Shri Shailesh D. Prajapati, Ahmedabad V. The ACIT, Central Circle-2(2), Ahmedabad

ITSSA 345/AHD/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2765 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Revised return
• Section: 5(2); 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ( ) ./ IT(SS)A NOS. 344 & 345/AHD/2013 / A.Y. 2008-09 & 2009-10 SHAILESH D. PRAJAPATI, M.K. HOUSE, NR. TIRUPATI MARBLES, GANDHINAGAR HIGHWAY ROAD, MOTERA, SABARMATI, AHMEDABAD PAN : AGCPP 8621 N VS ACIT, CENTRAL CIRCLE 2(2), AHMEDABAD ! / (APPELLANT) '# ! / (RESPONDENT) BY ASSESSEE : SHRI SUNIL TALATI, AR BY REVENUE : SHRI JAMES KURIAN, SR DR / DATE OF HEARING : 09/12/2016 /DATE OF PRONOUNCEMENT: 22/12/2016 / O R D E R PER S.S. GODARA, JUDICIAL MEMBER THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YEARS 2 008-09 AND 2009-10, ARISE FROM CIT(A)-III, AHMEDABAD COMMON OR DER DATED 12.06.2013, PASSED IN CASE NO.CIT(A)-III/36 TO 41/A CIT/CC-2(2)/12- 13, PARTLY CONFIRMING ASSESSING OFFICERS ACTION IN IMPOSING PENALTIES OF RS.52,77,892/- & RS.33,56,166/-; RESPECTIVELY, I N PROCEEDINGS U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. WE COME TO RELEVANT FACTS. THE ASSESSEE-APPELLA NT IS ASSESSED AS AN INDIVIDUAL. HE FILED RETURNS IN THE TWO IMPUGNE D ASSESSMENT YEARS ON 19.12.2008 AND 24.09.2009 STATING RESPECTI VE INCOMES OF ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 2 - RS.75,310/- AND RS.2,59,686/-. THE DEPARTMENT THER EAFTER CONDUCTED A SEARCH IN M/S. PRAJAPATI GROUP OF CASES ON 08.12. 2009. THE SAME CULMINATED IN SECTION 153C NOTICES ISSUED TO THE AS SESSEE ON 07.09.2011. HE FILED RETURNS IN RESPONSE THERETO S TATING INCOMES OF RS.87,66,490/- AND RS.33,33,940/-; RESPECTIVELY ON 13.09.2011. THE SAME FOLLOWED REVISED RETURNS ON 22.12.2011. THE A SSESSEE WOULD INCREASE HIS ABOVE INCOME TO RS.1,54,09,030/- AND R S.95,80,550/- IN HIS RESPECTIVE RETURNS. THE ASSESSING OFFICER FRAM ED CONSEQUENTIAL ASSESSMENT ON 23.12.2011 ACCEPTING THE SAME. HE HO WEVER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S 271(1)(C) OF T HE ACT. 3. WE COME TO THE PENALTY PROCEEDINGS IN QUESTION N OW. THERE IS NO DISPUTE THAT THE SAME ARE REGARDING THE ABOVE ST ATED ASSESSEES TWO INCOMES REVISED HEREINABOVE SINCE THE CIT(A) HA S ACCEPTED HIS CONTENTIONS QUA THE REMAINING COMPONENT OF PENALTY PERTAINING DISALLOWANCE OF EXPENSES INVOLVED IN HIS CORRESPOND ING AGRICULTURAL INCOME IN THE TWO ASSESSMENT YEARS. THE ASSESSING OFFICER HEAVILY RELIED UPON THE ASSESSMENT PROCEEDINGS IN THE PRECE DING PARAGRAPH TO IMPOSE THE IMPUGNED PENALTIES AFTER INVOKING SEC TION 271(1)(C) EXPLANATION 5A OF THE ACT QUA UNDISCLOSED INCOME AL ONG WITH UNEXPLAINED EXPENDITURE OF RS.86,96,400/- AND RS.66 ,42,543/- IN THE FORMER AND RS.30,40,000/- AND RS.62,47,415/- IN THE LATTER ASSESSMENT YEARS. HE ACCORDINGLY PASSED PENALTY ORDERS ON 29. 06.2012. 4. THE CIT(A) CONFIRMS ASSESSING OFFICERS ACTION A S FOLLOWS:- 7. FACTS OF THE CASE AND ARGUMENTS OF THE APPELLAN T HAVE BEEN CAREFULLY CONSIDERED. THE FIRST ARGUMENT OF THE APP ELLANT IS THAT IN HIS CASE PENALTY COULD HAVE BEEN LEVIED U/S. 271 AAA ON LY AND NOT U/S. ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 3 - 271(1)(C). THIS ARGUMENT OF THE APPELLANT IS NOT AC CEPTABLE. PENALTY U/S. 271AAA IS LEVIABLE ONLY IN THE CASE OF AN APPE LLANT IN WHOSE CASE SEARCH U/S. 132 HAS BEEN CONDUCTED. THIS IS BECAUSE OF THE REASON THAT IMMUNITY FROM PENALTY U/S. 271AAA IS AVAILABLE TO A PERSON WHO ADMITS UNDISCLOSED INCOME IN STATEMENT U/S. 132(4) OF THE ACT. HOWEVER, A PERSON WHO IS COVERED U/S. 132A OR 153C DO ES NOT HAVE AN OPPORTUNITY TO MAKE DECLARATION OF UNDISCLOSED INCO ME IN THE COURSE OF SEARCH. THUS IN THE CASE OF SUCH PERSONS THERE CANN OT BE ANY DEEMING FICTION OF UNDISCLOSED INCOME CREATED U/S. 271AAA. IN THE CASE OF APPELLANT SEARCH WAS NOT CONDUCTED BUT ONLY NOTICE U/S. 153C WAS ISSUED. THEREFORE, AO HAS RIGHTLY INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) IN THE CASE OF APPELLANT FOR A.Y. 2004-05 TO 2009-10. 8. THE SECOND ARGUMENT OF THE APPELLANT IS THAT IN RESPECT OF INCOME WHICH WAS DISCLOSED BY HIM IN THE RETURN FILED IN RES PONSE TO NOTICE ISSUED U/S. 153C NO PENALTY IS LEVIABLE. IN RESPECT OF THIS CONTENTION, APPELLANT HAS PLACED RELIANCE ON VARIOUS JUDGEMENTS INCLUDING DECISION OF HON'BLE ITAT, AHMEDABAD BENCH IN THE CA SE OF ACIT VS. JUPITER DISTILLERY [143 TTJ 745]. HOWEVER, IT IS FOU ND THAT ALL THESE JUDGEMENTS PERTAIN TO THE PERIOD WHICH IS PRIOR TO I NSERTION OF EXPLANATION 5 A TO SECTION 271(1)(C). EVEN THE DECI SION OF HON'BLE IT AT, AHMEDABAD BENCH IN THE CASE OF JUPITER DISTILLE RY IS REGARDING APPLICABILITY OF EXPLANATION 5 TO SECTION 271(1)(C) AND NOT REGARDING APPLICABILITY OF EXPLANATION 5A. SINCE EXPLANATION 5A HAS BEEN INSERTED W.E.F. 1/6/2007 AND THE JUDGMENTS MENTIONE D BY APPELLANT PERTAIN TO AN EARLIER PERIOD, THEREFORE, RELIANCE P LACED BY APPELLANT ON ANY OF THESE JUDGEMENTS IS OF NO HELP. 9. HOWEVER, EARLIER THERE COULD HAVE BEEN A SITUATIO N WHERE PENALTY PROVISION UNDER SECTION 271(1)(C) FOR THE Y EARS PRIOR TO THE 'SPECIFIED PREVIOUS YEAR', COULD NOT HAVE BEEN ATTR ACTED BUT FOR THE EXISTENCE OF THE EXPLANATION 5A TO SECTION 271(1)(C ). FINANCE ACT, 2007 INSERTED EXPLANATION 5A W.E.T. 1/6/2007. SUCH SITUATION COULD HAVE BEEN LIKE WHERE AFTER SEARCH HAVING TAKEN PLAC E, THE RETURN OF INCOME FOR EARLIER YEARS ARC PENDING TO BE FILED BY THE ASSESSEE UP TO THE DATE OF SEARCH EVEN THOUGH THE DUE DATE FOR FIL ING THE RETURN HAD BEEN EXPIRED AND THE SAME IS FILED BY THE ASSESSEE AFTER THE DATE OF SEARCH WITHIN THE TIME LIMIT PRESCRIBED U/S. 139(4) SHOWING SUCH UNDISCLOSED INCOME FOUND AS A RESULT OF SEARCH PERT AINING TO SUCH YEAR. IN ORDER TO COVER SUCH A SITUATION. EXPLANATION 5A TO SECTION 271(1)(C) HAS BEEN ENACTED. ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 4 - 10. IT IS NOW A WELL-SETTLED PRINCIPLE OF LAW THAT THE MORE STRINGENT THE LAW, THE MORE STRICT A CONSTRUCTION THEREOF WOULD B E NECESSARY. EVEN WHEN THE BURDEN IS REQUIRED TO BE DISCHARGED BY AN A SSESSEE, IT WOULD NOT BE AS HEAVY AS THE PROSECUTION. HOWEVER, THE DEE MING PROVISION INSERTED BY THE EXPLANATION 5A TO SECTION 271(1)(C) DOES AWAY WITH THIS REQUIREMENT. NOW THE AO DOES NOT NEED TO ESTAB LISH THE FACT THAT THE ASSESSEE HAD CONCEALED THE INCOME IN THE RETURN FILED PRIOR TO THE SEARCH, IF IT HAD NOT INCLUDED THE INCOMES DECLARED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICES U/S. 153A, IN T HE RETURN FILED PRIOR TO THE SEARCH. SUCH CONCEALMENT IS TO BE PRESUMED. 11. THE WORD 'CONCEALMENT' INHERENTLY CARRIED WITH' IT THE ELEMENT OF MENS REA. THEREFORE, NORMALLY, THE MERE FACT THAT S O NE FIGURE OR SOME PARTICULARS HAVE BEEN DISCLOSED BY ITSELF, EVEN IF IT TAKES OUT THE CASE FROM THE PURVIEW OF NON DISCLOSURE, IT CANNOT BY ITS ELF TAKE OUT THE CASE FROM THE PURVIEW OF FURNISHING INACCURATE PARTICULAR S. SIMILARLY, MERE OMISSION FROM THE RETURN OF AN ITEM OF RECEIPT DOES NEITHER AMOUNT TO CONCEALMENT NOR DELIBERATE FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE NORMAL CIRCUMSTANCES UNLESS AND UNTIL THERE IS SOME EVIDENCE TO SHOW OR SOME CIRCUMSTANCES FOUND FROM WHI CH IT CAN BE GATHERED THAT THE OMISSION WAS ATTRIBUTABLE TO AN I NTENTION OR DESIRE ON THE PART OF THE ASSESSEE TO HIDE OR CONCEAL THE INCOME SO AS TO AVOID THE IMPOSITION OF TAX THEREON. HOWEVER WHEN THE DEEMI NG PROVISIONS OF THE EXPLANATION 5A TO SECTION 271(1)(C) IS CONSI DERED THEN IT BECOMES CLEAR THAT IN CASES WHERE THE SEARCH OPERATI ONS HAVE TAKEN PLACE AFTER 1.4.2007 INCOMES DECLARED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A AND WHICH HAD NOT BEEN DISCLOSED IN THE RETURNS FILED PRIOR TO THE SEARCH ARE DEEMED TO BE CONCEALMENT WI THIN THE MEANING OF SECTION 271(1)(C). IN FACT EXPLANATION 5A TO SEC TION 271 (1)(C) READS AS UNDER: EXPLANATION 5A. WHERE, IN THE COURSE OF A SEA RCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME F OR ANY PREVIOUS YEAR; OR ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 5 - (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PAR T) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEA R HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FO R SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN. THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED B Y HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER C LAUSE (C) OF SUB- SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONC EALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS O F SUCH INCOME. ' 12. FURTHER, THE HON'BLE ITAT, AHMEDABAD 'B' BENCH IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX CC-1(3), AHMED ABAD VS. KIRIT DAHYABHAI PATEL REPORTED IN (2009) 121 1TD 159(AHD) (TM) HAS HELD THAT IMMUNITY FROM PENALTY U/S 271(1)(C) COULD NOT BE GRANTED TO THE ASSESSEE UNDER EXPLANATION 5(2) OF SECTION 271( 1)(C) THOUGH THE ASSESSEE HAD CLAIMED THAT THE DISCLOSURE MADE IN TH E RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A WAS VOLUNTARY A ND THE AO HAD ACCEPTED THE RETURNS FILED IN RESPONSE TO NOTICE U/ S 153A. WHILE RENDERING THE ABOVE DECISION THE HON'BLE ITAT AHMED ABAD HAS ALREADY CONSIDERED THE DECISIONS OF THE SUPREME COU RT IN THE CASES OF SUDARSHAN SILK SAREES VS. CIT REPORTED IN 300ITR 20 5(SC) AND CIT VS. SURESH CHANDRA MITTAL REPORTED IN 251 ITR 9(SC) . 13. WITH REFERENCE TO PENALTY PROCEEDINGS, THE FOLL OWING PROPOSITIONS CAN BE LAID DOWN ON THE BASIS OF LANGUAGE OF RELEVAN T SECTION OF THE IT ACT AND DECISIONS OF VARIOUS JUDICIAL AUTHORITIES: ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 6 - (1)WHEREVER THERE IS A DIFFERENCE BETWEEN THE RETUR NED AND ASSESSED INCOME, THERE IS AN INFERENCE OF CONCEALME NT AS A RULE OF LAW. (2)THE RESPONSIBILITY 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 FOU ND TO BE FALSE. (5)MERELY BECAUSE THE ASSESSEE IS NOT ABLE TO SUBST ANTIATE HIS EXPLANATION, PENALTY MAY NOT BE EXIGIBLE, IF SUCH E XPLANATION IS BONA FIDE AND ALL THE FACTS RELATING TO THE SAME AN D MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCL OSED BY HIM. 14. THE ABOVE REQUIREMENTS OF PENALTY ARC REQUIRED TO BE FULFILLED IN THE NORMAL COURSE BUT WITH THE INSERTION OF EXPLANAT ION 5A TO SECTION 271(1)(C), THE REQUIREMENT OF ESTABLISHING CONCEALM ENT AND THE CONDITIONS RELATED TO THE EXPLANATION OF THE ASSESS EE HAVE BEEN DONE AWAY WITH THE DEEMING FICTION CREATED BY THE EXPLANAT ION. ONCE CONCEALMENT IS TO BE PRESUMED AS PER THE STIPULATIO N IN THE ACT ITSELF THEN THE EXPLANATIONS OFFERED BY THE ASSESSEE TO CL AIM OTHERWISE CANNOT BE ENTERTAINED. 15. IT IS ALSO HELD THAT PENALTY PROCEEDINGS ARE IN DEPENDENT PROCEEDINGS. A PENALTY ORDER SHOULD CONTAIN REASONS FOR ITS CONCLUSION. BUT THIS DOES NOT MEAN THAT THE AO IS R EQUIRED TO BRING ON RECORD ADDITIONAL OR NEW EVIDENCE, WHICH WAS NOT P ART OF REGULAR ASSESSMENT. WHERE THE ASSESSMENT ORDER ITSELF CONTA INS FACTS, WHICH JUSTIFY AN INFERENCE OF CONCEALMENT, THE PENALTY OR DER IS SUSTAINABLE. THIS VIEW DERIVES SUPPORT FROM THE DECISION OF HON'B LE ALLAHABAD HIGH COURT IN THE OF RAJ RUMAR CHOURASIYA VS. CIT R EPORTED IN 288 ITR 329. 16. IN THIS CASE APPELLANT DID NOT FILE RETURNS FOR A.Y. 2004-05 TO 2009-10 WITHIN THE TIME LIMIT PRESCRIBED U/S. 139(1) OF THE I.T. ACT. RETURNS WERE FILED AFTER PROCEEDINGS U/S. 153C HAVE BEEN INITIATED IN THE CASE OF APPELLANT. IN SUCH A SITUATION, IT CANN OT BE HELD THAT APPELLANT VOLUNTARILY DECLARED HIS INCOME. THEREFO RE, PENALTY IS ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 7 - LEVIABLE U/S. 271(1)(C) ON THE RETURNED INCOME FOR VARIOUS YEARS AS FOLLOWS: A.Y. AMOUNT 2004-05 16,25,327/- 2005-06 18,07,874/- 2006-07 28,18,472/- 2007-08 28,43,400/- 2008-09 1,53,38,943/- 2009-10 92,87,215/- 17. APPELLANT HAS PLACED HIS RELIANCE ON VARIOUS JU DGEMENTS, BUT ALL THESE JUDGEMENTS PERTAIN TO PERIOD PRIOR TO INSERTI ON OF EXPLANATION 5A TO SECTION 271(1)(C). FOR ALL THESE YEARS EXPLAN ATION 5A WAS NOT ON THE STATUTE. THEREFORE, RELIANCE PLACED BY APPEL LANT ON THESE JUDGEMENTS IS OF NO HELP. IN FACT, IN THE CASE OF P REM ARORA, HON'BLE ITAT, DELHI BENCH OBSERVED THAT 'IN CASE OF A SEARCH INITIATED ON OR AFTER 1.6.2007 AS PROVIDED IN EXPLANATION 5A, THE ASSESSEE WILL BE LIABLE FOR PENA LTY U/S. 271(1)(C) BOTH IN RESPECT OF ASSETS AS WELL AS ANY I NCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUM ENTS OR TRANSACTIONS. BUT NO SUCH PROVISION RELATING TO ENT RIES WAS IN EXISTENCE IN EXPLANATION 5 PRIOR TO INSERTION OF EX PLANATION 5A IN SECTION 271(1) OF THE ACT. HENCE THE SCHEME OF A SSESSMENT TILL INSERTION OF EXPLANATION 5A AND SECTION 271AAA BY T HE FINANCE ACT, 2007 GAVE IMMUNITY TO THE ASSESSEE IN RESPECT OF UNDISCLOSED INCOME BASED ON ENTRIES RECORDED IN SEI ZED MATERIAL. EXPLANATION 5A SUBSTITUTED BY THE FINANCE ACT, 2009 W.R.E.F. 1.6.2007 IS REPRODUCED AS UNDER: . 18. THE THIRD ARGUMENT OF THE APPELLANT IS THAT NO PENALTY IS LEVIABLE IN RESPECT OF ADDITIONS MADE BY AO DURING THE COURS E OF ASSESSMENT. THIS INCLUDES FOLLOWING ADDITIONS MADE BY AO : A.Y. AMOUNT 2004-05 4,83,421/- 2005-06 2,12,588/- 2006-07 3,12,269/- 2007-08 3,66,083/- 2008-09 3,80,984/ 2009-10 4,86,865/- ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 8 - FROM THE ASSESSMENT ORDER IT IS FOUND THAT APPELLAN T DECLARED AGRICULTURAL INCOME FOR VARIOUS YEARS IN THE RETURN S FILED BY HIM. AO DID NOT ACCEPT THE ENTIRE AMOUNT OF AGRICULTURAL IN COME AND ESTIMATED THE AGRICULTURAL INCOME AT A LOWER FIGURE. ADDITIONS WERE MADE FOR DIFFERENT YEARS AS MENTIONED ABOVE TREATING THE SAM E AS UNEXPLAINED RECEIPTS. SINCE THESE ADDITIONS WERE MADE BY AO ON ESTIMATE BASIS, THEREFORE, THE SAME CANNOT BE SUBJECT MATTER OF PEN ALTY U/S. 271(1)(C). AO IS THEREFORE, DIRECTED TO EXCLUDE THESE AMOUNTS FOR THE PURPOSE OF COMPUTATION OF PENALTY U/S. 271(1)(C). 5. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS AGAINST AND IN SUPPORT OF THE IMPUGNED PENAL TIES. THERE IS HARDLY ANY DISPUTE THAT THE ASSESSING OFFICER HAS A PPLIED SECTION 271(1)(C) EXPLANATION 5A IN FACTS OF THE INSTANT CA SES SINCE THE IMPUGNED SEARCH IS DATED 08.12.2009 I.E., AFTER 01. 06.2007 SPECIFIED THEREIN. WE NOTICE FIRST OF ALL THAT THE CO-ORDINA TE BENCH OF THIS TRIBUNAL IN RAGUVEER SINGH VS. DCIT, ITA NO.522/HYD /2015 DECIDED ON 18.11.2015 THAT THE ABOVE EXPLANATION IS APPLICA BLE QUA SEARCHED ASSESSEE ONLY AND NOT IN CASE OF ANY THIRD PERSON. LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY ARGUES THAT BO TH THE AUTHORITIES BELOW HAVE RIGHTLY IMPOSED THE IMPUGNED PENALTIES IN VIEW OF THE ABOVE STATED SPECIFIC EXPLANATION INSER TED IN THE SPECIFIC STATUTORY PROVISION. THIS SUBMISSION FAILS TO IMPRE SS UPON US. IT HAS ALREADY COME ON RECORD THAT THE ASSESSING OFFICER I NITIATED SECTION 153C PROCEEDINGS AGAINST ASSESSEE. THE SAID PROVIS ION APPLIES IN CASE OF A NON-SEARCHED PERSON IF ANY MONEY, BULLION , JEWELLERY OR OTHER VALUABLE ARTICLE OR THING SEIZED OR REQUISITI ONED, BELONGS TO OR ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUIS ITIONED PERTAINS/PERTAINED TO, OR ANY INFORMATION CONTAINED THEREIN, RELATES ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 9 - TO SUCH A PERSON OTHER THAN THAT SEARCHED. THE REVE NUES ENDEAVOUR HEREIN IS TO GET THE IMPUGNED PENALTIES CONFIRMED I N VIEW OF THE SAID EXPRESSION IN SECTION 153C OF THE ACT. THESE TWO E XPRESSIONS OF BELONGS TO OR RELATES TO NO MORE EXIST IN THE A BOVE STATED EXPLANATION SINCE THE CRUCIAL WORD USED THEREIN IS OWNER OF. IN OTHER WORDS, THE SAME USES MUCH NARROWER AN EXPRESS ION THAN THE ABOVE TWO CATEGORIES. HONBLE JURISDICTIONAL HIGH C OURT IN SCA NO.13635 HAD AN OCCASION TO EXAMINE AMBIT AND SCOPE OF THE FORMER TWO EXPRESSIONS. THEIR LORDSHIPS REFERRED TO WEBST ERS THIRD NEW INTERNATIONAL DICTIONARY TO INTERPRET BELONG TO B E DESCRIBED AS TO HAVE A RELATION OR REFERENCE TO A PERSON OR A THING IN ABSENCE OF ANY SPECIFIC ILLUSTRATION IN THE ACT. HONBLE JURISDIC TIONAL HIGH COURT FURTHER DREW SUPPORT FROM P. RAMANATHA AIYER (THIRD EDITION) IN CONTEXT OF SECTION 400 OF THE INDIAN PENAL CODE TO STRENGTHEN ITS ABOVE CONCLUSION. IT IS THUS CLEAR THAT THE CRUCIA L EXPRESSION OWNER USED IN ABOVE EXPRESSION IS NOWHERE SATISFIED IN FA CTS OF THE INSTANT CASE WHEREIN WE FIND THAT NEITHER THE ASSESSING OFF ICER NOR THE CIT(A) GIVE ANY SPECIFIC FINDINGS REGARDING THE VAR IOUS TYPES OF ASSETS LIKE MONEY, BULLION, JEWELLERY FOLLOWED BY E NTRIES IN BOOKS OF ACCOUNTS ETC. AS OWNED AT ASSESSEES BEHEST, AS STI PULATED IN SUB- CLAUSE (I) & (II) OF THE ABOVE EXPLANATION TO SECTI ON 271(1)(C) OF THE ACT. 6. WE FURTHER NOTICE THAT A CO-ORDINATE BENCH HAS F URTHER DELETED IDENTICAL PENALTIES FOR BEING SUBJECT MATTER OF CIT (A)S COMMON ORDER AS DECIDED ON 21.09.2016 ON THE GROUND THAT THE ASS ESSEES REVISED RETURN STOOD ACCEPTED IN THE ASSESSMENTS FRAMED U/S 153C OF THE ACT. ITSSA NOS. 344 & 345/AHD/2013 SHAILESH D PRAJAPATI VS. ACIT A.Y. 2008-09 & 2009-10 - 10 - WE THUS FIND NO REASON TO AGREE WITH BOTH THE LOWER AUTHORITIES IN IMPOSING THE IMPUGNED PENALTIES. THE SAME ARE ACCO RDINGLY DELETED. 7. THESE TWO ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 22 ND DECEM BER , 2016 AT AHMEDABAD SD/- SD/- (PRAMOD KUMAR) (S .S. GODARA) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD, DATED 22/12/2016 *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. / / GUARD FILE. TRUE COPY / BY ORDER, TRUE COPY / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD