Shri Jaysukh M.Parmar, Valsad V. The ACIT.,Valsad Circle, Valsad

ITA 723/AHD/2012

• Counselvise Citation: 72320514 RSA 2012
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: S N DIVOTIA
• Keywords: Depreciation; Income from undisclosed sources; Principle of natural justice; Additional evidence; Revised return
• Section: 142(1); 133A; 133(6); 139(5); 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 723/ AHD/2012 (ASSESSMENT YEAR 2008-09 JAYSUKH M PARMAR, 3 RD FLOOR, WHITE HOUSE OPP. MONGHABHAI HALL, NEAR S T DEPOT, VALSAD VS. ACIT, VALSAD CIRCLE, VALSAD PAN/GIR NO. : ADSPP2765Q I.T.A. NO. 724/ AHD/2012 (ASSESSMENT YEAR 2008-09 CHAMPABEN M PARMAR, 4 TH FLOOR, WHITE HOUSE OPP. MONGHABHAI HALL, NEAR S T DEPOT, VALSAD VS. ACIT, VALSAD CIRCLE, VALSAD PAN : AMPPP7130F I.T.A. NO. 725/ AHD/2012 (ASSESSMENT YEAR 2008-09 DR. (MRS.) MANISHA JAYSUKH PARMAR, 3 RD FLOOR, WHITE HOUSE OPP. MONGHABHAI HALL, NEAR S T DEPOT, VALSAD VS. ACIT, VALSAD CIRCLE, VALSAD PAN ADSPP2764R (APPELLANTS) .. (RESPONDENTS) APPELLANTS BY: SHRI S N DIVOTIA, AR RESPONDENTS BY: SHRI RAHUL KUMAR, SR. DR DATE OF HEARING: 18.09.2012 DATE OF PRONOUNCEMENT: 12.10.2012 O R D E R I.T.A.NO. 723,724,725 /AHD/2012 2 PER SHRI A. K. GARODIA, AM:- ALL THESE THREE APPEALS ARE FILED BY THEE DIFFEREN T ASSESSEES FOR THE SAME ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2008-09 W HICH ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF LD. CIT(A) VALSAD ALL DATED 3.12.2011. SINCE THE ISSUE INVOLVED IS THE SAME, ALL THESE APP EALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEES IN ALL THESE THEE APPEALS ARE IDENTICAL EXCEPT DIFFERENCE IN AMOUNTS AND HENCE, W E REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE IN THE CASE OF SHRI JAYSUKH M PARMAR IN I.T.A.NO. 723/AHD/2012: 1.1 THE ORDER PASSED U/S.250 ON 30.12.2011 F OR A.Y.2008-09 BY CIT(A)-VALSAD UPHOLDING THE PENALTY LEVIED U/S.2 71(1)(C) IN RESPECT OF THE INVESTMENT OF RS. 5 LAKH DECLARED IN THE REVISED RETURN LEVIED BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENCE PRODUCED BY THE APPELLANT WITH REGARD TO T HE IMPUGNED PENALTY. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THAT THE APPELLANT HAD CONCEALED INCOME IN RESPECT OF INVESTMENT OF RS.5 LAKH MADE WITH KOTAK MAHENDRA LI FE INSURANCE LTD AND THAT THE REVISED RETURN FILED BY HIM WAS NO T VOLUNTARY AND AS A RESULT OF ENQUIRY MADE BY ADIT(LNV), VALSAD. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE PEN ALTY LEVIED U/S.271(1)(C) BY AO IN RESPECT OF INVESTMENT OF RS. 5 LAKH DECLARED IN THE REVISED RETURN. 2.3 THE LD CIT(A) HAS FAILED TO APPRECIATE THA T THE REVISED RETURN WAS FILED VOLUNTARILY BY THE APPELLANT AND A S ADVISED BY HIS CA. 3.1 IT IS THEREFORE PRAYED THAT THE PENALTY U PHELD BY CIT(A) IN RESPECT OF INVESTMENT OF RS.5 LAKH MAY PLEASE BE DE LETED. I.T.A.NO. 723,724,725 /AHD/2012 3 3. IT WAS AGREED BY BOTH THE SIDES THAT THE FACTS I N ALL THE THREE CASE ARE IDENTICAL AND HENCE, ALL THESE THREE APPEALS MA Y BE DECIDED ON THE BASIS OF THE FACTS OF ANY ONE CASE. HENCE, WE REPR ODUCE THE FACTS OF THE CASE FROM I.T.A.NO. 723/AHD/2012. THE BRIEF FACTS TILL THE ASSESSMENT STAGE ARE NOTED BY LD. CIT(A) IN PARA 5.1 OF HIS OR DER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 5.1 OBSERVATION OF THE A.O.: DURING THE COURSE O F ASSESSMENT PROCEEDINGS, AN INFORMATION WAS RECEIVED BY THE ADD L. D.I.T. (HQ) REGARDING THE SUSPICIOUS TRANSACTION UNDERTAKEN BY THE ASSESSEE, HAVING INVESTED AN AMOUNT OF RS.5.00 LACS IN KOTAK MAHINDRA OLD MUTUAL LIFE INSURANCE LTD. IN THE MONTH OF MARCH, 2 008 THROUGH CASH AND MULTIPLE DDS. EACH DENOMINATED FOR RS.50,0 00/-. THE INQUIRY WAS CONDUCTED ADDL. D.I.T.(INV.),VALSAD AND STATEMENT U/S. 131 OF THE ACT WAS RECORDED ON 28.11.2008, IN WHICH THE ASSESSEE CONFESSED OF HAVING INVESTED RS.5.00 LACS IN KOTAK MAHINDRA OLD LIFE INSURANCE LTD. DURING THE INQUIRY PROCEEDINGS, THE CONFESSED IN HIS STATEMENT AND DECLARED ADDITIONAL INCOME OF RS.5.00 LACS BY FURNISHING THE REVISED RETURN OF INCOME. THE AO WAS NOT SATISFIED WITH THIS AND INITIATED PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE ACT, AS THE DECLARATION CANNOT BE REGARDED AS VOLUN TARY COMPLIANCE BY FURNISHING THE REVISED RETURN OF INCOME. FURTHER , THE ASSESSEE HAS NOT FILED ANY APPEAL AGAINST THE ORDER PASSED U /S, 1-43(3) OF THE ACT. FURTHER, DURING THE INVESTIGATION PROCEEDINGS, THE APPELLANT SUBMITTED THAT HE WITHDREW RS.15,000/- P.M. FOR HOU SEHOLD EXPENSES, HOWEVER, FROM THE DETAILS FILED BY THE AP PELLANT, IT WAS SEEN THAT THE APPELLANT WITHDRAWN RS.6,000/-P. M. O NLY. HENCE, THERE IS A SHORT WITHDRAWAL OF RS.9,000/- P.M. THER EFORE, THE AO MADE ADDITION OF RS.1,08,000/-, AS THE EXPENSES INC URRED FROM THE UNKNOWN SOURCE OF INCOME AND IMPOSED PENALTY ON THE SAME FOR FILING INACCURATE PARTICULARS OF INCOME. THEREFORE, THE AO LEVIED PENALTY U/S. 271(1)(C) OF THE ACT AGGREGATING TO RS.1,82,600/-. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) BUT WITHOUT SUCCESS AND NOW, THE ASSESSE E IS IN FURTHER APPEAL BEFORE US. 5. IT WAS SUBMITTED BY THE LD. A.R. THAT REVISED RE TURN WAS FILED BY THE ASSESSEE IN TIME AND THE DISPUTED AMOUNT HAS BE EN ADDED BY THE I.T.A.NO. 723,724,725 /AHD/2012 4 ASSESSEE IN THE REVISED RETURN OF INCOME FILED BY H IM AND, THEREFORE, PENALTY IS NOT JUSTIFIED IN THE FACTS OF THE PRESEN T CASE. IN THE WRITTEN SUBMISSION FILED BY THE LD. A.R., RELIANCE WAS PLAC ED ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF VTS CHEMICALS PVT. LTD. VS CIT AS REPORTED IN 288 ITR 196 (GUJ.). RELIANCE WAS ALSO PLACED ON ANOTHER JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS SHANKERLAL NEBHUMAL UTTAMCHANDAN I AS REPORTED IN 311 IT 327 (GUJ.). 6. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE AFTER BE ING CORNERED BY THE NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 ISSUED T O ALL THESE THREE ASSESSEES ON 20.11.2008 WHEREAS THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 24.11.2008 I.E. AFTER THE ISSUAN CE OF THE NOTICE U/S 131 AND, THEREFORE, PENALTY IMPOSED BY THE A.O. AND CON FIRMED BY LD. CIT(A) IS JUSTIFIED. HE SUBMITTED A COPY OF THE NO TICES ISSUED U/S 131 ON 20.11.2008 IN ALL THESE THREE CASES. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THOUGH THE ORDERS OF THE AUTHO RITIES BELOW. WE FIND THAT THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 24.11.2008 AND NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 WAS ISSUED BY DDIT VALSAD ON 20.11.2008 IN WHICH ASSESSEE WAS ASKED TO APPEAR PERSONALLY BEFORE HIM ON 24.11.2008. THE CONTENTS OF THIS NOT ICE ISSUED BY DDIT (INV.) U/S 131 IS REPRODUCED BELOW: SUMMONS TO ASSESSEE/WITNESS UNDER SECTION 131 OF T HE INCOME- TAX ACT, 1961. DATED: 20/11/2008 TO SHRI JAYSUKHLAL MAGANLAL PARMAR WHITE HOUSE MEDICAL CENTRE BEACHAR ROAD I.T.A.NO. 723,724,725 /AHD/2012 5 NEAR MAONGHABHAI HALL VALSAD-396001 WHEREAS YOUR ATTENDANCE IS REQUIRED IN CONNECTION W ITH THE PROCEEDINGS UNDER THE INCOME-TAX ACT, 1961 IN YOUR CASE, YOU ARE HEREBY REQUESTED PERSONALLY TO ATTEND MY OFFICE AT ROOM NO.525, AAYAKAR BHAVAN, MAJURAGATE, SURAT ON THE 24 TH DAY OF NOVEMBER 2008 AT 12.30 O' CLOCK P.M. TO GIVE EVIDENCE AND/OR TO PRODUCE EITHER PERSONALLY OR THROUGH AN AUTHORIZED REPRESEN TATIVE THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS SPECIFIED BELOW AND NOT TO DEPART UNTIL YOU RECEIVE MY PERMISSION TO DO SO. WI THOUT PREJUDICE TO THE PROVISION OF ANY OTHER LAW FOR THE TIME BEIN G IN FORCE IF YOU INTENTIONALLY OMIT TO SO ATTEND AND GIVE EVIDENCE O R PRODUCE THE BOOKS OF ACCOUNT DOCUMENTS PENALTY UPTO RS. 10,000 MAY BE IMPOSED UPON YOU UNDER SECTION 272(A)(L)(C) OF THE INCOME TAX ACT, 1961. (SANJAY V. DESHMUKH) DY. DIRECTOR OF INCOME-TAX (INV.), VALSAD. DOCUMENTS/BOOKS OF ACCOUNTS TO BE PRODUCED: 1. COPY OF RETURN OF INCOME FILED FOR THE A.Y. 2007-08 & 08-09 ALONG WITH ALL ANNEXURES THERETO LIKE BALANCE SHEET , P & L ACCOUNT ETC. 2. LIST OF BANK ACCOUNTS, BANK BOOK, CASH BOOK FOR THE SAID PERIOD. (SANJAY V. DESHMUKH) DY. DIRECTOR OF INCOME-TAX (INV.) VALSAD. 8. FROM THE CONTENTS OF THE ABOVE NOTICE, WE FIND T HAT IN THE SAID NOTICE, DDIT (INV.) HAS ASKED THE ASSESSEE TO PRODU CE COPIES OF THE RETURN OF INCOME FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 AND 2008-09 ALONG WITH ALL THE ANNEXURE LIKE BALANCE SHEET AND P & L ACCOUNT ETC. ALONG WITH LIST OF BANK ACCOUNTS, BANK BOOK, CASH B OOK FOR THE SAID PERIOD. FROM THIS NOTICE, IT DOES NOT TRANSPIRE TH AT ANY MATERIAL WAS AVAILABLE WITH THE DDIT (INV.) REGARDING UNACCOUNTE D INVESTMENT MADE BY THE ASSESSEE. THE RELEVANT PART OF THE STATEMEN T RECORDED BY DDIT (INV.) ON 24.11.2008 BEING QUESTION NO.7 AND THE RE PLY IS REPRODUCED BY I.T.A.NO. 723,724,725 /AHD/2012 6 THE A.O. ON PAGE 2 OF THE ASSESSMENT ORDER IN WHICH IT IS STATED BY THE ASSESSEE THAT AFTER THE RECEIPT OF NOTICE U/S 131, THE ASSESSEE APPROACHED THE C.A. FOR GUIDANCE AND HE ADVISED THE ASSESSEE T HAT THE INVESTMENT IN THE KOTAK SECURITIES IS NOT REFLECTED IN THE PERSON AL BALANCE SHEET AND HE ADVISED THE ASSESSEE TO FILE REVISED RETURN FOR ASS ESSMENT YEAR 2008-09 SHOWING ADDITIONAL INCOME OF RS.5 LACS. IT IS ALS O STATED BY THE ASSESSEE IN THE REPLY THAT THE REVISED RETURN OF INCOME WAS ALREADY FILED BY THE ASSESSEE. THESE FACTS SHOW THAT THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE BEFORE RECORDING OF THE STATEMENT BEFO RE DDIT (INV.) U/S 131 BUT THE SAME WAS FILED AFTER THE RECEIPT OF NOTICE U/S 131 ASKING THE ASSESSEE TO PRODUCE THE COPIES OF RETURN OF INCOME AND ENCLOSURES ALONG WITH BOOKS ETC. IN THE LIGHT OF THESE FACTS, WE EX AMINE THE APPLICABILITY OF VARIOUS JUDGEMENTS CITED BY THE LD. A.R.: 9. RELIANCE WAS PLACED BY THE LD. A.R. ON THE TRIBU NAL DECISION RENDERED IN THE CASE OF DCIT VS DR. SATISH B GUPTA AS REPORTED IN 42 SOT 48 (AHD.). THE FACTS OF THAT CASE ARE THAT A S URVEY U/S 133A WAS CARRIED OUT ON 22.09.2006 AT THE PREMISES OF THE AS SESSEE WHO IS PRACTICING DOCTOR AND DURING THE COURSE OF SURVEY, THE ASSESSEE DISCLOSED UNACCOUNTED INCOME OF RS.32.85 LACS AND THEREAFTER, THE ASSESSEE FILED RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS.3 7.57 LACS WHICH INCLUDED UNACCOUNTED INCOME OF RS.32 LACS AS DECLAR ED BY THE ASSESSEE DURING THE COURSE OF SURVEY. THE ASSESSMENT WAS FI NALLY COMPLETED AT A FIGURE OF RS.38,12,360/- AND THE A.O. INITIATED PEN ALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IN RESPECT OF A SUM OF RS.32.8 5 LACS DECLARED BY THE ASSESSEE DURING THE COURSE OF SURVEY. UNDER THEE F ACTS, PENALTY WAS DELETED BY THE TRIBUNAL BY MAKING FOLLOWING OBSERVA TIONS AS PER PARAS 7- 10 OF THAT TRIBUNAL ORDER : 7. THUS THE BASIS FOR LEVY OF PENALTY IS RETURN OF INCOME. IF ANY AMOUNT HAS BEEN SHOWN IN THE RETURN OF INCOM E THEN IT I.T.A.NO. 723,724,725 /AHD/2012 7 CANNOT BE SAID THAT ASSESSEE HAS CONCEALED ANY PART ICULAR ABOUT THAT INCOME OR FURNISHED INACCURATE PARTICULARS IN RELAT ION THERETO. THERE CANNOT BE ANY CONCEALMENT PRIOR TO FILING OF RETURN. QUESTION OF CONSIDERING WHETHER ASSESSEE IS LIABLE FOR ACTIO N UNDER SECTION 271(L)(C) WOULD ARISE ONLY WHEN RETURN OF INCOME IS SCRUTINIZED BY THE ASSESSING OFFICER AND HE FINDS SOME MORE ITEMS OF INCOME OR ADDITIONAL INCOME OVER AND ABOVE WHAT IS DECLARED I N THE RETURN. IF IT IS SO, THE ASSESSEE WOULD BE LIABLE FOR ACTION U NDER SECTION 271( L)(C) IN RESPECT OF SUCH ITEMS ONLY WHICH ARE DISCO VERED BY THE ASSESSING OFFICER ON THE SCRUTINY OF RETURN OF INCO ME OR AFTER CARRYING OUT INVESTIGATION AND DISCOVERING SOME MOR E ITEMS OF INCOME NOT FOUND DECLARED OR MENTIONED IN THE RETUR N OF INCOME. PRIOR TO FILING OF RETURN OF INCOME THERE IS NO CON CEPT OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS . 8 THE INITIAL PHRASE USED IN SECTION 271(L)(C) SUGG ESTS THAT ASSESSING OFFICER HAS TO FIND IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT... THAT ASSESSEE HAS CONCEALED THE P ARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IN FACT THE PROCEEDINGS AGAINST THE ASSESSEE WOULD START ON LY AFTER RETURN OF INCOME IS FILED BY THE ASSESSEE OR AFTER ISSUANCE O F STATUTORY NOTICE AGAINST HIM SUCH AS UNDER SECTION 142(1) OR UNDER S ECTION 143(2). CARRYING OUT SURVEY UNDER SECTION 133A IS NOT AT AL L ANY PROCEEDINGS. PROCEEDINGS AS USED IN SECTION 27 L(L) (C) ARE STATUTORY PROCEEDINGS INITIATED AGAINST THE ASSESSEE EITHER B Y ISSUANCE OF STATUTORY NOTICE OR AFTER FILING OF RETURN OF INCOM E. SURVEY UNDER SECTION 133A OR SEARCH UNDER SECTION 132 OR ISSUANC E OF NOTICE UNDER SECTION 133(6) FOR EXAMPLE, ARE ONLY MEANS OF COLLECTING EVIDENCE AGAINST THE ASSESSEE AND IRE NOT EQUIVALEN T TO STATUTORY PROCEEDINGS. ANOTHER CRITERIA OF FINDING OUT AS TO WHETHER PARTICULAR ACTION IS A STATUTORY PROCEEDINGS OR NOT IT IS TO BE SEEN WHETHER IT CAN BE BROUGHT TO A LEGAL CONCLUSION AGA INST THE ASSESSEE 3V DETERMINING HIS RIGHT OR LIABILITY. MERELY CARRY ING OUT SURVEY UNDER SECTION 133A DOES NOT CREATE ANY LIABILITY AG AINST THE ASSESSEE WHICH IS CREATED ONLY THROUGH ASSESSMENT P ROCEEDINGS OR PENALTY PROCEEDINGS. THEREFORE, THE ID. DR IS INCOR RECT IN HIS SUBMISSION THAT SURVEY BEING A PROCEEDINGS AND ASSE SSING OFFICER HAS DISCOVERED CONCEALMENT DURING SURVEY, THEREFORE , THE ASSESSEE IS LIABLE FOR PENALTY UNDER SECTION 271 (L)(C). IN THIS REGARD WE REFER TO SOME COMMON DEFINITIONS OF WORD 'PROCEEDINGS'. PROCEEDINGS - PROCEEDINGS HAVE BEEN DEFINED IN VARI OUS WAYS. IT INCLUDES ANY SUIT, APPEAL OR APPLICATION. IT INCLUD ES ANY PROCEDURAL MEANS FOR SEEKING REDRESS FROM THE TRIBUNAL OR COUR T; THE BUSINESS CONDUCTED BY A COURT OR OTHER OFFICIAL BODY, THE TE RM I.T.A.NO. 723,724,725 /AHD/2012 8 'PROCEEDINGS' MAY INCLUDE THE INSTITUTION OF ACTION AGAINST DEFENDANT, THE SUBMISSIONS OF DEFENCE AND TRIAL. IT ALSO MEANS A LEGAL ACTION OR PROCESS AND ACT DONE BY AN AUTHORIT Y OF A COURT OF LAW; ANY STEP TAKEN BY EITHER PARTY IN A LEGAL PROC EEDING, AN ACTION OR COURSE OF ACTION BEFORE A COURT. IT IS ALSO A PR ESCRIBED MODE OF ACTION FOR CARRYING INTO EFFECT A LEGAL RIGHT. IN I TS ORDINARY ACCEPTANCE PROCEEDINGS MEANS FORM AND MANNER OF CON DUCTING JUDICIAL BUSINESS BY A QUASI-JUDICIAL AUTHORITY, TH E FORM IN WHICH ACTIONS ARE TO BE BROUGHT AND DEFENDED AND THE MODE OF DECIDING SUITS OR OF OPPOSING JUDGMENTS OR OF EXECUTING THEM . THE WORD 'PROCEEDINGS' ALSO INCLUDES WITHIN ITS AMBIT ALL MA TTERS COMING UP FOR ADJUDICATION. IT IS ALSO A PRESCRIBED COURSE OF ACTION FOR THE ENFORCEMENT OF LEGAL RIGHT. IT HAS BEEN HELD IN DBS FINANCE SERVICES (P.) LTD. V. SMT. M. GEORGE, SECOND /TO [1 994] 207 ITR 1077' BY HON'BLE BOMBAY HIGH COURT, IN THE CONTEXT OF ACTION UNDER SECTION 133(6), THAT A PROCEEDING UNDER THE I NCOME-TAX ACT BY ITS VERY NATURE MUST BE SPECIFIC AND IT MUST REL ATE TO SPECIFIC INDIVIDUAL OR ENTITY. THE TERM OF PROCEEDINGS USED IN SECTION 133(6) MEANS A PENDING OR EXISTING PROCEEDINGS. IN OTHER WORDS CALLING FOR INFORMATION IN ITSELF IS NOT A PROCEEDI NG. SINCE SECTION 133A IS AN ACTION FOR CALLING OF INFORMATION, IN IT SELF IT IS NOT A PROCEEDINGS. 9. FURTHER CLAUSE (C) TO SECTION 271(1) MENTIONS 'A S CONCEALED.......OR FURNISHED'. THEY ARE PAST TENSE WORDS INDICATING THAT ASSESSEE HAS COMMITTED CERTAIN ACT ON WHICH PE NALTY IS LEVIABLE. THUS THE ACT OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS SHOULD BE VIEWED BY THE ASSESSING OFFIC ER AS DONE WITH RESPECT TO RETURN OF INCOME. THE OMISSION OR COMMIS SION OR CONTUMACIOUS CONDUCT HAS TO BE VIEWED FROM THE RETU RN OF INCOME AND IF CERTAIN THING IS NOT DISCLOSED OR NOT FURNIS HED THEREIN ONLY THEN IT CAN BE SAID THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. PRIOR TO THIS ASSESSEE HAS NOT DONE ANY CONTUMACIOUS CONDUCT ON W HICH PENALTY CAN BE LEVIED. MERELY BECAUSE CERTAIN RECEIPTS ARE NOT RECORDED IN THE BOOKS OF ACCOUNT OR RECEIPTS ARE NOT ISSUED TO THE PATIENTS, BUT INCOME THEREFROM WAS FINALLY DECLARED IN THE RETURN OF INCOME, THEN THERE IS NO CONTUMACIOUS CONDUCT. FOR NOT MAIN TAINING BOOKS OF ACCOUNT OR NOT ISSUING RECEIPTS TO THE PATIENTS FOR THE AMOUNT RECEIVED BY THE ASSESSEE, THE BOOKS, AT THE BEST, C AN BE REJECTED BY INVOKING PROVISIONS OF SECTION 145(3) AND INCOME CA N BE ESTIMATED IN ACCORDANCE WITH SECTION 144. BUT WHERE THE ASSES SING OFFICER ACCEPTS THE INCOME DECLARED IN THE RETURN OF INCOME THEN ASSESSEE CANNOT BE CHARGED FOR ANY CONTUMACIOUS CONDUCT. THE RE ARE IN FACT I.T.A.NO. 723,724,725 /AHD/2012 9 SEVERAL JUDGMENTS ACCORDING TO WHICH PENALTY IS NOT LEVIABLE IF ADDITION IS DELETED. HON'BLE PUNJAB & HARYANA HIGH COURT IN CIT V. PRAKASH INDUSTRIES LTD. [2010] 322 ITR 622 HELD THAT BASIS FOR LEVY OF PENALTY IS RETURNED INCOME. IF ADDITIONS AR E DELETED IN QUANTUM PROCEEDINGS PENALTY COULD NOT BE IMPOSED. T HE HON'BLE HIGH COURT HAS HELD AS UNDER : 'A SEARCH SHOWED THAT THE ASSESSEE HAD RECEIVED AMO UNT OF RS. 3.5 CRORES FROM THE BANK ACCOUNT OF S. FARIDABAD. IT WA S OBSERVED THAT THE FIRM WAS A BOGUS FIRM AND THE CLAIM OF THE ASSE SSEE THAT THE AMOUNT WAS RECEIVED TOWARDS CONSIDERATION FOR SALE OF MATERIAL, WAS NOT ACCEPTED. HENCE, ADDITION WAS MADE TO THE D ECLARED INCOME. FURTHER ADDITIONS WERE MADE BY HOLDING THAT LEASE RENT SHOWN TO HAVE BEEN PAID BY THE ASSESSEE HAD NOT BEE N IN FACT BEEN PAID AND THE CLAIM FOR DEPRECIATION COULD NOT BE AL LOWED AS THE MACHINERY WAS NOT IN THE POSSESSION OF THE ASSESSEE DURING PHYSICAL VERIFICATION. THE COMMISSIONER (APPEALS) U PHELD THE ADDITION IN RESPECT OF RECEIPTS SHOWN TO HAVE BEEN MADE FROM S BUT DELETED THE ADDITION TOWARDS LEASE RENT AND DEPRECI ATION ALLOWANCE, TAKING INTO ACCOUNT ADDITIONAL EVIDENCE LED BY THE ASSESSEE. ON FURTHER APPEAL, THE TRIBUNAL UPHELD THE PLEA OF THE ASSESSEE IN RESPECT OF AMOUNT RECEIVED FROM S BUT DISMISSED THE APPEAL OF THE REVENUE IN RESPECT OF DELETIONS IN RESPECT OF LEASE RENT AND DEPRECIATION ALLOWANCE. THE TRIBUNAL CANCELLED THE PENALTY LEVIED UNDER SECTION 271(L)(C) OF THE INCOME-TAX ACT, 1961 . ON APPEAL TO THE HIGH COURT: HELD, DISMISSING THE APPEAL, THAT AS REGARDS THE DE LETION BY THE COMMISSIONER (APPEALS) AFTER REFERRING TO THE ADDIT IONAL EVIDENCE LED BEFORE HIM, THE TRIBUNAL HAD EXAMINED THE MATTE R AND RECORDED THAT A REMAND REPORT WAS DULY SOUGHT AND THUS NO PR EJUDICE WAS CAUSED BY CONSIDERING THE ADDITIONAL EVIDENCE. WITH REGARD TO THE AMOUNT, RECEIVED FROM S THE MATTER WAS IN THE REALM OF APPRECIATION OF EVIDENCE. EVEN IF IT IS HELD THAT T WO VIEWS ARE POSSIBLE, THE INFERENCE DRAWN BY THE TRIBUNAL, BEIN G THE FINAL FACT- FINDING AUTHORITY, COULD NOT BE HELD TO BE PERVERSE . THE CANCELLATION OF PENALTY WAS VALID.' SIMILAR VIEW HAS BEEN TAKEN IN THE FOLLOWING JUDGME NT ALSO : CIT VS . RELIANCE PETROPRODUCTS (P.) LTD. [2010] 32 2 ITR 158' (SC); CIT V. BADRI KASHI PRASAD[1993] 200 ITR 206 (ALL.); PRABHAT OIL TRADERS V. ITO (NO. 3) [1996] 218 ITR 3 9 (AHD.)(AT); CITY DRY FISH CO. V. CIT[1999] 238 ITR 63 (AP); _ CIT V. MOHD. BUX SOKATALI [2004] 265 ITR 326 2 (RAJ.); I.T.A.NO. 723,724,725 /AHD/2012 10 ASSTT. CIT V. VIP INDUSTRIES LTD. [2009] 122 TTJ 28 9/30 SOT 254 (MUM.). 10. OUR VIEW THAT NO PENALTY IS LEVIABLE IF IMPUGN ED AMOUNT IS DISCLOSED THE RETURN OF INCOME IS SUPPORTED BY THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SMT GOV INDA DEVY. OT[2008] 304 ITR 340 3 . IN THAT CASE ASSESSEE RECEIVED LOTTERY PRIZE MONEY IN JANUARY, 1992 AND DISCLOSED THE SAME IN THE RETURN FILED FOR ASSESSMENT YEAR 1992-93 AND PAID THE TAXE S. THE ASSESSING AUTHORITY PASSED AN EX PARTE ASSESSMENT ORDER AND E X- PARTE PENALTY ORDER IN ASSESSMENT YEAR 1991-92. IT WAS HELD BY TH E HONBLE COURT THAT ONCE PRIZE MONEY HAS BEEN DISCLOSED IN T HE RETURN OF INCOME FOR ASSESSMENT YEAR 1992-93 AND ALSO TAXES W ERE PAID THEN ASSESSING AUTHORITY HAD APPARENTLY COMMITTED AN ERR OR IN LEVYING THE PENALTY. IN K.C. BUILDERS V. ASSTT. OT [2004] 2 65 ITR 562 4 (SC) IT WAS HELD : THE HON'BLE APEX COURT THAT WHER E ADDITIONS ARE MADE IN THE ASSESS DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT NO PENALTY WOULD SURVIVE IF ADDITION DID NOT SURVIVE. IN CIT V. S.S.K.G ARTHANARISWAMY CHETT IAR [1982] 136ITR 145 HON'BLE MADRAS HIGH COURT HELD THAT PENA LTY CAN BE IMPOSED WITH REFERENCE TO THE CONCEALMENT DONE IN T HE ORIGINAL RETURN FILED UNDER SECTION 139. IN THE CASE OF SULE MANJI GANIBHAIV. CIT [1980] 121 ITR 373 (M.P.) IT WAS HELD THAT AN A SSESSEE INCURS PENALTY UNDER SECTION 27 L(L)(C) IF HE FILES INACCU RATE PARTICULARS OR HIS INCOME IN THE RETURN OR CONCEALS THE PARTICULAR S OF INCOME THEREIN. THERE CAN BE NO CONCEALMENT UNTIL THERE IS A DUTY TO DISCLOSE. THE DUTY TO DISCLOSE PARTICULARS OF INCOM E ARISES AT THE TIME WHEN ASSESSEE FURNISHES RETURN OF INCOME UNDER SECTION 139 AND IF IN FILING HIS RETURN HE CONCEALS THE PARTICU LARS OF INCOME OR FURNISHES INACCURATE PARTICULARS HE INCURS PENALTY UNDER SECTION 271(L)(C). IN THE CASE OF PATNA GUINEA HOUSE V. CIT [2000] 243 ITR 274 (PAT.) IT IS HELD THAT THERE IS NO CASE FOR LEVY OF PENALTY IF INCOME IS DISCLOSED IN THE RETURN OF INCOME BUT ASS ESSEE HAS REFUSED TO DISCLOSE SOURCE OF INCOME. 10. IN THAT CASE, THE ASSESSEE DECLARED ADDITIONAL INCOME IN THE COURSE OF SURVEY AND THEREAFTER, INCLUDED THE SAME IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND EVEN UNDER THESE FACTS, THE TRI BUNAL CAME TO THE CONCLUSION THAT PENALTY U/S 271(1)(C) IS NOT LEVIAB LE. I.T.A.NO. 723,724,725 /AHD/2012 11 11. IN THE PRESENT CASE, REVISED RETURN OF INCOME W AS FILED BY THE ASSESSEE ON 24.11.2008 IN WHICH ADDITIONAL INCOME W AS DECLARED BY THE ASSESSEE. THE STATEMENT RECORDED BY DDIT( INV.) IS DATED 28.11.2008 AND IN THE SAME STATEMENT, THE ASSESSEE CONFESSED REGAR DING THIS INVESTMENT OUT OF ADDITIONAL INCOME AS DECLARED BY THE ASSESSE E IN THE REVISED RETURN OF INCOME FILED ON 24.11.2008. HENCE, THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE BEFORE THE RECORDING OF STATE MENT BY DDIT ( INV.). SO FAR NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 I SSUED BY THE DDIT (INV.) IS CONCERNED, THE SAME ALSO ONLY REQUIRE THE ASSESSEE TO FURNISH COPIES OF THE RETURN OF INCOME FILED BY THE ASSESSE E FOR THE ASSESSMENT YEARS 2007-08 & 2008-09 ALONG WITH ALL THE ANNEXURE S THERETO LIKE BALANCE SHEET, P & L ACCOUNT ETC. AND THE ASSESSEE WAS ALSO ASKED TO PRODUCE LIST OF BANK ACCOUNT, BANK BOOK, CASH BOOK ETC FOR THE SAID PERIOD. HENCE, IN THE SAID NOTICE ISSUED BY DDIT ( INV.) U/S 131 OF THE INCOME TAX ACT, 1961 ON 20.11.2008, THERE IS NO IND ICATION REGARDING ANY ADVERSE MATERIAL HAVING BROUGHT OUT ON RECORD BY TH E DEPARTMENT REGARDING ANY CONCEALMENT OF INCOME BY THE ASSESSE E. THE ASSESSEES EXPLANATION IS THIS THAT THIS INVESTMENT WAS MADE O UT OF PAST SAVINGS BUT ON RECEIPT OF THIS NOTICE U/S 131 OF THE INCOME TAX ACT, 1961, THE ASSESSEE CONSULTED A CHARTERED ACCOUNTANT WHO ADVISED THE AS SESSEE TO FILE REVISED RETURN OF INCOME AND INCLUDE ADDITIONAL INCOME IN T HE SAME TO COVER THIS INVESTMENT SINCE HE WAS NOT IN A POSITION TO SUBSTA NTIATE HIS EXPLANATION THAT THE INVESTMENT WAS MADE OUT OF PAST SAVINGS. IT IS NOT THE CASE OF THE A.O. THAT THE REVISED RETURN OF INCOME WAS NOT FILE D BY THE ASSESSEE OR THAT THE SAME IS NOT VALID. IN FACT, THE A.O. HAS NOTED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS FILED HIS ORIGINAL RETU RN OF INCOME ON 18.08.2008 AND THE REVISED RETURN OF INCOME WAS FIL ED ON 24.11.2008 DECLARING ADDITIONAL INCOME OF RS.5 LACS. HENCE, I T IS NOT IN DISPUTE THAT THE REVISED RETURN WAS FILED WELL IN TIME AS PERMIT TED IN LAW AND THE SAME I.T.A.NO. 723,724,725 /AHD/2012 12 IS VALID. IN OUR CONSIDERED OPINION, THE FACTS OF THE PRESENT CASE ARE EVEN BETTER THAN THE CASE CITED BY THE LD. A.R. AS NOTED ABOVE AND THEREFORE, BY FOLLOWING THIS TRIBUNAL DECISION, PENALTY IN THE PR ESENT CASE IS DELETED. 12. NOW, WE CONSIDER THE APPLICABILITY OF VARIOUS J UDGEMENT CITED BY THE LD. D.R. THE FIRST JUDGEMENT CITED BY THE LD. D.R. IS THE JUDGEMENT OF HONBLE GAUHATI HIGH COURT RENDERED IN THE CASE OF S C AGRAWAL VS CIT AS REPORTED IN 102 ITR 408, WHICH IS CONFIRMED BY THE HONBLE APEX COURT AS PER THE JUDGEMENT REPORTED IN 186 ITR 571. IN THAT CASE ALSO, THE ASSESSEE FILED REVISED RETURN OF INCOME U/S 139 (5) OF THE INCOME TAX ACT, 1961 AND DECLARED ADDITIONAL INCOME AS COMPARE D TO THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE INCOME TAX ACT, 1961 AND UNDER THESE FACTS, THE PENALTY WAS IMPOSED BY THE A.O. WH ICH WAS CONFIRMED BY THE TRIBUNAL AS WELL AS BY THE HONBLE HIGH COURT A LSO. IN THAT CASE, IT IS NOTED BY HONBLE GAUHATI HIGH COURT THAT CBDT HAD I SSUED INSTRUCTIONS DATED 05.01.1971 WHEREIN BOARD HAD STATED CLEARLY T HAT IF THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS FALSE, HE MIGHT FI LE REVISED RETURN TO AVAIL THE CONSEQUENTIAL DISCOVERY. IN THAT CASE, IT WAS HELD THAT SINCE THE SAID INSTRUCTIONS WERE ISSUED ON 05.01.1971AND REVISED R ETURN WAS FILED ON 20.03.1968 AND 23.03.1968 AND PENALTY ORDER WAS PAS SED BY IAC ON 21.03.1970, THE SAID REVISED RETURN WERE NOT FILED IN PURSUANCE TO ADVERTISEMENT ISSUED BY CBDT ON 05.01.1971 AND, THE REFORE, THE ASSESSEE IS NOT ENTITLED FOR THE BENEFIT OF THIS ADVERTISEME NT/INSTRUCTION. IN THE PRESENT CASE, THE ASSESSMENT YEAR INVOLVED IS 2008- 09 AND HENCE, THE ASSESSEE IS VERY MUCH ENTITLED TO THE BENEFIT OF TH IS ADVERTISEMENT/INSTRUCTION AND, THEREFORE, THIS JUDG MENT IS NOT APPLICABLE IN THE PRESENT CASE. 13. THE 2 ND DECISION CITED BY THE LD. D.R. IS THE JUDGMENT OF HONBLE KERALA HIGH COURT RENDERED IN THE CASE OF CIT VS HA JI P MOHD. AS REPORTED IN 132 ITR 623. THE FACTS OF THAT CASE AR E THAT THE ASSESSEE, I.T.A.NO. 723,724,725 /AHD/2012 13 INDIVIDUAL, WAS A CONTRACTOR EXECUTING WORKS FOR PW D AND FOR THE ASSESSMENT YEAR 1971-72, HE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.21,240/ UNDER THE HEAD INCOME FORM BUSINESS B EING THE 10% OF THE AGGREGATE AMOUNT OF RS.2,12,388/- SAID TO HAVE BEEN RECEIVED BY HIM FROM THE DEPARTMENT. ON THE BASIS OF INFORMATION I N HIS POSSESSION, THE ITO ON 10.12.1971 ENQUIRED ABOUT THE AMOUNT RECEIVE D BY HIM FROM IRRIGATION DEPARTMENT AND NOT INCLUDED IN THE RETUR N. THEREAFTER, THE ASSESSEE SUBMITTED THE REVISED RETURN ON 27.12.1971 DECLARING AN INCOME OF RS.33,020 WORKED OUT BY ADDITION OF RS.1,17,796/ - TO RS.2,12,388/- AND APPLYING 10% AS THE PROFIT RATE TO THE TOTAL. UNDER THESE FACTS, THE PENALTY WAS IMPOSED BY THE A.O. WHICH WAS DELETED B Y AAC AND THE TRIBUNAL BUT THE HONBLE HIGH COURT HAS CONFIRMED T HE PENALTY ON THIS BASIS THAT IT CANNOT BE SAID THAT THE ASSESSEE WAS UNAWARE OF THE FACT OF HAVING RECEIVED THE SUM OF RS.1,17,633/- IN RESPECT OF HIS CONTRACT WITH THE IRRIGATION DEPARTMENT. THIS FACT WAS ALSO NOTED BY HONBLE HIGH COURT THAT REVISED RETURN WAS FILED BY THE ASSESSEE AFTER THE ITO HAD CONFRONTED WITH THE INFORMATION IN HIS POSSESSION R EGARDING THE IMPUGNED RECEIPT AND THEREFORE, IT CANNOT BE REGARDED AS REV ISED RETURN FILED U/S 139(5) BECAUSE THERE WAS NO DISCOVERY BY THE ASSESS EE OF ANY OMISSION OR WRONG STATEMENT HAVING BEEN MADE BY HIM BY INADVERT ENCE IN THE ORIGINAL RETURN. IN THE PRESENT CASE, THE FACTS AR E DIFFERENT. IN THE PRESENT CASE, THERE IS NO DEFINITE INFORMATION IN THE POSSE SSION OF THE DEPARTMENT REGARDING ANY ADDITIONAL INCOME OF THE ASSESSEE AND ON ISSUANCE OF NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 BY DDIT( INV.), THE ASSESSEE NOTED THAT HIS INVESTMENTS WERE MADE OUT OF PAST SAVING B UT SINCE HE COULD NOT SUBSTANTIATE THIS EXPLANATION, HE WAS ADVISED BY HI S CA TO FILE REVISED RETURN OF INCOME BY DECLARING ADDITIONAL INCOME. I N OUR CONSIDERED OPINION, THE FACTS OF THE PRESENT CASE ARE DIFFEREN T AND, THEREFORE, THIS JUDGMENT IS ALSO NOT APPLICABLE IN THE PRESENT CASE . I.T.A.NO. 723,724,725 /AHD/2012 14 14. THE 3 RD JUDGEMENT CITED BY THE LD. D.R. IS THE JUDGEMENT O F HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF S . R. ARULPRAKASAM VS SMT. PREMA MALINI VASAN ITO AS REPORTED IN 163 I TR 487 THIS JUDGEMENT IS REGARDING THE PROCEEDINGS U/S 276C REA D WITH SECTION 277 OF THE INCOME TAX ACT, 1961 AND VARIOUS SECTIONS OF THE INDIAN PENAL CODE, 1860 FOR OFFENCES AND PROSECUTIONS. IN THE P RESENT CASE, THE ISSUE INVOLVED IS REGARDING PENALTY IMPOSED BY THE A.O. U /S 271(1) AND, THEREFORE, THIS JUDGEMENT OF HONBLE MADRAS HIGH CO URT HAS NO RELEVANCE IN THE PRESENT CASE. 15. THE NEXT JUDGEMENT CITED BY THE LD. D.R. IS ANO THER JUDGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF R AVI & CO. VS ACIT AS REPORTED IN 271 ITR 286. IN THAT CASE, THE REVI SED RETURN OF INCOME WAS FILED BY THE ASSESSEE AFTER ISSUE OF NOTICE BY THE A.O. U/S 143(2) OF THE INCOME TAX ACT, 1961 ALONG WITH QUESTIONNAIRE C ALLING FOR CERTAIN DETAILS. IN THAT CASE, CLEAR FINDING IS GIVEN BY T HE TRIBUNAL THAT MUCH BEFORE THE REVISED RETURN FILED BY THE ASSESSEE, TH E QUESTIONNAIRE HAD BEEN ISSUED BY THE A.O. CALLING FOR CERTAIN DETAILS AND THE ASSESSEE FILED REVISED RETURN ONLY THEREAFTER AND HENCE, IT WAS HELD BY TH E TRIBUNAL THAT THE REVISED RETURN HAS NOT BEEN FILED VOLUNTARILY IN A BONA FIDE MANNER. IN THE PRESENT CASE, THE NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 WAS ISSUED BY THE DDIT (INV.) ON 20.11.2008 AND IN THE SAID NO TICE ALSO, THE ASSESSEE WAS ASKED TO FURNISH COPIES OF RETURN OF INCOME FIL ED FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 ALONG WITH ALL ANNEXURES LIKE BALANCE SHEET AND P & L ACCOUNT AND THE ASSESSEE WAS ASKED TO FUR NISH LIST OF BANK ACCOUNTS, BANK BOOK AND CASH BOOK ETC AND HENCE, IT IS SEEN THAT NO SPECIFIC QUESTIONNAIRE WAS ISSUED BY THE DDIT(INV.) AND REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE IMMEDIATELY ON 24. 11.2008 AND IT IS EXPLAINED THAT THE ASSESSEE HAD EXPLAINED REGARDING THE INVESTMENT IN QUESTION WHICH IS MADE BY THE ASSESSEE OUT OF HIS P AST SAVING BUT SINCE I.T.A.NO. 723,724,725 /AHD/2012 15 THE ASSESSEE WAS NOT IN A POSITION TO SUBSTANTIATE THIS EXPLANATION, THE ASSESSEE WAS ADVISED BY THE CA TO FILE THE REVISED RETURN OF INCOME AND DECLARE ADDITIONAL INCOME IN THIS REGARD AND HENCE, THE FACTS OF THE PRESENT CASE ARE DIFFERENT AND, THEREFORE, THIS JUD GMENT OF HONBLE MADRAS HIGH COURT IS ALSO NOT APPLICABLE IN THE PRESENT CA SE. 16. AS PER ABOVE DISCUSSION, WE FIND THAT NONE OF T HE JUDGEMENTS CITED BY THE LD. D.R. IS APPLICABLE IN THE PRESENT CASE B ECAUSE THE FACTS ARE DIFFERENT AND THE ISSUE INVOLVED IN THE PRESENT CAS E IS SQUARELY COVERED BY THE TRIBUNAL DECISION CITED BY THE LD. A.R. AND HEN CE, WE DELETE THE PENALTY IN THE PRESENT CASE BY RESPECTFULLY FOLLOWI NG THIS TRIBUNAL DECISION CITED BY THE LD. A.R. AND AS PER ABOVE DISCUSSION. 17. IT WAS AGREED BY BOTH THE SIDES THAT THE REMAIN ING TWO APPEALS CAN BE DECIDED ON SIMILAR LINES BECAUSE THE FACTS AND A RGUMENTS ARE SIMILAR. ACCORDINGLY, IN THE REMAINING TWO APPEALS ALSO, WE DECIDE THE ISSUE ON SIMILAR LIENS AND DELETE THE PENALTY. 18. IN THE COMBINED RESULT, ALL THE THREE APPEALS O F THE ASSESSEES ARE ALLOWED. 19. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD I.T.A.NO. 723,724,725 /AHD/2012 16 1. DATE OF DICTATION 28/09/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09/10/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 12/10/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.12/10 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12/10/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .