Shri Niral Krupesh Patel, Baroda V. The Dy.CIT, Circle-1(3), Baroda

ITA 563/AHD/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7984 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 24-03-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: BHAVIN MARFATIA A RS
• Keywords: Unexplained investment; Revised return
• Section: 271(1)(c); 143(3); 133A; 274; 251; 13; 22; 131; 148; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHME D, ACCOUNTANT MEMBER SR. NO. IT A NO. ASSTT. YEAR NAME OF APPELLANT NAME OF RESPONDENT 1. 563/AHD /201 6 2009 - 2010 SHRI NIRAL KRUPESH PATEL, SURENDRA FARM, MAHAPURA ROAD, BARODA - 390023 PAN NO.ACQPP6163R D.C.I.T, CIRCLE - 1(3), BARODA. 2 - 3 1061/AHD/2016 & 1853/AHD/2017 2011 - 12 & 2010 - 11 - DO - D.C.I.T, CIRCLE - 1(3), BARODA. 4 - 6 601 - 602/AHD/2016 & 1042/AHD/2017 2009 - 10, 2011 - 12 & 2010 - 11 SHRI TANMAY SURENDRABHAI PATEL, 15, PARISHRAM SOCIETY, SUBHAMPURA, BARODA - 390023. PAN NO. ACZPP3911E D.C.I.T, CIRCLE - 1(3), BARODA. 7 - 9 1043/AHD/2017 152/AHD/2018 & 153/AHD/2018 2010 - 11, 2009 - 10 & 2011 - 12 SHRI AMISH K. PATEL, SURENDRA FARM, MAHAPURA ROAD, SEVASI BARODA - 390023 PAN NO.ACUPP1752E D.C.I.T, CIRCLE - 1(3), BARODA. 10 - 12 1046 - 1047/AHD/2017 & 1243/AHD/2018 2009 - 10 TO 2010 - 11 & 2011 - 12 SMT. SUDHABEN N. PATEL, 22 - 23, ROKADNATH SOCIETY, NR. RACE COURSE CIRCLE, VADODARA - 390007 PAN NO.ADAPP0582D D.C.I.T. CIRCLE - 1(2) VADODARA (APPLICANT) (RESPON D ENT) ASSESSEE BY : SHRI MILIN MEHTA & SHRI BHAVIN MARFATIA, A.RS REVENUE BY : SHRI VINOD TANWANI , SR.D.R / DATE OF HEARING : 05 / 08 / 2020 / DATE OF PRONOUNCEMENT: 19 / 08 /2020 ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 2 / O R D E R PER BENCH THE CAPTIONED APPEALS HAVE BEEN FILED BY THE DIFFERENT ASSESSEE AGAINST THE ORDERS OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - VADODARA (IN SHORT LD. CIT(A) ) INVOLVING RESPECTIVE ASSESSMENT YEARS . SINCE ISSUES INVOLVE IN ALL THESE APPEALS ARE IDENTICAL, WE PROCEED TO DISPOSE OF ALL THE APPEALS BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY 2. FIRST WE TAKE ITA NO.563/AHD/2016 FOR A.Y. 2009 - 10 FOR THE ADJUDICATION . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) - 5, VADODARA ( THE CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1(3), BARODA ( THE AO ) IN LEVYING PENALTY AMOUNTING TO RS.17,19,850/ U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 ( THE ACT) 2. THE LEARNED AO ERRED IN FACT IN LAW IN LEVYING PENALTY WITHOUT SPEC IFYING THE CHARGE (I.E WHETHER FOR INACCURATE PARTICULARS OF INCOME OR FOR CONCEALMEN T OF PARTICULAR OF INCOME) OF PENALTY. 3. YOUR APPELLANT CRAVES THE RIGHT TO ADD TO ALTER, AMEND , SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE SOLITARY GROUND RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CON FIRMING THE PENALTY LEVIED BY THE AO FOR RS. 17,19,850/ - ON THE INCOME DISCLOSED BY THE ASSESSEE FOR THE INVESTMENT MADE IN THE INSURANCE POLICIES UNDER THE CHARGE CONCEALMENT OF INCOME UNDER SECTION 271 ( 1 )(C) OF THE ACT. 4. THE FACTS IN BRIEF ARE THAT T HE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF REAL ESTATE AND IS ALSO A PARTNER/ DIRECTOR IN VARIOUS FIRM S /COMPANIES. THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION FILED HIS RETURN OF INCOME DATED 26 TH SEPTEMBER 2009 DISCLOSING THE INCOME OF RS. 9,75,220/ - WHICH WAS ACCEPTED AS IT IS BY THE AO IN THE ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 23 RD DECEMBER 2010. ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 3 4.1 SUBSEQUENTLY, A SUMMON DATED 28 TH MAY 2013 WAS ISSUED BY THE A SSIST ANT DIT (INVESTIGATION) UNDER SECTION 131(1A) OF THE ACT REQUIRING THE ASSESSEE, AMONG OTHER THINGS, THE DETAILS OF THE INSURANCE POLICIES HELD BY HIM AND HIS FAMILY MEMBERS. 4.2 HOWEVER, THE ASSESSEE , IN THE MEANTIME, VIDE LETTER DATED 24 TH OF JULY 2013, ADDRESSED TO THE COMMISSIONER OF INCOME T AX UNDER SECTION 273A OF THE ACT, DISCLOSED AN INCOME OF RS. 5.3 0 CR ORE REPRESENTING THE INVESTMENT MADE BY THE HIM IN THE INSURANCE POLICIES IN THE DIFFERENT YEARS. THE DETAILS OF THE INVESTMENT MADE IN THE INSURANCE POLICIES IN DIFFERENT YEARS STAND AS UNDER: ASSESSMENT YEAR AMOUNT 2009 - 10 50,00,000 2010 - 11 75,00,000 2011 - 12 2,20,00,000 2013 - 14 1,85,00,000 TOTAL 5,30,00,000 4.3 THE ASSESSEE FINALLY COMPLIED WITH THE SUMMON ISSUED BY THE A DIT DATED 28 MAY 2013 BY MAKING A REPLY DATED 31 ST JULY 2013 ALONG WITH THE NECESSARY DOCUMENTS AS REQUIRED IN THE NOTICE ISSUED UNDER SECTION 131 (1A) OF THE ACT. 4.4 SUBSEQUENTLY A SURVEY WAS CONDUCTED UNDER SECTION 133A OF THE ACT AT THE BUSINESS PREM ISES OF THE ASSESSEE DATED 30 TH AUGUST 2013 BUT THERE WAS NO INCRIMINATING MATERIAL F OUND BY THE SURVEY TEAM. HOWEVER THE ASSESSEE IN THE STATEMENT RECORDED DURING THE SURVEY HAS ADMITTED IN RESPONSE TO THE QUESTION NO. 20 THAT HE HAS MADE UNACCOUNTED INVESTMENT IN THE INSURANCE POLICIES , BUT FURTHER CLAIMED THAT HE HAS ALREADY DISCLOSED SUCH INVESTMENT AS ADDITIONAL INCOME BEFORE CIT BY FIL ING APPLICATION UNDER SECTION 273A OF THE ACT VIDE LETTER DATED 24 TH JULY 2013. ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 4 4.5 THE ASSESSEE VIDE LETTER DATED 10 TH OF SEPTEMBER 2013 FURTHER INFORMED TO THE ADIT ABOUT THE FACT THAT HE HAS MADE DISCLOSURE FOR THE INVESTMENTS MADE IN INSURANCE POLICIES BEFORE THE C IT UNDER SECTION 273A OF THE ACT VIDE LETTER DATED 24 JULY 2013. 5. SUBSEQUENTLY, THE AO ISSUE D A NOTICE UNDER SECTION 148 OF THE ACT DATED 12 TH DECEMBER 2013, REQUIRING THE ASSESSEE TO FILE HIS RETURN OF INCOME. THE ASSESSEE IN RESPONSE TO SUCH NOTICE DISCLOSED AN INCOME OF RS. 59,75,220/ - INCLUDING THE INVESTMENT MADE IN THE UNDISCLOSED INSURANCE POLICIES WHICH WAS ACCEPTED AS IT IS BY THE AO VIDE ORDER DATED 09 TH JULY 2014. 5.1 HOWEVER, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS NEITHER DISCLOSED SUCH ADDITIONAL INCOME IN THE ORIGINAL INCOME TAX RETURN FILED UNDER SECTION 139 OF THE ACT NOR DU RING THE COURSE OF ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT. THUS IT IS EVIDENT THAT THE ASSESSEE NEVER WANTED TO DISCLOSE SUCH INCOME. BUT HE HAD TO DISCLOSE SUCH INCOME IN THE RETURN FILED UNDER SECTION 148 OF THE ACT AS THE FACTS ABOUT SUCH INC OME WAS UNEARTHED DURING THE SURVEY CONDUCTED UNDER SECTION 133A OF THE ACT DATED 30 TH AUGUST 2013. 5.2 AS PER THE AO, HAD THE ACTION NOT BEEN TAKEN BY THE DEPARTMENT BY CONDUCTING SURVEY UNDER SECTION 133A OF THE ACT, THE ASSESSEE WOULD NOT HAVE OFFERED THE UNDISCLOSED INVESTMENT IN THE INSURANCE POLICIES AS INCOME. ACCORDINGLY, THE AO PROPOSED TO LEVY THE PENALTY BY ISSUING NOTICE UNDER SECTION 274/271(1)(C) OF THE ACT UPON THE ASSESSEE ON ACCOUNT OF CONCEALMENT OF INCOME FOR THE INVESTMENT IN THE INSUR ANCE POLICIES. 5.3 THE ASSESSEE IN RESPONSE TO SUCH NOTICE SUBMITTED THAT HE HAS ALREADY VOLUNTARY DISCLOSED THE INVESTMENTS MADE BY HIM IN THE INSURANCE POLICIES A S ADDITIONAL INCOME BY WAY OF LE TTER DATED 24 TH JULY 2013 TO THE LD. CIT . AS SUCH, THE ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 5 UNDISCLOSED INVESTMENT INSURANCE POLICIES WAS NOT DETECTED BY THE AO DURING ANY PROCEEDINGS. THEREFORE, THERE CANNOT BE ANY PENALTY SECTION 271(1)(C) OF THE ACT FOR THE INVESTMENT MADE IN THE INSURANCE POLICIES ON ACCOUNT OF CONCEALMENT OF INCOME. 5.4 HO WEVER, THE AO REJECTED THE CONTENTION OF THE ASSESSEE AND LEV IED THE PENALTY OF RS. 17,19,850/ - BEING 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED FOR THE CONCEALMENT OF INCOME. 6. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A) WHO CONFIR MED THE ORDER OF THE AO BY OBSERVING THAT THE ASSESSEE HAS DISCLOSED SUCH INCOME ONLY UPON RECEIVING THE NOTICE UNDER SECTION 131(1A) OF THE ACT BY THE A DIT DATED 28 TH OF MAY 2013. UPON RECEIVING THE NOTICE FROM THE A DIT, THERE WAS NO OPTION AVAILABLE TO T HE ASSESSEE EXCEPT TO DISCLOSE SUCH INCOME IN THE INCOME TAX RETURN . THIS FACT ALSO BECOMES FORTIFIED AS THE ASSESSEE NEITHER DISCLOSED SUCH INCOME IN THE ORIGINAL RETURN OF INCOME TAX RETURN NOR DURING THE ASSE SSMENT FRAMED UNDER SECTION 143( 3 ) OF THE ACT . AS SUCH THE ASSESSEE HAD OPPORTUNITIES ON THE EARLIER OCCASION TO DISCLOSE SUCH INCOME BUT HE FAILED TO DO SO. THEREFORE THE A CT/DEED OF THE ASSESSEE SUGGEST THAT THE ASSESSEE HAS NOT DISCLOSED SUCH INCOME VOLUNTARILY AND BEFORE THE DE TECTION OF THE SAME BY THE I NCOME T AX DEPARTMENT. ACCORDINGLY, THE LEARNED CIT (A), AFTER MAKING A REFERENCE TO THE JUDG MENT OF THE H ON BLE SUPREME COURT IN THE CASE OF MAK DATA (P) LTD VS. CIT REPORTED IN 358 ITR 593 , CONFIRMED THE PENALTY LEVIED BY THE AO. BEING AGGRIEV ED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED AR BEFORE US SUBMITTED THAT THE ASSESSEE HAS DISCLOSED THE ADDITIONAL INCOME ON ACCOUNT OF THE INVESTMENT MADE IN THE INSURANCE POLICIES BEFORE THE COMMISSIONER OF INCOME TAX UNDER SECTION 273 A OF THE ACT , PRIOR TO ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 6 THE DETECTION BY THE REVENUE ABOUT SUCH UNDISCLOSED INVESTMENT. AS SUCH, THE LETTER ISSUED BY THE ADIT DATED 28 MAY 2013 AND SUBSEQUENTLY TO ENQUIRE ABOUT THE INSURANCE POLICIES OF THE ASSESSEE AND HIS FAMILY MEMBERS CANNOT BE A REASON TO HOLD THAT THE ASSESSEE HAS NOT DISCLOSED INCOME ON ACCOUNT OF SUCH INVESTMENTS VOLUNTARY. IT IS BECAUSE THE LETTER ISSUED BY THE ADIT WAS MERELY TO ENQUIRE THE DETAILS OF THE INVESTMENT AND IT HAD NO SPECIFIC INFORMATIO N ON HAND ABOUT SUCH UNDISCLOSED INVESTMENT . 7.1 THE LEARNED AR ALSO CONTENDED THAT THERE WAS NO SPECIFIC CHARGE MENTION IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTI ON 274 READ WITH SECTION 271(1)(C) OF THE ACT WHETHER IT WAS FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THUS IN THE ABSENCE OF ANY SPECIFIC CHARGE, T HE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT SUSTAINABLE. 8. ON THE OTHER HAND, THE LD. DR FILED THE WRITTEN SUBMISSION AS FORWARDED BY THE AO WHICH READS AS UNDER: IT IS PERTINENT TO MENTION THAT AFTER RECEIPT OF THE STR IN THE INVESTIGATION DIRECTORATE, ENQUIRIES WERE CONDUCTED BY THE INVESTIGATION WING REGARDING THE INSURANCE POLICIES. THE DEPUTY DIR ECTOR OF INCOME TAX (INVESTIGATION) - II ISSUED SEVERAL STATUTORY NOTICES TO THE ASSESSEE AND THE BANK AND CALLED FOR DOCUMENTS/DETAILS REGARDING THE INVESTMENTS MADE BY SHRI MRAL K PATEL AND HIS FAMILY MEMBERS. THE DETAILS OF SUCH NOTICES ARE GIVEN AS UNDER : I. A SUMMONS U/S. 131(1A) WAS ISSUED ON 28.05.2013 TO THE ASSESSEE SHRI NIRAL K PATEL TO PROVIDE VARIOUS DETAILS INCLUDING DETAILS OF ALL INSURANCE POLICIES HELD BY HIM OR HIS FAMILY MEMBERS. (COPY ENCLOSED AS EXHIBIT A). BY THIS LETTER ITLSELF, IT IS CLEAR THAT THE ASSESSEE WAS REQUIRED TO FURNISH THE DETAILS OF INSURANCE POLICIES HELD BY THE FAMILY MEMBERS ALSO. II. THE PRINCIPAL OFFICER OF KOTAK MAHINDRA OLD MUTUTAL LIFE INSURANCE LIMITED WAS ASKED TO PROVIDE DETAILS ALONGWITH COPIES OF ALL INSURANC E POLICIES TAKEN BY SHRI NIRAL K PATEL WITH THEIR BRANCH ALONG WITH KYC VIDE SUMMONS U/S 131(1 A) DATED 28 - 05 - 2013. DETAILS OF PAYMENT MADE BY ASSESSEE, PREMIUM PAID, TENURE OF POLICY, MODE OF THE PAYMENT ETC WERE SPECIFICALLY ASKED FOR. (COPY ENCLOSED AS EXHIBIT B). III. FURTHER VIDE SUMMONS U/S 131(1 A) DATED 11 - 06 - 2013, THE PRINCIPAL OFFICER OF KOTAK MAHINDRA OLD MUTUTAL LIFE INSURANCE LIMITED WAS ASKED TO PROVIDE DETAILS OF ALL - INSURANCE POLICIES OPENED AT THE ADDRESS OF SHRI NIRAL K PATEL. (COPY ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 7 ENCLO SED AS EXHIBIT C). THIS ITSELF SHOWS THAT DETAILS OF ALL THE INSURANCE POLICIES OPENED AT HIS ADDRESS WAS CALLED FOR. IV. SUBSEQUENTLY, VIDE SUMMONS U/S 131(1 A) DATED 24 - 06 - 2013, SHRI NIRAL K PATEL WAS ASKED TO PROVIDE DETAILS AND COPIES OF ALL BANK ACCO UNTS/INSURANCE POLICIES (EITHER OPERATIONAL OR NON OPERATIONAL) MAINTAINED BY HIM AS WELL AS HIS COMPANIES/CONCERNS FOR THE PERIOD FROM 01 - 04 - 2009 TILL 24 - 06 - 2013. HE WAS ALSO ASKED TO PROVIDE BANK ACCOUNT/POLICY NUMBER, TENURE OF POLICY, PREMIUM PAID, TYP E OF ACCOUNT, NAME AND ADDRESS OF THE BANK BRANCH. (COPY ENCLOSED AS EXHIBIT D). V. VIDE SUMMONS U/S 131(1A) DATED 22 - 07 - 2013, THE PRINCIPAL OFFICER OF KOTAK MAHINDRA OLD MUTUTAL LIFE INSURANCE LIMITED WAS ASKED TO PROVIDE DETAILS OF ALL INSURANCE POLICIES OPENED AT THE ADDRESS OF SHRI NIRAL K PATEL(PAN: ACQPP6163R). IT WAS ALSO ASKED TO PROVIDE DETAILS OF INSURANCE POLICIES HELD IN THE NAME OF SHRI KRUPESH N PATEL, SHRI AMISH K PATEL, PUNJA NIRAL PATEL ALONG WITH KYC NORMS. (COPY ENCLOSED AS EXHIBIT E). THIS SHOWS THAT THE DETAILS OF INSURANCE POLICIES IN CASE OF OTHER FAMILY MEMBERS W ERE ALSO ASKED REPEATEDLY AND SPECIFICALLY BY THE DEPARTMENT. VI. ALSO, KOTAK MAHINDRA OLD MUTUAL LIFE INSURANCE LTD HAS SUBMITTED THE V DETAILS CALLED FOR VIDE LETTER DATED 22 - 07 - 2013 AND 05 - 06 - 2013. (COPY OF COVERING LETTERS OF THE BANK ARE ENCLOS ED AS EXHIBIT F) 4. IT IS PERTINENT TO MENTION THAT THE ASSESSEE SHRI NIRAL K PATEL HAD FILED AN APPLICATION UNDER 273A ON 24.07.2013 BUT AS EVIDENT FROM THE ABOVE FACTS MENTIONED IN PARA 3. THAT APPLICATION WAS ONLY MADE AFTER BEING DETECTED AND SPECIFIC ALLY CONFRONTED WITH THE INVESTMENTS MADE IN INSURANCE POLICIES BY THE DEPARTMENT. THUS, THIS CANNOT BE CONSIDERED AS VOLUNTARY DISCLOSURE IN ANY CIRCUMSTANCES. 5. IT IS ALSO IMPORTANT TO NOTE HERE THAT THE DISCLOSURE MADE ON BEHALF OF OTHER FAMILY MEMBER S DURING THE COURSE OF SURVEY WAS ALSO NOT VOLUNTARY. AS EVIDENT FROM THE PARA 3 ABOVE, THE DEPARTMENT HAD ALREADY BEEN REPEATEDLY ASKING DETAILS OF INVESTMENTS MADE BY THE FAMILY MEMBERS FROM THE ASSESSEE SHRI NIRAL K PATEL AND ALSO FROM THE BANK. THE BAN K HAD ALSO PROVIDED DETAILS IN CASE OF SOME OF THE FAMILY MEMBERS, WHICH WAS AVAILABLE WITH THE DEPARTMENT. APART FROM THAT IT IS ALSO PERTINENT TO MENTION THAT THE DISCLOSURE WAS MADE BY SHRI NIRAL K PATEL ON BEHALF OF HIS FAMILY MEMBERS ON 01.09.2013 BUT EVEN BEFORE THAT ON 31.08.2013 ITSELF THE BANK WAS REQUESTED THROUGH SUMMONS TO PROVIDE THE DETAILS OF INSURANCE POLICIES TAKEN BY THE FAMILY MEMBERS. A SPECIFIC LIST OF 13 FAMILY MEMBERS WERE ALSO PROVIDED TO THE BANK. (A COPY OF THE NOTICE DATED 31.08.2013 ISSUED TO THE BANK ALONGWITH THE ENCLOSURE IS ATTACHED HEREWITH AS EXHIBIT G). A COPY OF THE STATEMENT OF SHRI NIRAL K PATEL RECORDED DURING THE SUR VEY PROCEEDINGS IS ENCLOSED AS (EXHIBIT H). IT MAY BE SEEN THAT IN REPLY TO QUESTION NO. 20, THE ASSESSEE MADE DISCLOSURE ON 01.09.2013. THUS, THE DISCLOSURE WAS MADE ONLY AFTER SPECIFIC SUMMON WAS ISSUED TO THE BANK ASKING DETAILS OF INSURANCE POLICIES HE LD BY THE FAMILY MEMBERS. THUS, IT IS AGAIN EVIDENT THAT THE DISCLOSURE . DURING THE SURVEY WAS NOT MADE VOLUNTARY BUT IN FACT IT WAS ONLY MADE AFTER DETECTION AND ENQUIRIES CONDUCTED BY THE DEPARTMENT. ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 8 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND THE SPECIFIC DOCUMENTS AND NOTICES, IT IS HUMBLY SUBMITTED THAT THE DISCLOSURE OF THE INVESTMENTS MADE IN INSURRANCE POLICIES WERE NOT MADE VOLUNTARILY BY SHRI NIRAL K PATEL AND HIS FAMILY MEMBERS. IN FACT, THE DISCLOSURE WAS ONLY MADE AFTER DETECTION AND ENQUIRY MADE BY THE DEPARTMENT. THEREFORE, IT IS REQUESTED TO KINDLY CONSIDER THESE SUBMISIONS AND DOCUMENTS IN THE INTEREST OF JUSTICE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE DISCLOSED THE INCOME IN DISPUTE ONLY AFTER RECEIVING THE NOTICE UNDER SECTION 131(1A) OF THE ACT FROM THE A DIT DATED 28 TH OF MAY 2013 WHERE CERTAIN ENQUIRIES WERE RAISED WHICH ARE DETAILED AS UNDER: DATE: 28.05.2013 SH. NIRAL K. PATEL, MAHAPURA ROAD, NEAR TALAV, G OTRI - SINDHROT ROAD BARODA 391101 WHEREAS YOUR ATTENDANCE IS REQUIRED IN CONNECTION WITH THE PROCEEDINGS UNDER THE INCOME - TAX ACT IN YOUR CASE, YOU ARE HEREBY REQUIRED TO PERSONALLY ATTEND MY OFFICE AT 3 RD FLOOR 1 AAYAKAR BHAWA N, BARODA ON 05.06.2013 AT 04.00 P.M TO GIVE EVIDENCE PERSONALLY AND NOT TO DEPART UNTIL YOU RECEIVE MY PERMISSION TO DO SO WITHOUT PREJUDICE TO THE PROVISIONS OF ANY OTHER LAW FOR THE TIME BEING - IN FORCE. IF YOU INTENTIONALLY OMIT TO ATTEND OR GIVE EVID ENCE OR PRODUCE THE BOOKS OF ACCOUNTS AND DOCUMENTS AS SPECIFIED BELOW PENALTY UNDER SECTION 272(A)(1)(C) OF THE INCOME - TAX, 1961, UPON YOU. (ASHISH KUMAR) D Y DIRECTOR OF INCOME - TAX (INVESTIGATION) - II, BARODA. 1. DETAILS OF BUSINESS CARRIED OUT BY YOU, 2. COPY OF INCOME TAX RETURN FILED BY YOU AS WELL AS YOUR COMPANIES/BUSINESS CONCERNS FROM A.Y. 2009. - 10 TILL DATE ALONG WITH COMPUTATION OF INCOME, P & L ACCOUNT END BALANCE SHEET. 3. DETAILS AND COPIES OF ALL BANK ACCOUNTS (EITHER OPERATIONAL OR NON - OPERATIONAL) MAINTAINED BY YOU AS WELL AS YOUR COMPANIES/BUSINESS CONCERNS FOR THE PERIOD FROM 01.04,2010 TILL DATE. ALSO GIVING THE BANK ACCOUNT NO., TYPE OF ACCOUNT, NAME AND ADDRESS OF THE BANK BRANCH. ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 9 4. DETAILS O F ALL INSURANCE POLICIES HELD BY YOU OR BY YOUR FAMILY MEMBERS. DY. DIRECTOR OF INCOME - TAX (INVESTIGATION) - II, BARODA 9.1 ON MAKING REFERENCE TO THE ENQUIRIES REFERRED IN THE NOTICE ISSUED UNDER SECTION 131(1A) OF THE ACT ON STANDALONE BASIS, IT APPEARS THAT THESE ENQUIRIES WERE GENERAL IN NATURE. IT IS BECAUSE, THERE WAS NO REFERENCE MENTION ED ABOUT ANY SPECIFIC INSURANCE POLICIES OR THE PERIODS WHICH THE A DIT WAS LOOKING FOR. FURTHERMORE, THE ADIT WAS REQUIRING THE DETAILS OF THE INSU RANCE POLICIES HELD BY THE ASSESSEE AS WELL AS HIS FAMILY MEMBERS. AS SUCH, THE ADIT HAS NOT ISSUED SEPARATE NOTICES THE FAMILY MEMBERS OF THE ASSESSEE TO PROVIDE THE DETAILS OF THE INSURANCE POLICIES DESPITE THE FACT ALL OF THEM WERE INCOME TAX ASSESSEE. 9.2 HOWEVER, WE FURTHER NOTE THAT THE ADI T HAS AGAIN IS SUED A SUMMON UNDER SECTION 131( 1 A) OF THE ACT DATED 24 TH OF JUNE 2013 REQUIRING THE ASSESSEE TO FURNISH THE DETAILS OF INSURANCE POLICIES HELD BY HIM ALONG WITH HIS ASSOCIA TED CONCERN. THE EXTRACT O F S UMMON IS REPRODUCED AS UNDER: DOCUMENTS TO BE FILED 1. COPY OF INCOME TAX RETURN FILED BY YOU AS WELL AS YOUR COMPANIES/BUSINESS CONCERNS FROM A.Y. 2010 - 11 TILL DATE ALONG - WITH COMPUTATION OF INCOME, P& L ACCOUNT AND BALANCE SHEET. 2. DETAILS AND COPIES OF ALL BANK ACCOUNTS/INSURANCE POLICIES (EITHER OPERATIONAL OF NON OPERATIONAL) MAINTAINED BY YOU AS WELL AS YOUR COMPANIES/BUSINESS CONCERNS FOR THE PERIOD FROM 01.04.2009 TILL DATE. ALSO GIVING THE BANK ACCOUNT/POLICY NO., TENURE OF POLICY, PREMIUM PAID, T YPE OF ACCOUNT, NAME AND ADDRESS OF THE BANK BRANCH. 9.3 G OING FORWA RD, WE ALSO NOTE THAT THE ADIT HAS ALSO ISSUED SUMMON DATED 28 TH MAY 2013, 11 TH JUNE 2013 AND 22 ND JULY 2013 UNDER SECTION 131(1A) TO THE KODAK MAHINDRA O LD M UTUAL L IFE I NSURANCE LIMITED FOR FURNISHING THE DETAIL OF INS URANCE POLICIES HELD BY THE ASSESSEE ALONG WITH HIS FAMILY MEMB ERS . THE RELEVANT ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 10 EXTRACT OF SUMMON ISSUED AS ON 22 ND JULY 2013, FOR THE SAKE OF READY REFERENCE IS REPRODUCED AS UNDER: DOCUMENTS TO BE FILED 1. DETAILS OF INSURANCE POLICIES OPENED AT THE ADDRESS OF SHRI NIRAL K PATEL (PAN ACQPP6163R) 2. DETAILS OF INSURANCE POLICIES HELD IN THE NAME OF SHRI KRUPESH N. PATEL, SHR AMISH K PATEL PUNJA NIRAL PATEL ALONG WITH KYC NORMS. 9.4 A CONJOINT READING OF ALL THE S UMMONS ISSUED UNDER SECTION 131( 1 A) OF THE ACT TO THE ASSESSEE AND THE KODAK MAHINDRA O LD M UTUAL L IFE I NSURANCE LIMITED REFLECTS THAT THERE WAS SOME INFORMATION AVAILABLE WITH THE DEPARTMENT ABOUT THE INVESTMENTS HELD BY THE ASSESSEE IN THE INSURANCE POLICIES. TH EREFORE, THE DISCLOSURE MADE BY THE ASSESSEE BEFORE THE LEARNED CIT DATED 27 JULY 2013 CANNOT BE SAID OF VOLUNT ARY DISCLOSURE AS CLAIMED BY HIM. IT APPEARS, HAD THESE SUMMONS NOT BEEN ISSUED TO THE ASSESSEE, THE ASSESSEE WOULD NOT HAVE DISCLOSED SUCH INCOM E IN THE INCOME TAX RETURN. ACCORDINGLY WE ARE NOT CONVINCED WITH THE ARGUMENT OF THE LEARNED AR FOR THE ASSESSEE THAT SUCH DISCLOSURE WAS MADE VOLUNTARILY BY THE ASSESSEE. 9.5 GOING FURTHER, THOUGH THE DISCLOSURE WAS NOT VOLUNTARY BY THE ASSESSEE IN OUR CONSIDERED VIEW BUT THAT IS NOT ENOUGH TO ATTRACT THE PENALTY ON ACCOUNT OF CONCEALMENT OF INCOME UNDE R THE PROVISIONS OF SECTION 271( 1 )(C) OF THE ACT. AS SUCH TO LEVY THE PENALTY UNDE R THE PROVISIONS OF SECTION 271( 1 )(C) OF THE ACT, THE REVENUE HAS TO CR OSS THE HURDLES OR SATISFY THE CONDITIONS MENTIONED THEREIN. FOR THIS PURPOSE, WE NEED TO MAKE REFERENCE TO THE PROVISIONS OF SECTION 271( 1 )(C) OF THE ACT WHICH READS AS UNDER: 1) IF THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE PRINCIPAL COMM ISSIONER OR COMMISSIONER IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON ( A ) [***] ( B ) HAS FAILED TO COMPLY WITH A NOTICE UNDER SUB - SECTION (2) OF SECTION 115WD OR UNDER SUB - SECTION (2) OF SECTION 115WE OR UNDER SUB - SECTION (1) OF SECTION 142 OR SUB - SECTION ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 11 (2) OF SECTION 143 OR FAILS TO COMPLY WITH A DI RECTION ISSUED UNDER SUB - SECTION (2A) OF SECTION 142 , OR ( C ) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, OR 9 .6 A BARE READING OF TH E ABOVE PROVISION REVEALS THAT I NITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IS SUBJECT TO THE FULFILMENT OF THE CONDITIONS NAMELY, THE ASSESSING OFFICER SHOULD BE 'SATISFIED' THAT: ( A ) THE ASSESSEE HAS EITHER CONCEALED PARTICULARS OF HIS INCOME; OR ( B ) FURNISHED INACCURATE PARTICULARS OF HIS INCOME; OR ( C ) INFRACTED BOTH (A) AND (B) ABOVE. 9.7 THE 'SATISFACTION' SHOULD BE ARRIVED AT DURING THE COURSE OF ANY PROCEEDINGS. THESE COULD BE ASSESSMENT, REASSESSMENT OR RECTIFICATION PROCEEDINGS. NOW THE QUESTION ARISES, WHETHER THE SUMMON ISSUED UNDER SECTION 131(1A) CAN BE EQUATED AS PROCEEDING AS ENVISAGED UNDER SECTION 271(1)(C)OF THE ACT. THE ANSWER CERTAINLY STAND IN NEGATIVE. IT IS BECAUSE, THE SUM MON WAS ISSUED UNDER SECTION 131(1A) OF THE ACT BY THE ADIT MUCH BEFORE THE INITIATION OF THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE A CT. SIMILARLY, THE ASSESSEE DISCLOSED THE INCOME MUCH BEFORE THE INITIATION OF THE PROCEEDINGS INITIATED UNDER SEC TION 148 OF THE ACT. 9.8 ADMITTEDLY, THE INCO ME DISCLOSED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS ACCEPTED BY THE REVENUE WITHOUT ANY FURTHER ADDITION. AS SUCH THE RETURN INCOME WAS ACCEPTED BY THE REVENUE. ACCORDINGLY, THE REVENUE HAS TO FIND OUT THE CONCEALMENT OF INCOME WITH REFERENCE TO THE INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED UNDER SECTION 148 OF THE ACT VIZ A VIZ T HE INCOME AS ASSESSED BY THE AO. AS, THERE WAS NO DIFFERENCE BETWEEN THE RETURN AND THE ASSESSED INCOME, THEN IN OUR CONSIDERED VIEW, THE QUESTION OF PENALTY DOES NOT ARISE MERELY ON THE BASIS OF THE INCOME ADMITTED DURING THE SURVEY PROCEEDINGS. ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 12 9.9 IN HOLDING SO, WE DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SAS PHARMACEUTICALS REPORTED IN [2011]335 ITR 259 WHEREIN IT WAS HELD AS UNDER: NO DOUBT, THE ASSESSEE HAD SURRENDERED CERTAIN INCOME DURING THE COURSE OF SURVEY AND DISCREPANCIES NOTICED BY THE SURVEY TEAM WOULD SUGGEST THAT THE ASSESSEE WAS NOT MAINTAINING PROPER ACCOUNTS IN RESPECT TO CASH, STOCK AND RENOVATION EXPENSES, ETC. THEREFORE, THERE COULD BE A POSSIBILITY THAT BUT FOR THAT SURVEY, THE DISCREPANCIES BROUGHT TO THE NOTICE OF THE ASSESSEE AND PHYSICAL VERIFICATION OF THE STOCK AND OTHER ACCOUNTS WOULD HAVE GONE UNNOTICED AND THE ASSESSEE MIGHT HAVE SUPPRESSED IN THE INCOME - TAX RETURN AS WELL. HOWEVER, FACT REMAINED THAT IT HAD DISCLOS ED SAME IN THE RETURN FILED BY IT. [PARA 5] IN THIS CONTEXT, THE QUESTION WOULD BE AS TO WHETHER THE ASSESSEE COULD BE IMPOSED PENALTY UNDER SECTION 271(1)( C ) WHEN IT HAD SHOWN THAT INCOME IN INCOME - TAX RETURN FILED BY IT AND CONTENDED THAT IT HAD VOLUNTAR ILY DECLARED THE SAME IN THE 'REGULAR RETURN FILED FOR THE RELEVANT YEAR'. [PARA 6] SECTION 271(1)( C ) IS A PENAL PROVISION AND SUCH A PROVISION HAS TO BE STRICTLY CONSTRUED. UNLESS THE CASE FALLS WITHIN THE FOUR - CORNERS OF THE SAID PROVISION, PENALTY CANNO T BE IMPOSED. SUB - SECTION (1) OF SECTION 271 STIPULATES CERTAIN CONTINGENCIES ON THE HAPPENING WHEREOF THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) MAY DIRECT PAYMENT OF PENALTY BY THE ASSESSEE. CLAUSE ( C ) OF SECTION 271(1) AUTHORIZES IMPOSITION OF PENALTY WHEN THE ASSESSING OFFICER IS SATISFIED THAT THE ASSESSEE HAS EITHER ( A ) CONCEALED THE PARTICULARS OF HIS INCOME; OR ( B ) FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. [PARA 12] IT WAS NOT THE CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME, AS IN THE INCOME - TAX RETURN, PARTICULARS OF INCOME HAD BEEN DULY FURNISHED AND THE SURRENDERED AMOUNT OF INCOME WAS DULY REFLECTED IN THE INCOME - TAX RETURN. THE QUESTION WAS WHETHER THE PARTICULARS OF INCOME WERE CONCEALED BY THE ASSESSEE OR NOT. I T WOULD DEPEND UPON THE ISSUE AS TO WHETHER CONCEALMENT HAD REFERENCE TO THE INCOME - TAX RETURN FILED BY THE ASSESSEE, VIZ., WHETHER CONCEALMENT WAS TO BE FOUND IN THE INCOME - TAX RETURN. [PARA 13] THE REVENUE RELYING UPON THE EXPRESSION 'IN THE COURSE OF AN Y PROCEEDINGS UNDER THIS ACT' OCCURRING IN SUB - SECTION (1) OF SECTION 271 CONTENDED THAT EVEN DURING SURVEY WHEN IT WAS FOUND THAT THE ASSESSEE HAD CONCEALED THE PARTICULAR OF HIS INCOME, IT WOULD AMOUNT CONCEALMENT IN THE COURSE OF 'ANY PROCEEDINGS'. SUCH CONTENTION COULD NOT BE ACCEPTED. THE WORDS 'IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT' ARE PREFACED BY THE SATISFACTION OF THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS). WHEN THE SURVEY IS CONDUCTED BY A SURVEY TEAM, THE QUESTION OF SATISFACT ION OF ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) OR THE COMMISSIONER DOES NOT ARISE. IT WAS THE ASSESSING OFFICER WHO INITIATED THE PENALTY PROCEEDINGS AND DIRECTED THE PAYMENT OF PENALTY. HE HAD NOT RECORDED ANY SATISFACTION DURING THE COURSE OF SUR VEY. DECISION TO INITIATE PENALTY PROCEEDINGS WAS TAKEN WHILE MAKING ASSESSMENT ORDER. IT WAS, THUS, OBVIOUS THAT THE EXPRESSION 'IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT' COULD NOT HAVE THE REFERENCE TO SURVEY PROCEEDINGS IN THE INSTANT CASE. [PARA 14] IT NECESSARILY FOLLOWS THAT CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULAR OF INCOME BY THE ASSESSEE HAS TO BE IN THE INCOME - TAX RETURN FILED BY IT. THERE IS SUFFICIENT INDICATION OF THIS IN THE JUDGMENT IN THE CASE OF CIT V. MOHAN DAS HASSA NAND [1983] 141 ITR 203/ 13 TAXMAN 328 (DELHI) AND IN CIT V. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 322 ITR 158/ 189 TAXMAN 322 . THE SUPREME COURT HAS CLINCHED THIS ASPECT, VIZ., THE ASSESSEE CAN FURNISH THE PARTICULARS OF INCOME IN HIS RETURN AND EVERYTHING WOULD DEPEND UPON THE INCOME - TAX RETURN FILED BY THE ASS ESSEE. THIS VIEW GETS SUPPORTED BY TO EXPLANATION 4 AS WELL AS EXPLANATIONS 5 AND 5A TO SECTION 271. [PARA 15] ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 13 OBVIOUSLY, NO PENALTY CAN BE IMPOSED UNLESS THE CONDITIONS STIPULATED IN THE SAID PROVISIONS ARE DULY AND UNAMBIGUOUSLY SATISFIED. SINCE THE ASSE SSEE WAS EXPOSED DURING SURVEY, MIGHT BE, IT WOULD HAVE NOT DISCLOSED THE INCOME BUT FOR THE SAID SURVEY. HOWEVER, THERE CANNOT BE ANY PENALTY ONLY ON SURMISES, CONJECTURES AND POSSIBILITIES. SECTION 271(1)( C ) HAS TO BE CONSTRUED STRICTLY. UNLESS IT IS FO UND THAT THERE IS ACTUALLY A CONCEALMENT OR NON - DISCLOSURE OF THE PARTICULARS OF INCOME, PENALTY CANNOT BE IMPOSED. IN THE INSTANT CASE, THERE WAS NO SUCH CONCEALMENT OR NON - DISCLOSURE AS THE ASSESSEE HAD MADE A COMPLETE DISCLOSURE IN THE INCOME - TAX RETURN AND OFFERED THE SURRENDERED AMOUNT FOR THE PURPOSES OF TAX. [PARA 16] 9.10 WE ALSO DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL REPORTED IN [2000] 241 ITR 124 (MP) WHICH WAS ALSO AFFIRMED BY THE HON BLE SUPREME COURT REPORTED IN [2001] 251 ITR 9 (SC) WHEREIN IT WAS HELD AS UNDER: IT IS WELL - SETTLED THAT UNDER SECTION 271(1)( C ), THE INITIAL BURDEN LIES ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAS CONCEALED THE INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS TO OFFER ANY EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE BY THE ASSESSING AUTHORITY. HOWEVER, THE PROVIS O TO EXPLANATION 1 PROVIDES FOR SHIFTING OF THIS BURDEN AGAIN WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE BONA FIDE . IN THE INSTANT CASE, THOUGH IT WAS TRUE THAT THE ASSESSEE HAD NOT SURRENDERED AT ALL AND THAT HE HAD DONE SO ON THE PERSISTENT QUERIES MADE BY THE ASSESSING OFFICER, BUT ONCE THE REVISED ASSESSMENT WAS REGULARISED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN CANCELLING THE PENALTY LEVIED. IN THE LIGHT OF THE ABOVE STATED DI SCUSSION, WE HOLD THAT THERE CANNOT BE A PENALTY MERELY ON THE BASIS THAT THE ASSESSEE HAS DISCLOSED INCOME AFTER RECEIVING THE NOTICE FROM THE ADIT AND THE INCOME WAS ACCEPTED DURING SURVEY PROCEEDINGS AS DISCUSSED ABOVE. 9.11 NOW COMING TO THE CASE LAW REFERRED BY THE AO I.E MAK DATA, WE FIND THAT THE PRINCIPLES LAID DOWN BY THE HON BLE APEX COURT IN THE CASE OF MAK DATA (P) LTD VS. CIT REPORTED IN 358 ITR 593, IN OUR HUMBLE OPINION ARE FACTUALLY DIFFERENT FROM THE PRESENT FACTS OF THE CASE. IN THAT CAS E THERE WERE MANY DOCUMENTS FOUND DURING THE SURVEY PROCEEDINGS WHICH WERE INCRIMINATING IN NATURE. THEREAFTER A SPECIFIC QUERY WAS RAISED BY THE AO DURING ASSESSMENT PROCEEDINGS WITH RESPECT TO SUCH ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 14 INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SURVE Y. THUS, THE ASSESSEE IN RESPONSE TO SUCH SPECIFIC QUERY SURRENDERED INCOME OF RS. 40.74 LACS. HOWEVER, IN THE PRESENT CASE THERE WAS NO ANY INCRIMINATING DOCUMENTS DISCOVERED DURING THE COURSE OF SURVEY AT THE PREMISES OF THE ASSESSEE . SIMILARLY, THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT ADMITTED AS IT IS BY THE AO . ACCORDINGLY, WE CONCLUDE THAT THE PRINCIPLES LAID DOWN BY THE HON BLE APEX COURT IN THE CASE MAK DATA (SUPRA) ARE NOT APPLICABLE ON THE CASE IN HAND . HENCE, THE PENALTY IN THE INSTANT CASE CANNOT BE ATTRACTED UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT IN THE PRESENT FACTS AND CIRCUMSTANCES. 9.12 AS THE ASSESSEE SUCCEEDS IN THE APPEAL FILED BY HIM, WE DO NOT F IND ANY REASON TO ADJUDICATE THE OTHER CONTENTIONS RAISED BY THE LEARNED AR FOR THE ASSESSEE I.E. CHALLENGING THE VALIDITY OF THE NOTICE ISSUED UNDER SECTION UNDER SECTI ON 274 READ WITH SECTION 271(1)(C) OF THE ACT THAT THERE WAS NO SPECIFIC CHARGE MENTION ED THEREIN. THUS THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 9.13 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 10. COMING T O THE OTHER APPEAL S OF THE ASSESSEE BEARING ITA NO S . 1853 & 1061/AHD/2016 FOR A.YS. 2010 - 11 & 2011 - 12. 11. THE ISSUE RAISED BY THE ASSESSEE IN THESE APPEALS IS IDENTICAL TO THE ISSUE RAIS ED IN ITA NO. 563/AHD/2016 FOR A.Y. 2009 - 10 WHICH WE HAVE DECIDED IN FAVOUR OF THE ASSESSEE VID E PARAGRAPH NUMBER 9 OF THIS ORDER. FOR THE DETAILED DISCUSSION, PLEASE REFER THE RELEVANT PARAGRAPH. RESPECTFULLY FOLLOWING THE SAME, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 12. COMING TO THE FOLLOWING OTHER APPEALS OF THE DIFFERENT ASSESSEE ITA NO.563/AHD/ 2016 & 11 OTHER APPEALS A.Y. 2009 - 10 15 SR.NO. ITA NO. ASSESSM ENT YEAR NAME OF THE ASSESSEE 1 - 3 601 - 602/AHD/2016 & 1042/AHD/2017 2009 - 10, 2011 - 12 & 2010 - 11 SHRI TANMAY SURENDRABHAI PATEL 4 - 6 1043/AHD/2017 152/AHD/2018 & 153/AHD/2018 2010 - 11, 2009 - 10 & 2011 - 12 SHRI AMISH K. PATEL 7 - 9 1046 - 1047/AHD/2017 & 1243/AHD/2018 2009 - 10 TO 2010 - 11 & 2011 - 12 SMT.SUDHABEN N. PATEL 13. THE ISSUE RAISED BY THE DIFFERENT ASSESSEE IN THESE APPEALS IS IDENTICAL TO THE ISSUE RAIS ED IN ITA NO. 563/AHD/2016 FOR A.Y. 2009 - 10 WHICH WE HAVE DECIDED IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NUMBER 9 OF THIS ORDER. FOR THE DETAILED DISCUSSION, PLEASE REFER THE RELEVANT PARAGRAPH. RESPECTFULLY FOLLOWING THE SAME, THE GROUND OF APPEAL S OF THE ASSESSEE IS ALLOWED. 14. IN THE COMBINED RE SULTS, THE APPEALS FILED BY THE DIFFERENT AS SESSEE ARE PARTLY ALLOWED. O RDER PRONOUNCED IN THE COURT ON 19 / 0 8 / 20 20 AT AHMEDABAD. - SD - - SD - (RAJPAL YADAV ) (WASEEM AHMED ) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 19 / 08 /2020 MANISH