Satnam Overseas Exports, New Delhi V. ACIT, New Delhi

ITA 5722/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4515 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 28-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: SANAT KAPOOR S; SSH SALIL KAPOOR
• Keywords: Depreciation; Principle of natural justice; Initiation of penalty proceedings; Tangible material; Wrong claim; Bonafide mistake
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G , NEW DELHI BEFORE SH. I.C. SUDHIR , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5722 /DE L/ 2013 ASSESSMENT YEAR : 2009 - 10 M/S. SATNAM OVERSEAS EXPORTS, 201, VIPPS CENTER, 2 - COMMUNITY CENTER, MASJID MOTH, G.K. II, NEW DELHI VS. ACIT, CENTRAL CIRCLE - 22, NEW DELHI PAN : AACFS5863P (APPELLANT) (RESPONDENT) APPELLANT BY S/SH. SALIL KAPOOR & SANAT KAPOOR, ADVOCATES RESPONDENT BY SH. KAUSHLENDRA TIWARI, SR.DR DATE OF HEARING 10.08.2017 DATE OF PRONOUNCEMENT 14.09.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 10/09/2013 OF THE COMMISSIONER OF INCOME - TAX ( APPEALS) - III, NEW DELHI [IN SHORT THE CIT - (A) ] IN RELATION TO PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) FOR ASSESSMENT YEAR 2009 - 10 RAISING FOLLOWING GROUNDS: 1. T HAT THE NOTICE ISSUED U/S 271(1) (C) AND IMPUGNED ORDER ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THAT THE AO HAS FAILED TO APPRECIATE THAT NO SATISFACTION WAS RECORDED BEFORE INITIATION OF PENALTY PROCEEDINGS U/S 271 (1) (C) AND AS SUCH THE NOTICE ISSUED U/S 271 (1) (C) AND THE PENALTY ORDER 2 ITA NO.5722/DEL/2013 PASSED UNDER SAID SECTION IS WITHOUT JURISDICTION AND IS LIABLE TO BE QUASHED. THE CIT(A) ERRED IN UPHOLDING THE SAME. 3. THAT THE AO HAS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN NOT SPECIFYING THE CHARGE AGAINST THE ASSESSEE FOR WHICH THE PENALTY HAS BEEN LEVIED AGAINST THE ASSESS EE. THE CIT(A) ERRED IN UPHOLDING THE SAME. 4. THAT IN VIEW OF THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, THE AO HAS ERRED ON FACTS AND IN LAW IN IMPOSING THE PENALTY OF RS 4,85,597/ - U/S 271(1) (C) VIDE ORDER DT . 25.06.2012. THE CIT(A) ERRED IN UPHO LDING THE SAME. 5. THAT THE AO HAS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN LEVYING PENALTY ON THE GROUNDS THAT THERE WAS A DISALLOWANCE OF DEPRECIATION AND MAINTENANCE CHARGES CLAIMED BY THE ASSESSEE IN ITS P&L A/C. THE CIT( A) ERRED IN UPHOLDING THE SAME. 6. THAT THE IMPUGNED ORDER IS AGAINST THE WELL SETTLED PRINCIPLES OF LAW AS LAID DOWN BY VARIOUS JUDICIAL PRONOUNCEMENTS. 7. THAT THE AO HAS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE ERRED IN LAW AND ON FACTS AND HAS FAILED TO APPRECIATE THAT THE EXPLANATION FILED BY THE ASSESSEE IS BONAFIDE. THE CIT(A) ERRED IN UPHOLDING THE SAME. 8. THE INFORMATION FILED AND AVAILABLE ON RECORD HAS NOT BEEN PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED. THE PENALTY LEVIED BY AS SESSING OFFICER IS UNJUST, ILLEGAL, ARBITRARY AND IS AGAINST THE FACTS OF THE CASE AND ARE NOT JUSTIFIED BY ANY MATERIAL ON RECORD. 9. THAT THE SUBMISSIONS FILED HAVE NOT BEEN CONSIDERED JUDICIOUSLY. THE IMPUGNED ORDER IS PASSED WITHOUT ANY APPLICATION OF JUDICIOUS MIND AND WITHOUT CONSIDERING THE FACT THAT AS PER VARIOUS JUDICIAL DECISIONS, NO PENALTY SHOULD BE LEVIED IN THIS CASE. 10. THAT THE VARIOUS OBSERVATIONS AND ALLEGATIONS MADE AGAINST THE ASSESSEE IN THE IMPUGNED ORDER ARE ILLEGAL, BAD IN LAW AN D CONTRARY TO FACTS ON RECORD . 11. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AMEND, DELETE, RESCIND, FORGO OR WITHDRAW ANY OF THE GROUNDS OF APPEAL AS MAY BE 3 ITA NO.5722/DEL/2013 CONSIDERED NECESSARY EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE GROUNDS OF APPEAL BY TH E HON BLE ITAT PROCEEDINGS IN THE INTEREST OF NATURAL JUSTICE. 12. THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. B RIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 30/ 09/2009 DECLARING INCOME OF RS.4,47, 439/ - , WHICH WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 06/12/2011 . IN THE ASSESSMENT COMPLETED , THE ASSESSING OFFICER HELD THAT RENTAL INCOME FROM HOUSE PROPERTIES WAS DECLARED BY THE ASSESSEE UNDER THE HEAD I NCOME FROM HOUSE PROPERTY AND ALREADY CLAIMED BENEFIT OF DEDUCTION UNDER SECTION 24(1) OF THE ACT , THEREFORE, THE ASSESSEE WAS NOT ELIGIBLE SEPARATELY FOR DEPRECIATION ON SAID HOUSE PROPERTIES AMOUNTING TO RS.13,39, 590/ - AND REPAIR AND MAINTENANCE EXPEN SES OF RS.2,31, 917 / - CLAIMED IN THE PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND ISSUED NOTICE UNDER SECTI ON 274 READ WITH SECTION 271(1)(C) OF THE ACT. THE ASSESSEE DID NOT CONTE ST THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER ISSUED A LETTER DATED 01/06/2012 TO THE ASSESSEE AS WHY T HE PENALTY UNDER SECTION 271(1)(C) OF THE ACT SHOULD NOT BE LEVIED. THE ASSESSEE SUBMITTED THAT NO SUCH MISTAKE WAS POINTED OUT BY THE A UDITORS IN THE AUDIT REPORT AND THE INCOME - TAX RETURN WAS PREPARED BY THE ACCOUNTANT AND HE COMMITTED THE INADVERTENT MISTAKE OF CLAIMING DEPRECIATION AND REPAIR AND MAINTENANCE EXPENSES IN RESPECT OF THE PROPERT IES GIVEN ON RENT. ACCORDING TO THE AS SESSEE , IT WAS A BONAFIDE MISTAKE OF THE ACCOUNTANT. THE ARGUMENT OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER INTER ALIA ON FOLLOWING GROUNDS. 4 ITA NO.5722/DEL/2013 - THAT THE RETURN WAS SIGNED BY THE ASSESSEE AND NO PERSON WOULD SIGN THE RETURN WITHOUT READING AND UNDERSTANDING. - THAT THE MISTAKE COMMITTED BY THE ACCOUNTANT WAS A SELF - SERVING STORY AS NO SUCH EXPLANATION WAS GIVEN DURING ASSESSMENT PROCEEDING 2.1 T HE ASSES SING OFFICER HELD THAT THE ASSESSEE FAILED TO OFFER ANY BONA FIDE EXPLANATION AND , THEREFORE , HE LEVIED PENALTY AMOUNTING TO RS.4,85, 597/ - EQUIVALENT TO 100 % OF THE TAX SOUGHT TO BE EVADED. 2.2 BEFORE THE LD. CIT - (A) THE ASSESSEE RAISED VARIOUS GROUNDS AN D FILED DETAILED SUBMISSIONS. THE LD. CIT - (A) REJECTED THE SUBMISSION OF THE ASSESSEE RELYING ON THE DECISIONS OF THE HON BLE DELHI HIGH COURT. THE RELEVANT FINDING OF THE LD. CIT - (A) ON THE ISSUE IN DISPUTE IS REPRODUCED AS UNDER: 4. I HAVE GONE THROUGH THE APPELLANT'S SUBMISSION, FACTS AND EVIDENCES AVAILABLE ON RECORDS AND HAVE ALSO PERUSED THE PENALTY ORDER AND CONSIDERED THE DECISION RELIED UPON BY THE APPELLANT AND AO. 4.1 WITH REGARD TO THE APPELLANT'S CONTENTION THAT AO'S ORDER IS NOT VALID ON THE GROUND AS IT DOES NOT MENTION WHETHER THE PENALTY LEVIED WAS ON ACCOUNT OF CONCEALMENT OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULAR, IT IS STATED THAT THIS OBJECTION OF THE APPELLANT IS HYPER TECHNICAL AND IT TANTAMOUNT TO HAIR SPLITTING AND FURTHER IT DON'T SHOW AS TO WHAT PREJUDICE IS CAUSED TO THEM BECAUSE OF AFORESAID ASPECT. FURTHER, IT IS A CARDINAL PRINCIPLE OF TAXATION THAT TECHNICALITIES CANNOT SHAKE THE SUBSTANCE OF THE MATTER, I.E. IN ABSENTAIA OF BONAFIDES ASSESSEE'S AFORESAID PLEA, IN MY VIEW DEVOID OF LEGALLY SUBSTANTIVE MERITS. HON'BLE DELHI HIGH COURT IN THE CASE OF MADHUSHRE GUPTA VS. CIT (317 ITR 107)1 WHILE INTERPRETATION SECTION 271(L)(B) HAS HELD THAT 'IF AO HAS GIVEN HIS MIND IN THE BODY OF ASSESSMENT ORDER WHILE INITIATING THE PENALTY PROCEEDINGS THAN NOTHING ELSE IS REQUIRED. 5 ITA NO.5722/DEL/2013 THUS FROM THE ABOVE, THE APPELLANT OBJECTION IN THIS REGARD DESERVES TO BE JETTISONED. 4.2 THE APPELLANT HAS TAKEN ANOTHER PLEA, THAT IT IS NOT A CASE OF 'FALSE CLAIM' BUT A CASE O F A 'BONAFIDE MISTAKE' AND THAT TOO BECAUSE OF THE FAULT OF THE ACCOUNTANT. IN THE FACT OF THE PRESENT CASE IT IS SEEN THAT THE APPELLANT'S CASE FALLS WITHIN THE PROVISIONS OF SUB - CLAUSE B OF EXPLANATION 1 OF SECTION 271(1)(C), THEREFORE, ONE HAS TO EXAMIN E AS TO 'WHETHER THE APPELLANT IS ABLE TO SHOW THAT THE MISTAKE IN MAKING A WRONG CLAIM HAS BEEN 'BONAFIDE' OR NOT.' 4.3 IT IS PERTINENT TO MENTION HERE APPELLANT IS PART OF ' KOHINOOR GROUP OF INDUSTRIES' WHO ARE LEADERS IN RICE INDUSTRY AND LISTED COMPA NY HAVING TURNOVER OF MORE THAN RS.9000 MILLIONS AND HAVING THE ASSISTANCE OF BATTERY OF LAWYERS, PROFESSIONAL AND CHARTERED ACCOUNTANTS. IT IS IMPOSSIBLE TO BELIEVE THAT THE PARTNERS (WHO ARE DIRECTORS TOO IN LISTED COMPANY) WILL SIGN THE RETURNS OF INCOM E WITHOUT VERIFYING THE BASIC FACTS. IF THE PLEA OF THE APPELLANT, THAT THE AUDITORS HAVE NOT POINTED OUT THE MISTAKE IS ADMITTED, THAN IN THAT EVENT, NO PENALTY UNDER SECTION 271(L)(C) WILL EVER BE LEVIED ON ANYONE, BY SIMPLY SHIFTING THE BURDEN ON A POOR ACCOUNTANT AND FILING HIS AFFIDAVIT (WHO BEING AN EMPLOYEE WILL HAVE NO CHOICE OTHERWISE ALSO) THAT IT WAS BECAUSE OF THE MISTAKE OF THE ACCOUNTANT THAT ANY WRONGFUL CLAIM WAS ALSO MADE. 4.4 IN MY VIEW, THE EXPLANATION GIVEN BY THE APPELLANT IS TOTALLY F ARCICAL, DUBIOUS AND FANCIFUL AND IT IS NOT BACKED BY ANY TANGIBLE MATERIAL OR EVIDENCE SPECIFICALLY WHEN THE 'INCOME FROM HOUSE PROPERTY' HAS NOT BEEN DECLARED FOR THE FIRST TIME IN THE YEAR UNDER CONSIDERATION. HAD IT BEEN DECLARED FOR THE FIRST TIME EVE N THAT ONE CAN ACCEPT THE APPELLANT'S CLAIM THAT IT IS A CASE OF BONAFIDE MISTAKE, BUT THAN IS NOT A CASE HERE? FURTHER, 'BONAFIDES' HAVE TO BE SHOWN AND IT CANNOT BE 'ASSUMED' AS HAS BEEN DONE IN THE PRESENT CASE, SIMPLY BY STATING THAT BECAUSE OF THE MIS TAKE ON THE PART OF THE ACCOUNTANT A PATENTLY WRONG CLAIM OF DEPRECIATION AND EXPENSES ON REPAIRS WAS TAKEN. 4.5 THEREFORE IN MY VIEW, IN THE FACTS OF THE PRESENT CASE, THE PENALTY UNDER SECTION 271(L)(C) FOR CONCEALING THE PARTICULARS AND FOR FURNISHING THE INACCURATE PARTICULARS IS LEVIABLE. IN COMING TO THIS CONCLUSION, I RELY ON THE RECENT DECISION OF DELHI HIGH COURT DATED 29.07.2013 IN THE CASE OF CIT VS. HCIL KALINDEE ARSSPL, WHERE ON SOMEWHAT SIMILAR ISSUE, WHERE THE ASSESSEE TOOK THE PLEA THAT FOR 6 ITA NO.5722/DEL/2013 CLAIMING THE DEDUCTION UNDER SECTION 80IA, THEY REFERRED TO THE CERTIFICATE ISSUED BY A CA, BUT STILL IN THAT CASE THE HON'BLE COURT HELD THAT THE ASSESSEE WAS NOT ABLE TO ESTABLISH THE 'BONAFIDE' OF HIS CLAIM.] 4.6 IT IS NOT OUT OF PLACE TO MENTION HE RE THAT IN THE PRESENT CASE HAD THE APPELLANT'S CASE NOT BEEN TAKEN UP FOR SCRUTINY, THE APPELLANT WOULD HAVE GOT AWAY WITH THE EXCESS CLAIM WHICH WAS PATENTLY WRONG. HENCE, APPELLANT'S PLEA IS NOT ADMISSIBLE THAT IT WAS A 'BONAFIDE MISTAKE OF THE ACCOUNTA NT.' HERE, IT IS PERTINENT TO NOTE THE FOLLOWING OBSERVATION OF THE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS ZOOM COMMUNICATION PVT. LTD. (201C) (327 ITR 510)(DEL) WHERE THE COURT OBSERVED THAT: '. 20. THE COURT CANNOT OVERLOOK THE FACT THAT ONLY A SMALL PERCENTAGE OF THE INCOME TAX RETURNS ARE PICKED UP FOR SCRUTINY. IF THE ASSESSEE MAKES A CLAIM WHICH IS NOT ONLY INCORRECT IN LAW BUT IS ALSO WHOLLY WITHOUT ANY BASIS AND THE EXPLANATION FURNISHED BY HIM FOR MAKING SUCH A CLAIM IS NOT FOUND TO BE BONAFIDE, IT WOULD BE DIFFICULT TO SAY THAT HE WOULD STILL NOT BE LIABLE TO PENALTY UNDER SECTION 271(L)(C) OF THE ACT. IF WE TAKE THE VIEW THAT A CLAIM WHICH IS WHOLLY UNTENABLE IN LAW AND HAS ABSOLUTELY NO FOUNDATION ON WHICH IT COULD BE MADE, THE ASSESSEE WOULD NOT BE LIABLE TO IMPOSITION OF PENALTY, EVEN IF HE WAS NOT ACTING BONAFIDE WHILE MAKING A CLAIM OF THIS NATURE, THAT WOULD GIVE A LICENCE TO UNSCRUPULOUS ASSESSEES TO MAKE WHOLLY UNTENABLE AND UN SUSTAINABLE CLAIMS WITHOUT THERE BEING ANY BASIS FOR MAKING THEM, IN THE HOPE THAT THEIR RETURN WOULD NOT BE PICKED UP FOR SCRUTINY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF ASSESSMENT UNDER SECTION 143(1) OF THE ACT AND EVEN IF THEIR CASE IS SELECTE D FOR SCRUTINY, THEY CAN GET AWAY MERELY BY PAYING THE TAX, WHICH IN ANY CASE, WAS PAYABLE BY THEM. THE CONSEQUENCE WOULD BE THAT THE PERSONS WHO MAKE CLAIMS OF THIS NATURE, ACTUATED BY A MALAFIDE INTENTION TO EVADE TAX OTHERWISE PAYABLE BY THEM WOULD GET AWAY WITHOUT PAYING THE TAX LEGALLY PAYABLE BY THEM, IF THEIR CASES ARE NOT PICKED UP FOR SCRUTINY. THIS WOULD TAKE AWAY THE DETERRENT EFFECT, WHICH THESE PENALTY PROVISIONS IN THE ACT HAVE 7 ITA NO.5722/DEL/2013 4.7 THUS FROM THE ABOVE DISCUSSION, THE APPELLANT'S PLEA THAT BECAUSE OF THE ACCOUNTANTS MISTAKE, THEY CLAIM DEPRECIATION AND REPAIRS EXPENSES OVER AND ABOVE THE DEDUCTION UNDER SECTION 24 DOES NOT APPEARS TO BE 'BONAFIDE' AND ACCORDINGLY, THE PENALTY LEVIED UNDER SECTION 271(L)(C) DESERVES TO BE SUSTAINED. 2 .3 A GGRIEVED WITH THE FINDING OF THE LD. CIT - (A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL , RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. IN THE GROUNDS OF APPEAL RAISED , THE SOLE ISSUE INVOLVED IS LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AMOUNTING TO RS.4,85, 597/ - . 4. BEFORE US , THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THE IMPUGNED PENALTY ORDER, THE ASSESSING OFFICER HAS NOT SPECIFIED THE CHARGES WHETHER THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME OR CONCEALED PA RTICULARS OF INCOME. THE LD. COUNSEL ALSO SUBMITTED THAT IN THE NOTICE UNDER SECTION 274 OF THE ACT ALSO CHARGES WERE NOT SPECIFIED . THE LEARNED COUNSEL FILED A COMPILATION OF CASE LAWS AND SUBMITTED THAT THE PENALTY NEED TO BE CANCELLED RELYING ON THE DEC ISION OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATH C OTTON AND G INNING F ACTORY , 359 ITR 565 (KARNATAKA). HE ALSO PLACED RELIANCE ON THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSA S EMERALD M EADOWS , 73 TAXMANN.COM 241 (KARNATAKA). HE MENTI ONED THAT THE SLP FILED BY THE R EVENUE AGAINST THE SAID DECISION WAS ALSO DISMISSED AS REPORTED IN CIT VS. SSA S EMERALD MEADOWS , 73 TAXMANN.COM 248 (SC). THE LD. COUNSEL ALSO PLACED HIS RELIANCE ON FOL LOWING DECISION OF THE TRIBU NAL: 1 . VIJAY KUMAR ARORA VS. ACIT IN ITA NO. 843/DEL/2014 DATED 05/05/2017; 2 . M/S MG CONTACTORS PRIVATE L IMITED VS. DCIT IN ITA NO. 7034 TO 7038/DEL/2014; 8 ITA NO.5722/DEL/2013 3 . YUM ! RESTAURANTS (I) PRIVATE L IMITED VS. ITO IN ITA NO. 894 TO 896/DEL/2013 5. O N THE OTHER HAND, LD. SR. DR SUBMITTED THAT IN PARA - 2 OF THE IMPUGNED PENALTY ORDER THE ASSESSING OFFICER HAS DULY NARRATED THE SPECIFIC CHARGES OF WRONG CLAIM OF DEPRECIATION AND REPAIR AND MAINTENANCE EXPENSES ON THE PROPERTIES GIVEN ON RENT , DESPITE DE DUCTION UNDER SECTION 24(1) OF THE ACT CLAIMED UNDER THE INCOME FROM HOUSE PROPERTY. THE LD. SR. DR FURTHER SUBMITTED THAT IN THE ASSESSMENT ORDER ALSO THE ASSESSING OFFICER CLEARLY MENTIONED THE SPECIFIC CHARGES. HE FURTHER SUBMITTED THAT BEFORE THE TRIBU NAL, THE ASSESSEE DID NOT FILE ANY COPY OF THE NOTICE UNDER SECTION 274 OF THE ACT, IN SUPPORT OF THE RELIANCE PLACED ON THE DECISION CITED BY THE LD. COUNSEL . ACCORDING TO THE LD. SR. DR , THE LD. CIT - (A) HAS ALREADY CONSIDERED ALL THE PLEAS OF THE ASSESSE E AND REJECTED. HE , ACCORDINGLY , SUBMITTED THAT THE ORDER OF THE LD. CIT - (A) MIGHT BE UPHELD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE DECISION OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATH COTTON AND GINNING F ACTORY (SUPRA), THE HON BLE HIGH COURT HELD THAT NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPECIFICALLY STATES THE GROU NDS MENTIONED IN SECTION 271(1)(C) I.E WHETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PAR TICULARS OF INCOME. IN THE CASE OF SSA S EMERALD MEDOW(SUPRA), THE HON BLE HIGH COURT OF KARNATAKA HAS FOLLOWED THE DEC ISION IN THE CASE OF MANJUNATH COTTON AND GINNING F ACTORY (SUPRA) AND HELD THAT IN ABSENCE OF SPECIFYING THE LIMB OF THE 271(1) (C) OF THE ACT UNDER WHICH PENALTY IS TO BE LEVIED, THE NOTICE UNDER SECTION 274 READ WITH SECTION 271(1) (C) OF THE ACT WAS BAD I N LAW. IN THE DECISIONS OF THE T RIBUNALS CITED BY THE LD. COUNSEL ALSO, THE DECISION OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF M ANJUNATH COTTON AND GINNING F ACTORY (SUPRA) HAS BEEN RELIED. 9 ITA NO.5722/DEL/2013 HOWEVER , WE FIND THAT THE ASSESSEE OR THE LD. COUNSEL HAS NOT FILED BEFORE US THE COPY OF NOTICE UNDER SECTI ON 274 READ WITH SECTION 271(1)(C) OF THE ACT ISSUED IN THE CASE OF THE ASSESSEE. IN AB SENCE OF A COPY OF SUCH A NOTICE, THE DECISIONS RELIED UPON BY THE LD. COUNSEL CANNOT BE APPLIED IN THE CASE OF THE ASSESSEE. WE ALSO NOTE THAT THE ISSUE OF SPECIFYING CHARGES IN THE NOTICE UNDER SECTION 274 READ WITH SECTION 271 (I)(C) OF THE ACT WAS NOT R AISED SPECIFICALLY BEFORE THE LD. CIT - (A) AND HENCE HE HAS NOT ADJUDICATED ON THIS ISSUE. FURTHER , WE FIND THAT IN THE ASSESSMENT ORDER AS WELL AS IN PENALTY ORDER , THE ASSESSING OFFICER HAS CLEARLY SPECIFIED THE CHARGES FOR INITIATING PENALTY U/S 271(1)(C ) OF THE ACT . WE ALSO NOTE THAT THE LD. CIT - (A) FOLLOWING THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF MADHUSHREE GUPTA VS. CIT (317 ITR 107 ), HAS ALREADY REJECTED THE ARGUMENT OF NOT MENTIONING IN THE IMPUGNED PENALTY ORDER AS TO WHETHER THE PENALTY WAS LEVIED ON ACCOUNT OF CONCEALMENT OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS . 7. BEFORE THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THE EXPLANATION THAT THE WRONG CLAIM WAS DUE TO BONAFIDE MISTAKE. THE CLAIM O F B ONAFIDE MISTAKE HAS BEEN REJECTED BOTH BY THE LD. ASSESSING OFFICER AND THE LD. CIT - (A) . WE AGREE WITH THE FINDING OF THE LD. CIT - (A) THAT THE ASSESSEE BEING A PART OF A LARGE INDUSTRY GROUP HAVING THE ASSISTANCE OF LAWYER S, PROFESSIONAL S AND CHARTERED ACCOUNTANTS, CANNOT BE ALLOWED TO SHIFT THE BURDEN ON THE ACCOUNTANT, WHO BEING AN EMPLOYEE OF THE ASSESSEE WAS NOT HAVING ANY CHOICE EXCEPT FILING AFFIDAVIT. THE LD. CIT - (A) HAS ALSO POINTED OUT THAT IT IS NOT THE CASE OF THE ASSESSEE THAT INCOME FROM HO USE PROPERTY WAS DECLARED FOR FIRST - TIME IN THE YEAR UNDER CONSIDERATION. THE LD. COUNSEL HAS FAILED TO REBUT ANY OF THE ABOVE FINDING OF THE LD. CIT - (A) . THE CLAIM OF D E P R E C I A T I O N A N D R E P A I R & M A I N T E N A N C E EXPENSES MADE IN RETURN OF INCOME IS A CLEAR CASE OF FALSE 10 ITA NO.5722/DEL/2013 CLAIM BY THE ASSESSEE AND NO BONAFIDE EXPLANATION HAS BEEN GIVEN BY THE ASSESSEE. 8. IN VIEW OF ABOVE DISCUSSION, WE ARE OF THE OPINION THAT ORDER OF THE LD. CIT - (A) ON THE ISSUE IN DISPUTE IS WELL REASONED AND WE FIND NO INFIRMITY IN THE SAME. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. CIT - (A) ON THE ISSUE IN DISPUTE AND DISMISS THE GROUNDS OF APPEAL. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 4 T H S E P . , 201 7 . S D / - S D / - ( I.C. SUDHIR ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 4 T H S E P T E M B E R , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI