ACIT CEN CIR 24, MUMBAI V. SAMIR N BHOJWANI, MUMBAI

ITSSA 48/MUM/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8271 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 18-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI
• Assessee Lawyers: YOGESH A THAR
• Keywords: Unexplained expenditure; Question of law; Reasonable cause; Block assessment
• Section: 273B; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , ! '# $ $ $ $ . &'(, ) '# '* BEFORE SHRI DINESH KUMAR AGARWAL, JM AND SHRI B. RAMAKOTAIAH,AM (,- . -/0 ) './ I.T.(SS)A. NO. 48/MUM/2011 (BLOCK PERIOD 1.4.1996 TO 26.2.2003 ) A.C.I.T., CEN. CIR. 24 & 26, ROOM NO. 404, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. VS. SHRI SAMIR N. BHOJWANI, SAMIR COMPLEX, IST FLOOR, ST. ANDREWS ROAD, BANDRA (W), MUMBAI 400 050. #3 ) './ PAN : AABPB9150H ( 34 / // / APPELLANT ) .. ( 5634 / RESPONDENT ) 34 7 8 '/ APPELLANT BY : SHRI M. MURALI 5634 7 8 ' / RESPONDENT BY : SHRI YOGESH A. THAR ' 7 ,) / // / DATE OF HEARING : 11-7-2012 9&: 7 ,) / DATE OF PRONOUNCEMENT : 18-7-2012 / O R D E R PER DINESH KUMAR AGARWAL, J.M.: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 23-5-2011 PASSED BY THE LD. CIT(A)- 39, MUMBAI FOR THE BLOCK PERIOD 1-4-96 TO 26-2-2003. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS AS A BUILDER AND LANDLORD. THERE WAS A SEARCH AND IT(SS)A 48/M/2011 2 SEIZURE U/S 132 OF THE INCOME TAX ACT, 1961 (THE AC T). IN RESPONSE TO NOTICE ISSUED U/S 158BC OF THE ACT, THE ASSESSEE FILED RET URN DISCLOSING UNDISCLOSED INCOME OF RS. 16,00,000/-. HOWEVER, THE ASSESSMENT WAS COMPLETED AT AN UNDISCLOSED INCOME OF RS. 2,86,87,806/- VIDE ORDER DTD. 28-2-2005 PASSED U/S 158 BC OF THE ACT. ON APPEAL, THE LD. CIT(A) PARTL Y ALLOWED THE APPEAL. ON SECOND APPEAL BEFORE THE TRIBUNAL BY THE ASSESSEE A ND THE REVENUE, THE TRIBUNAL IN IT(SS)A NO. 231 AND 234/MUM/2006 FOR B. P. 1-4-1996 TO 26-2- 2003 ORDER DTD. 29-7-2009 WHILE DISMISSING THE REVE NUES APPEAL, PARTLY ALLOWED THE ASSESSEES APPEAL. PURSUANT TO THE ORD ER OF THE TRIBUNAL (SUPRA), THE A.O. PASSED AN ORDER GIVING EFFECT TO THE ORDER OF THE ITAT, DETERMINED THE UNDISCLOSED INCOME OF RS. 34,25,849/-. THUS, THERE IS AN ADDITION OF RS. 18,25,849/- TO THE RETURNED UNDISCLOSED INCOME OF T HE ASSESSEE AS UNDER:- SR NO. DESCRIPTION OF RELEVANT PAGE FROM WHERE THE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE HAS BEEN MADE RUPEES I PAGE NO. 42 OF ANNEXURE A/9 SEIZED FROM RESIDENCE 11,70,000 II PAGE NO. 18 OF ANNEXURE A/1 SEIZED FROM RESIDENCE 83,100 III PAGE NO. 40 OF ANNEXURE A/1 SEIZED FROM RESIDENCE. 13,300 IV PAGE NO. 46 OF ANNEXURE A/1 SEIZED FROM RESIDENCE. 35,890 V PAGE NO. 46 OF ANNEXURE A/1 SEIZED FROM RESIDENCE. 4,200 VI PAGE NO. 46 OF ANNEXURE A/3 SEIZED FROM OFFICE 75,000 VII PAGE NO. 74 OF ANNEXURE A/4 SEIZED FROM OFFICE 76,250 VIII REVERSE OF PAGE 174 OF ANNEXURE A/10 AND 4,64, 000 IT(SS)A 48/M/2011 3 PAGE 6 OF ANNEXURE A/3 SEIZED FROM OFFICE TOTAL (I TO VIII) 19,21,740 PAGE 14 OF ANNEXURE A/1 COVERED BY RETURN OF UNDISCLOSED INCOME 15,04,109 34,25,849 LESS : RETURNED UNDISCLOSED INCOME 16,00,000 ADDITIONS TO RETURNED UNDISCLOSED INCOME 18,25,849 WHILE COMPLETING THE ASSESSMENT FOR THE BLOCK PERIO D, THE A.O. HAS ALSO INITIATED PENALTY PROCEEDING U/S 158 BFA(2)OF THE A CT. ACCORDINGLY THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY PENALTY U/S 158 B FA(2) SHOULD NOT BE LEVIED. IN RESPONSE, IT WAS INTER ALIA SUBMITTED B Y THE ASSESSEE THAT ALL THE ITEMS OF ADDITIONS ARE ON ACCOUNT OF UNEXPLAINED EX PENDITURE AND ARE BASED ON THE PREMISE THAT THE ALLEGED UNEXPLAINED EXPENDITUR E HAD BEEN INCURRED (EVEN IN CASES WHERE THE NOTINGS REPRESENTED ESTIMATE OR PROPOSAL TO BE ACTED UPON) AND THE SAME HAD BEEN INCURRED OTHERWISE THAT OUT O F CASH IN HAND AVAILABLE WITH THE ASSESSEE AND THE SAME ARE WITHOUT ANY BASI S/CORROBORATIVE EVIDENCE. IT WAS FURTHER SUBMITTED THAT MERELY BECAUSE THE EX PLANATION OF THE ASSESSEE HAS BEEN REJECTED, IT DID NOT ATTRACT PENALTY. IT W AS FURTHER SUBMITTED THAT THE PENALTY IS DISCRETIONARY AND NOT MANDATORY. IT WAS, THEREFORE, SUBMITTED THAT THE PENALTY PROCEEDING INITIATED BE ADOPTED. HOWEVE R, THE A.O. DID NOT ACCEPT THE ASSESSEES EXPLANATION. THE A.O. OBSERVED THAT IT IS VERY CLEAR THAT THE ADDITIONS TO THE EXTENT OF RS. 18,25,849/- HAVE BEE N CONFIRMED BY THE TRIBUNAL. THE ASSESSEE HAS NOT PREFERRED AN APPEAL BEFORE THE HIGH COURT. THUS, THE ADDITIONS HAVE ATTAINED FINALITY. THE PROVISIONS O F SECTION 158 BFA(2) ARE IT(SS)A 48/M/2011 4 MANDATORY IN NATURE. FURTHER, THE A.O. WHILE OBSER VING THAT SINCE THE ASSESSEE HAS SHOWN A REASONABLE CAUSE FOR NON-INCLUSION OF I TEMS ASSESSED IN HIS RETURNED UNDISCLOSED INCOME, HELD THAT THE ASSESSEE IS LIABLE TO A MINIMUM PENALTY EQUIVALENT TO AMOUNT OF TAX LEVIABLE ON THE AMOUNT OF UNDISCLOSED INCOME ASSESSED IN EXCESS OF RETURNED INCOME AND AC CORDINGLY HE IMPOSED A PENALTY OF RS. 12,05,060/- VIDE ORDER DTD. 30-3-201 0 PASSED U/S 158 BFA(2) OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) WHILE RELYING ON THE D ECISION OF THE TRIBUNAL AND HONBLE HIGH COURTS WHEREIN IT HAS BEEN HELD THAT L EVY OF PENALTY U/S 158 BFA(2) OF THE ACT IS NOT MANDATORY AND KEEPING IN V IEW THAT THE A.O. HAS HELD THAT THERE IS A REASONABLE CAUSE FOR NOT INCLUDING THE ITEMS ASSESSED IN THE RETURN OF UNDISCLOSED INCOME FILED BY THE ASSESSEE, DELETED THE PENALTY IMPOSED BY THE A.O. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUND OF APPEAL:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED U/S 158BFA(2) OF THE I.T. ACT WHICH SPECIFIES THAT THE PENALTY SHALL BE IMPOSED O N THAT PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. 5. AT THE TIME OF HEARING THE LD. D.R. WHILE RELYIN G ON THE ORDER OF THE A.O. SUBMITS THAT SINCE THE ADDITION TO THE EXTENT OF RS . 18,25,849/- HAS BEEN CONFIRMED BY THE TRIBUNAL, THE A.O. WAS JUSTIFIED I N LEVYING THE PENALTY AND THE IT(SS)A 48/M/2011 5 LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE SAME. HE, THEREFORE, SUBMITS THAT THE PENALTY IMPOSED BY THE A.O. BE RESTORED. 6. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESS EE, AT THE OUTSET, SUBMITS THAT SINCE THE A.O. AT THE LAST PAGE OF THE IMPUGNE D PENALTY HAS HELD THAT SINCE THE ASSESSEE HAS SHOWN A REASONABLE CAUSE FOR NON-INCLUSION OF THE ITEMS ASSESSED IN HIS RETURNED UNDISCLOSED INCOME A MINIMUM PENALTY EQUIVALENT TO AMOUNT OF TAX LEVIABLE ON THE AMOUNT OF UNDISCLOSED INCOME ASSESSED IN EXCESS OF RETURNED INCOME IS BEING LEVI ED, THE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE PENALTY IMPOSED BY THE A. O. HE FURTHER SUBMITS THAT THE PENALTY IS DISCRETIONARY AND NOT MANDATORY, THE REFORE, THE PENALTY IS NOT LEVIABLE IN VIEW OF THE FOLLOWING DECISION:- 1. CIT VS. DODSAL LTD. (2009) 312 ITR 112 (BOM) 2. CIT VS. SATYENDRA KUMAR DOSI, (2009) 315 ITR 17 2 (RAJ) 3. SWARANJEET SINGH BAJA VS. ACIT, IT(SS) A NO. 7/ 2010 4. DCIT VS. YOGESH J LAKHANI, IT(SS)A NO. 8/2010 5. SMT. MALA DAYANITHI VS. DCIT, (2004) 91 ITD 46 (BANG) 6. SUHAS K. LUNKAD VS. DCIT, 82 TTJ 934 (PUNE) 7. ITO VS. JANTA BAZAR & STORRES (P.) LTD., 109 TT J 535 (MUM) 8. SURESH REDDY (CH.) VS. ACIT, (2009) 120 ITD 428 (CHENNAI) 9. SUJARA HIRE PURCHASE LTD. VS. ACIT, (2008) 305 ITR (AT) 39 (LUCK) 10. DCIT VS. SURESH KUMAR, (2005) 97 ITD 527 (KOL) 11. NEMICHAND VS. ACIT (INVESTIGATION), 93 TTJ (BA NG) 564 IT(SS)A 48/M/2011 6 HE, THEREFORE, SUBMITS THAT THE ORDER PASSED BY THE LD. CIT(A) IN DELETING THE PENALTY BE UPHELD. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THERE IS A DIFFERENCE OF RS. 18,25,849/- BETWEEN THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE AND FINALLY ASSESSED. WE FURTHER FIND THAT THE A.O. WH ILE OBSERVING THAT THE ASSESSEE HAS NOT PREFERRED AN APPEAL BEFORE THE HIG H COURT HAS IMPOSED PENALTY ON THE AMOUNT OF ADDITIONS SUSTAINED AT RS. 18,25,849/-. MERELY BECAUSE THE PART OF THE ADDITION HAS BEEN CONFIRMED BY THE TRIBUNAL AND THE ASSESSEE HAS NOT FILED APPEAL BEFORE THE HONBLE HI GH COURT DOES NOT MEAN THAT THE ASSESSEE IS LIABLE TO PENALTY U/S 158 BFA(2) OF THE ACT. ACCORDING TO THE A.O. THE PENALTY ON THE ADDITION OF RS. 18,25,849/- IS MANDATORY BUT DISCRETIONARY TO THE EXTENT AS TO WHETHER IT IS TO BE LEVIED AT 100% OR MAXIMUM AT 300% OF THE AMOUNT OF UNDISCLOSED INCOME. THE A. O. KEEPING IN MIND THE ABOVE HELD THAT SINCE THE ASSESSEE HAS SHOWN A R EASONABLE CAUSE FOR NON- INCLUSION OF THE ITEMS ASSESSED IN HIS RETURNED UND ISCLOSED INCOME A MINIMUM PENALTY EQUIVALENT TO AMOUNT OF TAX LEVIABLE ON THE AMOUNT OF UNDISCLOSED INCOME ASSESSED IN EXCESS OF RETURNED INCOME IS BEI NG LEVIED. THUS THE A.O. CONSIDERED REASONABLE CAUSE FOR NOT IMPOSING MAXIMU M PENALTY AND HENCE HE IMPOSED MINIMUM PENALTY IN THIS CASE. IT(SS)A 48/M/2011 7 8. HOWEVER, WE FIND THAT ALL THE ITEMS OF ADDITIONS AS MENTIONED IN THE TABLE APPEARING AT PAGE 2-3 OF THIS ORDER ARE ON ACCOUNT OF ALLEGED UNEXPLAINED EXPENDITURE. THE ASSESSEE HAS FILED HIS EXPLANATIO N, THE GIST OF WHICH IS MENTIONED IN THE IMPUGNED PENALTY ORDER AS UNDER: - WITH REGARD TO THE ADDITION OF RS. 11,70,000/- IT WAS CLAIMED BY THE `ASSESSEE THAT ACTUALLY NO EXPENDITURE HAD BEEN INC URRED AND THE NOTINGS WERE ON ACCOUNT OF ESTIMATE ONLY. THE TRIBUNAL HAS UPHELD THE ADDITION ON THE GROUND THAT NO EVIDENCE HAS BEEN PRODUCED AN D THE SPOT INSPECTION IS TOO LATE TO JUSTIFY INTERVENTION. WIT H REGARD TO THE ADDITION OF RS. 83,100/-, IT WAS CLAIMED BY THE ASSESSEE THAT T HE SAME WAS OUT OF SUFFICIENT CASH AVAILABLE WITH THE ASSESSEE. WITH REGARD TO THE ADDITION OF RS. 13,300/- ON ACCOUNT OF UNEXPLAINED EXPENDITURE FOR PURCHASE OF MOBILE PHONE, IT WAS CLAIMED BY THE ASSESSEE THAT T HE SAME IS OUT OF FAMILY DRAWINGS. WITH REGARD TO THE ADDITION OF RS . 35,890/-, IT WAS EXPLAINED BY THE ASSESSEE THAT HE HAS NOT INCURRED SUCH EXPENDITURE BUT IT IS ONLY A NOTING OF THE ESTIMATE COLLECTED BY HI S STAFF , THE QUESTION OF RECORDING THIS EXPENSE IN THE BOOKS OF ACCOUNT DOES NOT ARISE. WITH REGARD TO THE ADDITION OF RS. 4200/-, IT WAS EXPLAI NED BY THE ASSESSEE THAT CONSIDERING THE FACT, IT IS OUT OF CASH IN HAND AVA ILABLE WITH THE ASSESSEE, THE EXPENDITURE UNDER CONSIDERATION CANNOT BE REGAR DED AS UNEXPLAINED EXPENDITURE. WITH REGARD TO THE ADDITION OF RS. 75 ,000/-, IT WAS STATED BY THE ASSESSEE THAT THE PAYMENT HAS BEEN MADE OUT OF CASH IN HAND WHICH WAS WITHDRAWN FROM THE BANK FROM TIME TO TIME. WIT H REGARD TO THE ADDITION OF RS. 76,250/-, IT WAS EXPLAINED BY THE A SSESSEE THAT IT WAS OUT OF CASH IN HAND AVAILABLE WITH THE ASSESSEE. WITH REGARD TO THE ADDITION IT(SS)A 48/M/2011 8 OF RS. 4,64,000/-, IT WAS EXPLAINED BY THE ASSESSEE THAT THE SAME IS OUT OF CASH IN HAND AVAILABLE WITH THE ASSESSEE. 9. IN CIT VS. SATYENDRA KUMAR DOSHI AND ANOTHER [20 09) 315 ITR 172 (RAJ.) IT HAS BEEN HELD AS UNDER:- (PAGE 177 & 178, PLACIT UM 10,11,12 & 13):- A BARE PERUSAL OF SECTION 158BFA(2) GOES TO SHOW T HAT BY VIRTUE OF THE SAID PROVISION, THE ASSESSING OFFICER OR THE COMMIS SIONER (APPEALS) IS VESTED WITH THE POWER TO DIRECT THE ASSESSEE TO PAY THE PE NALTY AS SPECIFIED IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSI NG OFFICER UNDER CLAUSE (C) OF SECTION 158BC, HOWEVER, THE ASSESSING OFFICER OR THE COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT EMPOWERED TO IMPOSE THE PENALTY IN RESPECT OF THE PERSON WHO FULFILS THE CONDITIONS ENUMERATED IN TH E FIRST PROVISO TO SECTION 158BFA. IT IS TO BE NOTICED THAT IN THE MAIN PROVIS ION PROVIDING FOR IMPOSITION OF PENALTY, THE WORD ' MAY' HAS BEEN USED. IT IS SET TLED LAW THAT THE PENAL PROVISION IN THE TAXING STATUTES SHALL BE CONSTRUED STRICTLY. FROM THE PLAIN READING OF SECTION 158BFA(2), IT DOES NOT APPEAR T HAT IN ALL THE CASES WHERE THE UNDISCLOSED INCOME IS DETERMINED BY THE ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 158BC, THE IMPOSITION OF PENALTY AS SPECIF IED UNDER SECTION 158BFA SHALL FOLLOW AS A NATURAL CONSEQUENCE THEREOF. IN O UR CONSIDERED OPINION, IN TERMS OF SECTION 158BFA, A DISCRETION IS VESTED WI TH THE ASSESSING OFFICER TO LEVY THE PENALTY IN RESPECT OF THE UNDISCLOSED INC OME BUT IT CANNOT BE INFERRED FROM THE SAID PROVISION THAT THE LIABILITY FOR PEN ALTY IS AUTOMATIC. OF COURSE, THE PROVISO TO SECTION 158BFA(2) ENUMERATES THE CIRCUM STANCES WHEREIN NO PENALTY IS LEVIABLE BUT FROM THAT ALSO IT CANNOT BE INFERR ED THAT THE ABSENCE OF THE CIRCUMSTANCES ENUMERATED WILL ATTRACT THE PROVISION OF PENALTY AUTOMATICALLY. THE CONTENTION RAISED BY THE LEARNED COUNSEL ON TH E STRENGTH OF THE PROVISIONS OF SECTIONS 273B AND 158BFA(3) IS ALSO D EVOID OF ANY MERIT. OF COURSE, AS PER THE PROVISION OF SECTION 273B NO PEN ALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, ON THEIR FAILURE REFERRED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REA SONABLE CAUSE FOR THE SAID FAILURE. BUT THEN THE SAID PROVISION IN NO MANNER L EADS TO THE PRESUMPTION THAT IN RESPECT OF THE CASES OTHER THAN COVERED BY SECTI ON 273B FOR ANY FAILURE OR VIOLATION IMPOSITION OF THE PENALTY IS AUTOMATIC. E ACH PROVISION OF PENALTY HAS TO BE CONSTRUED INDEPENDENTLY KEEPING IN VIEW THE LAN GUAGE EMPLOYED THEREIN. FOR THE AFOREMENTIONED REASONS, WE ARE OF THE CONS IDERED OPINION THAT THE LEARNED INCOME-TAX APPELLATE TRIBUNAL HAS COMMI TTED NO ERROR IN HOLDING THAT THE PROVISIONS OF SECTION 158BFA(2) PROVIDING FOR IMPOSITION OF PENALTY IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 158BC IS DISCRETIONARY AND NO T MANDATORY. IT(SS)A 48/M/2011 9 MOREOVER, IN THE INSTANT CASE, AFTER DUE EXAMINATI ON OF THE FACTS AND THE MATERIAL ON RECORD, THE COMMISSIONER OF INCOME-TAX (APPEALS) AND LEARNED INCOME-TAX APPELLATE TRIBUNAL HAVE CONCURRENTLY FOU ND THAT THE DIFFERENCE OF THE UNDISCLOSED INCOME ASSESSED AND THE UNDISCLOSED INCOME SHOWN IN THE RETURN DOES NOT RELATE TO THE BLOCK PERIOD AS SUCH. THE INCOME-TAX APPELLATE TRIBUNAL HAS ARRIVED AT THE FINDING THAT THE ASSESS EES HAD CLAIMED TO GIVE REDUCTION OF AMOUNTS CALCULATED ON REASONABLE BASIS ON ACCOUNT OF THEIR OPENING CAPITAL AS ON APRIL 1, 1995, FROM THE UNACC OUNTED MONEY LENDING BUSINESS PRIOR TO BLOCK PERIOD OUT OF THE UNDISCLOS ED INCOME DETERMINED IN THEIR HANDS. THE LEARNED INCOME-TAX APPELLATE TRIBUNAL HA S RIGHTLY HELD THAT THE ADDITION IS RESULT OF ESTIMATION OF THE OPENING CAP ITAL INVOLVED PRIOR TO THE BLOCK PERIOD AND IN THE BLOCK ASSESSMENTS WHILE COMPUTING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD, CAPITAL POSSESSED BY THE ASS ESSEES PRIOR TO THE BLOCK PERIOD AS REVEALED FROM THE LEDGER AND THE MATERIAL SEIZE D DURING THE SEARCH COULD NOT BE TREATED AS UNDISCLOSED INCOME OF THE FIRST ASSE SSMENT YEAR IN THE BLOCK PERIOD. THUS, IN VIEW OF THE CONCURRENT FINDING OF FACTS ARRIVED AT BY THE TWO APPELLATE AUTHORITIES, AS AFORESAID, IN OUR CONSID ERED OPINION, NO SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION OF THIS C OURT IN THESE APPEALS. 10. IN CIT VS. DODSAL LTD. (2009) 312 ITR 112 (BOM) IT HAS BEEN HELD AS UNDER (HEAD NOTE) : HELD, DISMISSING THE APPEAL, THAT THE AUTHORITIES B ELOW HAD RECORDED REASONS FOR EXERCISE OF THEIR DISCRETION. THE REVEN UE HAD NOT CHALLENGED THE FINDING OF FACT AS TO THE EXERCISE OF DISCRETIONARY POWER. THE DECISION OF THE TRIBUNAL THAT SECTION 158BFA(2) WAS DIRECTORY AND N OT MANDATORY WAS TO BE UPHELD. 11. RESPECTFULLY FOLLOWING THE RATIO OF THE ABOVE D ECISIONS AND KEEPING IN VIEW THAT THE ASSESSEES EXPLANATION WAS NOT FOUND TO BE FALSE OR UNTRUE AND KEEPING IN VIEW THAT THE A.O. WHILE IMPOSING THE PE NALTY AT MINIMUM I.E. 100% HAS ACCEPTED THE REASONABLE CAUSE THOUGH FOR LIMITE D PURPOSE, WE ARE OF THE VIEW THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE PENALTY U/S 158BFA(2) IS NOT LEVIABLE AND ACCORDINGLY THE ORDER PASSED BY THE LD. CIT(A) IN DELETING THE PENALTY IS UPHELD. THE GROUNDS TAKEN B Y THE REVENUE ARE, THEREFORE, REJECTED. IT(SS)A 48/M/2011 10 12. IN THE RESULT, REVENUES APPEAL STANDS DISMISSE D. ; ,< =# 7 );= 7 =, 0> ORDER PRONOUNCED IN THE OPEN COURT ON 18-7-2012 . 7 9&: ) < 18-7-2012 & 7 E SD/- SD/- ( B. RAMAKOTAIAH ) ( DINESH KUMAR AGARWAL ) ) '# / ACCOUNTANT MEMBER ! '# / JUDICIAL MEMBER MUMBAI ; DATED 18-7-2012 .!.'./ . R.K. , SR. PS 7 5!,-F F:, 7 5!,-F F:, 7 5!,-F F:, 7 5!,-F F:,/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 5634 / THE RESPONDENT. 3. G () / THE CIT(A)-39, MUMBAI 4. G / CIT CITY CENTRAL II MUMBAI. 5. F/E 5!,! , , / DR, ITAT, MUMBAI E 6. EHI J / GUARD FILE. ' ' ' ' / BY ORDER, '6F, 5!, //TRUE COPY// K KK K/ // /'0 = '0 = '0 = '0 = (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI