SUCCESS DEVELOPERS P.LTD, MUMBAI V. DCIT CEN CIR 10, MUMBAI

ITA 5608/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7046 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 11-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Unexplained investment; Retraction; Revised return
• Section: 133A; 132

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM & SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO . 5608 /MUM/201 5 ( / ASSESSMENT YEAR: 2011 - 12 ) M/S SUCCESS DEV E LOP E RS PVT. LTD. (MERGED WITH KEYSTONE REALTORS PVT. LTD.) 702, NATRAJ, M. V. ROAD JUNCTION WESTERN EXPRESS HIGHWAY, M UMBAI - 400069 / VS. DCIT CEN CIR 10, MUMBAI PIN ./ ./ PAN/GIR NO. AAACK2499Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NARESH KUMAR, AR / RESPONDENTBY : SHRI M. C. OMI NINGSHEN , DR / DATE OF HEARING : 12 /0 4 /201 8 / DATE OF PRONOUNCEMENT : 08/06/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - 48 , 2 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD MUMBAI, DATED 16.09.15 FOR AY 20 11 - 12 O N THE GROUNDS MENTIONED HEREIN BELOW: - 1 . THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED AS 'CIT (A)') HAS ERRED IN ENHANCING THE PENALTY ORDER OF LEARNED ASSESSING OFFICER (HEREINAFTER REFERRED AS 'A.O.') ENHANCING PENALTY TO RS.36,54,200/ - U/S 271 (1) (C) OF INCOME TAX ACT, 1961 BEI NG 125% OF THE TAX ON THE ADDITION MADE TO THE EXTENT OF RS.88,00,000/ - IN THE ASSESSMENT ORDER PASSED (A.O. HAD LEVIED PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 OF RS.29,23,360/ - BEING 100% OF TAX ON AMOUNT ON THE ADDITION) FOR THE YEAR UNDER CON SIDERATION. SUCH PENALTY IS LEVIED BY A.O. AND ENHANCED BY CIT(A) ON ACCOUNT OF ADDITION MADE WITH REGARDS TO CONCEALED INCOME OF RS.88,00,000/ - BY TREATING THE SAME AS INCOME FOR THE YEAR UNDER CONSIDERATION BUT NOT DISCLOSED IN THE RETURN OF INCOME. IT H AS SUBMITTED THAT SUCH INCOME OF RS. 88 LACS REMAINED TO BE OFFERED IN THE RETURN OF INCOME DUE TO INADVERTENT ERROR, HOWEVER THE SAME WAS ALREADY ACCEPTED AND VOLUNTARILY OFFERED SUCH AMOUNT DURING THE ASSESSMENT PROCEEDINGS TO BE ADDED AS PART OF INCOME AND THEREFORE, THE PENALTY LEVIED IS NOT JUSTIFIABLE. FURTHER, ALL DETAILS WITH REGARDS TO SUCH INCOME WERE DISCLOSED IN GOOD FAITH AND THERE WAS NO MALICIOUS INTENTION ON OUR PART AND HENCE THE SAME CAN NEITHER BE CONSIDERED AS CONCEALMENT OF INCOME NOR I NACCURATE PARTICULARS OF INCOME. 3 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT PENALTY LEVIED IN THESE CASE IS UNWARRANTED AND THE SAME SHOULD BE DELETED. 2 . YOUR APPELLANT CRAVES TO ADD, ALTER, OR AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEAR ING OF APPEAL. 2. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO LETTER DATED 1 1.04.18 FILED BY THE ASSESSEE FOR SEEKING ADMISSION OF ADDITIONAL GROUND, WHICH IS REPRODUCED BELOW: - TO, THE HON'BLE ITAT, H - BENCH, MUMB AI. SUB: - ITA NO 5608/MUM - 2015 FOR AY 2011 - 2012 - PERMISSION U/R 11 OF THE APPELLATE TRIBUNAL RULES, 1963 TO RAISE ADDITIONAL GROUNDS OF APPEAL - REQUEST REGARDING. SIR, WE HAD FILED THE ABOVE MENTIONED APPEAL FOR A V 2011 - 12 AGAINST THE ORDERS OF THE HON'B LE CIT (A). 4 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD WE MAY PLEASE BE GRANTED PERMISSION U/R 11 OF THE APPELLATE TRIBUNAL RULES, 1963 TO RAISE THE FOLLOWING GROUNDS OF APPEAL. GR. NO 2 : - ON FACTS AND IN LAW, THE HON'BLE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ID AO IN LEVY PENALT Y U/S 271(1)(C) WHEN NO LEGALLY VALID NOTICE WAS ISSUED BY THE ID AO IN THE NAME OF THE APPELLANT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. GR.NO 3: - ON FACTS AND IN LAW AND WITHOUT PREJUDICE TO THE GR. NO 2 ABOVE, THE HON'BLE CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ID AO IN LEVYING THE IMPUGNED PENALTY WHEN THE SHOW CAUSE NOTICE WAS ISSUED ON A GENERAL PRINTED FORM WITHOUT SPECIFYING EXACTLY THE NATURE OF OFFENCE FOR WHICH THE PENALTY WAS INITIATED AND LEVIED. GR.NO 4: - ON FACTS AND IN LAW, THE HON'BLE CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ID AO IN LEVYING THE PENALTY U/S 271(1) (C) WHEN THE ID AO ISSUED THE PENALTY NOTICE U/S 271AA FOR NOT SUBSTANTIATING THE MANNER OF EARNING THE INCOME OF RS 3,00 ,13,320 BUT LEVIED THE PENALTY U/S 271(1)(C) FOR CONCEALING THE PARTICULARS OF INCOME OF RS 88,00,000. THE AFORESAID LEGAL GROUNDS OF APPEAL INADVERTENTLY REMAINED TO BE TAKEN AT THE TIME OF FILING OF APPEAL. 5 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD IT MAY BE MENTIONED THAT ALL THE FACTS NECESSAR Y TO DECIDE THE ADDITIONAL GROUNDS ARE ALREADY ON RECORD AND NO NEW EVIDENCE IS REQUIRED TO BE BROUGHT ON RECORD. I MOST HUMBLY WANT TO SUBMIT THAT MY CASE IS FULLY COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL POWER COMPANY LTD VS CIT (1998) 229 ITR 383(SC). I, THEREFORE, REQUEST YOUR HONOURS TO ADMIT THE ABOVE ADDITIONAL GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2011 - 12 AND OBLIGE. 3. WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES ON THIS APPLICATION DATED 1 1.04.18 FOR ADMISSION OF ADDITIONAL GROUND, WE ALLOW THE APPLICATION OF ASSESSEE AND ADMIT THE ADDITIONAL GROUND S NO. 2 TO 4 MOVED BY THE ASSESSEE. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT IN THE PRESENT CASE WAS COMPLETED ON 28.03.13, THEREBY ASSES SING THE TOTAL INCOME AT RS. 6,60,87,808, AFTER MAKING ADDITION OF RS. 88,00,000/ - ON ACCOUNT OF CONCEALED INCOME DETECTED DURING THE 6 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD COURSE OF ASSESSMENT PROCEEDINGS. CONSEQUENTLY, ORDER OF LEVY OF PENALTY U/S 271(1)(C) OF THE I.T. ACT WAS PAS SED ON 25.09 .13 THEREBY THE MINIMUM PENALTY LEVIABLE U/S 271(1)(C) IS 100% OF THE TAX SOUGHT TO BE EVADED TO THE TUNE OF RS. 29,23,360/ - . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES DISMISSED THE APPEAL OF THE ASSESSEE BY ENHANCING THE PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT TO RS. 36,54,200/ - FROM RS. 29,23,360/ - LEVIED BY THE AO BY EXERCISING POWERS U/S 251(1)(B) OF THE I.T. ACT. NOW BEFORE US, THE ASSESSEE HAS PREFE RRED THE APPEAL BY RAISING THE ABOVE GROUNDS. GROUND NO. 1. 5. THIS GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN ENHANCING PENALTY TO RS.36,54,200/ - U /S 271 (1) (C) OF INCOME TAX ACT, 1961 BEING 125% OF THE TAX ON THE ADDITION MADE TO THE EXTENT OF RS.88,00,000/ - IN THE ASSESSMENT ORDER PASSED (A.O. HAD LEVIED PENALTY U/S. 271(1)(C) 7 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD OF THE INCOME TAX ACT, 1961 OF RS.29,23,360/ - BEING 100% OF TAX ON AMOU NT ON THE ADDITION) FOR THE YEAR UNDER CONSIDERATION. 6 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABO VE GROUNDS RAISED BY THE ASSESSEE IN PARA NO. 4 TO 7 OF ITS ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) I S CONTAINED IN PARA NO. 6.8 TO 6.16 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 6.8 LEVY OF PENALTY U/S. 271(1)(C): COMING TO THE MERITS OF THE ISSUE OF PENALTY U/S. 271(1)(C), THE UNDISPUTED FACTS THAT LEAD TO THE LEVY OF PENALTY LEVIED BY THE AO ARE AS UNDER: A. UPON CONFRONTATION OF THE NOTING FOUND IN THE SPIRAL NOTE BOOK DURING THE COURSE OF SURVEY PROCEEDINGS, THE DIRECTOR OF THE APPELLANT EXPLAINED THE RECORDING OF UNDISCLOSED INCOME AT SEVERAL PAGES OF IT. 8 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD B. INCOME OF RS. 301 LACS WAS ADMITTED AS UNDISCLOSED IN THE REGULAR BOOKS AND OFFERED TO TAX IN THE YEAR UNDER CONSIDERATION AS PER THE STATEMENT AND FURTHER POST - DATED CHEQUES WERE ALSO HANDED OVER TO DISCHARGE THE TAX LIABILITY. C. THIS STATEMENT HAS NEITHER BEEN RETRACTED LATER ON NOR BEEN DENIED DURING THE ASSESSMENT PROCEEDINGS. D. HAVING ADMITTED AN ADDITIONAL INCOME OF RS. 301 LACS, AN INCOME OF RS. 88 LACS HAS NOT BEEN INCLUDED IN THE TAXABLE INCOME WHILE FURNISHING THE RETURN. E. DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT ACCEPT ED THE SAID ERROR AND OFFERED IT TO BE ADDED TO THE TAXABLE INCOME AFTER IT WAS BROUGHT TO ITS NOTICE BY THE AO. F. THE IMPUGNED ADDITION OF RS. 88 LACS MADE BY THE AO HAS NOT BEEN CHALLENGED BY THE APPELLANT. 6.9 IN THE APPELLANT'S CASE THE SURVEY HAS RES ULTED INTO DETECTION OF THEUNDISCLOSED INCOME. THERE WERE NOTING IN THE HANDWRITING OF THE DIRECTOR OF THE APPELLANT COMPANY INDICATING RECEIPT OF VARIOUS TYPES OF INCOMES WHICH WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNTS MAINTAINED. THE SAME WAS AD MITTED AS THE APPELLANT'S INCOME IN THE STATEMENT RECORDED. IT IS NOT THE CASE THAT THERE WERE NO EVIDENCES ABSOLUTELY 9 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD AND THE INCOME WAS DECLARED MERELY ON AN AD - HOC BASIS AS CLAIMED BY THE APPELLANT. 6.10 HOWEVER, WHILE SUBMITTING THE RETURN OF INCOME T HE APPELLANT REDUCED THEINCOME DECLARED IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY BY AN AMOUNT OF RS. 88 LAC. THE APPELLANT, INSTEAD OF JUSTIFYING AS TO WHY THE AMOUNT OF RS. 88 LAC HAS REMAINED TO BE OFFERED, HAS MERELY CLAIMED THAT THE SAID I NCOME WAS OFFERED VOLUNTARILY, TO BUY PEACE OF MIND, TO AVOID LITIGATION ETC. THE APPELLANT HAS RELIED UPON VARIOUS DECISIONS WHEREIN IT HAS BEEN HELD THAT THE PENALTY CANNOT BE LEVIED MERELY ON THE GROUND THAT THE ASSESSEE'S EXPLANATION HAS NOT BEEN ACCEP TED. ALL SUCH DECISIONS ARE DISTINGUISHABLE WITH THE FACTS OF THE APPELLANT WHEREIN THE APPELLANT COULD NOT OFFER ANY EXPLANATION AT ALL AS TO WHY THE IMPUGNED AMOUNT OF RS. 88 LAC WAS NOT OFFERED TO TAX IN THE RETURN OF INCOME EXCEPT FOR THE CLAIM THAT IT WAS AN ERROR ON ITS PART. 6.11 FIRST EXPLANATION TO SECTION 271(L) WHICH READS AS FOLLOWS: 'EXPLANATION I - WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OFTHE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - 10 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD (A) SUCH PERSON FAILS TO OFFER AN EXPLA NATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE [ASSESSING] OFFICER OR THE [COMMISSIONER (APPEALS] FOR THE [ PRINCIPAL COMMISSIONER OF COMMISSIONER] TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE [AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE INCOME HAVE BEEN DISCLOSED BY HIM.] THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB - SECTIO N, BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED.' 6.12 THE AO IN THE INSTANT CASE WAS SATISFIED THAT THE ASSESSEE CONCEALED HIS INCOME. AFTER SUCH SATISFACTION IS ARRIVED AT, HE CALLED UPON THE ASSESSEE TO FURNISH A N EXPLANATION. THE ASSESSEE OFFERED AN EXPLANATION WHICH WAS FOUND BY THE AO TO BE FALSE, UNSUBSTANTIATED AND ACCORDING TO THE AO, THE ASSESSEE FAILED TO PROVE THAT THE EXPLANATION OFFERED BY HIM WAS BO AFIDE. IN THIS VIEW OF THE MATTER AO ADDED AN AMOUNT OF INCOME CONCEALED BY THE 6.13 IT WAS SUBMITTED BY THE LD.AR BEFORE THE AO DURING PENAL PROCEEDINGS THAT DUE TO INADVERTENT ERROR 11 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD THE ABOVE AMOUNT REMAINED TO BE OFFERED IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION AND THE SAID ERROR WAS ACCEPTED AND THE ASSESSEE HAD VOLUNTARILY OFFERED SUCH DIFFERENCE OF RS.88,00,000/ - TO BE ADDED AS PART OF INCOME TO BUY PEACE AND TO AVOID PROTRACTED LITIGATION WHEN THE CASE OF THE AO IS THAT THE RETURN FILED BY IT FOR THE AY 2011 - 12 U/S 139(1) DOES NOT INCLUDE RS.88 LAC DECLARED DURING THE COURSE OF SURVEY U/S 133A, IT WOULD AUTOMATICALLY FOLLOW THAT INCOME HAD BEEN CONCEALED IN THE RETURN OF INCOME FILED, THE ASSESSMENT WHEREOF WAS COMPLETED ON 28TH MARCH, 2013. THE PROVISIONS OF SUB - SECTION 1 OF SECTI ON 271 SUGGEST THAT IF THE ASSESSEE FURNISHES INACCURATE PARTICULARS COUPLED WITH ABSENCE AND SATISFACTORY EXPLANATION, THAT WOULD PER SE MAKE ASSESSEE LIABLE TO PAY PENALTY. CONCEALMENT OF INCOME IN THAT CASE SHALL BE PRESUMED PROVIDED ASSESSMENT LEADS TO ADDITION OR DISALLOWANCE OF ANY ACCOUNT IN COMPUTING HIS TOTAL INCOME. IN THE INSTANT CASE, THE ASSESSEE ON ITS OWN STANDING HAD CONCEALED THE INCOME. THE ASSESSEE ADMITTED THAT THE RETURN FILED BY IT DID NOT INCLUDE THE INCOME DECLARED BY IT WHICH OCCASI ONED THE ADDITION OF A SUM OF RS. 88,00,000/ - BY THE AO TO THE TOTAL INCOME ORIGINALLY RETURNED 12 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD THE ASSESSEE'S CASE IS THAT THERE WAS NO DELIBERATE CONCEALMENT. CLAUSE (C) OF SECTION 271 (1) ORIGINALLY QUALIFIED AN ACT OF CONCEALMENT OF INCOME OR FURNISHIN G OF INACCURATE PARTICULARS WITH THE EXPRESSION 'DELIBERATELY' WHICH WAS OMITTED BY THE FINANCE ACT, 1964 W.E.F. 1 - 4 - 1964 AS A RESULT CONCEALMENT OF INCOME OR INACCURATE PARTICULARS NEED NOT ORIGINALLY HAVE BEEN FURNISHED DELIBERATELY. THE USE OF THE EXPRE SSION 'DELIBERATELY' WAS A POINTER TO SHOW THAT MENS - REA WAS A NECESSARY ELEMENT. WITH THE OMISSION OF THE EXPRESSION 'DELIBERATELY' MENS - REA IS NO LONGER A PRE - REQUISITE FOR IMPOSITION OF PENALTY. IT IS NOW A CASE OF STRICT LIABILITY AS HELD BY HONBLE SUP REME COURT IN THE CASE OF DHARMENDRA TEXTILES PROCESSORS 295 ITR 244 (SC). 6.14 IN THE CASE OF MAK DATA P. LTD. VS. CIT, 358 ITR 593 (SC). THE HONOURABLESUPREME COURT HAS HELD THAT AS PER EXPLANATION 1 TO S. 271(1)(C), VOLUNTARY DISCLOSURE OF CONCEALED INC OME DOES NOT ABSOLVE ASSESSEE OF S. 271(1)(C) PENALTY IF THE ASSESSEE FAILS TO OFFER AN EXPLANATION WHICH IS BONA FIDE AND PROVES THAT ALL THE MATERIAL FACTS HAVE BEEN DISCLOSED. IN THE CASE BEFORE SUPREME COURT, THE ASSESSEE HAS ONLY STATED THAT HE HAD SU RRENDERED THE ADDITIONAL SUM OF RS.40.74 IAKH WITH A VIEW TO AVOID LITIGATION, BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TOWARDS 13 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD PRODUCTIVE WORK AND TO MAKE AMICABLE WITHTHE INCOME TAX DEPARTMENT. IT WAS HELD THAT THE STATUTE DOES NOT RECOGNIZET HOSE TYPES OF DEFENCES UNDER EXPLANATION ITO S. 271(1)(C) OF THE ACT. IT IS TRITE LAW THAT THE VOLUNTARY DISCLOSURE DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCL OSURE OF HIS CONCEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY. IN VIEW OF THESE FINDINGS OF THE HONOURABLE APEX COURT, 1 REJECT THE PLEA OF THE APPELLANT THAT THE PENALTY COULD NOT BE LEVIED SINCE THE INCOME OF RS.88 LAC, WHICH WAS REMAINED TO BE INCLU DED IN THE RETURN, HAD BEEN ACCEPTED DURING THE ASSESSMENT PROCEEDINGS. 6.15 IN THE CASE OF BACHITTAR SINGH VS. ITO - HA NO. 1380/CHD/2010 ORDERDATED 16 - 2 - 2015, UPON SIMILAR FACTS THE PENALTY HAS BEEN CONFIRMED BY CHANDIGARH ITAT. IN FACT, IN THAT CASE T HE STATEMENT DECLARING ADDITIONAL INCOME DURING THE COURSE OF SURVEY WAS RETRACTED THEREAFTER. THE CONCLUDING PORTION OF THE DECISION IS EXTRACTED BELOW: '10. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE FINDING OF FACT RECORDED BY THE HON'BLE PUN JAB & HARYANA HIGH COURT, IT IS CLEAR THAT THE ADDITION OF RS. 19 LACS HAS BEEN ULTIMATELY MAINTAINED AGAINST THE ASSESSEE AND THE APPEAL OF THE ASSESSEE HAS BEEN 14 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD DISMISSED BY THE HON'BLE HIGH COURT ALSO. WHATEVER PLEA WAS TAKEN BY THE ASSESSEE FOR RETRACT ING FROM THE SURRENDER MADE AT THE TIME OF SURVEY WAS NOT ACCEPTED. THEREFORE, THE FINDING OF FACT HAS REACHED FINALITY AND ADDITION OF RS. 19 LACS IS MAINTAINED. IT IS WELL SETTLED LAW THAT THE FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS ARE RELEVANT AND HAVE A PROBATIVE VALUE. THE ASSESSEE HAS NOT PRODUCED ANY FRESH EVIDENCE OR PRESENTS ANY ADDITIONAL OR FRESH CIRCUMSTANCES IN THE PENALTY PROCEEDINGS. THEREFORE, THE PENALTY SHALL HAVE TO BE CONFIRMED AGAINST THE ASSESSEE. WE RELY UPON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. HARPARSHAD & COMPANY LTD. , 328 ITR 53 (DELHI) IN WHICH IT WAS HELD AS UNDER: 'HELD, THAT THE REASONS GIVEN BY THE TRIBUNAL FOR QUASHING THE PENALTY PROCEEDINGS WERE IRRELEVANT, NOT GERMANE TO THE ISSUE AND THE TRIBUNAL HAD LOST SIGHT OF ASPECTS WHICH HAD BEEN CONCLUSIVELY ESTABLISHED IN THE QUANTUM PROCEEDINGS. THE TRIBUNAL HAD FAI LED TO TAKE NOTE OF THE FACT THAT PART OF THE CLAIM AS COMMISSION WAS ALLOWED TO THE ASSESSEE NOT BECAUSE R HAD RENDERED ANY RENDERED ANY SERVICES BUT BECAUSE J HAD RENDERED SERVICES FOR WHICH IT WAS PAID I PER CENT. OF THE COMMISSION BY R OUT OF THE 3 PER CENT. RECEIVED BY HER. AS FAR AS COMMISSION TO R WAS CONCERNED, IT WAS ACCEPTED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS 15 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD THAT SHE DID NOT RENDER ANY SERVICE AT ALL. THE ASSESSEE HAD FAILED TO OFFER ANY EXPLANATION IN RESPECT OF THEADDITION OF RS. 1,83,0 78 AND IT COULD BE DEEMED TO HAVE CONCEALED THE PARTICULARS OFINCOME OR FURNISHED INACCURATE PARTICULARS THEREOF, BY VIRTUE OF THIS EXPLANATION. THE TRIBUNAL WAS NOT JUSTIFIED IN DELETING THE PENALTY IMPOSED BY THE INCOME - TAX OFFICER UNDER SECTION 271(I)(C ) OF THE ACT. THE FINDINGS GIVEN IN ASSESSMENT PROCEEDINGS ARE RELEVANT AND HAVE PROBATIVE VALUE. WHERE THE ASSESSEE PRODUCES NO FRESH EVIDENCE OR PRESENTS ANY. ADDITIONAL OR FRESH CIRCUMSTANCE IN PENALTY PROCEEDINGS, HE WOULD BE DEEMED TO HAVE FAILED TO D ISCHARGE THE ONUS PLACED ON HIM AND THE LEVY OF PENALTY COULD BE JUSTIFIED. EVEN IF THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS, BUT ON THE BASIS THEREOF THE CLAIM WHICH IS MADE IS EX FACIE BOGUS, IT MAY STILL ATTRACT PENALTY PROVISION. THE EXPLANATIONS APPENDED TO SECTION 271(L)(C) OF THE ACT ENTIRELY INDICATE THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING RETURN. THE OBJECT BEHIND ENACTMENT OF SECTION 271(L)(C ) READ WITH THE EXPLANATIONS INDICATE THAT THE SECTION HAS BEEN ENACTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE. THE 16 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD PENALTY UNDER THAT PROVISION IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS IS THE CASE IN THE MATTER OF PROSECUTION UNDER SECTION 276C OF THE ACT. THE FACTS IN THE CASE OF THE APPELLANT SHOWS THAT THERE ARE MORE GROUNDS FOR LEVY OF PENALTY IN COMPARISON TO THE ABOVE DECISION IN THE CASE OF BACHITTAR SINGH WHEREIN THE ASSESSEE RE TRACTED THE STATEMENT SUBSEQUENTLY, WHEREAS IN THE CASE OF APPELLANT THERE IS NO SUCH RETRACTION. ON THE CONTRARY, THE APPELLANT ADMITTED THAT RS.88 LAC WAS OMITTED TO BE INCLUDED IN THE RETURN THOUGH DISCLOSED DURING SURVEY. 11. THE HON'BLE BOMBAY HIGH CO URT IN THE CASE OF JYOTI LAXMAN KONKAR VS. CIT7 292 ITR 163 (BORN) HELD AS UNDER: THE ASSESSEE HAD FILED A RETURN FOR THE ASSESSMENT YEAR 1999 - 2000 DECLARING AN INCOME OF RS. 7,40,510. NOT SATISFIED THEREWITH, THE ASSESSING OFFICER CARRIED OUT A SURVEY UND ER SECTION 133A OF THE INCOME - TAX ACT, 1961, AND DURING THE SURVEY FOUND THAT THERE WAS A DISCREPANCY IN STOCK TO THE TUNE OF RS. 18,281706 WHICH WAS BROUGHT TO THE NOTICE OF THE ASSESSEE, AND THE ASSESSEE FILED A REVISED RETURN DISCLOSING ADDITIONAL INCOM E OF RS. 18,28, 706. THE ASSESSING OFFICER 17 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD IMPOSED PENALTY UNDER SECTION 271(1 )(C) AND THIS WAS UPHELD BY THE TRIBUNAL. ON APPEAL TO THE HIGH COURT: HELD, DISMISSING THE APPEAL, THAT THE QUESTION WHETHER THERE IS CONCEALMENT OF INCOME OR NOT HAS TO BE DEC IDED WITH REFERENCE TO THE FACTS OF A GIVEN CASE AND THE FACT FINDING AUTHORITIES UNDER THE ACT HAVING COME TO THE CONCLUSION THAT IN THE FACTS OF THE CASE, THE ASSESSEE HAD CONCEALED THE INCOME INITIALLY WITH A VIEW TO AVOID THE PAYMENT OF TAX, THE IMPOSI TION OF PENALTY WAS VALID.' 12. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF LMP PRECISUION ENGG. CO, LTD. VS. DY.CIT (ASSESSMENT), 330 ITR 93 (GUJ.) CONFIRMED THE LEVY OF PENALTY BECAUSE REVISED RETURN WAS FILED AFTER SURVEY OPERATION WHICH SHOWED CONCEA LMENT OF INCOME AND IT WAS HELD AS UNDER: 'HELD, THAT IT WAS ONLY AFTER THE STATEMENT OF THE CHAIRMAN AND MANAGING DIRECTOR WAS RECORDED BY THE DEPUTY DIRECTOR OF INCOME - TAX (INVESTIGATION), MUMBAI, THAT THE FIRST DISCLOSURE DATED OCTOBER 20,1988, RS. 54,7 1,463 WAS MADE ACCOMPANIED BY ANOTHER DISCLOSURE OF RS. 54 LAKHS IN A ROUND FIGURE BEING DIVIDED INTO THREE SEGMENTS OF RS. 18 IAKHS EACH FOR ASSESSMENT YEARS 1986 - 87, 1987 - 88 AND 198889. THE REVISED RETURN DECLARING A SUM OF RS. 78,56,613 18 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD CAME ABOUT AS A CONSEQUENCE OF FOLLOW - UP PROCEEDINGS UNDER - TAKEN BY THE DEPUTY DIRECTOR OF INCOME - TAX IN RELATION TO THE OTHER THREE SUPPLIERS, VIZ. , SC, NB AND NPST. THEREFORE, THE ASSESSEE COULD NOT BE STATED TO HAVE VOLUNTARILY COME FORWARD TO DISCLOSE INCOME WHICH HA D UNINTENTIONALLY BEEN OMITTED FROM THE ORIGINAL RETURN OF INCOME. THE IMPOSITION OF PENALTY WAS VALID.' 13. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RAMESH CHANDER GUPTA VS. INCOME - TAX APPELLATE TRIBUNAL & OTHERS, 344 ITR 320 (P&H) HELD AS U NDER: 'ON AUGUST 5, 1994, A SURVEY WAS CARRIED OUT UNDER SECTION 133A OF THE INCOME - TAX ACT, 1961, AT THE BUSINESS PREMISES OF THE ASSESSEE. EXCESS STOCK WAS DISCOVERED. AN ADDITION WAS MADE TO THE INCOME OF THE ASSESSEE. PENALTY WAS ALSO IMPOSED. THE TRIB UNAL UPHELD THE ORDER OF PENALTY. ON APPEAL TO HIGH COURT: HELD, DISMISSING THE APPEAL, THAT THE TRIBUNAL CATEGORICALLY HELD THAT THE ADDITION HAD NOT BEEN MADE ON THE BASIS OF ESTIMATE AS RECORDED BY THE COMMISSIONER (APPEALS) BUT ON ACTUAL PHYSICAL VERIF ICATION OF STOCK BY THE ASSESSING OFFICER DURING SURVEY. THE IMPOSITION OF PENALTY WAS VALID.' 19 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD 14. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ABOVE DECISIONS AND THE DECISION OF THE HON'B!E HIGH COURT IN THE CASE OF THE ASSESSEE HIMSELF, IT IS C LEAR THAT THE ASSESSEE MADE SURRENDER OF RS. 19 LACS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHOP DURING THE COURSE OF SURVEY. THE ADDITION IS ULTIMATELY MAINTAINED. THE ASSESSEE FAILED TO EXPLAIN THE UNEXPLAINED INVESTMENT AT EVERY STAGE AND, THEREFORE, T HE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. IT IS INTERESTING TO NOTE HERE ALSO THAT THE ASSESSEE DESPITE MAKING SURRENDER DURING THE COURSE OF SURVEY HAS DELIBERATELY RETRACTED FROM HIS COMMITMENT AND DID NOT SHOW THE SURRENDERED AMOUNT IN THE RE TURN OF INCOME FILED. THEREFORE, IT IS A CLEAR CASE OF DELIBERATELY CONCEALING THE PARTICULARS OF INCOME WHICH WERE SURRENDERED DURING THE COURSE OF SURVEY. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW IN LEVYING AND CONF IRMING THE PENALTY UNDER SECT ION 271(1) (C) OF THE ACT.' 6.16 IN VIEW OF THE ABOVE DECISIONS CITED AND ALSO IN VIEW OF THE FACT THAT ADDITIONAL INCOME OF RS.88 LAKH DECLARED DURING SURVEY BY THE APPELLANT ON THE BASIS OF INCRIMINATING MATERIALS FOUND DURI NG THE COURSE OF SURVEY AND SUBSEQUENT CONDUCT OF THE ASSESSEE IN FAILING TO DISCLOSE THE SAME IN THE RETURN OF INCOME FILED, PENALTY LEVIDED U/S 271(1)(C) OF THE ACT IS 20 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD REQUIRED TO BE CONFIRMED FOR CONCEALMENT OF PARTICULARS OF INCOME. HOWEVER, I AM OF TH E CONSIDERED VIEW THAT THE QUANTUM OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS REQUIRED TO BE ENHANCED. AS MENTIONED IN PARA 6.4 ABOVE, THE APPELLANT WAS REQUESTED TO EXPLAIN WHY THIS QUANTUM OF PENALTY LEVIED U/S 271 (1)(C) OF THE ACT SHOULD NOT BE ENHA NCED. IN RESPONSE TO WHICH THE APPELLANT MERELY MENTIONED THAT THE NON DISCLOSURE OF RS.88 IAKHS WAS A MISTAKE AND WOULD NOT AMOUNT TO CONCEALMENT. THE EXPLANATION OF THE APPELLANT IS NOT SATISFACTORY. THIS IS A CLEAR CASE OF CONCEALMENT OF INCOME BECAUSE THE ASSESSEE ADMITTED ADDITIONAL INCOME OF RS.3.01 CRORE DURING THE COURSE OF SURVEY BUT WHILE FILING ITS RETURN OF INCOME CONCEALED THE INCOME TO THE EXTENT OF RS.88 LAKH AND DISCLOSED ONLY RS.213 LAKH IN THE SAID RETURN OF INCOME FILED. BESIDES, THE APPE LLANT HAS ALSO ADOPTED DILATORY TACTICS IN MISLEADING THE DEPARTMENT. BEFORE THE AO, IT WAS STATED THAT THE PENALTY OUGHT TO HAVE BEEN INITIATED U/S 271(1)(C) OF THE ACT AS THERE WAS NO SEARCH AND ON THE CONTRARY APPELLANT RAISED GROUNDS OF APPEAL BEFORE T HE UNDERSIGNED TO THE EFFECT THAT PENALTY MUST HAVE BEEN LEVIED U/S 271 AAA AS THERE WAS SEARCH ACTION IN THE CASE. THE APPELLANT HAS BEEN DELIBERATELY MISLEADING THE DEPARTMENT. THE APPELLANT IS QUITE AWARE THAT IT IS A CASE OF SURVEY AND THERE IS NO SEAR CH ACTION. IN CASE OF SURVEY PENALTY IS LEVIABLE ONLY UNDER SEC. 271 (1 )(C) 21 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD OF THE ACT. PENALTY U/S 271 AAA IS LEVIABLE ONLY IN RESPECT OF A SPECIFIED YEAR WHERE SEARCH U/S 132 OF THE ACT WAS CONDUCTED. THE TACTIC ADOPTED BY THE APPELLANT IS NOT APPRECIAB LE. TAKING INTO ACCOUNT THE CUMULATIVE FACTS, I.E. THE CONCEALMENT OF INCOME, THE LEGAL POSITIONCONDUCT OF THE APPELLANT, I AM OF THE CONSIDERED VIEW THAT THE PENALTY LEVIED U/S271 (1)(C) OF THE ACT IS REQUIRED TO BE ENHANCED. THEREFORE, I HEREBY ENHANCE P ENALTY TO 125% AND ACCORDINGLY ENHANCE THE QUANTUM OF PENALTY TO RS36,54,2001 - FROM RS.29,23,360/ - LEVIED BY THE A.O. BY EXERCISING POWERS U/S. 251(1 )(B) OF THE INCOME TAX ACT, 1961. 7. IN THE RESULT, APPEAL IS DISMISSED. AFTER HAVING GONE THROUGH THE FAC TS OF THE PRESENT CASE, JUDGMENT CITED BY BOTH THE PARTIES AS WELL AS ORDERS PASSED BY REVENUE AUTHORITIES , WE FIND THAT THE SOLE GROUND RAISED BY THE ASSESSEE IS AGAINST CHALLENGING THE ORDER OF LD. CIT(A) IN UPHOLDING AND ENHANCING THE PENALTY ORDER PASS ED BY THE AO AGAINST LEVY OF PENALTY . FROM THE RECORDS, WE NOTICE D THAT THE AMOUNT OF RS. 88 LAC WAS DECLARED SHORT AND THEREFORE, HAD REMAINED TO BE OFFERED AND HAD BEEN ADMITTED IN THE ASSESSMENT PROCEEDINGS . IT WAS SUBMITTED BY THE ASSESSEE THAT DECLARATION 22 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD WAS MADE VOLUNTARILY TO CO - OPERATE WITH THE INCOME - TAX DEPARTMENT AND TO BUY PEACE AND TO AVOID ANY PROTRACTED LITIGATION AND ALSO WITH A CONDITION THAT NO PENALTY MAY BE LEVIED. DURING THE PENALTY PROCEEDINGS , T HE AO REJECTED THE CONTENT ION OF THE ASSESSEE AND LEVIED PENALTY OF RS.29,23,360/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED DUE TO NONDISCLOSURE OF INCOME AMOUNTING TO RS. 88 LAC. IN DOING SO, T HE AO OBSE RVED THAT THE ASSESSEE IN GROSS DEFIANCE OF THE STATEMENT GIVEN BY ITS DIRECT OR, MANIPULATED THE INCOMES AT A LOWER FIGURE. IT WAS OBSERVED BY AO THAT T HE SOLE INTENTION BEHIND THIS WAS NOTHING BUT TO EVADE THE TAXES AND THEREAFTER THE AO REJECTED THE CONTENTION OF THE ASSESSEE THAT IT HAD VOLUNTARILY DISCLOSED THE INCOME. WE ALSO NOTICE D THAT ASSESSEE AGREED FOR ADDITION OF RS. 88 LACS ONLY WHEN A DISCREPANCY WAS DETECTED BY THE AO AND A QUERY WAS RAISED TO THE ASSESSEE IN THIS REGARD. EVEN THE ASSESSEE ON ITS OWN STANDING HAD ADMITTED THE CONCEALMENT OF INCOME AS ASSESSEE ADM ITTED THAT THE RETURN FILED BY IT DID NOT INCLUDE THE INCOME DECLARED BY IT WHICH OCCASIONED THE ADDITION OF A SUM OF RS. 88,00,000/ - BY THE AO TO THE TOTAL INCOME ORIGINALLY RETURNED . 23 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD WE FURTHER NOTICE D THAT THE ASSESSEE HAD RAISED A PARTICULAR PLEA IN HIS DEFENCE THAT THERE WAS NO DELIBERATE CONCEALMENT. IN THIS RESPECT, WE HAVE TAKEN INTO CONSIDERATION THAT T HE USE OF THE EXPRESSION 'DELIBERATELY' WAS A POINTER TO SHOW THAT MENS - REA WAS A NECESSARY ELEMENT. IN THIS RESP ECT, LD. CIT(A) RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF DHARMENDRA TEXTILES PROCESSORS 295 ITR 244 (SC), WHEREIN IT HAS BEEN CATEGORICALLY HELD THAT W ITH THE OMISSION OF THE EXPRESSION 'DELIBERATELY' MENS - REA IS NO LONGER A PRE - REQ UISITE FOR IMPOSITION OF PENALTY. WE FURTHER NOTICE THAT LD. CIT(A) HAS ALSO RELIED UPON JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD. VS. CIT, 358 ITR 593 (SC), WHEREIN IT HAS BEEN CATEGORICALLY HELD THAT AS PER EXPLANATION 1 TO S. 271(1)(C), VOLUNTARY DISCLOSURE OF CONCEALED INCOME DOES NOT ABSOLVE ASSESSEE OF S. 271(1)(C) PENALTY IF THE ASSESSEE FAILS TO OFFER AN EXPLANATION WHICH IS BONA FIDE AND PROVES THAT ALL THE MATERIAL FACTS HAVE BEEN DISCLOSED. APART FROM ABOVE, LD. CIT(A) HAD ALSO RELIED UPON VARIOUS JUDGMENTS AND CORRECTLY HELD THAT ADDITIONAL INCOME OF RS. 88 24 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD LAKHS DECLARED DURING THE SURVEY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SURVEY AND THE SUBSEQUENT CONDUCT OF THE ASSESSEE IN FAILING TO DISCLOSE THE CORRECT AMOUNT IN THE RETURN OF INCOME FILED WHICH LED THE LD. CIT(A) TO ENHANCE THE PENALTY. T HEREFORE , LD. CI T(A) WHILE FOLLOWING THE DUE PROCEDURE HAD PROVIDED O PPORTUNITY TO THE ASSESSEE FOR EXPLAINING AS TO WH Y THIS QUANTUM OF PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT SHOULD NOT BE ENHANCED . IN THIS RESPECT, LD. AR OF THE ASSESSEE SUBMITTED THAT THE NON DISCLOSURE OF RS.88 IAKHS WAS A MISTAKE AND WOULD NOT AMOUNT TO C ONCEALMENT . WHEREAS AS PER THE FACTS OF THE PRESENT CASE, THIS NON - DISCLOSURE IS A CASE OF CONCEALMENT OF INCOME BECAUSE THE ASSESSEE ADMITTED ADDITIONAL INCOME OF RS.3.01 CRORE DURING THE COURSE OF SURVEY , BUT WHILE FILING ITS RETURN OF INCOME CONCEALED THE INCOME TO THE EXTENT OF RS.88 LAKH AND DISCLOSED ONLY RS.213 LAKH S IN THE SAID RETURN OF INCOME FILED. APART FROM THIS, ASSESSEE HAD ALSO ADOPTED DILATORY TACT ICS IN MISLEADING THE REVENUE . FROM THE FACTS, WE FURTHER NOTICE THAT BEFORE THE AO, IT WAS STATED BEFORE THE AO THAT THE PENALTY OUGHT TO HAVE BEEN INITIATED U/S 271(1)(C) OF THE ACT AS THERE WAS NO SEARCH . BUT ON THE 25 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD CONTRARY A SSESSEE RAISED GROUNDS OF APPEAL BEFORE THE UNDERSIGNED TO THE EFFECT THAT PENALTY MUST HAVE BEEN LEVIED U/S 271 AAA AS THERE WAS SE ARCH ACTION IN THE CASE. THEREFORE, LD. CIT(A) AFTER APPRECIATING THE FACTS HAD CORRE CTLY REACHED TO THE CONCLUSION THAT THE ASSESSEE HAD BEEN DELIBERATELY MISLEADING THE DEPARTMENT AS THE ASSESSEE WAS QUITE AWARE THAT I T WAS A CASE OF SURVEY AND THERE WAS NO SEARCH ACTION. THE TACTIC ADOPTED BY THE ASSESSEE WAS NOT FOUND APPRECIABLE AND THUS TAKING INTO ACCOUNT THE CUMULATIVE FACTS I.E. THE CONCEALMENT OF INCOME, LEGAL PROPOSITION AND ALSO THE CONDUCT OF THE ASSESSEE, ENHANCED THE PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. MOREOVER, BEFORE US N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THESE GROUND S RAISED BY THE ASSESSEE STANDS DISMISSED . 26 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD GROUND NO. 2 7 . THIS GROUND RAISED BY THE ASSESSEE IS GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. ADDITIONAL GROUND NO. 2 TO 4. 8 . THESE GROUND S RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN UPHOLDING THE ACTION OF AO IN LEVY OF PENALTY U/S 271(1)(C) OF I.T. ACT ON DEFECTIVE NOTICE, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 9 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY BOTH THE PARTIES AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT LD. AR RAISED THE GROUND THAT THE NOTICE ISSUED FOR LEVY OF PENALTY U/S 271(1)(C) OF I.T. A CT WAS NOT VALID AS THE SAME IS NOT IN THE NAME OF ASSESSEE. ON PERUSAL OF THE SAID NOTICE, WHICH IS AT PAGE NO. 1 OF THE PAPER BOOK, WE FIND THAT NOTICE HAS BEEN ISSUED IN THE NAME OF M/S SUCCESS DEVELOPERS PVT. LTD., GROUND FLOOR, ROAD NO. 2, MODH VAN IK VIDYARTH GRIH, I.T. COLONY, DADAR(EAST), MUMBAI - 27 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD 400 014 AND AS PER THE ORDER OF ASSESSEE, THE SAID ADDRESS WAS FOUND MENTIONED, THUS THERE WAS NO DIFFERENCE IN THE NAME OF THE ASSESSEE. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE SHOW CAUSE NOTICE IS SUED ON A GENERAL PRINTED FORM WITHOUT SPECIFYING EXACTLY THE NATURE OF OFFENCE FOR WHICH THE PENALTY WAS INITIATED. IN THIS RESPECT, WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE FIND THAT NO SUCH GROUND WAS EVER RAISED BY THE ASSESSEE IN REPLY T O THE SHOW CAUSE NOTICED DATED 28.03.13 ISSUED BY THE REVENUE AND MOREOVER, IN THE ORDER PASSED U/S 271(1)(C) OF I.T. ACT, THERE IS SPECIFICALLY MENTIONED IN THE SHOW CAUSE NOTICE DATED 12.08.13 RELIED UPON ASSESSEE FOR REQUIRING IT TO FURNISH ITS EXPLANATION AS TO WHY AN ORDER OF IMPOSING PENALTY U/S 271(1)(C) OF I.T. ACT SHOULD NOT BE MADE IN HIS CASE. BUT THE ASSESSEE HAS NOT REBUTTED ANY SUCH FACTUAL POSITION AND THIS MISERABLY FAILED TO SUBSTANTIATE HIS ARGUMENTS BY SUPPORTING ANY DOCUMENTARY EVIDENCE. IT WAS FURTHER SUBMITTED BY LD. AR THAT NOTICE DATED 28.03.13 PURPORTED TO HAVE BEEN ISSUED U/S 271AA AND THE ACTION OF AO IN LEVYING THE PENALTY U/S 271(1)(C) OF I.T. ACT. IN THIS 28 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD RESPECT, AFTER HEARING THE COUNSELS FOR BOTH THE PARTIES, WE FIND THAT AT THE TIME OF PASSING THE ORDER OF ASSESSMENT, IT WAS CLEARLY MENTIONED THAT PENALTY PROCEEDINGS U/S 271(1)(C) OF I.T. ACT ARE BEING INITIATED AND THE SAID FACT WAS WELL WITHIN THE KNOWLEDGE OF ASSESSEE AND MOREOVER, TH E ASSESSEE HAS NEVER FILED ANY REPLY TO THE SHOW CAUSE NOTICE DATED 28.03.13 OR SHOW CAUSE NOTICE DATED 12.08.13. WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MANDATORY PROVISION U/S 274 OF THE I.T. ACT TO ISSUE ANY SPECIFIC NOTICE, BUT THE PURPOSE OF EN ACTMENT OF SECTION 274 OF I.T. ACT IS TO GRANT OPPORTUNITY OF HEARING BY ISSUING TWO NOTICES I.E. 28.03.13 AND 12.08.13, BUT EVEN ASSESSEE HAS NEVER FILED ANY REPLY NOR HAS RAISED ANY SUCH OBJECTION BEFORE THE REVENUE AUTHORITIES I.E. AO OR LD. CIT(A). EVE N BEFORE US, THE ASSESSEE HAS FAILED TO DEMONSTRATE AS TO WHAT PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE. WE ARE ALSO OF THE VIEW THAT THERE IS NO STATUTORY NOTICE AS PRESCRIBED UNDER THE INCOME TAX ACT AND THUS THE REVENUE HAS ALREADY COMPLIED WITH THE MA NDATORY PROVISION OF SECTION 274 OF THE I.T. ACT BY PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. EVEN OTHERWISE, IT IS A SETTLED LAW THAT TECHNICALITIES SHOULD NOT AND MUST NOT COME IN THE WAY OF JUSTICE. THE ASSESSEE 29 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD FOR THE FIRST TIME HAS RAISED HYP OTHETICAL OBJECTIONS THAT TOO WITHOUT ANY SUBSTANTIAL GROUND. THEREFORE, IN SUCH CIRCUMSTANCES, WE FIND THAT ADDITIONAL GROUNDS NO. 2 TO 4 RAISED BY THE ASSESSEE ARE WITH NO ANY BASIS AND THUS, WE HEREBY REJECTED. RESULTANTLY, THE ADDITIONAL GROUNDS RAIS ED BY THE ASSESSEE ARE DISMISSED. 10 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE , 2018. SD/ - SD/ - (R.C. SHARMA ) ( SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 0 6 . 201 8 SR. RS. DHANANJAY 30 I.T.A. NO. 5608 /MUM/201 5 M/S SUCCESS DEV E LOPERS PVT. LTD / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI