Smt. Jyoti Sunil Maniyar, Ahmedabad V. The Income Tax Officer, Ward-2(4), Ahmedabad

ITA 888/AHD/2014

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8189 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Reasonable cause
• Section: 271(1)(c); 143(3); 142(1); 263; 12

Judgement Text

, M MM MH HH H IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD L LL LK KK KOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; ,OA OAOA OA EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D LNL; ;D LNL; ;D LNL; ;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 888/AHD/2014 ( / ASSESSMENT YEAR : 2009-10) SMT JOYTI SUNIL MANIYAR, C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD. / VS. ITO, WARD 2(4), AHMEDABAD. ./ ./ PAN/GIR NO. : AGEPA 2433 K ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KETAN SHAH, A.R. / RESPONDENT BY : SHRI LALIT P JAIN, SR. D.R. / DATE OF HEARING 08/10/2018 !'# / DATE OF PRONOUNCEMENT 01/01/2019 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)II, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- II/WD.2(4)/294/2013-14 DATED 10.02.2014 ARISING IN THE MATTER OF PENALTY ORDER PASSED UNDER S.271(1)(C) OF THE INCOME TAX AC T, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 20.06.2012 RELEVANT TO ASSESSMENT YEAR (AY) 2009-10. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE A RE AS UNDER:- THE FOLLOWING GROUNDS ARE WITHOUT PREJUDICE TO EAC H OTHER. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER/COMMISSIONER OF INCOME TAX (APPEA LS) ERRED - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PENALTY ORDER UNDER SEC.271(1)(C) IN TER ALIA ERRED IN GIVING FINDING THAT THE ASSESSEE HAS CONCEALED T HE PARTICULARS OF INCOME IN REFERENCE TO THE SALE OF PROPERTY OF R S.30,46,950/-. IT IS PRAYED THAT THE PENALTY LEVIED MAY PLEASE BE CANCELLED. 2. THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN NOT APPRECIATING THE FACTS THAT THE CONCERNED AC COUNTANT HAS FILED AFFIDAVIT AND THEREAFTER HE HAS NOT BEEN CROS S EXAMINED BY THE ASSESSING OFFICER, AND AS SUCH, THE FACTUAL ASP ECT BROUGHT TO THE NOTICE BY THE ACCOUNTANT IN THE AFFIDAVIT IS RE QUIRED TO BE BELIEVED IN TOTO, AND THEREFORE, THE PENALTY LEVIED MAY PLEASE BE CANCELLED ON THE GROUND OF 'BONA FIDE' OF THE ASSES SEE. 3. WITHOUT PREJUDICE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT APPRECIATING THE FACT TH AT THE PROPERTY IN DISPUTE WAS PURCHASED BY THE PARENTS OF THE ASSE SSEE AT JODHPUR BY THEIR SOURCE OF INCOME AND ULTIMATELY IT HAS BEEN SOLD BY THEM AT JODHPUR, AND HENCE, THE SALES CONSIDERAT ION HAS NOT BEEN GIVEN TO THE ASSESSEE NOR THE SAME HAS BEEN RE FLECTED IN ANY BANK ACCOUNT AT AHMEDABAD, AND THEREFORE, THIS FACT UAL ASPECT MAY PLEASE BE CONSIDERED AS REASONABLE CAUSE' AND T HE PENALTY ORDER MAY PLEASE BE QUASHED. THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND, ALT ER OR MODIFY ANY OF THE GROUNDS STATED HEREINABOVE EITHER BEFORE OR AT THE TIME OF HEARING. 3. THE ASSESSEE HAS ALSO RAISED THE ADDITIONAL GROU NDS OF APPEAL VIDE LETTER DATED 14.06.2017 AS REPRODUCED UNDER:- 1. THE LEARNED C.I.T.(APPEALS) HAS ERRED IN N OT APPRECIATING THE FACTS THAT THE PENALTY NOTICE U/S.274 R.W.S. 271(1) (C) DATED 15.12.2011 ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 3 - AS WELL AS 15.05.2012 IS ITSELF BAD IN LAW SINCE TH ERE IS NO SUCH SPECIFIC ALLEGATION IN REFERENCE TO TWO LIMBS OF SECTION 271 (1)(C), AND THEREFORE, CONSEQUENTIAL PENALTY ORDER PASSED U/S.271(1)(C) IS ITSELF BAD IN LAW AND VOID. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IN ITS ORI GINAL GROUNDS OF APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE P ENALTY OF RS. 5,71,406/- UNDER THE PROVISION OF SECTION 271(1)(C) OF THE ACT. 5. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME DATED 25. 03.2010 DECLARING TOTAL INCOME OF RS. 43,950/- UNDER THE HEAD BUSINESS AND PROFESSION. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS SOLD A PIECE OF LAND SITUATED AT 671, SAMANVAY NAGAR PAL ROAD, KHASARA, DISTRICT JODHPUR RAJASTHAN. THE PIECE OF LAND WAS SOLD FOR RS. 30,41,000/- DATE D 26.05.2008. HOWEVER, THE ASSESSEE FAILED TO DECLARE ANY INCOME UNDER THE HEAD CAPITAL GAIN ON ACCOUNT OF SUCH SALE OF THE PLOT. T HEREFORE, THE AO WORKED OUT THE CAPITAL GAIN ON THE SALE OF SUCH PLO T OF LAND FOR RS. 26,57,708/- ONLY. THE NECESSARY COMPUTATION OF CAPI TAL GAIN FOR RS. 26,57,708/- STANDS AS UNDER: SR. NO. DATE OF SALE DATE OF PURCHASE SALE VALUE PUR CHASE VALUE INDEX COST GAIN 1 26.5.2008 16.06.2005 30,41,000 19400+304680 26504+356788 26,57,708 BECAUSE OF THE ABOVE, THE AO ADDED A SUM OF RS. 26, 57,708/- AS LONG- TERM CAPITAL GAIN TO THE TOTAL INCOME OF THE ASSESS EE VIDE ORDER DATED 15.12.2011 U/S 143(3) OF THE ACT. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 4 - 5.1 THE ASSESSEE IN ITS ASSESSMENT ORDER INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON ACCOUNT OF CONCEALMENT OF INCOME FOR SUCH CAPITAL GAIN. 5.2 SUBSEQUENTLY, THE AO ISSUED A NOTICE U/S 274 / 271(1)(C) OF THE ACT DATED 15.12.2011 FOR INITIATING THE PENALTY PROCEED INGS. 5.3 THE ASSESSEE IN COMPLIANCE WITH THAT VIDE LETTE R DATED 13.01.2012 SUBMITTED THAT THE ACCOUNTANT HAD BEEN FILING HER R ETURN OF INCOME SINCE THE YEAR 2006-07 WHO IS 60 YEARS OF AGE. 5.4 THE ACCOUNTANT WAS ASSIGNED THE TASK TO FILE TH E RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING THE CAPI TAL GAIN INCOME. HOWEVER, THE ACCOUNTANT HAS NOT INCLUDED THE CAPITA L GAIN INCOME IN RETURN FILED BY HER. THEREFORE IT WAS A MISTAKE OF THE ACCOUNTANT WHO HAS NOT DECLARED THE CAPITAL GAIN INCOME IN RETURN FILE D BY HER. 5.5 THE ASSESSEE FURTHER SUBMITTED THAT THE ACCOUNT ANT BROUGHT THE MISTAKE OF NOT DECLARING CAPITAL GAIN INCOME IN RET URN FILED BY HER. ACCORDINGLY, THE ACCOUNTANT PREPARED A FRESH RETURN DATED 01.08.2010 DISCLOSING THE INCOME UNDER THE HEAD CAPITAL GAIN. HOWEVER, IN THE MEANTIME, SHE (ASSESSEE) RECEIVED A NOTICE U/S 143( 2), DATED 31.08.2010. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 5 - THEREFORE THE ASSESSEE DECIDED TO DECLARE THE INCOM E UNDER THE HEAD CAPITAL GAIN DURING THE ASSESSMENT PROCEEDINGS. 5.6 THE ASSESSEE IN SUPPORT OF HIS ARGUMENT HAS ALS O FURNISHED THE AFFIDAVIT OF THE ACCOUNTANT DATED 21.11.2011 WHICH IS REPRODUCED AS UNDER: 6.1 THE ATTENTION IS ALSO DRAWN TO THE FACTS TH AT, ASSESSEE'S ACCOUNTANT HAS FIRSTLY PREPARED THE RETURN AS ON 01 .08.2010 AND THE TAX / INTEREST CALCULATED THEREON, ON THAT DATE COMES T O RS.7,35,400/-. HOWEVER, THE SAME WAS NOT PAID BECAUSE THERE WAS NO FUND IN THE ACCOUNT OF THE ASSESSEE. COPIES OF THE COMPUTATION OF INCOME (PAPER BOOK PAGE 41 & 42), RETURN (PAPER BOOK PAGE 43 TO 6 4) AND CHALLAN AS ON 01.08.2011 (PAPER BOOK PAGE 40) ARE ENCLOSED HER EWITH. THE TAX PAYABLE ON 01,08.2010 IS RS.7,35,400/-. THE COPY OF ITR 4 IS AT PAPER BOOK PAGE 43 TO 64. 6.1.1 A COPY OF THE SALE DEED OF THE PROPERTY IS E NCLOSED AT PAPER BOOK PAGE 67 TO 69; FROM WHICH IT IS FOUND THAT THE ASSE SSEE HIMSELF HAS GIVEN PAN NO. AND AS SUCH SHE WAS FULLY AWARE THAT IF THE LTCG IS NOT SHOWN IN THE RETURN THEN IT WOULD BE OBVIOUSLY DETECTED B Y THE DEPARTMENT BY WAY OF AIR. 6.2 AS ON 01.08.2011, THERE WAS NO SUCH BALANCE IN THE BANK ACCOUNT OF THE ASSESSEE AND AS SUCH THOUGH RETURN PREPARED BY THE ACCOUNTANT ON 01.08.2010, THE SAME WAS NOT FILED AND THE ASSES SEE WAS WAITING FOR THE FUNDS AND MEANTIME NOTICE UNDER SEC.!42(L) DATE D 11.10.2011 RECEIVED, SO, IT WAS DECIDED TO PAY THE TAX DURING THE COURSE OF HEARING ITSELF. 6.3 THAT TO MAKE ERROR IS A NATURE FOR ANY HUMAN BEING INCLUDING SOME TIME BY INCOME TAX OFFICER ALSO BECAUSE THAT I S THE REASON WHY SECTION 263 TAKE CARE OF THE ERROR MADE BY THE ASSE SSING OFFICER. SO, THAT MIGHT BE THE ERROR BY THE ASSESSEE ALSO. 7. IN VIEW OF THE AFORESAID FACTS OF THE CASE AN D ON GOING THROUGH ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 6 - THE AFORESAID AFFIDAVIT, IT IS RESPECTFULLY SUBMITT ED THAT IT WAS 'BONA FIDE' OF THE ASSESSEE AND THE ASSESSEE LADY HAS ACTED UPO N THE ADVICE OF THE CONCERNED ACCOUNTANT AND THERE WAS ACCOUNTANT'S MIS TAKE TO NOT TO INCLUDE THE CAPITAL GAIN IN THE ORIGINAL RETURN BUT IT WAS NOT THE MISTAKE OF THE ASSESSEE LADY. 8. THE FOLLOWING CASE LOWS ARE RELEVANT ON THE S UBJECT. HOWEVER, THE AO DISAGREED WITH THE CONTENTION OF TH E ASSESSEE BY OBSERVING AS UNDER: I. THE ARGUMENT OF THE ASSESSEE THAT THE ACCOUNTANT HA S COMMITTED A MISTAKE BY NOT INCORPORATING THE CAPITAL GAIN INC OME IN HER RETURN IS NOT TENABLE. IT IS BECAUSE THE ASSESSEE C ANNOT BE IGNORANT FOR THE CAPITAL GAIN INCOME EARNED DURING THE YEAR UNDER CONSIDERATION. II. THE SALE PROCEEDS MUST HAVE BEEN DEPOSITED IN THE B ANK ACCOUNT OF THE ASSESSEE, AND ALL THE ENTRIES MUST B E REFLECTING IN THE BANK ACCOUNT. THE ACCOUNTANT WILL NORMALLY VERI FY THE BANK ACCOUNT OF THE ASSESSEE BEFORE THE FILING OF INCOME TAX RETURN. III. THE NOTICES U/S 142(1) WERE ISSUED TO THE ASSESSEE ON DIFFERENT DATES, BUT THE ASSESSEE DID NOT ACCEPT HER MISTAKE FOR NOT DISCLOSING CAPITAL GAIN INCOME TILL A SPECIFIC INQU IRY WAS RAISED TO THE ASSESSEE VIDE LETTER DATED 11.10.2011 ABOUT THE UNDISCLOSED INCOME OF CAPITAL GAIN. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 7 - BECAUSE OF THE ABOVE, THE AO CONCLUDED THAT THERE I S CONCEALMENT OF INCOME AND LEVIED THE PENALTY AMOUNTING TO RS. 5,71 ,406/- BEING 100% OF THE TAX AMOUNT SOUGHT TO BE EVADED ON ACCOUNT OF CONCEALMENT OF THE PARTICULARS OF INCOME. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO THE L D. CIT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT THE A O HAD NOT EXAMINED THE CONTENTS OF THE AFFIDAVIT FURNISHED BY THE ACCO UNTANT DURING THE PENALTY PROCEEDINGS. THEREFORE IT HAS TO BE BELIEVE D IN TOTALITY. BESIDES, THE ACCOUNTANT HAS NOT BEEN CROSS-EXAMINED BY THE A O. AS SUCH, THE AO HAS NOT CONSIDERED THE AFFIDAVIT, AND NO REASON WAS ASSIGNED FOR THE SAME. ACCORDINGLY, NO DEFECT WAS POINTED IN THE CON TENTS OF THE AFFIDAVIT. 6.1 THERE WAS NO MALA-FIDE ACT ON THE PART OF THE A SSESSEE FOR NOT DISCLOSING THE INCOME UNDER THE HEAD CAPITAL GAIN. 6.2 BESIDES THE ABOVE, THE ASSESSEE ALSO SUBMITTED THAT THERE WAS NO FUND AVAILABLE WITH HER FOR THE PAYMENT OF INCOME T AX ON THE AMOUNT OF UNDISCLOSED INCOME OF THE LONG-TERM CAPITAL GAIN. T HEREFORE, THE SAME WAS NOT IMMEDIATELY ACCEPTED DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE LD. CIT(A) DISREGARDED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER : THE FACTS OF THE CASE AND SUBMISSIONS HAVE BEEN CA REFULLY PERUSED. IT IS OBSERVED THE APPELLANT HAD EARNED INCOME BY WAY OF CAPITAL GAINS ON SALE OF PROPERTY DURING YEAR IN QUESTION WHICH HAS NOT BEEN DENIED BY ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 8 - HER. HOWEVER, THE SAID-CAPITAL GAIN NOT OFFERED TO TAX BY HER IN THE RETURN OF INCOME. THE PLEA TAKEN BY THE APPELLANT I S THAT IT WAS MISTAKE OF THE ACCOUNTANT WHO PREPARED AND FILED THE RETURN . IT HAS BEEN DISCUSSED BY THE ASSESSING OFFICER THAT EVEN AFTER THE ISSUE OF NOTICE U/S.143(2) AND 142(1), THE REPLY WAS NOT FILED BY T HE ASSESSEE. IT IS ONLY IN RESPONSE TO NOTICE U/S.142(1) DATED 11.10.2011 W HEN SPECIFIC QUERY REGARDING OF THE ISSUE OF CAPITAL GAIN ON THE LAND TRANSACTION OF SALE WAS RAISED BY THE ASSESSING OFFICER, THE REPLY WAS FILED. BESIDES, IT IS SEEN THAT ONE ARGUMENT WAS TAKEN BY .THE APPELLANT THAT SHE HAD NO FUNDS IN THE BANK ACCOUNT TO PAY TH E TAXES. THE ASSESSING OFFICER HAS ALSO NEGATED THIS ARGUMENT AL SO BY MENTIONING THAT THE APPELLANT HAD CREDIT BALANCE WITH M/S.SHIV AM AGRO INDUSTRIES. HOWEVER, THIS IS IMMATERIAL THAT WHETHER THE APPELL ANT HAD FUNDS OR NOT. WHAT MATTERS IS THAT THE APPELLANT DID NOT DISCLOSE THE FACT OF THE CAPITAL GAIN IN THE RETURN OF INCOME. IN ASSESSMENT PROCEED INGS ALSO NO SATISFACTORY EXPLANATION WAS FILED FOR NON-DISCLOSU RE OF THE FACT OF THE CAPITAL GAINS. IN PENALTY PROCEEDINGS ALSO THE REPL Y FILED BY THE APPELLANT WAS SAME THAT IT WAS THE MISTAKE OF AN AC COUNTANT WHOSE AFFIDAVIT WAS FILED BEFORE THE ASSESSING OFFICER. IN APPELLANT PROCEEDINGS ALSO THE AR HAS REFERRED T O THE SAME CONTENTIONS. IT HAS ALSO BEEN MENTIONED THAT THE PA RENTS OF THE APPELLANT STAY AT JODHPUR WHEREAS SHE LIVES IN AHMEDABAD WITH HER PARENT-IN- LAWS AND THE COMMISSION BE TREATED AS BONA-FIDE MIS TAKE OF THE APPELLANT FOR NOT SHOWING THE CAPITAL GAINS AND THE RE WAS REASONABLE CAUSE WITH HER FOR SUCH DEFAULT IF ANY. THE AR HAS ALSO RELIED ON MANY COURT DECISIONS AS MENTIONED ABOVE. ON CAREFUL CONSIDERATION I AM OF THE VIEW, THAT NO SATISFACTORY OR REASONABLE CAUSE WAS EXPLAINED BY THE APPELLANT NEI THER DURING ASSESSMENT PROCEEDINGS, PENALTY PROCEEDINGS NOR DUR ING APPELLATE PROCEEDINGS. THE APPELLANT IS AN ADULT, EDUCATED LA DY AND SHE IS RESPONSIBLE FOR FACTS DISCLOSED OR NOT DISCLOSED IN THE RETURN OF INCOME. THE DEAL INVOLVED HUGE AMOUNT OF MONEY AND THE TRAN SACTION TOOK PLACE DURING THE A.Y. IN QUESTION. THERE WAS NO GROUND FO R NOT SHOWING THE CAPITAL GAIN IN THE RETURN, THE PLEA OF MISTAKE OF ACCOUNTANT IS NOT ACCEPTABLE. THE CASE LAWS REFERRED BY THE AR ARE AL SO OF TO THE ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 9 - APPELLANT IN THE MATTER AS THE FACTS ARE DISTINGUIS HABLE. THUS, TAKING INTO ACCOUNT ENTIRE FACTS AND THE CIRCUMSTANCES OF THE CASE, I HOLD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN LEVYING PENA LTY U/S.271(L)(C) OF RS.571406/- IN RESPECT OF LONG TERM CAPITAL GAIN WH ICH AROSE FOR SALE OF PROPERTY AT RS.30,46,950/-. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) ASSE SSEE IS IN APPEAL BEFORE US. 7. THE LD. AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1-150 AND SUBMITTED THAT THE ASSESSEE HAD DISCLOSED HER P AN IN THE SALE DEED WHICH REVEALS THAT THERE WAS NO MALA-FIDE INTENTION OF THE ASSESSEE TO CONCEAL THE LONG-TERM CAPITAL GAIN INCOME. THE ACCO UNTANT HAS COMMITTED MISTAKE FOR NOT DISCLOSING THE LONG-TERM CAPITAL GAIN IN THE INCOME TAX RETURN. THEREFORE, THE ASSESSEE SHOULD N OT HAVE BEEN PANELIZED BY WAY OF A PENALTY U/S 271(1)(C) OF THE ACT. 8. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSESSEE WAS VERY MUCH AWARE OF HER CAPITAL GAIN INCOME AT THE T IME OF RETURN FILING. IT IS BECAUSE THE ASSESSEE IS WELL AWARE OF HER FINANC IAL AFFAIRS. THEREFORE THE ASSESSEE HAS NOT DISCLOSED THE CAPITAL GAIN INC OME INTENTIONALLY IN HER RETURN. 8.1 IN FACT, THE ASSESSEE OFFERED LONG-TERM CAPITAL GAIN INCOME WHEN THE REVENUE DETECTED IT DURING THE ASSESSMENT PROCE EDINGS. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES B ELOW. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 10 - 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE PENAL TY WAS LEVIED BY THE AO ON THE CAPITAL GAIN NOT DISCLOSED BY THE ASSESSEE I N HER INCOME TAX RETURN. THE LD. CIT-A SUBSEQUENTLY CONFIRMED THE VIEW TAKEN BY THE AO. FROM THE PRECEDING DISCUSSION, WE NOTE CERTAIN UNDI SPUTED FACTS AS DETAILED UNDER: I. THE ASSESSEE HERSELF HAS ACCORDED THAT THE ACCOUNTA NT HAS BROUGHT TO THE NOTICE OF THE ASSESSEE ABOUT THE MIS TAKE OF NOT DISCLOSING CAPITAL GAIN INCOME IN THE RETURN OF INC OME. THIS MISTAKE WAS BROUGHT TO THE NOTICE OF THE ASSESSEE D ATED 01.08.2010 WHEREAS, THE NOTICE U/S 143(2) WAS ISSUE D ON 31.08.2010. THUS, THERE WAS A TIME GAP OF ALMOST ON E MONTH BETWEEN THE DATE WHEN ASSESSEE CAME TO KNOW ABOUT T HE FACT OF NOT DISCLOSING THE CAPITAL GAIN INCOME AND THE CASE SELECTED UNDER SCRUTINY. HOWEVER, THE ASSESSEE DURING THIS O NE MONTH DID NOT ATTEMPT TO RECTIFY HER MISTAKE BY WRITING T HE LETTER TO THE AO. II. THE ASSESSEE IS UNDER THE OBLIGATION TO SIGN THE IN COME TAX RETURN WHICH SHE IS SUPPOSED TO SIGN AFTER DUE VERI FICATION. THUS IT APPEARS THAT THE ASSESSEE WAS FULLY AWARE OF THE FACT THAT THE CAPITAL GAIN INCOME HAS NOT BEEN DISCLOSED IN THE R ETURN OF INCOME. WE FIND RELEVANT TO REFER THE DIFFERENT DAT ES ON WHICH ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 11 - NOTICES WERE ISSUED TO THE ASSESSEE DURING THE ASSESSMENT/PENALTY PROCEEDINGS AS DETAILED UNDER: SR. NO. SECTION UNDER/NOTICES ISSUED DATE OF NOTICE 1. 143(2) 31.08.2010 2. 142(1) 10.01.2011 3. 142(1) 15.02.2011 4. 142(1) 11.10.2011 9.1 IN THE NOTICE ISSUED U/S 142(1) DATED 11.10.201 1 A SPECIFIC QUERY WAS RAISED BY THE AO ABOUT THE CAPITAL GAIN INCOME. AFTER THAT, THE ASSESSEE VIDE REPLY DATED 22.11.2011 CONCEDED THE F ACT OF NON-DISCLOSING THE CAPITAL GAIN INCOME. FROM THE ABOVE, IT IS TRAN SPIRED THAT THE ASSESSEE DID NOT OFFER THE CAPITAL GAIN INCOME SU MOTO FOR A QUITE LONG TIME UNTIL THE AO RAISED THE SPECIFIC QUERY ABOUT THE UNDISCLO SED INCOME. 9.2 THE OVERALL CONDUCT OF THE ASSESSEE AND CIRCUMS TANCES SUGGEST THAT THE ASSESSEE DELIBERATELY DID NOT OFFER THE CAPITAL GAIN INCOME IN HER INCOME TAX RETURN. IN OUR CONSIDERED VIEW, NON-AVAI LABILITY OF THE FUND CANNOT BE AN EXCUSE FOR NOT DISCLOSING THE CAPITAL GAIN INCOME EARNED BY THE ASSESSEE. THE CASE LAW RELIED ON BY THE ASSESSE E BEFORE THE LOWER AUTHORITIES ARE NOT RELEVANT TO THE FACTS OF THE CA SE ON HAND. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS CONCEALED HER PARTICULARS OF INCOME BY NOT DISCLOSING THE LONG-TERM CAPITAL GAIN IN HER RETURN OF INCOME. THEREFORE, WE DO NOT FIND ANY REASON TO DISTURB THE FINDING OF THE LD. CIT(A). HENCE, THE GROUND OF THE ASSESSEE IS DISMIS SED. ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 12 - 10. THE SECOND ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND OF APPEAL IS THAT THERE WAS NO SPECIFIC CHARGE MENTION ED IN THE NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT WHETHER THE PEN ALTY WAS INITIATED ON ACCOUNT OF CONCEALMENT OF INCOME OR FURNISHED INACC URATE PARTICULARS OF INCOME. 11. INDEED THERE IS NO SPECIFIC CHARGE IN THE NOTIC E ISSUED U/S 274/271(1)(C) OF THE ACT AS ALLEGED BY THE ASSESSEE . HOWEVER, WE NOTE THAT THERE WAS A SPECIFIC CHARGE FOR CONCEALMENT OF INCOME ON THE BASIS OF WHICH THE AO LEVIED THE PENALTY IN HIS ORDER DAT ED 20.06.2012. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE CAN NOT GET IMMUNITY FROM THE PENALTY ON THE GROUND THAT THERE WAS NO SPECIFI C CHARGE IN THE NOTICE ISSUED U/S 274 OF THE ACT. IN THIS REGARD WE FIND SUPPORT AND GUIDANCE FROM TH E JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF SNITA TRA NSPORT (P) LTD. REPORTED IN 221 TAXMAN 217 WHEREIN IT WAS HELD AS U NDER: 9. REGARDING THE CONTENTION THAT THE ASSESSING OFFICE R WAS AMBIVALENT REGARDING UNDER WHICH HEAD THE PENALTY WAS BEING IM POSED NAMELY FOR CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS, WE MAY RECORD THAT THOUGH IN THE ASSES SMENT ORDER THE ASSESSING OFFICER DID ORDER INITIATION OF PENALTY O N BOTH COUNTS, IN THE ULTIMATE ORDER OF PENALTY THAT HE PASSED, HE CLEARL Y HELD THAT LEVY OF PENALTY IS SUSTAINED IN VIEW OF THE FACT THAT THE A SSESSEE HAD CONCEALED THE PARTICULARS OF INCOME. THUS INSOFAR AS FINAL OR DER OF PENALTY WAS CONCERNED, THE ASSESSING OFFICER WAS CLEAR AND PENA LTY WAS IMPOSED FOR CONCEALING PARTICULARS OF INCOME. IN LIGHT OF THIS, WE MAY PERUSE THE DECISION OF THIS COURT IN CASE OF MANU ENGINEERING WORKS (SUPRA). IN ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 13 - THE SAID DECISION, THE DIVISION BENCH CAME TO THE C ONCLUSION THAT LANGUAGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOT ICE FOR PENALTY, BUT IT WAS INCUMBENT UPON THE ASSESSING AUTHORITY TO CO ME TO A POSITIVE FINDING AS TO WHETHER THERE WAS CONCEALMENT OF INCO ME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF SUCH INCOM E HAD BEEN FURNISHED BY THEM. IF NO SUCH CLEAR CUT FINDING IS REACHED BY THE AUTHORITY, PENALTY CANNOT BE LEVIED. IT WAS A CASE IN WHICH IN FINAL CONCLUSION THE AUTHORITY HAD RECORDED THAT 'I AM OF THE OPINION THAT IT WILL HAVE TO BE SAID THAT THE ASSESSEE HAD CONCEALE D ITS INCOME AND/OR THAT IT HAD FURNISHED INACCURATE PARTICULARS OF SUC H INCOME.' IT WAS IN THIS RESPECT THE BENCH OBSERVED THAT 'NOW THE LANGU AGE OF 'AND/OR' MAY BE PROPER IN ISSUING A NOTICE AS TO PENALTY ORD ER OR FRAMING OF CHARGE IN A CRIMINAL CASE OR A QUASI-CRIMINAL CASE, BUT IT WAS INCUMBENT UPON THE IAC TO COME TO A POSITIVE FINDIN G AS TO WHETHER THERE WAS CONCEALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF SUCH INCOME HAD BEEN FURN ISHED BY THE ASSESSEE. NO SUCH CLEAR CUT FINDING WAS REACHED BY THE IAC AND, ON THAT GROUND ALONE, THE ORDER OF PENALTY PASSED BY THE IA C WAS LIABLE TO BE STRUCK DOWN.' FROM THE ABOVE JUDGMENT, IT IS CLEAR THAT THE DEFEC T IN THE NOTICE ISSUED U/S 274 OF THE ACT CANNOT BE FATAL TO THE PENALTY P ROCEEDINGS INITIATED U/S 271(1)(C) OF THE ACT. THE JUDGMENT OF HONBLE GUJAR AT HIGH COURT IN THE CASE OF SNITA TRANSPORT COMPANY (SUPRA) BEING JURISDICTIONAL HIGH COURT IS BINDING OF OWN. THEREFORE, WE CANNOT TAKE ANY GU IDANCE IN SUPPORT OF THE ASSESSEE CONTENTION FROM THE JUDGMENTS DELIVERE D BY THE VARIOUS NON- JURISDICTIONAL HIGH COURTS. WE ALSO NOTE THAT THE HONBLE SUPREME COURT HAS DIS MISSED THE APPEAL FILED BY THE REVENUE IN THE CASE OF CIT VS. SSAS E MERALD ON THE ISSUE OF DEFECTIVE NOTICE. HOWEVER, THE APEX COURT DID LA Y DOWN ANY LAW ON ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 14 - THE ISSUE OF DEFECTIVE NOTICE BUT OUTRIGHTLY DISMIS SED THE APPEAL FILED BY THE REVENUE. THEREFORE, WE CANNOT TAKE ANY SHELTER FROM THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF SSAS. EMERALD (SUPRA). IN THIS REGARD WE NOTE THAT ORDER PASSED BY THE HONBLE HIG H COURT STILL HOLDS THE WATER EVEN IF SLP FILED AGAINST SUCH ORDER IS DISMI SSED BY THE APEX COURT. THE DOCTRINE MERGER DOES NOT APPLY TO THE OR DER OF HIGH COURT IF SLP IS NOT ADMITTED BY THE HONBLE SUPREME COURT AG AINST SUCH ORDER. IN THIS REGARD WE FIND SUPPORT AND GUIDANCE FROM THE J UDGMENT OF APEX COURT IN CASE OF KUNHAYAMMED V. STATE OF KERALA, (2 000) 6 SCC 359 WHEREIN IT WAS HELD AS UNDER: WE MAY REFER TO A RECENT DECISION, BY TWO-JUDGES B ENCH, OF THIS COURT IN V.M. SALGAOCAR & BROS. PVT. LTD. VS. COMMISSIONE R OF INCOME TAX 2000 (3) SCALE 240, HOLDING THAT WHEN A SPECIAL LEA VE PETITION IS DISMISSED, THIS COURT DOES NOT COMMENT ON THE CORRE CTNESS OR OTHERWISE OF THE ORDER FROM WHICH LEAVE TO APPEAL IS SOUGHT. WHAT THE COURT MEANS IS THAT IT DOES NOT CONSIDER IT TO BE A FIT C ASE FOR EXERCISING ITS JURISDICTION UNDER ARTICLE 136 OF THE CONSTITUTION. THAT CERTAINLY COULD NOT BE SO WHEN APPEAL IS DISMISSED THOUGH BY A NON- SPEAKING ORDER. HERE THE DOCTRINE OF MERGER APPLIES. IN THAT CASE T HE SUPREME COURT UPHOLDS THE DECISION OF THE HIGH COURT OR OF THE TR IBUNAL. THIS DOCTRINE OF MERGER DOES NOT APPLY IN THE CASE OF DISMISSAL O F SPECIAL LEAVE PETITION UNDER ARTICLE 136. WHEN APPEAL IS DISMISSED, ORDER OF THE HIGH COURT IS MERGED WITH THAT OF THE SUPREME COURT. WE FIND OURSELVES IN ENTIRE AGREEMENT WITH THE LAW SO STATED. WE ARE CLE AR IN OUR MIND THAT AN ORDER DISMISSING A SPECIAL LEAVE PETITION, MORE SO WHEN IT IS BY A NON-SPEAKING ORDER, DOES NOT RESULT IN MERGER OF TH E ORDER IMPUGNED INTO THE ORDER OF THE SUPREME COURT. FROM THE ABOVE, IT IS CLEAR THAT NO PRINCIPLE WAS L AID DOWN BY THE HONBLE APEX COURT IN THE CASE OF S.S.A. EMERALD. THEREFORE , THE PRINCIPLES LAID ITA NO.888/AHD/2014 SMT. JYOTI SUNIL MANIYAR VS. ITO A.Y. 2009-10 - 15 - DOWN BY THE JURISDICTIONAL HIGH COURT IN THE CASE O F SNITA TRANSPORT (SUPRA) ARE APPLICABLE IN THE CASE ON HAND. THEREFORE, RELY ING ON THE SAME WE DISMISS THE ADDITIONAL GROUND OF APPEAL RAI SED BY THE ASSESSEE. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 01/01/2019 SD/- SD/- E/KQFERK E/KQFERK E/KQFERK E/KQFERK JKW; JKW;JKW; JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 01/01/2019 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-II, AHMEDABAD. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD. 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 29/10/2018 (DICTATION PAGE-10) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 05/12/2018 3. OTHER MEMBER.. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 18/12/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT.. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 10. DATE OF DESPATCH OF THE ORDER