ACIT 19(2), MUMBAI V. RONNI HOSI METHA, MUMBAI

ITA 6740/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3715 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 07-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: S C TIWARI
• Keywords: Capital asset; Question of law; Wrong claim; Onus to prove; Surrender of tenancy right; Revised return; Bonafide mistake
• Section: 143(3); 54F; 133A; 133(6); 131; 68

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.6740 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) THE ACIT 19(2), ROOM NO. 315, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400 012. / V. SHRI RONNIE HOSI MEHTA, 2 ND FLOOR, AARTI APARTMENT, VALLABHBHAI PATEL ROAD, SANTACRUZ (W), MUMBAI 400 054. ./ PAN : AAFPM9310C ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SHRI B.S. BIST, SR. D.R. ASSESSEE BY : SHRI S.C. TIWARI / DATE OF HEARING : 30-05-2016 / DATE OF PRONOUNCEMENT : 03-08-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE REVENUE, BEING ITA NO. 6 740/MUM/2012, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 3 RD AUGUST, 2012 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 30, MUMBAI (H EREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2008-09, THE APPE LLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE PENALTY ORDER D ATED 11 TH MAY,2011 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLE D THE AO) U/S 271(1)(C) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE AC T). ITA 6740/MUM/2012 2 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE BEF ORE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271 (1 )(C) OF THE INCOME TAX ACT AT RS.45,00,000/- AFTER HOLDING THAT J UST BECAUSE ASSESSEE COULD NOT PROVE HIS SUB TENANCY THAT DOES NO T AUTOMATICALLY MEAN THAT THE APPELLANT HAS FURNISHED INACCURATE PARTICU LARS OF INCOME WITHOUT APPRECIATING THE FACTS THAT OFFERING INCOME EITH ER UNDER THE HEAD OF 'INCOME FROM OTHER SOURCES' OR 'CAPITAL GAIN' IN CURS SUBSTANTIAL EFFECT ON ALLOWABILITY OF DEDUCTIONS U/S 54F OF THE IT ACT AND THE RATE OF TAX, THUS THE TREATMENT OF THE INCOME UNDER DIFFERENT HEAD CAN BE INTENTIONAL TO REDUCE THE TAX LIABILITY WH ICH CAN ALSO WELL BE TERMED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT OFFERING INCOME AFTER SELECTION OF RETURN FOR SCRUTINY ESTABLISHES T HE INTENTION TO AVOID THE TAX LIABILITY WHICH CANNOT BE COVERED UNDER THE CAT EGORY OF PARTICULARS OF BONAFIDE MISTAKE WHICH CAN ALSO WELL B E TERMED AS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A PARTNER IN M/S NEVRON PROPERTIES & ESTATES WHICH IS ENGAGED IN THE BUSINESS IN ESTATE AGENCIES AND BROKERAGE. DURING THE COURSE OF ASSESS MENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT , THE AO OBSERVED FROM THE RECORDS, THAT THE ASSESSEE HAS SHOWN RECEIPTS ON SALE OF LON G TERM CAPITAL ASSET AT RS.1,13,73,000/- WHICH WERE CLAIMED EXEMPT U/S. 54F OF THE ACT. THE ASSESSEE WAS ASKED BY THE AO TO SUBMIT THE DETAILS IN RESPECT OF THE TRANSACTIONS IN RESPECT OF THE SALE OF LONG TERM CA PITAL ASSET AND CLAIM OF EXEMPTION U/S.54F OF THE ACT. IT WAS SUBMITTED BY T HE ASSESSEE THAT IN THE YEAR 1995 MR. RAJNI C. SHAH, ORIGINAL TENANT OF M/S . LEACH AND WEBORNEY OF PART OF PROPERTY SITUATED AT 66, OFF E. MOSES ROAD, LOWER PAREL, MUMBAI ITA 6740/MUM/2012 3 ALLOWED THE ASSESSEE TO OCCUPY THE OFFICE PREMISES AND TO DO BUSINESS TRANSACTIONS FOR THE BENEFIT OF BOTH OF THEM AND AL L COST WERE BORNE BY MR. RAJNI C. SHAH. IT WAS SUBMITTED THAT BY A DEED OF C ONVEYANCE DATED 9 TH MARCH, 2007, M/S. LEACH & WEBORNEY SOLD , CONVEYED AND TRANSFERRED THE LAND AND STRUCTURES THEREON TO M/S SECOND LAND DEVE LOPERS PRIVATE LTD. SUBJECT TO THE OCCUPATIONS OF THE AREAS IN POSSESS ION WITH THE TENANTS/SUB- TENANTS. THEREAFTER BY A DEED OF SURRENDER OF TENAN CY DATED 12 TH APRIL, 2007 THE ASSESSEE SURRENDERED TO M/S SECOND LAND DEVELOP ERS PRIVATE LTD. ALL HIS TENANCY RIGHTS IN THE SAID PREMISES IN HIS OCCUPATI ON. THE AGREEMENT DATED 12 TH APRIL, 2007 WAS STAMPED AND REGISTERED AND WAS SUB MITTED BY THE ASSESSEE BEFORE THE AO DURING THE COURSE OF ASSESSM ENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT. THE AO ASKED THE ASSESSEE TO PROVE HIS SUB-TENANCY AND ALSO SUBMIT A COPY OF TH E SUB-TENANCY AGREEMENT ENTERED INTO BY HIM WITH THE ORIGINAL TENANT SAID M R. RAJNI C. SHAH WHO ALLOWED THE ASSESSEE TO USE OFFICE PREMISES IN THE YEAR 1995 ALONG WITH PROOF OF PAYMENT OF RENT, TELEPHONE BILLS, ELECTRICITY BI LLS, PROPERTY TAX ETC TO PROVE SUB-TENANCY IN FAVOUR OF THE ASSESSEE WITH RESPECT TO THE PORTION OF THE SAID PROPERTY. IN REPLY THE ASSESSEE SUBMITTED BEFORE T HE AO THAT HE DOES NOT PRESENTLY HAVE ANY RECEIPTS OF ELECTRICITY BILLS, T ELEPHONE BILLS, PAYMENT OF TAXES MADE TO VARIOUS GOVERNMENT BODIES IN RESPECT OF THE SAID TENANTED PROPERTY. IT WAS SUBMITTED THAT NO SUB-TENANCY AGR EEMENT WITH MR. RAJNI C. SHAH WAS ENTERED INTO BY THE ASSESSEE , AND HE ALSO DID NOT OBTAIN ANY LICENSE FOR THE BUSINESS CARRIED ON BY HIM FROM THE SAID PROPERTY UNDER THE SHOPS AND ESTABLISHMENT ACT. THE ASSESSEE GAVE TO THE AO PRESENT ADDRESS OF SH RAJNI C. SHAH. THE ASSESSEE SUBMITTED THE COP Y OF DEED OF SURRENDER OF TENANCY DATED 12 TH APRIL, 2007 EXECUTED BY HIM WITH THE SECOND LAND DEVELOPERS PRIVATE LTD REGISTERED WITH SUB-REGISTRA R, MUMBAI CITY. THE SAID REGISTERED DOCUMENT ALSO HAD AN AFFIDAVIT OF ORIGIN AL TENANT , LAYOUT PLAN OF OFFICE OCCUPIED, LETTER DATED 6 TH MARCH, 2007 FROM ORIGINAL TENANT CONFIRMING THE PREMISES GIVEN FOR BUSINESS PURPOSE TO THE ASSE SSEE IN 1995 AND LETTER OF ITA 6740/MUM/2012 4 POSSESSION DATED 12 TH APRIL, 2007 GIVEN BY THE ASSESSEE TO M/S SECOND LA ND DEVELOPERS PRIVATE LTD. THE A.O. OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBMIT ANY DETAILS IN RESPECT OF THE SUB-TE NANCY WHICH HE ACQUIRED IN THE YEAR 1995 OR ANY DOCUMENTARY PROOF OF CONDUCTIN G ANY BUSINESS IN THE SAID PROPERTY FROM THE YEAR 1995 TO 2007. THE AO OBSERVED THAT PRIMARY ONUS IS ON ASSESSEE TO PROVE SUB-TENANCY AND IN THE ABSENCE OF ANY CONTEMPORARY EVIDENCE, THE AO DISBELIEVED THE CLAIM OF THE ASSESSEE WITH RESPECT TO SUB-TENANCY OF THE SAID PREMISES. NOTICE U/S 133(6) OF THE ACT WAS SENT BY THE AO TO BRIHANMUMBAI ELECTRICITY SUPPLY A ND TRANSPORT (BEST) CALLING FOR INFORMATION RELATING TO ELECTRICITY MET ERS INSTALLED IN THE SAID PROPERTY AS WELL NOTICES U/S 133(6) OF THE ACT WERE SENT TO BRIHANMUMBAI MAHANAGARPALIKA(BMC) CALLING INFORMATION REGARDING THE OWNERSHIP AND TENANCIES OF THE SAID PROPERTY. SUMMONS WERE ALSO ISSUED U/S 131 OF THE ACT TO SHRI RAJNI C. SHAH ASKING HIM TO BE PRESENT BEFO RE THE A.O. ON 13.12.2010 SO THAT STATEMENT CAN BE RECORDED ON OATH. IN RESP ONSE TO THE SAID NOTICES U/S 133(6) OF THE ACT, THE ELECTRICITY DEPARTMENT B EST CONFIRMED THAT THERE HAS NEVER BEEN ANY ELECTRICITY CONNECTION EITHER IN THE NAME OF THE ASSESSEE OR IN THE NAME OF SHRI RAJNI C. SHAH. THE BRIHANMU MBAI MAHANAGARPALIKA(BMC) HAS ALSO GIVEN THE DETAILS OF THE OWNER, TENANTS AND SUB-TENANTS OF THE PROPERTY WHEREIN NAME OF THE ASS ESSEE DID NOT APPEAR AS SUB-TENANT OF THE SAID PROPERTY. SHRI RAJNI C. SHA H APPEARED BEFORE THE A.O. WHEREBY STATEMENT WAS RECORDED U/S 131 OF THE ACT W HEREIN HE DENIED THAT ANY SUB-TENANCY OR SUB-LEASE WAS CREATED BY HIM OR HIS FAMILY MEMBERS WITH RESPECT TO THE SAID PROPERTY AND HE STATED THAT HE CONFIRMED THE DEED OF SURRENDER OF TENANCY DATED 12-04-2007 EXECUTED BY T HE ASSESSEE WITH M/S SECOND LAND DEVELOPERS PRIVATE LIMITED AS CONFIRMIN G PARTY AS SEVERAL DOCUMENTS WERE SIGNED BY HIM WITHOUT READING THE MA TERIAL AS DOCUMENTS WERE VOLUMINOUS . IT WAS OBSERVED BY THE A.O. FROM THE VARIOUS DOCUMENTS AND ENQUIRIES MADE, STATEMENTS RECORDED, THAT THE A SSESSEE HAS FRAUDULENTLY CREATED SUB-TENANCY WHICH NEVER EXISTED WITH A VIEW TO AVOID TAX BY CLAIMING ITA 6740/MUM/2012 5 THE MONEY RECEIVED AS LONG TERM CAPITAL GAIN AND CL AIMING EXEMPTION U/S 54F OF THE ACT. THE A.O. ALSO WENT THROUGH THE AUDIT R EPORT OF M/S NEVRON PROPERTIES AND ESTATES WHEREIN THE ASSESSEE WAS PAR TNER THAT THE ASSESSEE HAS SHOWN ADDRESS AS 84, BHAKHTAWAR,22, NARAYAN DAB HOLKAR ROAD, MALABAR HILL, MUMBAI-66 AND EVEN IN PERSONAL CAPITAL ACCOU NT AND BALANCE SHEET FILED, IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAS NEVER SHOWN THE SUB- TENANCY AS AN ASSET NOR ANY DEPOSIT OR EXPENSES IN RESPECT OF THE SAID PROPERTY WAS CLAIMED BY THE ASSESSEE. THE ASSESSEE DURING ASSESSMENT PROCEEDINGS BEFORE THE AO ACCEPTED THAT HE HAD WRON GLY SHOWN RS. 1,13,73,000/- AS LONG TERM CAPITAL GAINS AND CLAIME D DEDUCTION U/S 54F OF THE ACT. THUS, THE ASSESSEE SUBMITTED VIDE LETTER D ATED 22-12-2010 BEFORE THE AO THE REVISED STATEMENT OF INCOME WHEREIN HE SURR ENDERED THE CLAIM OF DEDUCTION U/S 54F OF THE ACT BEFORE THE AO AND SHOW ED THE INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AS SURRENDER OF TE NANCY RIGHTS. THE ASSESSEE COUNSEL ACCEPTED BEFORE THE AO ON 14-12-2010 THAT H E DID NOT HAVE ANY PROOF / EVIDENCE TO SUPPORT THE SUB-TENANCY. THE ASSESSEE ALSO FURTHER STATED IN THE LETTER DATED 22-12-2010 THAT IN FACT THE ASSESSEE H ELPED IN RELATION TO SALE OF THE PREMISES AT WORLI BY M/S LEACH & WEBORNY TO M/S SECOND LAND DEVELOPERS PRIVATE LTD. THE AO OBSERVED THAT THE AS SESSEE IS AN ESTATE BROKER AND THE ASSESSEE USED A COLORABLE DEVICE TO AVOID T AX LIABILITY AND INDULGED IN TAX EVASION BY FRAUDULENTLY CLAIMING THE EXEMPTION U/S 54F OF THE ACT, HENCE, RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MC DOWELL & CO. LTD. V. COMMERCIAL TAX OFFICER, 154 ITR 148(S C) ADDITIONS WERE MADE TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 29-12-2010 PASSED U/S 143(3) OF THE ACT. THE ASSESSEE DID NOT CONTEST THE SAID ASSESSMENT ORDER DATED 29-12-2010 PASSED BY THE AO U/S 143(3) OF THE ACT AS NO APPEAL WAS FILED BY THE ASSESSEE WITH THE LEA RNED CIT(A) AGAINST THE SAID ASSESSMENT ORDER DATED 29-12-2010 PASSED BY TH E AO U/S 143(3) OF THE ACT WHICH ASSESSMENT ORDER ATTAINED FINALITY. ITA 6740/MUM/2012 6 PENALTY PROCEEDINGS WERE ALSO INITIATED BY THE AO U /S 271(1)(C) OF THE ACT FOR FILING INACCURATE PARTICULARS OF INCOME AND NOTICES WERE ISSUED TO THE ASSESSEE . THE ASSESSEE IN THE PENALTY PROCEEDINGS SUBMITTED THAT WITH A VIEW TO END DISPUTES AND PROTRACTED LITIGATIONS WIT H THE REVENUE AND IN ORDER TO BUY PEACE OF MIND, THE ASSESSEE HAD WITHOUT PREJ UDICE VOLUNTARILY REVISED THE COMPUTATION OF INCOME AND WITHDREW HIS CLAIM OF DEDUCTION OF RS. 1,13,73,000/- U/S 54F OF THE ACT. THE ASSESSEE SUBM ITTED THAT THE ASSESSEE FILED REVISED COMPUTATION OF INCOME AND PAID THE TA XES ACCORDINGLY , ON THE CONDITION THAT NO PROCEEDINGS FOR PENALTY U/S 271(1 )(C) OF THE ACT SHALL BE INITIATED AGAINST HIM FOR WITHDRAWAL OF CLAIM . THE ASSESSEE REQUESTED THE AO TO DROP PENALTY PROCEEDINGS INITIATED AGAINST HIM B Y THE AO U/S 271(1)(C) OF THE ACT FOR FILING INACCURATE PARTICULARS OF INCOME . THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE. THE A.O. OBSERVED THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54F OF THE ACT O N SURRENDER OF TENANCY RIGHTS ALTHOUGH THE ASSESSEE WAS NOT THE SUB-TENANT OF THE PROPERTY OF WHICH TENANCY RIGHTS WERE SURRENDERED. THE ASSESSEE WITHD REW THE CLAIM AND SURRENDERED THE AMOUNT ONLY WHEN THE ASSESSEE WAS C ORNERED BY THE A.O. AFTER MAKING RIGOROUS EFFORTS AND COLLECTED THE EVI DENCES WHICH FORCED THE ASSESSEE TO REVISE THE CLAIM MADE IN THE RETURN OF INCOME AS THE ASSESSEE WAS NEVER SUB-TENANT OF THE SAID PROPERTY AND SAID FACT WAS NEVER DISCLOSED IN THE RETURN OF INCOME FILED WITH THE REVENUE. IN THE ST ATEMENT RECORDED ON OATH OF SHRI RAJNI C. SHAH WHEREBY SAID SH RAJNI C. SHAH ST ATED THAT NO SUB-TENANCY OR SUB-LEASE WAS DONE BY HIM OR HIS FAMILY MEMBER O F THE SAID PREMISES, IT WAS CLEAR THAT THERE WAS A MALAFIDE INTENTION OF TH E ASSESSEE TO CONCEAL THE PARTICULARS OF INCOME AND THE ASSESSEE NEVER WITHDR EW THE CLAIM OR SURRENDERED THE AMOUNT VOLUNTARILY IN ORDER TO BUY PEACE AND TO END PROTRACTED LITIGATION WITH REVENUE BUT THE ASSESSEE WAS CORNERED BY THE REVENUE AND HENCE THE ASSESSEE WAS FORCED TO SURREN DER THE CLAIM BEFORE THE AO. THUS , THE AO OBSERVED THAT IT IS PROVED BEYON D REASONABLE DOUBT THAT ITA 6740/MUM/2012 7 THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS O F INCOME ADDING TO THE FALSE CLAIM OF EXEMPTION U/S 54F OF THE ACT TO WHIC H THE ASSESSEE OTHERWISE WAS NOT ELIGIBLE, RESULTING INTO CONCEALMENT OF INC OME. THE AO AFTER RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE C ASE UOI V. DHARMENDRA TEXTILES PROCESSORS AND OTHER (2007) 295 ITR 244(SC ) , HELD THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME AND THER EBY CONCEALED THE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) READ WITH EXPLANATION 1 OF THE ACT AND LEVIED THE PENALTY VID E ORDERS DATED 11-05-2011 PASSED U/S 271(1)(C) OF THE ACT. 4. AGGRIEVED BY THE PENALTY ORDER DATED 11-05-2011 PASSED BY THE A.O. U/S 271(1)(C) OF THE ACT, THE ASSESSEE FILED APPEAL BEF ORE THE LEARNED CIT(A). 5. BEFORE THE LD. CIT(A), THE ASSESSEE REITERATED T HE SUBMISSIONS WHAT WERE MADE BEFORE THE AO WHICH ARE NOT REPEATED FOR THE S AKE OF BREVITY. THE ASSESSEE SUBMITTED THAT THE ASSESSEES MAIN SOURCE OF INCOME HAS BEEN AS A WORKING PARTNER IN NEVRON PROPERTIES AND ESTATES EN GAGED IN THE BUSINESS OF REAL ESTATE BROKERAGE. THE ASSESSEE SUBMITTED THAT IN COURSE OF HIS BUSINESS, THE ASSESSEE CAME INTO CONTACT WITH MR. RAJNI C. SH AH WHO WAS THE ORIGINAL TENANT OF M/S LEACH AND WEBORNEY OCCUPYING A PORTIO N OF THE PROPERTY SITUATED AT PLOT NO. 66, OFF E.MOSES ROAD, LOWER PE REL, MUMBAI . THE SAID SH RAJNI C. SHAH GRANTED PERMISSION TO THE ASSESSEE TO OCCUPY AND OPERATE THE OFFICE IN THE YEAR 1995. THE SAID M/S LEACH AND WEB ORNEY SOLD THEIR PROPERTY TO SECOND LAND DEVELOPERS PRIVATE LIMITED ON 09-03- 2007 , THE ASSESSEE WAS IN OCCUPATION OF THE PROPERTY AND HENCE THE ASSESSE E WAS PAID A SUM OF RS.1,13,73,00/- BY SECOND LAND DEVELOPERS PRIVATE L IMITED BY VIRTUE OF THE OCCUPATION OF THE PROPERTY AS THE SAID NEW BUYER WA NTED IMMEDIATE VACANT POSSESSION OF THE SAID PROPERTY. THE ASSESSEE EXECU TED DEED OF SURRENDER OF TENANCY DATED 12-04-2007 IN FAVOUR OF SECOND LAND D EVELOPERS PRIVATE LIMITED AND WAS PAID AFORE-STATED RS.1,13,73,000/- BY SAID SECOND LAND ITA 6740/MUM/2012 8 DEVELOPERS PRIVATE LIMITED TO GET VACANT POSSESSION OF THE OFFICE PREMISES IN OCCUPATION OF THE ASSESSEE. THE ASSESSEE INVESTED T HIS AMOUNT OF RS.1,13,73,000/- TO GET EXEMPTION FROM LONG TERM CA PITAL GAINS U/S 54F OF THE ACT. THE ASSESSEE SUBMITTED THAT SINCE ONLY PER MISSION WAS GIVEN BY SH. RAJNI C SHAH IN 1995 TO THE ASSESSEE TO OCCUPY AND USE HIS OFFICE AND HENCE NO CONTEMPORARY DOCUMENTS WERE AVAILABLE WITH THE A SSESSEE AND NO COSTS SUCH AS RENT, TAXES, ELECTRICITY ETC WERE INCURRED BY THE ASSESSEE SINCE 1995 TILL THE DATE OF DEED OF SURRENDER OF TENANCY RIGHT S DATED 12-04-2007. THE ASSESSEE SUBMITTED THAT HE WAS PAID RS.1,13,73,000/ - BY THE SAID SECOND LAND DEVELOPERS PRIVATE LIMITED, THE NEW OWNER /BUY ER BECAUSE THEY WANTED IMMEDIATE VACANT PHYSICAL POSSESSION OF THE PROPERT Y AND SINCE THE PART OF PREMISES WAS OCCUPIED BY THE ASSESSEE AND HENCE THE ASSESSEE WAS PAID RS.1,13,73,000/- BY SECOND LAND DEVELOPERS LIMITED TO GET IMMEDIATE VACANT PHYSICAL POSSESSION OF THE PROPERTY. THE ASSESSEE S UBMITTED THAT THE STATEMENT OF SH. RAJNI C SHAH BE VIEWED IN THE LIGH T OF THESE FACTS. THE ASSESSEE SUBMITTED THAT HE DECIDED TO PAY TAX VOLUN TARILY OF HIS OWN BUT SINCE THE ASSESSEE DID NOT HAD THE CONTEMPORARY EVIDENCE THE AO DISBELIEVED THE ASSESSEE CLAIM OF LONG TERM CAPITAL GAINS. SINCE NO FORMAL RIGHT WAS CREATED BY SH. RAJNI C . SHAH , HE ALSO DENIED HAVING CREAT ED ANY SUB-TENANCY IN FAVOUR OF THE ASSESSEE. THE A.O. ERRED IN TREATING THE ENTIRE TRANSACTION AS A COLORABLE DEVICE. THE ASSESSEE SUBMITTED THAT THE S AID SECOND LAND DEVELOPERS PRIVATE LIMITED IS NO WAY RELATED OR CON NECTED WITH THE ASSESSEE AND THE TRANSACTIONS ARE AT ARMS LENGTH. IT WAS ST ATED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT THE A.O. ACTED UPON SUSPICI ON, CONJECTURES AND SURMISES AND THERE IS NO MATERIAL BEFORE THE AO TO COME TO CONCLUSION THAT THE SAID SECOND LAND DEVELOPERS PRIVATE LIMITED PAI D RS.1,13,73,000/- FOR REASONS OTHER THAN OBTAINING VACANT POSSESSION OF T HE PORTION OCCUPIED BY THE ASSESSEE. IT WAS SUBMITTED THAT RELIANCE OF THE AO ON INFORMATION RECEIVED FROM BEST AND BMC HAS NO RELEVANCE FOR DETERMINING THE CLAIM OF THE ASSESSEE THAT HE WAS OCCUPYING THE PORTION OF THE P REMISES AS SUB-TENANT ITA 6740/MUM/2012 9 SINCE THE YEAR 1995. THE ASSESSEE REFERRED TO THE P ROVISIONS OF SECTION 271(1)(C) OF THE ACT AND SUBMITTED THAT NO PENALTY CAN BE LEVIED AGAINST THE ASSESSEE. THE ASSESSEE SUBMITTED THAT THE HE HAD W ITHDRAWN THE CLAIM OF DEDUCTION U/S 54F OF THE ACT AND OFFERED THE RECEIP T OF RS.1,13,73,000/- ON SURRENDER OF TENANCY AS INCOME FROM OTHER SOURCES I NSTEAD OF BEING CHARGED TO TAX AS LONG TERM CAPITAL GAINS VOLUNTARILY WITH A VIEW TO END PROTRACTED LITIGATION WITH REVENUE AND TO BUY PEACE OF MIND SU BJECT TO THE CONDITION THAT NO PENALTY U/S 271(1)(C) OF THE ACT WILL BE LEVIED BY THE REVENUE ON THE ASSESSEE. THE ASSESSEE RELIED ON SEVERAL CASES WHIC H ARE REFERRED TO BY THE LEARNED CIT(A) IN HIS APPELLATE ORDER DATED 03-08-2 012 AT PAGE 10. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE PENALTY ORDER PASSED BY THE AO AND THE OTHER CASE L AWS RELIED UPON, OBSERVED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54F OF THE ACT SEEKING EXEMPTION OF LONG TERM CAPITAL GAINS AMOUNTING TO R S.1,13,73,000/- ARISING ON ACCOUNT OF SURRENDER OF SUB-TENANCY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE ASSESSEE WAS ASKED BY THE AO TO PROVE HIS CLAIM OF SUB-TENANCY A ND TO SUBMIT COPY OF SUB- TENANCY AGREEMENT WITH THE ORIGINAL TENANT SHRI RAJ NI C. SHAH GRANTED IN HIS FAVOUR IN THE YEAR 1995 AS CLAIMED BY THE ASSESSEE WHICH WERE NOT SUBMITTED BY THE ASSESSEE. NO ELECTRICITY CONNECTION WAS THER E IN THE NAME OF THE ASSESSEE AND NO MUNICIPAL TAXES WERE PAID BY THE AS SESSEE WITH RESPECT TO SAID PROPERTY. STATEMENT U/S 131 OF THE ACT WAS RE CORDED BY THE AO WHEREIN SHRI RAJNI C. SHAH DENIED HAVING GIVEN ANY SUB-TENA NCY TO THE ASSESSEE. THE ASSESSEE ALSO DID NOT HAD ANY LICENSE OBTAINED UNDE R SHOPS AND ESTABLISHMENT ACT IN HIS FAVOUR. THE ASSESSEE HAD S URRENDERED THE AMOUNT PROVIDED NO PENALTY WILL BE LEVIED U/S 271(1)(C) OF THE ACT. THE LD. CIT (A) ACCEPTED THE CONTENTIONS OF THE ASSESSEE. THE LD. CIT(A) HELD THAT THE ASSESSEES CASE IS COVERED BY THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS (P) LTD (2010 ) 322 ITR 158(SC) WHEREIN ITA 6740/MUM/2012 10 THE HONBLE SUPREME COURT HELD THAT MAKING OF AN IN CORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCURATE PARTICUL ARS OF INCOME AND IN THE INSTANT CASE THE REVENUE CAN SAY THAT THE ASSESSEE HAD MADE AN INCORRECT CLAIM OF DEDUCTION U/S 54F OF THE ACT WHICH DID NOT FOUND FAVOUR WITH THE REVENUE BUT PENALTY U/S 271(1)(C) OF THE ACT IS NOT LEVIABLE UNDER THESE CIRCUMSTANCES AS PER RATIO OF DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PRIVATE LIMITED(SUPR A), THEREFORE THE A.O. WAS DIRECTED BY LEARNED CIT(A) TO DELETE THE PENALTY LE VIED U/S 271(1)(C) OF THE ACT AGAINST THE ASSESSEE VIDE APPELLATE ORDER DATED 03- 08-2012 PASSED BY THE LEARNED CIT(A). 6. AGGRIEVED BY THE APPELLATE ORDER DATED 03-08-201 2 PASSED BY THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. D.R. SUBMITTED THAT PENALTY WAS LEVIED B Y THE AO ON THE ASSESSEE U/S 271(1)(C) OF THE ACT. THE ASSESSEE HA S CLAIMED LONG TERM CAPITAL GAINS IN THE RETURN OF INCOME FILED WITH THE REVEN UE ON THE ALLEGED PURPORTED SALE/SURRENDER OF SUB-TENANCY RIGHTS AND CLAIMED DE DUCTION U/S 54F OF THE ACT ON THE SAID LONG TERM CAPITAL GAINS ALLEGEDLY A ND PURPORTEDLY EARNED ON SALE/SURRENDER OF SUB-TENANCY RIGHTS WHICH SUB-TENA NCY NEVER ACTUALLY EXISTED AND WAS MERELY A COLORABLE DEVICE ADOPTED B Y THE ASSESSEE TO EVADE TAXES . THE LD. D.R. RELIED UPON THE ORDER OF TH E A.O. AND SUBMITTED THAT ENQUIRIES WERE MADE WITH THE BEST AND BMC WHICH REV EALED THAT THE ASSESSEE DID NOT HAD ELECTRICITY CONNECTION IN HIS NAME IN THE SAID PROPERTY NOR THE ASSESSEE PAID TAXES WITH RESPECT TO THE SAI D PROPERTY. THE LD. DR SUBMITTED THAT THE ASSESSEE ALSO DID NOT PAID ANY RENT WITH RESPECT TO SUB- TENANCY OF THIS PROPERTY. NO EVIDENCE HAS BEEN PRO DUCED WITH RESPECT TO THE EXISTENCE OF THE SAID SUB-TENANCY. THE ASSESSEE NEV ER REFLECTED SUB-TENANCY IN ITS BOOKS OF ASSETS IN ASSETS NOR ANY EXPENSES W ERE EVER CLAIMED WITH RESPECT OF SAID SUB-TENANCY TOWARDS RENT, TAXES , E LECTRICITY ETC. . SUMMONS ITA 6740/MUM/2012 11 WERE ISSUED U/S 131 OF THE ACT TO SHRI RAJNI C. SHA H , THE ORIGINAL TENANT OF THIS PROPERTY WHO ALLEGEDLY GAVE SUB-TENANCY TO THE ASSESSEE IN THE YEAR 1995 AS PER CLAIM OF THE ASSSESSE, WHEREIN IN THE STATE MENT RECORDED U/S 131 OF THE ACT, SH. RAJNI C. SHAH ADMITTED ON OATH THAT TH E ASSESSEE IS NOT HIS SUB- TENANT OR SUB-LESSEE WITH RESPECT TO THIS PROPERTY AND HE SIGNED MANY DOCUMENTS WITHOUT READING THE VOLUMINOUS MATERIAL PLACED BEFORE HIM AT THE TIME OF EXECUTION OF DEED OF SURRENDER OF SUB-TENAN CY EXECUTED BY THE ASSESSEE WITH SECOND LAND DEVELOPERS PRIVATE WHEREI N THE SAID RAJNI C SHAH WAS CONFIRMING PARTY. IT WAS SUBMITTED BY THE LEARN ED DR THAT THE ASSSESSEE SURRENDERED HIS CLAIM OF DEDUCTION U/S 54F OF THE A CT AND OFFERED LONG TERM CAPITAL GAINS AS INCOME FROM OTHER SOURCES WHEN H E WAS CORNERED AND CONFRONTED BY THE REVENUE , AND THE CLAIM OF THE AS SESSEE THAT HE SURRENDERED THE AMOUNT VOLUNTARILY IS WRONG AND INC ORRECT. NO CONTEMPORARY EVIDENCES WERE FILED BY THE ASSESSEE EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE PENALTY PROCEEDINGS TO PROVE HIS SUB- TENANCY. NO CONTEMPORARY EVIDENCES WERE EVEN FILED DURING APPELLANT PROCEEDI NGS TO PROVE HIS SUB- TENANCY. THUS, IT IS ABSOLUTELY WRONG TO SAY THAT T HE ASSESSEE SURRENDERED THE AMOUNT TO AVOID LITIGATION AND TO BUY PEACE OF MIND . THE LD. CIT(A) DELETED THE PENALTY SO LEVIED BY THE A.O. BY RELYING UPON T HE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. RELIANCE PETROP RODUCTS P. LTD. (2010) 322 ITR 158 BY HOLDING THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE RATIO OF LAW LAID DOWN BY THE HONBLE SUPREME COURT WHILE THE FACT OF THE MATTER IS THAT THE ASSESSEE CASE IS NOT COVERED BY THE ABOVE DECISION OF HONBLE SUPREME COURT AS THE ASSESSEE HAS MADE AN E X-FACIE BOGUS CLAIM OF TREATING THE AMOUNT RECEIVED ON SURRENDER OF TENANC Y AS INCOME FROM LONG TERM CAPITAL GAINS AND CLAIMING DEDUCTION U/S 54F O F THE ACT. DEDUCTION U/S 54F OF THE ACT WAS NOT ALLOWED TO THE ASSESSEE AS T HE INCOME WAS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES ONCE TH E ASSESSEE WITHDREW HIS CLAIM . NO PROOF THEREOF OF HAVING ANY UTILIZATION OF ELECTRICITY SUCH AS BILLS ETC. OR PAYMENT OF TAXES TO BMC AND OTHER CONTEMPOR ARY DOCUMENTS WERE ITA 6740/MUM/2012 12 PRODUCED BY THE ASSESSEE TO PROVE HIS SUB-TENANCY. THE LD. D.R. RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F VIRENDRA K. MEHTA V. DCIT [2014] 50 TAXMANN.COM 217 (BOMBAY) AND THE DEC ISION OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA (P) LTD. V. C IT [2013] 38 TAXMANN.COM 448 (SC) AND SUBMITTED THAT IT WAS AN E X-FACIE BOGUS CLAIM OF THE ASSESSEE TO CONTEND THAT THE ASSESSEE WAS SUB-T ENANT OF SH. RAJNI C. SHAH SINCE THE YEAR 1995 , AND IN-FACT THE DEED O F SURRENDER OF TENANCY RIGHT DATES 12-04-2007 WAS A COLORABLE DEVICE ADOPTED BY THE ASSESSEE TO CLAIM LONG TERM CAPITAL GAINS TO CLAIM DEDUCTION U/S. 54F OF THE ACT AND EVADE LEGITIMATE TAXES DUE TO REVENUE. THE LD DR SUPPORTE D THE ORDER OF THE AO AND PRAYED THAT THE ORDER OF THE LEARNED CIT(A) BE SET ASIDE AND PENALTY LEVIED ON THE ASSESSEE ON THIS COUNT BE CONFIRMED. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SURRENDER OF SUB-TENANCY WITH RESPECT TO PORTION OF PROPERTY SITUATED AT 66, OFF E. MOSES ROAD, LOWER PAREL, MUMBAI. THE DEED OF SURRENDER O F TENANCY DATED 12-04- 2007 WAS A REGISTERED AND STAMPED DEED BETWEEN THE ASSESSEE AND THE BUYER SECOND LAND DEVELOPERS PRIVATE LTD. WHEREIN THE ORI GINAL TENANT SHRI RAJNI C. SHAH WAS THE CONFIRMING PARTY. IT WAS SUBMITTED TH AT THE SECOND LAND DEVELOPERS PRIVATE LTD. PURCHASED THE PREMISES ALON G WITH TENANTS AND SUB- TENANTS WHEREIN THE ASSESSEE WAS SUB-TENANT OF THE PORTION OF THE SAID PROPERTY IN OCCUPATION/POSSESSION OF THE SAID PORTI ON OF THE PROPERTY. THERE WERE ENCUMBRANCES IN THE PROPERTY WHEREBY THERE WER E TENANT/SUB-TENANTS IN THE PORTION OF PROPERTY HOLDING POSSESSION OF TH E SAID PORTION OF THE PROPERTY. THE ASSESSEE HAS RECEIVED PAYMENT OF RS. 1,13,73,000/- FROM SECOND LAND DEVELOPERS PRIVATE LIMITED ON SURRENDER OF SUB-TENANCY VIDE DEED OF SURRENDER OF TENANCY DATED 12-04-2007 IN FA VOUR OF SECOND LAND DEVELOPERS PRIVATE LIMITED WHEREIN SH RAJNI C. SHAH WAS CONFIRMING PARTY . THE ASSESSEE HANDED OVER PHYSICAL POSSESSION TO SEC OND LAND DEVELOPERS PRIVATE LIMITED ON SIGNING OF DEED OF SURRENDER OF TENANCY DATED 12-04-2007 ITA 6740/MUM/2012 13 ON RECEIPT OF CONSIDERATION OF RS.1,13,73,000/-- FO R SURRENDER OF TENANCY. SHRI RAJNI C. SHAH, THE ORIGINAL TENANT GRANTED PERMISSI ON TO THE ASSESSEE IN THE YEAR 1995 TO OCCUPY THE PORTION OF THE PREMISES . I T WAS SUBMITTED THAT THERE WAS NO WRITTEN SUB-TENANCY AGREEMENT ENTERED WITH S H. RAJNI C. SHAH IN THE YEAR 1995 WHEN PERMISSION TO OCCUPY PREMISES WAS GR ANTED BY SAID SH. RAJNI C. SHAH IN FAVOUR OF THE ASSESSEE. THE SAID SH. RAJ NI C. SHAH ADMITTED THAT THERE WAS NO SUB-TENANCY RIGHTS OR SUB-LEASE GRANTE D BY HIM OR HIS FAMILY MEMBERS TO THE ASSESSEE IN THE STATEMENT RECORDED U /S 131 OF THE ACT BEFORE THE AO AND SEVERAL PAPERS WERE SIGNED BY HIM WITHOU T READING THE VOLUMINOUS MATERIAL. IT IS SUBMITTED THAT THE A.O. HAS MADE ENQUIRIES WITH BEST AND BMC WITH RESPECT TO THE ELECTRICITY CONNEC TION IN THE NAME OF THE AO INSTALLED AT THE SAID PREMISES AND TO CONFIRM TH E PAYMENT OF TAXES BY THE ASSESSEE. THE LEARNED COUNSEL OF THE ASSESSEE SUBM ITTED THAT IT IS IRRELEVANT WHETHER ELECTRICITY BILLS OR TAXES WERE PAID BY THE ASSESSEE OR NOT TO ADJUDICATE THE EXISTENCE OF SUB-TENANCY IN FAVOUR O F THE ASSESSEE BY SH. RAJNI C. SHAH IN THE YEAR 1995 WITH RESPECT TO THE SAID P ROPERTY AS IT WAS AN ORAL GRANT OF PERMISSION BY THE SAID SH. RAJNI C. SHAH I N FAVOUR OF THE ASSESSEE TO OCCUPY AND USE THE PROTION OF THE PREMISES TO DO B USINESS TOGETHER WHEREBY ALL EXPENSES WERE BORNE BY SH. RAJNI C SHAH . THE A SSESSEE SUBMITTED THAT HE HAD DULY PAID THE TAXES AND INTEREST ON WITHDRAWAL OF THE CLAIM U/S 54F OF THE ACT WITH THE CONDITION THAT NO PENALTY SHALL BE LEVIED BY REVENUE U/S 271(1)(C ) OF THE ACT. PENALTY IS NOT AUTOMATIC U/S 271(1)(C) OF THE ACT. HE SUBMITTED THAT THE ADDITIONS HAVE BEEN MADE PURELY ON SUSPICION , CONJECTURES AND SURMISES WITH RESPECT TO THE AMOUNT RECEIVED ON SURRENDER OF TENANCY RIGHTS. THE LD. COUNSEL DREW OUR ATTENTION TO THE REVISED COMPUTATION OF INCOME WHICH IS PLACED AT PAPER BOOK PAGE 27. IT IS SUBMITTED THAT THE ASSESSEE HAS NOT ADMITTED THAT T HE AMOUNT WAS NOT RECEIVED ON SURRENDER OF TENANCY WHICH NOW IS OFFER ED TO BE TAXED UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF BEING T AXES AS INCOME FROM LONG TERM CAPITAL GAIN AS THE ASSESSEE DID NOT HAVE CONT EMPORARY EVIDENCES TO ITA 6740/MUM/2012 14 PROVE SUB-TENANCY . IT IS SUBMITTED THAT THE WITHDR AWAL OF CLAIM OF DEDUCTION U/S 54F OF THE ACT WAS MADE WITH THE CONDITIONS THA T NO PENALTY WILL BE LEVIED BY THE REVENUE U/S.271(1)(C) OF THE ACT. THE LD. C OUNSEL DISTINGUISHED THE CASE LAW RELIED ON BY THE LD. D.R. IN THE CASE OF M AK DATA (P) LTD(SUPRA). AND VIRENDER K MEHTA(SUPRA). THE LD. COUNSEL FOR THE AS SESSEE RELIED UPON FOLLOWING DECISIONS : 1. CIT V. RELIANCE PETROPRODUCTS PRIVATE LIMITED ( 2010) 322 ITR 158(SC) 2. CIT V. SURESH CHANDRA MITTAL (2001) 251 ITR 9(S C) 3. CIT V. SURESH CHANDRA MITTAL (200) 241 ITR 124( MP) 4. UOI V.RAJASTHAN SPINNING AND WEAVING MILLS (200 9) 224 CTR1(SC) THE LEARNED COUNSEL REITERATED THE SUBMISSIONS AS W ERE MADE BEFORE THE AUTHORITIES BELOW AND RELIED UPON THE ORDERS OF LEA RNED CIT(A). 9. IN THE REJOINDER, THE LD. D.R. SUBMITTED THAT NO ADDITION WAS MADE BY THE REVENUE U/S 68 OF THE ACT RATHER THE INCOME IS ASSESSED TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM LONG TERM CAPITAL GAINS WHICH WAS CLAIMED BY THE ASSESSEE IN RETURN O F INCOME FILED WITH THE REVENUE. THE ASSESSEE HAS MADE THE CLAIM U/S 54F O F THE ACT WHICH IS NOT SUSTAINABLE AS THE ASSESSEE NEVER EARNED INCOME UND ER THE HEAD LONG TERM CAPITAL GAINS ON SALE/SURRENDER OF SUB-TENANCY AS T HE SAID SUB-TENANCY NEVER EXISTED AND IN-FACT IT WAS THE COLORABLE DEVICE ADO PTED BY THE ASSESSEE TO EVADE TAXES. IT WAS SUBMITTED THAT NO EVIDENCE WHAT SOEVER WAS PRODUCED BY THE ASSESSEE TO PROVE SUB-TENANCY. IT WAS SUBMITTED BY LEARNED DR THAT THE ASSESSEE HAS NOT FILED ANY APPEAL AGAINST THE QUANT UM ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) OF THE ACT, WHICH HAS ATTAINED FINALITY. THUS, THE LD DR PRAYED THAT PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT BE CONFIRMED AND ORDER OF THE LEARNED CIT(A) BE SET AS IDE. ITA 6740/MUM/2012 15 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED THE MATERIAL PLACED ON RECORD INCLUDING THE CASE LAWS RELIED UPO N BY BOTH THE PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE IS PARTNER IN A PAR TNERSHIP FIRM M/S NEVRON PROPERTIES AND ESTATES WHICH IS ENGAGED IN BUSINESS OF REAL ESTATE AGENCIES AND BROKERAGE. THE ASSESSEE HAS DECLARED IN THE RET URN OF INCOME FILED WITH THE REVENUE , INCOME FROM LONG TERM CAPITAL GAINS O F RS. 1,13,73,000/- RECEIVED ON SURRENDER OF SUB-TENANCY WITH RESPECT T O THE PORTION OF THE PROPERTY SITUATED AT 66, OFF E MOSES ROAD, LOWER PA REL, MUMBAI VIDE STAMPED AND REGISTERED DEED OF SURRENDER OF TENANCY DATED 12-04-2007 EXECUTED BY THE ASSESSEE WITH NEW OWNERS OF THE PRO PERTY M/S. SECOND LAND DEVELOPERS PRIVATE LIMITED WHEREIN MR RAJNI C. SHAH , THE ORIGINAL TENANT OF THE PROPERTY WAS CONFIRMING PARTY . THE ASSESSEE CL AIMED DEDUCTION U/S 54F OF THE ACT ON AFORE-STATED LONG TERM CAPITAL GAINS EARNED BY THE ASSESSEE. IT IS THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE WA S SUB-TENANT IN THE AFORE- STATED PROPERTY W.E.F. YEAR 1995 WHEREIN THE ORIGIN AL TENANT OF THE SAID PROPERTY MR. RAJNI C. SHAH PERMITTED HIM ORALLY TO OCCUPY AND USE THE OFFICE PREMISES SITUATED AT AFORE-STATED PROPERTY TO DO BU SINESS TOGETHER AND ALL COSTS IN RELATION TO THE WORKING FROM THE SAID PRE MISES SUCH AS TELEPHONE, ELECTRICITY , TAXES TO BMC ETC. WERE TO BE PAID BY SAID MR. RAJNI C. SHAH. ON BEING CALLED UPON TO PROVE HIS SUB-TENANCY WITH RES PECT TO THE AFORE-STATED PREMISES, IT WAS THE CONTENTION OF THE ASSESSEE THA T HE IS NOT HAVING ANY CONTEMPORARY EVIDENCES TO PROVE THE ACTUAL OCCUPATI ON AND USAGE OF THE SAID PREMISES BY THE ASSESSEE SINCE THE YEAR 1995 WHEN M R. RAJNI C. SHAH, ORIGINAL TENANT OF THE SAID PREMISES PURPORTEDLY GA VE HIM PERMISSION AND ALLOWED HIM TO OCCUPY AND USE THE SAID PREMISES TIL L THE DATE OF EXECUTION AND REGISTRATION OF DEED OF SURRENDER OF TENANCY ON 12-04-2007. FURTHER,IT IS THE SUBMISSION OF THE ASSESSEE THAT HE DID NOT HAVE ANY WRITTEN SUB-TENANCY AGREEMENT WITH MR. RAJNI C. SHAH WHO WAS THE ORIGIN AL TENANT OF THE SAID PREMISES/PROPERTY AND SAID MR. RAJNI C SHAH ORALLY GRANTED HIM PERMISSION IN THE YEAR 1995 TO OCCUPY AND USE THE AFORE-STATED PREMISES TO DO BUSINESS ITA 6740/MUM/2012 16 TOGETHER . THE ASSESSEE COULD NOT PRODUCE ANY CONTE MPORARY EVIDENCES SUCH AS SUB-TENANCY AGREEMENT EXECUTED WITH MR RAJNI C S HAH IN THE YEAR 1995, TELEPHONE BILLS, ELECTRICITY BILLS, PROOF OF PAYMEN T OF TAXES TO BMC ETC TO PROVE HIS SUB-TENANCY. THE ASSESSEE NEVER REFLECTED SUB-T ENANCY IN ITS BOOKS OF ASSETS IN ASSETS NOR ANY EXPENSES WERE EVER CLAIMED WITH RESPECT OF SAID SUB- TENANCY TOWARDS RENT, TAXES , ELECTRICITY ETC. THE ASSESSEE SUBMITTED THAT THESE CONTEMPORARY EVIDENCES ARE IRRELEVANT TO DETE RMINE THE CLAIM OF THE ASSESSEE OF TREATING THE CONSIDERATION OF RS.1,13,7 3,000/- RECEIVED ON SURRENDER OF TENANCY AS INCOME FROM LONG TERM CAPIT AL GAINS. THE ASSESSEE SUBMITTED THAT HE HAS EXECUTED WRITTEN, STAMPED AND REGISTERED DEED OF SURRENDER OF TENANCY ON 12-04-2007 IN FAVOUR OF NEW OWNERS M/S SECOND LAND DEVELOPERS PRIVATE LIMITED WHEREIN MR. RAJNI C SHAH IS CONFIRMING PARTY AND PAYMENT OF RS.1,13,73,000/- WAS MADE BY S AID NEW OWNER M/S. SECOND LAND DEVELOPERS PRIVATE LIMITED TO THE ASSES SEE AS THE ASSESSEE WAS IN OCCUPATION AND POSSESSION OF THE SAID PREMISES A ND THE SAID M/S SECOND LAND DEVELOPERS PRIVATE LIMITED WANTED IMMEDIATE VA CANT POSSESSION OF THE SAID PREMISES AND HENCE PAYMENT OF RS.1,13,73,000/- WAS MADE TO THE ASSESSEE BY SAID NEW OWNERS M/S SECOND LAND DEVELOP ERS PRIVATE LIMITED TO VACATE THE SAID PREMISES. THE AO MADE ENQUIRIES WIT H BEST AND BMC , WHEREIN BEST DENIED THAT ANY ELECTRICITY CONNECTION IS INSTALLED IN THE SAID PREMISES IN THE NAME OF THE ASSESSEE AND BMC DENIED OF HAVING ANY SUB- TENANCY REGISTERED IN THE NAME OF THE ASSESSEE , SI NCE THE YEAR 1995 TILL DATE OF EXECUTION OF DEED OF SURRENDER OF TENANCY DATED 12-04-2007. THE AO RECORDED STATEMENT OF MR. RAJNI C. SHAH U/S 131 OF THE ACT DURING ASSESSMENT PROCEEDINGS WHEREBY MR. RAJNI C SHAH STA TED ON OATH THAT NEITHER HE NOR HIS FAMILY MEMBERS HAVE CREATED ANY SUB-TENANCY OR SUB-LEASE IN FAVOUR OF THE ASSESSEE AND WITH RESPECT TO SIGNI NG AS CONFIRMING PARTY OF DEED OF SURRENDER OF TENANCY DATED 12-04-2007 EXECU TED BY THE ASSESSEE WITH M/S SECOND LAND DEVELOPERS PRIVATE LIMITED , MR. RA JNI C SHAH AFFIRMED OF SIGNING THE SAID DEED DATED 12-04-2007 AS CONFIRMIN G PARTY BUT STATED THAT ITA 6740/MUM/2012 17 HE SIGNED SEVERAL DOCUMENTS WITHOUT READING THE SAM E AS VOLUMINOUS DOCUMENTS WERE PRESENTED BEFORE HIM FOR SIGNATURES. ON BEING CONFRONTED ABOUT THE ABOVE ENQUIRIES AND EXAMINATIONS CONDUCTE D BY THE AO, THE ASSESSEE WITHDREW HIS CLAIM OF RS.1,13,73,000/- BEI NG CONSIDERATION RECEIVED ON SURRENDER OF SUB-TENANCY TO BE TREATED AS INCOME UNDER THE HEAD INCOME FROM LONG TERM CAPITAL GAINS AND FILED REVISED COM PUTATION OF INCOME BEFORE THE AO WHEREIN THE SAID AMOUNT WAS DECLARED AS IN COME FROM OTHER SOURCES ON SURRENDER OF TENANCY RIGHTS. THE ASSESSEE EARLIE R MADE AN CLAIM OF DEDUCTION U/S 54F OF THE ACT OF RS.1,13,73,000/- FR OM INCOME FROM LONG TERM CAPITAL GAINS ON SURRENDER OF TENANCY WHICH WAS WIT HDRAWN AS NOW THE INCOME IS OFFERED FOR TAXATION AS INCOME FROM OTHE R SOURCES AND OBVIOUSLY DEDUCTIONS U/S 54F OF THE ACT IS NOT AVAILABLE ON T HE INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES AS PER T HE SCHEME OF THE ACT. THE ASSESSEE IS A REAL ESTATE AGENT AND BROKER BEING PA RTNER IN M/S NEVRON PROPERTIES AND ESTATES WHICH IS ENGAGED IN THE BUSI NESS IN ESTATE AGENCIES AND BROKERAGE , WHEREBY THE ASSESSEE ALSO ADMITTED TO HAVE HANDLED THE DEED OF SALE OF THE SAID PROPERTY WHEREBY THE SECOND LAN D DEVELOPERS PRIVATE LTD. PURCHASED THE SAID PROPERTY FROM M/S LEACH AND WEBO RNEY. THE ASSESSEE SUBMITTED THAT HE IS VOLUNTARILY SURRENDERING HIS A FORE-STATED CLAIM IN ORDER TO AVOID LONG AND PROTRACTED LITIGATION WITH REVENU E AND IN ORDER TO BUY PEACE OF MIND, PROVIDED NO PENALTY BE LEVIED AGAINST THE ASSESSEE U/S 271(1)(C) OF THE ACT. THUS, IN NUT-SHELL THE PRIMARY ONUS WAS ON THE ASSESSEE IN QUANTUM PROCEEDINGS TO PROVE HIS SUB-TENANCY WHICH THE ASSE SSEE MISERABLY FAILED TO DO SO. THE AO PROCEEDED TO LEVY PENALTY U/S 271(1)( C) OF THE ACT WHILE THE LEARNED CIT(A) DELETED THE SAME FOR THE REASONS MEN TIONED IN PRECEDING PARAS OF THIS ORDER WHICH ARE NOT REPEATED HERE AGAIN FOR THE SAKE OF BREVITY. WITH THE ABOVE BACKGROUND NOW WE WILL PROCEED FURTHER. T HE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE AGENCY AND BROKER AND HAS ALSO ADMITTED ON BEING CONFRONTED AND CORNERED BY THE REVENUE TO HAVE HAND LED THE DEED OF SALE OF THE SAID PROPERTY WHEREBY THE SECOND LAND DEVELOPER S PRIVATE LTD. PURCHASED ITA 6740/MUM/2012 18 THE AFORE-STATED PROPERTY SITUATED AT 66, OFF E MOS ES ROAD, LOWER PAREL, MUMBAI FROM M/S LEACH AND WEBORNEY. THE ASSESSEE DI D NOT HAVE ANY CONTEMPORARY EVIDENCE TO PROVE HIS SUB-TENANCY WHIC H WAS STATED TO BE GRANTED TO HIM IN THE YEAR 1995 BY MR. RAJNI C. SHA H, THE ORIGINAL TENANT AND ALSO AGREEMENT OF SUB-TENANCY IS STATED TO BE AN OR AL AGREEMENT WHEREIN MR. RAJNI C. SHAH GRANTED HIM PERMISSION TO OCCUPY AND USE THE SAID OFFICE PREMISES SINCE THE YEAR 1995 TILL THE YEAR 2007.THU S, THE ASSESEE IN QUANTUM PROCEEDINGS FAILED TO DISCHARGE PRIMARY ONUS CAST U PON BY HIM UNDER THE ACT TO PROVE HIS SUB-TENANCY AND THE CLAIMS LODGED FOR TREATING THE CONSIDERATION RECEIVED ON SURRENDER OF TENANCY AS INCOME FROM LO NG TERM CAPITAL GAINS. IT IS INCOMPREHENSIVE AND UNBELIEVABLE BY ANY STANDARD S AND YARDSTICKS THAT THE ASSESSEE WHO WAS ALLEGEDLY OCCUPYING AND USING THE SAID PORTION OF THE PREMISES/PROPERTY AS HIS OFFICE FROM THE YEAR 1995 TO 2007 DOES NOT HAVE ANY CONTEMPORARY EVIDENCES TO SUPPORT AND DEMONSTRATE H IS ALLEGED CONTINUOUS OCCUPATION/POSSESSION OF THE SAID PREMISES SINCE 19 95 TO 2007 INCLUDING AGREEMENT FOR GRANT OF SUB-TENANCY AND OTHER RELEVA NT CONTEMPORARY EVIDENCES TO SUPPORT AND PROVE HIS SUB-TENANCY . IN -FACT THE ASSESSEE WHO IS AN ESTATE BROKER VIDE HIS OWN ADMISSION HAS STATED THAT HE HANDLED THE DEAL OF SALE OF THE SAID PROPERTY WHEREBY THE SECOND LAN D DEVELOPERS PRIVATE LTD. PURCHASED THE SAID PROPERTY FROM M/S LEACH AND WEBO RNEY. THE SAID RAJNI C. SHAH ON A STATEMENT RECORDED ON OATH U/S 131 OF THE ACT DENIED TO HAVE GRANTED HIMSELF OR BY ANY OF HIS FAMILY MEMBER ANY SUB-TENANCY OR SUB-LEASE IN FAVOUR OF THE ASSESSEE. THE ASSESSEE NEVER REFLE CTED SUB-TENANCY IN ITS BOOKS OF ASSETS IN ASSETS NOR ANY EXPENSES WERE EVE R CLAIMED WITH RESPECT OF SAID SUB-TENANCY TOWARDS RENT, TAXES , ELECTRICITY ETC. . THE ASSESSEE ON BEING CORNERED AND CONFRONTED BY THE REVENUE AFTER DETAIL ED ENQUIRY AND INVESTIGATION CONDUCTED BY REVENUE, SURRENDERED HI S CLAIM OF TREATING THE RECEIPT OF CONSIDERATION OF RS.1,13,73,000/- ON SU RRENDER OF TENANCY FROM BEING TREATED AS INCOME FROM LONG TERM CAPITAL GAI NS AND AGREED TO NOW BRING TO TAX THE SAID RECEIPT AS INCOME UNDER THE H EAD INCOME FROM OTHER ITA 6740/MUM/2012 19 SOURCES AND ALSO WITHDREW HIS CLAIMS OF DEDUCTION U/S 54F OF THE ACT . THE ASSESSEE DID NOT CHALLENGE THE ASSESSMENT FRAMED BY THE AO U/S 143(3) OF THE ACT IN APPELLATE PROCEEDINGS AND ACCEPTED THE SAID ASSESSMENT ORDER PASSED BY THE AO WHICH WAS PASSED AFTER THE ASSESSEE WITHD REW HIS AFORE-STATED CLAIMS. IN OUR CONSIDERED VIEW BASED ON THE FACTS A ND CIRCUMSTANCES OF THE CASE, THE ASSESSEE WAS NEVER THE SUB-TENANT OF THE SAID PREMISES AND THE STORY HAS BEEN CONCOCTED TO REDUCE TAX LIABILITY WH EREIN THE ASSESSEE ENTERED INTO DEED OF SURRENDER OF THE TENANCY DATED 12-04-2 007 AS A COLORABLE AND SHAM DEVICE TO RECEIVE THE SAID AMOUNT OF RS.1,13,7 3,000/- AS INCOME FROM SURRENDER OF TENANCY OF THE SAID PREMISES PURPORTED AND ALLEGEDLY TO BE IN HIS OCCUPATION AND POSSESSION IN FAVOUR OF SECOND LAND DEVELOPERS PRIVATE LIMITED , SO THAT THE SAID AMOUNT OF ALLEGED CONSID ERATION CAN BE BROUGHT TO TAX UNDER THE HEAD INCOME FROM LONG TERM CAPITAL GAINS ON WHICH THE ASSESSEE CAN PURPORTEDLY CLAIM DEDUCTION U/S 54F OF THE ACT. IMMEDIATELY ON BEING CONFRONTED AND CORNERED BY THE REVENUE AFTER DETAILED ENQUIRY AND INVESTIGATIONS CONDUCTED BY THE REVENUE AS SET OUT ABOVE WHEREIN THE REVENUE BROUGHT COGENT MATERIAL ON RECORD TO DISPRO VE THE STORY OF SUB- TENANCY SET-OUT BY THE ASSESSEE , THE ASSESSEE WITH DREW HIS CLAIMS BEFORE THE AO AS SET OUT BY THE ASSESSEE IN RETURN OF INCOME F ILED WITH THE REVENUE, WHILE ON THE OTHER HAND THE PRIMARY ONUS WAS ON THE ASSESSEE TO BRING ON RECORD CONTEMPORARY EVIDENCES TO PROVE HIS SUB-TENA NCY IN QUANTUM PROCEEDINGS WITH RESPECT TO OCCUPATION/POSSESSION O F THE SAID PREMISES WHICH THE ASSESSEE MISERABLY FAILED TO DO US. THE P RIMARY ONUS IS CAST ON THE REVENUE UNDER PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT TO BRING ON RECORD COGENT INCRIMINATING MATERIAL TO SUBSTANTIATE THAT INGREDIENTS OF SECTION 271(1)(C) OF THE ACT ARE FULFILLED WHICH IN THE INS TANT CASE WERE DULY FULFILLED BY THE REVENUE BY CONDUCTING DETAILED ENQUIRY AND INVE STIGATIONS TO BRING ON RECORD COGENT INCRIMINATING MATERIAL TO DISPROVE TH E STORY OF SUB-TENANCY SET UP BY THE ASSESSEE. ONCE THE PRIMARY ONUS CAST ON T HE REVENUE IN PENALTY PROCEEDINGS IS DISCHARGED, THE BURDEN SHIFT ON THE ASSESSEE TO BRING ON RECORD ITA 6740/MUM/2012 20 BONAFIDE EXPLANATIONS TO SUPPORT THE CLAIM FILED BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITH THE REVENUE AS PER MANDATE OF SECTION 271(1)(C) OF THE ACT READ WITH EXPLANATION. THE EXPLANATION SUBMITTE D BY THE ASSESSEE TO EXPLAIN THE CLAIM FILED BY THE ASSESSEE IN THE RETU RN OF INCOME WITH RESPECT TO THE INCOME EARNED FROM LONG TERM CAPITAL GAINS ON S URRENDER OF TENANCY AND CLAIM OF DEDUCTIONS U/S 54F OF THE ACT , WERE FOUND TO BE FALSE AND THE ASSESSEE DELIBERATELY FILED THE SAID WRONG CLAIM TO REDUCE HIS TAX LIABILITY , WHICH THE ASSESSEE IMMEDIATELY WITHDREW ON BEING CO NFRONTED AND CORNERED BY THE REVENUE. IN OUR CONSIDERED VIEW BASED ON PEC ULIAR FACTS AND CIRCUMSTANCES OF THE CASE , IT WAS WHEN THE ASSESSE E WAS CONFRONTED AND CORNERED BY THE REVENUE, THE ASSESSEE WAS COMPELLED TO COME OUT WITH WITHDRAWAL OF HIS CLAIMS FILED IN RETURN OF INCOME WHICH CLAIMS WERE IN FACT CAMOUFLAGED BY THE ASSESSEE BY WAY OF DEED OF SURRE NDER OF TENANCY DATED 12- 04-2007 TO CLAIM LONG TERM CAPITAL GAINS AND DEDUCT IONS U/S 54F OF THE ACT . THE CONTENTIONS OF THE ASSESSEE THAT HE SURRENDERED THE CLAIMS AS DETAILED ABOVE TO AVOID LONG AND PROTRACTED LITIGATIONS AND TO BUY PEACE OF MIND IS WRONG AND MISLEADING AS THE ASSESSEE SURRENDERED TH E CLAIMS ON BEING CORNERED AND CONFRONTED BY THE REVENUE. THE RATIO OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA (P) LTD.(SUP RA) AND DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF VIRENDRA K . MEHTA V. DCIT(SUPRA) RELIED UPON BY THE LD. D.R. ARE CLEARLY APPLICABLE IN THE CASE OF THE ASSESSEE AS THE ASSESSEE HAD CAMOUFLAGED THE REAL TRANSACTIO NS BY USING COLORABLE AND SHAM DEVICES BY WAY OF DEED OF SURRENDER OF TEN ANCY DATED 12-04-2007 TO REDUCE TAX LIABILITY , WHILE THE FACT OF THE MAT TER WAS THAT THE ASSESSEE WAS NEVER EVER HOLDING THE SUB-TENANCY OF THE SAID PREM ISES OR SO CALLED PERMISSION FROM MR RAJNI C SHAH SINCE THE YEAR 1995 TO OCCUPY AND USE THE SAID PREMISES AND IN-FACT THE SAID PREMISES WAS NEV ER IN OCCUPATION/POSSESSION OF THE ASSESSEE SINCE THE YEA R 1995 TILL 2007. THE CLAIM OF THE ASSESSEE MADE IN THE RETURN OF INCOME TO DECLARE THE INCOME AS LONG TERM CAPITAL GAIN ON SURRENDER OF TENANCY VIDE REGISTERED DEED DATED 12- ITA 6740/MUM/2012 21 04-2007 WAS IN-FACT WRONG CLAIM LODGED TO REDUCE TH E TAX LIABILITY. THE ASSESSEE HIMSELF WITHDREW THE SAID CLAIM WHEN CORN ERED AND CONFRONTED BY THE REVENUE AND THE CONTENTIONS OF THE ASSESSEE THA T HE WITHDREW THE CLAIM VOLUNTARILY IN ORDER TO AVOID LONG AND PROTRACTED L ITIGATION WITH THE REVENUE AND TO BUY PEACE OF MIND ARE NOT CORRECT. THE ASSES SEE HAS ALSO NOT CHALLENGED THE ASSESSMENT ORDER FRAMED BY THE REVEN UE U/S 143(3) OF THE ACT IN THE APPELLATE FORUMS WHICH WAS FRAMED AFTER CLAI MS AS SET OUT BY THE ASSESSSEE IN RETURN OF INCOME WAS WITHDRAWN BY THE ASSESSEE AFTER BEING CORNERED AND CONFRONTED BY THE REVENUE. THE HONBLE SUPREME COURT IN THE CASE OF MAK DATA P RIVATE LIMITED V. CIT (2013) 358 ITR 593(SC) HAS OBSERVED THAT VOLUNTARY DISCLOSURE DOES NOT RELEASE THE ASSESSEE FROM MISCHIEF OF PENAL PROCEED INGS U/S 271(1)(C) OF THE ACT AND THE AO SHALL NOT BE CARRIED AWAY BY THE PLE A OF THE ASSESSEE LIKE VOLUNTARY DISCLOSURE , BUY PEACE , AVOID LITIGA TION , AMICABLE SETTLEMENT ETC. TO EXPLAIN AWAY ITS CONDUCT , AS UNDER: 6. WE HAVE HEARD COUNSEL ON EITHER SIDE. WE FULLY CON CUR WITH THE VIEW OF THE HIGH COURT THAT THE TRIBUNAL HAS NOT PROPERL Y UNDERSTOOD OR APPRECIATED THE SCOPE OF EXPLANATION 1 TO SECTION 2 71(1)(C) OF THE ACT, WHICH READS AS FOLLOWS :- 'EXPLANATION 1 - WHERE IN RESPECT OF ANY FACTS MATE RIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEA LS) OR THE COMMISSIONER TO BE FALSE, OR ITA 6740/MUM/2012 22 (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT A BLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCL OSED 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-SECTION, BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEE N CONCEALED.' 7. THE AO, IN OUR VIEW, SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE 'VOLUNTARY DISCLOSURE', 'BUY PEACE', 'AVOID LITIGATION', 'AMICABLE SETTLEMENT', ETC. TO EXPLAIN AWAY ITS CON DUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FO R CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. EXPLANATION TO SECTION 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AO, BETWEEN REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION, HAS BEEN DISCHARGED BY HIM, THE ONUS SHIFTS ON THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE INCOME AND N OT OTHERWISE. 8. ASSESSEE HAS ONLY STATED THAT HE HAD SURRENDERED T HE ADDITIONAL SUM OF RS.40,74,000/- WITH A VIEW TO AVOID LITIGATION, BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TOWARDS PRODUCT IVE WORK AND TO MAKE AMICABLE SETTLEMENT WITH THE INCOME TAX DEPART MENT. STATUTE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES UNDER THE EXP LANATION 1 TO SECTION 271(L)(C) OF THE ACT. IT IS TRITE LAW THAT THE VOLU NTARY DISCLOSURE DOES NOT RELEASE THE APPELLANT-ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. ITA 6740/MUM/2012 23 THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKE S A VOLUNTARY DISCLOSURE OF HIS CONCEALED INCOME, HE HAD TO BE AB SOLVED FROM PENALTY. 9. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTION MADE BY THE AO IN THE SEARCH CONDUCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATION, IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURING THE COURSE OF ASSES SMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOCUMENTS COMPRISING OF SH ARE APPLICATION FORMS, BANK STATEMENTS, MEMORANDUM OF ASSOCIATION O F COMPANIES, AFFIDAVITS, COPIES OF INCOME TAX RETURNS AND ASSESS MENT ORDERS AND BLANK SHARE TRANSFER DEEDS DULY SIGNED, HAVE BEEN I MPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CON DUCTED ON 16.12.2003, IN THE CASE OF A SISTER CONCERN OF THE ASSESSEE. THE SURVEY WAS CONDUCTED MORE THAN 10 MONTHS BEFORE THE ASSESS EE FILED ITS RETURN OF INCOME. HAD IT BEEN THE INTENTION OF THE ASSESSE E TO MAKE FULL AND TRUE DISCLOSURE OF ITS INCOME, IT WOULD HAVE FILED THE R ETURN DECLARING AN INCOME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERE D LATER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. CONSEQUENTLY, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS TRUE INCOM E. IT IS THE STATUTORY DUTY OF THE ASSESSEE TO RECORD ALL ITS TRANSACTIONS IN THE BOOKS OF ACCOUNT, TO EXPLAIN THE SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCOME IN THE RETURN OF INCOME FILED BY IT FROM YEA R TO YEAR. THE AO, IN OUR VIEW, HAS RECORDED A CATEGORICAL FINDING THAT HE WA S SATISFIED THAT THE ASSESSEE HAD CONCEALED TRUE PARTICULARS OF INCOME A ND IS LIABLE FOR PENALTY PROCEEDINGS UNDER SECTION 271 READ WITH SEC TION 274 OF THE INCOME TAX ACT, 1961. 10. THE AO HAS TO SATISFY WHETHER THE PENALTY PROCEEDI NGS BE INITIATED OR NOT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THE AO IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO ITA 6740/MUM/2012 24 WRITING. THE SCOPE OF SECTION 271(L)(C) HAS ALSO BE EN ELABORATELY DISCUSSED BY THIS COURT IN UNION OF INDIA V. DHARME NDRA TEXTILE PROCESSORS [2008] 13 SCC 369 AND CIT V. ATUL MOHAN BINDAL[2009] 9 SCC 589. 11. THE PRINCIPLE LAID DOWN BY THIS COURT, IN OUR VIEW , HAS BEEN CORRECTLY FOLLOWED BY THE REVENUE AND WE FIND NO ILLEGALITY I N THE DEPARTMENT INITIATING PENALTY PROCEEDINGS IN THE INSTANT CASE. WE, THEREFORE, FULLY AGREE WITH THE VIEW OF THE HIGH COURT. HENCE, THE A PPEAL LACKS MERIT AND IS DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIREND ER K. MEHTA V. DCIT IN (2014) 50 TAXMANN.COM 217(BOMBAY) HELD ON ALMOST SI MILAR FACTS THAT WHERE ASSESSEE CLAIMED THAT FLATS SHOWN IN RETURN OF INCO ME WAS ACQUIRED BY SURRENDERING HIS TENANCY RIGHTS BUT FAILED TO PROVE SUCH TENANCY RIGHTS , PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT W AS JUSTIFIED, AS UNDER: 6. AFTER PERUSING THE CONCURRENT ORDERS IN THIS CASE, WE ARE NOT IMPRESSED BY ANY OF THESE CONTENTIONS. TRUE, IT IS THAT THE REVENUE HAS TO PROVE THAT THE INGREDIENTS OR PRECONDITIONS BASED ON WHICH IMPOSITION OF PENALTY IS PERMISSIBLE, ARE PRESENT A ND THAT IS WHY THE PENALTY IS IMPOSED. TRUE, IT IS THAT THE LIMITE D ASSISTANCE CAN BE DERIVED FROM THE QUANTUM PROCEEDING IN SUCH MATT ERS BUT ONE FINDS IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THAT THE FOUNDATION OR BASIS ON WHICH THE ASSESSEE BEFORE US CLAIMED THE BENEFIT WAS HIGHLY DOUBTFUL AND QUESTIONABLE. THE A SSESSING OFFICER, THE COMMISSIONER OF INCOME TAX (APPEALS) A ND THE TRIBUNAL ALL CONCURRENTLY FOUND THAT THE EXPLANATION WHICH W AS FURNISHED BY THE ASSESSEE FALLS MISERABLY SHORT OF THE REQUIRED STANDARD IN THAT IT IS NOT BONAFIDE AT ALL. IF THE ASSESSEE WAS A TE NANT OF A BUILDING ITA 6740/MUM/2012 25 AND WHICH WAS REQUIRED TO BE PULLED DOWN AND THERE WAS, THEREFORE, AN ARRANGEMENT WITH THE LANDLADY OF PROV IDING TWO FLATS, THEN, THAT WAS A VERSION OF THE ASSESSEE WHICH WAS BEING TESTED. THE AUTHORITIES HAD INDICATED AND WITH SUFFICIENT C LARITY THAT THE CLAIM OF TENANCY IS NOT GENUINE. THE DOCUMENTS IN R ELATION TO THAT CLAIM ARE HIGHLY SUSPICIOUS AND THE CONTENTS THEREO F CANNOT BE BELIEVED. IN MEETING SUCH A CASE, THE ASSESSEE CAME FORWARD AND SAID THAT THE REGISTERED AGREEMENT EVIDENCED A GENU INE TENANCY. THEREFORE, SUMMONS WAS ISSUED TO THE LANDLADY AND I N RESPONSE TO WHICH HER DAUGHTER APPEARED. SHE HAS STATED THAT PR IOR TO DEMOLITION OF THE BUILDING, THERE WERE 5 TENANTS IN CLUDING ONE MR. SACHDEVA. THAT MR. SACHDEVA TRANSFERRED THE TENANCY TO THE ASSESSEE BEFORE US AND WITHOUT THE KNOWLEDGE OF THE LANDLADY WAS THE RESPONSE OF THE LANDLADY. IT IS, THEREFORE, RIGHTLY HELD THAT SO LONG AS THE LIST OF AUTHORIZED TENANTS IN THE BU ILDING DOES NOT CONTAIN THE NAME OF THE ASSESSEE, THEN, HIS ENTERIN G UPON THE PROPERTY HAS TO BE PROBED FURTHER. THIS PROBE AND I N WHICH THE EXPLANATION WAS FORWARDED THAT ONE MR. SACHDEVA, TH E ORIGINAL TENANT SURRENDERED HIS TENANCY RIGHTS AND RATHER RE LINQUISHED THE FLAT IN FAVOUR OF THE LANDLADY. EVEN THAT VERSION W AS NOT FOUND TO BE GENUINE. THE FINDINGS OF THE ASSESSING OFFICER B ASED ON THE ANSWERS GIVEN AND THE REPLIES FURNISHED ARE REPRODU CED AT PARA-7 OF THE TRIBUNAL'S ORDER. WE ARE OF THE OPINION THAT THE TRIBUNAL RIGHTLY HELD THAT THIS WAS A FIT CASE FOR IMPOSITIO N OF PENALTY. THE ENTIRE EXPLANATION WITH REGARD TO THE TENANCY RIGHT S, IF SURRENDERED HAS NOT BEEN FOUND TO BE TRUE. EVEN IN PENALTY PROC EEDINGS, THE ASSESSEE WAS NOT ABLE TO GIVE A SATISFACTORY EXPLAN ATION THAT THE CLAIM MADE BY HIM IN THE RETURN OF INCOME WAS BONAF IDE AND THAT HE HAD DECLARED ALL THE MATERIAL FACTS FOR COMPUTAT ION OF INCOME. IT IS IN THESE CIRCUMSTANCES THAT THE PENALTY WAS HELD TO BE JUSTIFIED. ITA 6740/MUM/2012 26 THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WER E CLEARLY DISTINGUISHABLE FROM THE JUDGMENTS AND WHICH HAVE B EEN NOTED BY THE TRIBUNAL IN PARA-10 OF ITS ORDER. 7. EVEN THE PRINCIPLE RELIED UPON IN CASE OF ANANTHARA M MUST BE APPLIED IN THE BACKDROP OF THE FACTS IN EACH CASE. THE ASSESSEE BEFORE THE HON'BLE SUPREME COURT WAS ABKARI CONTRAC TOR. THE RETURN OF INCOME WAS FILED AND DISCLOSING A TURNOVE R AND CERTAIN INCOME. THAT THE INGREDIENTS OF THE RETURN WAS NOT ACCEPTED BY THE INCOME TAX OFFICER. HE NOTICED THAT THERE ARE SEVER AL DEPOSITS AND ENTERED IN THE NAME OF CERTAIN SHOP-KEEPERS. THE AS SESSEE'S EXPLANATION WAS NOT FOUND TO BE ACCEPTABLE AND IT C AME TO BE REJECTED. THE BOOKS OF ACCOUNT WERE ALSO REJECTED. IN APPEAL BEFORE THE APPELLATE ASSISTANT COMMISSIONER OF INCOME TAX AND BEFORE THE APPELLATE TRIBUNAL, THE ASSESSEE SUCCEEDED IN G ETTING THE ASSESSED INCOME REDUCED TO RS.1,30,000/- IN ADDITIO N TO BOOK PROFITS. THAT IS HOW IN THE PENALTY PROCEEDINGS, HE URGED THAT THE PENALTY PROCEEDINGS ARE QUASI-CRIMINAL IN NATURE. T HE BURDEN OF PROOF LAY ON THE REVENUE TO ESTABLISH THAT THE PENA LTY WAS ATTRACTED AND THAT INTANGIBLE ADDITION REPRESENTED REAL INCOM E. THAT IS HOW THE HON'BLE SUPREME COURT REITERATED THE SETTLED PR INCIPLES THAT PENALTY IS A RESULT OF QUASI-CRIMINAL PROCEEDINGS A ND THE WANT OF PROOF IS, THEREFORE, STRICT AND A TEST DIFFERENT TH AN THAT OF ASSESSMENT PROCEEDINGS HAS TO BE APPLIED. THERE IS NO DISPUTE AND NO QUARREL ABOUT THIS LEGAL PRINCIPLE BUT WHETHER T HAT HAS BEEN SATISFIED OR NOT WILL HAVE TO BE DECIDED AND DETERM INED IN THE FACTS AND CIRCUMSTANCES OF EACH CASE. WE DO NOT FIND THAT IN THIS CASE EITHER OF THE AUTHORITIES HAVE DEVIATED FROM THIS L EGAL PRINCIPLE OR HAVE NOT INVOKED AND APPLIED IT AT ALL. ONCE THE IM POSITION OF PENALTY WAS JUSTIFIED AND AFTER APPLICATION OF THE RELEVANT TESTS ITA 6740/MUM/2012 27 AND THERE WAS MATERIAL TO IMPOSE SUCH PENALTY, THEN , THIS IS NOT A FIT CASE FOR ENTERTAINING THIS APPEAL. THE APPEAL D OES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW AS THE ORDERS OF THE TRIBUNAL CANNOT BE TERMED AS PERVERSE OR VITIATED BY ANY ERR OR OF LAW APPARENT ON THE FACE OF THE RECORD. IN RELATION TO THE QUANTUM OR MEASURE OF PENALTY AND WHICH IS IN THE CASE OF SECT ION 271(1)(C) READ WITH THE EXPLANATION (1) THE LAW POSTULATES TH AT IN CASES REFERRED BY CLAUSE (C) AND (D) IN ADDITION TO THE T AX, IF ANY, PAYABLE BY THE ASSESSEE, A SUM WHICH SHALL NOT BE LESS THAN , BUT SHALL NOT EXCEED THREE TIMES, THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INC OME OR FRINGE BENEFITS OR THE FURNISHING OF INACCURATE PARTICULAR S OF SUCH INCOME OR FRINGE BENEFITS, SHALL BE PAYABLE BY WAY OF PENA LTY. IT IS THAT CLAUSE WHICH HAS BEEN APPLIED. WE DO NOT THINK THAT THE REASONING OF THE TRIBUNAL IN THIS REGARD AND PARTICULARLY IN PARA-9 OF THE ORDER UNDER CHALLENGE RAISES ANY SUBSTANTIAL QUESTION OF LAW. THE APPEAL CANNOT BE ENTERTAINED EVEN ON THAT GROUND. IT IS AC CORDINGLY DISMISSED. THE DECISION RELIED UPON BY THE ASSESSEE ARE CLEARL Y DISTINGUISHABLE AS IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PRIVATE LIMIT ED(SUPRA) , HONBLE SUPREME COURT HELD THAT WHERE THE ASSESSEE FILED A CLAIM OF DEDUCTION WHICH DID NOT FOUND FAVOUR WITH THE REVENUE BEING NOT SUS TAINABLE AT LAW , WHILE ADMITTEDLY NO INFORMATION GIVEN IN THE RETURN OF IN COME WAS FOUND TO BE INCORRECT OR INACCURATE WILL NOT MAKE THE ASSESSEE LIABLE TO PENALTY U/S 271(1)(C) OF THE ACT AS MERELY MAKING AN INCORRECT CLAIM WILL NOT TANTAMOUNT TO FURNISHING OF INACCURATE PARTICULARS , WHILE IN THE INSTANT CASE THE ASSESSEE MADE A WRONG CLAIM IN THE RETURN OF INCOME OF HAVIN G SUB-TENANCY IN THE SAID PREMISES WHILE THE FACT OF THE MATTER IN THE PRESEN T CASE BEFORE US IS THAT THE ASSESSEE DID NOT HAD ANY SUCH SUB-TENANCY IN THE SA ID PROPERTY AS THE ITA 6740/MUM/2012 28 ASSESSEE FAILED TO PROVE THE EXISTENCE OF SUB-TENAN CY AND THE CLAIM OF THE ASSESSEE WAS FOUND TO BE FALSE CLAIM AND EXPLANATIO NS OFFERED BY THE ASSESSEE WERE FOUND BY THE REVENUE TO BE FALSE AND CLEARLY E XPLANATION1 TO SECTION 271(1)(C) OF THE ACT IS HIT AND THE ASSESSE IS LIAB LE FOR PENALTY U/S 271(1)(C) OF THE ACT, SIMILARLY , IN THE JUDGMENT OF HONBLE HIGH COURT O F MADHYA PRADESH IN CIT V. SURESH CHANDRA MITTAL(SUPRA) RELIED UPON BY THE ASS ESSEE WHICH WAS ALSO AFFIRMED BY THE HONBLE SUPREME COURT, THE ASSESSEE SURRENDERED THE AMOUNT BY FILING REVISED RETURN OF INCOME AFTER PERSISTENT QUERIES FROM THE AO , WHICH REVISED RETURN OF INCOME WAS REGULARIZED BY THE REV ENUE AND WHERE THE ASSESEEE CONTENDED THAT HE SURRENDERED THE AMOUNT T O BUY PEACE AND TO COME OUT OF VEXED LITIGATION WITH THE REVENUE, IT W AS HELD THAT EXPLANATION WAS BONAFIDE AND PENALTY IS NOT EXIGIBLE . THIS CAS E IS DISTINGUISHABLE AS IN THIS CASE OF CIT V. SURESH CHANDRA MITTAL(SUPRA) , THE REVISED RETURNS WERE REGULARIZED BY THE REVENUE AND ALSO SURRENDER WAS M ADE ON PERSISTENT QUERIES BY THE AO WHEREAS REVENUE DID NOT DISCHARGE D ITS BURDEN OF PROVING THAT THERE WAS CONCEALMENT OF INCOME BY THE TAX-PAY ER IN THE SAID CASE AND IT RESTED ITS CONCLUSION ON THE ACT OF VOLUNTARY SURRE NDER BY THE TAX-PAYER , WHILE IN THE INSTANT CASE BEFORE US, THE REVENUE MA DE DETAILED ENQUIRIES AND INVESTIGATIONS , THEREAFTER CORNERED AND CONFRONTED THE ASSESSEE WITH COGENT INCRIMINATING EVIDENCES TO DISPROVE THE EXISTENCE O F SUB-TENANCY WHEREBY THE ASSESSEE WAS COMPELLED TO SURRENDER THE CLAIMS DURI NG ASSESSMENT PROCEEDINGS WHICH WERE ALSO NOT FILED VIDE REVISED RETURN OF INCOME. THE ASSESSEE ALSO RELIED UPON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF UOI V. RAJASTHAN SPINNING AND WEAVING MILLS (2009) 224 CTR 1(SC) AND IN OUR CONSIDERED VIEW, THE SAME IS IN-FACT SUP PORTIVE TO THE DECISION TAKEN BY US TO CONFIRM/SUSTAIN THE PENALTY IN THE I NSTANT CASE. IN THE INSTANT CASE , THERE IS A REPORTING OF FALSE AND WRONG FACT S IN THE RETURN OF INCOME ITA 6740/MUM/2012 29 FILED BY THE ASSESSEE WHEREIN IT IS CLAIMED THAT TH E ASSESSEE HOLDS SUB- TENANCY IN THE AFORE-STATED PROPERTY SINCE THE YEAR 1995 TILL 2007 AND PROCEEDS RECEIVED ON PURPORTED ALLEGED SURRENDER OF TENANCY WERE DELIBERATELY CAMOUFLAGED AS INCOME FROM LONG TERM CAPITAL GAINS WITH AN INTENT TO CLAIM DEDUCTION U/S 54F OF THE ACT TO REDUCE TAX LIABILIT Y. THE RATIO OF DECISION IN RAJASTHAN SPINNING AND WEAVING MILLS(SUPRA) CLEARL Y STIPULATES THAT PENALTY IS PUNISHMENT FOR AN ACT OF DELIBERATE DECEPTION BY THE ASSESSEE WITH AN INTENT TO EVADE DUTY BE ADOPTING ANY OF THE MEANS M ENTIONED IN THE SECTION I.E. FRAUD, COLLUSION OR ANY WILLFUL MIS-STATEMENT OR SUPPRESSION OF FACTS, OR CONTRAVENTION OF ANY OF THE PROVISION OF THE CENTRA L EXCISE ACT OR OF THE RULES MADE THERE-UNDER . IT IS ALSO PERTINENT TO MENTION HERE THAT DECISION IN THE CASE OF RAJASTHAN SPINNING AND WEAVING MILLS(SUPRA ) WAS RENDERED BY THE HONBLE SUPREME COURT IN CONTEXT OF CENTRAL EXCISE ACT WHILE THE PROCEEDINGS BEFORE US ARE UNDER INCOME TAX ACT,1961.THE HONBLE SUPREME COURT HELD IN PARA 23 AS UNDER : 23. THE DECISION IN DHARAMENDRA TEXTILE PROCESSORS CA SE (SUPRA) MUST, THEREFORE, BE UNDERSTOOD TO MEAN THAT THOUGH THE AP PLICATION OF SECTION 11AC WOULD DEPEND UPON THE EXISTENCE OR OTHERWISE OF THE CONDITIONS EXPRESSLY STATED IN THE SECTION, ONCE THE SECTION IS APPLICAB LE IN A CASE THE CONCERNED AUTHORITY WOULD HAVE NO DISCRETION IN QUANTIFYING T HE AMOUNT AND PENALTY MUST BE IMPOSED EQUAL TO THE DUTY DETERMINE D UNDER SUB- SECTION (2) OF SECTION 11A. THAT IS WHAT DHARAMENDRA TEXTILE PROCESSORS CASE (SUPRA) DECIDES. HENCE , IN OUR CONSIDERED VIEW KEEPING IN VIEW FACT S AND CIRCUMSTANCES OF THE CASE AND AS PER OUR DETAILED DISCUSSIONS IN THE PRE CEDING PARAS, PENALTY LEVIED U/S 271(1)(C) OF THE ACT BY THE AO NEEDS TO BE CONFIRMED AND THE ORDER OF THE LEARNED CIT(A) IS ORDERED TO BE SET ASIDE. W E HOWEVER ARE INCLINED TO RESTRICT THE PENALTY LEVIED U/S 271(1)(C) OF THE AC T TO THE AMOUNT COMPUTED ITA 6740/MUM/2012 30 @100% OF THE TAX SO EVADED BY THE ASSESSEE. WE WOUL D ALSO LIKE TO CLARIFY THAT WE HAVE CONFINED OURSELVES TO THE PENALTY LEVI ED WITH RESPECT TO GROUND ARISING OUT OF CLAIM OF SUB-TENANCY AS SET OUT BY T HE ASSESSEE AND CLAIM OF DEDUCTION U/S54F OF THE ACT AS PER OUR DECISION IN PRECEDING PARAS , AND OTHER GROUNDS ON WHICH PENALTY WAS DELETED BY THE L EARNED CIT(A) WAS NOT AGITATED BEFORE THE TRIBUNAL BY THE REVENUE NOR WAS SUPPORTED BY GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL AND HENCE WE HAVE NOT ADJUDICATED THE SAME. WE ORDER ACCORDINGLY. 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA N0. 6740/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09 IS PA RTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2016. # $% &' 03-08-2016 SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 03-08-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 6740/MUM/2012 31 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. => 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI