HAD FILED ITS ORIGINAL RETURN OF INCOME ON 31.10.2004 DECLARING TOTAL INCOME AT RS. 88,28,593/ - . THE ASSESSMENT WAS FRAMED U/S. 143(3) ON A.O THEREAFTER DELIBERATING ON THE CONTENTIONS OF THE ASSESSEE DURING P A G E | 3 22.12.2006 DETERMINING THE TOTAL INCOME OF THE ASSESSEE COMPANY AT RS.95,62,720/ - . THAT A SEARCH AND SEIZURE ACTION WAS CARRIED OUT U/S. 132 OF THE 'ACT' ON PBA GROUP OF CASES (INCLUDING THE ASSESSE E) ON 06.09.2007. THE ASSESSMENT U/S 143(3) R.W.S. 153A OF THE 'ACT' WAS COMPLETED ON 31.12.2009, AND THE INCOME OF THE ASSESSEE COMPANY WAS ASSESSED AT RS. 1,50,71,900/ - . 3. THE A.O WHILE FRAMING THE ASSESSMENT U/S 143(3) R.W.S. 153A HAD INTER ALIA MADE THE FOLLOWING ADDITIONS IN THE HANDS OF THE ASSESSEE: SR. NO. PARTICULARS AMOUNT 1. ADDITION ON ACCOUNT OF DELAYED DEPOSIT OF PF AND ESIC RS. 59,127/ - 2. INFLATED EXPENSES RS. 49,98,782/ - 3. SALARY TO FAMILY MEMBERS OF CMD SH. S.K. BOTHRA RS.1,64,020/ - THE ASSESSEE DURING THE COURSE OF THE SEARCH PROCEEDINGS HAD ALSO CAME UP WITH A DISCLOSURE OF ADDITIONAL INCOME OF RS. 45 LAC IN HIS STATEMENT RECORDED U/S. 132(4), WHICH THEREAFTER WAS OFFERED AS SUCH IN ITS RETURN OF INCOME. THE A.O. WHILE CONCLUDING THE ASSESSMENT INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) IN RESPECT OF THE ABOVE ADDITIONS/ DISALLOWANCES, AS WELL AS THE ADDITIONAL INCOME DISCLOSED U/S 132(4). 4. THE A.O THEREAFTER PROCEEDED WITH THE PE NALTY PROCEEDINGS IN RESPECT OF THE REMAINING TWO EFFECTIVE ISSUES, I.E. ADDITION IN RESPECT OF SALARY TO FAMILY MEMBERS OF THE MANAGING DIRECTOR MR. S.K. BOTHRA OF RS. 1,64,020/ - AND ADDITIONAL INCOME OF RS.45 LAC DISCLOSED BY THE ASSESSEE U/S 132(4) AND OFFERED AS SUCH IN ITS RETURN OF INCOME. THE A.O THEREAFTER DELIBERATING ON THE CONTENTIONS OF THE ASSESSEE DURING P A G E | 4 THE COURSE OF THE PENALTY PROCEEDINGS , THEREIN DID NOT FIND FAVOUR WITH THE SAME AND VIDE HIS ORDER U/S. 271(1)(C), DATED 21.03.2012, IMPOSED A PENALTY OF RS. 16,73,217/ - IN THE HANDS OF THE ASSESSEE. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT ORDER CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO THOUGH VIDE HIS ORDE R DATED. 18.03.20 14 DELETED THE ADDITIONS MADE BY THE A.O IN RESPECT OF THE DELAYED PAYMENT OF PP AND ESIC OF RS.59,127/ - AND I NFLATED EXPENSES OF RS.49,98,782/ - , BUT HOWEVER SUSTAINED THE REMAINING ADDITIONS. 6. THE ASSESSEE BEING AGGRIEVED WITH THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C) CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER PASSED BY THE A.O AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 7. THAT THE ASSESSEE BEING AGGRIEVED WITH THE UPHOLDING OF THE PENALTY BY THE CIT(A) H AD THUS CARRIED THE MATTER IN APPEAL BEFORE US. THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL THE ID. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R.) FOR THE ASSESSEE ASSAILING THE VALIDITY OF THE PENALTY ORDER, THEREIN DREW OUR ATTENTION TO THE 'SHOW CAUSE NOTICE' (SCN) ISSUED BY THE A.O U/S. 274 R.W.S. 271 OF THE 'ACT', DATED 31.12.2009 (PAGE 1 - 2 OF 'APB'). IT WAS SUBMITTED BY THE LD. A.R THAT A BARE PERUSAL OF THE 'SCN' GLARINGLY REVEALED THE NON APPLICATION OF MIND BY THE A.O, IN AS MUCH AS THE IRRELEVANT CHARGE PROVIDED IN THE NOTICE WAS NOT STRUCK OFF BY THE A.O. THE LD. A.R IN THE BACKDROP OF THE AFORESAID FACTUAL MATRIX SUBMITTED THAT THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C) WAS ILLE GAL AND THUS DESERVED TO BE SET ASIDE. THE ID, A.R. IN SUPPORT OF HIS AFORESAID CONTENTION RELIED ON THE ORDER OF ITAT, MUMBAI BENCH 'B', MUMBAI IN THE CASE OF MEHERJEE CASSINATH HOLDINGS VS. ACIT, CIRCLE - 4(2), MUMBAI (ITA NO. 2555/MUM/2012), DATED 28.04.2 0 17 (COPY PLACED ON RECORD). IT WAS P A G E | 5 SUBMITTED BY THE LD. A.R. THAT THE ISSUE INVOLVED IN THE PRESENT CASE WAS SQUARELY COVERED BY THE AFORESAID ORDER OF THE TRIBUNAL , AND RESULTANTLY THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C) WAS LIABLE TO BE QUASHED. PER CONTRA, THE LD DEPARTMENTAL REPRESENTATIVE (FOR SHORT 'D.R') SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. IT WAS AVERRED BY THE LD. D.R THAT THE NOT STRIKING OFF OF THE IRRELEVANT CHARGE IN THE NOTICE ISSUED BY THE A.O U/S. 274 R.W.S. 271 WAS MERELY A TECHNICAL DEFAULT, WHICH WOULD SQUARELY FALL WITHIN THE FOUR CORNERS OF SECTION 292B OF THE 'ACT'. IT WAS VEHEMENTLY SUBMITTED BY THE LD. D.R THAT THE NEITHER THE MERE NON STRIKING OFF OF THE IRRELEVANT CHARGE MENTIONED IN THE NOTICE ISSUED B Y THE A.O U/S 274 R.W.S 271 COULD BE CONSTRUED AS NON - APPLICATION OF MIND BY THE A.O, NOR WAS IT SO GRAVE A MISTAKE THAT IT WOULD JUSTIFIABLY INVALIDATE THE PENALTY WHICH OTHERWISE HAD VALIDLY BEEN IMPOSED IN THE HANDS OF THE ASSESSEE. THE LD. D.R. IN ORDE R TO DRIVE HOME HIS AFORESAID CONTENTION, THEREIN RELIED ON THE JUDGMENT OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. SMT. KAUSHALYA & ORS. (1995) 216 ITR 0660 (BORN) AND THE JUDGMENT OF THE HON'BLE HIGH COURT OF PATNA IN THE CASE OF CIT VS MITHILA MOTORS PVT. LTD. (1984) 16 TAXMAN 224 (PAT) TO SUPPORT HIS CONTENTION THAT MERE MISTAKE IN LANGUAGE USED OR MERE NON STRIKING OFF OF INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE ISSUED UNDER SEC. 274. 