Sri Sashi Badalia, Kolkata V. A.C.I.T CC - XXVII,kolkata., Kolkata

ITA 444/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3366 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: S L KOCHAR
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Principle of natural justice; Initiation of penalty proceedings
• Section: 153A; 131; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 443 - 447 / KOL / 2013 ASSESSMENT YEARS:2005-06 TO 2009-10 SRI SASHI BADALIA 66/3, BEADON STREET, KOLKATA-700 006 [ PAN NO.ADJPB 0935 D ] V/S . ACIT,CC-XXVII, INCOME TAX OFFICE, POORVA, KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI S.L. KOCHAR, ADVOCATE & SHRI ANIL KOCHAR, ADVOCATE /BY RESPONDENT SHRI NIRAJ KUMAR, CIT-DR /DATE OF HEARING 10-12-2015 ! /DATE OF PRONOUNCEMENT 20-01-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE FIVE APPEALS FILED BY SAME ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, KOLKATA DA TED 11.01.2013. ASSESSMENTS WERE FRAMED BY ACIT, CC-XXVII, KOLKATA U/S 153A R.W.S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 28.12.2011 FOR ASSESSMENT YEARS 2005-06 TO 20 09-10 RESPECTIVELY. PENALTY LEVIED BY ASSESSING OFFICER U/S 271(1) OF THE ACT VIDE ORDER DATED 29.06.2012. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 2 2. AT THE OUTSET WE FIND THAT THE ASSESSEE HAS FILE D THE REVISED GROUNDS OF APPEAL WHICH IS REPRODUCED BELOW:- 1. FOR THAT IN VIEW OF THE FACT THAT THERE WAS NO SEIZURE OF ANY PAPER OR DOCUMENT AND ANY VALUABLE IN THE COURSE OF SEARCH O PERATION U/S. 132 OF THE INCOME TAX ACT, 1961 INDICATING ANY UNDISCLO SED INCOME FOR THE YEAR OF ASSESSMENT, ASSESSMENT FRAMED BY THE A.O U/ S 143(3)/153A IS ENTIRELY INVALID AND OF NO CONSEQUENCES AND THE IMP OSITION OF PENALTY U/S. 271(1) WAS WRONG & UNCALLED FOR. 2. FOR THAT THE ASSUMPTION OF JURISDICTION BY THE A .O U/S 271(1) IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLAN T IS WRONG, INVALID AND AS SUCH THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) AS IMPOSED BY THE AO. 3. FOR THAT THERE HAS BEEN MISCARRIAGE OF JUSTICE A S BECAUSE PENALTY HAS BEEN LEVIED U/S. 271(1) AND CONFIRMED BY THE L D. CIT(A) WHEN IN RESPECT OF THE ASSESSMENT FRAMED BY THE AO U/S 143( 3)/153A THERE IS NOWHERE ANY INDICATION OF ANY INCOME THAT COULD BE SAID TO BE EMANATING FROM ANY SEIZED PAPER OR DOCUMENT IN THE COURSE OF SEARCH U/S. 132 OF THE INCOME TAX ACT. 4. FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE ALLEGED GROUNDS. 5. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AMOUNTING TO RS.3,36,6,00/- 6. FOR THAT THE LD. CIT(A) OUGHT TO HAVE PROPERLY C ONSIDERED AND APPRECIATED THE SUBMISSIONS MADE BY THE APPELLANT W ITH REFERENCE TO THE FACTUAL ASPECT OF THE CASE AND OUGHT NOT TO HAV E CONFIRMED THE ORDER OF THE AO WHO LEVIED PENALTY U/S. 271(1)(C) 7. FOR THAT THERE WAS NO ELEMENT OF CONCEALMENT OF INCOME ON THE PART OF THE APPELLANT OR FURNISHING OF ANY INACCURATE PA RTICULARS OF INCOME AND THAT THE REASONINGS GIVEN BY THE APPELLANT AND THE CONTENTIONS RAISED OUGHT TO HAVE BEEN PROPERLY CONSIDERED BY TH E LD. CIT AND IN THAT VIEW OF THE MATTER THE PENALTY LEVIED OUGHT TO HAVE BEEN CANCELLED BY THE LD CIT(A). THE LD. DR HAS NOT RAISED ANY OBJECTION ON THE ADMI SSION OF REVISED GROUNDS OF APPEALS, SO WE HAVE ADMITTED ALL THE REVISED GRO UNDS OF APPEALS. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 3 3. THE ASSESSEE HAS RAISED SEVERAL REVISED GROUNDS OF APPEALS AND ALL OF THEM INVOLVE THE COMMON ISSUE WHICH IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY UNDER SECTION 271(1)(C) OF T HE ACT. SINCE THE FACTS IN ALL THE APPEALS ARE COMMON, FOR THE SAKE OF CONVENIENCE WE PASS A COMMON ORDER. THEREFORE, WE TAKE UP THE ASSESSMENT YEAR 20 05-06 AS THE BASE YEAR. 4. THE FACTS THE CASE ARE THAT THERE WAS A SEARCH A ND SEIZURE UNDER SECTION 132 OF THE ACT IN THE BADALIA GROUP ON DATE D 10-10-2009 AT 66/3A, BEADON STREET, KOLKATA-700006. THE BADALIA GROUP EN GAGED IN THE BUSINESS OF GEMS, JEWELLERY & DIAMONDS. THE ASSESSEE, IN THE PRESENT APPEAL, IS ONE OF THE KEY PERSONS OF THE GROUP. DURING THE COURSE OF THE SEARCH, THE CASH AND JEWELLERY WAS FOUND FROM THE RESIDENCE, OFFICE PREM ISES, BANK LOCKERS AND FROM THE PREMISES OF THE WORKERS. THE STATEMENT OF THE ASSESSEE WAS RECORDED UNDER SECTION 132(4) OF THE ACT. AS A RESU LT OF SEARCH, ASSESSEE HAS MADE THE DISCLOSURE OF THE FOLLOWING INCOMES BESIDE S THE INCOME ALREADY DECLARED UNDER SECTION 139 OF THE ACT. A.Y AMOUNT (RS) 2010-11 14,00,50,000/- 2009-10 16,00,000/- 2008-09 15,00,000/- 2007-08 13,50,000/- 2006-07 45,00,000/- 2005-06 10,00,000/- TOTAL 15,00,00,000/- THE AO HAS MADE THE ASSESSMENT UNDER SECTION 153A/1 43(3) OF THE ACT BY ACCEPTING THE INCOME DECLARED IN PURSUANCE OF SECTI ON 153A OF THE ACT. FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS DECLA RED AN ADDITIONAL INCOME OF 10 LAKHS WHICH IS OVER AND ABOVE THE INCOME DECLARE D IN THE ORIGINAL RETURN OF INCOME. THE ASSESSEE WAS FOUND TO HAVE GE NERATED THIS UNACCOUNTED INCOME FOR THE RELEVANT YEAR UNDER CONS IDERATION OUT OF THE ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 4 JEWELLERY BUSINESS WHICH WAS NOT OFFERED FOR THE TA X. THE ASSESSEE CONFIRMED THE DISCLOSURE IN THE DEPOSITION MADE U/S 131 OF TH E ACT. THE SEIZED MATERIAL AS A RESULT OF THE SEARCH WAS ALSO CONFRONTED TO TH E ASSESSEE. HOWEVER THE ASSESSEE SUBMITTED THAT THERE WAS SUFFICIENT AND RE ASONABLE CAUSE WHICH PREVENTED THE ASSESSEE TO DISCLOSE SUCH INCOME BEFO RE THE TAX AUTHORITIES. THE ORIGINAL RETURN WAS FILED FOR AN AMOUNT OF 2,71,951/- ONLY. NOW THE ASSESSMENT WAS FRAMED UNDER SECTION 153A OF THE ACT FOR AN AMOUNT OF 12,71,951/- ONLY. IN THE ASSESSMENT ORDER, AO INITI ATED PENALTY PROCEEDINGS AND ISSUED A NOTICE U/S 274 OF THE ACT STATING THAT YOU HAVE CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF SUCH INCOME. FINALLY THE AO IMPOSED PENALTY IN TERMS OF EXPLANAT ION 5A TO THE SECTION 271(1)(C) OF THE ACT BY HOLDING THAT THE PENALTY IS LEVIED FOR FURNISHING THE INACCURATE PARTICULARS OF INCOME LEADING TO CONCEAL MENT OF 10 LACS FOR AN AMOUNT 3,36,600/- @100% OF THE TAX SOUGHT TO BE EVADED. 5. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO HAS UPHELD THE ACTION OF ASSESSING OFFICER BY OBSERVING AS UN DER:- 5. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLA NT AND PERUSED THE ASSESSMENT ORDER. I HAVE ALSO GONE THROUGH THE JUDI CIAL PRONOUNCEMENTS RELIED UPON BY THE APPELLANT. IT IS OBSERVED THAT A SEARCH & SEIZURE OPERATION WAS CONDUCTED IN THE CAS E OF SHRI SHASHI BADALIA & GROUP ON 10.10.2009. IN THE COURSE OF SEA RCH, INCRIMINATING DOCUMENTS AND UNDISCLOSED ASSETS WERE FOUND. THE AP PELLANT OWNED THE UNDISCLOSED INCOME AND UNACCOUNTED ASSETS IN HI S HAND AND ACCORDINGLY IN THE COURSE OF SEARCH, ADDITIONAL INC OME OF RS.15 CRORES WAS ADMITTED FROM ASSESSMENT YEAR 2005-06 TO 2010-1 1. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED T HE YEAR-WISE BIFURCATION OF ADDITIONAL INCOME WHICH WAS DECLARED IN THE RESPECTIVE ASSESSMENT YEARS. FOR THE YEAR UNDER APPEAL THE UND ISCLOSED INCOME ADMITTED BY THE APPELLANT WAS RS.10,00,000/-. IN TH E RETURN OF INCOME FILED U/S 153A, THE SAID DECLARED INCOME WAS TAKEN INTO CONSIDERATION AND THE RETURN WAS FILED SHOWING TOTAL INCOME OF RS .12,71,951/-. THE ASSESSMENT WAS ALSO COMPLETED ON THE SAME INCOME. H OWEVER, IT IS A FACT ON RECORD THAT THE APPELLANT DID NOT DISCLOSE THE AFORESAID INCOME IN THE RETURN OF INCOME FILED U/S. 139(1) OF THE ACT. IN THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS CONTENDED THAT THE PENALTY U/S. 271(1) IS NOT LEVIABLE IN HIS CASE BECAUSE THE ADD ITIONAL INCOME WAS DISCLOSED IN THE COURSE OF SEARCH U/S. 132(4) OF TH E ACT AND THE SAME ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 5 INCOME WAS ASSESSED BY THE AO. IT IS ALSO ARGUED BY THE APPELLANT THAT THE RETURN FILED U/S 153A IS EQUIVALENT TO THE RETU RN FILED U/S. 139(1) AND HENCE EVEN THE PENALTY IS NOT LEVIABLE BY APPLYING PROVISIONS OF EXPLANATION 5A OF SECTION 271(1). HOWEVER, ON CARE FUL CONSIDERATION OF THE FACTS AND GOING THROUGH THE AMENDED PROVISIO NS OF SECTION 271(1) ALONG WITH EXPLANATION 5A, I AM NOT INCLINE D TO AGREE WITH THE SUBMISSION OF THE APPELLANT THAT FOR THE YEAR UNDER APPEAL THE PENALTY IS NOT LEVIABLE U/S. 271(1). THE PROVISIONS OF EXPLAN ATION 5A OF SECTION 271(1) READS AS UNDER:- [EXPLANATION 5A WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1 ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSET ) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING (WHOLLY OR IN PART) HIS INCOME FOR ANY PR EVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOU NT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH E NTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEA R, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, - (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YE AR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FO R SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETU RN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN AY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED THE PARTI CULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. ] 5.1 ON PERUSAL OF EXPLANATION 5A OF SECTION 271(1) SUBSTITUTED BY THE FINANCE (NO.2) ACT, 2009 APPLICABLE WITH RETROSPECT IVE EFFECT FROM 01.06.207, IT IS APPARENT THAT IN A CASE OF AN ASSE SSEE WHERE THE SEARCH IS INITIATED ON OR AFTER 1 ST DAY OF JUNE, 2007 AND SUCH AN ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE OR THING OR HAVING ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS AND RELATES TO ANY PREVI OUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND WHERE THE RETUR N OF INCOME FOR ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 6 SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SA ID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN, THEN, NOTWITH STANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME F URNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSE OF IM POSITION OF PENALTY U/S. 271(1), BE DEEMED TO HAVE CONCEALED THE PARTICULAR S OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN THE CASE OF APPELLANT, THERE IS NO DISPUTE THAT THE SEARCH WAS CONDUCTED AFTER 01.06.2007 AND THE INCOME RELATES TO THE PREVIOUS Y EAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH. THE APPELLANT HAD FILED RETURN OF INCOME FOR SUCH PREVIOUS YEAR BUT DID NOT DECLARE T HE INCOME THEREIN. UNDER THE CIRCUMSTANCES, EVEN IF THE APPELLANT HAS DECLARED THE UNDISCLOSED INCOME IN THE RETURN FILED U/S. 153A, H E WILL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME FOR TH E PURPOSE OF IMPOSITION OF PENALTY. AS PER EXPLANATION 5A TO SEC TION 271(1), NO IMMUNITY HAS BEEN PROVIDED FROM THE PENALTY IF THE UNDISCLOSED INCOME WAS DECLARED U/S. 132(4) IN THE COURSE OF SEARCH PR OCEEDINGS AS PROVIDED EARLIER BY EXPLANATION 5 OF THIS SECTION. IN VIEW OF ABOVE, I AM OF THE OPINION THAT THE AO WAS JUSTIFIED IN