The Dy. Commissioner of Income-tax, Jammu V. Sh. Chander Shekhar, Jammu

ITA 572/ASR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63430 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 07-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Bonafide belief; Question of law; Cost of acquisition; Tax effect; Revised return
• Section: 142(1); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.571(ASR)/2011 ASSESSMENT YEAR:2007-08 PAN :ADAPK8998L THE INCOME TAX OFFICER, VS. SH. ASHOK KUMAR WARD 2(1), JAMMU. S/O LATE SH. GANESH DASS, JAMMU . (APPELLANT) (RESPONDENT) I.T.A. NO.572(ASR)/2011 ASSESSMENT YEAR:2007-08 PAN :AFMPS1160A THE D.C.I.T. VS. SH. CHANDER SHEKHAR, CIR.II, JAMMU. S/O LATE SH. GANESH DASS, JAMMU. APPELLANT BY:SH. TARSEM LAL, DR RESPONDENTS BY:SH. P.N. ARORA, ADV. DATE OF HEARING: 25/07/2012 DATE OF PRONOUNCEMENT:06/08/2012 ORDER PER BENCH ; THESE TWO APPEALS OF DIFFERENT ASSESSEES ARISE FR OM TWO DIFFERENT ORDERS OF THE CIT(A), JAMMU, EACH DATED 28.09.2011 FOR THE ASSESSMENT YEAR 2007-08. SINCE THE ISSUES INVOLVED IN BOTH THE APPEARS ARE IDENTICAL, ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 2 THEREFORE, BOTH THE APPEALS ARE BEING DECIDED BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST OF ALL, WE TAKE UP APPEAL OF THE ASSESSEE SH. ASHOK KUMAR, IN ITA NO.571(ASR)/2011 FOR THE ASSESSMENT YEAR 2007-0 8 AND OUR DECISION IN THE SAID APPEAL SHALL BE APPLICABLE IN THE CASE OF SH. CHANDER SHEKHAR, IN ITA NO.572(ASR)/2011 BEING THE IDENTICAL ISSUE MENT IONED HEREINABOVE. 3. THE ASSESSEE, SH. ASHOK KUMAR, IN ITA NO.571(ASR )/2011 HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER T HE LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN THE ORIGINAL RETURN WAS FILED BE YOND THE DUE DATE AS PROVIDED U/S 139(1) OF THE INCOME-TAX A CT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN FOR THE PURPOSE OF CALCULATION O F PENALTIES, THE DIFFERENCE BETWEEN THE TAX ON THE INCOME SHOWN IN THE FIRST RETURNS AND THE TAX ON THE INCOMES ASSESSED IS TAKE N AS THE AMOUNT OF TAX THAT WOULD HAVE BEEN AVOIDED G.C. AGARWAL VS. CIT (1990) 186 ITR 571 (SUPREME COURT). 3. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN THE ASSESSEE FAILED TO PERFORM A STATUTORY OBLIGATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE CASE LAWS CI TED IN THE ORDER CIT VS. WARSAR HUSSAIN (1988) 171 ITR 405 ( (PATNA) & ADDL. CIT VS. SMT. CHANDRAKANTHA & ANR. (1992) 20 5 ITR ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 3 607 (MP), WHEREIN IT WAS HELD THAT AN ADDITION MADE ON ESTIMATE BASIS IS AS LEGAL AS ANY OTHER ADDITION. 5. EVEN THOUGH THE TAX EFFECT INVOLVED IN THIS CASE IS BELOW RS. 3 LACS THE APPEAL IS FILED IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT CENTRAL III VS. S URYA HERBAL LTD. VIDE CC NO.13694/2011 DATED 29.08.2011 IN WHIC H THE HONBLE SUPREME COURT HAD HELD THAT THE CIRCULAR D ATED 09.02.2011 SHOULD NOT BE APPLIED IPSO FACTO PARTICU LARLY WHEN THE MATTER HAS A CASCADING EFFECT. THERE ARE CASES UNDER THE INCOME TAX ACT, 1961 IN WHICH COMMON PRINCIPLE MAY BE INVOLVED IN SUBSEQUENT GROUP OF MATTERS OR LARGE NU MBER OF MATTERS. 4. THE ASSESSEE, SH. CHANDER SKHEKHAR, IN ITA NO.57 2(ASR)/2011 HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER T HE LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN THE ORIGINAL RETURN WAS FILED BE YOND THE DUE DATE AS PROVIDED U/S 139(1) OF THE INCOME-TAX A CT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN FOR THE PURPOSE OF CALCULATION O F PENALTIES, THE DIFFERENCE BETWEEN THE TAX ON THE INCOME SHOWN IN THE FIRST RETURNS AND THE TAX ON THE INCOMES ASSESSED IS TAKE N AS THE AMOUNT OF TAX THAT WOULD HAVE BEEN AVOIDED G.C. AGARWAL VS. CIT (1990) 186 ITR 571 (SUPREME COURT). 3. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHEN THE ASSESSEE FAILED TO PERFORM A STATUTORY OBLIGATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES WHETHER TH E LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 4 TAX ACT, 1961 WITHOUT CONSIDERING THE CASE LAWS CI TED IN THE ORDER CIT VS. WARSAR HUSSAIN (1988) 171 ITR 405 ( (PATNA) & ADDL. CIT VS. SMT. CHANDRAKANTHA & ANR. (1992) 20 5 ITR 607 (MP), WHEREIN IT WAS HELD THAT AN ADDITION MADE ON ESTIMATE BASIS IS AS LEGAL AS ANY OTHER ADDITION. 5. THE BRIEF FACTS OF THE CASE IN ITA NO.571(ASR)/2 011, AS ARISE FROM THE ORDER OF THE LD. CIT(A) ARE REPRODUCED HEREUNDER FO R THE SAKE OF CLARITY: BRIEF FACTS ARE THAT A RETURN OF INCOME WAS FILED SHOWING AN INCOME OF 15,56,220/- ON 27.03.2008 BEYOND THE DUE DATE U/ S 139(1) OF I.T. ACT THIS RETURN WAS SUBSEQUENTLY REVISED ON 31.03.2 008 SHOWING THE INCOME OF RS.24,60,140/-,. THE A.O. DURING THE ASSE SSMENT MADE AN ADDITION DISALLOWING 25% OF THE LAND DEVELOPMENT CH ARGES BY HOLDING AS UNDER AND INITIATED PENALTY U/S 271(1)(C) OF THE I.T. ACT. THE ASSESSEE DURING THE YEAR HAS SOLD 19.5 KANALS O F LAND AT HAUARI BAGI, JAMMU FOR TOTAL CONSIDERATION OF 41,45 ,000/-. IN ORDER TO MAKE THE SALE, OF THE LAND, THE ASSESSEE H AS CLAIMED DEVELOPMENT CHARGES OF RS.10,72,500/-. THE DEVELOPM ENT HAS BEEN SHOWN AS CARRIED OUT DURING THE FINANCIAL YEAR 2006-07. THIS LAND WAS PURCHASED IN 1986. AFTER, CLAIMING IN DEXED COST OF ACQUISITION AT RS.13,58,749/- THE ASSESSEE HAS SHOWN THE BALANCE AMOUNT OF RS.17,13,751/- AS LONG TERM CAPIT AL GAIN FROM THE SALE OF THE ABOVE. FURTHER THE DETAILS WEE OBTAINED FROM THE ASSESSEE REGARDING THE NATURE OF DEVELOPME NT CHARGES. IT WAS EXPLAINED BY THE ASSESSEE THAT THE LAND IN R EFERENCE WAS NOT A SALEABALE LAND AND THERE WERE DEEP KHADS (TRE NCH) IN THE SAID LAND. IN ORDER TO MAKE IT SALEABLE, IT WAS FIL LED WITH SOIL AND THE ASSESSEE HAS INCURRED THE EXPENDITURE IN TH E FORM OF SAN, MITI STONE AND LABOUR. IN ORDER TO VERIFY THE CLAIM OF THE ASSESSEE ON THIS ACCOUNT, THE A.R. WAS REQUIRED TO PRODUCE NECESSARY DOCUMENTARY EVIDENCES IN RESPECT OF THE E XPENDITURE INCURRED FOR RS.10,72,500/- ON ACCOUNT OF DEVELOPME NT CHARGES. THIS FACT WAS ASCERTAINED THROUGH THE FIELD ENQUIRI ES ALSO. THE A.R. PRODUCED THE SAME ON 02.12.2009. ON THE EXAMIN ATION OF THE SAME, IT WAS NOTICED THAT THE EVIDENCES WERE IN THE FORM OF ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 5 LABOUR EXPENSES, PURCHASE OF SOIL/MITI/STONES THROU GH TRACTORS AND MOSTLY, THE PAYMENTS HAVE BEEN MADE IN CASH. IN SOME OF THE CASES, THE DETAILS PRODUCED IN THE FORM OF VOUC HERS WERE NOT VERIFIABLE. THE EXTENT OF SUCH NON VERIFIABLE EXPEN SES INCURRED ON ACCOUNT OF DEVELOPMENT CHARGES HAS BEEN ESTIMATE D @ 30% OF THE TOTAL COST CLAIMED. ACCORDINGLY, THE CLAIM O F THE ASSESSEE ON ACCOUNT OF DEVELOPMENT COST FOR THE LAND SOLD IS DISALLOWED FOR RS.3,21,750/-. THE LONG TERM CAPITAL GAIN IS, T HEREFORE, WORKED OUT AT RS.20,35,501/- ON ACOCUNT OF SALE OF LONG TERM CAPITAL GAIN ON THE SALE OF LAND AT HUZARI BAGH, JA MMU. IN VIEW OF THIS FACTS, AN ADDITION OF RS.3,50,625/- IS MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF LONG TERM CAPI TAL GAIN ON THE SALE OF LAND AT JAMMU. IN VIEW OF THESE FACTS, THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME ON THIS ACCOUNT AND THEREFORE, PENALTY PROCEEDINGS U/S 271( 1)(C) OF THE INCOME-TAX ACT, 1961 ARE INITIATED ON THIS ISSUE. DURING THE PENALTY PROCEEDINGS, THE ASSESSEE REPLIE D TO THE SHOW CAUSE NOTICE ISSUED AS UNDER: I) THE ASSESSEE HAS NOT CONCEALED THE PARTICULARS O F HIS INCOME NOR FILED INACCURATE PARTICULARS OF HIS INCO ME AND UNDER THE FACTS & CIRCUMSTANCES OF THE CASE THE PROVISION S OF SECTION 271(1)(C) ARE NOT APPLICABLE IN THE CASE OF ASSESSE E. II) THE MANAGER OF THE ASSESSEE WHO COMPILED THE SA LE OF LAND FIGURES REFLECTED IN THE ORIGINAL RETURN BONAF IDE BELIEVED. A) THAT SINCE NO STAMP PAPERS WERE ATTACHED WITH THE S ALE DEED MADE TO THE MASS HOUSE BUILDING CO-OPERATIVE LTD. BAHU PLAZA, JAMMU FOR RS.16 LAKHS, THE TRANSA CTION WAS NOT STAMP PAPERS OR REGISTRATION CHARGES WERE REQUIRED IN THE CASE OF COOPERATIVE SOCIETY. B) THE SALE DEED OF FARIDABAD LAND AT RS.8,50,000/- WE RE NOT RECEIVED/AVAILABLE AT THE TIME OF FILLING OF OR IGINAL RETURN ON 25.03.2008 AND HENCE COULD NOT BE INCLUDE D. HOWEVER, AS SOON AS THE MISTAKES CAME TO THE NOTICE OF THE ASSESSEE, THE RETURN WAS REVISED ON 31.03.2008 AND TAX PAID IN ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 6 VIEW OF THE ABOVE, THE INTENTION AND BONAFIDE OF TH E ASSESSEE CAN NOT DOUBTED. III) YOUR KIND ATTENTION IS INVITED TO THE FOLLOWIN G JUDICIAL DECISION: A) CIT VS. S.S. KARUPPASAMY & SONS 254 ITR (2002) 591 _ MADRAS HIGH COURT: PENALTY CONCEALMENT IF INCOME ASSESSEE FILING R EVISED RETURN, DISCLOSING ADDITION OF INCOME APPELLATE T RIBUNAL FINDING THAT ASSESSEE WAS BONAFIDE AND MERE FINDING OF REVISED RETURN DID NOT WARRANT INFERENCE THAT ASSESSEE HAD DELIBERATELY CONCEALED INCOME HIGH COURT APPEAL NO QUESTION OF LAW ARISES INCOME TAX ACT, 1961 S.S.260A, 271(1)(C) EXPLN 1 C) G.L. DIDWANIA VS. ITO 224 ITR (1997) 687 SUPREME COURT MERE OMISSION FROM RETURN OF AN ITEM OF RECEIPT AM OUNTS NEITHER TO CONCEALMENT NOR TO DELIBERATED FURNISHIN G OF INACCURATE PARTICULARS OF INCOME, UNLESS AND UNTIL THERE IS SOME EVIDENCE TO SHOW THAT THE OMISSION WAS ATTRIBUTABLE TO AN INTENTION OR DESIRED ON THE PART OF THE ASSESSEE TO HIDE OR CONCEAL THE INCOME SO AS TO AVOID IMPOSITION OF TAX THEREON. IN VIEW OF ABOVE JUDICIAL DECISION, THERE IS NO CAS E FOR INVOKING THE PROVISIONS OF SECTION 271(1)(C) AS THE ASSESSEE HIMSELF DISCLOSED THE ADDITIONAL INCOME WITHOUT DELETION BY THE DEPARTMENT. IV) REGARDING SOME DISALLOWANCE ON DEVELOPMENT CHAR GES, VOUCHERS FOR WHICH WERE PRODUCED BY THE ASSESSEE, P ARTIAL DISALLOWANCE OF EXPENSES ON ESTIMATE BASIS CAN NOT ATTRACT PROVISIONS OF SECTION 271(1)(C) AS HELD BY VARIOUS JUDICIAL DECISIONS. A) HARGOPAL SINGH VS. CIT 258 ITR (2002) 85 PUNJAB & HARYANA HIGH COURT B) CIT VS. ROVIL SINGH & CO. 254 ITR (2002) 191 PUNJAB & HARYANA HIGH COURT C) CIT VS. SARAN KHAND SARI SYNDICAL 256 ITR (2002) 216 & 567 ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 7 IN ALL THESE JUDGMENTS IT HAS BEEN HELD THAT ASSESS MENT FRAMED ON ESTIMATED CANNOT ATTRACT PROVISIONS OF SECTION 2 71(1)(C). KEEPING IN VIEW THE FACTS & CIRCUMSTANCES AND THE F ACTS THAT ASSESSEE HIMSELF DISCLOSED THE SALE OF LAND NO TECH NICAL VIEW BE TAKEN AND PROCEEDINGS MAY BE DROPPED. THE AO IN THE PENALTY ORDER HAS DISCUSSED THAT SINC E THE ORIGINAL RETURN WAS BEYOND TIME, THE SUBSEQUENT RETURN COULD NOT BE TREATED AS REVISED RETURN. FURTHER, THOUGH HE ACCEPTS THAT THE ADDITION WAS MADE ON ESTIMATE BASIS YET IN VIEW OF CERTAIN CASE LAWS, AS CITED BY HIM IN THE ORDER, HAS LEVIED THE IMPUGNED PENALTY ON THE A MOUNT OF ADDITIONAL INCOME DISCLOSED IN THE REVISED RETURN P LUS THE ADDITIONS MADE. 6. THE LD. CIT(A),VIDE PARA 4 OF HIS ORDER OBSERVED THAT THE ORIGINAL RETURN WAS FILED ON 27.03.2008 AND THE REVISED RETU RN WAS FILED ON 31.03.2008, BOTH WERE FILED VOLUNTARILY BY ASSESSE E AND NOT AFTER ANY DETECTION BY THE INCOME TAX DEPARTMENT, THOUGH THE ORIGINAL RETURN WAS FILED BEYOND THE TIME AS STIPULATED U/S 139(1) OF T HE I.T. ACT. IN VIEW OF THIS, LEVY OF PENALTY ON THE AMOUNT OF DIFFERENCE AS TO WHAT INCOME SHOWN IN THE ORIGINAL RETURN AND THE REVISED RETURN IS NOT LEVI ABLE IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF G.L. DI DWANIA VS. ITO 224 ITR 687 AND ACCORDINGLY THE LD. CIT(A) DELETED THE ADDI TION SO MADE. 7. AS REGARDS THE ADDITION MADE ON ACCOUNT OF DISAL LOWANCE OF DEVELOPMENT CHARGES @ 30%, THE REASON FOR DISALLOW ANCE BY THE AO WAS THAT THE DETAILS WERE THOUGH PRODUCED BEFORE HIM BU T WERE NOT VERIFIABLE, ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 8 HENCE ESTIMATED ADDITION @ 30% WAS MADE. NO SPECIFI C INSTANCE HAS BEEN POINTED OUT BY THE AO TO SHOW WITH SPECIFIC VOUCHER S, WHICH IS NOT SUFFICIENT TO SHOW CONCEALMENT OR FURNISHING OF INA CCURATE PARTICULARS SINCE THIS IS A CASE OF PURE ESTIMATION ON WHICH THE PENA LTY UNDER SECTION 271(1)(C) CANNOT BE SUSTAINED AND THEREFORE, THE LD. CIT(A) V IDE PARAS 4.3 TO 4.5 OF HIS ORDER DELETED THE PENALTY SO LEVIED. 8. THE LD. DCIT(DR), MR. TARSEM LAL, ARGUED THAT T HE ASSESSEE HAS FILED BELATED RETURN AND THEREFORE, THE RETURN UNDE R SECTION 139(5) CANNOT BE REVISED. BY FILING A REVISED RETURN, THE ASSESSEE H AD ADMITTED THE CONCEALMENT AND THEREFORE, THE A.O. HAS RIGHTLY LEV IED THE PENALTY. SINCE NO EVIDENCE WITH REGARD TO DEVELOPMENT EXPENSES HAVE B EEN PRODUCED, THEREFORE, THE PENALTY HAS RIGHTLY BEEN LEVIED. MR. TARSEM LAL, LD. DCIT(DR) PRAYED TO REVERSE THE ORDER OF THE LD. CIT(A) AND CONFIRM THE ORDER OF THE A.O. HE RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW TO SUPPORT HIS ARGUMENTS, AS UNDER: I) KUMAR JAGDISH CHANDRA SINHA (DEAD) THROUGH LRS E TC. VS. CIT (1996) 220 ITR 67 (SC) II) CIT VS. ONKAR SARAN & SONS (1992) 195 ITR 1 (SC) III) ITO VS. R.K. BROTHERS (2003) 87 ITD 649 (ALL) ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 9 IV) UNION OF INDIA & ORS. VS. DHARMENDRA TEXTILE PROCES SORS & ORS. (2008) 306 ITR 277 (SC) V) SMT. KUSUM JAISWAL VS. CIT (2005) 273 ITR 369 (ALL) 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) AND THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, MR. P.N. ARORA, ADVOC ATE THAT THOUGH THE ORIGINAL RETURN HAS NOT BEEN FILED UNDER SECTION 13 9(1) OF THE ACT OR IN PURSUANCE OF NOTICE UNDER SECTION 142(1) OF THE ACT , BUT THE ASSESSEE ON ITS OWN HAD DISCOVERED THE OMISSION OR WRONG STATEMENT AND HAS REVISED THE RETURN WITHIN JUST FOUR DAYS OF FILING OF THE ORIGI NAL RETURN, WHICH WAS A BELATED RETURN, IS NOT UNDER DISPUTE. THIS ACT OF T HE ASSESSEE IS DELIBERATE AND THE ASSESSEE WAS HONEST IN REVISING THE RETURN AND STATING THE FACTS BEFORE THE INCOME TAX DEPARTMENT AND THAT WAS POSSIBLE ONLY B Y FILING A REVISED RETURN OF INCOME. THE ASSESSEE HAD FILED THE ORIGINAL RETU RN UNDER BONAFIDE BELIEF AND ON FINDING OMISSION/WRONG STATEMENT, THE ASSESS EE REVISED THE RETURN FOR THE REASONS MENTIONED IN THE REVISED RETURN AND EXP LANATION SUBMITTED BEFORE THE AUTHORITIES BELOW. AS PER DECISION OF THE HONB LE SUPREME COURT, IN THE CASE OF G.L. DIDWANIA VS. ITO REPORTED IN 224 ITR 6 87, WHERE IT HAS BEEN HELD AS UNDER: ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 10 AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI-CRIMINAL PROCEE DING AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBL IGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CO NDUCT CONTUMACIOUS OR DISHONEST, OR CONSCIOUS DISREGARD OF OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORI TY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVA NT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHOR ITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE P ROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF T HAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE S TATUTE. 9.1. THE RATIO LAID DOWN BY THE HONBLE SUPREME COU RT, IN THE CASE OF G.L. DIDWANIA VS. ITO (SUPRA), IS SQUARELY APPLICAB LE TO THE FACTS OF THE PRESENT CASE. IN THE PRESENT CASE, THE ASSESSEE ON FINDING OMISSION OR WRONG STATEMENT HAD ACTED DELIBERATELY AND HAS COME OUT W ITH HONESTY TO REVISE THE RETURN WITHIN JUST FOUR DAYS OF FILING THE BELATED RETURN. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAD FILED THE BELATED RETURN AND AS PER SECTION 139(5), THE REVISED RETURN CANNOT BE FILED IN SUCH A CASE. THERE IS TECHNICAL BREACH OF THE PROVISIONS OF THE ACT. BUT AT THE SAM E IT FLOWS FROM A BONAFIDE BELIEF OF THE ASSESSEE, WHICH HAS BEEN CORRECTED BY REVISING RETURN IMMEDIATELY AFTER FOUR DAYS OF FILING THE ORIGINAL RETURN. THEREFORE, RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT, IN THE CASE OF G.L. ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 11 DIDWANIA VS. ITO (SUPRA), WE FIND NO INFIRMITY IN T HE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY CANCELLED THE PENALTY SO LE VIED 9.2. AS REGARDS THE DECISIONS RELIED UPON BY THE LD . DCIT(DR) MR. TARSEM LAL, NONE OF THE CASE IS APPLICABLE IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE AND ON BONAFIDE BELIEF. T HEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN THIS RE GARD. 9.3. AS REGARDS THE LEVY OF PENALTY ON ACCOUNT OF A DDITION OF DEVELOPMENT CHARGES, WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE AO HAS NOT POINTED OUT ANY SPECIFIC INSTANCE OF THE VOUCHERS A ND THEREFORE, DISALLOWANCE ON ESTIMATED BASIS CANNOT BE SUFFICIENT TO PROVE TH E CONCEALMENT OF FURNISHING INACCURATE PARTICULARS TO COME WITHIN T HE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. THE LD. CIT(A) HAS RIGHTLY DI STINGUISHED THE CASES RELIED UPON BY THE A.O. IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). THUS, ALL THE GROUNDS OF THE REVENUE IN ITA NO.571(ASR)/2011 ARE DISMISSED. 10. AS REGARDS THE APPEAL OF THE REVENUE IN ITA NO. 572(ASR)/2011 IN THE CASE OF SH. CHANDER SHEKHAR, THE FACTS ARE IDENTICA L EXCEPT RETURN WAS REVISED WITHIN SIX DAYS OF FILING THE ORIGINAL RETU RN AND THE AO MADE DISALLOWANCE OF 25% IN PLACE OF 30% IN THE CASE OF SH. ASHOK KUMAR, MENTIONED HEREINABOVE. SINCE THE FACTS IN THE PRESE NT CASE ARE IDENTICAL TO ITA NO.571(ASR)/2011 ITA NO.572(ASR)/2011 12 THE FACTS IN THE CASE OF SH. ASHOK KUMAR, IN ITA NO .571(ASR)/2011, WHERE THE REVENUES APPEAL HAS BEEN DISMISSED, FOLLOWING THE SAME BEING ON IDENTICAL FACTS, WE DISMISS ALL THE GROUNDS OF THE REVENUE. THUS, THE GROUNDS OF BOTH THE APPEALS OF THE REVENUE ARE DISM ISSED. 11. IN THE RESULT, THE APPEALS FILED BY THE REVENUE IN ITA NO. 571 (ASR)/2011 & 572 (ASR)/2011 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH AUGUST, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 6TH AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES. I) SH. ASHOK KUMAR II) SH. CHANDER S HEKHAR, JAMMU. 2. THE ITO WARD 2(1)/DCIT CIR.II, JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.