8. WE HAVE HEARD THE ID. AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE. WE FIND THAT IT REMAINS AS A MATTER O F CONCEDED FACT THAT IN THE NOTICE ISSUED BY THE A.O U/S. 274 R.W.S. 271 OF THE 'ACT', DATED 31.12.2009 (PAGE 1 - 2 OF APB) THE A.O HAD FAILED TO STRIKE OFF THE IRRELEVANT CHARGE IN THE NOTICE. WE WOULD NOW TEST THE VALIDITY OF THE AFORESAID NOTICE AND THE J URISDICTION EMERGING THEREOF, IN THE BACKDROP P A G E | 6 OF THE AFORESAID FACTS AS THEY SO REMAIN. WE ARE NOT OBLIVIOUS OF THE FACT THAT THE A.O. IS VESTED WITH THE POWER TO IMPOSE PENALTY IN THE HANDS OF THE ASSESSEE U/S 271(1)(C), IF IN THE COURSE OF THE PROCEEDINGS, HE IS SATISFIED THAT ANY PERSON HAS EITHER 'CONCEALED HIS INCOME' OR 'FURNISHED INACCURATE PARTICULARS OF HIS INCOME'. WE ARE OF THE CONSIDERED VIEW THAT BOTH OF THE SAID DEFAULTS CONTEMPLATED IN SEC. 271(1)(C) OPERATE IN THEIR EXCLUSIVE INDEP ENDENT FIELDS AND ARE NEITHER INTERCHANGEABLE, NOR OVERLAPPING IN NATURE. WE ARE OF A STRONG CONVICTION THAT AS PENALTY PROCEEDINGS ARE IN THE NATURE OF QUASI CRIMINAL PROCEEDINGS, THEREFORE THE ASSESSEE AS A MATTER OF STATUTORY RIGHT IS SUPPOSED TO KNOW T HE EXACT CHARGE HE HAD TO FACE. WE ARE OF THE CONSIDERED VIEW THAT THE NON STRIKING OFF OF THE IRRELEVANT CHARGE IN THE SHOW CAUSE NOTICE NOT ONLY REFLECTS THE NON APPLICATION OF MIND BY THE A.O, BUT RATHER THE SAME WOULD SERIOUSLY DEFEAT THE VERY PURPOSE OF GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AS CONTEMPLATED UNDER SEC. 274. WE FIND THAT THE DISTINCTION BETWEEN THE SAID TWO DEFAULTS HAD BEEN APPRECIATED AT LENGTH BY THE HON'BLE SUPREME COURT IN ITS JUDGMENTS PASSED IN THE CASE OF DILIP & SHROFF VS. JT. CIT (2007) 210 CTR (SC) 228 AND T. ASHOK PAL VS. CIT (2007) 292 ITR 11 (SC), WHEREIN THE HON'BLE APEX COURT HAD CONCLUDED THAT THE TWO EXPRESSIONS , VIZ. 'CONCEALMENT OF PARTICULARS OF INCOME' AND 'FURNISHING OF INACCURATE OF PARTICULARS O F INCOME' HAVE DIFFERENT CONNOTATION. THE HON'BLE APEX COURT BEING OF THE VIEW THAT THE NON - STRIKING OFF OF THE IRRELEVANT LIMB IN THE NOTICE CLEARLY REVEALS A NON - APPLICATION OF MIND BY THE A.O, HAD IN THE CASE OF DILIP N. SHROFF (SUPRA), HELD AS UNDER: - '83. IT IS OF SOME SIGNIFICANCE THAT IN THE STANDARD PROFORMA USED BY THE ASSESSING OFFICER IN ISSUING A NOTICE DESPITE THE FACT THAT THE SAME POSTULATES THAT INAPPROPRIATE WORDS AND PARAGRAPHS WERE TO BE DELETED, BUT THE SAME HAD NOT BEEN DONE. THUS, THE ASSESSING OFFICER HIMSELF WAS NOT SURE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD CONCEALED HIS P A G E | 7 INCOME OR HE HAS FURNISHED INACCURATE PARTICULARS. EVEN BEFORE US, THE LEARNED ADDITIONAL SOLICITOR GENERAL WHILE PLACING RELIANCE ON THE O RDER OF ASSESSMENT LAID EMPHASIS THAT HE HAD DEALT WITH BOTH THE SITUATIONS. 84. THE IMPUGNED ORDER, THEREFORE, SUFFERS FROM NON - APPLICATION OF MIND. IT WAS ALSO BOUND TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE [SEE MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 2 SCC 718]. WE ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE VIEW OF THE LD. D.R. THAT NON - STRIKING OFF OF THE IRRELEVANT CHARGE IN THE NOTICE IS MERELY IN THE NATURE O F A TECHNICAL DEFAULT, WHICH WOULD BE SAFEGUARDED BY THE IMMUNITY CONTEMPLATED UNDER THE PROVISIONS OF SECTION 292B, AND AS SUCH WOULD NOT HAVE ANY BEARING ON THE VALIDITY OF THE PENALTY IMPOSED IN THE HANDS OF THE ASSESSEE. 9 . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE CONTENTIONS OF THE AUTHORIZED REPRESENTATIVES BEFORE US, AND ARE OF THE CONSIDERED VIEW THAT A SIMILAR PROPOSITION HAD CAME UP BEFORE THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS. SSA'S EMERALD M EADOWS (73 TAXMANN.COM 241)(KAR), WHEREIN THE HON'BLE HIGH COURT FOLLOWING ITS EARLIER ORDER PASSED IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 (KAR), HAD THEREIN HELD THAT WHERE THE NOTICE ISSUED BY THE A.O UNDER SEC. 274 R.W SEC. 271 (1) (C) DOES NOT SPECIFY THE LIMB OF SEC. 271(1) (C) FOR WHICH THE PENALTY PROCEEDINGS HAD BEEN INITIATED, I.E WHETHER FOR 'CONCEALMENT OF PARTICULARS OF INCOME' OR 'FURNISHING OF INA CCURATE PARTICULARS', THE SAME HAD TO HELD AS BAD IN LAW. THE 'SPECIAL LEAVE PETITION' (SLP) FILED BY THE REVENUE AGAINST THE AFORESAID ORDER OF THE HON'BLE KARNATAKA HIGH COURT HAD THEREAFTER BEEN DISMISSED BY THE HON'BLE SUPREME COURT IN CIT VS. SSA'S EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). WE FURTHER FIND THAT A SIMILAR VIEW HAD RECENTLY BEEN TAKEN BY THE HON'BLE HIGH COURT OF BOMBAY IN THE P A G E | 8 CASE OF CIT VS. SAMSON PERINCHERY (ITA NO. 1154 OF 2014; DT. 05.01.2017)(BOM). 10. WE FURTHER FIND THAT AS AVERRED BY THE ID. A.R., THE ISSUE INVOLVED IN THE PRESENT CASE IS SQUARELY COVERED BY THE ORDER OF A COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF MEHERJEE CASSINATH HOLDINGS PVT. LTD. (SUPRA), WHEREIN THE TRIBUNAL AFTER DELIBERATING AT LENGTH ON THE ISSUE UNDER CONSIDERATION, IN THE BACKDROP OF VARIOUS JUDICIAL PRONOUNCEMENTS, HAD THEREIN CONCLUDED THAT THE NON STRIKING OFF OF THE IRRELEVANT CHARGE IN THE NOTICE CLEARLY REFLECTS THE NON APPLICATION OF MIND BY THE A.O, AND IN THE BACKDROP OF THE SAID SERIOUS INFIRMITY, THEREIN RENDERS THE ORDER PASSED BY THE A.O U/S 271(1)(C) AS INVALID AND VOID AB INITIO. THE TRIBUNAL IN ITS AFO RESAID ORDER IN THE CASE OF MEHERJEE CASSINATH HOLDINGS PVT. LTD.(SUPRA) HAD OBSERVED AS UNDER: - 8. WE H AVE C AR EF ULL Y C ONS ID ERE D TH E R IV AL SUBMISSIONS. SEC. 271(1)(C) OF THE ACT EMPOWERS THE ASSESSING OFFICER TO IMPOSE PENALTY TO THE EXTENT SPECIFIED IF, IN THE COURSE OF ANY PROCEEDINGS UNDER THE ACT, HE IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN OTHER WORDS, WHAT SEC. 271(1)(C) OF THE ACT POSTULATES IS THAT THE PENALT Y CAN BE LEVIED ON THE EXISTENCE OF ANY OF THE TWO SITUATIONS, NAMELY, FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THEREFORE, IT IS OBVIOUS FROM THE PHRASEOLOGY OF SEC. 271(1)(C) OF THE ACT THAT THE IMPOSITION OF PENALTY IS INVITED ONLY WHEN THE CONDITIONS PRESCRIBED U/S 271(1)(C) OF THE ACT EXIST. IT IS ALSO A WELL ACCEPTED PROPOSITION THAT 'CONCEALMENT OF THE PARTICULARS OF INCOME' AND 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' RE FERRED TO IN SEC. 271(1)(C) OF THE ACT DENOTE DIFFERENT CONNOTATIONS. IN FACT, THIS DISTINCTION HAS BEEN APPRECIATED EVEN AT THE LEVEL OF HON'BLE SUPREME COURT NOT ONLY IN THE CASE OF DILIP N. SHROFF (SUPRA) BUT ALSO IN THE CASE T. ASHOK PAI, 292 ITR 11 (SC). THEREFORE, IF THE TWO EXPRESSIONS NAMELY 'CONCEALMENT OF THE PARTICULARS OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF P A G E | 9 INCOME' HAVE DIFFERENT CONNOTATIONS, IT IS IMPERATIVE FOR THE ASSESSEE TO BE MADE AWARE AS TO WHICH OF THE TWO IS BEING PUT AGAINST HIM FOR THE PURPOSE OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, SO THAT THE ASSESSEE CAN DEFEND ACCORDINGLY. IT IS IN THIS BACKGROUND THAT ONE HAS TO APPRECIATE THE PRELIMINARY PLEA OF ASSESSEE WHICH IS BASED ON THE MANNER IN WHICH THE NOTICE U/S 274 R.W.S. 271(1)(C) OF THE ACT DATED 10. 12.2010 HAS BEEN ISSUED TO THE ASSESSEE COMPANY. A COPY OF THE SAID NOTICE HAS BEEN PLACED ON RECORD AND THE LEARNED REPRESENTATIVE CANVASSED THAT THE SAME HAS BEEN ISSUED BY THE ASSESSING OFFICER IN A STANDARD PROFORMA, WITHOUT STRIKING OUT THE IRRELEVANT CLAUSE. IN OTHER WORDS, THE NOTICE REFERS TO BOTH THE LIMBS OF SEC. 271(1)(C) OF THE ACT, NAMELY CONCEALMENT OF THE PARTICULARS OF INCOME AS WELL AS FURNISHING OF INACCURATE PARTICULARS OF INCOME. QUITE CLEARLY, NON - STRIKING - OFF OF THE IRRELEVANT LIMB IN THE SAID NOTICE DOES NOT CONVEY TO THE ASSESSEE AS TO WHICH OF T HE TWO CHARGES IT HAS TO RESPOND. THE AFORESAID INFIRMITY IN THE NOTICE HAS BEEN SOUGHT TO BE DEMONSTRATED AS A REFLECTION OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER, AND IN SUPPORT, REFERENCE HAS BEEN MADE TO THE FOLLOWING SPECIFIC DISCUSSION IN THE ORDER OF HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF (SUPRA): - '83. IT IS OF SOME SIGNIFICANCE THAT IN THE STANDARD PROFORMA USED BY THE ASSESSING OFFICER IN ISSUING A NOTICE DESPITE THE FA CT THAT THE SAME POSTULATES THAT INAPPROPRIATE WORDS AND PARAGRAPHS WERE TO BE DELETED, BUT THE SOME HAD NOT BEEN DONE. THUS, THE ASSESSING OFFICER HIMSELF WAS NOT SURE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD CONCEALED HIS INCOME OR HE HAD FURNISHED INACCURATE PARTICULARS. EVEN BEFORE US, THE LEARNED ADDITIONAL SOLICITOR GENERAL WHILE PLACING THE ORDER OF ASSESSMENT LAID EMPHASIS THAT HE HAD DEALT WITH BOTH THE SITUATIONS. 84. THE IMPUGNED ORDER, THEREFORE, SUFFERS FROM NON - APPLICATION OF MIND. IT WAS ALSO BOUND TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE. (SEE MALABAR INDUSTRIAL CO. LTD. V. CIT [2000] 2 SCC 718]' 9. FACTUALLY SPEAKING, THE AFORESAID PLEA OF ASSESSEE IS BORNE OUT OF RECORD AND HAVING REGARD TO THE PARITY OF REASONING LAID DOWN BY THE HON'BLE SUPREME COURT IN THE P A G E | 10 CASE OF DILIP N. SHROFF (SUPRA), THE NOTICE IN THE INSTANT CASE DOES SUFFER FROM THE VICE OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER. IN FACT, A SIMILAR PROPOSITION WAS ALSO ENUNCIATED BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF M/S. SSAS EMERALD MEADOWS (SUPRA) AND AGAINST SUCH A JUDGMENT, THE SPECIAL LEAVE PETITION FILED BY THE REVENUE HAS SINCE BEEN DISMISSED BY THE HON'BLE SUPREME COURT VIDE ORDER DATED 5.8.2016, A COPY OF WHICH IS ALSO PLACED ON RECORD. 10. IN FACT, AT THE TIME OF HEARING, THE ID. CIT - DR HAS NOT DISPUTED THE FACTUAL MATRIX, BUT SOUGHT TO POINT OUT THAT THERE IS DUE APPLICATION OF MIND BY THE ASSESSING OFFIC ER WHICH CAN BE DEMONSTRATED FROM THE DISCUSSION IN THE ASSESSMENT ORDER, WHEREIN AFTER DISCUSSING THE REASONS FOR THE DISALLOWANCE, HE HAS RECORDED A SATISFACTION THAT PENALTY PROCEEDINGS ARE INITIATED U/S 271(1)(C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OUR CONSIDERED OPINION, THE ATTEMPT OF THE ID. CIT - DR TO DEMONSTRATE APPLICATION OF MIND BY THE ASSESSING OFFICER IS NO DEFENCE INASMUCH AS THE HON BLE SUPREME COURT HAS APPROVED THE FACTUM OF NON - STRIKING OFF OF THE IRRELEVANT CLAUSE IN THE NOTICE AS REFLECTIVE OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER. SINCE THE FACTUAL MATRIX IN THE PRESENT CASE CONFORMS TO THE PROPOSITION LAID DOWN BY THE HON BLE SUPREME COURT, WE PROCEED TO REJECT THE ARGUMENTS ADVAN CED BY THE ID. CIT - DR BASED ON THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. FURTHER, IT IS ALSO NOTICEABLE THAT SUCH PROPOSITION HAS BEEN CONSIDERED BY THE HON'BLE BOMBAY HIGH COURT ALSO IN THE CASE OF SHRI SAMSON PERINCHERY, ITA NOS. 1154, 953, 1097& 1126 OF 2014 DATED 5.1.2017 (SUPRA) AND THE DECISION OF THE TRIBUNAL HOLDING LEVY OF PENALTY IN SUCH CIRCUMSTANCE BEING BAD, HAS BEEN APPROVED. 