IMPOSIN G THE PENALTY U/S. 271(1) OF THE ACT. HIS ACTION IS IN ACCORDANCE WIT H THE PROVISIONS OF THE ACT. IN THE COURSE OF APPELLATE PROCEEDINGS, THE AP PELLANT HAS RELIED ON VARIOUS JUDICIAL PRONOUNCEMENTS, HOWEVER, NONE OF T HE DECISION IS APPLICABLE IN HIS CASE. ALL THESE DECISIONS RELATES TO THE PERIOD PRIOR TO SUBSTITUTION OF EXPLANATION 5A OF SECTION 271(1) O F THE ACT. HENCE, THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AMOUNTING T O RS.3,36,600/- IS CONFIRMED. THE GROUND NO. 1 TO 4 ARE DISMISSED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 6. SHRI S.L. KOCHAR AND SHRI ANIL KOCHAR, LD. AUTHO RIZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE AND SHRI NIRAJ KUMA R, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. 7. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US THE LD. AR SUBMITTED THAT ALL THE SEIZED PAPERS AND DOCUMENTS RELATE TO AY 2010-11. T HERE IS NO PAPER/DOCUMENT SEIZED THAT COULD SHOW ANY UNDISCLOS ED INCOME RELATABLE TO AYS 2005-06 TO 2009-10. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION THE ASSESSEE HAD ADMITTED A ROUGH AMOUNT OF 15 CRORES ON ESTIMATE BASIS ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 7 AS HIS INCOME. BUT LATER THE ASSESSEE FOUND THAT TH E ENTIRE AMOUNT OF 15 CRORES WAS NOT RELATED TO SEIZED PAPERS & DOCUMENTS EXCEPT INCOME OF RS.14.05 CRORES RELATING TO AY 2010-11. HOWEVER, TH E ASSESSEE WAS ADVISED TO SHOW THE BALANCE AMOUNT IN THE RETURNS FOR AY 20 05-06 TO 2009-10 SUO- MOTU . THE ASSESSMENT WHICH ABATED ON THE DATE OF SEARCH RELATED TO AY 2009-10 AND FOR ALL OTHER YEARS THE ASSESSMENT HAD ALREADY BEEN COMPLETED. SO THOSE YEARS COULD NOT BE DISTURBED. BESIDES, THE PENALTY PROCEEDINGS INITIATED U/S. 271(1)(C) BY WAY OF NOTICE DO NOT IN DICATE THE SATISFACTION AS TO WHETHER IT IS A CASE OF CONCEALMENT OF INCOME OR FU RNISHING OF INACCURATE PARTICULARS OF INCOME. THUS, THE NOTICE ISSUED U/S. 271(1)(C) IS BAD IN LAW. LD. AR DREW OUR ATTENTION TO THE LEGAL PRINCIPLES ENUNC IATED BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. AND HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SHAILA AGARWAL AND MUMBAI SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO GLOBAL LOGISTIC ON THE ISSUE OF ASSESSMENTS U/S. 153A OF THE ACT. L D. AR SUBMITTED THAT SINCE SEARCH & SEIZURE PROCEEDINGS U/S 132 OF THE ACT ARE GOVERNED BY THE PROVISIONS CONTAINED IN SEC. 153A, 153B AND 153C WH ICH ARE IN FACT SELF CONTAINED PROVISION, ANY RETURN FILED U/S. 153A OF THE ACT CANNOT HAVE ANY BEARING ABOUT THE RETURN FILED EARLIER U/S. 139 OF THE ACT. THEREFORE, THE AO CANNOT MAKE WEIGHMENT OF THE AMOUNT OF INCOME AS SH OWN U/S. 139 OF THE ACT AND SHOWN U/S. 153A OF THE ACT. A REFERENCE TO PARA -9 OF THE PENALTY ORDER IS REQUESTED WHICH IS SUBTRACTED HEREUNDER:- THE EXPLANATION OF THE ASSESSEE IS ALSO NOT TENABL E IN VIEW OF THE PRESENT DECISION GIVEN BY THE AHMEDABAD TRIBUNAL IN THE CASE OF ACIT, CENTRAL CIRCLE (AHD) TM. IT HAS BEEN HELD THAT IMMU NITY AGAINST THE PENALTY AS PER EXPLANATION-5 TO SEC. 271(1)(C) WILL BE AVAILABLE ONLY IN RESPECT OF SUCH ASSESSMENT YEARS WHERE THE ORIGINAL RETURN U/S. 139(1) WAS DUE AND FILED AFTER THE SEARCH AND NOT FOR EARL IER ASSESSMENT YEARS WHERE RETURN U/S. 139(1) WAS FILED EARLIER. AND SAID DECISION HAS BEEN OVERRULED IN THE CASE OF KIRIT DAHYABHAI PATEL V. ACIT REPORTED IN 121 DTR (GUJ) 337 IS INVITED WHERE IT HAS BEEN HELD AS UNDER: ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 8 THE CIT(A) RIGHTLY HELD THAT IT IS NOT RELEVANT WH ETHER ANY RETURN OF INCOME WAS FILED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN O F INCOME. IN VIEW OF SPECIFIC PROVISION OF SECTION 153A THE RETURN OF IN COME FILED IN REASONS TO NOTICE UNDER SECTION 153A THE RETURN OF INCOME F ILED IN RESPONSE TO NOTICE UNDER SECTION 153A IS TO BE CONSIDERED AS RE TURN FILED UNDER SECTION 139 AS THE A.O HAS MADE ASSESSMENT ON THE S AID RETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE P URPOSE OF PENALTY UNDER SECTION 271(1)(C) AND THE PENALTY IS TO BE LE VIED ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED UNDER S ECTION 153A, IF ANY. IN THIS CASE, ASSESSEES INCOME SHOWN IN THE RETURN FILED U/S. 153A AND INCOME DETERMINED AND ASSESSED IS THE SAME. THEREFO RE, THE DECISION OF THE AFORESAID CASE SQUARELY APPLIES TO THE CASE OF THE ASSESSEE. HENCE, THERE IS NO CONCEALMENT OF INCOME. ON THE OTHER HAND LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELOW. 8. FROM THE AFORESAID DISCUSSION WE FIND THAT THE A SSESSEE HAS DECLARED THE INCOME AS A RESULT OF SEARCH AND SEIZURE ON THE PREMISES OF THE ASSESSEE. THE AO IN THE INSTANT CASE FOUND THAT THE ASSESSEE HAS DECLARED AN INCOME OF RS. 10 LACS OVER AND ABOVE THE INCOME DECLARED IN T HE ORIGINAL RETURN. THE AO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271 (1)(C) OF THE ACT AND IMPOSED THE SAME. HOWEVER IN THE INSTANT CASE WE FI ND FROM THE CLAIM OF THE LD. AR THAT THE INCOME DISCLOSED AS A RESULT OF SEA RCH WAS ROUGHLY ESTIMATED RS. 15 CRORES AT THE TIME OF SEARCH AND THE STATEME NT WAS ACCORDINGLY GIVEN. BUT THE ASSESSEE AFTER VIEWING THE SEIZED ASSETS AN D DOCUMENTS FOUND THE UNDISCLOSED INCOME IS OF RS. 14.05 CRORES ONLY. BES IDES IT WAS ALSO FOUND OUT THAT THE ENTIRE UNDISCLOSED INCOME PERTAINS TO THE ASSESSMENT 2010-11. HENCE THERE WAS NO UNDISCLOSED INCOME PERTAINING TO THE YEAR UNDER CONSIDERATION. HOWEVER THE ASSESSEE DECIDED TO OFFE R THE INCOME TO TAX IN PURSUANCE OF THE STATEMENT RECORDED UNDER SECTION 1 32(4) OF THE ACT I.E. RS. 15 CRORES AND ALLOCATED THE INCOME RS. 0.95 CRORES OVER THE ASSESSMENT YEARS FROM 2005-06 TO 2009-10. WE ALSO OBSERVED THA T THE LD. DR HAS ALSO NOT BROUGHT ANYTHING ON RECORD TO CONTROVERT THE ARGUME NT OF THE ASSESSEE. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 9 BESIDES THE ABOVE, THE INCOME DISCLOSED BY THE ASSE SSEE IN PURSUANCE TO SECTION 153A OF THE ACT HAS BEEN ADMITTED BY THE RE VENUE. 8.1. WITHOUT PREJUDICE TO THE ABOVE FINDINGS WE AL SO FIND THAT THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN BE IMPOSED O N TWO COUNTS I.E. FIRSTLY, FOR CONCEALMENT OF INCOME AND SECONDLY FOR FURNISHI NG THE INACCURATE PARTICULARS OF INCOME. HOWEVER THE AO HAS NOT RECOR DED HIS SATISFACTION IN THE ASSESSMENT ORDER FOR LEVYING THE PENALTY BUT JUST I NITIATED PENALTY PROCEEDINGS. WE ALSO FIND FROM THE NOTICE ISSUED UNDER SECTION 2 74 THAT NO SATISFACTION HAS BEEN RECORDED BY THE AO FOR LEVYING THE PENALTY EIT HER FOR CONCEALMENT OR FOR FURNISHING IN ACCURATE PARTICULARS OF INCOME. IT IS THE DUTY OF THE AO TO CLEARLY SPECIFY THAT THE PENALTY IS BEING IMPOSED FOR CONCE ALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. 8.2. THE HONBLE KARNATAKA HIGH COURT IN THE CASE O F CIT & ANR. V. MANJUNATHA COTTON AND GINNING FACTORY , 359 ITR 565 (KARN), HAS HELD THAT NOTICE U/S. 274 OF THE ACT SHOULD SPECIFICALLY STAT E AS TO WHETHER PENALTY IS BEING PROPOSED OR TO BE IMPOSED FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. TH E HONBLE HIGH COURT HAS FURTHER LAID DOWN THAT CERTAIN PRINTED FORM WHERE A LL THE GROUNDS GIVEN IN SECTION 271 ARE GIVEN WOULD NOT SATISFY THE REQUIRE MENT OF LAW. THE COURT HAS ALSO HELD THAT INITIATING PENALTY PROCEEDINGS ON ON E LIMB AND FINDING THE ASSESSEE GUILTY ON ANOTHER LIMB IS BAD IN LAW. IT W AS SUBMITTED THAT IN THE PRESENT CASE, THE AFORESAID DECISION WILL SQUARELY APPLY AND ALL THE ORDERS IMPOSING PENALTY HAVE TO BE HELD AS BAD IN LAW AND LIABLE TO BE QUASHED. 8.3. THE HONBLE KARNATAKA HIGH COURT IN THE CASE O F CIT & ANR. V. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) HAS LAID DOWN THE FOLLOWING PRINCIPLES TO BE FOLLOWED IN THE MATTER OF IMPOSING PENALTY U/S.271(1)(C) OF THE ACT. NOTICE UNDER SECTION 274 ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 10 59. AS THE PROVISION STANDS, THE PENALTY PROCEEDING S CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PAS SED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGARDING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PROCEEDINGS IS INITIATED, IN THE NOTICE TO BE ISSUED UNDER SECT ION 274, THEY COULD CONVENIENTLY REFER TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION OF THE AUTHORITY WHICH HAS PASSED THE ORDER. HOWEVER, IF THE EXISTENCE OF THE CONDITIONS COULD NOT BE DISCERNED FROM THE S AID ORDER AND IF IT IS A CASE OF RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION-1 OR IN EXPLANATION-1(B), THEN THOUGH PENALTY PROCEED INGS ARE IN THE NATURE OF CIVIL LIABILITY, IN FACT, IT IS PENAL IN NATURE. IN EITHER EVENT, THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED I N SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THE Y INTEND IMPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR THAT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AN D SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(1)(C) DO N OT EXIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE D EPARTMENT SENDING A PRINTED FARM WHERE ALL THE GROUND MENTIONED IN SE CTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INIT IAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE T O BE HELD TO BE STRICTLY CONSTRUED, NOTICE ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHERWIS E, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE NOTIC E IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPO SED ON THE ASSESSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES, TH AT IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. NO DOUBT, THE FACTS OF SOME CASES MAY AT TRACT BOTH THE OFFENCES AND IN SOME CASES THERE MAY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES THE INITIATION OF THE PE NALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE OFFENCES. BUT DRAWING UP PENALTY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSE E GUILTY OF ANOTHER OFFENCE OR FINDING HIM GUILTY FOR EITHER TH E ONE OR THE OTHER CANNOT BE SUSTAINED IN LAW. IT IS NEEDLESS TO POINT OUT SATISFACTION OF THE EXISTENCE OF THE GROUNDS MENTIONED IN SECTION 2 71(1)(C) WHEN IT IS A SINE QUA NON FOR INITIATION OR PROCEEDINGS, TH E PENALTY PROCEEDINGS SHOULD BE CONFINED ONLY TO THOSE GROUND S AND THE SAID GROUNDS HAVE TO BE SPECIFICALLY STATED SO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MEET THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRIES TO SUBSTANTIATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOULD BE IMPOSED ONLY ON THE GROUNDS O N WHICH HE IS CALLED UPON TO ANSWER. IT IS NOT OPEN TO THE AUTHOR ITY, AT THE TIME OF ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 11 IMPOSING PENALTY TO IMPOSE PENALTY ON THE GROUNDS O THER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOUGH THE INITIATION OF PENALTY PROCEEDINGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PENALTY WOULD OFFEND PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND, THE PENALTY SHOULD ALSO BE IMPOSED ON T HE SAME GROUND. WHERE THE BASIS OF THE INITIATION OF PENALT Y PROCEEDINGS IS NOT IDENTICAL WITH THE GROUND ON WHI CH THE PENALTY WAS IMPOSED, THE IMPOSITION OF PENALTY IS N OT VALID. THE VALIDITY OF THE ORDER OF PENALTY MUST BE DETERMINED WITH REFERENCE TO THE INFORMATION, FACTS AND MATERIALS I N THE HANDS OF THE AUTHORITY IMPOSING THE PENALTY AT THE TIME THE ORDER WAS PASSED AND FURTHER DISCOVERY OF FACTS SUBSEQUENT TO THE IMPOSITION OF PENALTY CANNOT VALIDATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS NOT SUSTAINABLE. 61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE AC T TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COU RSE 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 I NCOME 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 292 ITR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHI NG INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJARAT HIGH COURT IN THE CASE OF MANU ENGINEERING REPORTED IN 1 22 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF VIRGO MARKE TING REPORTED IN 171 TAXMAN 156, HAS HELD THAT LEVY OF P ENALTY 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 CON CEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS T HE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ST ANDARD PRO FORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON-APPLICATION OF MIND. THE FINAL CONCLUSION OF THE HONBLE COURT WAS AS FO LLOWS:- 63. IN THE LIGHT OF WHAT IS STATED ABOVE, WHAT EME RGES IS AS UNDER: A) PENALTY UNDER SECTION 271(1)(C) IS A CIVIL LIAB ILITY. B) MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMPOSI NG PENALTY FOR BREACH OF CIVIL OBLIGATIONS OR LIABILITIES. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 12 C) WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDI ENT FOR ATTRACTING CIVIL LIABILITY. D) EXISTENCE OF CONDITIONS STIPULATED IN SECTION 2 71(1)(C) IS A SINE QUA NON FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271. E) THE EXISTENCE OF SUCH CONDITIONS SHOULD BE DISC ERNIBLE FROM THE ASSESSMENT ORDER OR ORDER OF THE APPELLATE AUTH ORITY OR REVISIONAL AUTHORITY. F) EVEN IF THERE IS NO SPECIFIC FINDING REGARDING THE EXISTENCE OF THE CONDITIONS MENTIONED IN SECTION 271(1)(C), AT L EAST THE FACTS SET OUT IN EXPLANATION 1(A) & (B) IT SHOULD BE DISCERNI BLE FROM THE SAID ORDER WHICH WOULD BY A LEGAL FICTION CONSTITUTE CON CEALMENT BECAUSE OF DEEMING PROVISION. G) EVEN IF THESE CONDITIONS DO NOT EXIST IN THE AS SESSMENT ORDER PASSED, AT LEAST, A DIRECTION TO INITIATE PROCEEDIN GS UNDER SECTION 271(L)(C) IS A SINE QUA NON FOR THE ASSESSMENT OFFI CER TO INITIATE THE PROCEEDINGS BECAUSE OF THE DEEMING PROVISION CONTAI NED IN SECTION 1(B). H) THE SAID DEEMING PROVISIONS ARE NOT APPLICABLE TO THE ORDERS PASSED BY THE COMMISSIONER OF APPEALS AND THE COMMI SSIONER. I) THE IMPOSITION OF PENALTY IS NOT AUTOMATIC. J) IMPOSITION OF PENALTY EVEN IF THE TAX LIABILITY IS ADMITTED IS NOT AUTOMATIC. K) EVEN IF THE ASSESSEE HAS NOT CHALLENGED THE ORD ER OF ASSESSMENT LEVYING TAX AND INTEREST AND HAS PAID TA X AND INTEREST THAT BY ITSELF WOULD NOT BE SUFFICIENT FOR THE AUTH ORITIES EITHER TO INITIATE PENALTY PROCEEDINGS OR IMPOSE PENALTY, UNL ESS IT IS DISCERNIBLE FROM THE ASSESSMENT ORDER THAT, IT IS O N ACCOUNT OF SUCH UNEARTHING OR ENQUIRY CONCLUDED BY AUTHORITIES IT H AS RESULTED IN PAYMENT OF SUCH TAX OR SUCH TAX LIABILITY CAME TO B E ADMITTED AND IF NOT IT WOULD HAVE ESCAPED FROM TAX NET AND AS OPINE D BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. L) ONLY WHEN NO EXPLANATION IS OFFERED OR THE EXPL ANATION OFFERED IS FOUND TO BE FALSE OR WHEN THE ASSESSEE FAILS TO PROVE THAT THE EXPLANATION OFFERED IS NOT BONA FIDE, AN ORDER IMPO SING PENALTY COULD BE PASSED. M) IF THE EXPLANATION OFFERED, EVEN THOUGH NOT SUB STANTIATED BY THE ASSESSEE, BUT IS FOUND TO BE BONA FIDE AND ALL FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOT AL INCOME HAVE BEEN DISCLOSED BY HIM, NO PENALTY COULD BE IMPOSED. N) THE DIRECTION REFERRED TO IN EXPLANATION IB TO SECTION 271 OF THE ACT SHOULD BE CLEAR AND WITHOUT ANY AMBIGUITY. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 13 O) IF THE ASSESSING OFFICER HAS NOT RECORDED ANY S ATISFACTION OR HAS NOT ISSUED ANY DIRECTION TO INITIATE PENALTY PR OCEEDINGS, IN APPEAL, IF THE APPELLATE AUTHORITY RECORDS SATISFAC TION, THEN THE PENALTY PROCEEDINGS HAVE TO BE INITIATED BY THE APP ELLATE AUTHORITY AND NOT THE ASSESSING AUTHORITY. P) NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPEC IFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I.E., W HETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INCORREC T PARTICULARS OF INCOME Q) SENDING PRINTED FORM WHERE ALL THE GROUND MENTI ONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIRE MENT OF LAW. R) THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE H AS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUST ICE IS OFFENDED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED TO THE ASSESSEE. S) TAKING UP OF PENALTY PROCEEDINGS ON ONE LIMB AN D FINDING THE ASSESSEE GUILTY OF ANOTHER LIMB IS BAD IN LAW. T) THE PENALTY PROCEEDINGS ARE DISTINCT FROM THE A SSESSMENT PROCEEDINGS. THE PROCEEDINGS FOR IMPOSITION OF PENA LTY THOUGH EMANATE FROM PROCEEDINGS OF ASSESSMENT, IT IS INDEP ENDENT AND SEPARATE ASPECT OF THE PROCEEDINGS. U) THE FINDINGS RECORDED IN THE ASSESSMENT PROCEED INGS IN SO FAR AS ' CONCEALMENT OF INCOME ' AND ' FURNISHING OF INCORRECT PARTICULARS ' WOULD NOT OPERATE AS RES JUDICATA IN THE PENALTY PROCEEDINGS. IT IS OPEN TO THE ASSESSEE TO CONTEST THE SAID PROCEEDINGS ON MERITS. HOWEVER, THE VALIDITY OF THE ASSESSMENT OR REASSESSMENT IN PURSUANCE OF WHICH PENALTY IS LEVIE D, CANNOT BE THE SUBJECT MATTER OF PENALTY PROCEEDINGS. THE ASSESSMENT OR REASSESSMENT CANNOT BE DECLARED A S INVALID IN THE PENALTY PROCEEDINGS. NOW IT IS CLEAR FROM THE AFORESAID DECISION AND ON THE FACTS OF THE CASE THAT AS SUCH THERE WAS NO UNDISCLOSED INCOME OF THE ASSESSE E PERTAINING TO THE YEAR UNDER CONSIDERATION AND ALSO THE SHOW CAUSE NOTICE ISSUED U/S. 274 OF THE ACT WAS DEFECTIVE AS IT DOES NOT SPELL OUT THE GROUNDS ON WHICH THE PENALTY IS SOUGHT TO BE IMPOSED. FOLLOWING THE DECISION OF TH E HONBLE KARNATAKA HIGH COURT, WE HOLD THAT THE ORDERS IMPOSING PENALTY IN ALL THE ASSESSMENT YEARS HAVE TO BE HELD AS INVALID AND CONSEQUENTLY PENALTY IMPOSED IS CANCELLED. ITA NO.443-447/KOL/2013 A.YS.05-06 TO 09- 10 SH. SASHI BADALIA V. ACIT,CC-XXVII, KOL. PAGE 14 HENCE, WE REVERSE THE ORDERS OF AUTHORITIES BELOW A ND GROUNDS RAISED BY ASSESSEE ARE ALLOWED. 9. TAKING A CONSISTENT VIEW IN ASSESSEES APPEAL IN ITA NO. 443/KOL/2013 AS A LEADING CASE AND COMMON GROUNDS RAISED IN OTHE R APPEALS OF ASSESSEE IN ITA NO.444/KOL/2013 TO 447/KOL/2013, HENCE, WE A LLOW ASSESSEES APPEALS IN TERMS OF OUR DECISION IN PARA-7 TO 8.3 OF THIS O RDER ACCORDINGLY. 10. IN THE RESULT, APPEALS FILED BY ASSESSEE ARE ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT 20/ 01/2016 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '#$- 20 / 01 / 2016 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI SASHI BADALIA, 66/3 BEADON STREET, KO LKATA-06 2. /REVENUE-ACIT, CC-XXVII, INCOME TAX OFFICE, POORVA, KOLKATA 3.#+#,- . / CONCERNED CIT KOLKATA 4. .- / CIT (A) KOLKATA 5.1 2344,-, ,-!, / DR, ITAT, KOLKATA 6.3789: / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# ,-!,