Appeal Details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 8087 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 2 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
15-07-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
Not Allotted
Assessment Year
2006-2007
Appeal Filed On
25-04-2016
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 424 TO 426/JP/2016 FU/KZKJ.K O'KZ@ ASSESSMENT YEARS : 2005-06 TO 2007-08 SHRI RAJ KUMAR SODHANI, 16, BARKAT NAGAR, TONK ROAD, JAIPUR. CUKE VS. D.C.I.T., CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: AKHPS 7409 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 27 & 28/JP/2015 FU/KZKJ.K O'KZ@ ASSESSMENT YEARS : 2008-09 & 2009-10 SHRI RAJ KUMAR SODHANI, 16, BARKAT NAGAR, TONK ROAD, JAIPUR. CUKE VS. D.C.I.T., CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: AKHPS 7409 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MAHENDRA GARGIEYA & SHRI F. REHMAN (ADVS.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/07/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 15/07/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF LD.CIT(A)-4, JAIPUR DATED 02/02/2016, 14/10/2014 AND 15/10/2014 RESPECTIVELY FOR THE A.Y. 2005-06 TO 2009-10 IN THE MATTER OF ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 2 IMPOSITION OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN ALL THESE APPEALS, COMMON ISSUES ARE INVOLVED, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY ALL THE APPEALS WERE HEARD TOGETHER AND NOW DISPOSED OFF BY PASSING THIS CONSOLIDATED ORDER. 3. IN ALL THESE APPEALS, THE ASSESSEE IS AGGRIEVED FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT IN RESPECT OF ADDITION MADE DURING THE COURSE OF ASSESSMENT, WHICH WERE CONFIRMED BY THE APPELLATE AUTHORITY. DURING THE COURSE OF HEARING BEFORE US, THE ASSESSEE HAS TAKEN FOLLOWING ADDITIONAL GROUND: THAT THE SHOW CAUSE NOTICE ISSUED U/S 274 R/W/ 271(1)(C) OF THE ACT, IS QUITE VAGUE AND DID NOT AT ALL SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE IMPUGNED PENALTY BASED ON SUCH A NOTICE BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE QUASHED. 4. IT WAS CONTENDED BY THE LD AR OF THE ASSESSEE THAT THE ADDITIONAL GROUND SO TAKEN BY THE ASSESSEE IS A LEGAL GROUND WHICH DO NOT REQUIRE ANY FRESH INVESTIGATION OF FACTS INASMUCH AS THE SAME ARE ALREADY AVAILABLE ON RECORD. RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. 229 ITR 383 (SC). ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 3 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT THERE WAS A SEARCH AT THE ASSESSEES PREMISES, THEREAFTER THE ASSESSMENT WAS FRAMED U/S 153A R.W.S. 143(3) OF THE ACT WHEREIN ADDITION WAS MADE ON ACCOUNT OF UNDISCLOSED INCOME AS WELL AS LOW HOUSEHOLD WITHDRAWALS. THE ADDITION SO MADE WAS CONFIRMED BY THE APPELLATE AUTHORITY ON THE ADDITION SO UPHELD, THE A.O. HAS LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT AS UNDER: 6. IT WAS ARGUED BY THE LD AR OF THE ASSESSEE THAT THE PENALTY PROCEEDINGS ARE SEPARATE AND INDEPENDENT FROM THE ASSESSMENT PROCEEDINGS, THE A.O. IS REQUIRED TO PROVE FALSITY OF THE ASSESSEES CONTENTION THAT THE SEIZED MATERIAL WAS VAGUE OR ROUGH NOTING. IT WAS FURTHER CONTENDED BY THE LD AR THAT THE AO HAS LEVIED THE IMPUGNED PENALTIES IN ALL THE OTHER YEARS ONLY & ONLY ON THE BASIS OF FINDINGS RECORDED BY THE AO IN THE ASSESSMENT ORDERS. IT IS BY NOW WELL SETTLED THAT ASSESSMENT AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT FROM EACH OTHER. THE ORDER IMPOSING PENALTY IS QUASI-CRIMINAL IN NATURE AND, THUS, THE BURDEN LAY ON THE DEPARTMENT TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED HIS INCOME. SINCE THE BURDEN OF PROOF IN PENALTY PROCEEDING VARIES FROM A.Y. 2005 - 06 (RS.) 2006 - 07 (RS.) 2007 - 08 (RS.) 2008 - 09 (RS.) 2009 - 10 (RS.) PENALTY IMPOSED 45,000/- 70,000/- 5,000/- 13,00,000/- 30,10,000/- ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 4 THAT IN THE ASSESSMENT PROCEEDING, A FINDING IN THE ASSESSMENT PROCEEDING THAT A PARTICULAR RECEIPT IS INCOME OR THAT A DEDUCTION HAS WRONGLY BEEN CLAIMED INTENTIONALLY, CANT AUTOMATICALLY BE ADOPTED, THOUGH A FINDING IN THE ASSESSMENT PROCEEDINGS CONSTITUTES GOOD EVIDENCE IN THE PENALTY PROCEEDING. IN THE PENALTY PROCEEDINGS, THUS, THE AO IS REQUIRED TO BRING POSITIVE MATERIAL SHOWING INTENTIONAL CONCEALMENT. ALSO, THEREFORE, ALL THE EVIDENCES FILED & EXPLANATION SUBMITTED REQUIRE A CONSIDERATION AFRESH. THE BASIC DIFFERENCE BETWEEN THE ASSESSMENT PROCEEDINGS AND IN THE PENALTY PROCEEDINGS IS THAT WHEREAS IN THE PENALTY PROCEEDINGS, THE EVIDENCE HAS TO BE AGAIN EVALUATED DIFFERENTLY AND WITH A VIEW TO CONCLUSIVELY ASCERTAIN THE EARNING OF THE UNDISCLOSED INCOME BEYOND ANY DOUBT, HOWEVER, IN THE ASSESSMENT PROCEEDINGS EVEN IF THE EVIDENCE IS NOT CONCLUSIVE, THE INCOME MAY BE ASSESSED. FOR IMPOSING PENALTY, THE AO MUST CONCLUSIVELY PROVE THE EARNING OF THE UNDISCLOSED INCOME. HOWEVER, IN THIS CASE, THE AO MERELY ALLEGED BUT FAILED TO BRING ANY MATERIAL WHATSOEVER BY MAKING INDEPENDENT INQUIRES TO SUPPORT THE IMPOSITION OF THE IMPUGNED PENALTY. 7. WITH REGARD TO LEGAL GROUND SO RAISED, THE LD AR INVITED OUR ATTENTION TO THE NOTICE ISSUED BY THE A.O. U/S 274 R.W.S. 271(1)(C) OF THE ACT AS PLACED IN THE PAPER BOOK. IT WAS CONTENDED THAT THE NOTICE SO ISSUED ARE VAGUE IN SO FAR AS THE A.O. HAS NOT STRUCK THE IRRELEVANT PORTION IN THE ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 5 NOTICE AND THE NOTICE SO ISSUED HAVE THE FOLLOWING ALLEGATION HAVE CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. OUR ATTENTION WAS ALSO INVITED TO THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT WHEREIN THE PENALTY WAS FINALLY LEVIED FOR CONCEALMENT OF PARTICULARS OF INCOME. AS PER THE LD. AR, PENALTY SO IMPOSED IS BAD IN LAW IN SO FAR AS NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT IS IMPROPER AND INVALID. RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT & ANR. VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 0565 (KARN HC), WHEREIN IT WAS HELD AS UNDER: 62. THE PENALTY PROCEEDINGS ARE DISTINCT FROM ASSESSMENT PROCEEDINGS, AND INDEPENDENT THEREFROM. THE ASSESSMENT PROCEEDINGS ARE TAXING PROCEEDINGS. THE PROCEEDINGS FOR IMPOSITION OF PENALTY THOUGH EMANATING FROM PROCEEDINGS OF ASSESSMENT ARE INDEPENDENT AND SEPARATE ASPECTS OF THE PROCEEDING, SEPARATE PROVISION IS MADE FOR THE IMPOSITION OF PENALTY AND SEPARATE NOTICES OF DEMAND ARE MADE FOR RECOVERY OF TAX AND AMOUNT OF PENALTY. ALSO SEPARATE APPEAL IS PROVIDED AGAINST ORDER OF IMPOSITION OF PENALTY. ABOVE ALL, NORMALLY, ASSESSMENT PROCEEDINGS MUST PRECEDE PENALTY PROCEEDINGS. ASSESSEE IS ENTITLED TO SUBMIT FRESH EVIDENCE IN THE COURSE OF PENALTY PROCEEDINGS. IT IS BECAUSE PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS. 63. ----- THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED TO THE ASSESSEE. TAKING UP OF PENALTY PROCEEDINGS ON ONE LIMB AND FINDING THE ASSESSEE GUILTY OF ANOTHER LIMB IS BAD IN LAW. THE PENALTY PROCEEDINGS ARE DISTINCT FROM THE ASSESSMENT PROCEEDINGS. THE PROCEEDINGS FOR IMPOSITION OF PENALTY THOUGH EMANATE FROM PROCEEDINGS OF ASSESSMENT, IT IS INDEPENDENT AND SEPARATE ASPECT OF THE PROCEEDINGS. ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 6 8. FURTHER RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: (I) INDERJEET SINGH DAMANIA VS. ACIT IN ITA NO. 5743/DEL/2015 DATED 31.10.2017, IT WAS HELD AS UNDER: 5.1 THE HONBLE SUPREME COURT HAS REITERATED THE LAW IN CASE OF DILIP N.SHROFF V. JT. CIT 291 ITR 519 BY HOLDING IN PARA 62 THAT FINDING IN ASSESSMENT PROCEEDINGS CANNOT AUTOMATICALLY BE ADOPTED IN PENALTY PROCEEDINGS AND THE AUTHORITIES HAVE TO CONSIDER THE MATTER AFRESH FROM DIFFERENT ANGLE. (II) IN DILIP N.SHROFF V. JT. CIT 291 ITR 519 (SC), IT WAS HELD AS UNDER: THE ORDER IMPOSING PENALTY IS QUASI-CRIMINAL IN NATURE AND, THUS, BURDEN LIES ON THE DEPARTMENT TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED HIS INCOME. SINCE BURDEN OF PROOF IN PENALTY PROCEEDINGS VARIES FROM THAT IN THE ASSESSMENT PROCEEDING, A FINDING IN AN ASSESSMENT PROCEEDING THAT A PARTICULAR RECEIPT IS INCOME CANNOT AUTOMATICALLY BE ADOPTED, THOUGH A FINDING IN THE ASSESSMENT PROCEEDING CONSTITUTE GOOD EVIDENCE IN THE PENALTY PROCEEDING. IN THE PENALTY PROCEEDINGS, THUS, THE AUTHORITIES MUST CONSIDER THE MATTER AFRESH AS THE QUESTION HAS TO BE CONSIDERED FROM A DIFFERENT ANGLE STATUTE REQUIRES SATISFACTION ON THE PART OF THE ASSESSING OFFICER. HE IS REQUIRED TO ARRIVE AT A SATISFACTION SO AS TO SHOW THAT THERE IS PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED THE AMOUNT OR FURNISHED INACCURATE PARTICULARS AND THIS ONUS IS TO BE DISCHARGED BY THE DEPARTMENT. (PARA 51) (III) IN CIT V/S ISHTIAQ HUSSAIN (1998) 232 ITR 673 (ALL), IT WAS HELD AS UNDER: IT IS SETTLED THAT THE FINDINGS GIVEN IN ASSESSMENT PROCEEDINGS, WOULD BE RELEVANT AND ADMISSIBLE MATERIALS IN PENALTY PROCEEDINGS, BUT THOSE FINDINGS CANNOT OPERATE AS RES JUDICATA BECAUSE THE CONSIDERATIONS THAT ARISE IN PENALTY PROCEEDINGS ARE DIFFERENT FROM THOSE IN THE ASSESSMENT PROCEEDINGS. IT IS EVIDENT FROM THE ORDER OF THE TRIBUNAL THAT IT HAS RECORDED A CATEGORICAL FINDING THAT ON THE EVIDENCE LED BY THE ASSESSEE IT COULD NOT BE SAID THAT ON THE BALANCE OF PROBABILITIES, THE AMOUNTS IN QUESTION WERE NOT RECEIVED BY THE ASSESSEE FROM SRI RAM SWARUP. IN THE OPINION OF THE TRIBUNAL, THE ASSESSEE HAD DISCHARGED THE ONUS THAT LAY UPON HIM UNDER THE EXPLANATION TO S. 271(1)(C) AS IT STOOD AT THE RELEVANT TIME. THE FINDINGS RECORDED BY THE TRIBUNAL ARE PURE FINDINGS OF FACT BASED ON APPRECIATION OF EVIDENCE. (IV) GEM GRAMIT VS. DCIT 120 TTJ 992 (CHENNAI). (V) DURGA KAMAL RICE MILLS V/S CIT (2004) 265 ITR 25 (CAL.), (VI) CIT & ANR. V/S ANWAR ALI (1970) 76 ITR 696 (SC). ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 7 (VII) CIT VS. ANANTHARAM VEERASINGHAIAH & CO. (1980) 123 ITR 457 (SC). (VIII) CIT VS. KARTAR SINGH (1989) 178 ITR 589 (P&H HC), (IX) ACIT VS. SHIV NADAR (2007) 15 SOT 57 (DEL TRIB.) (X) CIT VS. J.K. SYNTHETICS LTD. (1996) 219 ITR 267 (DEL HC). 9. IN THE LAST, RELIANCE WAS PLACED ON THE DECISION OF ITAT AMRITSAR BENCH IN THE CASE OF HPCL MITTAL ENERGY LTD. VS ACIT IN ITA NO. 554 & 555/ASR.2014 DATED 03/05/2018. WITH REGARD TO LEVY OF CHARGE AT THE STAGE OF INITIATION OF PENALTY BY ISSUE OF NOTICE U/S 274 VIS A VIS CHARGE LEVIED IN THE PENALTY ORDER U/S 271(1)(C) OF THE ACT, THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS PER PARA 15 WHICH READS AS UNDER: 15. THE MOOT QUESTION IS THAT WHAT SHOULD BE THE NATURE OF SPECIFICATION OF A CHARGE BY THE AO AT THE STAGE OF INITIATION OF PENALTY PROCEEDINGS AND AT THE TIME OF PASSING THE PENALTY ORDER. IS THE AO REQUIRED TO SPECIFY IN THE PENALTY NOTICE/ORDER AS TO WHETHER IT IS A CASE OF 'CONCEALMENT OF PARTICULARS OF INCOME'; OR 'FURNISHING OF INACCURATE PARTICULARS OF INCOME'; OR BOTH OF THEM, WHICH CAN BE EXPRESSED BY USING THE WORD 'AND' BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR- CUT CASE OF CONCEALMENT OF PARTICULARS OF INCOME, HE MUST SPECIFY IT SO IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AND ALSO IN THE PENALTY ORDER. THE AO CANNOT INITIATE PENALTY ON THE CHARGE OF 'CONCEALMENT OF PARTICULARS OF INCOME', BUT ULTIMATELY FIND THE ASSESSEE GUILTY IN THE PENALTY ORDER OF 'FURNISHING INACCURATE PARTICULARS OF INCOME'. IN THE SAME MANNER, HE CANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY USING SLASH BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR-CUT CASE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE MUST AGAIN SPECIFY IT SO IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AND ALSO IN THE PENALTY ORDER. AFTER INITIATING PENALTY ON THE CHARGE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE CANNOT IMPOSE PENALTY BY FINDING THE ASSESSEE GUILTY OF CONCEALMENT ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 8 OF PARTICULARS OF INCOME'. AGAIN, HE CANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY USING SLASH BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR-CUT CASE OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT ON TWO OR MORE ADDITIONS/DISALLOWANCES, ONE OR MORE FALLING UNDER THE EXPRESSION 'CONCEALMENT OF PARTICULARS OF INCOME' AND THE OTHER UNDER THE 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE MUST SPECIFY IT SO BY USING THE WORD 'AND' BETWEEN THE TWO EXPRESSIONS IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS. IF HE REMAINS CONVINCED IN THE PENALTY PROCEEDINGS THAT THE PENALTY WAS RIGHTLY INITIATED ON SUCH COUNTS AND IMPOSES PENALTY ACCORDINGLY, HE MUST SPECIFICALLY FIND THE ASSESSEE GUILTY OF 'CONCEALMENT OF PARTICULARS OF INCOME' AND ALSO 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' IN THE PENALTY ORDER. IF THE CHARGE IS NOT LEVIED IN THE ABOVE MANNER IN ALL THE THREE CLEAR-CUT SITUATIONS DISCUSSED ABOVE IN THE PENALTY NOTICE AND ALSO IN THE PENALTY ORDER, THE PENALTY ORDER BECOMES UNSUSTAINABLE IN LAW. 10. ON THE OTHER HAND, THE LD DR HAS CONTENDED THAT THE QUANTUM ADDITION SO MADE BY THE A.O. HAS NOT ONLY BEEN CONFIRMED BY THE LD. CIT(A), BUT BY THE ITAT AND THE HONBLE HIGH COURT, THEREFORE, CONCEALMENT OF INCOME IS CLEARLY PROVED AND THE A.O. HAS CORRECTLY LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT. WITH REGARD TO ADDITIONAL GROUND TAKEN TO THE EFFECT THAT THE PENALTY ORDER WAS BAD IN LAW DUE TO DEFECT IN NOTICE, THE CONTENTION OF THE LD DR WAS THAT THIS WAS NOT RAISED BEFORE THE LD. CIT(A) AND NOW FIRST TIME IT IS RAISED BEFORE THE TRIBUNAL, THEREFORE, THE MATTER MAY BE RESTORED BACK FOR LOOKING THIS ADDITIONAL GROUND BEFORE THE LD. CIT(A). 11. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAD ALSO DELIBERATED ON THE JUDICIAL ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 9 PRONOUNCEMENTS REFERRED BY THE LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS CITED BY THE LD. AR AND LD. DR DURING THE COURSE OF HEARING BEFORE US WITH RESPECT TO MERIT OF THE ADDITION AS WELL AS LEGAL GROUND TAKEN BY THE ASSESSEE FOR IMPOSITION OF PENALTY IN VIEW OF DEFECT IN NOTICE ISSUED BY THE A.O, IN THE CONTEXT OF FACTUAL MATRIX OF THE CASE. THE LEGAL GROUND SO RAISED BY THE ASSESSEE GOES TO THE ROOT OF ISSUE AND ALL THE FACTS NECESSARY FOR ADJUDICATION ARE ALREADY AVAILABLE ON RECORD, THEREFORE, IN TERMS OF DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER, WE ADMIT THE LEGAL ISSUE FOR ADJUDICATION. IT IS CLEAR FROM THE NOTICE ISSUED U/S 274 OF THE ACT WITH RESPECT TO EACH YEAR, THAT THE A.O. HAS NOT MENTIONED AS TO WHETHER PENALTY WAS TO BE LEVIED FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HOWEVER, THE NOTICE SO ISSUED READ AS UNDER: FOR CONCEALING PARTICULARS OF YOUR INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. HOWEVER, WHILE LEVYING THE PENALTY, THE A.O. HAS CLEARLY HELD THE PENALTY IMPOSABLE FOR CONCEALMENT OF PARTICULARS OF INCOME. THUS, THERE IS A VARIATION IN THE CHARGE LEVIED FOR INITIATION OF PENALTY VIS A VIS CHARGE FINALLY LEVIED FOR IMPOSITION OF PENALTY. IT IS CLEAR FROM THE NOTICE SO ISSUED THAT THE ASSESSING OFFICER HAD LEVIED CHARGE OF CONCEALED THE PARTICULARS OF ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 10 INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN VIEW OF THE JUDICIAL PRONOUNCEMENTS DISCUSSED HEREINBELOW, THE NOTICE ISSUED UNDER SECTION 274, READ WITH SECTION 271 (1) (C) OF THE INCOME TAX ACT, 1961, SHOULD SPECIFY UNDER WHICH LIMB OF SECTION 271 (1) (C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE ABSENCE OF WHICH NO PENALTY SHOULD BE LEVIED ON THE ASSESSEE AS DETERMINATION OF SUCH LIMB IS SINE QUA NON FOR IMPOSITION OF PENALTY UNDER SECTION 271 (1) (C) OF THE ACT. 12. THERE CAN BE NO DOUBT THAT PENALTY U/S. 271(1)(C) OF THE ACT IS LEVIED FOR CONCEALING PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME, WHICH ARE THE TWO LIMBS OF THIS PROVISION. IN OTHER WORDS, IT IS ONLY WHEN THE AUTHORITY INVESTED WITH THE REQUISITE POWER IS SATISFIED THAT EITHER OF THE TWO EVENTS EXISTED IN A PARTICULAR CASE THAT PROCEEDINGS U/S. 271(1)(C) OF THE ACT ARE INITIATED. THIS PRE-REQUISITE SHOULD INVARIABLY BE EVIDENT FROM THE NOTICE ISSUED U/S. 274 R.W.S. 271 OF THE ACT, WHICH IS THE JURISDICTIONAL NOTICE, FOR VISITING AN ASSESSEE WITH THE PENAL PROVISION. THE INTENT AND PURPOSE OF THIS NOTICE IS TO INFORM THE ASSESSEE AS TO THE SPECIFIC CHARGE FOR WHICH HE HAS BEEN SHOW CAUSED SO THAT HE COULD FURNISH HIS REPLY WITHOUT ANY CONFUSION AND TO THE POINT. IN THE PRESENT CASE, NEITHER THE ASSESSEE NOR ANYONE ELSE COULD MAKE OUT AS ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 11 TO WHETHER THE NOTICE U/S. 274 R.W.S. 271 (1)(C) OF THE ACT WAS ISSUED FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME DISABLING IT TO MEET WITH THE CASE OF THE ASSESSING OFFICER. THERE ARE A CATENA OF JUDGMENTS HIGHLIGHTING THE NECESSITY FOR IDENTIFYING THE CHARGE FOR WHICH THE ASSESSEE IS BEING VISITED AND IN ALL THOSE DECISIONS, HON'BLE COURTS HAVE REPEATEDLY HELD THAT WHERE THE JURISDICTIONAL NOTICE IS VAGUE, SIMILAR TO THE ONE IN THE PRESENT CASE, THE CONSEQUENT LEVY CANNOT BE SUSTAINED. 13. IN THIS CONNECTION, RELIANCE IS FIRST PLACED UPON THE JUDGMENT OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. MANJUNATHA COTTON AND GINNING FACTORY & ORS. AND VEERABHADRAPPA SANGAPPA AND CO. (359 ITR 565, 577, 601, 603-604) IN WHICH THE FACTS ARE SIMILAR. IN THOSE BUNCH OF TAX APPEALS, SEVERAL ASSESSEE AND SEVERAL ISSUES WERE INVOLVED. IN SO FAR AS I.T.A. NO. 5020 OF 2009 WAS CONCERNED, ONE OF THE SUBSTANTIAL QUESTIONS ON WHICH THE APPEAL WAS FILED BY THE REVENUE WAS: 'WHETHER THE NOTICE ISSUED UNDER SECTION 271(1)(C) IN THE PRINTED FORM WITHOUT SPECIFICALLY MENTIONING WHETHER THE PROCEEDINGS ARE INITIATED ON THE GROUND OF CONCEALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS IS VALID AND LEGAL?' 14. WHILE ANSWERING THE ABOVE IN FAVOUR OF THE ASSESSEE, THE FOLLOWING FINDINGS WERE RECORDED BY THE HON'BLE COURT: ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 12 '61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE ACT TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COURSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF TOTAL INCOME UNDER CLAUSE (C). CONCEALMENT FURNISHING INACCURATE PARTICULARS OF INCOME ARE DIFFERENT THUS, THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION THAT WHETHER IS IT A CASE OF CONCEALMENT OF INCOME OR IS IT A CASE OF FURNISHING OF INACCURATE PARTICULARS. THE APEX COURT IN THE CASE OF ASHOK PAI REPORTED IN [2007] 292 ITR 11 (SC) AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJARAT HIGH COURT IN THE CASE OF MANU ENGINEERING WORKS REPORTED IN [1980] 122 ITR 306 (GUJ) AND THE DELHI HIGH COURT IN THE CASE OF CIT V. VIRGO MARKETING P LTD REPORTED IN [2008 171 TAXMAN 156 HAS HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFORE, WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE THE FIRST LIMB BEING CONCEALMENT THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. '(P) NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C) I.E. WHETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INCORRECT PARTICULARS OF INCOME. THE STANDARD PROFORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON-APPLICATION OF MIND. 15. THEREAFTER, IN SO FAR AS THE MANNER IN WHICH THE STATUTORY NOTICE WAS REQUIRED TO BE ISSUED, THE HON'BLE COURT CONCLUDED THUS: (P) 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 CONCEALMENT OF INCOME OR FOR FURNISHING OF INCORRECT PARTICULARS OF INCOME . 16. FINALLY, IN CONCURRING WITH THE FINDINGS RECORDED IN THE ORDER OF THE TRIBUNAL, IT WAS HELD THUS: 66. IN VIEW OF THE AFORESAID LAW, WE ARE OF THE VIEW THAT THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE ENTIRE PROCEEDINGS ARE VITIATED AS THE NOTICE ISSUED IS NOT IN ACCORDANCE WITH LAW AND ACCORDINGLY JUSTIFIED IN INTERFERING WITH THE ORDER PASSED BY THE APPELLATE AUTHORITY AS WELL AS THE ASSESSING AUTHORITY AND ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 13 IN SETTING ASIDE THE SAME. HENCE, WE ANSWER THE SUBSTANTIAL QUESTIONS OF LAW FRAMED IN THIS CASE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ' 17. THE AFORESAID JUDGMENT WAS UNSUCCESSFULLY CHALLENGED BY THE REVENUE BEFORE THE SUPREME COURT, AS IT WAS REJECTED VIDE PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 13898/2014 DATED 11.07.2016. RELIANCE WAS NEXT PLACED UPON ANOTHER JUDGMENT OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE CIT V. SSA'S EMERALD MEADOWS (INCOME TAX APPEAL NO. 380 OF 2015 DECIDED ON 23.11.2016). IN THIS CASE ALSO S SIMILAR SITUATION AROSE IN AS MUCH AS THE HONBLE COURT WAS REQUIRED TO ADJUDICATE ON THE FOLLOWING SUBSTANTIAL QUESTION: (1) WHETHER, OMISSION OF ASSESSING OFFICER TO EXPLICITLY MENTION THAT PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HAD CONCEALED INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE?' 18. THE AFORESAID QUESTION WAS DEALT WITH BY THE HONBLE COURT IN FAVOUR OF THE ASSESSEE IN THE FOLLOWING WORDS: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE INCOME-TAX ACT 1961 (FOR SHORT 'THE ACT; TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT THE PENALTY PROCEEDINGS HAD BEEN INITIATED LE. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNEL WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 14 4. IN OUR VIEW SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT WE ARE OF THE OPINION NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED. 19. THE SLP FILED BY THE DEPARTMENT IN THE AFORESAID CASE ALSO WAS DISMISSED BY THE HON'BLE SUPREME COURT VIDE PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO./2016 (CC NO. 11485/2016) DATED 05.08.2016. 20. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. SHRI SAMSON PERINCHERY [INCOME TAX APPEAL NO. 1154 OF 2014 AND OTHERS DATED 05.01.2017] HAD ALSO OCCASION TO CONSIDER A SIMILAR ISSUE. IN THIS CASE, THOUGH PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME, IN THE NOTICE ISSUED U/S. 274 R.W.S. 271 OF THE ACT IN THE STANDARD FORM, THE CHARGE FOR WHICH IT WAS ISSUED WAS ALSO NOT IDENTIFIED, AS IN THE PRESENT CASE. IN DELETING THE LEVY, SO FAR AS NON-SPECIFICATION OF THE DEFAULT IN THE JURISDICTIONAL NOTICE, THE FOLLOWING FINDINGS WERE RECORDED BY THE HON'BLE BOMBAY HIGH COURT: '7 THEREFORE, THE ISSUE HEREIN STANDS CONCLUDED IN FAVOUR OF THE RESPONDENT- ASSESSEE BY THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATH COTTON AND GINNING FACTORY (SUPRA). NOTHING HAS BEEN SHOWN TO US IN THE PRESENT FACTS WHICH WOULD WARRANT OUR TAKING A VIEW DIFFERENT FROM THE KARNATAKA HIGH COURT IN THE CASE OF MENJUNETH COTTON AND GINNING FACTORY (SUPRA). 8. IN VIEW OF THE ABOVE, THE QUESTION AS FRAMED DO NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW THUS, NOT ENTERTAINED' ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 15 21. THE HON'BLE SUPREME COURT IN DILIP N. SHROFF V/S JCIT, [2007] 291 ITR 519 (SC), HAS OBSERVED THAT WHILE ISSUING THE NOTICE UNDER SECTION 274 R/W SECTION 271, IN THE STANDARD FORMAT, THE ASSESSING OFFICER SHOULD DELETE THE INAPPROPRIATE WORDS OR PARAGRAPHS, OTHERWISE, IT MAY INDICATE THAT THE ASSESSING OFFICER HIMSELF WAS NOT SURE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD CONCEALED HIS INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. THIS, ACCORDING TO THE HON'BLE SUPREME COURT, DEPRIVES THE ASSESSEE OF A FAIR OPPORTUNITY TO EXPLAIN ITS STAND, THEREBY, VIOLATES THE PRINCIPLES OF NATURAL JUSTICE. AS HELD BY THE HON'BLE SUPREME COURT IN CIT V/S RELIANCE PETROPRODUCTS PVT. LTD. [2010] 322 ITR 158 (SC), THE AFORESAID PRINCIPLE LAID IN DILIP N. SHROFF (SUPRA) STILL HOLDS GOOD IN SPITE OF THE DECISION OF THE HON'BLE SUPREME COURT IN UOI V/S DHARMENDRA TEXTILE PROCESSORS (2008) 306 ITR 277 (SC). THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S SMT. KAUSHALYA & ORS., [1995] 216 ITR 660 (BOM), OBSERVED THAT NOTICE ISSUED UNDER SECTION 274 MUST REVEAL APPLICATION OF MIND BY THE ASSESSING OFFICER AND THE ASSESSEE MUST BE MADE AWARE OF THE EXACT CHARGE ON WHICH HE HAD TO FILE HIS EXPLANATION. THE COURT OBSERVED, VAGUENESS AND AMBIGUITY IN THE NOTICE DEPRIVES THE ASSESSEE OF REASONABLE OPPORTUNITY AS HE IS UNAWARE OF THE EXACT CHARGE HE HAS TO FACE. THE HON'BLE JURISDICTIONAL HIGH COURT IN SAMSON PERINCHERY (SUPRA), FOLLOWING THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN CIT V/S ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 16 MANJUNATHA COTTON & GINNING FACTORY, [2013] 359 ITR 565 (KAR.), HELD, ORDER IMPOSING PENALTY HAS TO BE MADE ONLY ON THE GROUND ON WHICH THE PENALTY PROCEEDINGS HAS BEEN INITIATED. 22. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHEVATA CONSTRUCTION CO. PVT. LTD. (SUPRA) HAS IN PARA 9 AS UNDER: TAKING INTO CONSIDERATION THE DECISION OF THE ANDHRA PRADESH HIGH COURT WHICH VIRTUALLY CONSIDERED THE SUBSEQUENT LAW AND THE LAW WHICH WAS PREVAILING ON THE DATE THE DECISION WAS RENDERED ON 27.08.2012. IN VIEW OF THE OBSERVATION MADE IN THE SAID JUDGEMENT, WE ARE OF THE OPINION THAT THE CONTENTION RAISED BY THE APPELLANT IS REQUIRED TO BE ACCEPTED AND IN THE FINDING OF ASSESSING OFFICER IN THE ASSESSMENT ORDER IT IS HELD THAT THE A.O. HAS TO GIVE A NOTICE AS TO WHETHER HE PROPOSES TO LEVY PENALTY FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS. HE CANNOT HAVE BOTH THE CONDITIONS AND IF IT IS SO HE HAS TO SAY SO IN THE NOTICE AND RECORD A FINDING IN THE PENALTY ORDER . 23. MOREOVER, THE AMRITSAR BENCH OF THE ITAT IN THE CASE OF HPCL MITTAL ENERGY LTD. VS ACIT (SUPRA) WITH REGARD TO LEVY OF CHARGE AT THE STAGE OF INITIATION OF PENALTY BY ISSUE OF NOTICE U/S 274 VIS A VIS CHARGE LEVIED IN THE PENALTY ORDER U/S 271(1)(C) OF THE ACT, THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS PER PARA 15 WHICH READS AS UNDER: 15. THE MOOT QUESTION IS THAT WHAT SHOULD BE THE NATURE OF SPECIFICATION OF A CHARGE BY THE AO AT THE STAGE OF INITIATION OF PENALTY PROCEEDINGS AND AT THE TIME OF PASSING THE PENALTY ORDER. IS THE AO REQUIRED TO SPECIFY IN THE PENALTY NOTICE/ORDER AS TO WHETHER IT IS A CASE OF 'CONCEALMENT OF PARTICULARS OF INCOME'; OR 'FURNISHING OF INACCURATE PARTICULARS OF INCOME'; OR BOTH OF THEM, WHICH CAN BE EXPRESSED BY USING THE WORD 'AND' BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR- ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 17 CUT CASE OF CONCEALMENT OF PARTICULARS OF INCOME, HE MUST SPECIFY IT SO IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AND ALSO IN THE PENALTY ORDER. THE AO CANNOT INITIATE PENALTY ON THE CHARGE OF 'CONCEALMENT OF PARTICULARS OF INCOME', BUT ULTIMATELY FIND THE ASSESSEE GUILTY IN THE PENALTY ORDER OF 'FURNISHING INACCURATE PARTICULARS OF INCOME'. IN THE SAME MANNER, HE CANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY USING SLASH BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR-CUT CASE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE MUST AGAIN SPECIFY IT SO IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AND ALSO IN THE PENALTY ORDER. AFTER INITIATING PENALTY ON THE CHARGE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE CANNOT IMPOSE PENALTY BY FINDING THE ASSESSEE GUILTY OF CONCEALMENT OF PARTICULARS OF INCOME'. AGAIN, HE CANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY USING SLASH BETWEEN THE TWO EXPRESSIONS. WHEN THE AO IS SATISFIED THAT IT IS A CLEAR-CUT CASE OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT ON TWO OR MORE ADDITIONS/DISALLOWANCES, ONE OR MORE FALLING UNDER THE EXPRESSION 'CONCEALMENT OF PARTICULARS OF INCOME' AND THE OTHER UNDER THE 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE MUST SPECIFY IT SO BY USING THE WORD 'AND' BETWEEN THE TWO EXPRESSIONS IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS. IF HE REMAINS CONVINCED IN THE PENALTY PROCEEDINGS THAT THE PENALTY WAS RIGHTLY INITIATED ON SUCH COUNTS AND IMPOSES PENALTY ACCORDINGLY, HE MUST SPECIFICALLY FIND THE ASSESSEE GUILTY OF 'CONCEALMENT OF PARTICULARS OF INCOME' AND ALSO 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' IN THE PENALTY ORDER. IF THE CHARGE IS NOT LEVIED IN THE ABOVE MANNER IN ALL THE THREE CLEAR-CUT SITUATIONS DISCUSSED ABOVE IN THE PENALTY NOTICE AND ALSO IN THE PENALTY ORDER, THE PENALTY ORDER BECOMES UNSUSTAINABLE IN LAW. ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 18 24. APPLYING THE PROPOSITION OF LAW LAID DOWN BY THE VARIOUS HON'BLE HIGH COURTS INCLUDING THE HONBLE JURISDICTIONAL HIGH COURT, WE DO NOT FIND ANY MERIT FOR THE PENALTY SO IMPOSED, ACCORDINGLY, AO IS DIRECTED TO DELETE THE PENALTY SO IMPOSED U/S. 271(1)(C) OF ACT. 25. THE FACTS AND CIRCUMSTANCES IN ALL THE YEARS UNDER CONSIDERATION ARE PARI MATERIA, FOLLOWING THE REASONING GIVEN HEREINABOVE, WE DO NOT FIND ANY MERIT IN THE PENALTY SO IMPOSED IN ALL THE YEARS UNDER CONSIDERATION. 26. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15 TH JULY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAJ KUMAR SODHANI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CENTRAL CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR ITA 424 TO 426/JP/2016 & 27 & 28/JP/2015_ RAJKUMAR SODHANI VS DCIT 19 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 424 TO 426/JP/2016 & 27 & 28/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR
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