THE ITO-1(1), Ujjain V. SHRI ASHIQUE HUSSAIN JINWALA, Ujjain

ITA 712/IND/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6095 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 03-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: GIRISH AGRAWAL
• Keywords: Principle of natural justice; Revised return
• Section: 143(3); 147; 131; 27; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 712/IND/2015 A.Y. : 2011-12 INCOME-TAX OFFICER, 1(1), SHRI ASHIQUE HUSSAIN JINWALA,PROP.M/S.NOBEL BUILDERS, UJJAIN VS 157, SAIFY MOHALLA, UJJAIN APPELLANT RESPONDENT PAN NO. ACKPJ4808R APPELLANTS BY : SHRI R. A. VERMA, DR RESPONDENT BY : SHRI GIRISH AGRAWAL, C. A. O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)-I, BHOPAL, DATED 05.12.2014 FOR THE ASSE SSMENT YEAR 2008-09. DATE OF HEARING : 17 . 0 5 .2016 DATE OF PRONOUNCEMENT : 17 . 0 5 .2016 ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 2 2 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUND OF APPEAL :- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, ,OF RS. 27,48,000/-, WHICH WAS LEVIED ON ACCOUNT OF UNDISCLOSED INCOME REPRESENTED BY UNDISCLOSED INVESTMENT IN AGRICULTURAL LAND AS IS EVIDENT FROM ASSESSMENT ORDER AND PENALTY ORDER. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER. 4. IN RESPONSE TO NOTICE U/S 148 ISSUED ON 03/03/2014 , ASSESSEE FILED RETURN ON 22/04/2014 DECLARING TOTAL INCOME AT RS. 1,01,26,240/-, VOLUNTARILY DISCLOSING THE INVES TMENT IN AGRICULTURAL LAND FOR RS. 91,60,000/- AND PAID THE TAX OF RS. 38,85,811/- ON 16/04/2014 I.E. BEFORE FURNISHING TH E RETURN. THE SAID RETURN WAS ACCOMPANIED BY A NOTES TO RETUR N GIVING ALL THE EXPLANATIONS AND DETAILS ABOUT THE ADDITION AL INCOME OFFERED IN RELATION TO TRANSACTION OF PURCHASE OF A GRICULTURAL LAND AND SEEKING IMMUNITY FROM PENALTY PROVISIONS. THE AO ACCEPTED NOTES TO RETURN FILED ALONG WITH THE RETU RN AND DID NOT CONTROVERT THE SAME. IT IS NOT A CASE WHERE THE ASSESSEE ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 3 3 HAS NOT DISCLOSED FULL DETAILS AT THE TIME OF REASS ESSMENT. DURING THE COURSE OF REASSESSMENT, THE EXPLANATION GIVEN BY THE ASSESSEE WAS NEITHER REJECTED NOR WAS IT HELD TO BE MALA FIDE . THE ASSESSEE DID NOT SUPPLY ANYTHING IN HIS REASS ESSMENT PROCEEDINGS WHICH WAS FOUND TO BE FALSE BY THE LD. AO NOR STATED ANYTHING FALSE EXCEPT FOR TRUTH IN HIS STATE MENT RECORDED UNDER AN OATH ON 03.03.2014 IN THE ASSESSM ENT PROCEEDINGS OF HIS SPOUSE, SMT. MANAK JINWALA. IN RE SPECT OF VOLUNTARY OFFER OF ADDITIONAL INCOME OF RS. 91,60,0 00/- TOWARDS DIFFERENCE BETWEEN PURCHASE PRICE AND AMOUNT RECORDED IN REGULAR BOOKS OF ACCOUNT FOR PURCHASE O F IMPUGNED AGRICULTURAL LAND, ENQUIRY FOR VERIFICATIO N OF CASH DEPOSIT OF RS. 32,00,000/- IN THE SAVING BANK ACCOU NT WAS MADE IN THE ASSESSMENT PROCEEDINGS U/S 143(3) FOR A Y 2011- 12 OF SMT. MANAK JINWALA (SPOUSE OF THE ASSESSEE). 5. DURING HER ASSESSMENT PROCEEDINGS, IN THE STATEMENT RECORDED OF SMT. MANAK JINWALA VIDE SUMMON U/S 131, SHE STATED ON OATH THAT- I. SHE DID NOT ENTER INTO ANY AGREEMENT FOR SALE OF HO USE PROPERTY ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 4 4 II. THE CASH OF RS. 32,00,000/- DEPOSITED IN THE ACCOUN T WAS THAT OF HER HUSBAND (THE ASSESSEE) III. IT WAS DEPOSITED BY HIM (THE ASSESSEE) IV. THE SAVING BANK ACCOUNT WAS A JOINT ACCOUNT (SHE AND THE ASSESSEE) V. DEPOSITS WERE MADE BY HER HUSBAND VI. RS. 43,00,000/- WAS ALSO DEPOSITED IN THE SAME BANK ACCOUNT BY HER HUSBAND VII. PAYMENT MADE TO SHRI KALYAN SINGH PERTAINED TO TRANSACTION ENTERED BY HER HUSBAND FOR PURCHASE OF LAND AT VILLAGE GURADIA BHIL FROM SHRI KALYAN SINGH VIII. SOURCES OF SAID DEPOSITS AND INVESTMENT WILL BE EXPLAINED BY HER HUSBAND 6. KEEPING IN VIEW THE STATEMENT OF SMT. MANAK JINWALA AS STATED ABOVE, DURING HER ASSESSMENT PROCEEDINGS, STATEMENT OF HER HUSBAND SHRI ASHIQUE HUSAIN JINWALA (THE ASSESSEE) WAS ALSO RECORDED ON 03.03.2014, WHEREIN TH E ASSESSEE STATED ON OATH THAT- 1. CASH RS. 75,00,000/- WAS DEPOSITED BY HIM IN THE JOI NT SAVING BANK ACCOUNT (JOINTLY HELD WITH HIS WIFE) WITH HDFC BANK, DEWAS 2. HE PURCHASED 18 BIGHA AGRICULTURAL LAND AT VILLAGE GURADIA BHIL FROM SHRI KALYAN SINGH FOR A SALE ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 5 5 CONSIDERATION OF RS. 1,02,60,000/- BUT THE REGISTRA TION WAS DONE FOR RS. 11,00,000/- ONLY. 3. OUT OF THE SAID TOTAL INVESTMENT, RS. 13,24,450/- ( RS. 11,00,000/- PLUS REGISTRY CHARGES RS 2,24,450/-) WAS DISCLOSED IN HIS REGULAR BOOKS OF ACCOUNT. 4. ASSESSEE VOLUNTARILY OFFERED RS. 91,60,000/- (DIFFE RENCE BETWEEN 1,02,60,000/- AND 11,00,000/-) AS ADDITIONA L INCOME AND AGREED TO PAY DUE TAX WITH INTEREST, OWING TO ILL ADVISE BY THE ERSTWHILE COUNSEL, BETRAYAL BY THE PROVIDERS OF FUNDS FOR PURCHASE OF SAID LAND, AS A MEASURE TO COOPERATE WITH THE DEPARTMENT AND TO BUY PEACE OF MIND. 7. ALL THE FOLLOWING EVENTS TOOK PLACE ON 3.3.2014 :- STATEMENT OF SMT. MANAK JINWALA RECORDED U/S 131 BY THE SAME ASSESSING OFFICER AS THAT OF THE ASSESSEE. SUMMON TO ASSESSEE U/S 131 TO APPEAR AT 3.00 PM BEFORE THE AO (SAME OFFICER) STATEMENT OF THE ASSESSEE RECORDED U/S 131 BY THE A O (SAME OFFICER) NOTICE U/S 148 ISSUED AND SERVED ON THE ASSESSEE BY THE AO (SAME OFFICER). 8. IT IS EVIDENT FROM THE ABOVE FACTS THAT THERE WAS NO OCCASION OR OPPORTUNITY FOR THE ASSESSEE TO FILE TH E RETURN IMMEDIATELY AFTER RECORDING OF HIS STATEMENT U/S 13 1 AND ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 6 6 BEFORE THE ISSUE OF NOTICE U/S 148 AS BOTH HAPPENED ON 03.03.2014 NEAR TO THE OFFICIAL CLOSING HOURS OF TH AT DAY. 9. REASSESSMENT WAS COMPLETED U/S 143(3) RWS 147 OF THE ACT VIDE ORDER DATED 13/06/2014 AT RETURNED INC OME OF RS. 1,01,26,240/- WHICH INCLUDED ADDITIONAL INCOME VOLUNTARILY OFFERED IN THE SUM OF RS. 91,60,000/-. NO ADDITION OR DISALLOWANCE WAS MADE TO THE RETURNED INCOME. DEMA ND RAISED IN THE REASSESSMENT SO MADE NIL. THERE IS NO LOSS TO THE REVENUE. THE RETURN WAS REGULARIZED BY THE REVEN UE BY COMPLETING THE PROCEEDINGS U/S 147. THE LD. AO DID NOT TAKE ANY OBJECTION IN THE REASSESSMENT ORDER THAT THE DE CLARATION OF INCOME MADE BY THE ASSESSEE IN HIS RETURN AND IN HI S EXPLANATION WERE NOT BONA FIDE . PENALTY PROCEEDINGS WERE INITIATED WITHOUT MENTIONING SPECIFIC CHARGE FOR THE SAID INITIATION AND ORDER WAS PASSED IMPOSING A PENALTY O F RS. 27,48,000/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 19 61. 10. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS ALLOWED THE APPEAL BY OBSERVING AS UNDER :- 4.1 THROUGH THESE GROUNDS OF APPEAL THE APPELLANT HAS CHALLENGED THE IMPOSITION OF PENALTY OF RS. 27,48,0 00/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. THE AO I MPOSED ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 7 7 THE PENALTY ON THE BASIS OF DIFFERENCE IN THE ORIGI NAL RETURNED INCOME AND REVISED RETURNED INCOME. IN THE PAGE 4 OF THE ASSESSMENT ORDER THE AO INITIATED THE PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME-TAX ACT, 19 61. WHILE INITIATING THE PENALTY PROCEEDINGS THE AO HAS NOT MENTIONED WHETHER THE PENALTY HAS BEEN INITIATED FO R CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF THE INCOME. 4.1.1 HON'BLE M.P. HIGH COURT IN THE CASE OF CIT V S. SHYAMLAL M. SONI, (2005), 144 TAXMAN 666 (MP) HELD THAT, NO PENALTY U/S 271(1)(C) COULD BE LEVIED IN CASE, WHERE INCOME RETURNED IN REVISED RETURNS WAS ACCEPTED AND ASSESSED IN HANDS OF ASSESSEE EVEN THOUGH REVISED RETURNS WERE FILED AFTER SEARCH AND SUBSEQUENT TO I NQUIRIES MADE BY DEPARTMENT DURING COURSE OF ASSESSMENT PROCEEDINGS. 4.1.2 THE PENALTY U/S 271(1)(C) CAN BE LEVIED ONLY WITH TWO CONDITIONS PRESCRIBED FOR LEVY OF PENALTY RE SATISFIED. ONE SUCH CONDITION IS FOR CONCEALMENT OF INCOME AND OTHER FOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THESE TWO ARE DISTINCT LIMBS. IT HAS ALREAD Y BEEN HELD IN VARIOUS JUDGMENTS THAT WHEN AN ITEM HAS NOT BEEN SHOWN AT ALL, IT WOULD FALL IN THE LIMB OF CONCEALM ENT AND AN ITEM WHICH HAS BEEN SHOWN IN THE RETURN, BUT WRO NGLY WOULD COME UNDER THE LIMB OF FURNISHING OF INACCURA TE PARTICULARS OF INCOME. 4.1.3 IT HAS BEEN HELD BY THE HON'BLE I.T.A.T. VISAKHAPATNAM BENCH IN THE CASE OF GODAVARI TOWNSHI PS (P) LIMITED VS. DCIT, CIRCLE 3(1), VISAKHAPATNAM, ( 2014) 45 TAXMAN.COM 175 (VISAKHAPATNAM TRIB) THAT NO PENALTY U/S 271(1)(C) CAN BE IMPOSED WHEN THERE WAS NO DIFFERENCE BETWEEN ASSESSED INCOME AND RETURNED INC OME. EVEN OTHERWISE, REVISED RETURN FILED BY ASSESSEE BE FORE CARRYING OUT SCRUTINY PROCEEDINGS, GAVE RISE TO A PRESUMPTION THAT ASSESSEE HAD BONA FIDELY ADMITTED HIGHER INCOME. ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 8 8 4.1.4 KEEPING IN VIEW OF THE ABOVE POSITION OF LAW AND FOLLOWING DECISIONS OF ABOVE CITED JUDICIAL AUTHORI TIES THE PENALTY IMPOSED BY THE AO AMOUNTING TO RS. 27,48,00 0/- U/S 271(1)(C) IS DELETED. 11. LD. DR ARGUED THAT THE INSTANT CASE IS COVERED BY EXPLANATION 3 TO SECTION 271(1)(C) OF THE ACT AND C ONTENDED THAT THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY. T HE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE AO. 12. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER RELIED UPON THE FOLLOWING DECISIONS :- A)M.SAJJANRAJ NAHAR V. CIT, (2006 ) 155 TAXMAN 536 (MAD.) B) N.RAJIT V. CIT, (2013, 35 TAXMAN.COM 555 (MAD.) C) BADRI PRASAD OM PRAKASH V. CIT, (1987)163 ITR 44 0 (RAJ). D) PREMPAL GANDHI V. CIT, (2011 335 ITR 23 (P&H). E)CIT VS. DR. SAJJAN SINGH MALIK, (1989) 178 ITR 64 3 (P&H) 13. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THE WRITTEN SUBMISSIONS, WHICH READS AS UND ER :- ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 9 9 MECHANICAL APPROACH TO PENALTY PROCEEDINGS A. PARA 6 OF THE ASSESSMENT ORDER U/S 143(3) RWS 147 D ATED 13.06.2014 MENTIONS PENALTY PROCEEDINGS U/S 271(1)(C) ARE INITIATED FO R WHICH NOTICE IS BEING ISSUED SEPARATELY. B. NOTICE U/S 274 RWS 271 DATED 13.06.2014 ISSUED IN A MECHANICAL WAY WITHOUT DELETING INAPPROPRIATE WORDS AND PARAGRAPHS AS SPECIFICALLY REQUIRED IN THE NOTICE I TSELF. THE SAID NOTICE READS WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2011-12 IT APPEARS TO ME THAT YOU:- *HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. *DELETE INAPPROPRIATE WORDS AND PARAGRAPHS. C. PARA 5 OF THE PENALTY ORDER U/S 271(1)(C) DATED 11. 11.2014 MENTIONS IN VIEW OF THE FACTS DISCUSSED ABOVE, IT IS CLEAR THE ASSESSEE HAS CONCEALED PARTICULARS OF SUCH INCOME FOR WHICH HE IS LIABLE FOR PENALTY U/S 271(1)(C) OF THE I.T.ACT, 19 61. 1. FROM ABOVE IT IS EVIDENT THAT I) IN THE ASSESSMENT ORDER, WITHOUT MENTIONING ANY SPE CIFIC REASON NOR GIVING ANY SPECIFIC DIRECTION, LD. AO IN ITIATED PENALTY PROCEEDINGS AMOUNTING TO JURISDICTIONAL DEF ECT ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 10 10 WHICH CANNOT BE CURED AS THE DEEMING PROVISION OF S ECTION 271(1B) IS NOT APPLICABLE IN THE PRESENT CASE; II) IN THE NOTICE, NO SPECIFIC REASON WAS POINTED OUT F OR CARRYING PENALTY PROCEEDINGS AND III) IN THE PENALTY ORDER, CONCEALMENT OF PARTICULARS OF INCOME HAVE BEEN GIVEN AS THE BASIS OF IMPOSING PENALTY. THUS, THE LD. AO WAS NOT SURE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD EITHER CONCEALED PARTICULARS OF HIS INCOME OR HAD FURNISHE D INACCURATE PARTICULARS, FOR IMPOSING PENALTY. 2. LD. AO HAS NOT RECORDED ANY SATISFACTION IN THE ASS ESSMENT ORDER ABOUT THE CONCEALMENT NOR FOLLOWED THE PROCED URE UNDER SECTION 274 WITH REFERENCE TO THE GROUNDS MEN TIONED IN SECTION 271(1)(C) WHETHER THE NOTICE ISSUED IS FOR THE CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISH ING OF INACCURATE PARTICULARS OF INCOME. 3. NOTICE UNDER SECTION 274 SHOULD SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I.E., WHETH ER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISH ING OF INCORRECT PARTICULARS OF INCOME. SENDING PRINTED FO RM, WHERE ALL THE GROUNDS MENTIONED IN SECTION 271 ARE MENTIO NED, WOULD NOT SATISFY REQUIREMENT OF LAW. THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUSTICE ARE OFFEND ED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPO SED TO THE ASSESSEE. TAKING UP OF PENALTY PROCEEDINGS ON O NE LIMB AND FINDING THE ASSESSEE GUILTY ON ANOTHER LIMB IS BAD IN LAW. 4. NOTICE FOR IMPOSING PENALTY IS NOT IN COMPLIANCE WI TH THE REQUIREMENT OF THE PARTICULAR SECTION AND THEREFORE IT IS A VAGUE NOTICE, WHICH IS ATTRIBUTABLE TO A PATENT NON - APPLICATION OF MIND ON THE PART OF THE LD. AO. ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 11 11 5. THE ISSUE IS DIRECTLY AND SQUARELY COVERED BY THE D ECISION OF YOUR HONORS IN THE CASE OF M.P. STATE TOURISM & OTH ERS ITA NO. 2/IND/2015 ORDER DATED 03.08.2015 SPECIFIC PA RA 10, 11, 12 [INDORE]. 6. SUB-SECTION (1B) TO SECTION 271 IS NOT APPLICABLE T O THE ASSESSEE AS NO ADDITION OR DISALLOWANCE TO THE TOTA L INCOME HAS BEEN MADE BY THE LD. AO IN THE ASSESSMENT ORDER PASSED U/S 143(3) RWS 147. IN THE INSTANT CASE, THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN RETUR N AND THE EXPLANATION INTER ALIA THAT HE HAD DONE SO TO BUY P EACE WITH THE DEPARTMENT AND TO AVOID PROTRACTED LITIGATION W AS ACCEPTED BY THE LD. AO WITHOUT RAISING ANY OBJECTIO N ON THE SAME. ADMITTEDLY, THE LD. AO ACCEPTED THE RETURN FI LED BY THE ASSESSEE, AFTER VERIFICATION OF THE INFORMATION SUB MITTED AND BOOKS OF ACCOUNT AND RECORDS PRODUCED AND COMPLETED THE ASSESSMENT WITHOUT MAKING ANY ADDITION OR DISALLOWA NCE. 1. THE SUB-SECTION (1B) OF SECTION 271 IS REPRODUCED H EREIN FOR READY REFERENCE (1B) WHERE ANY AMOUNT IS ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OR LOSS OF AN ASSESSEE I N ANY ORDER OF ASSESSMENT OR REASSESSMENT AND THE SAID OR DER CONTAINS A DIRECTION FOR INITIATION OF PENALTY PROC EEDINGS UNDER CLAUSE (C) OF SUB-SECTION (1), SUCH AN ORDER OF ASSESSMENT OR REASSESSMENT SHALL BE DEEMED TO CONST ITUTE SATISFACTION OF THE ASSESSING OFFICER FOR INITIATIO N OF THE PENALTY PROCEEDINGS UNDER THE SAID CLAUSE (C). 7. THIS PROVISION CREATES A LEGAL FICTION BY WHICH SAT ISFACTION OF THE AO IS DEEMED TO HAVE BEEN RECORDED IN CASE WHER E AN ADDITION OR DISALLOWANCE IS MADE BY THE AO AND A DI RECTION FOR INITIATION OF THE PENALTY PROCEEDINGS IS ISSUED . THE SAID PROVISION IS MADE EFFECTIVE RETROSPECTIVELY FROM 1S T APRIL, 1989. FICTION IS CREATED FOR A DEFINITE PURPOSE AND IT IS LIMITED TO THE PURPOSE FOR WHICH IT IS CREATED AND CANNOT E XTEND BEYOND ITS LEGITIMATE FIELD. THE LEGAL FICTION HAS TO BE INTERPRETED STRICTLY AS IT IS INTENDED TO ENLARGE T HE MEANING OF ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 12 12 A PARTICULAR WORD OR TO INCLUDE MATERIALS WHICH OTH ERWISE MAY OR MAY NOT FALL WITHIN THE MAIN PROVISION. 8. SINCE NO ADDITION OR DISALLOWANCE IS MADE TO THE RE TURNED INCOME IN THE ASSESSMENT ORDER BY THE LD. AO, THE D EEMING PROVISION OF SECTION 271(1B) DOES NOT APPLY AND THE REFORE THE LD. AO DOES NOT GET A WAIVER FROM RECORDING A SATIS FACTION FOR INITIATING PENALTY PROCEEDINGS WITHOUT SPECIFYING T HE CHARGE IN SPECIFIC TERMS FOR SUCH INITIATION. 9. SINCE THE PROVISION OF SECTION 271(1B) IS NOT APPLI CABLE IN THE PRESENT CASE, THE LD. AO IN THIS CASE, BEFORE PROCE EDING FURTHER, OUGHT TO HAVE RECORDED HIS SATISFACTION WI TH A SPECIFIC CHARGE IN THE ASSESSMENT ORDER THAT THE AS SESSEE HAD EITHER CONCEALED THE INCOME OR FURNISHED THE IN ACCURATE PARTICULARS OF THE INCOME IN HIS RETURN. IT MAY BE NOTED THAT THE LD. AO, IN THE ASSESSMENT ORDER PASSED U/S 143( 3) RWS 147, HAS NOT RECORDED ANY SATISFACTION BUT HAS SIMP LY MENTIONED THAT THE PENALTY PROCEEDING U/S 271(1)(C) IS INITIATED SEPARATELY. NOWHERE THE LD. AO NOTED IN T HE SAID ASSESSMENT ORDER HIS SATISFACTION THAT THERE WAS EI THER CONCEALMENT OF PARTICULARS OR FURNISHING OF INACCUR ATE PARTICULARS OF INCOME BY THE ASSESSEE. 10. SATISFACTION IN THE VERY NATURE OF THINGS, PRECEDES THE ISSUE OF NOTICE. THE ELEMENT OF SATISFACTION SHOULD BE APPARENT FROM THE ORDER ITSELF. THIS IS THE CONDITI ON PRECEDENT FOR INITIATING THE PENALTY. UNTIL AND UNLESS THE SA TISFACTION IS ARRIVED AT IN THE COURSE OF ANY PROCEEDINGS UNDER T HE ACT, THE PENALTY CANNOT BE LEVIED. A DIRECT DECISION COVERING THE ABOVE SUBMISSION WAS GIVEN BY HONBLE ITAT NAGPUR BENCH IN THE CASE OF PURTI SAKH AR KARKHANA [2013] 35 TAXMANN.COM 594 WHEREIN THE HEAD NOTE READ AS UNDER WHETHER WHERE PROVISIONS OF SECTION 271(1B) IS NOT APPLICABLE IN CASE OF ASSESSEE, ASSESSING OFFICER I S BOUND ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 13 13 TO RECORD HIS SATISFACTION IN ASSESSMENT ORDER THAT ASSESSEE HAD EITHER CONCEALED INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME IN HIS RETURN BEFO RE PROCEEDING FURTHER - HELD, YES 11. FURTHER, WITHOUT PREJUDICE TO ABOVE, IT IS SUBMITTE D THAT ON THE USE OF THE WORD DIRECTION IN SECTION 271(1B), HONBLE HIGH COURT OF KARNATAKA HAS ELABORATED ITS APPLICAT ION IN PARA 50 IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) A READING OF SECTION CLEARLY INDICATES THAT THE ASSESSMENT ORDER SHOULD CONTAIN A DIRECTION FOR INI TIATION OF PENALTY PROCEEDINGS. THE MEANING OF THE WORD DIR ECTION IS OF IMPORTANCE. MERELY SAYING THAT PENALTY PROCEE DINGS ARE BEING INITIATED WILL NOT SATISFY THE REQUIREMEN T. THE DIRECTION TO INITIATE PROCEEDINGS SHOULD BE CLEAR A ND NOT BE AMBIGUOUS. IT IS WELL SETTLED LAW THAT FISCAL STATU TES ARE TO BE CONSTRUED STRICTLY AND MORE SO THE DEEMING PROVI SIONS BY WAY OF LEGAL FICTION ARE TO BE CONSTRUED MORE ST RICTLY. THEY HAVE TO BE INTERPRETED ONLY FOR THE SAID ISSUE FOR WHICH IT HAS DEEMED AND THE MANNER IN WHICH THE DEEMING HAS BEEN CONTEMPLATED TO BE RESTRICTED IN T HE MANNER SOUGHT TO BE DEEMED. AS THE WORDS USED IN TH E LEGAL FICTION OR THE DEEMING PROVISIONS OF SECTION 271(1B) IS DIRECTION, IT IS IMPERATIVE THAT THE ASSESSMENT ORD ER CONTAINS A DIRECTION. USE OF THE PHRASES LIKE (A) P ENALTY PROCEEDINGS ARE BEING INITIATED SEPARATELY AND (B) PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) ARE INITIATED SEPARATELY, DO NOT COMPLY WITH THE MEANING OF THE W ORD DIRECTION AS CONTEMPLATED EVEN IN THE AMENDED PROVI SIONS OF LAW. THE DIRECTION SHOULD BE CLEAR AND WITHOUT A NY AMBIGUITY. IN THIS SAME DECISION, HONBLE HIGH COURT OF KARNAT AKA HAS DEALT WITH THE DECISION OF MADHUSHREE GUPTA [2009] 317 ITR 107 (DELHI) BY HONBLE DELHI HIGH COURT IN PARA 49 UNDER THE HEADING DEEMING PROVISION AND GAVE ITS FINDING IN PARA 50- ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 14 14 51 UNDER THE HEADING DIRECTION WHICH SHOULD BE CL EAR AND NOT AMBIGUOUS. ALSO IN THE DECISION OF MADHUSHREE GUPTA [2009] 317 ITR 107 (DELHI) BY HONBLE DELHI HIGH COURT, WHILE DRAWING CONCLUSION IN PARA 19(II), IT GAVE THE FINDING THAT .THE ASSESSING OFFICER WILL HAVE TO ARRIV E AT A PRIMA FACIE SATISFACTION DURING THE COURSE OF PROCEEDINGS WITH REGARD TO THE ASSESSEE HAVING CONCEALED PARTIC ULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS, BEFORE HE INITIATES PENALTY PROCEEDINGS. THE ABOVE FINDING MADE IT CLEAR THAT THE PRIMA FACI E SATISFACTION OF THE AO MUST BE ARRIVED BEFORE INITI ATING PENALTY PROCEEDINGS, HAVING REGARD TO EITHER ASSESS EE HAVING CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME. 12. RELIANCE IS PLACED ON THE DECISION OF - I. NITESH CHUGH AND OTHERS ITA NOS. 733-734/IND/2013, ORDER DATED 30.09.2015 SPECIFIC PARA 7 AND 6 [IND ORE] II. HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. MANJUNATHA COTTON & GINNING FACTORY [2013] 35 TAXMANN.COM 250 SPECIFIC PARA 50 AND 63 III. CIT V. JYOTI LTD. [2013] 34 TAXMANN.COM 65 (GUJARAT ) IV. CIT V. WHITEFORD INDIA LTD. [2013] 38 TAXMANN.COM 1 5 (GUJARAT) V. V.V. PROJECTS AND INVESTMENTS (P) LTD V. DCIT [2008 ] 300 ITR 40 (AP) 13. FURTHER, HONBLE APEX COURT IN THE CASE OF T. ASHOK PAI V. CIT [2007] 292 ITR 11/161 TAXMAN 340 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURAT E ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 15 15 PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJARAT HIGH COURT IN THE CASE OF CIT V. MANU ENGG. [1980] 122 ITR 306 AND THE DELHI HIGH COURT IN THE CASE O F CIT V. VIRGO MARKETING (P.) LTD. [2008] 171 TAXMAN 156, HA S HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFORE, WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE THE FIRST LIMB BEING CONCEALMENT, THEN TH E NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE STANDARD PROF ORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON-APPLICATION OF MIND. ASSESSED INCOME IS EQUAL TO RETURNED INCOME, NO AD DITION OR DISALLOWANCE MADE BY THE LD. AO IN THE REASSESSMENT ORDER 1. REASSESSMENT WAS COMPLETED BY THE LD. AO AT RETURNE D INCOME. THUS ASSESSED INCOME IS EQUAL TO RETURNE D INCOME. THERE IS NO LOSS TO THE REVENUE. THE RETUR N WAS REGULARIZED BY THE REVENUE BY COMPLETING THE PROCEE DINGS U/S 147. THE LD. AO DID NOT TAKE ANY OBJECTION THAT THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS R ETURN AND IN HIS EXPLANATION WERE NOT BONA FIDE. 2. NO AMOUNT IS ADDED OR DISALLOWED IN COMPUTING THE T OTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT ORDER PASS ED BY THE LD. AO, THOUGH LD. AO MADE A PATENTLY INCORRECT AND WRONG STATEMENT IN HIS PENALTY ORDER THAT THE ASSES SMENT WAS COMPLETED BY MAKING ADDITION OF UNDISCLOSED INV ESTMENT IN AGRICULTURAL LAND TO THE TUNE OF RS. 91,60,000/- . THIS CORRECT FACT WAS STATED IN THE WRITTEN SUBMISSION M ADE BY THE ASSESSEE IN THE PENALTY PROCEEDINGS AS QUOTED A T PAGE 7, PARA (E) OF THE PENALTY ORDER. 3. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH ON SIMILAR ISSUE DECIDED IN FAVOR OF THE ASSESSEE IN T HE CASE OF ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 16 16 CIT V. SHYAMLAL M. SONI [2005] 276 ITR 156. THE HEA D NOTE READ AS UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 - PEN ALTY - FOR CONCEALMENT OF INCOME - ASSESSMENT YEARS 1985-86 TO 1987- 88 - WHETHER NO PENALTY UNDER SECTION 271(1)(C) COU LD BE LEVIED IN CASE, WHERE INCOME RETURNED IN REVISED RE TURNS WAS ACCEPTED AND ASSESSED IN HANDS OF ASSESSEE EVEN THO UGH REVISED RETURNS WERE FILED AFTER SEARCH AND SUBSEQU ENT TO INQUIRIES MADE BY DEPARTMENT DURING COURSE OF ASSES SMENT PROCEEDINGS - HELD, YES THIS DECISION OF HONBLE JURISDICTIONAL HIGH COURT DEALT WITH THE ISSUE OF PENALTY IMPOSED ON OFFER OF ADDITIONAL INCOME IN THE RETURN FILED IN RESPONSE TO SECTION 148, POST S EARCH. IN THE INSTANT APPEAL BEFORE YOUR HONORS ALSO, THE APPELLA NT FILED HIS RETURN IN RESPONSE TO NOTICE U/S 148 VOLUNTARIL Y OFFERING THE ADDITIONAL INCOME AS STATED IN HIS STATEMENT RE CORDED U/S 131. THUS, THE INSTANT APPEAL IS SQUARELY COVER ED BY THIS DECISION OF HONBLE JURISDICTIONAL HIGH COURT. COPY OF THE DECISION ALREADY PLACED ON RECORD. 4. THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F CIT V. SURESH CHANDRA MITTAL [2001] 251 ITR 9 WHICH HAS AFFIRMED THE DECISION OF HONBLE MADHYA PRADESH HIG H COURT RENDERED IN THE CASE OF CIT V. SURESH CHANDR A MITTAL [2000] 241 ITR 124 ALSO SQUARELY COVERS THE IMPUGNED ISSUE BEFORE YOUR HONORS IN THE PRESENT CA SE. THE HEAD NOTE OF THE SAME READS AS UNDER SECTION 271(1)(C), READ WITH SECTIONS 132 AND 148, OF THE INCOME-TAX ACT, 1961 - PENALTY - FOR CONCEALMENT OF INCOME - ASSESSMENT YEARS 1983-84 TO 1986-87 - WHETHER UNDER SECTION 271(1)(C) INITIA L BURDEN LIES ON REVENUE TO ESTABLISH THAT ASSESSEE HAS CONCEALED INCOME OR HAS FURNISHED INACCURATE ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 17 17 PARTICULARS OF SUCH INCOME AND BURDEN SHIFTS TO ASSESSEE ONLY IF HE FAILS TO OFFER ANY EXPLANATION FOR UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH I S FOUND TO BE FALSE BY ASSESSING AUTHORITY - HELD, YE S - ASSESSEE HAD NOT SURRENDERED TRUE INCOME OF HIS OWN BUT ONLY ON PERSISTENT QUERIES MADE BY ASSESSING OFFICER - WHETHER ONCE REVISED ASSESSMENT WAS REGULARIZED BY REVENUE AND ASSESSING OFFICER HAD FAILED TO TAKE ANY OBJECTION IN THAT MATTER, ASSESSEES DECLARATION OF INCOME IN REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH DEPARTMENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE AND NO PENALTY COULD BE LEVIED FOR CONCEALMENT OF INCOME - HELD, YES THE ABOVE DECISION HAS BEEN FOLLOWED BY YOUR HONORS IN THE CASE OF NITESH CHUGH & OTHERS ITA NOS. 733-734/IND/ 2013, ORDER DATED 30.09.2015 WHICH COVERS THE ISSUE INVOL VED IN THE PRESENT APPEAL [REFER SPECIFIC PARA 11 AT PAGE 51 OF THIS ORDER] EXPLANATION 1 TO SECTION 271(1)(C) 1. IT IS ONLY THE ADDITION OR DISALLOWANCE TO THE TOTA L INCOME THAT WOULD REPRESENT THE INCOME FOR THE PURPOSES OF LEVY OF PENALTY WITHIN THE MEANING OF EXPLANATION 1 TO SECT ION 271(1)(C). IN OTHER WORDS, IF NO ADDITION OR DISALL OWANCE IS MADE IN COMPUTING TOTAL INCOME THEN THERE WILL NOT BE ANY INCOME WHICH CAN BE DEEMED AS INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. 2. THE BASIS FOR LEVY OF PENALTY IS RETURN OF INCOME. THERE CANNOT BE ANY CONCEALMENT PRIOR TO FILING OF RETURN. THE O MISSION OR COMMISSION OR CONTUMACIOUS CONDUCT HAS TO BE VIEWED FROM THE RETURN OF INCOME AND IF CERTAIN THING IS NOT DI SCLOSED OR NOT FURNISHED THEREIN ONLY THEN IT CAN BE SAID THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHE D INACCURATE PARTICULARS OF INCOME. PRIOR TO THIS ASS ESSEE HAS ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 18 18 NOT DONE ANY CONTUMACIOUS CONDUCT ON WHICH PENALTY CAN BE LEVIED. 3. WHERE THE LD. AO HAS ACCEPTED THE INCOME DECLARED I N THE RETURN OF INCOME, THEN ASSESSEE CANNOT BE CHARGED F OR ANY CONTUMACIOUS CONDUCT. THUS WHERE RETURNED INCOME IS ACCEPTED THERE IS NO CASE FOR LEVY OF PENALTY. 4. RELIANCE IS PLACED ON DIRECT DECISIONS COVERING THE ABOVE SUBMISSION. A. DY. CIT V. DR. SATISH B. GUPTA [2010] 42 SOT 48 (AH D.) B. CIT V. PARKASH INDUSTRIES LTD. [2010] 322 ITR 622 ( P&H) C. SMT. GOVINDA DEVI V. CIT [2008] 304 ITR 340 (ALL) D. GODAVARI TOWNSHIPS (P) LTD. V. DCIT [2014] 45 TAXMANN.COM 175 (VISAKHAPATNAM TRIB.) 5. IN ADDITION TO ABOVE, IT IS SUBMITTED WITHOUT PREJU DICE THAT EXPLANATION 1 TO SECTION 271(L)(C) AS IT STANDS NOW IS A COMPLETE CODE HAVING THE FOLLOWING FEATURES: (I) EVERY DIFFERENCE BETWEEN REPORTED AND ASSESSED INCO ME NEEDS AN EXPLANATION. (II) IF NO EXPLANATION IS OFFERED, LEVY OF PENALTY MAY B E JUSTIFIED. (III) IF EXPLANATION IS OFFERED, BUT IS FOUND TO BE FALSE , PENALTY MAY BE EXIGIBLE. (IV) IF EXPLANATION IS OFFERED AND IT IS NOT FOUND TO BE FALSE, PENALTY MAY NOT BE LEVIABLE, IF ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 19 19 (A) SUCH EXPLANATION IS BONA FIDE. (B) THE ASSESSEE HAD MADE AVAILABLE TO THE ASSESSING OFFICE R ALL THE FACTS AND MATERIALS NECESSARY IN COMPUTATIO N OF INCOME. 6. THE ASSESSEE SUBMITTED DETAILED EXPLANATION BOTH IN THE ASSESSMENT AND PENALTY PROCEEDINGS DULY SUPPORTED B Y DOCUMENTARY EVIDENCES. THE EXPLANATION SO OFFERED H AS NOT BEEN FOUND TO BE FALSE BY THE LD. AO. THE EXPLANATI ON OFFERED IS BONA FIDE AND WITH ALL THE FACTS AND MATERIAL RE LEVANT TO THE ISSUE UNDER CONSIDERATION. WITHOUT PREJUDICE, IT IS SUBMITTED THAT, SECTION 27 1(L)(C) OF THE ACT GIVES DISCRETION TO THE ASSESSING OFFICER TO EX ONERATE AN ASSESSEE FROM LEVY OF PENALTY, EVEN IN A CASE WHERE THE ASSESSEE CONCEALED INCOME OR FURNISHED INCORRECT PA RTICULARS OF INCOME. THE EXPRESSION : 'IF THE ASSESSING OFFICER. . . IS SATISFIED THAT AN Y PERSON (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME,HE MAY DIRECT. . .' SHOWS THAT THE AO IS VESTED WITH A DISCRETION TO LE VY OR NOT TO LEVY PENALTY IN A DESERVING CASE. IN THE CASE OF HINDUSTAN STEEL LTD. V. STATE OF ORISSA [1972] 83 I TR 26, THE HONBLE APEX COURT HELD THAT PENALTY SHOULD NOT BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. THE A O HAS TO EXERCISE HIS DISCRETION JUDICIALLY. FURTHER, AS HELD IN THE CASE OF K. DEEDAR AHMED [20 05] 97 ITD 240 (HYD) NO DOUBT MERE FILING OF REVISED RE TURN WILL NOT AUTOMATICALLY PROTECT AN ASSESSEE FROM LEVY OF PENALTY BUT, IN A GIVEN CASE, WHERE AN ASSESSEE COMES FORWA RD WITH CLEAN BREAST THOUGH AFTER DETECTION, AND FILES RETURNS OF INCOME OFFERING ADDITIONAL INCOME AND EXPRESSES REMORSE FOR HIS PAST CONDUCT UNHESITANTLY, THE ASSE SSING ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 20 20 OFFICER MAY HAVE TO EXERCISE THE DISCRETION IN FAVO UR OF SUCH ASSESSEE AS OTHERWISE THE EXPRESSION MAY IN SECTION 271 (1)(C) REMAINS A DEAD LETTER IF IT IS U NDERSTOOD THAT IN A CASE OF ADMITTED CONCEALMENT PENALTY IS AUTOMATIC. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCE OF THE CASE, DETAILED SUBMISSIONS ALREADY ON RECORD, APPLI CABLE LAWS AND JUDICIAL RULINGS, THE ASSESSEE CLAIMS DISM ISSAL OF APPEAL OF THE DEPARTMENT AND REQUESTS FOR SUSTAININ G THE ORDER OF THE LD. CIT(A) WHO RIGHTLY DELETED THE PEN ALTY OF RS. 27,48,000/- IMPOSED BY THE LD. AO. 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE HAVE ALSO GONE THROUGH THE ORDERS OF T HE AUTHORITIES BELOW. WE HAVE ALSO PERUSED THE CASE L AWS RELIED UPON BY BOTH THE PARTIES. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. S HYAMLAL M. SONI, (2005), 144 TAXMAN 666 (MP) HELD THAT THE PEN ALTY CANNOT BE LEVIED WHERE INCOME RETURNED IN REVISED RE TURNS WAS ACCEPTED AND ASSESSED IN HANDS OF ASSESSEE EVEN THO UGH REVISED RETURNS WERE FILED AFTER SEARCH AND SUBSEQUE NT TO INQUIRIES MADE BY DEPARTMENT DURING COURSE OF ASSES SMENT PROCEEDINGS. WE FIND THAT THE PENALTY U/S 271(1)(C) CAN BE LEVIED ONLY WITH TWO CONDITIONS PRESCRIBED FOR LEVY O F PENALTY ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 21 21 ARE SATISFIED. ONE SUCH CONDITION IS FOR CONCEALMEN T OF INCOME AND OTHER FOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THESE TWO ARE DISTINCT LIMBS. IT HAS ALREADY BEEN HELD IN VARIOUS JUDGMENTS THAT WHEN AN ITEM HAS NOT BEEN SHOWN AT ALL, IT WOULD FALL IN THE LIMB OF CONCEALMENT AND AN ITEM WHICH HAS BEEN SHOWN IN THE RETURN, BUT WRONGLY WOULD COME UNDER THE LIMB OF FURNISHING OF INACCURATE PARTICUL ARS OF INCOME. WE ALSO FIND THAT I.T.A.T. VISAKHAPATNAM B ENCH IN THE CASE OF GODAVARI TOWNSHIPS (P) LIMITED VS. DCIT, CIRCLE 3(1), VISAKHAPATNAM, (2014) 45 TAXMAN.COM 175 (VISAKHAPATNAM TRIB) HELD THAT NO PENALTY U/S 271(1 )(C) CAN BE IMPOSED WHEN THERE WAS NO DIFFERENCE BETWEEN ASSES SED INCOME AND RETURNED INCOME. EVEN OTHERWISE, REVISED RETURN FILED BY ASSESSEE BEFORE CARRYING OUT SCRUTINY PROC EEDINGS, GAVE RISE TO A PRESUMPTION THAT ASSESSEE HAD BONA F IDELY ADMITTED HIGHER INCOME. WE UPHOLD THE ACTION OF THE LD. CIT(A). OUR INTERFERENCE IS NOT REQUIRED. THE LD. D EPARTMENTAL REPRESENTATIVE COULD NOT BRING ANYTHING CONTRARY T O THE FINDING OF THE LD. CIT(A) BOTH ON FACTS AND IN LAW. THEREFORE, WE DELETE THE PENALTY. ITO VS. ASHIQUE HUSSAIN JINWALA, UJJAIN I.T.A.NO. 712/IND/2015 A.Y. 2011-12 22 22 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 17 TH MAY, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 17 TH MAY, 2016. 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