11. APART FROM THE AFORESAID, THE ID. CIT - DR MADE AN ARGUMENT BASED ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUIT. KAUSHALYA & OTHERS, 216 ITR 660 (BORN.) TO CANVASS SUPPORT FOR HIS PLEA THAT NON STRIKING OFF OF THE IRRELEVANT PORTION OF NOTICE WOULD NOT INVALIDATE THE IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. WE HAVE CAREFULLY CONSIDERED THE SAID ARGUMENT SET - UP BY THE ID. CIT - DR AND FIND THAT A SIMILAR ISSUE HAD COME UP BEFORE OUR COORDINATE BENCH IN TH E CASE OF DR. SANTA MILIND DAVARE (SUPRA). OUR COORDINATE BENCH, AFTER P A G E | 11 CONSIDERING THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA & ORS., (SUPRA) AS ALSO THE JUDGMENTS OF THE HON BL E SUPREME COURT IN THE CASE OF DI LIP N. SHROFF (SUPRA) AND DHARM ENDRA TEXTILE PROCESSORS, 306 ITR 277 (SC) DEDUCED AS UNDER: - '12 A COMBINED READING OF THE DECISION RENDERED BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF SMT. B KAUSHALYA AND OTHERS (SUPRA) AND THE DECISION RENDERED BY HON'BLE SUPRE ME COURT IN THE CASE OF DILIP N SHROFF (SUPRA) WOULD MAKE IT CLEAR THAT THERE SHOULD BE APPLICATION OF MIND ON THE PART OF THE AO AT THE TIME OF ISSUING NOTICE. IN THE CASE OF LAKHDIR LAIJI (SUPRA), THE AO ISSUED NOTICE U/S 274 FOR CONCEALMENT OF PARTICULA RS OF INCOME BUT LEVIED PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE HON'BLE GUJARAT HIGH COURT QUASHED THE PENALTY SINCE THE BASIS FOR THE PENALTY PROCEEDINGS DISAPPEARED WHEN IT WAS HELD THAT THERE WAS NO SUPPRESSION OF INCOME. THE HON'BLE KERALA HIGH COURT HAS STRUCK DOWN THE PENALTY IMPOSED IN THE CASE OF N.N.SUBRAMANIA LYER VS. UNION OF INDIA (SUPRA), WHEN THERE IS NO INDICATION IN THE NOTICE FOR WHAT CONTRAVENTION THE PETITIONER WAS CALLED UPON T O SHOW CAUSE WHY A PENALTY SHOULD NOT BE IMPOSED. IN THE INSTANT CASE, THE AO DID NOT SPECIFY THE CHARGE FOR WHICH PENALTY PROCEEDINGS WERE INITIATED AND FURTHER HE HAS ISSUED A NOTICE MEANT FOR CALLING THE ASSESSEE TO FURNISH THE RETURN OF INCOME. HENCE, IN THE INSTANT CASE, THE ASSESSING OFFICER DID NOT SPECIFY THE CHARGE FOR WHICH THE PENALTY PROCEEDINGS WERE INITIATED AND ALSO ISSUED AN INCORRECT NOTICE. BOTH THE ACTS OF THE AO, IN OUR VIEW, CLEARLY SHOW THAT THE AO DID NOT APPLY HIS MIND WHEN HE ISSUED NOTICE TO THE ASSESSEE AND HE WAS NOT SURE AS TO WHAT PURPOSE THE NOTICE WAS ISSUED. THE HON'BLE BOMBAY HIGH COURT HAS DISCUSSED ABOUT NON - APPLICATION OF MIND IN THE CASE OF KAUSHALYA (SUPRA) AND OBSERVED AS UNDER: - 'T HE NOTICE CLEARLY DEMONSTRATED NON - APPLICATION OF MIND ON THE PART OF THE INSPECTING ASSISTANT COMMISSIONER. THE VAGUENESS AND AMBIGUITY IN THE NOTICE HAD ALSO PREJUDICED THE RIGHT OF REASONABLE OPPORTUNITY OF THE ASSESSEE SINCE HE DID NOT KNOW WHAT EXACT CHARGE HE HAD TO FACE. IN THIS BACK GROUND, QUASHING OF THE PENALTY PROCEEDINGS FOR THE ASSESSMENT P A G E | 12 YEAR 1967 - 68 SEEMS TO BE FULLY JUSTIFIED.' IN THE INSTANT CASE ALSO, WE ARE OF THE VIEW THAT THE AO HAS ISSUED A NOTICE, THAT TOO INCORRECT ONE, IN A ROUTINE MANNER. FURTHER THE NOTICE DID NOT SPECIFY THE CHARGE FOR WHICH THE PENALTY NOTICE WAS ISSUED. HENCE, IN OUR VIEW, THE AO HAS FAILED TO APPLY HIS MIND AT THE TIME OF ISSUING PENALTY NOTICE TO THE ASSESSEE.' 12. THE AFORESAID DISCUSSION CLEARLY BRINGS OUT AS TO THE REASONS WHY THE PARITY OF REASONING LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF (SUPRA) IS TO PREVAIL. FOLLOWING THE DECISION OF OUR COORDINATE BENCH IN THE CASE OF DR. SANTA MILIND DAVARE (SUPRA), WE HEREBY REJECT THE AFORESAID ARGUMENT OF THE ID. CIT - DR. 13. APART FROM THE AFORESAID DISCUSSION, WE MAY ALSO REFER TO THE ONE MORE SEMINAL FEATURE OF THIS CASE WHICH WOULD DEMONSTRATE THE IMPORTANCE OF NON - STRIKING OFF OF IRRELEVANT CLAUSE IN THE NOTICE BY THE ASSESSING OFFICER. AS NOTED EARLIER, IN THE ASSESSMENT ORDER DATED 10.12.2010 THE ASSESSING OFFICER RECORDS THAT THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ARE TO BE INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HOWEVER, IN THE NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT OF EVEN DATE, BOTH THE LIMBS OF SEC. 271(1)(C) OF THE ACT ARE REPRODUCED IN THE PROFORMA NOTICE AND THE IRRELEVANT CLAUSE HAS NOT BEEN STRUCK - OFF. QUITE CLEARLY, THE OBSERVATION OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND NON - STRIKING OFF OF THE IRRELEVANT CLAUSE IN THE NOTICE CLEARLY BRINGS OUT THE DIFFIDENCE ON THE PART OF ASSESSING OFFICER AND THERE IS NO CLEAR AN D CRYSTALLISED CHARGE BEING CONVEYED TO THE ASSESSEE U/S 271(1)(C), WHICH HAS TO BE MET BY HIM. AS NOTED BY THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF (SUPRA), THE QUASI - CRIMINAL PROCEEDINGS U/S 271(1)(C) OF THE ACT OUGHT TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE, AND IN THE PRESENT CASE, CONSIDERING THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ALONGSIDE HIS ACTION OF NON - STRIKING OFF OF THE IRRELEVANT CLAUSE IN THE NOTICE SHOWS THAT TH E CHARGE BEING MADE AGAINST THE ASSESSEE QUA SEC. 271(1)(C) OF THE ACT IS NOT FIRM AND, THEREFORE, THE PROCEEDINGS SUFFER FROM NON - COMPLIANCE WITH PRINCIPLES OF NATURAL JUSTICE INASMUCH AS THE P A G E | 13 ASSESSING OFFICER IS HIMSELF UNSURE AND ASSESSEE IS NOT MADE AWARE AS TO WHICH OF THE TWO LIMBS OF SEC. 271(1)(C) OF THE ACT HE HAS TO RESPOND. 14. THEREFORE, IN VIEW OF THE AFORESAID DISCUSSION, IN OUR VIEW, THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 274 R.W.S. 271(1)(C) OF THE ACT DATED 10.12.2010 IS UNTENABLE AS IT SUFFERS FROM THE VICE OF NON - APPLICATION OF MIND HAVING REGARD TO THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF (SUPRA) AS WELL AS THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SHRI SAMSON PERINCHERY (SUPRA). THUS, ON THIS COUNT ITSELF THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT IS LIABLE TO BE DELETED. WE HOLD SO. SINCE THE PENALTY HAS BEEN DELETED ON THE PRELIMINARY POINT, THE OTHER ARGUMENTS RAISED BY THE APPELLANT ARE NOT BE ING DEALT WITH'. WE ARE OF THE CONSIDERED VIEW THAT AS THE ISS UE INVOLVED IN THE PRESENT CASE IS SQUARELY COVERED BY THE AFORESAID ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF MEHIR JEE CHASSINATH PVT. LTD.(SUPRA), AND IS ALSO NO MORE RES INTEGRA IN LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE THEREFORE RESPECTFULLY FOLLOW THE SAME. WE THUS SET ASIDE THE ORDER OF THE CIT(A) CONFIRMING THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C) IN THE HANDS OF THE ASSESSEE AND QUASH THE PENALTY OF RS. 16,73,217/ - IMPOSED BY THE A.O. WE MAY HEREIN OBSERVE THAT SINCE THE PENALTY HAD BEEN QUASHED ON THE PRELIMINARY POINT, THEREFORE THE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS BEFORE US HAVING BEEN RENDERED AS ACADEMIC, ARE THUS NOT BEING DEALT WITH. 11. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO. 4189/MUM/2014 A.Y. 2006 - 07 12. WE SHALL NOW ADVERT TO THE APPEAL OF THE ASSESSEE FOR THE A.Y. 2006 - 07. THE ASSESSEE HAD ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL: - P A G E | 14 ' BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 39, MUMBAI THIS APPEAL PETITION IS SUBMITTED ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL FILED BEYOND 30 DAYS AND CONDONING THE DELAY IN FILING THE APPAL BY ABOUT 120 DAYS AS THE CHIEF FINANCIAL OFFICER HAD LEFT THE ORGANIZATION ABRUPTLY AND THE DIRECTOR LOOKING AFTER THE INCOME TAX MATTERS WAS NOT WELL AND HAD TO UNDERGO MEDICAL TREATMENT DURING THE SAID PERIOD. 2. THE ID. CIT (A) ERRED IN UPHOLDING THE PENALTY UNDER SECTION 271 (1) (C) OF THE INCOME TAX ACT AMOUNTING TO RS 2,76,61,4081 - WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE ID CIT (A), WHILE UPHOLDING THE AFORESAID PENALTY , E RRED IN CONCLUDING THAT EXPLANATION 5A TO THE SECTION 271(1)(C) IS ATTRACTED TO THE PRESENT CASE. 4. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ADDITIONAL INCOME OF RS. 8,12,59,171/ - FILED IN RESPONSE TO THE NOTICE UNDER SEC. 153A WAS BECAUSE OF WIT HDRAWAL OF DEDUCTION UNDER SECTION 8014(4), WHICH WAS THERE IN THE ORIGINAL RETURN OF INCOME FILED UNDER SEC. 139. 5. THE PROVISO STATES THAT WHEN DURING THE COURSE OF SEARCH UNDER SECTION 132 ON OR AFTER 1ST JUNE 2007, THE ASSESSEE IS FOUND TO BE OWNER OF ANY INCOME BASED ON ANY ENTRY IN BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTIONS AND THE ASSESSEE CLAIMS THAT SUCH INCOME REPRESENTS HIS INCOME, HOWEVER NO SUCH ENTRY, DOCUMENT OR TRANSACTION HAS BEEN FOUND DURING THE COURSE OF SEARCH UNDER SECTION 13 2 AND HENCE THE PROVISION OF EXPLANATION 5A TO THE SECTION 271(1)(C) IS NOT APPLICABLE. 6. THE CIT(A) HAS ALSO ERRED IN IGNORING THE DECISIONS OF THE HON'BLE SUPREME COURT IN RELIANCE PETROPRODUCTS PUT. LTD. AND THE JURISDICTIONAL ITAT DECISION IN DCIT VS. UN ITY CHOPRA JOINT VENTURE (ITA NO. 320/M1201 1) WHICH IT HAS BEEN HELD AND WE QUOTE: - IT IS AN UNDISPUTED FACT THAT THE ASSESSEE COMPANY IS UNDER A BONAFIDE BELIEF THAT IT IS ELIGIBLE FOR DEDUCTION U/S 80 - IA OF THE ACT AND THE SAME IS EVIDENT FROM THE CONDUCT OF THE ASSESSEE, WHO HAS NOT FILED APPEAL BEFORE THE CIT(A) AGAINST QUANTUM ADDITIONS. FROM THE ABOVE WRITE UP GIVEN BY THE ASSESSEE, IT IS EVIDENT THAT THE ASSESSEE WOULD HAVE WON THE APPEAL ON QUANTUM ADDITIONS IF WERE TO FILE. THEREFORE, THE ATTRACTING P A G E | 15 FINALITY ON THE QUANTUM ADDITIONS AGAINST THE ASSESSEE IS NO ISSUE FOR CONFIRMING THE PENALTIES. AS SUCH THERE EXISTS DISPUTE ON THE DEBAT ABLE NATURE OF THE SAID PROVISIONS. AS PER THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS LTD. (322 ITR 158), IT IS A DEBATABLE ONE AND WHEN THE CLAIM IS WRONGLY MADE IN THE RETURN OF INCOME. CONSIDERING THE SETTLED NATURE OF THE ISSUE, CIT(A) HAS RIGHTLY DELETED THE PENALTY MADE BY THE AO U/S 271(1)(C) OF THE ACT AND IT DOES NOT CALL FOR ANY INTERFERENCE. 7. IN THE CASE OF APPELLANT, THE LEARNED CIT(A) - 41 HAD IN SEPARATE APPEAL FILED BY THE APPELLANT AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT DELETED THE ENTIRE ADHOC ADDITION ON ACCOUNT OF LABOUR CHARGES AND HENCE THE MAJOR PART OF INCOME AS DECLARED UNDER SEC. 153A WAS ACCEPTED DURING THE COURSE OF ASSES SMENT PROCEEDING. 8. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR MODIFY ANY OF THE ABOVE GROUNDS AT THE TIME OR BEFORE THE TIME OF HEARING.' 13. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY HAD FILED ITS ORIGINAL RETURN OF INCOME ON 29.10.2007 DECLARING TOTAL INCOME AT RS.NIL AFTER CLAIMING DEDUCTION U/S 801A OF RS. 8,12,59,171/ - . THAT PURSUANT TO SEARCH AND SEIZURE ACTION CARRIED OUT U/S. 132 ON PBA GROUP OF CASES (INCLUDING THE ASSE SSEE) ON 06.09.2007, THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 153A ON 3 1.12.2009 AND THE INCOME OF THE ASSESSEE COMPANY WAS ASSESSED AT RS. 6,69,82,310/ - . 14. THE A.O WHILE FRAMING THE ASSESSMENT U/S 143(3) R.W.S.153A HAD INTER ALIA MADE THE FOLLOWING ADDITIONS IN THE HANDS OF THE ASSESSEE: - SR. NO. PARTICULARS AMOUNT 1. UNSECURED LOANS RS. 2,00,000/ - 2. INFLATED EXPENSES RS. 42,31,657/ - 3. SALARY TO FAMILY MEMBERS OF CMD SH. S.K. BOTHRA RS.4,32,789/ - P A G E | 16 4. NON BUSINESS EXPENSES RS. 4,32,397/ - 5. DISALLOWANCE OF DEDUCTION U/S. 80IA RS. 8,12,59,171/ - THE ASSESSEE DURING THE COURSE OF SEARCH PROCEEDINGS HAD ALSO CAME UP WITH A DISCLOSURE OF ADDITIONAL INCOME OF RS. 65 LAC IN HIS STATEMENT RECORDED U/S. 132(4), WHICH THEREAFTER WAS OFFERED IN THE RETURN OF INCOME. THE A.O. WHILE CONCLUDING THE ASSESSMENT HAD INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) IN RESPECT OF THE ABOVE ADDITIONS/ DISALLOWANCES, AS WELL AS THE ADDITIONAL INCOME DISCLOSED U/S 132(4). 15. THE ASSESSEE BEING AGGRIEVED WITH THE ASSES SMENT ORDER CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO THOUGH DELETED THE ADDITIONS MADE BY THE A.O IN RESPECT OF THE INFLATED EXPENSES OF RS.42,31,657/ - , UNPROVED LOAN OF RS. 2,00,000/ - AND NON - BUSINESS EXPENDITURE OF RS. 4,32,397/ - , BUT HOWEVER SUSTAINED THE REMAINING ADDITIONS. 16. THE A.O HOWEVER PRIOR TO THE AFORESAID ORDER OF THE CIT(A), HAD VIDE HIS ORDER U/S. 271(1)(C), DATED 30.03.2012 IMPOSED A PENALTY OF RS.2,76,61,408/ - IN THE HANDS OF THE ASSESSEE. 17. THE ASSESSEE BEING AGGRIEVED WITH THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C) CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER PASSED BY THE A.O AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 18. THAT THE ASSESSEE BEING AGGRIEVED WITH THE UPHOLDING OF THE PENALTY BY THE CIT(A), HAD THUS CARRIED THE MATTER IN APPEAL BEFORE US. THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRAL CIRCLE 36, MUMBAI, FOR P A G E | 17 A.Y. 2004 - 05, MARKED AS ITA NO. 4188/MUM - 2014. THE LD. A.R SUBMITTED THAT AS ITS APPEAL BEFORE THE CIT(A) INVOLVED A DELAY OF 120 DAYS, THEREFORE AN APPLICATION PRAYING FOR CONDONATION OF DELAY ALONGWITH AN 'AFFIDAVIT' DEPOSING THE SAID FACTS WERE FILED BEFORE HIM, WHICH HOWEVER WAS REJECTED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. IT WAS SUBMITTED BY THE LD. A.R THAT THE CIT(A) AFTER DISMISSING HIS APPEAL, HOWEVER DEALT WITH AND ADJUDICATED THE ISSUES INVOLVED THEREIN ON MERITS. THE LD. A.R SUBMITTED THAT AS THE DELAY INVOLVED IN FILING OF THE APPEAL WAS FOR BORIAFIDE REASONS, AS DURING THE RELEVANT TIME THE CHIEF FINANCIAL OFFICER OF THE COMPANY HAD LEFT THE ORGANIZATION, WHILE FOR THE DIRECTOR OF THE COMPANY WHO WAS LOOKING AFTER THE INCOME TAX MATTERS WAS UNWELL AND NOT ATTENDING TO HIS WORK. IT WAS AVERRED BY THE LD . A.R THAT THE VERY FACT THAT THE ASSESSEE HAD AS ON 12.04.20 12 FILED AN APPEAL AGAINST THE PENALTY ORDER PASSED BY THE A.O ON 30.03.20 12 FOR A.Y. 2004 - 05, I.E WITHIN THE STIPULATED TIME PERIOD OF 30 DAYS, WHILE FOR THE APPEALS AGAINST THE PENALTY ORDERS FOR THE YEAR UNDER CONSIDERATION AND A.Y. 2007 - 08 WERE FILED ONLY ON 31.08.2012, IN ITSELF PROVED THAT THE DELAY IN FILING OF SAID APPEALS PROMPTED BY A BONAFIDE INADVERTENT MISTAKE, AS THE ASSESSEE WAS NOT TO BE BENEFITED BY DELAYING THE FILING OF THE AP PEALS FOR THE SAID LATTER YEARS. IT WAS THUS SUBMITTED BY THE LD. A.R THAT AS THE DELAY IN FILING OF THE APPEAL BEFORE THE CIT(A) WAS ON ACCOUNT OF A BONAFIDE OMISSION, THEREFORE IN ALL FAIRNESS THE ORDER OF THE CIT(A) DECLINING TO CONDONE THE DELAY IN FILING OF THE APPEAL MAY BE SET ASIDE. THE LD. D.R THOUGH ACCEPTED THAT THE FACTS EMERGING FROM THE RECORDS IN CONTEXT OF THE VALIDITY OF THE PENALTY PROCEEDINGS WERE THE SAME AS THOSE INVOLVED IN THE APPEAL OF THE ASSESSE E FOR A.Y. 2004 - 05, BUT HOWEVER SUBMITTED THAT THE CIT(A) HAD RIGHTLY DECLINED TO CONDONE THE DELAY INVOLVED IN FILING OF THE APPEAL BY THE ASSESSEE. P A G E | 18 19. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE REASONS LEADING TO DELAY IN FILING OF THE APPEAL AND ARE OF THE CONSIDERED VIEW THAT A PERUSAL OF THE SAME IN TOTALITY REVEALS THAT THE SAME WAS PROMPTED BY BONAF IDE REASONS, AND NOT FOR ANY INTENTIONAL LACHES OR LAPSES ON THE PART OF THE ASSESSEE. WE THUS TAKING SUPPORT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. (1987) 167 ITR 0471(SC), WHEREIN THE HON'BLE APEX COURT HAD EMPHASISED THAT A LIBERAL VIEW SHOULD BE ADOPTED WHILE CONSTRUING THE SUFFICIENCY OF THE CAUSE LEADING TO DELAY IN FILING OF THE APPEAL, SO THAT THE SAME MAY FACILITATE EVEN - HANDED JUSTICE ON MERITS IN PREFERENCE TO APPROACH WHICH SCUTTLES A DECISION ON MERITS, THEREFORE ARE OF THE CONSIDERED VIE W THAT THE CIT(A) HAD ERRED IN NOT CONDONING THE DELAY INVOLVED IN FILING OF THE APPEAL BY THE ASSESSEE. WE THUS IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE THUS SET ASIDE THE DISMISSAL OF THE APPEAL BY THE CIT(A) FOR THE REASON THAT THE SAME WAS FILED BEYOND THE STIPULATED TIME PERIOD. 20. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN THE ASSESSES APPEAL FOR A.Y. 2004 - 05. TH E LD. A.R IN ORDER TO FORTIFY HIS CONTENTION AS REGARDS NON - STRIKING OFF OF THE IRRELEVANT CHARGE BY THE A.O IN THE PENALTY NOTICE ISSUED U/S 274 R.W.S 271, HAD THEREIN DRAWN OUR ATTENTION TO THE COPY OF THE SCN FOR THE YEAR UNDER CONSIDERATION AT PAGE 3 - 4 OF THE APB'. WE HAVE PERUSED THE SCN AND FIND THAT THERE IS NON - STRIKING OFF OF THE IRRELEVANT CHARGE BY THE A.O IN THE NOTICE. WE THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PASSED WHILE DISPOSING OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL, VIZ. PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRAL CIRCLE 36, MUMBAI, MARKED AS ITA NO. 4188/MUM/2014 FOR A.Y. 2004 - 05, AND OUR DECISION P A G E | 19 PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL SHALL APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING ADOPTED WHILE DISPOSING OF THE APPEAL OF PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRA L CIRCLE 36, MUMBAI, MARKED AS ITA NO. 4188/MUM/2014 FOR A.Y. 2004 - 05, THEREIN ALLOW THE PRESENT APPEAL OF THE ASSESSEE FOR A.Y. 2006 - 07 AND QUASH THE PENALTY OF RS. 2,76,61,408/ - UPHELD BY THE CIT(A). WE MAY HEREIN OBSERVE THAT SINCE THE PENALTY HAD BEEN QUASHED ON THE PRELIMINARY POINT ITSELF, THEREFORE THE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS BEFORE US HAVING BEEN RENDERED AS ACADEMIC, ARE THUS NOT BEING DEALT WITH. 21. THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. ITA NO. 4190/MUM/2014 A.Y. 2007 - 08 22. WE SHALL NOW TAKE UP THE APPEAL OF THE ASSESSEE FOR THE A.Y. 2007 08. THE ASSESSEE HAD ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL: - 'BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 39, MUMBAI THIS APPEAL PETITION IS SUBMITTED ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL FILED BEYOND 30 DAYS AND CONDONING THE DELAY IN FILING THE APPAL BY ABOUT 120 DAYS AS THE CHIEF FINANCIAL OFFICER HAD LEFT THE ORGANIZATION ABRUPTLY AND THE DIRECTOR LOOKING AFTER THE INCOME TAX MATTERS WAS NOT WELL AND HAD TO UNDERGO MEDICAL TREATMENT DURING THE SAID PERIOD. 2. THE ID. CIT (A) ERRED IN UPHOLDING THE PENALTY UNDER SECTION 2 71 (1) (C) OF THE INCOME TAX ACT AMOUNTING TO RS 96,33,6011 - WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE. 3. THE ID CIT (A), WHILE UPHOLDING THE AFORESAID PENALTY, ERRED IN CONCLUDING THAT EXPLANATION 5A TO THE SECTION 271(1)(C) IS ATTRACTED TO THE PRESENT CASE. 4. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ADDITIONAL INCOME OF RS. 95,00,000 FILED IN RESPONSE TO NOTICE UNDER SEC. 153A WAS DUE TO DISCREPANCY IN LABOUR CHARGES, WHICH DURING THE COURSE OF ASSESSMENT P A G E | 20 WAS NOT FOUND AND HENCE THE ADDITIONS TO THE INCOME WAS DELETED BY THE CIT(A) - 41 IN A SEPARATE APPEAL. 5. THE PROVISO STATES THAT WHEN DURING THE COURSE OF SEARCH UNDER SECTION 132 ON OR AFTER PI JUNE 2007, THE ASSESSEE IS FOUND TO BE OWNER OF ANY INCOME BASE D ON ANY ENTRY IN BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTIONS AND THE ASSESSEE CLAIMS THAT SUCH INCOME REPRESENTS HIS INCOME, HOWEVER NO SUCH ENTRY, DOCUMENT OR TRANSACTION HAS BEEN FOUND DURING THE COURSE OF SEARCH UNDER SECTION 132 AND HENCE THE PROVISION OF EXPLANATION 5A TO THE SECTION 271(1)(C) IS NOT APPLICABLE. 6. IN THE CASE OF APPELLANT, THE ID. CIT(A) - 41 HAD IN A SEPARATE APPEAL FILED BY THE APPELLANT AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT DELETED THE ENTIRE AD HOC ADDITION ON INCOME AS DECLARED UNDER SEC. 153A WAS ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDING. 7. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR MODIFY ANY OF THE ABOVE GROUNDS AT THE TIME OR BEFORE THE TIME OF H EARING.' 23. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY HAD FILED ITS ORIGINAL RETURN OF INCOME ON 31.10.2007 DECLARING TOTAL INCOME AT RS.12,06,74,682/ - . THAT PURSUANT TO SEARCH AND SEIZURE ACTION CARRIED OUT U/S. 132 ON PBA GROUP OF CASES (INCLUDING THE ASSESSEE) ON 06.09.2007, THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 153A IN THE HANDS OF THE ASSESSEE ON 31.12.2009, AND THE INCOME OF THE ASSESSEE COMPANY WAS ASSESSED AT RS. 13 ,55, 16,460/ - . 24. THE A.O WHILE FRAMING THE ASSESSMENT U/S 143(3) R.W.S. 153A HAD INTER ALIA MADE THE FOLLOWING ADDITIONS IN THE HANDS OF THE ASSESSEE: - SR. NO. PARTICULARS AMOUNT 1. INFLATED MISCELLANEOUS EXPENSES RS. 99,500/ - 2. INFLATED EXPENSES RS. 91,85,159/ - 3. SALARY TO FAMILY MEMBERS OF CMD SH. S.K. BOTHRA RS.4,18,875/ - 4. UNEXPLAINED CASH PAYMENTS TO LABOUR CONTRACTORS. RS.40,044/ - 5. UNDERVALUED WORK IN PROGRESS RS. 2,00,00,000/ - P A G E | 21 THE ASSESSEE DURING THE COURSE OF THE SEARCH PROCEEDINGS HAD ALSO CAME UP WITH A DISCLOSURE OF ADDITIONAL INCOME OF RS. 95 LAC IN HIS STATEMENT RECORDED U/S. 132(4), WHICH WAS OFFERED AS SUCH IN ITS RETURN OF INCOME. THE A.O. WHILE CONCLUDING THE ASSESSMEN T INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) IN RESPECT OF THE ABOVE ADDITIONS/ DISALLOWANCES AND THE ADDITIONAL INCOME DISCLOSED BY THE ASSESSEE U/S 132(4) 25. THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT ORDER CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO THOUGH DELETED THE ADDITIONS MADE BY THE A.O IN RESPECT OF THE INFLATED EXPENSES UPTO RS.85,29,083/ - , BUT HOWEVER SUSTAINED THE REMAINING ADDITIONS. 26. THE A.O HOWEVER PRIOR TO THE AFORESAID ORDER OF THE CIT(A), HAD VIDE HIS ORDER U/S. 271(1)(C), DATED 30,03.2012 IMPOSED A PENALTY OF RS.96,33,601/ - IN THE HANDS OF THE ASSESSEE. 27. THE ASSESSEE BEING AGGRIEVED WITH THE PENALTY IMPOSED BY THE A.O U/S. 271(1)(C ) CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER PASSED BY THE A.O AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 28. THAT THE ASSESSEE BEING AGGRIEVED WITH THE UPHOLDING OF THE PENALTY BY THE CIT(A), HAD CARRIED THE MATTER IN APPEAL BEFORE US. THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRAL CIRCLE 36, MUMBAI, FOR A.Y. 2004 05, MARKED AS ITA NO. 4188/MUM - 2014. THE LD. A.R SUBMITTED THAT AS ITS APPEAL BEFORE THE CIT(A) INVOLVED A DELAY OF 120 DAYS, THEREFORE AN APPLICATION PRAYING FOR CONDONATION OF DELAY W AS FILED BEFORE HIM, WHICH HOWEVER WAS REJECTED AND THE APPEAL OF THE ASSESSEE WAS P A G E | 22 DISMISSED. IT WAS SUBMITTED BY THE LD. A.R THAT THE CIT(A) AFTER DISMISSING HIS APPEAL, HOWEVER DEALT WITH AND ADJUDICATED THE ISSUES INVOLVED THEREIN ON MERITS. THE LD. A.R SUBMITTED THAT AS THE DELAY INVOLVED IN FILING OF THE APPEAL WAS FOR BONAFIDE REASONS, AS DURING THE RELEVANT TIME THE CHIEF FINANCIAL OFFICER OF THE COMPANY HAD LEFT THE ORGANIZATION, WHILE FOR THE DIRECTOR OF THE C OMPANY WHO WAS LOOKING AFTER THE INCOME TAX MATTERS WAS UNWELL AND NOT ATTENDING TO HIS WORK. IT WAS AVERRED BY THE LD. A.R THAT THE VERY FACT THAT THE ASSESSEE HAD AS ON 12.04.20 12 FILED AN APPEAL AGAINST THE PENALTY ORDER PASSED BY THE A.O ON 30.03.2012 FOR A.Y. 2004 - 05, I.E WITHIN THE STIPULATED TIME PERIOD OF 30 DAYS, WHILE FOR THE APPEALS AGAINST THE PENALTY ORDERS FOR THE YEAR UNDER CONSIDERATION AND A.Y. 2006 - 07 WERE FILED ONLY ON 31.08.2012, IN ITSELF PROVED THAT THE DELAY IN FILING OF THE APPEALS WAS PROMPTED BY A BONAFIDE AND AN INADVERTENT MISTAKE, AS THE ASSESSEE WAS NOT TO BE BENEFITED BY DELAYING THE FILING OF THE APPEALS IN THE SAID LATTER YEARS. IT WAS THUS SUBMITTED BY THE LD. A.R THAT AS THE DELAY IN FILING OF THE APPEAL BEFORE THE CIT(A) WAS ON ACCOUNT OF A BONAFIDE OMISSION, THEREFORE THE ORDER OF THE CIT(A) DECLINING TO CONDONE THE DELAY IN FILING OF THE APPEAL MAY BE SET ASIDE. THE LD. D.R THOUGH ACCEPTED THAT THE FACTS EMERGIN G FROM THE RECORDS IN CONTEXT OF THE VALIDITY OF THE PENALTY PROCEEDINGS WERE THE SAME AS THOSE INVOLVED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2004 - 05, BUT HOWEVER SUBMITTED THAT THE CIT(A) HAD RIGHTLY DECLINED TO CONDONE THE DELAY INVOLVED IN FILING OF T HE APPEAL BY THE ASSESSEE. 29. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE REASONS LEADING TO DELAY IN FILING OF THE APPEAL AND ARE OF THE CONSIDERED VIEW THAT A PERUSAL OF THE SAME IN TOTALITY REVEALS THAT THE SAME WAS PROMPTED BY BONAFIDE REASONS, AND NOT FOR ANY INTENTIONAL LACHES OR LAPSES ON THE PART OF THE ASSESSEE. WE THUS TAKING SUPPORT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION P A G E | 23 VS. MST. KATIJI & ORS. (1987) 167 ITR 0471(SC), WHEREIN THE HON'BLE APEX COURT HAD EMPHASISED THAT A LIBERAL VIEW SHOULD BE ADOPTED WHILE CONSTRUING THE SUFFICIENCY OF THE CAUSE LEADING TO DELAY IN FILING OF THE APPEAL, SO THAT THE SAME MAY FACILITATE EVEN - HANDED JUSTICE ON MERITS IN PREFERENCE TO APPRO ACH WHICH SCUTTLES A DECISION ON MERITS, THEREFORE ARE OF THE CONSIDERED VIEW THAT THE CIT(A) HAD ERRED IN NOT CONDONING THE DELAY INVOLVED IN FILING OF THE APPEAL BY THE ASSESSEE. WE THUS IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE THUS SET ASIDE THE D ISMISSAL OF THE APPEAL BY THE CIT(A) FOR THE REASON THAT THE SAME WAS FILED BEYOND THE STIPULATED TIME PERIOD. 30. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THAT INVOLVED IN THE ASSESSES APPEAL FOR A.Y. 2004 - 05. THE LD. A.R IN ORDER TO FORTIFY HIS CONTENTION AS REGARDS NON - STRIKING OFF OF THE IRRELEVANT CHARGE BY THE A.O IN THE PENALTY NOTICE ISSUED U/S 274 RW.S 271, HAD THEREIN DRAWN OUR ATTENTION TO THE COPY OF THE SCN FOR THE YEAR UNDER CONSIDERATION AT PAGE 5 - 6 OF THE 'APB'. WE HAVE PERUSED THE SCN AND FIND THAT THERE IS NON - STRIKING OF THE IRRELEVANT CHARGE BY THE A.O IN THE NOTICE. WE THUS IN THE BACKDROP OF OUR AFORESAID OB SERVATIONS, HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PASSED WHILE DISPOSING OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL, VIZ. PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRAL CIRCLE 36, MUMBAI, MARKED AS ITA NO. 4188/MUM/2014 FOR A.Y. 2004 - 05, AND OUR DECISION PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL SHALL APPLY M UTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING ADOPTED WHILE DISPOSING OF T HE APPEAL OF PBA INFRASTRUCTURE LTD. VS. ACIT, CENTRAL CIRCLE 36, MUMBAI, MARKED AS ITA NO. 4188/MUM/2014 FOR A.Y. 2004 - 05, THEREIN ALLOW THE PRESENT APPEAL OF THE ASSESSEE FOR A.Y. 2007 - 08 AND QUASH THE PENALTY P A G E | 24 OF RS. 96,33,601/ - UPHELD BY THE CIT(A). WE MAY HEREIN OBSERVE THAT SINCE THE PENALTY HAD BEEN QUASHED ON THE PRELIMINARY POINT ITSELF, THEREFORE THE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS BEFORE US HAVING BEEN RENDERED AS ACADEMIC, ARE THUS NOT BE ING DEALT WITH. 31. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 32. THAT THE APPEALS OF THE ASSESSEE FOR A.YS. 2004 - 05, 2006 - 07 AND 2007 - 08, MARKED AS ITA(S) NOS. 4188 TO 4190/MUM/2014, RESPECTIVELY ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 16/06/2017 SD/ - SD/ - (G.S. PANNU) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 16 .06.2017 PS. ROHIT KUMAR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 25
