Sh. Swami Sharan Garg, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 4549/DEL/2011

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8290 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 31-05-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 12-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: V RAJ KUMAR
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence; Reasonable cause
• Section: 68; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.4549/DEL./2011 (ASSESSMENT YEAR : 2001-02) SHRI SWAMI SARAN GARG, VS. ITO, WARD 2 (3), 66, KAMBAL WALA BAGH, NEW DELHI. MUZAFARNAGAR. (PAN : AATPG8622P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V. RAJ KUMAR, ADVOCATE REVENUE BY : SHRI S.S. RANA, CIT DR DATE OF HEARING : 20.09.2018 DATE OF ORDER : 03.10.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI SWAMI SARAN GARG (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 21.06.2011 PASSED BY LD. CIT (APPEALS), MUZAFFARNAGAR QUA THE ASSESSMENT YEAR 20 01-02 ON THE GROUNDS INTER ALIA THAT:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) HAS ERRED IN SUSTAINING THE LEVY OF PENALTY U/S 271(1)( C) . HE HAS NOT ONLY FAILED TO CONSIDER AND APPRECIATE THE EXPLANATION GIVEN BY THE ASSESSEE IN RESPECT OF THE ADDITION ITA NO.4549/DEL./2011 2 OF RS 15,00,000/- BUT HAS SOLELY LIMITED HIS ORDER TO THE FINDINGS OF APPEAL ORDERS EMANATING FROM THE QUANTU M ASSESSMENT. 2. THAT THE ASSESSEE PLEADED VEHEMENTLY OF NO REASONABLE OPPORTUNITY HAVING BEEN PROVIDED BY THE ASSESSING OFFICER AT THE TIME OF LEVYING PENALTY. O NLY ONE NOTICE DATED 10-11-2009 IS SAID TO HAVE BEEN DEFAUL TED BY THE ASSESSEE, ALTHOUGH IT ACTUALLY WAS NOT SO, STIL L THE L'D COMMISSIONER OF INCOME TAX ( APPEALS) HAS ERRED IN DISALLOWING APPLICATION U/R 46A MADE BY THE ASSESSE E ON THIS VERY FLIMSY GROUND AND SUSTAINING THE HURRIED LEVY OF PENALTY WITHOUT GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 3. THAT THE POWERS AND DUTY OF THE L'D COMMISSIONER OF INCOME TAX (APPEALS) ARE COEXTENSIVE TO THE ASSE SSING OFFICER AND HENCE EVEN IF HE FELT THAT THE PENALTY WAS UNILATERALLY LEVIED WITHOUT OPPORTUNITY TO BE CORRE CT, HE FAILED IN HIS DUTY TO SEE THAT IN ARRIVING AT THE C ORRECT FACTS THE APPRECIATION OF AMPLE MATERIAL PRESENTED BEFORE HIM IN FIRST APPEAL WAS OF UTMOST IMPORTANCE. TO THIS EXTE NT THE L'D COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN REJECTING APPLICATION U/R 46A AND NOT CONSIDERING T HE FACTS BORNE BY COGENT EVIDENCE BEFORE HIM. 4. THAT THE L'D ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT THE AGREEMENT WAS EXECUTED ON 01-12 -2000 AND AFTER SEVEN LONG YEARS THE ASSESSING OFFICER LA UNCHED A MANHUNT FOR THE PURCHASER COMPANY AND ITS DIRECTORS IN OCTOBER 2004. IN THIS REGARD, HE FURTHER FAILED TO APPRECIATE THE LAW LAID DOWN IN: CIT VS AGARWAL PIPE COMPANY 240ITR 880 (DEL.) KUMAR AGENCIES VS ACIT 265 ITR 57 (MUMBAI-TM) WHICH WERE CITED BEFORE HIM. 5. THAT THE L'D COMMISSIONER OF INCOME TAX ( APPEALS) HAS FAILED TO SEE, THAT THE ASSESSEE HAD O RIGINALLY FILED THE 'AGREEMENT TO SELL' WITH THE RETURN OF IN COME ITSELF. IN APPEALS REGARDING THE QUANTUM ASSESSMENT, THE AS SESSEE MAY HAVE LOST, BUT PENALTY PROCEEDINGS, BEING QUASI JUDICIAL, NEED EXTRA EVIDENCE AND MATERIAL TO WORK UP TO ITS LEVY. 6. THAT THE AUTHORITY OF LAW PROPOUNDED IN : ITA NO.4549/DEL./2011 3 CIT VS VALUE CAPITAL SERVICES P.LTD. 307 ITR 334 ( DELHI) AND CIT VS STELLER INVESTMENTS LTD 164 CTR 287 (SC) WHICH WERE CITED BEFORE HIM HAS COMPLETELY ESCAPED THE KIND ATTENTION OF THE L'D COMMISSIONER OF INCOME TA X (APPEALS) IN AS MUCH AS EVEN-WHILE THE ENTRY OF RS 15,00,000/- WAS TREATED AS BOGUS, THE EVIDENCE TO P ROVE THAT THE ASSESSEE GAVE CASH TO PURCHASE THE SAID ENTRY I S ABSENT. 7. THAT ON PAGE 9 PARA 7 OF THE ASSESSMENT ORDER TH E ASSESSEE HAS BEEN HELD GUILTY OF 'FURNISHING INACCU RATE PARTICULARS', HOWEVER ON PAGE 10 FIRST PARA HE HAS BEEN HELD GUILTY OF 'CONCEALMENT', THUS THE CHARGE AGAIN ST THE ASSESSEE BEFITTING THE LEVY OF PENALTY U/S 271(1)(C ) IS UNSPECIFIC AND HENCE THE L'D COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT IN THESE CIRCUMSTANCES PENALTY WAS UNEXIGIBLE AND FURTHER L' D CIT(A) HAS ALSO NOT AT ALL CONSIDERED THE LAW PROPO UNDED BY NEW SORATHIA ENGINEERING CO. VS CIT 282 ITR 642 (GUJARAT) WHICH WAS CITED BEFORE HIM. 8. THAT THE L'D COMMISSIONER OF INCOME TAX (APPEALS ) HAS FAILED TO APPRECIATE THAT THE GROUNDS FOR INITI ATION OF PENALTY U/S 271(1)( C) WERE NEVER GIVEN TO THE ASSE SSEE AND A BLIND RELIANCE WAS PLACED ON THE ASSESSMENT ONLY FOR LEVYING PENALTY AS IN THE IMPUGNED PROCEEDINGS. 9. THAT THE ORDER OF THE L'D COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE, ILLEGAL AND BE THEREFORE QUASHED OUTRIGHT. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF COMPLETED ASSESSMENT UNDER SECTION 143 (3)/147 OF THE INCOME-TAX ACT, 19 61 (FOR SHORT THE ACT) AT THE INCOME OF RS.15,53,225/- AFTER MA KING ADDITION OF RS.15,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDI T DEPOSITED IN THE BANK U/S 68 OF THE ACT, PENALTY PROCEEDINGS WER E INITIATED U/S ITA NO.4549/DEL./2011 4 271(1)(C) OF THE ACT. ON FAILURE OF THE ASSESSEE T O APPEAR DURING THE PENALTY PROCEEDINGS, AO PROCEEDED TO CONCLUDE T HAT THE ASSESSEE HAS INTENTIONALLY FURNISHED INACCURATE PAR TICULARS OF INCOME REGARDING UNEXPLAINED CASH CREDIT DEPOSITED OF RS.15,00,000/- IN THE BANK AND ADDITION MADE THEREO N HAS BEEN CONFIRMED UPTO THE TRIBUNAL LEVEL, AND LEVIED THE P ENALTY OF RS.7,72,000/-. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING AN APPEAL WHO HAS CONFIRMED THE PENALTY LEVI ED BY THE AO BY DISMISSING THE APPEAL. FEELING AGGRIEVED, THE AS SESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, PENALTY OF RS.7,72,000/- HAS BEEN LEVIED U/S 271(1)(C) OF THE ACT PRIMARILY ON THE GROUND OF ADD ITION OF RS.15,00,000/- DEPOSITED IN THE BANK IN CASH U/S 68 OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE ADDITION OF RS.15,00,0 00/- HAS BEEN CONFIRMED UPTO THE TRIBUNAL. IT IS ALSO NOT IN DIS PUTE THAT THE PENALTY HAS BEEN IMPOSED FOR INTENTIONALLY FURNISHI NG INACCURATE PARTICULARS OF INCOME . ITA NO.4549/DEL./2011 5 6. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, ORDER PASSED BY THE LOWER REVENUE AUTHORI TIES AND ARGUMENTS ADDRESSED BY THE LD. AR TO THE PARTIES, T HE SOLE QUESTION ARISES FOR DETERMINATION IN THIS CASE IS:- AS TO WHETHER THE ASSESSEE HAS CONCEALED PARTICULA RS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME DURING ASSESSMENT PROCEEDINGS WHILE INTERPRETING THE PROVISIONS CONTAINED U/S 271(1)(C) OF THE ACT? 7. THE LD. AR FOR THE ASSESSEE COMPANY CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT SHOW-CAUSE NOTICE ISSUED BY THE AO U/S 274, AVAILABLE AT PAGE 4 OF THE PAPER BOOK IS NOT A VALID NOTICE TO INITIATE THE PENALTY PROCEEDINGS AS THE ASSESSEE COMPANY HAS NOT BEEN MADE AWARE IF IT HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE P ARTICULARS OF SUCH INCOME AND RELIED UPON THE DECISION RENDERED B Y THE HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY & ORS. 359 ITR 565 (KARN.); THAT THE ASSESSEE HAS SUO MOTU MADE DISCLOSURE OF ENTIRE DETAIL IN TH E BANK PASSBOOK WHICH IS NOT BOOKS OF ACCOUNTS BUT DUE TO OLD AGE A ND ILL HEALTH, HE COULD NOT PROVE THE FACTS. 8. HOWEVER, LD. DR FOR THE REVENUE TO REPEL THE ARG UMENTS ADDRESSED BY THE LD. AR FOR THE ASSESSEE COMPANY CO NTENDED INTER ITA NO.4549/DEL./2011 6 ALIA THAT THE NOTICE ISSUED BY THE AO U/S 274 OF TH E ACT IS NOT STANDALONE DOCUMENT WHICH IS BASED ON ASSESSMENT OR DER; THAT THE NOTICE HAS BEEN ISSUED IN RESPECT OF FURNISHING INA CCURATE PARTICULARS OF INCOME AND RELIED UPON THE CASES OF SUNDARAM FINANCE LTD. VS. CIT (2018) 403 ITR 407 (MADRAS), CIT VS. SMT. KAUSHALYA (1995) 216 ITR 660 (BOMBAY), TRIMU RTI ENGINEERING WORKS 25 TAXMANN.COM 363, HYBRID RICE INTERNATIONAL PVT. LTD. VS. CIT ITA NO.285/DEL/20 07, EARTHMOVING EQUIPMENT SERVICE CORPORATION VS. DCIT - (2017) 166 ITD 113 (MUMBAI), DCIT VS. SHAHRUKH KHAN (201 8) 93 TAXMANN.COM 320 (MUMBAI-TRIB.), DHANRAJ MILLS PVT. LTD. VS. ACIT ITA NOS.3830 & 3833/MUM/2009. 9. TO PROCEED FURTHER, WE WOULD LIKE TO REPRODUCE N OTICE ISSUED U/S 271(1)(C) OF THE ACT FOR READY PERUSAL :- NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT, 1961 DATED : 14.12.2007 TO SH. SWAMI SARAN GARG, 66, KAMBALWALA BAGH, MUZAFFARNAGAR. WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2001-02 IT APPEARS TO ME TH AT YOU:- ITA NO.4549/DEL./2011 7 HAVE WITHOUT REASONABLE CAUSE FAILED TO FURNISH ME RETURN OF INCOME WHICH YOU WERE REQUIRED TO FURNIS H BY A NOTICE GIVEN UNDER SECTION 22(1)/22(2)/34 OF THE INDIAN INCOME - TAX ACT, 1922 OR WHICH YOU WERE REQUIRED TO FURNISH UNDER SECTION 139(1) OR BY A NO TICE GIVEN UNDER SECTION 139(2)/148 OF THE INCOME - TAX ACT, 1961, NO DATED.. HAVE WITHOUT REASONABLE CAUSE FAILED TO FURNISH IT WITHIN THE TIME ALLOWED AND THE MANNER REQUIRED BY THE SAID SECTION 139 (1) OR BY SUCH NOTICE. HAVE WITHOUT REASONABLE CAUSE FAILED TO COMPLY WITH A NOTICE UNDER SECTION 22(4)(23(2) OF THE INDI AN INCOME - TAX ACT, 1922 OR UNDER SECTION 142(1)/143(2) INCOME - TAX ACT, 1961, NO DATED.. HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR. FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT 11.00 AM/PM ON 28.12.2007 AND SHOW CAUSE WHY AN ORDER IMPOSING A PENALTY ON YOU SHOULD NOT BE MADE UNDER SECTION 271 OF THE INCOME TAX ACT, 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY O F BEING HEARD IN PERSON OR THROUGH AUTHORIZED REPRESENTATIV E YOU MAY SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE UNDER SECTION 271(1)(C). SD/- (M.R. GUPTA) ASSESSING OFFICER 10. UNDISPUTEDLY, ADDITIONS MADE AGAINST THE ASSESS EE DURING QUANTUM PROCEEDINGS HAVE ALREADY BEEN CONFIRMED. I T IS SETTLED PRINCIPLE OF LAW THAT THE PENALTY CANNOT BE IMPOSED MERELY ON THE GROUND THAT ADDITIONS MADE IN THE INCOME OF THE ASS ESSEE HAS BEEN CONFIRMED RATHER TO PROCEED WITH IMPOSITION OF PENA LTY U/S ITA NO.4549/DEL./2011 8 271(1)(C), THE AO HAS TO PROVE THAT THERE WAS CONCE ALMENT OF PARTICULARS OF INCOME OR ASSESSEE HAS FURNISHED INA CCURATE PARTICULARS OF SUCH INCOME. 11. BARE PERUSAL OF THE NOTICE ISSUED TO THE ASSESS EE U/S 271(1)(C) OF THE ACT REPRODUCED ABOVE GOES TO PROVE THAT ASSESSEE HAS NOT BEEN CALLED UPON TO EXPLAIN IF HE HAS CONCE ALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF SUCH INCOME RATHER A TICK HAS BEEN MARKED AGAINST BOTH T HE CHARGES MENTIONED IN THE PRINTED PROFORMA. HONBLE KARNATA KA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY & ORS. (SUPRA) DEALT WITH THE IDENTICAL ISSUE THREADBARE A ND CAME TO THE FOLLOWING CONCLUSION :- 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 LIABI LITY. B) MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMPOSI NG PENALTY FOR BREACH OF CIVIL OBLIGATIONS OR LIABILIT IES. C) WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDI ENT FOR ATTRACTING CIVIL LIABILITY. D) EXISTENCE OF CONDITIONS STIPULATED IN SECTION 271(1)(C) IS A SINE QUA NON FOR INITIATION OF PENAL TY PROCEEDINGS UNDER SECTION 271. E) THE EXISTENCE OF SUCH CONDITIONS SHOULD BE DISCERNIBLE FROM THE ASSESSMENT ORDER OR ORDER OF T HE APPELLATE AUTHORITY OR REVISIONAL AUTHORITY. ITA NO.4549/DEL./2011 9 F) EVER IF THERE IS NO SPECIFIC FINDING REGARDING THE EXISTENCE OF THE CONDITIONS MENTIONED IN SECTION 271(1)(C), AT LEAST THE FACTS SET OUT IN EXPLANATIO N 1(A) & (B) IT SHOULD BE DISCERNIBLE FROM THE SAID ORDER WHICH WOULD BY A LEGAL FICTION CONSTITUTE CONCEALMENT BEC AUSE OF DEEMING PROVISION. G) EVEN IF THESE CONDITIONS DO NOT EXIST IN THE ASSESSMENT ORDER PASSED, AT LEAST, A DIRECTION TO I NITIATE PROCEEDINGS UNDER SECTION 271(L)(C) IS A SINE QUA N ON FOR THE ASSESSMENT OFFICER TO INITIATE THE PROCEEDI NGS BECAUSE OF THE DEEMING PROVISION CONTAINED IN SECTI ON 1(B). H) THE SAID DEEMING PROVISIONS ARE NOT APPLICABLE TO THE ORDERS PASSED BY THE COMMISSIONER OF APPEALS AN D THE COMMISSIONER. 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 TAX AND INTEREST THAT BY ITSELF WOULD NOT BE SUFFICIENT FOR THE AUTHORITIES EITHER TO INITIATE PENALTY PROCEEDINGS OR IMPOSE PENALTY, UNLESS IT IS DISCERNIBLE FROM THE ASSESSMENT ORDER THAT, IT IS ON ACCOUNT OF SUCH UNEARTHING OR ENQUIRY CONCLUDED BY AUTHORITIES IT H AS RESULTED IN PAYMENT OF SUCH TAX OR SUCH TAX LIABILI TY CAME TO BE ADMITTED AND IF NOT IT WOULD HAVE ESCAPE D FROM TAX NET AND AS OPINED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. L) ONLY WHEN NO EXPLANATION IS OFFERED OR THE EXPLANATION OFFERED IS FOUND TO BE FALSE OR WHEN TH E ASSESSEE FAILS TO PROVE THAT THE EXPLANATION OFFERE D IS NOT BONAFIDE, AN ORDER IMPOSING PENALTY COULD BE PASSED. M) IF THE EXPLANATION OFFERED, EVEN THOUGH NOT SUBSTANTIATED BY THE ASSESSEE, BUT IS FOUND TO BE ITA NO.4549/DEL./2011 10 BONAFIDE AND ALL FACTS RELATING TO THE SAME AND MAT ERIAL TO THE COMPUTATION OF HIS TOTAL 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. O) IF THE ASSESSING OFFICER HAS NOT RECORDED ANY SATISFACTION OR HAS NOT ISSUED ANY DIRECTION TO INI TIATE PENALTY PROCEEDINGS, IN APPEAL, IF THE APPELLATE AU THORITY RECORDS SATISFACTION, THEN THE PENALTY PROCEEDINGS HAVE TO BE INITIATED BY THE APPELLATE AUTHORITY AND NOT THE ASSESSING AUTHORITY. 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 I NCOME OR FOR FURNISHING OF INCORRECT PARTICULARS OF INCOM E Q) SENDING PRINTED FORM WHERE ALL THE GROUND MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW. R) THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED. ON THE BASIS OF SUCH PROCEEDIN GS, NO PENALTY COULD BE IMPOSED TO THE ASSESSEE. S) TAKING UP OF PENALTY PROCEEDINGS ON ONE LIMB AND FINDING THE ASSESSEE GUILTY OF ANOTHER LIMB IS BAD IN LAW. T) THE PENALTY PROCEEDINGS ARE DISTINCT FROM THE ASSESSMENT PROCEEDINGS. THE PROCEEDINGS FOR IMPOSIT ION OF PENALTY THOUGH EMANATE FROM PROCEEDINGS OF ASSESSMENT, IT IS INDEPENDENT AND SEPARATE ASPECT O F THE PROCEEDINGS. U) THE FINDINGS RECORDED IN THE ASSESSMENT PROCEEDINGS IN SO FAR AS 'CONCEALMENT OF INCOME' AN D 'FURNISHING OF INCORRECT PARTICULARS' WOULD NOT OPE RATE AS RES JUDICATA IN THE PENALTY PROCEEDINGS. IT IS O PEN TO ITA NO.4549/DEL./2011 11 THE ASSESSEE TO CONTEST THE SAID PROCEEDINGS ON MER ITS. HOWEVER, THE VALIDITY OF THE ASSESSMENT OR REASSESS MENT IN PURSUANCE OF WHICH PENALTY IS LEVIED, CANNOT BE THE SUBJECT MATTER OF PENALTY PROCEEDINGS. THE ASSESSME NT OR REASSESSMENT CANNOT BE DECLARED AS INVALID IN TH E PENALTY PROCEEDINGS. 12. SO, FOLLOWING THE LAW LAID DOWN BY HONBLE HIGH COURT, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE ASSESSEE H AS NOT BEEN SPECIFICALLY MADE AWARE OF THE CHARGES LEVELED AGAI NST HIM AS TO WHETHER THERE IS A CONCEALMENT OF INCOME OR FURNISH ING OF INACCURATE PARTICULARS OF INCOME ON HIS PART, THE P ENALTY U/S 271(1)(C) OF THE ACT IS NOT SUSTAINABLE. THE CASE LAW RELIED UPON BY THE LD. DR ARE NOT APPLICABLE TO THE FACTS AND C IRCUMSTANCES OF THIS CASE IN THE FACE OF THE DECISIONS RENDERED BY THE HONBLE HIGH COURT IN MANJUNATHA COTTON AND GINNING FACTORY & ORS. (SUPRA), AFFIRMED BY THE HONBLE APEX COURT. 13. ON MERITS EVEN, WHEN WE EXAMINE THE COPY OF RET URN ALONG WITH COMPUTATION OF INCOME, RECEIPT AND CAPITAL ACC OUNT AND BALANCE SHEET AT PAGE NOS.15 TO 18 OF THE PAPER BOO K, IT CONTAINS THE ENTIRE DETAIL AS TO THE AMOUNT HELD TO BE UNEXPLAI NED CASH DEPOSIT IN THE BANK BY THE ASSESSEE AND IN THESE CIRCUMSTAN CES, IT DOES NOT AMOUNT TO CONCEALING THE PARTICULARS OF INCOME OR F URNISHING OF INACCURATE PARTICULARS OF INCOME DURING ASSESSMENT PROCEEDINGS. ITA NO.4549/DEL./2011 12 MOREOVER, ENTRY FOR THE ADVANCE RECEIVED BY THE ASS ESSEE IN HIS BANK PASSBOOK CANNOT BE TERMED AS BOOKS OF ACCOUNT SO AS TO ATTRACT THE PROVISIONS CONTAINED U/S 68 OF THE ACT. 14. HONBLE SUPREME COURT IN A CASE CITED AS CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC) DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE. OPERATI VE PART OF WHICH IS REPRODUCED FOR READY REFERENCE AS UNDER :- A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE I.T. ACT, 1961 SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF T HE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUS T HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME . THE MEANING OF THE WORD PARTICULARS USED IN SECTI ON 271(1)(C) WOULD EMBRACE THE DETAIL OF THE CLAIM MAD E. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND T O BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HEL D GUILTY OF FURNISHING INACCURATE PARTICULARS. IN OR DER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKIN G AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCUR ATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHI NG WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSE E CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SU CH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIABILI TY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPL IED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRE CT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTIO N OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A ME RE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE ITA NO.4549/DEL./2011 13 PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 15. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT AO/CIT (A) HAVE ERRED IN LEVYI NG/CONFIRMING THE PENALTY OF RS.7,72,000/- WHICH IS NOT SUSTAINAB LE IN THE EYES OF LAW, HENCE ORDERED TO BE DELETED. CONSEQUENTLY, TH E APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF OCTOBER, 2018. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF OCTOBER , 2018 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MUZAFFARNAGAR. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.