PRABIR KUMAR RAY, MUMBAI V. INCOME TAX OFFICER 26(2)(4), MUMBAI

ITA 5389/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4866 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 18-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR KESHARI
• Assessee Lawyers: AMAN KHANDELWAL
• Keywords: Salary income; Bonafide belief; Initiation of penalty proceedings; TDS
• Section: 271(1)(c); 80C; 250; 27

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI G.S. PANNU, VICE- PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 5389/MUM/2017 (ASSESSMENT YEAR 2011-12 ) PRABIR KUMAR RAY, FLAT NO. 601, BLOCK NO.C, TRANS RESIDENCY-1, MIDC, ANDHERI (E), MUMBAI- 400093. PAN: AEMPR8166A VS. ITO- 26(2)(4) ROOM NO. 601, 6 TH FLOOR, SMT. KAMLADEVI MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD (W), MUMBAI-4000202. APPELLANT RESPONDE NT APPELLANT BY : SHRI AMAN KHANDELWAL (C.A) RESPONDENT BY : SHRI AJAY KUMAR KESHARI (DR) DATE OF HEARING : 30.04.2019 DATE OF PRONOUNCEMEN T : 22.05.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT (ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF I NCOME-TAX (APPEALS)- 46, MUMBAI [HEREINAFTER REFERRED AS LD. CIT(A)] DAT ED 22.05.2017 FOR ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AS WELL AS ON FACTS WHILE ALLOWING ONLY PARTIAL GROUNDS OF APPEAL. 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEAL S) HAS MENTIONED IN THE ORDER THAT ASSESSEE HAS CO-OPERATED AT THE TIME OF ASSESSMENT PROCEEDINGS AND PAID THE ENTIRE TAX. THIS CLEARLY S HOWS THE INTENTION OF ASSESSEE. EVASION OF TAX WAS NEVER THE INTENTION OF ASSESSEE. 3. PENALTY U/S 271 (1)(C) DOES NOT GO WITH CONCEALM ENT AND SHOULD NOT BE IN PENAL NATURE. ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 2 4. DUE TO NON-RECEIPT OF FORM NO.16 FROM M/S INA BE ARINGS INDIA PVT. LTD., THE ASSESSEE COULD NOT INCLUDE THE INCOME IN COMPUTATION OF INCOME AND ERROR OCCURRED. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, DELETE, MODIFY OR WITHDRAW ALL OR ANY GROUND OR GROUNDS OF APPEAL HER EIN AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDER ED NECESSARY EITHER AT OR BEFORE THE APPEAL HEARING. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 14,95,900/-. IN THE RETURN OF INCOME THE ASSESSEE HAS SHOWN HIS INCOME FROM SALARY. THE RE TURN OF INCOME WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLE TED UNDER SECTION143(3). DURING THE ASSESSMENT, THE ASSESSIN G OFFICER NOTED THAT AS PER FORM-26AS, THE ASSESSEE EARNED SALARY FROM T WO EMPLOYERS NAMELY NRB BEARINGS LTD. AND FROM INA BEARINGS INDI A PVT. LTD. OF RS. 15,85,500/- AND RS. 16,90,761/- RESPECTIVELY. T HE ASSESSEE HAS NOT SHOWN THE SALARY INCOME FROM INA BEARINGS INDIA PVT . LTD., THOUGH THE ASSESSEE RECEIVED A SUM OF RS. 16,90,761/-. THE ASS ESSEE WAS CONFRONTED WITH THE DISCREPANCIES. THE ASSESSING OFFICER RECOR DED IN ASSESSMENT ORDER THAT NO REPLY WAS FURNISHED BY ASSESSEE. THE ASSESSING OFFICER AFTER ALLOWING DEDUCTION UNDER SECTION 80C AND MADE ADDITION OF RS. 15,30,230/- IN THE ASSESSMENT ORDER PASSED ON19.0 2.2014 UNDER SECTION 143(3). THE ASSESSING OFFICER ISSUED SHOW-CAUSE NO TICE 19.02.2014 UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT. IN T HE REPLY TO THE SHOW- CAUSE NOTICE, THE ASSESSEE STATED THAT THE ASSESSEE SHIFTED FROM MUMBAI ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 3 TO PUNE AT THE TIME OF ISSUANCE OF FORM-16 AND HIS EMPLOYER NAMELY INA BEARINGS INDIA PVT. LTD. DESPITE REMINDERS NOT ISSUED FORM-16. THE ASSESSEE CLAIMED THAT IT WAS UNINTENTIONAL AND OCCU RRED DUE TO EMPLOYMENT IN TWO COMPANIES IN ONE FINANCIAL YEAR. THE ASSESSEE FURTHER STATED THAT DURING THE ASSESSMENT HE HAS CO -OPERATED AND PAID THE ENTIRE TAX OF RS. 2,10,350/-. THE ASSESSEE WAS UNDE R BONAFIDE BELIEF THAT TDS HAS BEEN DEDUCTED BY HIS EMPLOYER. THE ASSESSEE PLACED HIS APOLOGY FOR HIS IGNORANCE AND PRAYED FOR DROPPING T HE PENALTY PROCEEDING. 3. THE REPLY OF ASSESSEE WAS NOT ACCEPTED BY ASSESSING OFFICER HOLDING THAT IT WAS MANDATORY ON THE PART OF ASSESSEE TO DI SCLOSE FULL AND CORRECT INFORMATION IN THE RETURN OF INCOME. IN CASE ANY IN COME IS LEFT TO OFFER FOR TAXATION, THE ASSESSEE HAD 21 MONTHS TIME FROM FILING RETURN OF INCOME TILL ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT TO CORRECT THE MISTAKE, WHICH THE ASSESSEE FAILED TO DO. IT WA S ALSO CONCLUDED BY THE ASSESSING OFFICER THAT THE ASSESSEE FURNISHED H IS DETAILS ONLY AFTER ASKING THE ASSESSING OFFICER. THE REVISED COMPUTATI ON WAS FILED AFTER IT WAS DEDUCTED IN THE SCRUTINY ASSESSMENT. HAD THE CA SE BEEN NOT SELECTED FOR SCRUTINY, THE LEGITIMATE TAX MIGHT HAVE REMAINE D TO BE CHARGED. THE ASSESSING OFFICER LEVIED THE PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED. THE ASSESSING OFFICER WORKED OUT THE PENALT Y OF RS. 4,72,841/- VIDE ORDER DATED 27.08.2014 PASSED UNDER SECTION 27 1(1)(C) OF THE ACT. ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 4 4. ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE CHALL ENGED THE VALIDITY OF THE SHOW CAUSED NOTICE UNDER SECTION 274 READ WITH SECTION271(1)(C) AS WELL AS ON MERIT. THE GROUND RELATED WITH THE VALID ITY OF SHOW CAUSE NOTICE WAS REJECTED BY LD CIT(A) HOLDING THAT IT HA S NO MERIT. HOWEVER, ON MERIT THE LD CIT(A) OUT OF TOTAL PENALTY OF RS. 472,841/-, RESTRICTED IT TO RS. 2,10,350/- HOLDING THAT A TDS OF RS. 2,95 ,207/- WAS DEDUCTED ON THE SALARY PAID BY INA BEARINGS INDIA PVT. LTD. THEREFORE, THE BENEFIT OF SET OFF OF TDS TO THE EXTENT OF RS. 2,95,207/- W AS GIVEN TO THE ASSESSEE. THE LD CIT(A) CONCLUDED THAT THE PENALTY IS TO BE LEVIED AT 100%, WHICH IS ONLY SHORT PAYMENT AND THE REFUND W RONGLY CLAIMED THAT ATTRACTS PENALTY. FURTHER, AGGRIEVED BY THE ORDER O F LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 5. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENT REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE L D. AR OF THE ASSESSEE SUBMITS THAT DURING THE RELEVANT PERIOD, THE ASSESS EE WAS EMPLOYED WITH TWO EMPLOYER ONE OF THE FORM-16 OF SECOND EMPLOYER I.E. INA BEARINGS INDIA PVT. LTD. WAS NOT FURNISHED TO THE ASSESSEE. THE ASSESSEE FULLY CO- OPERATED DURING THE ASSESSMENT AND PAID THE ENTIRE TAX. THE ASSESSEE ACCEPTS THE MISTAKE WHICH WAS UNINTENTIONAL. THE LD . AR OF THE ASSESSEE FURTHER SUBMITS THAT WHILE PASSING THE ASSESSMENT O RDER AS WELL AS WHILE ISSUING SHOW-CAUSE NOTICES DATED 19.02.2014 HAS NOT SPECIFIED THE ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 5 SPECIFIC CHARGE IN THE SAID NOTICE. THEREFORE, THE NOTICE IS INVALID. THE LD AR FOR THE ASSESSEE FILED THE COPY OF THE NOTICE DA TED 19.02.2014. IN SUPPORT OF HIS SUBMISSION, THE LD. AR OF THE ASSESS EE RELIED UPON THE DECISION OF AMRITSAR TRIBUNAL (THIRD MEMBER) IN HPC L MITTAL ENERGY LTD. VS. ACIT IN ITA NO. 510, 555 TO 556/ASR/2004 D ATED 07.05.2014, IN CIT VS. MANJUNATHA COTTON & GINNING FACTORY [201 3] 35 TAXMANN.COM 250 (KARNATAKA TRIB.), SACHIN ARORA VS. ITO IN ITA NO. 118/AGRA/2015, NEW SORTHIA ENGG. CO VS. CIT [2006] 155 TAXMAN 523 (GUJ.), DILIP N. SHROFF VS. JCIT [2007] 161 TAXMAN 218 (SC) AND DR. SARITA MILING DAVARE VS. DCIT IN ITA NO. 2187/MUM/2 014). 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE AL SO DELIBERATED ON VARIOUS CASE LAWS RELIED BY THE LD. AR FOR THE ASSE SSEE. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE ADD ITION OF RS. 15,30,230/- BY TAKING HIS VIEW THAT THE ASSESSEE EA RNED SALARY FROM TWO EMPLOYERS NAMELY NRB BEARINGS LTD. AND FROM INA BEA RINGS INDIA PVT. LTD. OF RS. 15,85,500/- AND RS. 16,90,761/- RE SPECTIVELY. THE ASSESSEE HAS NOT SHOWN THE SALARY INCOME FROM INA B EARINGS INDIA PVT. LTD., THOUGH THE ASSESSEE RECEIVED A SUM OF RS. 16, 90,761/-. THE ASSESSING OFFICER AFTER ALLOWING DEDUCTION UNDER SE CTION 80C AND MADE ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 6 ADDITION OF RS. 15,30,230/- . THE ASSESSING OFFICER ISSUED SHOW-CAUSE NOTICE 19.02.2014 UNDER SECTION 274 R.W.S. 271(1)(C ) OF THE ACT. IN THE REPLY TO THE SHOW-CAUSE NOTICE, THE ASSESSEE STATED THAT THE ASSESSEE SHIFTED FROM MUMBAI TO PUNE AT THE TIME OF ISSUANCE OF FORM-16 AND HIS EMPLOYER NAMELY INA BEARINGS INDIA PVT. LTD. DESPIT E REMINDERS NOT ISSUED FORM-16. THE ASSESSEE CLAIMED THAT IT WAS UN INTENTIONAL AND OCCURRED DUE TO EMPLOYMENT IN TWO COMPANIES IN ONE FINANCIAL YEAR. THE ASSESSING OFFICER LEVIED PENALTY OF RS. 4,72.84 1/- ON THE ADDITION OF RS. 15,30,230/-. THE LD. CIT(A) RESTRICTED THE PENA LTY TO RS. 2,10,350/- HOLDING THAT TDS OF RS. 2,95,207/- WAS DEDUCTED ON THE SALARY PAID BY INA BEARINGS INDIA PVT. LTD. THE ASSESSEE WAS GRAN TED BENEFIT OF SET OFF OF TDS TO THE EXTENT OF RS. 2,95,207/- WHICH WAS AL READY DEDUCTED FROM THE INCOME OF ASSESSEE. THE SUBMISSION/OBJECTION OF THE ASSESSEE THAT ABOUT THE VALIDITY OF SHOW-CAUSE NOTICE WAS REJECTE D BY LD. CIT(A) HOLDING THAT THE SAME IS WITHOUT MERIT. 8. WE HAVE NOTED THAT WHILE PASSING THE ASSESSMENT ORD ER, THE ASSESSING OFFICER RECORDED THAT THE ASSESSEE HAS CONCEALED THE INCOME, THE PENALTY PROCEEDING UNDER SECTION 271(1)(C) INIT IATED SEPARATELY . HOWEVER, WHILE LEVYING THE PENALTY, THE ASSESSING O FFICER INVOKED THE PROVISION OF EXPLANATION-1 TO SECTION 271 AND RECOR DED THAT THE ONUS IS ON THE ASSESSEE TO PROVE THAT ALL MATERIAL FACTS, T HE COMPUTATION OF INCOME DISCLOSED BY ASSESSEE ARE TRUE AND CORRECT. THE ASSESSEE FAILED TO ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 7 DISCHARGE ITS ONUS. THE ASSESSING OFFICER FURTHER R ECORDED THAT I THEREFORE, SATISFIED THAT THE ASSESSEE HAS FURNIS HED INACCURATE PARTICULARS OF INCOME AND CONCEALED INCOME WITHIN T HE MEANING OF SECTION 271(1)(C ). 9. WE HAVE ALSO PERUSED THE CONTENTS OF THE NOTICE UND ER SECTION 274 RWS 271(1) (C) DATED 19.02.2014. IN THE SAID NOTICE THE ASSESSING OFFICER HAS RECORDED IT APPEARS TO ME THAT YOU HAVE CONCEALED THE PARTIC ULARS OF YOUR INCOME AND DELIBERATELY FURNISHED INACCURATE PARTICULARS OF SUCH INCOME FOR AY 2011-12 . THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER INITIATED THE PENALTY FOR CONCEALM ENT OF INCOME, WHILE ISSUING NOTICE UNDER SECTION 274RWS 271(1) SPECIFIE D FOR CONCEALMENT OF INCOME AND DELIBERATE FURNISHING INACCURATE PARTICU LARS AND FINALLY WHILE IMPOSING THE PENALTY IT WAS LEVIED FURNISHING INACC URATE PARTICULARS OF INCOME AND CONCEALED INCOME WITHIN THE MEANING OF S ECTION 271(1)(C). IN OUR VIEW THE ASSESSING OFFICER HAS NOT CLEARLY S PECIFIED THE LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT AND IN ABSE NCE OF A CHARGE IN THE PENALTY NOTICE OR NOT FINDING THE ASSESSEE GUILTY O F A CLEAR OFFENCE IN THE PENALTY ORDER VITIATES THE PENALTY ORDER. 10. THE CO-ORDINATE BENCH OF AMRITSAR TRIBUNAL IN HPCL MITTAL ENERGY VS. ACIT (T.M.) (SUPRA) WHILE CONSIDERING THE VALIDITY OF NOTICE HELD THAT THE PENALTY PROCEEDINGS ARE SEPARATE FROM ASSESSMEN T PROCEEDINGS, WHICH GET KICKED WITH THE ISSUE OF NOTICE UNDER SEC TION 274 AND ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 8 CULMINATE IN THE PENALTY ORDER UNDER SECTION 271(1) ( C ). MANY A TIMES, PENALTY INITIATED IN THE ASSESSMENT ORDER ON ONE OR MORE COUNTS BY MEANS OF NOTICE UNDER SECTION 274, IS NOT EVENTUALL Y IMPOSED BY THE ASSESSING OFFICER ON GETTING SATISFIED WITH THE EXP LANATION TENDERED BY THE ASSESSEE IN THE PENALTY PROCEEDINGS. IN ANY CAS E, CONFRONTING THE ASSESSEE WITH THE CHARGE AGAINST HIM IS SINE QUA NON FOR ANY VALID PENALTY PROCEEDINGS. IT IS ONLY WHEN THE ASSESSEE I S MADE AWARE OF SUCH A CHARGE AGAINST HIM THAT HE CAN PRESENT HIS SIDE. THUS PRESCRIBING THE CHARGE IN THE PENALTY NOTICE AND PENALTY ORDER IS M UST. ABSENCE OF A CHARGE IN THE PENALTY NOTICE OR NOT FINDING THE ASS ESSEE GUILTY OF A CLEAR OFFENCE IN THE PENALTY ORDER VITIATES THE PENALTY O RDER. IT WAS FURTHER HELD THAT WHEN THE ASSESSING OFFICER IS SATISFIED THAT I T IS A CLEAR-CUT CASE OF CONCEALMENT OF PARTICULARS OF INCOME, HE MUST SPECI FY IT SO IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AN D ALSO IN THE PENALTY ORDER. THE ASSESSING OFFICER CANNOT INITIATE PENALT Y ON THE CHARGE OF 'CONCEALMENT OF PARTICULARS OF INCOME', BUT ULTIMAT ELY FIND THE ASSESSEE GUILTY IN THE PENALTY ORDER OF 'FURNISHING INACCURA TE PARTICULARS OF INCOME'. IN THE SAME MANNER, HE CANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTI CULARS OF INCOME BY USING SLASH BETWEEN THE TWO EXPRESSIONS. WHEN THE A SSESSING OFFICER IS SATISFIED THAT IT IS A CLEAR-CUT CASE OF 'FURNISHIN G OF INACCURATE PARTICULARS OF INCOME', HE MUST AGAIN SPECIFY IT SO IN THE NOTI CE AT THE TIME OF ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 9 INITIATION OF PENALTY PROCEEDINGS AND ALSO IN THE P ENALTY ORDER. AFTER INITIATING PENALTY ON THE CHARGE OF 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', HE CANNOT IMPOSE PENALTY BY FINDING THE AS SESSEE GUILTY OF 'CONCEALMENT OF PARTICULARS OF INCOME'. AGAIN, HE C ANNOT BE UNCERTAIN IN THE PENALTY ORDER AS TO CONCEALMENT OR FURNISHING O F INACCURATE PARTICULARS OF INCOME BY USING SLASH BETWEEN THE TW O EXPRESSIONS. WHEN THE ASSESSING OFFICER IS SATISFIED THAT IT IS A CLE AR-CUT CASE OF IMPOSITION OF PENALTY UNDER SECTION 271(1)( C ) ON TWO OR MORE ADDITIONS/DISALLOWANCES, ONE OR MORE FALLING UNDER THE EXPRESSION 'CONCEALMENT OF PARTICULARS OF INCOME' AND THE OTHE R UNDER THE 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', H E MUST SPECIFY IT SO BY USING WORD 'AND' BETWEEN THE TWO EXPRESSIONS IN THE NOTICE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS. IF HE REMAINS CO NVINCED IN THE PENALTY PROCEEDINGS THAT THE PENALTY WAS RIGHTLY INITIATED ON SUCH COUNTS AND IMPOSES PENALTY ACCORDINGLY, HE MUST SPECIFICALLY F IND THE ASSESSEE GUILTY OF 'CONCEALMENT OF PARTICULARS OF INCOME' AN D ALSO 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' IN THE PENALTY OR DER AND THE CHARGE IS NOT LEVIED IN THE ABOVE MANNER IN ALL THE THREE CLE AR-CUT SITUATIONS DISCUSSED ABOVE IN THE PENALTY NOTICE AND ALSO IN T HE PENALTY ORDER, THE PENALTY ORDER BECOMES UNSUSTAINABLE IN LAW. THUS IT IS EVIDENT THAT WHEN THE ASSESSING OFFICER IS SATISFIED AT THE STAGE OF INITIATION OF PENALTY PROCEEDINGS OF A CLEAR-CUT CHARGE AGAINST THE ASSES SEE IN ANY OF THE THREE ITA NO. 5389 MUM 2017-PRABIR KUMAR RAY 10 SITUATIONS (SAY, CONCEALMENT OF PARTICULARS OF INCO ME), BUT IMPOSES PENALTY BY HOLDING THE ASSESSEE AS GUILTY OF THE OT HER CHARGE (SAY, FURNISHING OF INACCURATE PARTICULARS OF INCOME) OR AN UNCERTAIN CHARGE (CONCEALMENT OF PARTICULARS OF INCOME/FURNISHING OF INACCURATE PARTICULARS OF INCOME), THE PENALTY CANNOT BE SUSTA INED. 11. IN VIEW OF THE ABOVE FACTUAL AND LEGAL DISCUSSIONS THE ASSESSING OFFICER HAS NOT CLEARLY SPECIFIED THE LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT WHILE ISSUING THE SHOW CAUSE NOTICE AND IN ABSE NCE OF A SPECIFIC CHARGE IN THE PENALTY NOTICE OR NOT FINDING THE ASS ESSEE GUILTY OF A CLEAR OFFENCE IN THE PENALTY ORDER VITIATES THE PENALTY O RDER. THUS, WE ALLOW THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22/05/2019. SD/- SD /- G.S. PANNU PAWAN SINGH VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: 22.05.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI