Assistant Commissioner of Income-tax, V. Shri Sunil Pannalal Banthia, Raigad

ITA 524/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1017 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 18-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Search and seizure; Avoidance of tax
• Section: 143(3); 142(1); 153A; 148; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 524/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2003-04 ASSTT. COMMISSIONER OF INCOME TAX, PANVEL CIRCLE, INCOME TAX OFFICE, 3 RD FLOOR, TRIFED TOWER, SECTOR-17, OPP: KHANDA COLONY, NEW PANVEL-410206, DISTT: RAIGAD ....... / APPELLANT ' / V/S. SHRI SUNIL PANNALAL BANTHIA, 776, KESHAR ANAND NIWAS, M.G. ROAD, PANVEL, DISTT: RAIGAD-410206 PAN : ABJPB0819L / RESPONDENT ASSESSEE BY : SHRI SUBODH RATNAPARKHI REVENUE BY : SHRI B.C. MALAKAR / DATE OF HEARING : 13-08-2015 / DATE OF PRONOUNCEMENT : 09-10-2015 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE REVENUE ASSAILING THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, THANE DATED 17- 12-2013 FOR THE ASSESSMENT YEAR 2003-04 DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO. 524/PN/2014, A.Y. 2003-04 2. THE BRIEF FACTS OF THE CASE ARE : A SEARCH AND SEIZUR E ACTION U/S. 132 OF THE ACT WAS CONDUCTED AT THE BUSINESS AND RESID ENTIAL PREMISES OF THE ASSESSEE ON 04-10-2006. NOTICE U/S. 153A(A) WAS IS SUED TO THE ASSESSEE ON 02-04-2007. IN RESPONSE TO THE NOTICE, AS SESSEE FILED HIS RETURN OF INCOME ON 27-07-2007 DECLARING INCOME OF RS.23,60 ,450/-. IN THE RETURN OF INCOME, THE ASSESSEE DECLARED INCOME FR OM RENT, PROFIT FROM PARTNERSHIP FIRM AND REMUNERATION FROM M/S. S.S. ENTERP RISES AND M/S. SUNITA ENTERPRISES. THE ASSESSEE HAD NOT FILED A NY RETURN OF INCOME PRIOR TO THE RETURN FILED IN RESPONSE TO NOTICE ISSU ED U/S. 153A. THE ASSESSING OFFICER VIDE ORDER DATED 31-12-2008 PASSED U/S. 153 R.W.S. 143(3) OF THE ACT ACCEPTED THE INCOME RETURNED BY THE ASSESSEE. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIR CLE-1, THANE VIDE ORDER DATED 29-06-2009 LEVIED PENALTY OF RS.7,16,242/- U/ S. 271(1)(C) OF THE ACT FOR CONCEALING PARTICULARS OF THE INCOME A ND FOR FURNISHING INACCURATE PARTICULARS OF INCOME. AGGRIEVED BY THE ORDER LEVYING PENALTY, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). TH E COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER AC CEPTED THE CONTENTIONS OF THE ASSESSEE AND CANCELLED THE PENALT Y IMPOSED BY THE ASSESSING OFFICER. AGAINST THE FINDINGS OF THE COMMISSIONE R OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI B.C. MALAKAR REPRESENTING THE DEPARTMENT SUBMITT ED, THAT THE ASSESSEE HAD NOT FILED REGULAR RETURN OF INCOME U/S. 1 39 OF THE ACT. CONSEQUENT, TO THE SEARCH ACTION U/S. 132, THE ASSESSE E FILED HIS RETURN OF INCOME U/S. 153A. EVEN AFTER ISSUANCE OF NOTICE U/S. 15 3A, THE ASSESSEE DID NOT FILE RETURN OF INCOME WITHIN THE TIME SPECIFIE D IN NOTICE 3 ITA NO. 524/PN/2014, A.Y. 2003-04 U/S. 153A, THE RETURN WAS FILED BY THE ASSESSEE AFTER MOR E THAN 2 MONTHS. THE INCOME OF THE ASSESSEE WOULD HAVE ESCAPED ASSESSMENT IF SEARCH ACTION WOULD NOT HAVE TAKEN PLACE. THE LD. DR SUB MITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELET ING THE PENALTY U/S. 271(1)(C) BY IGNORING THE FACT THAT THE ASSES SEE HAS NOT DISCLOSED HIS INCOME VOLUNTARILY. THE INCOME HAS BEEN DISC LOSED ONLY AFTER THE SEARCH ACTION. HAD THERE BEEN NO SEARCH AC TION, THE ASSESSEE WOULD NOT HAVE FILED THE RETURN DISCLOSING THE INCOME. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF ASSESSING OFFICER LEVYIN G PENALTY U/S. 271(1)(C) AND PRAYED FOR SETTING ASIDE THE IMPUGNED ORDER. 4. ON THE OTHER HAND SHRI SUBODH RATNAPARKHI APPEARING ON BEHALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF COMMISSIONER OF I NCOME TAX (APPEALS) IN DELETING THE PENALTY LEVIED U/S. 271(1)(C). THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER ACCEPTED THE INCOME RETURNED BY THE ASSESSEE. THUS, THE RETURNED INCOME IS THE ASSESSE D INCOME. THEREFORE, THERE IS NO EVASION OF TAX. THE LD. AR FURTHER S UBMITTED THAT PENALTY U/S. 271(1)(C) HAS BEEN LEVIED BY INVOKING THE PROVISIO NS OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. HOWEVER, THE PROVISIONS OF EXPLANATION 5 TO SECTION 271(1)(C) ARE NOT ATTRACTED. NO M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING WAS FOUND DURIN G THE COURSE OF SEARCH ACTION U/S. 132 FOR THE ASSESSMENT YEAR 2003- 04. THIS FACT HAS NOT BEEN DISPUTED BY THE REVENUE. SINCE, THE COND ITIONS NECESSARY FOR INVOKING THE PROVISIONS OF EXPLANATION 5 ARE ABSENT IN THE CASE OF ASSESSEE, EXPLANATION 5 WILL HAVE NO APPLICATION. FURTHER, THE PROVISIONS OF EXPLANATION 3 TO SECTION 271(1)(C ) WILL ALSO NOT BE ATTRACTED AS THE RETURN OF INCOME HAS BEEN FILED IN RESPONSE TO NOTICE U/S. 153A. IN SUPPORT OF HIS SUBMISSIONS, THE LD . AR PLACED 4 ITA NO. 524/PN/2014, A.Y. 2003-04 RELIANCE ON THE DECISION OF THE CO-ORDINATE BENCH IN THE C ASE OF CHANDAN K. SHEWANI VS. DCIT IN ITA NOS. 235 & 236/PN/201 0 DECIDED ON 29-08-2012. THE LD. AR POINTED OUT THAT THE DELAY IN FILING OF RETURN IN RESPONSE TO NOTICE ISSUED U/S. 153A WOULD NO T MAKE THE ASSESSEE LIABLE FOR PENALTY UNDER THE PROVISIONS OF SECTION 271(1)(C). THE ASSESSING OFFICER ACCEPTED THE RETURN OF INCOME FILED BY THE ASSESSEE AND MADE ASSESSMENT THEREON. IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE ON THE FOLLOWING CASE LAWS: I. KIRIT DAHYABHAI PATEL VS. ACIT, ITA NOS. 1181, 1183 TO 1185 OF 2010 DECIDED ON 03-12-2014 (GUJ.)(HC); II. ASHOK SHANTILAL JAIN VS. DCIT, ITA NO. 1727/PN/2013 DECID ED ON 31-12-2014; AND III. PRAMILA D. ASHTEKAR VS. ITO, 39 TAXMANN.COM 103 (PUNE-TRIB.) [2013]. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUT HORITIES BELOW. THE PENALTY WAS LEVIED U/S. 271(1)(C) BY INVOKING THE PROVISION S OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. BEFORE WE PRO CEED FURTHER, IT WOULD BE RELEVANT TO FIRST SEE THE PROVISIONS OF EXPLANATION 5 TO SECTION 271(1)(C). THE SAME ARE REPRODUCED HERE-IN-UNDER: EXPLANATION 5.WHERE IN THE COURSE OF A [SEARCH INI TIATED UNDER SECTION 132 BEFORE THE 1ST DAY OF JUNE, 2007], THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSET S) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM B Y UTILISING (WHOLLY OR IN PART) HIS INCOME, (A) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE TH E DATE OF THE SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAS NOT BEEN FURNISHED BEFORE THE SAID DATE OR, WHERE SUCH RETUR N HAS BEEN FURNISHED BEFORE THE SAID DATE, SUCH INCOME HAS NOT BEEN DECLARED THEREIN ; OR 5 ITA NO. 524/PN/2014, A.Y. 2003-04 (B) FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFT ER THE DATE OF THE SEARCH, THEN, NOTWITHSTANDING THAT SUCH INCOME IS D ECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER T HE DATE OF THE SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF THIS SECTION, BE D EEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME, [UNLESS, (1) SUCH INCOME IS, OR THE TRANSACTIONS RESULTING I N SUCH INCOME ARE RECORDED, (I) IN A CASE FALLING UNDER CLAUSE (A), BEFORE THE DATE OF THE SEARCH; AND (II) IN A CASE FALLING UNDER CLAUSE (B), ON OR BEFO RE SUCH DATE, IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME OR SUCH INCOME IS OTHERWISE DISCLOSED TO THE [CHIEF COMMISSIONER OR COMMISSIONER] BEFORE THE SAID DATE ; OR (2) HE, IN THE COURSE OF THE SEARCH, MAKES A STATEM ENT UNDER SUB- SECTION (4) OF SECTION 132 THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN HIS POSSES SION OR UNDER HIS CONTROL, HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS RETURN OF INCOME TO BE FURN ISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN [* * *] SUB-SECTION (1) OF SECTION 139, AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX, TOGETHER WITH IN TEREST, IF ANY, IN RESPECT OF SUCH INCOME.] 6. EXPLANATION 5 TO SECTION 271(1)(C) IS A DEEMING PROVISION. A PERUSAL OF THE EXPLANATION EXPLICITLY SHOWS THAT IT WOULD BE APPLICABLE WHERE DURING THE COURSE OF SEARCH U/S. 132, THE ASSESS EE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR ANY OTHER VALU ABLE ARTICLE OR THING. THUS, EXPLANATION 5 CAN BE INVOKED ONLY IF THE A SSESSEE IS FOUND TO BE OWNER OF UNACCOUNTED ASSETS DURING THE COU RSE OF SEARCH PROCEEDINGS. IN THE PRESENT CASE WE FIND THAT THE ASSE SSEE HAS FILED HIS RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 153A DECLAR ING RENTAL INCOME, PROFIT AND REMUNERATION FROM PARTNERSHIP FIRMS. THE INCOME RETURNED BY THE ASSESSEE HAS BEEN ACCEPTED BY THE A SSESSING OFFICER. IN THE INCOME RETURNED, NO ADDITION HAS BEEN MADE WITH R EGARD TO 6 ITA NO. 524/PN/2014, A.Y. 2003-04 UNACCOUNTED ASSETS. IT IS NOT THE CASE OF REVENUE THA T DURING THE SEARCH PROCEEDINGS UNACCOUNTED ASSETS WERE UNEARTHED . THUS, WE ARE OF THE CONSIDERED OPINION THAT EXPLANATION 5 TO SECTION 2 71(1)(C) SHALL NOT OPERATE IN THE FACTS OF THE PRESENT CASE. 7. THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF C O-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF PRAMILA D. ASHTEKAR VS . ITO (SUPRA). IN THE SAID CASE A SEARCH AND SEIZURE OPERATION U/S. 132 WAS CONDUCTED ON THE ASSESSEE. IN PURSUANCE TO NOTICE U/ S. 153A, THE ASSESSEE FILED HER RETURN OF INCOME FOR THE RELEVANT ASSES SMENT YEARS. THE INCOME RETURNED IN RESPONSE TO NOTICE WAS ACCEPTE D AND NO FURTHER ADDITION WAS MADE. THE ASSESSING OFFICER LEVIED PENALTY U/S. 271(1)(C). IN FIRST APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) C ONFIRMED THE PENALTY. THE ASSESSEE TOOK THE MATTER BEFORE THE TRIBUNAL. THE CO-ORDINATE BENCH OF THE TRIBUNAL HELD THAT WHERE NO ADD ITION OVER AND ABOVE INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME IS MADE, NO PENALTY U/S. 271(1)(C) CAN BE IMPOSED. WE FIND THAT FACTS IN THE PRESENT CASE ARE SIMILAR TO THE FACTS IN THE CASE OF PRAMILA D. ASHTEKAR VS. ITO (SUPRA). IN THE CA SE IN HAND, THE ASSESSING OFFICER HAS ACCEPTED THE INCOME RETURNED B Y THE ASSESSEE AND NO ADDITION HAS BEEN MADE. THEREFORE, THE RATIO LAID DOWN BY THE CO-ORDINATE BENCH CAN BE APPLIED IN THE PRESENT CASE AS WELL. 8. WE FURTHER OBSERVE THAT THE COMMISSIONER OF INCOME T AX (APPEALS) HAS DELETED THE PENALTY BY GIVING A DETAILED AND R EASONED FINDINGS. THE SAME ARE REPRODUCED HERE-IN-UNDER: 4. I HAVE CAREFULLY CONSIDERED THE FACTS ON RECORD AND SUBMISSION OF THE LD. A.R. IT IS AN UNDISPUTED FACT THAT THE APPELLAN T HAD TAXABLE INCOME BUT DID NOT FILE THE RETURN OF INCOME TILL THE EXPI RY OF 24 MONTHS FROM THE 7 ITA NO. 524/PN/2014, A.Y. 2003-04 END OF RELEVANT ASSESSMENT YEAR I.E. THE PERIOD, PR ESCRIBED U/S. 153(1) OF THE ACT. FURTHER, NO NOTICE U/S. 142(1) OR 148 WAS ISSUED TILL THE EXPIRY OF THE PERIOD SPECIFIED U/S. 153(1) OF THE ACT AND ACC ORDINGLY, A.O. HAS INVOKED THE PROVISIONS OF EXPLANATION 3 TO SECTION 271(1)(C). HOWEVER, I FIND THAT THE PROVISIONS OF EXPLANATION 3 ARE APPLI CABLE ONLY IF THE RETURN OF INCOME IS FILED IN RESPONSE TO THE NOTICE U/S. 1 48 ISSUED AFTER RECORDING OF THE SATISFACTION THAT THE ASSESSEE HAD TAXABLE INCOME, BUT DID NOT FILE THE RETURN OF INCOME U/S. 139. HOWEVER , IN THE CASE OF APPELLANT, THIS CONDITION DOES NOT SATISFY BECAUSE THE RETURN HAS BEEN FILED IN RESPONSE TO NOTICE U/S. 153A ACCORDING TO WHICH THE APPELLANT IS REQUIRED TO FURNISH RETURNS FOR SIX ASSESSMENT YEAR S AUTOMATICALLY WITHOUT THE REQUIREMENT OF RECORDING OF SATISFACTIO N OF TAXABLE INCOME. MOREOVER, PROVISIONS OF SECTION 153A ARE NOT AKIN T O THE PROVISIONS OF SECTION 148. THUS, I AM OF THE CONSIDERED VIEW THAT PROVISIONS OF EXPLANATION 3 OF SECTION 271(1)(C) ARE NOT APPLICAB LE AND HENCE, INCOME DISCLOSED IN THE RETURN OF INCOME FILED U/S. 153A C ANNOT BE TREATED AS CONCEALED INCOME AS PER THE EXPLANATION 3. 4.1 UNDISPUTEDLY, THE INCOME RETURNED IS THE INCOME ASSESSED AND HENCE, THE ARGUMENT OF ID. A.R. THAT THE TAX SOUGHT TO BE EVADED WILL BE NIL IN VIEW OF PROVISIONS OF EXPLANATION 4 TO SECTI ON 271(L)(C), IS FOUND TO BE ACCEPTABLE. AS PER PROVISIONS OF LAW, THE RETURN ED INCOME CAN BE CONSIDERED AS CONCEALED INCOME ONLY IF THE EXPLANAT ION 3 IS APPLICABLE IN VIEW OF THE PROVISIONS OF EXPLANATION 4(B), BUT IT IS NOT SO IN THE CASE OF APPELLANT. IT IS ALSO NOTICED THAT THE APPELLANT HA S PAID ADVANCE TAX OF RS.5,40,750/- IN TIME AND ONLY AN AMOUNT OF RS.2,97 ,000/- WAS PAID AS SELF ASSESSMENT TAX AFTER THE DATE OF SEARCH. AS PE R THE PROVISIONS O R EXPLANATION 4(B), THE ADVANCE TAX PAID IS REQUIRED TO BE DEDUCTED FOR THE COMPUTATION OF TAX SOUGHT TO BE EVADED. SINCE THE M AJOR PART OF THE ADVANCE TAX WAS PAID BY THE APPELLANT, THERE APPEAR S TO BE NO CASE OF AVOIDANCE OF TAX BY NOT FILING RETURN OF INCOME U/S . 139(1) TO A GREAT EXTENT. 4.2 THE ID. A.R. HAS RELIED UPON THE DECISION OF HO N'BLE ITAT IN THE CASE OF DCIT VS. PURTI SAKHAR KARKHANA, 35 TAXMANN.COM 5 94 (NAGPUR) WHEREIN IT HAS BEEN HELD THAT WHERE RETURN OF INCOM E FILED U/S. 153A IS ACCEPTED BY THE A.O. AND THERE IS NO VARIATION IN T HE ASSESSED INCOME AND RETURNED INCOME, PENALTY U/S. 271(1)(C) CANNOT BE IMPOSED. FURTHER, IT HAS BEEN HELD THAT SECTION 271(1)(C) DOES NOT AU THORIZE THE A.O. TO COMPARE THE RETURN FILED U/S. 139(1) AND U/S. 153A AND TREAT THE DIFFERENCE AS CONCEALED INCOME. I FIND THAT THE R ATIO OF THIS DECISION IS ALSO SQUARELY APPLICABLE IN THE CASE OF APPELLANT. 8 ITA NO. 524/PN/2014, A.Y. 2003-04 4.3 THE A.O. HAS ALSO INVOKED THE PROVISIONS OF EXP LANATION 5 TO SECTION 271(L)(C) WHILE IMPOSING THE PENALTY. HOWEVER, ON P ERUSAL OF LEGAL POSITION AND THE FACTS OF THE CASE, IT IS NOTICED T HAT THE PROVISIONS OF EXPLANATION 5 ARE APPLICABLE FOR DEEMING THE CONCEA LMENT ON THE BASIS OF INCOME DISCLOSED IN THE RETURN OF INCOME FILED AFTE R SEARCH ACTION ONLY IF SUCH INCOME PERTAINED TO MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND DURING THE COURSE OF SEARCH ACTION. HOWEVER, IN THE CASE OF APPELLANT, NO SUCH ASSET WAS FOUND DURING T HE COURSE OF SEARCH ACTION. THUS, IN MY CONSIDERED VIEW, THE PROVISIONS OF EXPLANATION 5 WILL NOT APPLY. FURTHER, THE CASE LAW RELIED UPON BY THE A.O. IN THIS REGARD IS DISTINGUISHABLE ON FACTS BECAUSE IN THAT CASE THE I NCOME WAS DISCLOSED ON ACCOUNT OF UNDISCLOSED INVESTMENT FOUND DURING T HE COURSE OF SEARCH. THE LEGAL POSITION IN RESPECT OF APPLICABILITY OF E XPLANATION 5 HAS BEEN CLARIFIED BY THE HON'BLE JURISDICTIONAL ITAT IN THE CASE OF LALLUBHAI AMICHAND LTD. VS. DCIT (2011) 133 ITD 205 (MUM) WHE REIN VIDE PARA 10, IT HAS BEEN STATED THAT THE PROVISIONS OF EXPLA NATION 5 WOULD APPLY ONLY IN RESPECT OF INCOME DISCLOSED ON THE BASIS OF SEIZED ASSET. UNDISPUTEDLY NO ASSETS HAVE BEEN FOUND DURING THE C OURSE OF SEARCH IN THE CASE OF APPELLANT. MOREOVER, THE INCOME DISCLOS ED WAS BASED ON THE TRANSACTIONS ALREADY RECORDED IN THE BOOKS OF A/C. BEFORE THE DATE OF SEARCH AND HENCE, THE CASE OF APPELLANT IS OTHERWIS E COVERED UNDER THE EXCEPTION (1) PROVIDED IN EXPLANATION 5 AS RIGNTLY SUBMITTED BY THE ID. A.R. 4.4 ON PERUSAL OF THE ASSESSMENT ORDER AND PENALTY ORDER, IT IS ALSO NOTICED THAT NO EVIDENCE OR THE ASSETS WERE FOUND D URING THE COURSE OF SEARCH RESULTING INTO UNDISCLOSED INCOME REQUIRED T O BE DECLARED BY THE APPELLANT AFTER THE SEARCH AND SEIZURE OPERATIONS. THE A.O. HAS NOT POINTED OUT ANY MATERIAL /EVIDENCES WHICH HAVE COMP ELLED THE APPELLANT TO DISCLOSE INCOME IN THE RETURN FILED U/S. 153A. I N FACT, THE DISCLOSURE OF INCOME IN THE RETURN OF INCOME FILED U/S. 153A IS A VOLUNTARILY ACT ON THE PART OF ASSESSEE AND ON VOLUNTARY DISCLOSURES, PENA LTY IS NOT LEVIABLE. THIS ASPECT OF THE CASE HAS BEEN EMPHASIZED BY THE ID. A.R. DURING THE COURSE OF HEARING IN VIEW OF THE DECISION OF THE HO N'BLE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL, 251 ITR 9 WHICH SUPPORTS THE CASE OF APPELLANT IN HIS FAVOUR. 4.5 THEREFORE, IN VIEW OF THE ABOVE FACTS AND LEGAL POSITION, I AM OF THE CONSIDERED VIEW THAT THE CASE OF APPELLANT DOES NOT FALL IN THE CATEGORY OF EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACC URATE PARTICULARS OF INCOME AND HENCE, IT IS NOT A FIT CASE FOR IMPOSITI ON OF PENALTY U/S. 271(1)(C). ACCORDINGLY, THE PENALTY IMPOSED BY A.O. AT RS. 7,16,242/- IS CANCELLED. 9 ITA NO. 524/PN/2014, A.Y. 2003-04 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING THE PENALTY. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED B EING DEVOID OF MERIT. ORDER PRONOUNCED ON FRIDAY, THE 09 TH DAY OF OCTOBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 09 TH OCTOBER, 2015 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, THANE 4. ' / THE CIT-II, THANE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. / // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE