THE UJJAIN NAGRIK SAHAKARI BANK MARAYADIT, Ujjain V. THE ACIT-2(1), Ujjain

ITA 722/IND/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5873 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA
• Keywords: Wrong claim
• Section: 69C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO722/IND/2015 A.Y. : 2010-11 UJJAIN NAGRIK SAHAKARI BANK MARYADIT, ACIT, 2(1), UJJAIN VS UJJAIN APPELLANT RESPONDENT PAN NO. AABFU0898F APPELLANT BY : SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADV. RESPONDENT BY : SHRI MOHD.JAVED, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 27.08.2015 FOR THE ASSESS MENT YEAR 2010-11. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL : - DATE OF HEARING : 18 .0 7. 2016 DATE OF PRONOUNCEMENT : 18 .0 7 .2016 UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 2 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIA(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY ORDER WHICH IS BAD IN LAW, UNJUSTIFIED, ILLEGAL, VOID AB-INITIO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIA(A) ERRED, THE LD. CIT(A) WAS NOT JUSTIFI ED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF RS. 3,50,000/- WHICH IS NOT LEVIABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO-OPERATIVE SOCIETY REGISTERED U/S. 7 OF THE M.P. CO-OPERATIVE SOCIETIES ACT, 1960, ON 19.04.1995, HAVING ITS PRIN CIPAL BUSINESS AS BANKING (URBAN CO-OPERATIVE BANK). THE REGISTRATION CERTIFICATE IS PLACED ON RECORD AT PB 8. THE ASSESSEE IS REGISTERED WITH RBI AND HAS BANKING LICE NCE. THE ASSESSEE HAD BEEN CLAIMING DEDUCTION U/S. 80P(2)(D ) ALL ALONG YEARS IN RESPECT OF INTEREST ON DEPOSITS MADE WITH Z ILA SAHAKARI BANK AND APEX BANK. THESE DEPOSITS WERE MA DE TO FULFIL THE STATUTORY REQUIREMENTS OF S.L.R. AS PER DIRECTIONS OF RBI. DURING THE CURRENT YEAR ALSO, THE ASSESSEE HAD CLAIMED UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 3 3 DEDUCTION U/S. 80P(2)(D) OF RS. 11,00,754/- IN THE RETURN. DURING ASSESSMENT, AS THE ASSESSEE WAS MADE AWARE O F SECTION 80P(4) UNDER WHICH NO DEDUCTION SHALL BE AVA ILABLE TO CO-OPERATIVE BANKS, THE ASSESSEE FILED A REVISED CO MPUTATION AND PAID THE TAX ACCORDINGLY. IT WAS NEVER POINTED OUT BY THE DEPARTMENT THAT DELIBERATELY ANY INCORRECT PARTICUL ARS WERE FURNISHED. AO LEVIED PENALTY OF RS. 3,50,000/- HOLD ING THE ASSESSEE THAT THE 'ASSESSEE HAS FURNISHED INACCURAT E PARTICULARS OF INCOME'. 4. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT ALTHOUGH THE ASSESSEE MIGHT NOT HAVE BEEN ELIGIBLE FOR CLAIM OF DEDUCTION U/S. 80P, THE ASSES SEE IN GOOD- FAITH, BONA FIDELY CLAIMED THE DEDUCTION. THIS CLAI M WAS MADE ON THE ADVICE OF THE CONSULTANT AND IN VIEW OF AMBIG UITY OF THE AMENDMENTS, WHICH WERE STILL TO SEE THE LIGHT OF THE DAY. 5. SECTION 80P(2) ITSELF AT THE ONE INSTANCE ALLOWED DEDUCTION FOR 'BANKING BUSINESS AND MONEY LENDING B USINESS'; AND FURTHER FOR 'INTEREST ON DEPOSITS WITH OTHER COO PERATIVE SOCIETIES'; AND AT THE OTHER END DENIED THE DEDUCTI ON U/S. 80P(4) TO COOPERATIVE BANKS. THE AMBIGUITY ABOUT TH E UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 4 4 ALLOWABILITY OF DEDUCTION WAS NOT CLEAR. THE ASSESSEE THEREFORE CLAIMED THE DEDUCTION IN THE RETURN. LATER ON, WHEN THE DEPARTMENT TOOK A DIFFERENT VIEW, THE ASSESSEE ACCEP TED THE VIEW AND PAID TAX ON SAME. THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS BEEN FILING RETURNS FOR YEARS AND CLAI MING DEDUCTION U/S. 80P. AMENDMENT WAS BROUGHT TO SECTION 80P BY INTRODUCTION OF SUB-SECTION 4 BY FINANCE ACT, 20 06 W.E.F. 01.04.2007. EVEN AFTER THE AMENDMENT, IT WAS NOT VERY CLEAR TO T HE SOCIETY THAT THE DEDUCTION SHALL BE ALLOWABLE OR NOT. THE C ONSULTANT OF THE ASSESSEE HERSELF MADE FOLLOWING REMARKS IN THE A UDIT REPORT :- ' THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80P(2)D (IN TEREST RECEIVED FROM OTHER COOPERATIVE SOCIETIES). THERE I S AMBIGUITY REGARDING THE APPLICABILITY OF THIS SECTION AS 80(P ) HAS BEEN WITHDRAWN FOR URBAN CO-OPERATIVE BANKS.' FURTHER, IN PARA 26 OF THE TAX AUDIT REPORT (PB 43) , WHILE GIVING DETAILS OF THE DEDUCTION ADMISSIBLE UNDER CH APTER VIA, THE DEDUCTION U/S. 80P WAS STATED. THE CLAIM WAS, TH EREFORE, MADE ON AFTER DISCUSSION WITH THE CONSULTANT AND IN THE LIGHT UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 5 5 OF THE AMBIGUITY WHICH EXISTED AT THAT TIME, ABOUT T HE ALLOWABILITY OF THE DEDUCTION TO THE ASSESSEE BANK. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PLACED RE LIANCE ON THE FOLLOWING DECISIONS :- 1. DCIT VS. M/S.GODAVARI URBAN COOP. BANK (PUNE TRIB.). 2. CIT VS. CHITTORGARH KENDRIYA SAHAKARI BANK LIMITED,41 TAXMANN.COM 11 (RAJ) PB 3A-3C. 3. DHARMENDRA SHRIVASTAVA, I.T.A.T., INDORE, I.T.A.NO. 275/IND/2014 DATED 6.12.2015. 4. PRICE WAREHOUSE COOPER.P.LTD., 348 ITR 306 (S.C.). 5. CIT VS. S.V.ELECTRICALS P.LTD., 274 ITR 334 (MP). 6. CIT VS. SKYLINE AUTO PRODUCTS P.LTD., 271 ITR 335 (MP). 7. CIT VS. DR.KU. M. DUBEY, 171 ITR 144 (MP). 8. ACIT VS. SMT. CECILIA HARESH CHAGANLAL, 58 TAXMANN.COM 312 (MUM). 9. CIT VS. HONGO INDIA P.LTD., 60 TAXMANN.COM 478 (ALL). 10.CIT VS. SHYAMLAL M.SONI, 276 ITR 156 (MP) UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 6 6 11. RAVE ENTERTAINMENT P.LTD., 66 TAXMANN.COM. 369 (ALL). 6. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONCLUDED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE JUDGEMENT OF RAJASTHAN HIGH COURT AND PUNE TRI BUNAL, WHEREIN IDENTICAL FACTS AND TAKING INTO CONSIDERATIO N, THE AMENDMENT MADE BY FINANCE ACT, 2006, THE CLAIM OF T HE ASSESSEE WAS REJECTED. THE PENALTY IMPOSED MAY BE D ELETED. 7. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON TH E ORDERS OF THE LOWER AUTHORITIES. 8. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS DISMISSED THE APPEAL BY OBSERVING AS UNDER :- 4.1 THROUGH THESE GROUNDS OF APPEAL, THE APPELLANT HAS CHALLENGED THE IMPOSITION OF PENALTY OF RS. 3,50,000/- U/S 271(1)(C) OF THE INCOME-TAX ACT. DURING THE COURSE OF ASSESSMENT PROCEEDING IT WAS FOUND THAT THE APPELLANT HAD CLAIMED THE DEDUCTION OF RS. 11,00,754/- U/S 80P OF THE INCOME-TAX ACT, AND EXPENDITURE OF RS. 507/- ON ACCOUNT OF FBT. THE UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 7 7 AO DISALLOWED THE ABOVE CLAIM OF THE APPELLANT AND ACCORDINGLY MADE THE ADDITION. NO APPEAL HAS BEEN FILED AGAINST THE ADDITION MADE IN THE ASSESSMENT ORDER. HAD THE CASE NOT BEEN SCRUTINIZED U/S 143(3) AND THE SAME HAS NOT BEEN POINTED OUT BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AN AMOUNT OF RS. 11,01,261/- WOULD HAVE BEEN ESCAPED FROM TAXATION. 4.1.1 THE POSITION OF LAW REGARDING LEVY OF PENALTY U/S 271(1)(C) HAS UNDERGONE A SUBSTANTIAL CHANGE AFTER INSERTION OF EXPLANATION I TO SECTION 271(1)(C) WITH EFFECT FROM 01.04.1976. EXPLANATION 1 TO SECTION 271(1)(C) RAISES A PRESUMPTION THAT AS A ND WHEN ANY AMOUNT IS ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME, THE SAME SHALL BE DEEMED OR REPRESENT THE INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEEN CONCEALED. FURTHER WITH EFFECT FROM 10.9.1986 AMENDMENT HAS BEEN MADE TO EXPLANATION 1(B) TO SECTION 271(1)(C), AFTER THIS AMENDMENT FURTHER ONUS HAS BEEN PLACED ON THE UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 8 8 ASSESSEE TO PROVE THAT EXPLANATION FURNISHED BY HIM WAS BONA FIDE. THE POSITION NOW IS THAT UNLESS AND UNTIL THE ASSESSEE SUBSTANTIATES THE EXPLANATION AN D PROVES THAT THE EXPLANATION WAS BONA FIDE, THE ADDITION MADE TO HIS INCOME SHALL BE DEEMED TO REPRESENT THE CONCEALED INCOME. ON ANALYSIS OF PROVISIONS OF SECTION 271(1)(C), IT IS OBSERVED THA T EXPLANATION 1 TO SECTION 271(1)(C) PROVIDES THE SITUATION, WHERE NO EXPLANATION FOR THE FAILURE IS OFFERED BY THE ASSESSEE OR WHERE THE EXPLANATION THAT HAS BEEN OFFERED IS FOUND TO BE FALSE OR WHERE THE ASSESSEE IS NOT ABOUT TO SUBSTANTIATE THE EXPLANATION OFFERED BY HIM. IN ALL THE CASES, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON SHALL BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEEN CONCEALED. AS PER PROVISO TO THIS EXPLANATION, THE ONUS TO ESTABLISH THAT EXPLANATION OFFERED WAS BONA FIDE AND FACTS RELATING TO SAME AND MATERIAL T O UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 9 9 THE COMPUTATION OF HIS INCOME EVEN DISCLOSED BY HIM WILL BE ON THE PERSONS CHARGED FOR CONCEALMENT. 4.1.2 AS PER THE PROVISIONS OF EXPLANATION (1) (B), NOW THE ENTIRE ONUS IS ON THE ASSESSEE TO NOT ONLY OFFER AN EXPLANATION BUT ALSO TO SUBSTANTIATE IT AN D TO PROVE THAT THE PRESUMPTION WAS BONA FIDE. AT THE SAME TIME THE PRESUMPTION SO RAISED BY THE EXPLANATION (1) IS REBUTTABLE. THE EFFECT IS THAT U NLESS AND UNTIL THE ASSESSEE REBUTS THE PRESUMPTION, HE WOULD BE LIABLE FOR PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. IT IS NOW AN ESTABLISHED LAW THAT THE PRESUMPTION WOULD NOT STAND REBUTTED MERELY BY FURNISHING ANY GENERAL OR FANTASTIC OR FANCIFUL OR UNREASONABLE EXPLANATION BY THE ASSESSEE. THE EXPLANATION SHOULD BE BASED ON COGENT AND RELEVANT MATERIAL AND SHOULD BE BASED ON COGENT AND RELEVANT MATERIAL AND SHOULD BE ACCEPTED TO THE AUTHORITIES. IN THIS CONNECTION REFERENCE MA Y BE MADE TO DELHI HIGH COURTS DECISION IN THE CASE OF CIT VS. GURBACHAN LAL REPORTED IN 250 ITR 157 (DEL) . UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 10 10 4.1.3 THE APEX COURT HAS APPROVED THE INTERPRETATION PLACED UPON THE EXPLANATION BY A FUL L BENCH OF THE PUNJAB AND HARYANA HIGH COURT IN VISWAKARMA INDUSTRIES VS. CIT, (1982) 135 ITR 652. SIMILAR VIEW HAS BEEN EXPRESSED BY THE KERALA HIGH COURT IN THE CASE OF CIT VS. K.P. MADHUSUDAN REPORTED IN 246 ITR 218. THIS DECISION HAS BEEN AFFIRMED BY THE SUPREME COURT IN 251 ITR 99. AFFIRMING THE AFORESAID DECISION, THE HON'BLE SUPREME COURT HAS FURTHER HELD THAT AFTER INSERTION OF EXPLANATION ITS EARLIER DECISION IN THE CASE OF SIR SHADI LAL SUGAR AND GENERAL MILLS LTD. VS. CIT REPORTED IN 168 ITR 705 (SC) WAS NO LONGER APPLICABLE. THE KERALA HIGH COURT AT PAGE 244 HAS OBSERVED AS UNDER:- 'THE QUESTION OF ONUS IS OF PRIMARY AND ADDED IMPORTANCE IN LEGAL ACRIMONY. IN CIT VS. ANWAR ALI (1970)M 76ITR 696, THE APEX COURT LAID DOWN THAT, BEFORE A PERSON COULD BE VISITED WITH UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 11 11 A PENALTY FOR CONCEALMENT, ETC., THE REVENUE MUST PROVE THAT THE AMOUNT IN QUESTION WAS THE INCOME OF THE ASSESSEE AND THE HE HAD CONCEALED IT WITH A MOTIVE. IT WAS FURTHER HELD THAT PENALTY COULD NOT BE IMPOSED MERELY BECAUSE ANY EXPLANATION GIVEN BY THE ASSESSEE IN REGARD TO THE ITEMS IN. QUESTION WAS NOT BELIEVED TO THE TRUE. THE POSITION OF LAW ON OR AFTER APRIL 1, 1976, IT THAT WHERE IN RESPECT OF ANY ITEM OF CREDIT. (A) THE ASSESSEE FAILS TO OFFER AN EXPLANATION OR (B) THE ASSESSEE OFFERS AN EXPLANATION WHICH THE TAXING OFFICER CONSIDERS TO THE FALSE, OR (C) THE ASSESSEE OFFERS AN EXPLANATION BUR NO MATERIAL OR EVIDENCE TO SUBSTANTIATE IT, HE SHALL BE DEEMED TO HAVE CONCEALED SUCH INCOME WITHIN THE MEANING OF SECTION271 (L)(C). WHAT SECTION 68, 69, 69A, 69B AND 69C DEEM FOR THE PURPOSE OF ASSESSMENT WAS INJECTED FOR THE PURPOSE OF PENALTY BY OPERATION OF A DEEMING PROVISO. A PROVISO WAS UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 12 12 ADDED TO THE NEW EXPLANATION. IT CONCERNS CASES WHERE THE ASSESSEE OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE. CONSEQUENTIALLY THE PROVISIONS ARE INTENDED TO SAVE SUCH AMOUNT FROM IMPOSITION OF PENALTY ALTHOUGH THE SAME HAD BEEN ADDED TO THE ASSESSEE'S INCOME IN THE ASSESSMENT. IF THE ASSESSEE'S EXPLANATION IS FOUND TO BONA-FIDE AND ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. ' 4.1.4 THE VIEWS SIMILAR TO THE ABOVE DECISION OF DELHI AND KERALA HIGH COURTS WERE EXPRESSED BY THE ALLAHABAD HIGH COURT IN THE CASE OF SUSHIL KUMAR SHARAD KUMAR, 232 ITR 588 (ALLD.). SIMILARLY, THE DELHI HIGH COURT IN THE CASE OF CIT VS SOHAN SINGH 254 ITH 170 HAS HELD THAT FOR THE PURPOSE OF PENALT Y, MATTER HAS TO BE EXAMINED IN THE BACKGROUND OF EXPLANATION TO SECTION 271(1)(C). IT HAS ALSO BEEN HELD UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 13 13 THAT EVIDENCE RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THOUGH NOT CONCLUSIVE, ARE NOT TOTALLY IRRELEVANT. THEY COULD BE TAKEN NOTE OF . ACCORDING TO THE HIGH COURT WHAT WAS REQUIRED WAS THAT THE ASSESSEE MUST OFFER AN EXPLANATION WHICH, IF FOUND TO BE UNTENABLE OR UNACCEPTABLE, THEN THE PENALTY CAN BE LEVIED UNDER SECTION 271(1)(C) OF TH E I.T. ACT. 4.1.5 IT IS AN OBLIGATORY DUTY CAST UPON A PERSON FILING THE RETURN OF INCOME TO DISCLOSE ALL HIS INC OME DERIVED FROM ANY SOURCE UNDER VARIOUS HEADS AND INDICATE THE INCOME UNDER EACH HEAD, WHICH IS CHARGEABLE TO INCOME-TAX, AFTER MAKING THE PERMISSIBLE DEDUCTIONS. DISCLOSURE OF INCOME WOULD BE DISCLOSURE OF PARTICULARS OF INCOME, WHICH A PERSON IS DUTY BOUND TO DISCLOSE IN FULFILLMENT OF HIS STATUTORY OBLIGATIONS TO PAY TAX ON THE INCOME CHARGEABLE TO TAX. AFTER THE RETURN IS FILED UNDER SECTION 139(1), THE ASSESSMENT OF TAX IS TO BE MADE AND FOR THE PURPOSE OF MAKING AN ASSESSMENT UNDER UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 14 14 THE ACT, THE ITO MAKES AN ENQUIRY CONTEMPLATED BY SECTION 142, UNDER WHICH NOTICE IS ISSUED ON THE PERSON WHO HAS MADE THE RETURN TO PRODUCE ACCOUNTS, DOCUMENTS OR FURNISH VERIFIED INFORMATION IN WRITING INCLUDING STATEMENT OF ALL ASSETS, ETC. HOWEVER, WHERE THE AO IS SATISFIED THAT THE RETURN IS CORRECT AND COMPLETE, AS WERE THE WORDINGS OF SECTI ON 143(1) AT THE RELEVANT TIME, HE HAS TO ASSESS THE T OTAL INCOME WITHOUT REQUIRING THE PRESENCE OF THE ASSESSEE OR PRODUCTION BY HIM OF ANY EVIDENCE THAT THE RETURN IS CORRECT AND COMPLETE, HE IS REQUIRED TO ISSUE NOTICE ENABLING THE ASSESSEE TO PRODUCE EVIDENCE ON WHICH HE MAY RELY IN SUPPORT OF THE RETURN. THE TOTAL INCOME IN SUCH CASES OF REGULAR ASSESSMENT IS, ASSESSED AFTER HEARING THE EVIDENCE ADDUCED AND CONSIDERING ALL MATERIAL GATHERED BY THE AO AS PROVIDED IN SECTION 143(3). IT, THEREFORE , FOLLOWS THAT IN THE ASSESSMENT PROCEEDINGS UNDER SECTION 143, THE AO CAN FIND OUT WHETHER THE RETURN OF INCOME IS CORRECT AND COMPLETE. IF HE HOLDS THAT THE UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 15 15 RETURN OF INCOME IS NOT CORRECT OR THAT IT IS NOT COMPLETE IN RESPECT OF THE PARTICULARS OF INCOME WH ICH ARE REQUIRED TO BE STATED IN THE RETURN, HE WILL RE ACH THE CORRECT FIGURE OF TOTAL INCOME AND DETERMINE TH E SUM PAYABLE BY THE ASSESSEE OR REFUNDABLE ON THE BASIS OF SUCH ASSESSMENT. IF THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, BY REASON OF OMISSION OR FAILURE OF THE ASSES SEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECE SSARY FOR HIS ASSESSMENT, REASSESSMENT PROCEEDING CAN BE INITIATED AS PROVIDED UNDER SECTION 147. THIS AGAIN SHOWS THAT FULL AND TRUE DISCLOSURE OF INCOME IS PRIMARY OBLIGATION OF THE ASSESSEE. IF A PERSON OBLIGED TO FURNISH THE PARTICULARS OF HIS INCOME OM ITS TO FURNISH THEM, HE THEREBY CONCEALS THE PARTICULAR S. THE CONCEALMENT MAY TAKE VARIOUS FORMS. A GLARING ILLUSTRATION OF CONCEALMENT WOULD BE WHERE THE ASSESSEE DOES NOT DISCLOSE OR FULLY DISCLOSE IN THE RETURN THE INCOME DERIVED BY HIM WHICH WOULD FALL UNDER A PARTICULAR HEAD, E.G., INCOME FROM OTHER UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 16 16 SOURCES, WHILE DISCLOSING HIS INCOME FALLING UNDER OTHER HEADS OF INCOME PRESCRIBED BY SECTION 14. TO THE EXTENT HE DOES NOT DISCLOSE THAT INCOME; HE CONCEALS THE PARTICULARS OF INCOME. THE OBLIGATION IS NOT ONLY TO DISCLOSE PARTICULARS OF INCOME BUT TO DISCLOSE THEM CORRECTLY AND COMPLETELY. IF WHILE DISCLOSING THE PARTICULARS OF INCOME IN THE RETURN HE PUTS THEM UNDER A WRONG HEAD, HE CAN BE SAID TO BE FURNISHING INACCURATE PARTICULARS OF INCOME. THE PARTICULARS OF INCOME CAN BE MADE INACCURATE IN A VARIETY OF WAYS, A GLARING ILLUSTRATION OF WHICH WO ULD BE WHERE THE ASSESSEE WHILE STATING THE INCOME UNDER A PARTICULAR HEAD, WORKS OUT THE INCOME CHARGEABLE TO TAX AFTER MAKING DEDUCTIONS WHICH ARE FALSELY MADE. SUCH A PROCESS WOULD MAKE THE PARTICULARS OF INCOME INACCURATE. IN ALL SUCH CASES , WHETHER THE INCOME IS NOT DISCLOSED AGAINST THE CONSTITUENT ITEM OF THE RETURN IN WHICH IT FALLS OR IS PARTLY NOT DISCLOSED, OR THE PARTICULARS OF INCOME GIVEN IN THE RETURN ARE INCORRECTLY STATED BY ANY UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 17 17 MACHINATION, THE IMPACT IS BOUND TO BE ON THE FIGUR E OF GROSS TOTAL INCOME TO BE MENTIONED UNDER VARIOUS HEADS OF INCOME AND ALSO ON THE TOTAL INCOME CHARGEABLE TO TAX. IN FACT, REDUCING THE FIGURE OF INCOME THAT WOULD BE CHARGEABLE TO TAX WOULD BE FOR THE PURPOSE OF CONCEALMENT OF PARTICULARS OF INCOME OR GIVING INACCURATE PARTICULARS OF INCOME. THE EXPRESSION PARTICULARS OF INCOME WOULD HAVE RELEVAN CE TO ALL THE PARTICULARS OF INCOME WHICH THE ASSESSEE IS REQUIRED TO GIVE IN HIS RETURN FULLY AND TRULY, INC LUDING THE PARTICULARS OF INCOME CHARGEABLE TO TAX UNDER VARIOUS HEADS AND THE TOTAL INCOME. THEREFORE, ANY CONCEALMENT OR INACCURACY IN THE PARTICULARS OF INCOME IN THE RETURN OCCURRING AT AN Y STAGE UP TO AND INCLUSIVE OF THE ULTIMATE STAGE OF WORKING OUT OF TOTAL INCOME, WOULD ATTRACT THE PENA LTY PROVISION OF SECTION 271(1)(C) OF THE ACT. EVERY FIGURE IN THE RETURN WHICH IS SET OPPOSITE TO THE ITEM OF INCOME IS A PARTICULAR OF INCOME, WHETHER THE FIGUR E IS ONE WHICH IS STATED INDEPENDENTLY OF ANYTHING ELSE UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 18 18 THAT APPEARS IN THE RETURN OR THE DOCUMENTS ACCOMPANYING IT OR WHETHER IT IS SOMETHING DERIVED FROM OTHER FIGURES ELSEWHERE STATED IN SUCH RETURN OR DOCUMENTS. FALSE RESULT MAY BE PRODUCED BY THE FALSITY OF ONE OR MORE OF THE CONSTITUENT ITEMS IN THE RETURN. THE WORDS INACCURATE PARTICULARS WOULD COVE R FALSITY IN THE FINAL FIGURE AS ALSO THE CONSTITUENT ELEMENTS OR ITEMS. THEY SIMPLY WOULD MEAN INACCURATE IN SOME SPECIFIC OR DEFINITE RESPECT WHETHER IN THE CONSTITUENT OR SUBORDINATE ITEMS OF INCOME OR THE END RESULT. IN THE CASE OF MAK DATA (P) LTD. V. CIT-II (2013) 38 TAXMANN.COM 448 (SC) IT WAS HELD THAT, 'VOLUNTARY DISCLOSURE DOES NOT RELEASE ASSESSEE FRO M MISCHIEF OF PENAL PROCEEDINGS UNDER SECTION 27L (L) ( C) IN TERMS OF SECTION 271(1)(C), ASSESSING OFFICER HA S TO SATISFY WHETHER PENALTY PROCEEDINGS BE INITIATED OR NOT DURING COURSE OF ASSESSMENT PROCEEDINGS AND ASSESSING OFFICER IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT IN TO UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 19 19 WRITING'. 4. 1.7 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, IT IS EVIDENT THAT THE APPELLANT HAD DELIBERATELY AND INTENTIONALLY NOT DISCLOSED THE TR UE AND CORRECT INCOME AND HAD CONCEALED THE PARTICULAR S OF INCOME WITH THE INTENTION TO EVADE TAX. HENCE TH E AO HAS RIGHTLY IMPOSED THE PENALTY U/S 271(1)(C) OF THE ACT AND THE IMPOSITION OF PENALTY IS UPHELD AND GROUNDS OF APPEAL IS DISMISSED. 9. I HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. I HAVE GONE THROU GH THE ORDER OF LD. CIT(A). I AM OF THE OPINION THAT DURING THE COURSE OF HEARING, THE ASSESSEE WAS ASKED TO GIVE THE DETAILS AS TO WHETHER THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80P(2 )(D)OF THE ACT IN SUBSEQUENT YEARS OR NOT. THE LD. AUTHORI ZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE A SSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 80P(2)(D), THOU GH THE ASSESSEE HAS CLAIMED THIS DEDUCTION IN SUBSEQUENT Y EARS, BUT THE CLAIM WHICH WAS MADE BY THE ASSESSEE WAS WITHDRAWN IN UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 20 20 SUBSEQUENT YEARS ALSO. I AM OF THE OPINION THAT WHEN THE ASSESSEE IS IN THE HABIT OF CLAIMING THIS DEDUCTION U/S 80P(2)(D) IN ALL THE SUBSEQUENT YEARS, THE ACT OF T HE ASSESSEE CANNOT BE SAID TO BE BONA FIDE ONE. THE MISTAKE CAN BE HAPPENED AT ONE STAKE I.E. WHILE THE AMENDMENT IN TH E SECTION I.E. AMENDMENT HAS COME FROM 01.04.2007 SO IN ONE O R TWO YEARS, THE ASSESSEE MAY CLAIM THIS DEDUCTION U/S 80 P(2)(D) ON RELYING UPON THE EARLIER SECTION OF THE INCOME-TAX ACT, 1961, BUT WHEN THE ASSESSEE HAS COME TO KNOW THAT THERE IS AN AMENDMENT IN SECTION, STILL HE IS CLAIMING THE DEDU CTION IN ALL THE SUBSEQUENT YEARS. IT CANNOT BE TREATED AS BONA FIDE MISTAKE AND THE ASSESSEE IS MAKING AN INCORRECT CLA IM IN HIS RETURN. THEREFORE, I AM OF THE VIEW THAT THE LD. CIT (A) IS JUSTIFIED IN UPHOLDING THE ACTION OF THE AO CONFIRM ING THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 10. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS FILED VARIOUS JUDGMENTS BEFORE ME, BUT THE FACTS OF THIS CASE ARE ENTIRELY DIFFERENT AND THE PARTICULAR FACT IS N OT DISCUSSED IN ANY OF THE JUDGMENT. THEREFORE, MAK DATA (P) LTD. VS. CIT-II, (2013) 38 TAXMANN.COM 448 (SC) IS APPLICABLE TO THI S CASE AND UJJAIN NAGRIK SAHAKARI BANK MYDT, UJJAIN VS. ACIT, 2(1), UJJAIN- I.T.A.NO. 722/IND/2015 A.Y. 2010-11 21 21 THIS CLAIM IS BOGUS CLAIM. THEREFORE, THIS PENALTY IS RIGHTLY CONFIRMED BY THE LD. CIT(A). I UPHOLD HIS ACTION. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 18 TH JULY, 2016, SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 18 TH JULY, 2016. CPU*