M/S ABHIJIT CONSTRUCTION CO., Nagpur V. A,C.I.T CENT CIR. 1(4), Nagpur

ITA 495/NAG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9676 (ITAT-NAGPUR)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Search and seizure; Document seized; Documents seized; Revenue expenditure
• Section: 143(3); 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI P.K. BANSAL, VICE PRESIDENT AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 495/NAG./2016 ( ASSESSMENT YEAR : 200708 ) ABHIJIT CONSTRUCTION CO. JAYANTI MANSIONIII MANISH NAGAR NAGPUR 400 001 PAN AAFFA2373M APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE1(4) CIVIL LINES, NAGPUR 440 001 .... RESPONDENT ITA NO. 496/NAG./2016 ( ASSESSMENT YEAR : 200809 ) ABHIJIT CONSTRUCTION CO. JAYANTI MANSIONIII MANISH NAGAR NAGPUR 400 001 PAN AAFFA2373M APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE1(4) CIVIL LINES, NAGPUR 440 001 .... RESPONDENT ASSESSEE BY : SHRI K.P. DEWANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 22.06.2017 DATE OF ORDER 28.06 .2017 2 ABHIJIT CONSTRUCTION CO. O R D E R PER AMARJIT SINGH, J.M. THE ASSESSEE HAS FILED THE PRESENT APPEALS AGAINST THE IMPUGNED ORDER DATED 22 ND JULY 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS)3, NAGPUR, FOR THE ASSESSMENT YEAR 20070 8 AND 200809 RESPECTIVELY, CONFIRMING PENALTY OF ` 30,74,550 FOR THE ASSESSMENT YEAR 200708 AND ` 35,14,875 FOR THE ASSESSMENT YEAR 200809, IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271( 1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 2. SINCE BOTH THESE APPEALS PERTAIN TO THE SAME ASSESS EE INVOLVING COMMON ISSUES ARISING OUT OF IDENTICAL SET OF FACTS AND CIRCUMSTANCES, THEREFORE, AS A MATTER OF CONVENIENCE, THESE APPEAL S WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. HOWEVER, IN ORDER TO UNDERSTAND THE IMPLICATION, IT WOULD BE NECESSARY TO TAKE NOTE OF THE FACTS OF ONE APPEAL. WE ARE, AC CORDINGLY, NARRATING THE FACTS, AS THEY APPEAR IN THE APPEAL IN ITA NO. 495/NAG./2016, FOR ASSESSMENT YEAR 200708. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME UNDER SECTION 139 OF THE ACT ON 1 ST NOVEMBER 2007, DECLARING TOTAL INCOME TO THE TUNE OF ` 15,44,910, FOR THE ASSESSMENT YEAR 200708. A SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) WAS 3 ABHIJIT CONSTRUCTION CO. CONDUCTED ON 14 TH OCTOBER 2011, BY THE INVESTIGATION WING IN THE ABHIJIT GROUP OF CASES. THE ASSESSEE BEING ONE OF T HE MEMBERS OF THIS GROUP WAS ALSO COVERED UNDER SECTION 132(1) OF THE ACT BY VIRTUE OF AUTHORIZATION. SUBSEQUENT TO THE ACTION UNDER SECTI ON 132(1) OF THE ACT, STATUTORY NOTICES UNDER SECTION 153A(1)(A) WAS ISSUED ON 11 TH DECEMBER 2012, WHICH WAS SERVED UPON THE ASSESSEE. CONTESTING THE ACTION OF THE ASSESSING OFFICER, THE ASSESSEE FILED RETURN OF INCOME DATED 3 RD MAY 2013, UNDER SECTION 153A OF THE ACT DECLARING TOTAL INCOME OF ` 2,05,44,910, INCLUDING DISCLOSURE OF ` 1,90,00,000 ADMITTED DURING THE SEARCH. THE ASSESSEE HAD ALSO F ILED ORIGINAL RETURN OF INCOME ON 1 ST NOVEMBER 2007 UNDER SECTION 139(1) DECLARING TOTAL INCOME OF ` 15,44,910. THE ASSESSING OFFICER CONCLUDED THE ASSESSMENT UNDER SECTION 143(3) R/W SECTION 153A OF THE ACT ON 31 ST DECEMBER 2013, ASSESSING INCOME AT ` 2,05,83,440. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS UNDER SE CTION 271(1)(C) OF THE ACT IMPOSING PENALTY OF ` 30,74,550, OBSERVING AS UNDER: THE ASSESSEE GROUP HAS PAID HUGE AMOUNT OF MONEY O VER AND ABOVE THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNT F OR PURCHASE OF LAND FOR CONSTRUCTION OF RESIDENTIAL AS WELL AS COM MERCIAL UNITS. DURING THE COURSE OF SEARCH OPERATION, DOCUMENTS SH OWING THE EVIDENCE WITH REGARDS TO THE PAYMENT OF 'ON MONEY' ON PURCHASE OF LAND HAS BEEN FOUND AND SEIZED FROM THE RESIDENCE O F SHRI ABHIJIT MAJUMDAR AT PLOT NO. 20, HIGH COURT SOCIETY, SBI RO AD, GOVIND NAGAR, KHAMLA, NAGPUR AND INVENTORISED AT ITEM NO. 1 OF ANNEXURE - 'B'. THE PAGE NOS. 30 AND 31 OF ITEM 1 OF ANNEXU RE 'B SEIZED IS A RECEIPT ISSUED BY SHRI O.G. BAJAJ OF DEVISON ESTA TES PVT. LTD. IN THESE SEIZED DOCUMENTS, PAYMENTS ARE RECORDED MENTI ONING THE DATES AS WELL AS AMOUNTS. THE TWO PARTIES HAVE ALS O AUTHENTICATED 4 ABHIJIT CONSTRUCTION CO. BY PUTTING THEIR SIGNATURES ON THESE DOCUMENTS. IT IS ALSO MENTIONED IN THE DOCUMENTS THAT THE PAYMENTS ARE MA DE THROUGH CHEQUES AND CASH. 'CH' IS MENTIONED FOR CHEQUE PAYM ENT AND 'C' IS MENTIONED FOR CASH PAYMENTS. THE TOTAL OF PAYMEN TS MADE IS 388.25 BETWEEN 06.09.2006 TO 29.09.2009. OUT OF THI S TOTAL PAYMENT OF 388.25, PAYMENTS TO THE TUNE OF 188.25 IS RECORDED AGAINST 'C' WHICH MEANS CASH PAYMENTS AND TO THE TU NE OF 200 IS RECORDED AGAINST A CH' WHICH MEANS CHEQUE PAYMENTS. THESE PAGES ARE CRUCIAL AS IT CONTAINS THE ENTRIES ABOUT THE PA YMENT OF CONSIDERABLE CASH TO 'OGB/DE PVT LTD' BY ABHIJIT CO NSTRUCTION COMPANY. THE NOTINGS IN THESE PAGES ARE VERY CLEAR AS IT STATES THAT THE CASH IS RECEIVED FROM ABHIJIT CONSTR UCTION CO. FOR SALE OF PLOT NO. 2, KHASRA NO. 81/1 OF MOUZA SOMALWADA, NAGPUR. THE PAGES ALSO CONTAIN THE SIGNATURES OF SHRI ABHIJIT M AJUMDAR AND THE RECIPIENT. THE SCANNED COPIES OF THESE TWO PAGES AR E PLACED IN THE FOLLOWING PAGES. (SEIZED DOCUMENT HAS BEEN SCANNED BY THE A.O. ON PAGE3 AND 4 OF THE PENALTY ORDER). 4. BEING AGGRIEVED BY THE AFORESAID ORDER IMPOSING PENA LTY, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT( A), WHO CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. BEING AGGRIEVED THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR ASSESSEE, AT THE VERY OUTSE T, SUBMITTED BEFORE US THAT THE SHOW CAUSE NOTICES ISSUED ARE VA GUE AND ARE BAD IN LAW AND, CONSEQUENTLY, THE PENALTY LEVIED THEREUPON IS UNJUSTIFIED. HE SUBMITTED THAT THE PRESENT ISSUE IN DISPUTE IS COVE RED IN FAVOUR OF ASSESSEE BY FOLLOWING DECISIONS: I) ITA NO.1154 OF 2014 IN THE CASE OF SHRI SAMSON P ERINCHERY VIDE ORDER DATED 05.01.2017. II) ITAT ORDER IN ITA NO.4168/MUM/2013 IN THE CASE OF SIDDHI HOME MAKERS VIDE ORDER DATED 28.04.2017. 5 ABHIJIT CONSTRUCTION CO. 6. THE LEARNED COUNSEL SUBMITTED THAT THE PENALTY UNDE R SECTION 271(1)(C) HAS BEEN LEVIED IN RESPECT TO ADDITIONAL INCOME DECLARED IN THE RETURN OF INCOME FILED UNDER SECTION 153A OF TH E ACT. HE FURTHER SUBMITTED THAT THE INCOME DECLARED IN THE RETURN FI LED UNDER SECTION 153A OF THE ACT HAS BEEN ACCEPTED. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND PURCHASE OF LAND BY ASS ESSE IS IN RESPECT TO STOCK IN TRADE. ON MONEY PAYMENT ON PURCHASE OF LAN D IS PRIMARILY IN RESPECT TO ITEM OF REVENUE EXPENDITURE ALLOWABLE AT THE HANDS OF ASSESSE. NO REAL INCOME ACCRUED AT THE HANDS OF ASS ESSE AND NO INCREASE IN CAPITAL OF ASSESSE. MERELY BECAUSE ASSE SSE AGREE TO PAY TAX IN RESPECT TO SUCH SUMS SAME CANNOT BE VISITED WITH PENALTY UNDER SECTION 271 (1)(C). THE ADDITIONAL INCOME HAS BEEN ASSESSED MERELY BECAUSE SUCH SUMS HAVE BEEN OFFERED FOR TAXATION IN THE RETURN FILED UNDER SECTION 153A. SEIZED DOCUMENTS ARE NO CONCLUS IVE EVIDENCE FOR IMPOSING PENALTY AT THE HANDS OF ASSESSEE. SEIZED D OCUMENTS WERE NOT VERIFIED WITH THIRD PARTIES TO BRING ANY CORROB ORATIVE EVIDENCE ON RECORD. NO INCOME IS ASSESSABLE IN RESPECT TO SAME IN THE ABSENCE OF ANY INDEPENDENT VERIFICATION OF SAME. INCOME RETURN ED UNDER SECTION 153A OF IT ACT 1961 HAS BEEN REGULARIZED BY ASSESSM ENT FRAMED U/S 143(3) R/W SECTION 153A OF THE ACT. ASSESSEE AGREED TO PAY TAX TO BUY PEACE AND AVOID LITIGATION. ASSESSEE HAS NOT CLAIME D THAT ENTRY IN DOCUMENT REPRESENTS ITS INCOME. EXPLANATION 5A IS N OT APPLICABLE IN THE CASE OF ASSESSEE HENCE, THE ASSESSEE CANNOT BE VISITED WITH 6 ABHIJIT CONSTRUCTION CO. PENALTY UNDER SECTION 271(1)(C) OF THE ACT. PENALTY EXIGIBLE ONLY IN RESPECT TO ADDITION WHICH HAS BEEN MADE TO THE INCO ME RETURNED UNDER SECTION 153A OF THE ACT 1961. IN VIEW OF ABOVE, NO PENALTY OUGHT TO HAVE BEEN LEVIED UNDER SECTION 271(1)(C) OF THE ACT . THE LEARNED COUNSEL FOR ASSESSEE FURTHER SUBMITTED THAT THE AME NDMENT TO EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT RECE IVED THE ASCENT OF THE PRESIDENT ON 13 TH AUGUST 2009. PRE-AMENDED PROVISION OF EXPLANATION 5A APPLIES TO THE CASE WHERE ASSESSEE H AS NOT FILED ANY RETURN OF INCOME FOR RESPECTIVE ASSESSMENT YEARS UN DER SECTION 139(1) OF THE ACT. HE SUBMITTED THAT THE LEVY OF PENAL TY UNDER SECTION 271(1)(C) IS NOT MANDATORY. CONSIDERING THE F ACTS AND CIRCUMSTANCES IN THE CASE OF ASSESSEE, NO PENALTY U NDER SECTION 271(1)(C) OUGHT TO HAVE BEEN LEVIED. IN SUPPORT OF THE CONTENTIONS, THE LEARNED COUNSEL FOR ASSESSEE RELIED UPON THE DE CISION OF THE HONBLE SUPREME COURT IN HINDUSTAN STEEL LTD. V/S S TATE OF ORISSA, 82 ITR 26 (SC). THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAS FILED RETURN OF INCOME UNDER SECTION 139(1) OF ACT FOR THE ASSESSMENT YEARS 200708 AND 200809 ON 1 ST NOVEMBER 2007 AND 30 TH NOVEMBER 2008 RESPECTIVELY. THE ORIGINAL RETURN OF INCOME FILED BEFORE 13 TH AUGUST 2009 I.E., PRIOR TO AMENDED EXPLANATION 5A. AMENDED TO EXPLANATION 5A IS NOT APPLICABLE IN THE CASE OF ASS ESSE. IN SUPPORT OF THIS CONTENTION, THE LEARNED COUNSEL RELIED UPON TH E DECISION OF THE HONBLE SUPREME COURT IN CIT V/S ONKAR SARAN & SONS , 194 ITR 001 7 ABHIJIT CONSTRUCTION CO. (SC) AND THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN CIT V/S SAMSON PERINCHERY (2017) 392 ITR 4 (BOM.). 1. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND RELIED ON THE ORDER OF THE AUTHORITIES BELOW FOR BOTH THE YEARS UNDER CONSIDERATION. 7. HAVING HEARD THE RIVAL CONTENTIONS AND ON PERUSAL O F THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT IN ASSESSEES CA SE, THE INCOME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME AND THE INCOME WHICH WAS ASSESSED IN THE ASSESSMENT COMPLETED UNDER SECT ION 153A IS SAME. WE ALSO NOTICED THAT THE ASSESSEE IS ENGAGED IN THE ACTIVITY OF REAL ESTATE AND INCOME OFFERED IN THE RETURN IS IN RELATION TO EXPENDITURE WHICH IS ALLOWABLE AS BUSINESS EXPENDIT URE IN THE HANDS OF ASSESSEE. THE INCOME OFFERED TO TAX HAS BEEN REGULA RIZED IN THE ASSESSMENT FRAMED UNDER SECTION 153A R/W SECTION 14 3(3) OF THE TAX ACT. IT IS ALSO SEEN THAT IN ASSESSEES CASE, NOTIC E ISSUED FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS IN CYCLOSTYLE PROFORMA NOTICE WHERE NO SPECIFIC CHARGE TO SHOW AS TO WHETH ER THE PENALTY IS EXIGIBLE FOR CONCEALMENT OF INCOME OR FURNISHING IN ACCURATE PARTICULARS OF INCOME IS TO BE LEVIED AT THE HANDS OF ASSESSEE. THE AFORESAID LEGAL ISSUE HAS BEEN CONSIDERED BY THE COORDINATE BENCH OF THE TRIBUNAL, MUMBAI, RENDERED IN THE CASE OF SIDDHI HOME MAKERS, VIDE ORDER 8 ABHIJIT CONSTRUCTION CO. DATED 28 TH APRIL 2017, IN ITA NO. 4168/MUM./2013, WHEREIN THE TRIBUNAL HELD AS UNDER: WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS WITH REGARD TO THE PRELIMINARY PLEA OF THE ASSESSEE IN TERMS OF WHICH THE VALIDITY OF THE PROCEEDINGS INITIATED UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN SOUGHT TO BE CHALLENGED. THE SUM-AND-S UBSTANCE OF THE POINT RAISED BY THE ASSESSEE IS THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 R.W.S. 271(1)(C ) OF THE ACT DATED 30/12/2010 DOES NOT REFLECT AN APPROPRIATE AP PLICATION OF MIND, INASMUCH AS, THE NOTICE HAS BEEN ISSUED IN A STANDARD PROFORMA WHERE THE IRRELEVANT PORTION HAS NOT BEEN STRUCK OFF. AT THE TIME OF HEARING, LD. REPRESENTATIVE FOR THE ASS ESSEE HAS REFERRED TO THE NOTICE ISSUED UNDER SECTION 274 R.W .S. 271(1)(C) OF THE ACT DATED 30/12/2010 IN THIS REGARD. FACTUALLY SPEAKING, IT IS CLEARLY EMERGING THAT THE NOTICE HAS BEEN ISSUED IN A STANDARD PROFORMA AND THE IRRELEVANT LIMB OF SECTION 271(1)( C) OF THE ACT HAS NOT BEEN STRUCK OFF. NOTABLY, THE PENALTY PROVI SIONS OF SECTION 271(1)(C) OF THE ACT ARE ATTRACTED WHERE THE ASSESS EE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME. IT IS ALSO A WELL ACCEP TED PROPOSITION THAT THE AFORESAID TWO LIMBS OF SECTION 271(1)(C) O F THE ACT CARRY DIFFERENT MEANINGS. THEREFORE, IT WAS IMPERATIVE FO R THE ASSESSING OFFICER TO STRIKE- OFF THE IRRELEVANT LIMB SO AS TO MAKE THE ASSESSEE AWARE AS TO WHAT IS THE CHARGE MADE AGAINS T HIM SO THAT HE CAN RESPOND ACCORDINGLY. THE HON'BLE KARNATAKA H IGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SU PRA) OBSERVED THAT THE LEVY OF PENALTY HAS TO BE CLEAR A S TO THE LIMB UNDER WHICH IT IS BEING LEVIED. AS PER HON'BLE HIGH COURT, WHERE THE ASSESSING OFFICER PROPOSED TO INVOKE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATEL Y MARKED. THE HON'BLE HIGH COURT HELD THAT THE STANDARD PROFORMA OF NOTICE UNDER SECTION 274 OF THE ACT WITHOUT STRIKING OF TH E IRRELEVANT CLAUSES WOULD LEAD TO AN INFERENCE OF NON-APPLICATI ON OF MIND BY THE ASSESSING OFFICER. THE HONBLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF VS. JCIT, 291 ITR 519(SC) HAS ALSO NOTICED THAT WHERE THE ASSESSING OFFICER ISSUES NOTICE UNDER SEC TION 274 OF THE ACT IN THE STANDARD PROFORMA AND THE INAPPROPRIATE WORDS ARE NOT DELETED, THE SAME WOULD POSTULATE THAT THE ASSESSIN G OFFICER WAS NOT SURE AS TO WHETHER HE WAS TO PROCEED ON THE BAS IS THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOM E OR FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDING TO THE HONBLE SUPREME COURT, IN SUCH A SITUATION, LEVY OF PENALTY SUFFERS FROM NON-APPLICATION OF MIND. IN THE BACKGROUND OF THE A FORESAID LEGAL POSITION AND, HAVING REGARD TO THE MANNER IN WHICH THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE 9 ABHIJIT CONSTRUCTION CO. ACT DATED 30/12/2010 WITHOUT STRIKING OFF THE IRREL EVANT WORDS, THE PENALTY PROCEEDINGS SHOW A NON-APPLICATION OF M IND BY THE ASSESSING OFFICER AND IS, THUS, UNSUSTAINABLE. WE H OLD SO. 8. THE RATIO LAID DOWN BY THE COORDINATE BENCH OF T HE TRIBUNAL CITED SUPRA SQUARELY APPLIES TO FACTS IN ASSESSEES CASE AND RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE PENALTY LEVIED UNDER SEC TION 271(1)(C) BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMM ISSIONER (APPEALS) IS NOT SUSTAINABLE ON THE AFORESAID LEGAL GROUND ALSO. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL HIGH COURT IN SHRI SAMSUNG P ERINCHERY, 392 ITR 4 (BOM.) HAS TAKEN A SIMILAR VIEW AND THE RATIO LAID DOWN THEREIN FULLY SUPPORT THE SUBMISSION OF ASSESSEE. THE RATIO LAID DOWN BY H ONBLE JURISDICTIONAL HIGH COURT APPLIES WITH FULL FORCE TO THE FACTS IN ASSESSEES CASE AND CONSIDERING THE SAME, PENALTY IMPOSED IS NOT SUSTAI NABLE IN THE EYES OF LAW. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES IN CASE OF ASSESSEE WE ARE OF CONSIDERED OPINION THAT THE PENALTY LEVIED IS UN JUSTIFIED AND IS DIRECTED TO BE CANCELLED. THE GROUNDS OF APPEAL ARE ALLOWED. 9. IN THE RESULT, ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 200708 IS ALLOWED. ITA NO.496/NAG./2016 A.Y. 200809 10. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE SO LE ISSUE FOR OUR ADJUDICATION IN THIS APPEAL RELATES TO IMPOSITION O F PENALTY BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF ` 35,14,875. SINCE THE 10 ABHIJIT CONSTRUCTION CO. ASSESSEE BEING SAME AND THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE IS SIMILAR TO THE ISSUE DECIDED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 200708 CITED SUPRA, EXCEPT VARIATI ON IN FIGURES, THEREFORE, FOLLOWING OUR DECISION GIVEN IN PARA7 A ND 8 ABOVE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMM ISSIONER (APPEALS) AND CANCEL THE PENALTY UNDER SECTION 271( 1)(C) FOR THE YEAR UNDER CONSIDERATION ALSO. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, ASSESSEES APPEAL FOR ASSESSMENT YEA R 200708 AND 200809 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.06.2017 SD/ - P.K. BANSAL VICE PRESIDENT SD/ - AMARJIT SINGH JUDICIAL MEMBER NAGPUR, DATED: 28.06.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR