Harrington House, CHENNAI V. ACIT, CHENNAI

ITA 89/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9528 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 18-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 142(1); 133A; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! , '!# BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO. 89,90 & 91/MDS/2016 ' $ %$ / ASSESSMENT YEAR : 2005-06, 2006-07 & 2007-200 8 M/S. HARRINGTON HOUSE, NO.37, IIIRD MAIN ROAD, R.A. PURAM, CHENNAI 600 028. [PAN AADFH 0776K ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE -1, CHENNAI. ( / APPELLANT) ( /RESPONDENT) &' ( ) / APPELLANT BY : SHRI. R. VIJAYARAGHAVAN, ADVOCATE *+&' ( ) /RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. ( , / DATE OF HEARING : 10-02-2016 -.% ( , / DATE OF PRONOUNCEMENT : 28-04-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (APP EALS)-2, CHENNAI IN ITA NO.2,3 & 4/2012-13, DATED 28.10.2015 FOR THE ASSESSMENT YEARS 2005-06, 2006-07 & 2007-08 PASSED U/S.271(1)(C) ITA NOS.89, 90 & 91/MDS/2016. :- 2 -: AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). SINCE THE ISSUE IN THESE THREE APPEALS IS C OMMON IN NATURE, HENCE THESE APPEALS ARE COMBINED, HEARD TOGETHER, A ND DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE U NDER:- 2.1 THE COMMISSIONER OF THE INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD NEITHER CONCEALED NOR FURNISHED INACCURATE PARTICUL ARS OF INCOME. MERE DELAY IN FILLING RETURN OF INCOME U/S. 139(1) CANNOT LEAD TO CONCEALMENT OF INCOME OR FILL ING OF INACCURATE PARTICULARS . 2.2 THE COMMISSIONER OF THE INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD OFFERED AN EXPLANATION AS TO THE CIRCUMSTANCES UNDE R WHICH THE APPELLANT FILED ITS RETURN OF INCOME BELA TEDLY AND THE EXPLANATION WAS NOT FOUND TO BE FALSE. 2.3 THE COMMISSIONER OF THE INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD PROVED THAT ITS EXPLANATION AND CLAIM IS BONAFIDE A ND THERE IS NO DELIBERATE INTENTION TO FILE RETURN OF INCOME BELATEDLY AS THE APPELLANT HAS PAID ADVANCE TAX AND MOST OF BALANCE TAX BEFORE THE RECEIPT OF THE NOTIC E U/S.148. 2.4 THE COMMISSIONER OF THE INCOME TAX (APPEALS) TA X ERRED IN NOT PROPERLY APPRECIATING THE SUBMISSIONS MADE BY THE APPELLANT. THE APPELLANT RELIES ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS PVT LTD - 322 ITR 158(SC) . 3. SINCE THE ISSUE IS COMMON IN THESE THREE APPEALS, W E CONSIDER THE FACTS AS NARRATED IN ITA NO.89/MDS/20 16 OF ASSESSMENT YEAR 2005-06 FOR ADJUDICATION. ITA NOS.89, 90 & 91/MDS/2016. :- 3 -: 4. THE BRIEF FACTS OF THE CASE, THE ASSESSEE IS ENGA GED IN THE BUSINESS OF PROMOTION OF HOUSING PLOTS. THERE WAS A SURVEY OPERATION ON THE BUSINESS PREMISES ON 10.04.2007 AND THE ASSE SSEE HAS ADMITTED ESTIMATED PROFITS FOR THE ASSESSMENT YEARS AS UNDER:- 2005-2006 : RS.30,00,000/- 2006-2007 : RS.70,00,000/- 2007-2008 : RS.70,00,000/- IN RESPONSE TO THE NOTICE U/S.148 OF THE ACT FOR ASSESSMENT YEAR 2005-2006, THE ASSESSEE FILED RETURN OF INCOME WITH TOTAL INCOME OF RS.24,78,726/- AND NOTICES U/S.143(2) AND 142(1) OF THE ACT WAS ALSO ISSUED. THE ASSESSEE IN THE RETURN OF INCOME HAS OFFERED EXCESS INCOME FOR ALL THREE YEARS IN COMPARISON WITH THE INCOME ESTIMATED DURING SURVEY OPERATIONS, THE LD.AO BASED ON THE SU RVEY REPORT AND ALSO INFORMATION OF RESIDENTIAL PLOTS VERIFIED CLAI M OF EXPENDITURE RELATING TO SITE DEVELOPMENT EXPENSES, LEGAL EXPEN SES, MISCELLANEOUS EXPENSES AND SERVICE CHARGES AND FOUND NOT PROPERLY SUPPORTED BY VOUCHERS AND DISALLOWED THE EXPENSES AND PASSED ORD ER U/.S.143(3)R.W.S. 147 OF THE ACT DATED 28.12.2011. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS. I N THE PENALTY PROCEEDINGS, THE LD. AR FURNISHED REPLY BY LETTER D ATED 9.01.2012 WITH EXPLANATIONS, REASONS AND REASONABLE CAUSE REFERRED AT PAGE 2 AND 3 OF HIS ORDER AS UNDER:- ITA NOS.89, 90 & 91/MDS/2016. :- 4 -: 'THERE IS NO CONCEALMENT OF ANY INCOME. WE HAVE DEC LARED MORE INCOME FOR THE ASSESSMENT YEARS 2005-06 TO 2007-08 AS PER THE RETURNS OF INCOME FILED THAN THE INCOME ADMITTED AT THE TIME OF SURVEY. ' THE ADDITIONAL TAX LIABILITY IS ONLY DUE TO THE DIS ALLOWANCE OF PART OF CERTAIN EXPENSES CLAIMED AS PER THE PROFIT AND L OSS ACCOUNT AND THERE IS NO ADDITION BECAUSE OF CONCEALMENT OF ANY INCOME. WE HAVE NOT SUPPRESSED ANY INCOME. THE DELAY' IN FILING OF RETURN OF INCOME IS DUE TO THE REASON THAT THE STAFF WHO WAS MAINTAINING THE ACCOUNTS HAS LEFT THE FIRM AND THE FIRM COULD NOT FIND PROPER PERSON TO MAINTAIN T HE ACCOUNTS. MOREOVER THE MANAGING PARTNER WHO IS A WOMAN IS NOT PROCICIENT IN ACCOUNTS AND WAS BUSY IN MARKETING T HE PROJECT. SINCE THE PROJECT WAS DELAYED AND THE LAND PRICES H AS INCREASED, SOME OF THE SELLERS HAVE REFUSED TO SELL THE LANDS AND THE MANAGING PARTNER WAS BUSY IN : NEGOTIATION AND LITIGATION AND DUE TO THIS THE KARANAI PROJECT WAS ABRUPTLY 'S TOPPED SINCE THE FIRM WAS OPERATING WITH ONLY FEW PERSONS, -THIS IS ALSO THE REASON FOR DELAY IN FILING OF THE RETURN. THERE IS NO WILFUL SUPPRESSION OF ANY INCOME OR ANY INFORMATION AND ALL THE DETAILS REQUIRED BY THE ASSESSING AUTHO RITY WERE FURNISHED TO THE SATISFACTION OF THE AUTHORITY. HOW EVER, SOME ADVANCE TAX WAS PAID AND MOST OF BALANCE TAX AMOUNT S WERE PAID BEFORE THE RECEIPT OF THE NOTICE UNDER SECTION 148 OF THE INCOME- TAX ACT, 1961. DUE TO THE ABOVE REASONS THERE WAS DELAY IN FILING OF THE RETURN OF INCOME, BUT THERE WAS NO CONCEALMENT OR SUPPRESS ION OF ANY INCOME AND ALL TAX DUES AS PER THE RETURN WAS PAID THE AMOUNT OUTSTANDING AS PER THE ORDER IS ONLY THE TAX ON ,DI SALLOWANCE OF SOME EXPENSES AND THE INTEREST FOR LATE PAYMENT OF THE TAX. CONSIDERING THE ABOVE, WE REQUEST YOU TO KINDLY DEA P THE PENALTY PROCEEDINGS AS PER THE NOTICE. DUE TO CHANGE IN INCUMBENCY, A LETTER U/S 129 OF TH E I.T. ACT WAS ISSUED ON 5.6.2012. IN RESPONSE TO THIS, THE ASSESS EE'S AUTHORIZED REPRESENTATIVE APPEARED AND FURNISHED REPLY VIDE LE TTER DATED 14/06/2012. IN THE REPLY, THE ASSESSEE FIRM STATED THE FOLLOWING DECISIONS OF VARIOUS HIGH COURTS THAT THE DISALLOWA NCE OF CERTAIN EXPENSES AND HENCE INCREASE IN ASSESSED INCOME DOES NOT WARRANT LEVY OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT. 'SIMPLEX PHARMA (P) LTD VS. DEPUTY COMMISSIONER OF INCOME TAX (2012) TAXMANN.COM 254 (DELHI) (2011) 11 ITRO 576 (DELHI) DHOLU CONSTRUCTION & PROJECTS LTD. VS INCOME TAX OFFICER ITA NOS.89, 90 & 91/MDS/2016. :- 5 -: (2012) TAXMANN.COM 176 (AHD). COMMISSIONER OF INCOME TAX VS PARASAMAL BABULAL JAIN (2012) 15 TAXMANN.COM 338(JAR) COMMISSIONER OF INCOME TAX VS. AT & T COMMUNICATION SERVICES INDIA (P) LTD. (2012) 18 TAXMANN.COM 144(DEL). THE LD. ASSESSING OFFICER CONSIDERED THE SUBMISSION S BUT IGNORED THE REASONS FOR NOT FILING RETURN OF INCOME WITHIN DUE DATE U/S.139(1) OF THE ACT. THE LD. ASSESSING OFFICER OBSERVED THAT I NCOME HAS BEEN OFFERED TO TAX ONLY AFTER SURVEY U/S.133A OF THE A CT AND CONCEALMENT OF INCOME IS NOT DUE TO DISALLOWANCE OF CERTAIN EXP ENSES BUT DUE TO SURVEY CONDUCTED BY THE DEPARTMENT. FURTHER THE A SSESSEE HAS OFFERED INCOME ONLY AFTER SURVEY AND TREATED THE AS SESSED INCOME AS CONCEALED INCOME AND LD. ASSESSING OFFICER LEVIED M INIMUM PENALTY OF RS.2,00,000/- FOR THE ASSESSMENT YEAR 2005-2006. A GGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL. 5. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE ARGUED GROUNDS THAT THE ASSESSEE HA S NOT CONCEALED OR FURNISHED INACCURATE PARTICULARS AND MERE DELAY IN FILING RETURN OF INCOME U/S.139(1) OF THE ACT CANNOT LEAD TO CONCEAL MENT OF INCOME. THE LD. ASSESSING OFFICER HAS NOT CONSIDERED THE EX PLANATIONS AND CIRCUMSTANCES IN WHICH WRITTEN SUBMISSIONS WERE FI LED AND RETURN OF INCOME WAS FILED BELATEDLY. THE EXPLANATIONS ARE BONAFIDE AND THERE ITA NOS.89, 90 & 91/MDS/2016. :- 6 -: IS NO DELIBERATE INTENTION TO FILE BELATED RETURN O F INCOME. THE ASSESSEE HAS PROVED TO THE SATISFACTION BY PAYING T AXES AND BALANCE DUE BEFORE NOTICE U/S. 148 WAS ISSUED AND RELIED ON THE DECISION OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD 322 ITR 15 8(SC). THE ASSESSEE FILED WRITTEN SUBMISSIONS ON 13.10.2015 EX PLAINING THE CIRCUMSTANCES WITH DETAILS AND EXCEPT FOR IMPUGNED THREE ASSESSMENT YEARS ADVANCE TAX AND SELF ASSESSMENT TAX WAS PAID WITHIN TIME AND OBSERVED AT PARA 4.2 & 4.3 AS UNDER:- 4.2. THE APPELLANT ALSO SUBMITTED THAT PENALTY U/S 271(1)(C) REQUIRES CONCEALMENT OF PARTICULARS OR SUBMISSION OF INACCURATE PARTICULARS BY THE APPELLANT. THE ASSESSING OFFICER SHOULD HAVE NOTED THE FACT THAT THE APPELLANT HAS BEEN REGULARLY FILING HER INCOME TAX RETURNS AND FOR THE IMPUGNED THREE ASSESSMENT YEARS THE APPELLANT HAS EVEN PAID ADVANCE TAX AND BEFORE ISSUANCE OF NOTICE U/S. 148 THE APPELLANT HAS PAID SELF- ASSESSMENT TAX AND ALL THE TAX DUES. THE APPELLANT STATED THAT RETURNS OF INCOME FOR THESE THREE YEARS HAVE NOT BEEN FILED DUE TO DIFFICULTY BEYOND THEIR CONTROL. THE ADDITION WAS MADE ON THE BASIS THAT THE APPELLANT HAS FILED RETURN OF INCOME U/S . 139(1) AFTER CONDUCT OF SURVEY BY THE DEPARTMENT AND THAT THIS CANNOT BE A GROUND FOR INITIATING PENAL ACTION. 4.3. THE APPELLANT PLACED RELIANCE ON THE FOLLOWIN G DECISIONS: (I) CIT VS RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC). (II) CIT VS RAJASTHAN SPINNING AND WEAVING MILLS LTD. 224 CTR 1 (SC) (III) DILIP N SHROFF VS JCIT 291 ITR 519(SC) (IV) CIT VS VIP INDUSTRIES 122 TTJ 289 (MUM) (V) CIT VS KAMBY SOFTWARE 122 TTJ 721 (MUM) (VI) CIT VS SIDDARTH ENTERPRISES 184 TAXMANN 460 (P&H). ITA NOS.89, 90 & 91/MDS/2016. :- 7 -: THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSID ERED SUBMISSIONS, JUDICIAL DECISIONS AND FINDINGS OF THE ASSESSING OFFICER AND MADE ELABORATE DISCUSSIONS AND OBSERVATION AT P AGE 5 TO 12 OF HIS ORDER AND DEALT ON VARIOUS HIGH COURT AND TRIBUNAL DECISIONS AND DISTINGUISHED THE DECISIONS RELIED BY THE ASSESSEE BY UPHOLDING WITH THE FINDINGS OF THE ASSESSING OFFICER AND CONFIRMED THE ASSESSING OFFICER ORDER AT PAGE 14 OF ORDER AS UNDER:- (I) THE DECISION .OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KRISHNA & CO [1979] 120 ITR 144 (MAD), DISCUSSED IN PARA 5.1.4. (SUPRA), ALONGWITH THE CLEAR CUT CONCLUSION OF CONCEALMENT OF INCOME, ARRIVED AT BY THE ASSESSING OFFICER. (II) THE FACT THAT IN THE ASSESSEE'S CASE, RETURN O F INCOME FOR ALL THE THREE ASST. YEARS WERE FILED FOR THE VERY FIRST TIME ONLY IN RESPONSE TO SECTION 148 , AND HENCE, THIS CANNOT, BY ANY STRETCH OF IMAGINATION, BE CONSIDERED AS VOLUNTARY' FILING OF RETURN U/S. 139(1). (III) HAD THERE BEEN NO SURVEY, THE ASSESSEE WOULD NOT HAVE ADMITTED THE INCOME AND CONCEALMENT HAS BEEN ESTABLISHED ON ACCOUNT OF SURVEY ONLY. HENCE THE FACT OF CONCEALMENT OF INCOME HAS BEEN ESTABLISHED BY THE ASSESSING OFFICER, AND HIS ACTION IN IMPOSING THE PENALTY IS UPHELD . AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOM E TAX (APPEALS) THE ASSESSEE FILED AN APPEAL BEFORE TRIBUNAL. ITA NOS.89, 90 & 91/MDS/2016. :- 8 -: 6. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE REITER ATED THE SUBMISSIONS MADE BEFORE ASSESSING OFFICER AND APPEL LATE PROCEEDINGS. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NOT AP PRECIATED THE CIRCUMSTANCES WERE THE ASSESSEE HAS NOT CONCEALED A NY PART OR FURNISHED ANY INACCURATE PARTICULARS OF INCOME AND MERE DELAY IN FILING RETURN CANNOT BE GROUND FOR LEVY OF PENALTY. THE E XPLANATIONS FILED BY THE ASSESSEE ARE OVERLOOKED AND ALSO REASONS FOR BE LATED FILING OF RETURN ARE IGNORED WITHOUT ANY BASIS AND THERE IS N O DELIBERATE INTENTION TO FILE THE RETURN OF INCOME BELATEDLY AND SUPPORTED THE GROUNDS AND ARGUMENTS WITH JUDICIAL DECISIONS AND FILED AFFIDAVIT OF THE PARTNER OF THE FIRM EXPLAINING THE REASONS, SI TUATIONS, DELAY IN FILING THE RETURN AND GENUINE HARDSHIP DUE HEALT H ISSUES AND MARKET SCENARIO OF RECESSION DURING THE PERIOD AND PRAYED FOR DELETING THE PENALTY. 7. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES ORDER AND OPPOSED THE GROUNDS. 8. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD AND JUDICIAL DECISIONS. THE LD. AR OF THE ASSESSEE SUBSTANTIATE HIS ARGUMENTS THAT LEVY OF PENALTY IS NOT A VALID A CT AS PER EXPLANATIONS PROVIDED IN PROVISIONS OF THE ACT AND ALSO THE HARD SHIP SITUATION OF THE ITA NOS.89, 90 & 91/MDS/2016. :- 9 -: ASSESSEE DOES NOT WARRANT FOR LEVY OF PENALTY. TH E LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO THE AFFIDAVIT FILED BY THE MANAGING PARTNER MRS. M. BHARATHI DEVI AND EXPLAIN ING THE GENUINE HARDSHIP AND HEALTH ISSUES AS UNDER:- I, M. BHARATHI DEVI, WIFE OF S. MOHAN, RESIDING AT DHEVI ILLAM NO.4/252, EAST COAST ROAD, NEELANKARI, CHENNAI 600 115 SOLEMNLY AFFIRM AS UNDER:- 1.1 AM THE MANAGING PARTNER OF M/S/ HARRINGTAN HOUSE, A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 37(OLD NO.18), 3 RD MAIN ROAD, RAJA ANNAMALAIPURAM, CHENNAI-600028. THE FIRM WAS REGISTERED ON 29 TH SEPTEMBER 2000 AND COMMENCED ITS BUSINESS OF BUYING LANDS, DIVIDING THE SAME INTO HOUSING PLOTS, GETTING APPROVAL FROM APPROPRIATE AUTHORITIES AND MARKETING THE PLOTS IN THE YEAR 2001-2002. 2. THERE WAS DELAY IN FILING OF THE RETURN OF INCOME FOR THE ASSESSMENT YEARS 2005- 06, 2006-07 AND 2007-08 RELATING TO THE PREVIOUS YEAR 2004-05, 2005-06 AND 2006-07. DURING THE ACCOUNTING YEAR 2004-05, I WAS SUFFERING FROM ABDOMINAL PAIN PROBLEM AND WAS ADVISED BY THE DOCTOR TO REMOVE THE UTERUS, OTHERWISE IT MAY LEAD TO DEVELOPMENT OF CANCEROUS CELLS IN THE UTERUS. AS PER THE ADVICE OF THE DOCTOR, I HAVE UNDERGONE OPERATION IN AUGUST 2004 FOR REMOVAL OF UTERUS. AFTER THE OPERATION IT TOOK 6 MONTHS FOR ME TO RECOVER. 3. THE ABOVE HEALTH PROBLEM AFFECTED MY MOVEMENT AND WORK AND THIS ALSO ONE OF THE REASON FOR DELAY IN FINALIZING THE ACCOUNTS AND FILING OF THE RETURN OF INCOME. ITA NOS.89, 90 & 91/MDS/2016. :- 10 -: SIMILARLY, AFFIDAVIT OF THE ASSISTANT OF ACCOUNTS DEPARTMENT WAS FILED AS SHE LEFT THE SERVICE FROM MAY, 2005 AND JOINED IN JULY, 2007. THE PARTNER OF THE FIRM ALSO FILED AFFIDAVIT EXPLAINING DETAILED ASPECT OF BUSINESS AND STATUTORY WORKS WITH THE FINANCIAL CO NDITIONS AND TAX PAYMENTS. ALL THREE AFFIDAVITS ARE FILED TO SUBSTAN TIATE THAT THERE IS NO WANTON ACT OR WILLFUL DEFAULT IN FILING RETURN OF I NCOME AND THERE IS NO CONCEALMENT OF INCOME. IN SURVEY OPERATION AT BUSI NESS PREMISES STATEMENT WAS RECORDED BY THE DEPARTMENT AND ASSES SEE FIRM HAS VOLUNTARY OFFERED INCOME. THE ASSESSEE FURTHER DEMO NSTRATED THE PAYMENT OF TAX LIABILITY BEFORE ISSUE OF NOTICE U/ S.148 OF THE ACT. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO THE CHART EXPLAINING THAT THE ASSESSEE ON THE DATE OF SURVEY OFFERED INCOME AND SUBSEQUENTLY PAID TAXES BEFORE COMPLETION OF ASSES SMENT. ON PERUSAL OF THE STATEMENTS THE ASSESSEE HAS PAID TAXES FOR THE ASSESSMENT YEAR 2005-06 A3,00,000/- AND ASSESSMENT YEAR 2007- 08 A3,00,000/- BEFORE DATE OF SURVEY ON 10.04.07. THE ASSESSEE FIR M STARTED PAYING TAXES CONSIDERING INCOME OFFERED IN THE SURVEY OPER ATIONS BUT THE CONTENTION OF THE LD. ASSESSING OFFICER THAT ASSESS EE HAS CONCEALED THE PARTICULARS AND SUBMITTED IN ACCURATE PARTICULARS A ND FILED THE RETURN OF INCOME BELATEDLY AFTER ISSUE OF NOTICE U/S.148 CANN OT BE OVERLOOKED THE ASSESSEE FIRM WAS CONSCIOUS OF INCOME TAX LIABI LITY THOUGH THE RETURN WAS NOT FILED BUT PAID SELF ASSESSMENT TAX I N PIECE MEAL BEFORE ITA NOS.89, 90 & 91/MDS/2016. :- 11 -: THE SURVEY ON 10.04.2007. THE ASSESSEE ALSO PAID AD VANCE TAX AND SELF ASSESSMENT TAX AFTER THE DATE OF SURVEY IN RES PECT OF SUBSEQUENT ASSESSMENT YEARS ALSO. WE CONSIDERING THE APPARE NT FACTS, AFFIDAVIT, CIRCUMSTANTIAL EVIDENCE AND PAYMENT OF TAX LIABILIT Y POST AND PRE- SURVEY OPERATIONS U/SEC. 133A OF THE ACT REMIT THE DISPUTED ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR RECOMPUTATI ON OF PENALTY AND THE ASSESSEE SHALL BE PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE PASSING THE ORDER. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA N OS. 89, 90 &91/MDS/2016 FOR ASSESSMENT YEARS 2005-06, 2006-07 & 2007-2008 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 28TH DAY OF APR IL, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI 0 /DATED:28.04.2016 KV 1 ( *',23 43%, /COPY TO: 1. &' /APPELLANT 3. 5, ( )/CIT(A) 5. 367 *',' /DR 2. *+&' /RESPONDENT 4. 5, /CIT 6. 78$ 9 /GF