Shri Hiren B. Parmar, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Central Circle-1(4), Ahmedabad

ITSSA 12/RJT/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2761 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-10-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 06-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH PANDEY
• Assessee Lawyers: MJ RANPURA
• Keywords: Unexplained investment; Business income; Opportunity of being heard; Cost of acquisition; Corroborative evidences
• Section: 32; 132; 143(3); 5(2); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] SHRI HIREN B. PARMAR, TIRATH , 2, MEGHMAYA NAGAR, NANA MAVA ROAD, RAJKOT PAN: AJHPP9521D (APPELLANT) VS THE ACIT, CC - 1(4), AHMEDABAD (RESPO NDENT) REVENUE BY : S H RI YOGESH PANDEY, CIT - D . R. ASSESSEE BY: S H RI M.J. RANPURA , A.R. DATE OF HEARING : 19 - 10 - 2 016 DATE OF PRONOUNCEMENT : 17 - 11 - 2 016 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THE S E FOUR ASSESSEE S APPEAL S FOR A.Y. 2003 - 04 TO 2006 - 07 , AR ISE FROM ORDER OF THE CIT(A) - I, AHMEDABAD DATED 2 1 - 06 - 2013 IN CONFIRMING THE PENALTY OF RS. 1,40,364/ - , RS. 1,43,760/ - , RS. 8,40,534/ - A ND RS. 29,453/ - ; RESPECTIVELY, APPEAL NO S . CIT(A) - I T (SS) A NO . 12 TO 15 / RJT /20 13 A Y 200 3 - 04 TO 2006 - 07 I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 2 I / CC.1(4)/ 3 4 ,35,36 & 37 /2012 - 13 , IN PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL OF THE ASSESSEE AND THE LD. D .R. OF THE REVENUE SUBMITTED BEFORE US THAT IN ALL THE FOUR CASES FACTS ARE SIMILAR AND SO WE DECIDE ALL THE GROUNDS OF APPEALS FOR ALL THE ASSESSMENT Y EARS FROM ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2006 - 07 BY COMMON ORDER. 3. THE FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL WHO WAS SERVING IN THE POLICE DEPARTMENT AS A CONSTABLE ON 14 - 04 - 2000. SUBSEQUENTLY, THE ASSESSEE STARTED THE BUSINESS OF PRODUCTION AND SALE OF AUDIO AND VIDEO CASSETTES. POLICE HAD CONDUCTED A SEARCH ACTION AGAINST TH E ASSESSEE AND HIS WIFE SMT. GEETABEN H. PARMAR ON 10 - 09 - 2005 AND SEIZED VARIOUS INCRIMINATING DOCUMENTS, CASH AND VALUABLES. AFTERWARDS, THE INCOME TAX DEPARTMENT INITIATED PROCEEDINGS U/S. 132A OF THE I.T. ACT, 1961. AS A C ONSEQUENCE OF ACTION U/S.132A OF THE I.T. ACT, 1961 BY THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT, NOTICE U/S. 153A OF THE ACT WAS ISSUED AND SEVERED ON THE ASSESSEE FOR ASSESSMENT YEAR 2002 - 03 TO 2007 - 08. THE ASSESSEE HAS ESTIMATED THE PROFIT FROM THE PRODUCTION AND SALE OF AUDIO AND VIDEO CASSETTES FOR VARIOUS YEARS. ASSESSMENT YEAR 2003 - 04 I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 3 4. IN RESPONSE TO NOTICE , ASSESSEE HAS FURNISHED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2003 - 04 ON 29 - 05 - 2009 DECLARING TOTAL INCOME OF RS. 50,620/ - . THE ASSESSING OFFICER ASSESSED THE INCOME U/S. 153A(I)(B) R.W.S. 143(3) AND DETERMINED THE TOTAL INCOME AT RS. 24,99,850/ - AS UNDER: - (I) INCOME FROM AUDIO & VIDEO ALBUM RS. 22,57,000/ - (II) UNEXPLAINED INVESTMENT RS. 1,41,844/ - (III) HOUSEHOLD EXPENSES RS. 1,00,000/ - ----------------------- R S. 24,98,844/ - 5 . THE ASSESSEE MADE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A) WHO REDUCED THE ESTIMATE OF INCOME MADE BY THE ASSESSING OFFICER TO THE FOLLOWING AMOUNT: - (I) INCOME FROM AUDIO AND VIDEO ALBUM RS. 3,73,600/ - (II) UNEXPLAINED INVESTMENT R S. NIL (III) HOUSEHOLD EXPENSES RS. 72,000/ - 6 . THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS. 1,40,364/ - VIDE ORDER DATED 28 - 03 - 2012 U/S. 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD DISCLOSED THIS INCOME BECAUSE OF THE SEARCH ACTION CARRIED IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAS CHALLENGED THE PENALTY ORDER OF THE AO BEFORE THE LD.CIT(A) WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 4 ASSESSMENT YEAR 2004 - 05 7. IN RESPONSE TO NOTICE, ASSESSEE HAS FURNISHED RETURN OF INCOME FOR THE A SSESSMENT YEAR 2004 - 05 ON 29 - 05 - 2009 DECLARING TOTAL INCOME OF RS.1,54,840/ - . THE ASSESSING OFFICER ASSESSED THE INCOME U/S. 153A(I)(B) R.W.S. 143(3) AND DETERMINED THE TOTAL INCOME AT RS. 28,97,481/ - AS UNDER: - (I) INCOME FROM AUDIO & VIDEO ALBUM RS. 22,57 ,000/ - (II) UNEXPLAINED INVESTMENT RS. 1,11111/ - (III) HOUSEHOLD EXPENSES RS. 3,04,370/ - (IV) INSURANCE PREMIUM RS.2,25,000 ----------------------- RS. 28,97,481/ - 8 . THE ASSESSEE MADE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A) WHO REDUCED THE ESTIMATE OF INCOME MADE BY THE ASSESSING OFFICER TO THE FOLLOWING AMOUNT: - (I) INCOME FROM AUDIO AND VIDEO ALBUM RS. 3,73,600/ - (II) UNEXPLAINED INVESTMENT RS. NIL (III) HOUSEHOLD EXPENSES RS. 53,500/ - (IV) INSURANCE PREMIUM RS. NIL 9 . THE ASSESSING OFFICER HAS LEVIED PENALT Y OF RS. 1,43,760/ - VIDE ORDER DATED 28 - 03 - 2012 U/S. 271(1)(C) OF THE ACT ON THE GROUND THAT I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 5 THE ASSESSEE HAD DISCLOSED THIS INCOME BECAUSE OF THE SEARCH ACTION CARRIED IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAS CHALLENGED THE PENALTY ORDER OF THE AO BEFORE THE LD.CIT(A) WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ASSESSMENT YEAR 2005 - 06 10. IN RESPONSE TO NOTICE, ASSESSEE HAS FURNISHED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005 - 06 ON 29 - 05 - 2009 DECLARING TOTAL INCOME OF RS.8,46,180/ - . T HE ASSESSING OFFICER ASSESSED THE INCOME U/S. 153A(I)(B) R.W.S. 143(3) AND DETERMINED THE TOTAL INCOME AT RS. 36,55,629/ - AS UNDER: - (I) INCOME FROM AUDIO & VIDEO ALBUM RS. 22,57,000/ - (II) UNEXPLAINED INVESTMENT RS. 3,00000/ - (III) HOUSEHOLD EXPENSES RS. 11,50,00 0/ - (IV) INSURANCE PREMIUM RS3,95,274/ - (V) UNEXPLAINED INVESTMENT IN MOVABLE RS.5,88,355 ----------------------- RS. 36,55,629/ - 11 . THE ASSESSEE MADE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A) WHO REDUCED THE ESTIMATE OF INCOME MADE BY THE ASSESSING OFFICER TO THE FOLLOWING AMOUNT: - I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 6 (I) INCOME FROM AUDIO AND VIDEO ALBUM RS. 8,50,000/ - (II) UNEXPLAINED INVESTMENT IMMOV. RS. NIL (III) HOUSEHOLD EXPENSES RS. 57,500/ - (IV) INSURANCE PREMIUM RS. 274/ - (V) UNEXPLAINED INVESTMENT MOVABLE RS.5,88,355 12 . THE ASSESSING OF FICER HAS LEVIED PENALTY OF RS. 840,534/ - VIDE ORDER DATED 28 - 03 - 2012 U/S. 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD DISCLOSED THIS INCOME BECAUSE OF THE SEARCH ACTION CARRIED IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAS CHALLENGED THE P ENALTY ORDER OF THE AO BEFORE THE LD.CIT(A) WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ASSESSMENT YEAR 2006 - 07 13 . I N RESPONSE TO NOTICE, ASSESSEE HAS FURNISHED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006 - 07 ON 29 - 05 - 2009 DECLARING TOTAL INCOM E OF RS.19,28,090/ - . THE ASSESSING OFFICER ASSESSED THE INCOME U/S. 153A(I)(B) R.W.S. 143(3) AND DETERMINED THE TOTAL INCOME AT RS. 57,98,200/ - WHERIN THE FOLLOWING DISALLOWANCE/ADDITIONS WERE MADE BY THE AO. AS UNDER: - (I) UNEXPLAINED INVESTMENT IN IMMOV RS . 13,61,000/ - (II) HOUSEHOLD EXPENSES RS.1,25000/ - (III) MOVABLE ASSETS RS.29,500/ (IV) UNEXPLAINED CASH & JEWELLERY RS.31,50,609/ - -------------------- I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 7 RS. 57,95109/ - 14 . THE ASSESSEE MADE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A) WHO REDUCED THE ESTIMATE OF INCOME MADE BY THE ASSESSING OFFICER TO THE FOLLOWING AMOUNT: - (I) M UNEXPLAINED INVESTMENT IN MOVABLE RS.29,500 (II) UNEXPLAINED INVESTMENT IN IMMOV. RS. NIL (III) HOUSEHOLD EXPENSES RS. 58,000/ - (IV) UNEXLAINED CASH& JEWELLERY RS. NIL 15 . TH E ASSESSING OFFICER HAS LEVIED PENALTY OF RS. 29,453/ - VIDE ORDER DATED 28 - 03 - 2012 U/S. 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD DISCLOSED THIS INCOME BECAUSE OF THE SEARCH ACTION CARRIED IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAS CHALL ENGED THE PENALTY ORDER OF THE AO BEFORE THE LD.CIT(A) WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 16 . AS STATED SUPRA THE ASSESSEE AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSE FILED APPEAL BEFORE THE LD. COMM ISSIONER OF INCOME TAX(A). FOR ALL THE ABOV E MENTIONED ASSESSMENT YEARS. THE LD. COMMISSIONER OF INCOME T AX(A) HAS CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1) (C) FOR ALL THE ASSESSMENT Y EARS ON THE SIMILAR REASONING AND T HE DECISION OF THE LD. COMMISS IONER OF INCOME TAX(A) IS REPRODUCED AS UNDER: - I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 8 4. I HAVE CONSIDERED THE PENALTY ORDER AND THE ABOVE CONTENTIONS. THE A.O. HAS OBSERVED THAT IN RESPONSE TO HIS SHOW CAUSE NOTICE, THE APPELLANT HAD NOT FILED ANY EXPLANATION AND THAT, THEREFORE, THE APPELLA NT HAD NOTHING TO SAY IN THE MATTER. HOWEVER THE APPELLANT HAS FIIRNISHED A COPY OF THE SUBMISSIONS DATED 23 - 8 - 2011 WHICH WERE FILED WITH A.O. ON 30 - 8 - 2011 WHEREIN IT WAS CONTENDED THAT THE ADDITIONS MADE AND RETAINED WERE ON ESTIMATE BASIS AND THAT NO PEN ALTY CAN BE LEVIED U/S. 271(L)(C) IN RESPECT OF ADDITION MADE ON ESTIMATE BASIS. 4.1 IN HIS SUBMISSIONS DURING THE APPELLATE PROCEEDINGS ALSO IT IS STATED BY THE APPELLANT THAT THE ADDITIONS ARE MADE ON ACCOUNT OF REJECTION OF BOOKS OF ACCOUNT AND THE EST IMATION OF INCOME MADE BY THE A.O. AND THE CIT(APPEALS). THE DETAILS FURNISHED BY THE APPELLANT IN THE RETURN OF INCOME ARE NOT FOUND TO BE INCORRECT OR FALSE. IT IS ALSO STATED THAT THE APPELLANT HAS ALSO FILED APPEAL BEFORE THE ITAT. ACCORDINGLY IT IS EX PLAINED THAT THE APPELLANT HAS NOT DEFAULTED BY FURNISHING INACCURATE PARTICULARS OF INCOME IN THE RETURN AND THERE WAS NO MALAFIDE INTENTION TO EVADE TAXES, PARTICULARLY WHEN BOOKS WERE PREPARED ON THE BASIS OF SEIZED MATERIAL AND THE STATEMENT U/S. 132(4 ). 4.2 THE MAIN CONTENTION OF THE APPELLANT IS THAT THE ADDITIONS MADE WERE MERELY ON ESTIMATE BASIS AND, THEREFORE, THERE CANNOT BE CONCEALMENT OF INCOME. THE APPELLANT HAS RELIED UPON VARIOUS DECISIONS. IT IS ALSO CONTENDED THAT THE ASSESSMENT WAS MADE U /S. 153A 153C AND THE SAID PROVISIONS REQUIRE ISSUE OF FRESH NOTICE FOR FURNISHING THE RETURN AND THE A.O. IS TO ASSESS THE TOTAL INCOME IN RESPECT OF SIX YEARS FOR WHICH PENDING ASSESSMENT ABATE. IT IS ALSO STATED THAT THE APPELLANT HAS SHOWN THE INCOME O N THE BASIS OF STATEMENT U/S. 132(4) AND THAT THUS IN VIEW OF IMMUNITY PROVIDED UNDE R EXPLANATION 5 TO SECTION 271(1 )(C) THE PENALTY WAS NOT LEVIABLE. 4.3 ON CONSIDERATION OF THE ENTIRE FACTS AND THE ABOVE CONTENTIONS IT IS FOUND THAT PROCEEDINGS U/S. 132 A WERE CARRIED OUT IN THE APPELLANT'S CASE ON 14 - 6 - 2007 AND THAT ACCORDINGLY THE PROCEEDINGS U/S. 153A WERE INITIATED FOR SIX YEARS. THE APPELLANT HAD NOT MAINTAINED ANY BOOKS OF ACCOUNT. IN RESPONSE TO NOTICE U/S. 153A THE RETURNS OF INCOME WERE FILED FOR A.Y. 2002 - 03 TO 2007 - 08. 4.4 AS FAR AS THE APPLICABILITY OF EXPLANATION 5 TO SECTION 271(1 )(C) IS CONCERNED, IT WOULD BE SEEN THAT THE EXPLANATION ONLY DEALS WITH THE CASES WHERE SEARCH HAS BEEN CARRIED OUT U/S 1 32 OF THE ACT. THE EXPLANATION DOES NOT A PPLY TO CASES COVERED U/S 132A. THE I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 9 IMMUNITY UNDER PROVISIONS OF EXPLANATION 5 TO S ECTION 271(1 )(C) ARE NOT APPLICABLE IN THE PRESENT CASE SINCE PROCEEDINGS U/S 132 A WERE CARRIED OUT AFTER 1 .6.2007 . EXPLANATION 5 TO SECTION 271(1 )(C)OF THE ACT HAS BEEN A MENDED AND IT HAS BEEN PROVIDED THAT PROVISIONS OF SAID EXPLANATION SHALL BE APPLICABLE ONLY IN CASES WHERE SEARCH WAS INITIATED BEFORE 1ST JUNE, 2007. IN CASES WHERE THE SEARCH IS CARRIED OUT AFTER 1.6.2007, THE EXPLANATION APPLICABLE IS EXPLANATION 5A. E VEN IN RESPECT OF EXPLANATION 5A IT WOULD BE SEEN THAT THE EXPLANATION ONLY DEALS WITH THE CASES WHERE SEARCH HAS BEEN CARRIED OUT U/S 132 OF THE ACT. 4.5 EVEN IN CASES COVERED B Y EXPLANATION 5 TO SECTION 271(1 )(C), UNDER IDENTICAL CIRCUMSTANCES, THE HON'B LE ITAT, AHMEDABAD IN THE CASE OF KIRIT DAHYABHAI PATEL [2009] 121 ITD 159 (AHD.) (TM) AFTER CONSIDERING THE VARIOUS JUDICIAL DECISIONS ON THE SUBJECT HAS HELD THAT SINCE ADDITIONAL INCOME DECLARED IN RETURNS FILED IN RESPONSE TO NOTICE U/S. 153 A DID NOT FALL UNDER CATEGORY OF RETURNS MENTIONED IN E XPLANATION 5(2) TO SECTION 271(1 )(C), THE ASSESSEES WERE NOT ENTITLED TO IMMUNITY FROM PENALTY. AS THE PROCEEDINGS WERE INITIATED U/S. 132A AFTER 1ST JUNE 2007, THE QUESTION OF CONSIDERING THE IMMUNITY A S PER SE CTION 5 OF SECTION 271(1 )(C) DOES NOT ARISE. AS THE PROCEEDINGS WERE UNDER SECTION 132A AND NOT A SEARCH UNDER SECTION 132, QUESTION OF APPLICABILITY OF EX PLANATION - 5 A TO SECTION 271(1 )(C) DOES NOT ARISE. HOWEVER, ONE HAS TO CONSIDER THE QUESTION WHETHE R THE APPELLANT HAS CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AS ENVISAGED IN EXPLANATION - 1 OF SECTION 271(1 )(C). 4.6 IT IS A FACT THAT CASH OF RS.23 LACS AND JEWELLERY AND OTHER MOVABLE VALUABLES WERE FOUND DURING THE PROCEEDINGS AND THE SAME WERE SEIZED. THE APPELLANT HAD NOT MAINTAINED ANY BOOKS OF ACCOUNT. IN THE CIRCUMSTANCES AS PER ABOVE EXPLANATION THE ASSESSEE IS LIABLE TO LEVY OF PENALTY U/S. 4.7 IT IS A FACT THAT THE APPELLANT HAD NOT MAINTAINED ANY BOOKS OF A CCOUNT AND EVEN IN THE PROCEEDINGS U/S 132A THIS FACT WAS BROUGHT ON RECORD. SINCE THERE WERE NO BOOKS OF ACCOUNTS, IT IS CLEAR THAT THE RETURN OF INCOME FILED BY THE ASSESSEE WAS ALSO WITHOUT ANY SUPPORTING EVIDENCE. THE APPELLANT HAS ALSO NOT FURNISHED A NY SUPPORTING EVIDENCE EITHER DURING THE ASSESSMENT PROCEEDINGS OR THE APPELLATE PROCEEDINGS WHEN THE ADDITIONS WERE BEING DISPUTED. EVEN DURING THE PENALTY PROCEEDINGS AND DURING THE PRESENT APPELLATE PROCEEDINGS NO EVIDENCES WHATSOEVER HAVE BEEN PRODUCED TO SHOW AND SUPPORT THE RESULTS SHOWN BY THE APPELLANT IN HIS RETURN OF INCOME. IN SUCH A SITUATION LOOKING AT THE FACTS OF THE I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 10 CASE IT IS CLEAR THAT THE R ESULTS SHOWN BY THE APPELLANT W ERE WITHOUT ANY SUPPORTING EVIDENCES AND THEREFORE, LOOKING AT THE RE SULTS SHOWN THE AO WAS LEFT WITH NO OPTION BUT TO DETERMINE THE INCOME OF THE APPELLANT BY ESTIMATING THE SALES AND PROFIT THEREON. 4.8 THOUGH THE CIT (APPEALS) HAS REDUCED THE ESTIMATE MADE BY THE ASSESSING OFFICER AND ADDITION FOR ALLEGED UNACCOUNTED SAL ES OF CASSETTES AT RS. 3,73,600/ - AND HOUSEHOLD EXPENSES AT RS. 72,000/ - , THE FACT REMAINS THAT THE RETURNED INCOME HAS NOT BEEN ACCEPTED FOR THE ABOVE REASON. IN THE CIRCUMSTANCES, IN MY VIEW, EXPLANATION - 1 TO SECTION 271(1 )(C) IS APPLICABLE IN PRESENT CASE. 4.9 IN THIS CASE THE RESULTS SHOWN BY THE APPELLANT HAVE BEEN REJECTED BY THE AO AND THE REJECTION HAS BEEN CONFIRMED BY THE CIT(A) IN AS MUCH AS, THOUGH HE HAS REDUCED THE INCOME ASSESSED BY THE AO, HE HAS NOT ACCEPTED THE RESULTS SHOWN BY THE APPEL LANT AND HAS SUSTAINED PART OF THE ADDITIONS MADE BY THE AO. IN CASES WHERE THE ASSESSMENT IS MADE ON THE BASIS OF BEST JUDGEMENT AFTER ESTIMATING THE TURNOVER AND RATE OF GROSS PROFIT, IT CANNOT BE SAID THAT PENALTY CANNOT BE IMPOSED. THIS PROPOSITION HAS BEEN UPHELD BY THE ALLAHABAD HIGH COURT IN THE FOLLOWING CASES: 1. ADDL CIT VS. SWATANTRA CONFECTIONARY WORKS REPORTED IN 104 ITR 291(A11) 2. CIT VS. KEDARNATH RAM NATH REPORTED IN 106 ITR 172(ALL ) 3. ADDL CIT VS. LAKSHMI INDUSTRIES AND COLD STORAGE CO. REPORTED IN 146 ITR 492 (ALL) 4. ADDL CIT VS. BRIJ NANDAN PRASAD DIN DAYAL REPORTED IN 119 ITR 959(ALL ) 5. CIT VS. SW ARUP COLD STORAGE & GENERAL MILLS REPORTED IN 136 ITR 435 (ALL) THE LEVY OF PENALTY BASED ON ESTIMATED ADDITIONS HAS BEEN UPHELD IN THE CASE OF CIT VS. WARASAT HUSSAIN REPORTED IN 171 ITR 405 (PAT). 4.10 THE FACTS OF THE CASE AND ARGUMENTS OF THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. WITH REFERENCE TO PENALTY PROCEEDINGS, THE FOLLOWING PROPOSITIONS CAN BE LAID DOWN ON THE BASI S OF LANGUAGE OF RELEVANT SECTION' OF THE IT ACT AND DECISIONS OF VARIOUS JUDICIAL AUTHORITIES: (1) WHEREVER THERE IS A DIFFERENCE BETWEEN THE RETURNED AND ASSESSED INCOME, THERE IS AN INFERENCE OF CONCEALMENT AS A RULE OF LAW. I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 11 (2) THE RESPONSI BILITY FOR REBUTTING SUCH INFERENCE IS SQUARELY ON THE TAX PAYER. (3) THE ASSESSEE IS EXPECTED TO OFFER AN EXPLANATION FOR THE DIFFERENCE. ABSENCE OF ANY EXPLANATION, BY ITSELF, WILL MERIT PENALTY. (4) THE EXPLANATION WHERE OFFERED, SHOULD NOT BE FOUND TO BE FALSE. (5) MERELY BECAUSE THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE HIS EXPLANATION, PENALTY MAY NOT BE EXIGIBLE, IF SUCH EXPLANATION IS BONAFIDE AND ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOM E HAVE BEEN DISCLOSED BY HIM. 4.11 AS STATED EARLIER THE APPELLANT HAD NOT GIVEN REASONABLE EXPLANATION AS TO WHY THE REJECTION OF BOOK AND ESTIMATE OF INCOME FOR SALE OF CASSETTE TO THE EXTENT SUSTAINED BY THE CIT(APPEALS) WAS NOT JUSTIFIED. THE APPELLAN T HAS ALSO NOT PROVIDED ANY BONAFIDE EXPLANATION REGARDING HOUSE HOLD ADDITION SUSTAINED BY CIT(A) AS CREDIT TO THE EXTENT OF BANK WITHDRAWALS WERE ALREADY GIVEN IN APPELLATE PROCEEDINGS HENCE, EXPLANATION - 1 TO SECTION 271(1 )(C) IS SQUARELY APPLICABLE IN THE PRESENT CASE. 4.12 IT IS ALSO HELD THAT PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS. A PENALTY ORDER SHOULD CONTAIN REASONS FOR ITS CONCLUSION. BUT THIS DOES NOT MEAN THAT THE AO IS REQUIRED TO BRING ON RECORD ADDITIONAL OR NEW EVIDENCE, WHICH WAS NOT PART OF REGULAR ASSESSMENT. WHERE THE ASSESSMENT ORDER ITSELF CONTAINS FACTS, WHICH JUSTIFY AN INFERENCE OF CONCEALMENT, THE PENALTY ORDER IS SUSTAINABLE. THIS VIEW DERIVES SUPPORT FROM THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ K UMAR CHOURASYA VS. CIT REPORTED IN 288 ITR 329. 4.13 HON'BLE SUPREME COURT MADE THE FOLLOWING OBSERVATIONS IN THE CASE OF M/S. DHARMENDRA TEXTILES PROCESSORS (306 ITR 277): 'WE ARE OF THE VIEW THAT THERE IS A CONFLICT OF OPINIONS BETW EEN THE JUDGMENTS OF THE DIVISION BENCH OF THIS COURT IN THE CASE OFDILIP N. SHROFF ON ONE HAND AND ON THE OTHER HAND WE HAVE ANOTHER JUDGMENT OF THIS COURT IN THE CASE OF SHRIRAM MUTUAL FUND. SECONDLY, IT MAY BE POINT 2CL OUT THAT THE OBJECT B EHIND ENACTMENT OF SECTION 271(1 )(C) READ WITH THE EXPLANATION QUOTED ABOVE INDICATES THAT THE SAID SECTION HAS BEEN ENACTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE. THE PENALTY UNDER THE SAID SECTION IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 12 ESSENTIAL INGREDIENT FOR ATTRAC TING THE, CIVIL LIABILITY AS IS THE CASE IN THE MATTER OF PROSECUTION U/S. 276C OF THE ACT. WHILE CONSIDERING AN APPEAL AGAINST AN ORDER MADE U/S. 271(1 )(C) WHAT IS REQUIRED TO BE EXAMINED IS THE RECORD WHICH THE OFFICER IMPOSING THE P ENALTY HAD BEFORE HIM AND IF TH AT RECORD CAN SUSTAIN THE FINDING THERE HAD BEEN CONCEALMENT, THAT WOULD BE SUFFICIENT TO SUSTAIN THE PE NALTY. KEEPING IN MIND THESE TW O CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE JUDGMENT OF DIVISION BENCH IN THE CASE OFDILIP N. SHROFF NEEDS CON SIDERATION. THE EX PLANATIONS ADDED TO SECTION 2 71(1 )(C) IN THAT ENTIRETY ALSO INDICATE THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING RETURNS. THE JUDGMENT IN DILIP N. SHROFFS CASE HAS ALS O NOT CONSIDERED THE PROVISIONS OF SECTION 276 OF THE IT ACT THEREFORE, IN OUR VIEW, THE JUDGMENT IN THE CASE OF DILIP N. SHROFF NEEDS CONSIDERATION BY THE LARGER BENCH OF THE COURT PARTICULARLY WHEN IT HAS RAMIFICATIONS NOT ONLY REGARDING PROVISIONS OF TH E IT ACT BUT ALSO WITH REGARD TO THE PROVISIONS OF SECTIONS 3A AND 11 AC OF THE CENTRAL EXCISE ACT AND RULE 96ZQ(5) OF THE CENTRAL EXCISE RULES.' 4.14 ACCORDING TO SECTION 271(1 )(C), THERE ARE TWO BASIC INGREDIENTS FOR LEVY OF PENALTY: (A) SATISFACTION O F AO REGARDING CONCEALMENT ON THE PART OF THE ASSESSEE; OR (B) SATISFACTION REGARDING FURNISHING INACCURATE PARTICULARS BY THE ASSESSEE. 4.15 THE JUDGMENT OF THE HON'BLE SUPREME COURT (SC) IN UOI VS. DHARMENDRA TEXTILE PROCESSORS (306 ITR 277) HAS TO BE UNDERSTOOD IN THE CORRECT PERSPECTIVE. PENALTY U/S. 271(I)(C) HAS BEEN HELD TO BE A 'CIVIL LIABILITY' IN CONTRADISTINCTION TO PROSECUTION U/S. 276C. IT IS WRONG TO INFER THAT BECAUSE THE LIABILITY IS A 'CIVIL LIABILITY' IT CEASES TO BE PENAL IN CHARACTER. THERE IS NO CONTRADISTINCTION IN A LIABILITY BEING A CIVIL LIABILITY AND THE SAME LIABILITY BEING A PENAL LIABILITY AS WELL, THOUGH A CIVIL LIABILITY CANNOT CERTAINLY BE A CRIMINAL LIABILITY AS WELL. 4.16 THE ONLY IMPACT OF A LIABILITY BEING A CIVIL LIABIL ITY IS THAT MENS REA OR THE INTENTIONS OF ASSESSEE NEED NOT BE PROVED. UNLESS CONTRAVENTION OF LAW TAKES PLACE AND UNLESS THE CONDITIONS FOR IMPOSITION OF PENALTY U/S. 271(L)(C) ARE SATISFIED, EVEN A CIVIL LIABILITY CANNOT BE INVOKED. THE ACTION WHICH TRIG GERS THE CIVIL LIABILITY IS THE LAPSE ON THE PART OF THE ASSESSEE. 4.17 THERE CAN BE THREE DISTINCT MUTUALLY EXCLUSIVE SITUATIONS IN CASE OF AN ADDITION TO INCOME: I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 13 (A) WHERE THE ADDITION IS ON ACCOUNT OF CONTUMACIOUS CONDUCT OF THE ASSESSEE AND MENS REA IS ESTABLISHED - IN THE SITUATION PENALTY WAS ALWAYS LEVIABLE AND CONTINUES TO BE SO LEVIABLE: (B) WHERE IT CAN BE ESTABLISHED THAT THE ADDITION IS ON ACCOUNT OF CONTUMACIOUS CONDUCT OF THE ASSESSEE NOR IS IT ESTABLISHED - THAT THE ASSESSEE'S CON DUCT AND EXPLANATION IS BONA FIDE - IN THIS SITUATION UNDER DILIP SHROFF PENALTY W OULD NOT HAVE BEEN LEVIABLE SIN CE THE ONUS OF ESTABLISHING MEANS REA COULD NOT HAVE BEEN DISCHARGED BY THE AO, BUT PURSUANT TO THE DECISION OF DHARMENDRA TEXTILE PENALTY IN S UCH A CASE WILL BE LEVIABLE. (C) WHERE IT IS ESTABLISHED THAT THE ASSESSEE'S CONDUCT AND EXPLANATION IS BONA FIDE - IN THIS SITUATION PENALTY WAS NEVER LEVIABLE AND EVEN POST THE DECISION OF DHARMENDRA TEXTILE THERE IS NO CHANGE. THEREFORE, LEGAL POSI TION HAS CHANGED ONLY IN SITUATION 4.18 THE CONTENTION OF THE APPELLANT THAT THE WORD 'CONCEALMENT' INHERENTLY CARRIED WITH IT THE ELEMENT OF 'MENS REA' RELYING ON THE CASES OF K.C. BUILDERS REPORTED IN 265 ITR 562(SC) AND DILIP N. SHROFF REPORTED IN 291 I TR 519 (SC) IS NOT CORRECT. THE JUDGMENT OF THE HON'BLE SUPREME COURT (SC) IN UO1 VS. DHARMENDRA TEXTILE PROCESSORS REPORTED IN 306 ITR 277 (SC) HAS BEEN RENDERED BY A BENCH CONSISTING OF THREE JUDGES. THUS THIS DECISION HAS CLEARLY OVERRULED THE PROPOSITI ON THAT 'MENS REA' WAS NECESSARY TO BE PROVED IN PENALTY PROCEEDINGS UNDER THE INCOME TAX ACT. 4.19 IN THIS BACKGROUND WHEN THE CASE OF THE APPELLANT IS CONSIDERED, IT WOULD BE SEEN THAT THE APPELLANT HAD NOT FILED HIS RETURN OF INCOME PRIOR TO THE SEARCH . THE RETURNS WERE FILED ONLY SUBSEQUENT TO THE SEARCH AND EVEN IN THIS RETURN THE INCOME OF THE CURRENT YEAR WAS NOT CORRECTLY DISCLOSED. THE APPELLANT ALSO COULD NOT FURNISH ANY EVIDENCE TO JUSTIFY HOW THE ESTIMATE OF THE AO WAS WRONG. THUS THE CASE OF T HE APPELLANT IS SQUARELY FALLS IN THE CATEGORY (B) MENTIONED IN PARA 4.17. THUS IN VIEW OF TH E EXPLANATION 1 TO SECTION 271(1 )(C) PENALTY WAS CLEARLY LEVIABLE IN THIS CASE. 17 . DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US, THE LD. COUNSEL CONTENDE D THAT LD. COMMISSIONER OF INCOME TAX(A) IS NOT JUSTIFIED ON SUSTAINING THE PENALTY AS THE QUANTUM ADDITION FOR ALL THE I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 14 ASSESSMENT YEARS ON WHICH THE PENALTY WERE LEVIED WAS MADE BY THE AO ON ESTIMATED BASIS. ON THE OTHER HAND, THE LD. D.R. RELIED ON THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) . 18. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE LD. COUNSEL ALSO REFERRED THAT THE ASSESSMENT ORDERS OF QUANTUM ADDITION S ON THE BASIS OF WHICH PENALT IES W ERE LEVIED FOR ASSESSME NT YEARS 2003 - 04 TO 2006 - 07 RESTORED BACK TO THE ASSESSING OFFICER TO RE - ESTIMATE AFTER VERIFICATION VIDE ORDER DATED 04.09.2015 OF THE HON'BLE ITAT AHMEDABAD. IN THIS CONNECTION, WE HAVE PERUSED THE ORDER OF THE ITAT AHMEDABAD TRIBUNAL S CO - ORDINATE BEN CH ON THE QUANTUM ADDITION IN THE CASE OF THE ASSESSEE VIDE ITA 131/2011 DATED 04 - 09 - 2015 AND RELEVANT PART OF THE DECISION IS REPRODUCED AS UNDER : - 10. THE CONTENTION OF THE LD. D.R. IS THAT THE HOUSEHOLD ESTIMATED BY THE A.O. WAS QUITE FAIR AND REA SONABLE CONSIDERING THE FACT THAT THE ASSESSEE HAS TWO WIVES AND 4 CHILDREN THUS TOTAL 7 MEMBERS IN HIS FAMILY INCLUDING THE ASSESSEE. THE LD. D.R. THEREFORE, STATED THAT THE ESTIMATION OF HOUSEHOLD EXPENDITURE BY THE A.O. WAS REASONABLE. AFTER CONSIDERING THE FACTS OF THE CASE AND THE ARGUMENTS OF BOTH THE SIDES WE ARE OF THE OPINION THAT THE HOUSEHOLD EXPENDITURE DISCLOSED BY THE ASSESSEE IS NOT SUFFICIENT. IN A.Y. 2002 - 03 THE ASSESSEE CLAIMS TO HAVE INCURRED HOUSEHOLD EXPENDITURE ONLY OF RS.4000/ - PER MO NTH WHICH CANNOT BE ADEQUATE CONSIDERING THE SIZE OF THE FAMILY. HOWEVER, AT THE SAME TIME WE AGREE WITH THE CIT (A) THAT THE ESTIMATE OF HOUSEHOLD EXPENDITURE BY THE A.O. IS EXCESSIVE. HOWEVER, WE FIND THAT THE CIT (A) HAS ESTIMATED THE HOUSEHOLD EXPEND ITURE OF THE SAME AMOUNT FOR ALL THE FIVE YEARS I.E. FOR A.Y. 2002 - 03 TO 2006 - 07. IN OU R OPINION WITH THE INCREASE IN COST OF LIVING THE ESTIMATION OF SAME HOUSEHOLD EXPENDITURE FOR A PERIOD OF 5 YEARS CANNOT BE SAID TO BE JUSTIFIED. WE THEREFORE, UPHOLD THE ORDER OF THE CIT (A) SO FAR AS THE ISSUE OF HOUSEHOLD EXPENDITURE IS CONCERNED FOR A.Y. 2002 - 03 & 2003 - 04. IN I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 15 OUR OPINION, IT WOULD BE FAIR AND REASONABLE TO ESTIMATE THE HOU SEHOLD EXPENDITURE AT RS.11,000/ - PER MONTH I.E. RS.1,32,000/ - PER FOR ANNUM F OR A.Y. 2004 - 05 AND 2005 - 06 AND FOR A.Y. 2006 - 07 AT RS.12,000/ - PER MONTH I.E. RS.1,44,000/ - PER ANNUM. WE AGREE WITH THE SUBMISSION OF THE LD. COUNSEL THAT THE SET OFF OF THE ADDITION MADE TO THE BUSINESS INCOME IS TO BE ALLOWED WHILE CONSIDERIN G THE ADDITION FOR LESS HOUSEHOLD EXPENDITURE. ACCORDINGLY, WE DIRECT THE A.O. TO WORK OUT THE AVAILABILITY OF THE CASH WITH THE ASSESSEE AND IF THE AVAILABILITY OF CASH IS SUFFICIENT TO INCUR THE HOUSEHOLD EXPENDITURE AS ESTIMATED ABOVE THEN NO ADDITION I S TO BE MADE IN RESPECT OF THE HOUSEHOLD EXPENSES. 19. FOR THE A.Y.2005 - 06, THE HON BLE ITAT HAS ALSO SET A SIDE THE ORDER OF LD.CIT(A) ON THE QUANTUM ADDITION PERTAINING TO UNEXPLAINED INVESTMENT IN MOVABLE ASSETS VIDE ITA 133/2011 DATED 4/9/2015 WHICH IS REPRODUCED AS UNDER: - 18. FOR ASSESSMENT YEAR 2005 - 06 IN THE ASSESSEE'S APPEAL ONE MORE GROUND IS RAISED THAT IS WITH REGARD TO THE ADDITION OF RS.5,88,355/ - SUSTAINED BY THE CIT (A) IN RESPECT OF UNEXPLAINED INVESTMENT IN MOVABLE ASSETS. THE FACTS OF T HE CASE ARE THAT THE A.O. MADE THE ADDITION OF RS.5,88,355/ - IN RESPECT OF PURCHASES OF FOLLOWING MOVABLE ASSETS: - NATURE OF ASSETS DATE OF ACQUISITION COST/INVESTMENT CAMERA 29 - 10 - 2004 RS. 2,75,000/ - COMPUTER 26 - 02 - 2005 RS. 8,000/ - COMPUT ER 30 - 03 - 2005 RS. 40,900/ - FURNITURE 01 - 08 - 2004 RS. 2,61,000/ - FURNITURE 29 - 01 - 2005 RS. 3,455/ - TOTAL COST/ INVESTMENT RS. 5,88,355/ - I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 16 19. THE CIT (A) SUSTAINED THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS N OT EXPLAINED THE SOURCE OF ACQUISITION OF EACH AND EVERY ASSET. AT THE TIME OF HEARING BEFORE US THE CONTENTION OF THE LD. COUNSEL WAS LIMITED TO THE EXTENT THAT THERE CANNOT BE SEPARATE ADDITION FOR THE INCOME AS WELL AS THE APPLICATION OF INCOME. HE STAT ED THAT YEAR AFTER YEAR SUBSTANTIAL BUSINESS INCOME IS ESTIMATED AND THE ACQUISITION OF THESE BUSINESS ASSETS WERE ONLY THE APPLICATION OF THOSE INCOME BY ACQUIRING ASSETS FOR THE PURPOSE OF BUSINESS. HE THEREFORE, SUBMITTED THAT IF THE FUNDS ARE AVAILABLE OUT OF THE BUSINESS INCOME AS FINALLY ASSESSED IN THE PRECEDING YEARS AND IN THIS YEAR IS SUFFICIENT TO FINANCE THE ASSET THEN NO SEPARATE ADDITION CAN BE MADE. THE LD. D.R. ON THE OTHER HAND RELIED UPON THE ORDER OF THE AUTHORITIES BELOW AND HE STATED TH AT WHEN THE ACQUISITION OF THESE ASSETS ARE NOT IN DISPUTE AND THE ASSESSEE IS NOT ABLE TO EXPLAIN THE SPECIFIC SOURCE FOR ACQUISITION OF EACH AND EVERY ASSET, THE CIT (A) WAS FULLY JUSTIFIED IN SUSTAINING THE ADDITION. AFTER CONSIDERING THE FACTS OF THE C ASE AND THE ARGUMENTS OF BOTH THE SIDES WE AGREE WITH THE CONTENTION OF THE LD. COUNSEL THAT THE SEPARATE ADDITION CANNOT BE MADE FOR THE INCOME AND APPLICATION OF SUCH INCOME. HOWEVER, WHETHER THE ENOUGH CASH IS AVAILABLE FOR INVESTMENT IN THOSE ASSETS NE EDS VERIFICATION AT THE HAND OF THE A.O. WE THEREFORE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. WE DIRECT HIM TO VERIFY THE AVAILABILITY OF CASH WITH THE ASSESSEE AND IF CASH AVAILABLE WI TH THE ASSESSEE IS MORE THAN THE ASSETS FOUND THEN NO ADDITION WOULD BE MADE FOR UNEXPLAINED INVESTMENT IN ASSETS. WE ALSO DIRECT HIM TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE RE - ADJUDICATING THIS ISSUE. 20. WE HAVE HEARD BOTH TH E SIDES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE HAS ESTIMATED THE PROFIT FROM THE PRODUCTION AND SALE OF AUDIO AND VIDEO CASSETTES FOR VARIOUS YEARS IN RESPONSE TO NOTICES U/S. 153A ISSUED UPON THE ASSESSEE FOR ASSESSMENT YEAR 2003 - 04 TO 2006 - 07 IN CONSEQUENT OF ACTION U/S. 132A BY THE DEPARTMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ESTIMATED THE INCOME OF THE ASSESSE AS STATED ABOVE IN THIS OR D ER AND THE LD. COMMISSIONER OF I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 17 INCOME TAX(A) HAS REDUCED THE ESTIMATE MADE BY THE ASSESSING OFFICER . THE ASSESSING OFFICER HAS LEVIED PENALTY U/S. 271(1)(C) FOR ASSESSMENT Y EARS 2003 - 04 TO 2006 - 07 AND THE LD. COMMISSIONER OF INCOME TAX(A) HAS SUSTAINED THE ORDER OF THE ASSESSING OFFICER ON THE COMMON REASONIN G FOR ALL THESE ASSESSMENT Y EARS. WE HAVE NOTICED THAT THE QUANTUM ADDITIONS FOR ALL THESE ASSESSMENT Y EARS HAS BEEN DECIDED BY COMMON ORDER OF THE CO - ORDINATE BENCH OF ITAT AHMEDABAD AS STATED (SUPRA) WHEREIN THE PART OF THE ADDITIONS ON WHICH THE PENAL TIES LEVIED U/S. 271(1)(C) OF THE ACT HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATING. 21 . IN VIEW OF THE ORDER OF THE HON BLE ITAT AHMEDABAD (SUPRA), WE SET ASIDE THE PENALTY ORDER SUSTAINED BY THE LD. COMMISSIONER OF INCOME T AX(A) FOR ALL THESE ASSESSMENT YEARS TO THE ASSESSING OFFICER TO DECIDE THE MATTER AFRESH AFTER FINALIZATION OF THE QUANTUM ADDITION IN THE CASE OF THE ASSESSEE AS DIRECTED IN THE ABOVE MENTIONED COMMON ORDER OF THE CO - ORDINATE BENCH OF THE ITAT AHMEDABAD . 22 . IN THE RESULT, ALL THE FOUR APPEALS OF THE ASESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 17 - 11 - 201 6 SD/ - SD/ - (RAJPAL YADAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER A CCOUNTANT MEMBER I.T(SS) A NO S . 12 TO 15 /RJT /20 13 A.Y. 2003 - 04 TO 2006 - 07 PAGE NO SHRI HIREN B. PARMAR VS. ACIT 18 AHMEDABAD : DATED 17 /11 /2016 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUN AL, RAJKOT