Multivision Infotech Pvt.Ltd., Ahmedabad V. The ACIT.,Cent. Circle 1(4), Ahmedabad

ITSSA 245/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2922 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-03-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 27-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Difference of opinion; Change of opinion
• Section: 143(3); 153A; 234B; 68; 132

Judgement Text

X , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ( ) ./ IT(SS)A NOS. 245 TO 248/AHD/2013 / ASSESSMENT YEAR: 2001-02 TO 2004-05 RESPECTIVELY MULTIVISION INFOTECH PVT LTD, 2 ND FLOOR, NARAYAN CHAMBERS, NEAR PATANG HOTEL, ASHRAM ROAD, AHMEDABAD-380009 PAN : AACCM 2016 P VS. ACIT, CENTRAL CIRCLE 1(4), AHMEDABAD [ / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PRITESH SHAH, AR REVENUE BY : SHRI PRASOON KABRA, SR DR / DATE OF HEARING : 27/03/2017 / DATE OF PRONOUNCEMENT: 30/03/2017 / O R D E R PER BENCH : THESE FOUR APPEALS OF THE SAME ASSESSEE FOR AYS 200 1-02 TO 2004-05 ARE DIRECTED AGAINST SEPARATE ORDERS OF CIT(A)-I, AHMED ABAD OF DATED 10.04.2013, ARISING OUT OF ORDERS UNDER SECTION 271(1)(C) OF TH E INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), FRAMED ON 2 8.03.2012 BY ACIT, CENTRAL CIRCLE-1(4), AHMEDABAD. AS ALL THESE APPEALS RELAT E TO THE SAME ASSESSEE RAISING COMMON ISSUE AGAINST LD. CIT(A)S ORDER CONFIRMING PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IN ALL THESE APPEALS IS AGAINST PENALTY UNDER SECTION 271(1)(C) OF THE ACT IMPOSED FOR AYS 2001-02 TO 2004-05 AT RS.57,691/-, RS.40,357/-, RS.88,951/- AND RS.36,234 /-. ALL THESE PENALTIES FOR FOUR YEARS WERE IMPOSED ON THE ADDITIONS CONFIRMED UNDER SECTION 68 OF THE ACT FOR AYS 2001-02 TO 2004-05 AT RS.1,45,000/-, RS . 1,12,264/-, RS.1,29,000/- AND IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 2 RS.1,01,000/- RESPECTIVELY. IN THE APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY, ASSESSEE COULD NOT SUCCEED AS IN ALL THE FOUR YEARS THE IMPUGNED PENALTY WAS CONFIRMED BY LD. CIT(A) BY OBSERVING THAT AS THE A PPELLANT FAILED TO PRODUCE ANY EVIDENCE REGARDING THE IMPUGNED ADDITIONS, IT C ANNOT BE CONSIDERED AS BONA FIDE OMISSION OR MISTAKE ON THE PART OF THE APPELLANT. 3. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 4. LD. COUNSEL FOR THE ASSESSEE RAISED TWO FOLD CON TENTIONS; FIRSTLY, ON MERITS AND SECONDLY, ON LEGAL ASPECT CHALLENGING THE NOTIC ES ISSUED UNDER SECTION 274 OF THE ACT. 5. FIRST, WE WILL TAKE UP THE SECOND ISSUE OF LEGAL ITY OF NOTICE UNDER SECTION 274 OF THE ACT. LD. COUNSEL SUBMITTED THAT IN ALL THE FOUR YEARS, IN THE SHOW- CAUSE NOTICE UNDER SECTION 274 R.W.S. 271 OF THE AC T, LD. ASSESSING OFFICER HAS MERELY TICKED THE OPTION THAT THE ASSESSEE HAS EITH ER CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E; MEANING THEREBY THAT THERE WAS NO SPECIFIC ALLEGATION FRAMED UP BY LD. A SSESSING OFFICER. FURTHER, THERE WAS A CHANGE OF OPINION IN THE ORDER UNDER SE CTION 143(3) OF THE ACT, AS IN THE ASSESSMENT ORDER PENALTY PROCEEDINGS WERE INITI ATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME, WHEREAS IN THE PE NALTY ORDER UNDER SECTION 271(1)(C) OF THE ACT, ASSESSEE HAD BEEN PENALIZED F OR CONCEALING ITS INCOME. LD. COUNSEL HAS RELIED ON VARIOUS JUDGMENTS WHEREIN IT HAS BEEN HELD THAT IF THE ASSESSING OFFICER IS UNABLE TO SPECIFY AS TO WHETHE R ASSESSEE IS FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED THE P ARTICULARS OF INCOME, WHICH WILL MEAN THAT THE LD. ASSESSING OFFICER HAS NOT AP PLIED HIS MIND ON THE FACTS AND FOR WHICH REASONS THE NOTICES HAVE BEEN ISSUED FOR IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND IN SUCH CASES, PEN ALTY WILL NOT BE SUSTAINABLE. RELIANCE WAS PLACED ON FOLLOWING JUDGMENTS:- I. HONBLE SUPREME COURT JUDGMENT IN THE CASE OF CIT V S. SSA EMERALD MEADOWS IN SLP CC NO.11485/2016 IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 3 II. HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS . SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 III. HONBLE MUMBAI HIGH COURT IN THE CASE OF CIT VS. SA MSON PERINCHERY IN ITA NO.1154, 953, 1097, 1226 OF 2014 IV. ITAT MUMBAI IN THE CASE OF SAMSON PERINCHERY VS. AC IT IN ITA NOS 4625 TO 4630/MUM/2013. 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE STRONGLY CONTENDED THAT THIS LEGAL GROUND TAKEN UP BY THE ASSESSEE SHO ULD NOT BE ENTERTAINED AS IT WAS NEVER CHALLENGED BEFORE THE CIT(A) AND EVEN IN THE GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE SOLITARY GRIEVANCE FOR ALL THE FOUR APPEALS BY THE ASSESSEE IS AGAINST THE LEGALITY OF NOTICES ISSUED UNDER SECTIO N 274 R.W.S. 271 OF THE ACT. SO FAR AS THE CONTENTION OF LD. DEPARTMENTAL REPRESENT ATIVE IS CONCERNED, CHALLENGING THE ADMISSION OF THIS LEGAL GROUND BEFO RE THE TRIBUNAL, WE ARE OF THE VIEW THAT IT IS A WELL SETTLED PRINCIPLE OF LAW THAT LEGAL GROUND CAN BE RAISED AT ANY STAGE BY THE APPELLANT. WE, THEREFORE, PROC EED TO ADJUDICATE THE COMMON GROUND RAISED BY ASSESSEE CHALLENGING THE LEGALITY OF NOTICE UNDER SECTION 274 R.W.S. 271 OF THE ACT. WE FIND THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN IMPOSED AT RS.57,691/-, RS.40,357/-, RS.88,951 /- AND RS.36,234/- FOR AYS 2001-02 TO 2004-05 RESPECTIVELY ON THE ADDITIONS CO NFIRMED UNDER SECTION 68 OF THE ACT. ASSESSEE HAS CHALLENGED THAT LD. ASSESSING OFFICER WAS NOT CLEAR AT THE TIME OF ISSUING NOTICE UNDER SECTION 274 R.W.S. 271 OF THE ACT THAT WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF IN COME OR CONCEALED THE PARTICULARS OF INCOME. 8. BEFORE MOVING FURTHER, WE FIND IT PERTINENT TO G O THROUGH THE DECISION OF CO-ORDINATE BENCH, MUMBAI IN THE CASE OF SAMSON PER INCHERY VS. ACIT, WHICH HAS ADJUDICATED SIMILAR ISSUE IN THE LIGHT OF JUDGM ENT OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY, REPORTED IN [2013] 35 TAXMANN.COM 250 (KAR.), BY OB SERVING AS FOLLOWS:- IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 4 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE JUDGMENTS CITED BY THE L D COUNSEL. ON THE PRELIMINARY ISSUE, WE FIND THAT THE TRIBUNAL CAN AD JUDICATE THE APPEALS ON THE GROUNDS OF LEGAL ARGUMENTS WITHOUT GOING INTO THE M ERITS OF THE PENALTIES LEVIED BY THE AO IN ALL THESE YEARS. ADMITTEDLY, THIS IS T HE CASE, WHERE THERE WAS AN OPERATION U/S 132 OF THE ACT AND THE ADDITIONAL INC OME WAS OFFERED BY THE ASSESSEE AND DISCLOSED IN THE RETURN IN RESPONSE TO SECTION 153A OF THE ACT FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. WITHOUT G OING INTO THE MERITS, AT THE OUTSET, WE HAVE UNDER TAKEN THE ASSESSEES LEGAL PR OPOSITIONS WHETHER THE PENALTY IS SUSTAINABLE ON TECHNICALITIES, CONSIDERING THE C ITED JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTT ON & GINNING FACTORY (SUPRA). 10. ON THE FACTS RELATING TO THE RECORDING OF THE S ATISFACTION FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, WE HAVE PERUSED THE RELEV ANT ORDERS OF THE REVENUE AND EXAMINED THE LAST PARA OF THE ASSESSMENT ORDER WHIC H READS AS UNDER: 'ASSESSED U/S 143(3) OF THE INCOME TAX ACT, 1961 AT A TOTAL INCOME OF RS. 31,98,460/-. CHARGE INTEREST U/S 234B & 234C AS APP LICABLE. GIVE CREDIT FOR TAXES PAID AFTER DUE VERIFICATION. ISSUE DEMAND NOTICED AND CHALLAN ACCORDINGLY ISSUE SHOW CAUSE NOTICE FOR INITIATING PENALTY U/S 271(1)(C) OF THE IT ACT, 1961 FOR FURNISHING INACCURATE PARTICUL ARS OF THE INCOME. THIS ORDER IS PASSED AFTER GETTING APPROVAL FROM ADDL. C IT, RANGE-4, CENTRAL CIRCLE-II, MUMBAI VIDE HIS LETTER NO. ADDL CIT C.R. 4/APPROVAL- 153D/2010-11, DATED 29.12.2010.' 11. FROM THE ABOVE, THE PENALTIES WERE TO BE INITIA TED EITHER FOR 'FURNISHING INACCURATE PARTICULARS OF INCOME' AND NOT FOR 'CONC EALMENT OF INCOME'. HOWEVER, THE AO IS UNDER OBLIGATION TO SPECIFY THE SAME AND SHOULD NOT LEAVE THE SCOPE FOR IMAGINATIONS AND SURMISES. AT THE END , WE FIND THAT THE PENALTY WAS ACTUALLY LEVIED FOR CONCEALMENT OF (PARTICULAR S) OF INCOME WHICH IS EVIDENT FROM PARA 4 OF THE ASSESSMENT ORDER WHICH R EADS AS UNDER: '4. FROM THE ABOVE, I AM SATISFIED THAT THE ASSESSE E HAS CONCEALED THE PARTICULARS OF INCOME SO AS TO EVADE TAX AND AS SUC H PENALTY U/S 271(1)(C) OF THE ACT IS LEVIABLE. THE TAX ON THE UNDISCLOSED INCOME OF RS. 31,00,790/- (INCLUDING FOREIGN TRAVEL) WORKS OUT TO RS. 9,30,20 0/-. ACCORDINGLY, I HEREBY LEVY A MINIMUM PENALTY AT 100% OF TAX I.E., RS. 9,30,200/-.' 11.1. FURTHER, WE HAVE ALSO PERUSED THE NOTICE ISSU ED U/S 274 OF THE ACT AND THE RELEVANT PARA READS AS UNDER: 'HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR _ _______ FURNISHED INACCURATE PARTICULARS OF SUCH INCOME' KNOWINGLY OR OTHERWISE, THE AO HAS NOT BOTHERED TO FILL THE BLANKS WITH APPROPRIATE LIMB OF THE PROVISIONS OF SECTION 271(1 )(C) OF THE ACT. IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 5 12. THE ABOVE EXTRACTS REVEAL THAT THE AO HAS NOT A PPLIED HIS MIND TO THE FACT FOR WHICH REASON OF THE PENALTY, THE NOTICES WERE ISSUE D. THE ABOVE DOCUMENTS REVEAL THAT THE PENALTY PROCEEDINGS WERE INITIATED FOR 'FA ILURE TO FURNISH INACCURATE PARTICULARS OF INCOME AND HOWEVER, THE PENALTY WAS LEVIED FOR CONCEALMENT OF INCOME'. 12.1. IN THIS REGARD, WE HAVE PERUSED THE SAID PRAR AS 59 TO 61 OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTT ON & GINNING FACTORY (SUPRA) AND THE SAME READ AS UNDER: 'NOTICE UNDER SECTION 274 59. AS THE PROVISION STANDS, THE PENALTY PROCEEDING S CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGARDING THE EXIST ENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PROCEEDI NGS IS INITIATED, IN THE NOTICE TO BE ISSUED UNDER SECTION 274, THEY COU LD CONVENIENTLY REFER TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION OF T HE AUTHORITY WHICH HAS PASSED THE ORDER. HOWEVER, IF THE EXISTENCE OF THE CONDITIONS COULD NOT BE DISCERNED FROM THE SAID ORDER AND IF IT IS A CASE O F RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION-1 OR IN EXPLANAT ION-1(B), THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NATURE OF CIV IL LIABILITY, IN FACT, IT IS PENAL IN NATURE. IN EITHER EVENT, THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSING PENALTY ON HI M AS THE SECTION 274 MAKES IT CLEAR THAT ASSESSEE HAS A RIGHT TO CON TEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE O F THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271( 1)(C) DO NOT EXIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED FORM HERE ALL THE GROUND MENTION ED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INITIAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HELD TO BE STRICTLY CONSTRUED , NOTICE ISSUED UNDER SECTION 274SHOULD SATISFY THE GROUNDS WHICH H E HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUST ICE IS OFFENDED IF THE SHOW CAUSE NOTICE IS VAGUE. ON THE BASIS OF SUCH PROCEED INGS, NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES, TH AT IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. NO DOUBT, THE FACTS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOME CASES THERE MAY BE OVERLAPPING OF THE TWO OFFE NCES BUT IN SUCH CASES THE INITIATION OF THE PENALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE OFFENCES. BUT DRAWING UP PENALTY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSEE GUILTY OF ANOTHER OFFENCE OR FINDING HIM G UILTY FOR EITHER THE ONE OR THE OTHER CANNOT BE SUSTAINED IN LAW. IT IS NEED LESS TO POINT OUT IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 6 SATISFACTION OF THE EXISTENCE OF THE GROUNDS MENTIO NED IN SECTION 271(L)(C) WHEN IT IS A SINE QUA NON FOR INITIATION OR PROCEEDINGS, THE PENALTY PROCEEDINGS SHOULD BE CONFINED ONLY TO THOS E GROUNDS AND THE SAID GROUNDS HAVE TO BE SPECIFICALLY STATED SO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MEET THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRIES TO SUBSTANTIATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOULD BE IMPOSED ONLY ON THE GROUNDS ON WHICH HE IS CALLED U PON TO ANSWER. IT IS NOT OPEN TO THE AUTHORITY, AT THE TIME OF IMPOSING PENALTY TO IMPOSE PENALTY ON THE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOUGH THE INITIATION OF PENALTY PROCEEDI NGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PENALTY WOULD OFFEN D PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROC EEDINGS ARE INITIATED ON ONE GROUND, THE PENALTY SHOULD ALSO BE IMPOSED O N THE SAME GROUND. WHERE THE BASIS OF THE INITIATION OF PENALTY PROCEE DINGS IS NOT IDENTICAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED, T HE IMPOSITION OF PENALTY IS NOT VALID. THE VALIDITY OF THE ORDER OF PENALTY MUST BE DETERMINED WITH REFERENCE TO THE INFORMATION, FACTS ARID MATERIALS IN THE HANDS OF THE AUTHORITY IMPOSING THE PENALTY AT THE TIME THE ORDER WAS PASSED AND FURTHER DISCOVERY OF FACTS SUBSEQUENT TO THE IMPOSITION OF PENALTY CANNOT VALIDATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS NOT SUSTAINABLE. 61 THE ASSESSING OFFICER IS EMPOWERED UNDER THE ACT TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COURSE OF A NY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS OF TOTAL INCOME UNDER CLAUSE (C). CONCEALMENT, FURNISHING IN ACCURATE PARTICULARS OF INCOME ARE DIFFERENT. THUS THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION THAT WHETHER IS IT A CASE OF CONCEALMENT OF INCOME OR IS IT A CASE OF FURNISHING OF INACCURATE PARTICULARS. THE APEX COURT IN THE CASE OF ASHOK PAL REPORTED IN 292 FLR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURAT E PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJRAT HIG H COURT IN THE CASE OF MANU ENGINEERING REPORTED IN 122 ITR 306 AND THE DE LHI HIGH COURT IN THE CASE O VIRGO MARKETING REPORTED IN 171 TAXMN 156, HAS HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR PENALTY IS NO T SUSTAINABLE. THEREFORE, WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE THE F IRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATEL Y MARKED. SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTICULARS OF I NCOME. THE STANDARD PROFORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES W ILL LEAD TO AN INFERENCE AS TO NON-APPLICATION OF MIND.' 13. FROM THE ABOVE, IT IS CLEAR THAT THE PENALTY SH OULD BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR H ERE THE PENALTY IS NOT SUSTAINABLE. THEREFORE, CONSIDERING THE SAME, WE AR E OF THE OPINION THAT THE GROUND RAISED BY THE ASSESSEE SHOULD BE ALLOWED ON TECHNICAL GROUNDS ACCORDINGLY, ADJUDICATION OF THE PENALTIES ON MERIT S BECOME AN ACADEMIC IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 7 EXERCISE. THEREFORE, THE GROUNDS RAISED IN ALL THE SIX ASSESSMENT YEARS ARE ALLOWED. WE FURTHER OBSERVE THAT THE ABOVE DECISION OF CO-OR DINATE BENCH, MUMBAI HAS BEEN CONFIRMED BY HONBLE MUMBAI HIGH CO URT. 9. SIMILAR ISSUE ALSO CAME UP BEFORE THE HONBLE HI GH COURT OF KARNATAKA IN THE CASE OF CIT VS. SAAS EMERALD MEADOWS IN ITA NO 380 OF 2015, WHICH ALSO CONFIRMED THE TRIBUNALS DECISION WHICH FOLLOW ED THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNA THA COTTON AND GINNING FACTORY, (2013) 359 ITR 565. THIS JUDGMENT OF HON BLE HIGH COURT OF KARNATAKA ATTAINED FINALITY AS THE REVENUES SPECIAL LEAVE PE TITION WAS DISMISSED BY THE HONBLE APEX COURT VIDE ORDER DATED 05.08.2016. 10. AFTER GOING THROUGH ABOVE MATRIX OF LAW DISCUSS ED BY CO-ORDINATE BENCH AND HONBLE HIGH COURT, WE MOVE AHEAD TO EXAMINE TH E FACTS OF THE CASE BEFORE US. WE FIND THAT IN ALL THE FOUR ASSESSMENT YEARS, IN THE SHOW-CAUSE NOTICE UNDER SECTION 274 R.W.S 271, ALL EVEN DATED 31.12.2 008, LD. ASSESSING OFFICER HAS MERELY TICKED THE REASONS WHICH READS HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME . FURTHER, FOR ALL THESE ASSESSMENT YEARS FOR ASSESSMENT UNDER SECTION 153C R.W.S. 153A(1)(B) R.W.S. 144 OF THE ACT, PENALTY PROCEEDINGS UNDER SECTION 271(1 )(C) OF THE ACT WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME; HO WEVER, IN PENALTY ORDER UNDER SECTION 271(1)(C) OF THE ACT, LD. ASSESSING O FFICER OBSERVED THAT IT IS ESTABLISHED THAT THE ASSESSEE HAS CONCEALED ITS INC OME . 11. FROM GOING THROUGH THE FACTS IN ALL FOUR ASSESS MENT YEARS, IT IS CRYSTAL CLEAR THAT AT THE TIME OF ISSUING NOTICE UNDER SECT ION 274 OF THE ACT, LD. ASSESSING OFFICER INITIATED THE PROCEEDINGS WITHOUT BEING CERTAIN AS TO WHETHER IT IS FOR FURNISHING OF INACCURATE PARTICULARS OF I NCOME OR CONCEALMENT OF PARTICULARS OF INCOME; WHEREAS COMMONLY FOR ALL THE FOUR YEARS, IN THE ASSESSMENT ORDER UNDER SECTION 153C R.W.S. 153A(1)( B) R.W.S. 144 OF THE ACT, PENALTY WAS INITIATED FOR FURNISHING INACCURATE PAR TICULARS OF INCOME; WHEREAS IT(SS)A NOS. 245 TO 248/AHD/2013 MULTIVISION INFOTECH PVT LTD VS. ACIT AY : 2001-02 2004-05 - 8 IN THE PENALTY ORDER, IT WAS ALLEGED THAT THE ASSES SEE HAS CONCEALED ITS PARTICULARS OF INCOME. ALL THESE FACTS ARE SIMILAR TO THE FACTS DISCUSSED IN THE DECISION AND JUDGMENTS QUOTED ABOVE. WE ARE, THERE FORE, OF THE VIEW THAT FOR ALL THE FOUR YEARS FROM AYS 2001-02 TO 2004-05, SHO W-CAUSE NOTICE ISSUED UNDER SECTION 274 R.W.S. 271 OF THE ACT IS DEFECTIVE AS I T DOES NOT SPEAK ABOUT THE GROUNDS ON WHICH THE PENALTY HAS BEEN IMPOSED. WE, THEREFORE, HOLD THAT ORDERS IMPOSING PENALTY IN ALL THE FOUR ASSESSMENT YEARS ARE INVALID AND CONSEQUENTLY, PENALTY IMPOSED IS CANCELLED. WE, TH EREFORE, ALLOW THE LEGAL GROUND OF THE ASSESSEE AND DELETE THE PENALTY IMPOS ED FOR ALL THE FOUR ASSESSMENT YEARS. 12. THE GROUNDS OF APPEAL ON MERITS ARE DISMISSED H AVING BECOME INFRUCTUOUS AS WE HAVE ALREADY DELETED THE IMPUGNED PENALTY FOR ALL THE FOUR ASSESSMENT YEARS UNDER CONSIDERATION. ORDER PRONOUNCED IN THE COURT ON 30 TH MARCH, 2017 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 30/03/2017 **BT ! '!/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. % ' / CONCERNED CIT 4. ' ) ( / THE CIT(A)- 5. ! % , % , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT.REGISTRAR) % ITAT, AHMEDABAD