Mr. Vimal Dhall, Ludhiana v. CIT, Ludhiana

ITA 358/CHANDI/2013 | 2009-2010
Pronouncement Date: 21-04-2014 | Result: Allowed

Appeal Details

RSA Number 35821514 RSA 2013
Assessee PAN ABMPD5923E
Bench Chandigarh
Appeal Number ITA 358/CHANDI/2013
Duration Of Justice 1 year(s) 17 day(s)
Appellant Mr. Vimal Dhall, Ludhiana
Respondent CIT, Ludhiana
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 21-04-2014
Date Of Final Hearing 12-03-2014
Next Hearing Date 12-03-2014
Assessment Year 2009-2010
Appeal Filed On 03-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R. SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NO. 357/CHD/2013 ASSESSMENT YEAR : 2009-10 AMARJEET DHALL VS. CIT CENTRAL CIRCLE 2550 DUGRI URBAN ESTATE LUDHIANA PHASE I LUDHIANA ABMPD 5923 E ITA NO. 358/CHD/2013 ASSESSMENT YEAR : 2009-10 VIMAL DHALL VS. CIT CENTRAL CIRCLE 2551 DUGRI URBAN ESTATE LUDHIANA PHASE I LUDHIANA ACMPD 3379 B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SARABJIT GARG RESPONDENT BY: SHRI AMARVEER SINGH DATE OF HEARING 12.3.2014 DATE OF PRONOUNCEMENT 21.4.2014 O R D E R PER T.R.SOOD A.M THESE APPEALS OF THE ASSESSEES ARE DIRECTED AGAINST THE ORDER DATED 30.1.2013 OF THE LD CIT LUDHIANA. IN BOTH TH ESE APPEALS ORIGINALLY DETAILED GROUNDS WERE FILED AND THEREFOR E THE LD. COUNSEL FOR THE ASSESSEE HAD BEEN DIRECTED TO FILE CONCISE GROUNDS OF APPEAL. IN RESPONSE THE FOLLOWING REVISED GROUNDS HAVE BEEN FILED: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW LEARNED CIT ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT F OR NON INITIATION OF PENALTY PROCEEDINGS DESPITE THE CLEAR CUT RULING OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN CASE OF CIT-1 LUDHIANA V. SUBHASH KUMAR J AIN [2011] 199 TAXMAN 39 [P&H] THAT AFTER EXAMINING THE RECORDS OF ASSESSMEN T IN EXERCISE OF POWERS U/S 263 WHERE THE CIT FINDS THAT THE AO HAD NOT INITIA TED PENALTY PROCEEDINGS HE CANNOT DIRECT THE AO TO INITIATE PENALTY PROCEEDING S. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE4 AND IN LAW LEARNED CIT ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT F OR NON INITIATION OF PENALTY PROCEEDINGS DESPITE FACT ASSESSMENT U/S 153 A HAS B EEN MADE AFTER OBTAINING MANDATORY STATUTORY APPROVAL U/S 153 D FROM ADDL. C IT; SURRENDER WAS MADE SUBJECT TO NO PENAL ACTION; THE WORD USED IN SECTIO N 271AAA(1) IS MAY GIVING COMPLETE DISCRETION TO AO TO TAKE OR NOT TO TAKE AC TION UNDER THIS SECTION AND EVEN COMPLIED WITH THE PROVISIONS OF SECTION 271AAA (2) WHICH DEBARS AO FROM 2 TAKING ACTION U/S 271AAA(1) AND IN INTERPRETING THA T POWER EXERCISED BY JCIT U/S 144 A IS SAME U/S 153 D OF THE ACT. 3. THAT LD. CIT HAS GROSSLY ERRED IN CANCELLING THE ASSESSMENT ORDER WITH THE DIRECTIONS TO REFRAME THE ORDER IN ACCORDANCE WITH THE PROVISIONS OF THE I.T. ACT. NON ISSUANCE OF SPECIFIC DIRECTIONS FOR ASSESSMENT TO BE FRAMED CLEARLY PROVES THAT IT IS A CASE OF ONLY CHANGE OF OPINION AND ASS ESSMENT FRAMED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF REVEN UE. ITA NO. 357/CHD/2013 2 BRIEF FACTS OF THE CASE ARE THAT A SEARCH WAS CON DUCTED IN THE PREMISES OF THE ASSESSEE ALONG WITH OTHER GROUP CON CERNS. DURING SEARCH THE ASSESSEE SURRENDERED A SUM OF RS. 75 LAK HS WHICH WAS STATED TO HAVE BEEN EARNED FROM SPECULATIVE TRANSAC TIONS. IN FACT IN THIS GROUP A SUM OF RS. 7 CRORES WAS SURRENDERED. THE ASSESSEE ALONG WITH OTHER MEMBERS OF THE GROUP HONOURED THE SURRENDER AND FILED RETURN U/S 153A FOR A SUM OF RS. 8130958/-. T HIS INCOME WAS ACCEPTED BY THE ASSESSING OFFICER AFTER MAKING A SM ALL ADDITION OF RS. 9000/- ON ACCOUNT OF NON ALLOWABILITY OF DEDUCT ION U/S 24(A). THE COMMISSIONER EXAMINED THE ASSESSMENT RECORDS AN D NOTICED THAT THE ASSESSEE HAD SURRENDERED A SUM OF RS. 75 L AKHS WHICH WAS STATED TO HAVE BEEN EARNED FROM SPECULATION TRANSAC TIONS IN THE COMMODITIES FOR WHICH NO RECORD WAS MAINTAINED. AC CORDING TO THE COMMISSIONER ADDITIONAL INCOME DISCLOSED WAS NOT CO VERED U/S 132(4) AND THEREFORE PENAL PROVISION OF SEC 271AAA WERE ATTRACTED. HE FURTHER NOTED THAT THE ASSESSING OFFICER HAS NOT INITIATED PENALTY PROCEEDINGS. HE ALSO NOTED THAT SINCE THE INCOME OF THE ASSESSEE EXCEEDED PRESCRIBED LIMIT MENTIONED IN S 44AA AND T HEREFORE THE ASSESSEE WAS REQUIRED TO MAINTAIN THE ACCOUNTS NON- MAINTENANCE OF SUCH ACCOUNTS WOULD ATTRACT PENALTY U/S 271A WHICH HAS ALSO NOT BEEN INITIATED. IN VIEW OF THESE FACTS THE ASSESSM ENT ORDER WAS FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF THE REVENUE. SHOW CAUSE NOTICE WAS ISSUED. 3 IN RESPONSE TO SHOW CAUSE NOTICE IT WAS CONTENDED THAT AS PER THE EXP (A) TO S 263(1) ONLY THOSE CASES WERE COVER ED UNDER THE 3 PROVISIONS OF SECTION 263 WHERE ASSESSMENT IS MADE BY THE ASSESSING OFFICER HIMSELF OR ON THE BASIS OF DIRECT IONS ISSUED BY THE JCIT U/S 144A OR THE ORDERS PASSED BY THE JCIT IN E XERCISE OF THE POWERS PERFORMING THE FUNCTIONS OF THE ASSESSING OF FICER. SINCE THE PRESENT ASSESSMENT WAS MADE U/S 153A WITH THE PRIOR APPROVAL OF JCIT/ADDL CIT U/S 153D. THE SAME COULD NOT HAVE BE EN REVIEWED AND REVISED U/S 263. IT WAS FURTHER SUBMITTED THAT PENALTY PROVISIONS OF S 271A AND S 271AAA USED THE EXPRESSION MAY WH ICH MEANS THE ASSESSING OFFICER HAS BEEN GIVEN THE DISCRETION S TO LEVY OR NOT TO LEVY THE PENALTY AND THEREFORE IF THE ASSESSING OFF ICER DOES NOT INITIATE PENALTY PROCEEDINGS SUCH ORDER IS PERFECTL Y IN ACCORDANCE WITH LAW AND DOES NOT REQUIRE ANY INTERFERENCE U/S 263 BECAUSE THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIE W. IN ANY CASE PENALTY PROCEEDINGS ARE INDEPENDENT FROM ASSESSMENT PROCEEDINGS AND THEREFORE ASSESSMENT ORDER CANNOT BE HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE FOR NOT INITIATING PENALTY. IN THIS REGARD RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: SUDERSHAN TALKIES 201 ITR 289 (DEL); J.K. DCOST A 133 ITR 7 KESHRIMAL PARASMAL 157 ITR 484 (RAJ); SURENDRA PRASAD SINGH 173 ITR 610 (GAU); LINOTYPE & MACHINERY LTD. 192 ITR 337 (CAL); C.R.K . SWAMY 254 ITR 158 (MAD.) CIT LUDHIANA VS. SUBHASH KUMAR JAIN AS REPO RTED IN [2011] 199 TAXMAN 39/355 364 4 THE LD. COMMISSIONER EXAMINED THE SUBMISSIONS AND OBSERVED THAT THE DEFINITION OF THE ORDER PASSED GIVEN IN EX PLANATION (A) TO S 263 IS OF INCLUSIVE NATURE AND THEREFORE REFERENCE TO THE ASSESSMENT ORDER IN EXP (A)(I) AND (A)(II) DOES NOT PLACE ANY RESTRICTION ON THE POWER OF COMMISSIONER TO ANY ORDER WHICH CAN BE REV ISED U/S 263. HE FURTHER EXAMINED THE MATTER AND DISTINGUISHED TH E DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN CASE OF CI T V. SUBHASH KUMAR JAIN (SUPRA) BECAUSE THE FACTS WERE DIFFERENT . HE ALSO REFERRED TO THE DECISION OF HON'BLE DELHI HIGH COUR T IN CASE OF ADDL CIT VS. JK DCOSTA 133 ITR 7 WHEREIN IT WAS OBSERV ED THAT THE ASSESSMENT COULD NOT BE SAID TO BE ERRONEOUS AND PR EJUDICIAL TO THE 4 INTEREST OF THE REVENUE BECAUSE FAILURE OF THE ASSE SSING OFFICER TO INITIATE LEVY OF PENALTY WOULD NOT BE RELATED TO T HE ASSESSMENT. HE OPINED THAT INITIATION OF PENALTY PROCEEDINGS ON SU CH ASSESSMENT WAS PART OF THE ASSESSMENT BECAUSE INITIATION IS NE CESSARY INGRADIENT FOR LEVY OF PENALTY. IN THIS REGARD HE REFERRED TO THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN CASE O F CIT VS. SURINDER PRASHAD AGGARWAL 275 ITR 113. THEREAFTER HE OBSERVED THAT PASSING OF AN ORDER FOR LEVY OF PENALTY U/S 27 1AAA WAS ALTOGETHER A DIFFERENT ACT THEN THE MERE INITIATION OF PENALTY PROCEEDINGS DURING THE ASSESSMENT PROCEEDINGS. IN THIS BACKGROUND ULTIMATELY FOLLOWING THE DECISION OF CIT VS. SURIN DER PRASHAD AGGARWAL (SUPRA) HE HELD THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND OBSERVED AT PARA 19 AS UNDER: IN VIEW OF THE ABOVE DISCUSSION THERE IS NO DISPU TE REGARDING APPLICABILITY OF PROVISIONS OF SECTION 263 OF INCO ME -TAX ACT 1961 AND IT IS CLEAR THAT IN THIS CASE NON INITIATION OF PENALT IES STATED ABOVE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER RESULTED IN AN ASSESSMENT ORDER WHICH IS ERRONEOUS AND PREJUDICIAL TO THE INT EREST OF THE REVENUE. ACCORDINGLY TH ASSESSMENT ORDER IS CANCELLED AND TH E ASSESSING OFFICER IS DIRECTED TO REFRAME THE ORDER IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. 5 BEFORE US THE LD. COUNSEL FOR THE ASSESSEE REITE RATED THE SUBMISSIONS MADE BEFORE THE LD. COMMISSIONER. REFE RENCE WAS MADE TO VARIOUS DECISIONS WHICH WERE RELIED BEFORE HIM. HE SPECIFICALLY POINTED OUT THAT IN CASE OF CIT VS. SU RINDER PRASHAD AGGARWAL (SUPRA) HON'BLE ALLAHABAD HIGH COURT NOTED THE DIVERGENT VIEWS EXPRESSED BY VARIOUS COURTS INCLUDING IN THE CASE OF ADDL CIT VS. JK DCOSTA (SUPRA). IT WAS ALSO NOTED THAT SLP WAS DISMISSED BY THE HON'BLE SUPREME COURT IN CASE OF ADDL CIT VS . JK DCOSTA (SUPRA). IT WAS ALSO NOTED THAT THIS DECISION HAS BEEN FOLLOWED BY VARIOUS HIGH COURTS BUT STILL HON'BLE ALLAHABAD HIG H COURT PREFERRED TO FOLLOW THE DECISION OF HON'BLE MADHYA PRADESH HI GH COURT IN CASE OF ADDL CIT VS. INDIAN PHARMACEUTICALS 123 IT R 874. IN FACT 5 HIGH COURT WHILE CONCLUDING HAS CLEARLY OBSERVED TH AT THEY HAVE PREFERRED THE VIEW TAKEN BY HON'BLE MADHYA PRADESH HIGH COURT IN CASE OF ADDL CIT VS. INDIAN PHARMACEUTICALS (SUPRA) . HE SUBMITTED THAT IF THE DECISION BY HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. SUBHASH KUMAR JAIN (SUPRA) IS C LEARLY PERUSED THEN PARA 11 OF THE DECISION WOULD SHOW THAT HON'BL E PUNJAB AND HARYANA HIGH COURT PREFERRED TO FOLLOW THE DECISIO N OF HON'BLE DELHI HIGH COURT HON'BLE RAJASTHAN HIGH COURT AND HON 'BLE CALCUTTA HIGH COURT AND SPECIFICALLY POINTED OUT THAT THEY WERE UNABLE TO AGREE WITH THE VIEW OF HON'BLE MADHYA PRADESH HIGH COURT. THEREFORE THIS TRIBUNAL WAS FULLY BOUND TO FOLLOW T HE DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT . 6 ON THE OTHER HAND THE LD. D.R. FOR THE REVENUE P OINTED OUT THAT THE DECISION OF HON'BLE PUNJAB AND HARYANA HIG H COURT IN CASE OF CIT VS. SUBHASH KUMAR JAIN (SUPRA) WAS TOTALLY D ISTINGUISHABLE. IN THAT CASE THE ASSESSEE COULD NOT EXPLAIN THAT AG RICULTURAL INCOME AND THEREFORE ENQUIRIES WERE GOT CONDUCTED BY THE I NSPECTOR WHO IN HIS REPORT POINTED OUT VARIOUS DEFECTS IN THE DOCUM ENTS FURNISHED BY THE ASSESSEE. THEREAFTER THE ASSESSEE OFFERED TO SU RRENDER CERTAIN AMOUNTS SUBJECT TO NO PENAL ACTION U/S 271(1)(C). THIS OFFER WAS ACCEPTED BY THE ASSESSING OFFICER AND ASSESSMENT WA S FRAMED ACCORDINGLY WITHOUT INITIATING ANY PENALTY U/S 2711 )(C). THEREAFTER THE LD. COMMISSIONER IN EXERCISE OF HIS POWERS U/S 263 STATED THAT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE ASSESSING OFFICER T O REFRAME THE ASSESSMENT AFTER CHARGING PENALTY U/S 271(1)(C). H ON'BLE HIGH COURT QUASHED THE ORDERS U/S 263 BY OBSERVING THAT OFFER WAS MADE BY THE ASSESSEE SUBJECT TO NO PENAL ACTION AND SINCE THE R EVENUE DID NOT HAVE SPECIFIC EVIDENCE TO SHOW THAT THE INCOME HAS BEEN CONCEALED AND THEREFORE NO PENALTY COULD HAVE BEEN IMPOSED. HOWEVER WHEN 6 THE ASSESSEE HAS HIMSELF SURRENDERED A SUM OF RS. 7 5 LAKHS IN THE CASE BEFORE US THEN THE ASSESSEE HAS DEFINITELY CON CEALED THE PARTICULARS OF HIS INCOME. IN THIS REGARD HE REFER RED TO THE PROVISIONS OF SECTION 271AAA AS WELL AS 271A WHICH CLEARLY MANDATES THE LEVY OF PENALTY AND THEREFORE ASSESSIN G OFFICER WAS DUTY BOUND TO INITIATE PENALTY PROCEEDINGS BECAUSE INITIATION IS MANDATORY FOR LEVY OF PENALTY. HE ALSO SUBMITTED T HAT OTHER DECISIONS RELIED ON BY THE COUNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE AND IN THIS REGARD HE PARTICULARLY REFERRED TO THE DECISION OF HON'BLE SUPREME COURT IN CASE OF CIT VS . SUN ENGINEERING WORKS P LTD 198 ITR 297 (S.C) WHEREIN IT IS CLEARLY OBSERVED THAT ONLY THE JUDGMENT WHICH IS IDENTICAL TO THE FACTS OF THE CASE CAN BE RELIED FOR PARTICULAR PROPOSITION. 7 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFU LLY AND FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. IN CASE OF ADDL CIT VS. JK DCOSTA (SUPRA) ASSESSING O FFICER COMPLETED THE ASSESSMENT BUT HE DID NOT TOOK FOLLOWING ACTION . (I) HE DID NOT SAY ANYTHING IN THE ORDER ABOUT THE CHARGING OF INTEREST U/S 139(1) FOR THE DELAY IN THE SUBMISSION OF THE RETUR NS BY THE ASSESSEE; (II) HE DID NOT DEAL WITH THE QUESTION OF THE CHARG EABILITY OF INTEREST U/S 217 FOR THE FAILURE OF THE ASSESSEE TO FILE AN ESTIMATE OF ADVANCE TAX AND PAY THE TAX THEREON IN SO FAR AS THE ASSESSMENT YEAR 1965- 66 WAS CONCERNED; (III) HE DID NOT MENTION ANYTHING IN THE ASSESSMENT ORDER REGARDING THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(A) OF THE INCOME -TAX ACT 1961 THOUGH THE RETURNS HAD BEEN FILED BEYOND TIME; AND (IV) SO FAR AS THE ASSESSMENT YEAR 1965-66 IS CONC ERNED HE DID NOT MENTION ANYTHING IN THE ASSESSMENT ORDER ABOUT THE INITIATI ON OF PENALTY PROCEEDINGS U/S 273(B) FOR NON PAYMENT OF ADVANCE TAX FOR THE ABOVE YEAR. IN VIEW OF NOT TAKING ANY ACTION BY THE ASSESSING O FFICER IN RESPECT OF ABOVE ISSUES THE ADDL CIT WAS OF THE OPINION TH AT THE ORDER PASSED BY THE ITO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE.. HE SET ASIDE THE ORDER AND DIRECTED THE ASSESSING OFFICER TO CHARGE INTEREST U/S 139 AND 217 AND ALSO TO INITIATE PENALTY PROCEEDINGS U/S 271(1)(A) 273(B). THE ASSESSEE TO OK THE MATTER TO 7 THE TRIBUNAL. THE TRIBUNAL POINTED OUT THAT POWERS U/S 263 CONTAINS CERTAIN CONDITIONS AND LIMITATIONS AND UNDER THAT S ECTION THE COMMISSIONER HAS POWER ONLY TO EXAMINE THE ASSESSME NT ORDER AND HE COULD NOT TRAVEL BEYOND THE ASSESSMENT PROCEEDIN GS. THEREFORE THE TRIBUNAL UPHELD THE PORTION OF THE ORDER WITH R ESPECT TO LEVY OF INTEREST BUT QUASHED THE ORDER IN RESPECT OF INITIA TION OF PENALTY PROCEEDINGS. HON'BLE HIGH COURT ADJUDICATED THIS I SSUE AS UNDER: WE HAVE HEARD MR. WAZIR SINGH LEARNED COUNSEL FOR HT DEPARTMENT BUT WE ARE OF OPINION THAT THE CONCLUSION REACHED BY THE TRIBU NAL IS THE ONLY POSSIBLE CONCLUSION THAT CAN BE ARRIVED AT IN THE CIRCUMSTAN CES OF THE CASE. SECTION 263 ENABLES THE COMMISSIONER TO CALL FOR AN EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND IF HE CONSIDERS THAT ANY ORDER PA SSED THEREIN BY THE ITO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE IN TEREST OF THE REVENUE HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH ENQUIRIES AS HE DEEMED NECE SSARY PASS SUCH ORDERS THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY. IN THE PRESENT CASE THE ADDL COMMISSIONER CALLED FOR THE RECORD OF THE ASSESSMEN T PROCEEDINGS AND IT IS ALSO CLEAR FROM THIS ORDER THAT IN HIS VIEW THE ASS ESSMENT ORDERS PASSED BY THE ITO ON 28 TH MARCH 1969 WERE ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF THE REVENUE. AS THE TRIBUNAL HAS RIGHTLY POINTED OUT HI S JURISDICTION WAS CONFIRMED TO THE PROCEEDINGS OF ASSESSMENT AND THE ASSESSMENT ORDER AND HE HAD FULL POWERS TO REVISE THE ASSESSMENT ORDER IN REGARD TO ANY ERROR HE MAY DISCOVER THEREIN WHICH IS PLAINT OF THE ADDL COMMISSIONER IS THAT WHILE COMPLETING THE ASSESSMENT AND PASSING THE ASSESSMENT ORDERS THE I TO HAD FAILED TO TAKE STEPS TO CHARGE INTEREST AND THAT HE HAD ALSO FAILE D TO INITIATE PENALTY PROCEEDINGS AGAINST THE ASSESSEE. THE QUESTION THE REFORE IS WHETHER THESE TWO ASPECTS OF THE MATTER FORMED PART OF THE PROCEE DINGS WHICH WERE BEING EXAMINED BY THE COMMISSIONER AND ALSO WHETHER THESE ARE TWO ASPECTS WHICH FORM AN INTEGRAL PART OF THE ASSESSMENT ORDERS WHIC H THE COMMISSIONER IS SEEKING TO REVISE. THE TRIBUNAL HAS HELD SO FAR AS THE QUESTION OF INTEREST IS CONCERNED THAT IT IS A PART OF THE PROCEEDINGS OF A SSESSMENT AND THAT THE DIRECTION TO CHARGE INTEREST CAN ALSO BE SAID TO BE AN INTEGRAL PART OF THE ASSESSMENT ORDER. SO FAR AS THIS PART OF THE COMMI SSIONERS ORDER IS CONCERNED IT HAS NOT BEEN CHALLENGED BY THE ASSESS EE IN THE REFERENCE AND WE ARE NOT CONCERNED WITH THIS PART OF THE COMMISSIONE RS ORDER. THE ONLY QUESTION BEFORE US IS WHETHER THE TRIBUNAL WAS RIGHT IN REVO KING THE ORDER OF THE ADDL COMMISSIONER IN SO FAR AS IT PERTAINS TO THE QUESTI ON OF PENALTIES U/S 271(1)(A) AND 273(B). HERE WE FIND OURSELVES IN COMPLETE AGR EEMENT WITH THE VIEW TAKEN BY THE TRIBUNAL. IT IS WELL ESTABLISHED THAT PROCE EDINGS FOR THE LEVY OF A PENALTY WHETHER U/S 271(1)(A) OR U/S 273(B) ARE PROCEEDINGS INDEPENDENTLY OR AN SEPARATE FROM THE ASSESSMENT PROCEEDINGS. THOUGH THE EXPRESSION ASSESSMENT IS USED IN THE ACT WITH DIFFERENT MEAN INGS IN DIFFERENT CONTEXTS SO FAR AS SEC 263 IS CONCERNED IT REFERS TO A PARTICU LAR PROCEEDINGS THAT IS BEING CONSIDERED BY THE COMMISSIONER AND IT IS NOT POSSIB LE WHEN THE COMMISSIONER IS DEALING WITH THE ASSESSMENT PROCEEDINGS AND THE ASSESSMENT ORDER TO EXPAND THE SCOPE OF THESE PROCEEDINGS AND TO VIEW T HE PENALTY PROCEEDINGS ALSO AS PART OF THE PROCEEDINGS WHICH ARE BEING SOU GHT TO BE REVISED BY THE COMMISSIONER. THERE IS NO IDENTITY BETWEEN THE ASS ESSMENT PROCEEDINGS AND THE PENALTY PROCEEDINGS; THE LATTER ARE SEPARATE PR OCEEDINGS THAT MY IN SOME CASES FOLLOW AS A CONSEQUENCES OF THE ASSESSMENT P ROCEEDINGS. AS THE TRIBUNAL HAS POINTED OUT THOUGH IT IS USUAL FOR THE ITO TO RECORD IN THE ASSESSMENT ORDER THAT PENALTY PROCEEDINGS ARE BEING INITIATED THIS IS MORE A MATTER OF CONVENIENCE THAN OF LEGAL REQUIREMENT. A LL THAT THE LAW REQUIRES SO FAR AS THE PENALTY PROCEEDINGS ARE CONCERNED IS TH AT THEY SHOULD BE INITIATED IN THE COURSE OF THE PROCEEDINGS OF ASSESSMENT. IT IS SUFFICIENT IF THERE IS SOME RECORD SOMEWHERE EVEN APART FROM THE ASSESSMENT ORD ER ITSELF THAT THE ITO HAS RECORDED HIS SATISFACTION THAT THE ASSESSEE IS GUILTY OF CONCEALMENT OR OTHER DEFAULT FOR WHICH PENALTY ACTION IS CALLED FO R. INDEED IN CERTAIN CASES IT IS POSSIBLE FOR THE ITO TO ISSUE A PENALTY NOTICE O R INITIATE PENALTY PROCEEDINGS EVEN LONG BEFORE THE ASSESSMENT IS COMPLETED THOUGH THE ACTUAL PENALTY ORDER CANNOT BE PASSED UNTIL THE ASSESSMENT IS FINALIZED. WE THEREFORE AGREE WITH THE VIEW TAKEN BY THE TRIBUNAL THAT THE PENALTY PRO CEEDINGS DO NOT FORM PART OF 8 THE ASSESSMENT PROCEEDINGS AND THAT THE FAILURE OF THE ITO TO RECORD IN THE ASSESSMENT ORDER HIS SATISFACTION OR THE LACK OF IT IN REGARD TO THE LEVIABILITY OF PENALTY CANNOT BE SAID TO BE A FACTOR VITIATING THE ASSESSMENT ORDER IN AN Y RESPECT. AN ASSESSMENT CANNOT BE SAID TO BE ERRONEO US OR PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE OF THE FAILURE OF T HE ITO TO RECORD HIS OPINION ABOUT THE LEVIABILITY OF PENALTY IN THE CASE. WE THEREFORE ANSWER THE FIRST QUESTION REFERRED TO US IN THE AFFIRMATIVE AND IN F AVOUR OF THE ASSESSEE. LATER ON SIMILAR ISSUE CAME UP BEFORE THE HON'BLE D ELHI HIGH COURT IN CASE OF ADDL CIT VS. SUDHARSAN TALKIES 200 ITR 153. IN THAT CASE THE ASSESSEE HAD NOT COMPLIED WITH THE PROVISI ONS OF THE PAYMENT OF ADVANCE TAX AND THEREFORE ASSESSMENT ORD ER WAS REVISED BY THE COMMISSIONER FOR NON INITIATION OF PENALTY U /S 273(B). BEFORE THE HON'BLE HIGH COURT DECISION OF HON'BLE M ADHYA PRADESH HIGH COURT IN CASE OF ADDL CIT V. INDIAN PHARMACEU TICALS (SUPRA) WAS RELIED. THE COURT NOTED THAT THIS ISSUE WAS NO LONGER RES- INTEGRA BECAUSE OF THE DECISION OF ADDL CIT VS. JK DCOSTA (SUPRA). IT WAS NOTED THAT BECAUSE THE REVENUE HAD FILED SLP (SLP NO. 11391 11392 OF 1981) WHICH WAS DISMISSED BY THE H ON'BLE SUPREME COURT VIDE DECISION REPORTED AT 147 ITR (ST ) 1 AND THEREFORE HON'BLE HIGH COURT FOLLOWED THE DECISION OF ADDL CIT VS. JK DCOSTA (SUPRA). 8 NO DOUBT HON'BLE ALLAHABAD HIGH COURT IN CASE OF CIT VS. SUDARSHAN PRASHAD AGGARWAL (SUPRA) DID NOT FOLLOW T HE DECISION OF ADDL CIT VS. JK DCOSTA (SUPRA) THE COURT NOTED THA T THIS DECISION WAS FOLLOWED BY HON'BLE DELHI HIGH COURT IN OTHER CASES AS WELL AS BY HON'BLE RAJASTHAN HIGH COURT IN CASE OF CIT V. KESHRIMAL PARASMAL 157 ITR 484 BY HON'BLE GAUHATI HIGH COURT IN CASE OF SUDARSHAN PRASHAD SINGH 173 ITR 510 BY HON'BLE CAL CUTTA HIGH COURT IN CASE OF CIT VS. LINOTYPE AND MACHINERY LT D 192 ITR 337 AND BY HON'BLE MADRAS HIGH COURT IN CASE OF CIT VS . R.K. SWANG 254 ITR 158. STILL AFTER DETAILED DISCUSSION HON'B LE HIGH COURT PREFERRED TO FOLLOW THE DECISION OF HON'BLE MADHYA PRADESH HIGH 9 COURT IN CASE OF ADDL CIT V. INDIAN PHARMACEUTICAL S (SUPRA) BY OBSERVING AS UNDER: IN THIS VIEW OF THE MATTER WE ARE IN RESPECTFUL AGREEMENT THAT A VIEW TAKEN BY HON'BLE MADHYA PRADESH HIGH COURT IN CASE OF ADDL CIT V. INDIAN PHARMACEUTICALS 123 ITR 874 AND OTHER CASES . 9 IN CASE OF CIT VS. SUBHASH KUMAR JAIN (SUPRA) HO N'BLE PUNJAB AND HARYANA HIGH COURT WAS CONCERNED WITH A CASE W HERE THE ASSESSEE COULD NOT EXPLAIN THE AGRICULTURAL INCOME PROPERLY THEREFORE ENQUIRIES WERE CONDUCTED BY THE DEPARTMEN T THEREFORE AN INSPECTOR WHO IN HIS REPORT POINTED OUT VARIOUS DEF ECTS IN THE DOCUMENTS FURNISHED BY THE ASSESSEE. BECAUSE OF THE SE DEFECTS THE ASSESSEE MADE OVERALL SURRENDER OF CERTAIN AMOUNTS SUBJECT TO NO PENAL ACTION U/S 271(1)(C). THE ASSESSING OFFICER ACCEPTED THIS OFFER AND COMPLETED THE ASSESSMENT WITHOUT INITIATING ANY PENALTY PROCEEDINGS. THIS ORDER WAS REVISED U/S 263 AND TH E ASSESSING OFFICER WAS DIRECTED TO REFRAME THE ASSESSMENT AFTE R CHARGING PENALTY. NO DOUBT IN THIS CASE HON'BLE HIGH COURT DEALT WITH TWO FACETS OF THE CASE WHICH BECOMES CLEAR. PARA FOUR WHICH READS AS UNDER: THE ISSUE INVOLVED IN THIS APPEAL HAS TWO FACETS- ----------------. THE COURT NOTED VIDE PARA 5 AS UNDER: ADVERTING TO THE FIRST ASPECT OF THE ISSUE IT MAY BE NOTICED THAT THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R U/S 143(3) HAD MADE AN OFFICE NOTE THE RELEVANT PORTION OF WHICH IS AS UNDER: THE REPORT OF THE INSPECTOR WAS CONFRONTED TO THE A SSESSEE WHO IN TURN ACCEPTED THE UNGENUINENESS OF AGRICULTURAL INCOME S HOWN BY HIM AND THUS CAME FORWARD WITH A SURRENDER OF AGRICULTURAL INCOME SUBJECT TO NO PENAL ACTION U/S 271(1)(C) OF INCOME -TAX ACT 1961 . SINCE THE DEPARTMENT HAD NO DOCUMENTARY EVIDENCE AGAINST THE ASSESSEE BUT ONLY THE REPORT OF THE INSPECTOR THEREFORE THE OFFER OF THE ASSESSEE WAS ACCEPTED. 10 THE COURT FURTHER OBSERVED THAT PERUSAL OF THE N OTE SHOW THAT THE ASSESSEE HAD MADE A CLEAR OFFER THAT NO PENAL A CTION U/S 271(1)(C) WOULD BE INITIATED. THE OFFICE NOTE CLEA RLY SHOW THAT THIS OFFER HAS BEEN ACCEPTED BY THE REVENUE. THEREFORE PENALTY COULD 10 NOT BE LEVIED. IN THIS REGARD THE COURT REFERRED TO THE DECISION IN CASE OF BANTA SINGH KARTAR SINGH VS. CIT 125 ITR 2 39 (PH). THE COURT ALSO DEALT WITH THE SECOND LIMB OF THE ISSUE VIDE PARA 9 TO 12 WHICH ARE AS UNDER: 9 NOW ADVERTING TO THE SECOND LIMB IT MAY BE NOTI CED THAT THE DELHI HIGH COURT IN JUDGMENT IN ADDL CIT VS. JK DCOSTA 133 ITR 7 HAS HELD THAT THE CIT CANNOT PASS AN ORDER U/S 263 OF THE AC T PERTAINING TO IMPOSITION OF PENALTY WHERE THE ASSESSMENT ORDER U/ S 143(3) IS SILENT IN THAT RESPECT. THE RELEVANT OBSERVATIONS RECORDED A RE: IT IS WELL ESTABLISHED THAT PROCEEDINGS FOR THE LE VY OF A PENALTY WHETHER U/S 271(1)(C)OR U/S 273(B) ARE PROCEEDINGS INDEPEND ENTLY OF AND SEPARATE FROM THE ASSESSMENT PROCEEDINGS. THOUGH T HE EXPRESSION ASSESSMENT IS USED IN THE ACT WITH DIFFERENT MEAN INGS IN DIFFERENT CONTEXTS SO FAR AS SECTION 263 IS CONCERNED IT REF ERS TO A PARTICULARLY PROCEEDING THAT IS BEING CONSIDERED BY THE LD. COMM ISSIONER AND IT IS NOT POSSIBLE WHEN THE LD. COMMISSIONER IS DEALING W ITH THE ASSESSMENT PROCEEDINGS AND THE ASSESSMENT ORDER TO EXPAND THE SCOPE OF THESE PROCEEDINGS AND TO VIEW THE PENALTY PROCEEDINGS ALS O AS PART OF THE PROCEEDINGS WHICH ARE BEING SOUGHT TO BE REVISED BY THE LD. COMMISSIONER. THERE IS NO IDENTITY BETWEEN THE ASS ESSMENT PROCEEDINGS AND THE PENALTY PROCEEDINGS THE LATTER ARE SEPARATE PROCEEDINGS THAT MAY IN SOME CASES FOLLOW AS A CON SEQUENCE OF THE ASSESSMENT PROCEEDINGS. AS THE TRIBUNAL HAS POINTED OUT THOUGH IT IS USUAL FOR THE ITO TO RECORD IN THE ASSESSMENT ORDER THAT PENALTY PROCEEDINGS ARE BEING INITIATED THIS IS ROE A MATTE R OF CONVENIENCE THAN OF LEGAL REQUIREMENT. ALL THAT THE LAW REQUIRES SO FAR AS THE PENALTY PROCEEDINGS ARE CONCERNED IS THAT THEY SHOULD BE I NITIATED IN THE COURSE OF THE PROCEEDINGS FOR ASSESSMENT. IT IS SUFFICIEN T IF THERE IS SOME RECORD SOMEWHERE EVEN APART FROM THE ASSESSMENT ORD ER ITSELF THAT THE ITO HAS RECORDED HIS SATISFACTION THAT THE ASSESSEE IS GUILTY OF CONCEALMENT OR OTHER DEFAULT FOR WHICH PENALTY ACTI ON IS CALLED FOR. INDEED IN CERTAIN CASES IT IS POSSIBLE FOR THE ITO TO ISSUE A PENALTY NOTICE OR INITIATE PENALTY PROCEEDINGS EVEN LONG BE FORE THE ASSESSMENT IS COMPLETED THOUGH THE ACTUAL PENALTY ORDER CANNOT E PASSED UNTIL THE ASSESSMENT FINALIZED. WE THEREFORE AGREE WITH THE VIEW TAKEN BY THE TRIBUNAL THAT THE PENALTY PROCEEDINGS DO NOT FORM P ART OF THE ASSESSMENT PROCEEDINGS AND THAT THE FAILURE OF THE ITO TO RECO RD IN THE ASSESSMENT ORDER HIS SATISFACTION OR THE LACK OF IT IN REGARD TO THE LEVIABILITY OF PENALTY CANNOT BE SAID TO BE A FACTOR VITIATING THE ASSESSMENT ORDER IN ANY RESPECT. AN ASSESSMENT CANNOT BE SAID TO BE ER RONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE OF THE FAILURE OF THE ITO TO RECORD HIS OPINION ABOUT THE LEVIABLILITY OF PENALTY IN THE CASE. 10 SPECIAL LEAVE PETITION AGAINST THE SAID DECISION WAS DISMISSED BY THE HON'BLE APEX COURT 147 ITR 1 (ST). THE SAME V IEW WAS REITERATED BY THE DELHI HIGH COURT IN CIT VS. SUDERSHAN TALKIE S 201 ITR 289 AND FOLLOWED IN CIT VS. NIHAL CHAND REKYAN 242 ITR 45. THE RAJASTHAN HIGH COURT IN CIT VS. KESHRIMAL PARASMAL 157 ITR 4 84 GAUHATI HIGH COURT IN SURENDERA PRASAD SINGH VS. CIT 173 ITR 51 0 AND CALCUTTA HIGH COURT IN CIT VS. LINOTYPE & MACHINERY LTD. 192 ITR 337 HAVE FOLLOWED THE JUDGMENT OF DELHI HIGH COURT IN JK DCOSTA CASE (SUPRA). 11 HOWEVER MADHYA PRADESH HIGH COURT IN ADDL CIT VS. INDIAN PHARMACEUTICALS 123 ITR 874 WHICH HAS BEEN FOLLOWE D BY THE SAME HIGH COURT IN ADDL CIT VS. KANTILAL JAIN 125 ITR 373 AN D ADDL CWT VS. NATHOOLAL BELARAM 125 ITR 596 HAS ADOPTED DIAMETRI CALLY OPPOSITE APPROACH. 12 WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY THE H IGH COURTS OF DELHI RAJASTHAN CALCUTTA AND GAUHATI AND EXPRESS OUR INABILITY TO SUBSCRIBE THE VIEW OF MADHYA PRADESH HIGH COURT. 11 THE ABOVE CLEARLY SHOW THAT SECOND ASPECT WAS ALSO DEALT AND THE HON'BLE PUNJAB AND HARYANA HIGH COURT CLEARLY SHOW ED ITS INABILITY TO FOLLOW THE DECISION OF HON'BLE MADHYA PRADESH HI GH COURT IN CASE OF ADDL CIT V. INDIAN PHARMACEUTICALS (SUPRA) AND RATHER FOLLOWED THE DECISION OF HON'BLE DELHI HIGH COURT IN CASE OF JK DCOSTA (SUPRA) THEREFORE THE CONTENTION OF THE D.R . FOR THE REVENUE IS NOT CORRECT THAT THE DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT IS DISTINGUISHABLE BECAUSE THEY HAVE CLEARLY FOLLOWED THE DECISION OF HON'BLE DELHI HIGH COURT IN CASE OF JK DCOSTA (SUPRA) WHILE DEALING WITH THE SECOND ASPECT. THEREFORE IN VIEW OF THE DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN CASE OF CIT VS. SUBHASH KUMAR JAIN (SUPRA) POWER U/S 263 CANNOT BE USED FOR DIRECTING THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS. THE MATTER COULD BE EXAMINED FROM ANOTHER ANGLE. BOTH S 271A AND 271AAA START WITH THE EXPRESSION MAY. SEC 271A R EADS AS UNDER: 271A WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION 271 IF ANY PERSON 35 [***] FAILS TO KEEP AND MAINTAIN ANY SUCH BOOKS OF ACCOUN T AND OTHER DOCUMENTS AS REQUIRED BY SECTION 44AA OR THE RULES MADE THEREUNDER IN RESPECT OF ANY PREVIOUS YEAR OR TO RETAIN SUCH BOOKS OF ACCOUNT AN D OTHER DOCUMENTS FOR THE PERIOD SPECIFIED IN THE SAID RULES THE 36 [ASSESSING] OFFICER OR THE 37 [***] 38 [COMMISSIONER (APPEALS)] MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY 39 [A SUM OF TWENTY-FIVE THOUSAND RUPEES]. SECTION 271AAA ALSO STARTS AS UNDER: 271AAA. (1) THE ASSESSING OFFICER MAY NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT DIRECT THAT IN A CASE WHER E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE 2007 43 [BUT BEFORE THE 1ST DAY OF JULY 2012] THE ASSESSE E SHALL PAY BY WAY OF PENALTY IN ADDITION TO TAX IF ANY PAYA BLE BY HIM A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PRE VIOUS YEAR. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPL Y IF THE ASSESSEE (I) IN THE COURSE OF THE SEARCH IN A STATEMENT UN DER SUB-SECTION (4) OF SECTION 132 ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHIC H SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCL OSED INCOME WAS DERIVED; AND (III) PAYS THE TAX TOGETHER WITH INTEREST IF ANY IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCL OSED INCOME REFERRED TO IN SUB-SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL SO FAR AS MAY BE APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION.FOR THE PURPOSES OF THIS SECTION 12 (A) 'UNDISCLOSED INCOME' MEANS (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED EITHER WHOLLY OR PARTLY BY ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132 WHICH HAS (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEAR CH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PR EVIOUS YEAR; OR (B) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMI SSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED EITHER WHOLLY OR PARTLY BY ANY ENTRY IN RESPECT OF AN EXPENSE RECORDED IN THE BOOKS OF ACCO UNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YE AR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CO NDUCTED; 11 FROM ABOVE IT IS CLEAR THAT IT IS NOT ALWAYS NEC ESSARY FOR THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS I F HE IS SATISFIED THAT THE PARTICULAR CASE IS NOT FIT FOR LEVY OF PEN ALTY THEN THE ASSESSING OFFICER HAS POWERS NOT TO INITIATE PENALT Y PROCEEDINGS BECAUSE LEGISLATURE HAS USED THE EXPRESSION MAY IN PENAL PROVISION WHICH SHOWS THAT ASSESSING OFFICER HAS DISCRETIONAR Y POWER TO INITIATE THE PENALTY PROCEEDINGS. IN OTHER WORDS I N ANY SUCH SITUATION OF NOT INITIATING PENALTY PROCEEDINGS TH E ASSESSING OFFICER HAS ADOPTED ONE OF THE LEGAL POSSIBLE VIEW. WHENEV ER ONE OF THE LEGAL POSSIBLE VIEW IS ADOPTED BY THE ASSESSING OFF ICER THEN SUCH ASSESSMENT ORDER CANNOT BE CALLED ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. IN THIS REGARD REFERENCE MAY BE MADE TO THE DECISION OF HON'BLE SUPREME COURT IN CASE OF MA LALBAR INDUSTRIES 243 ITR 83. IN THE CASE BEFORE US THE ASSESSING OFFICER MAY BE SATISFIED THAT SINCE THE ASSESSEE HAS SURREN DERED THE AMOUNT AND HAS OFFERED THE SURRENDERED AMOUNT BY PA YING TAX THEREFORE THIS IS NOT A FIT CASE FOR LEVY OF PENALT Y AND ACCORDINGLY HE MAY NOT HAVE INITIATED PENALTY PROCEEDINGS. THEREF ORE SUCH ORDER CANNOT BE CALLED ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF THE REVENUE. 12 IN VIEW OF THE ABOVE LEGAL POSITION AND DISCUSSI ON WE ARE OF THE OPINION THAT THE ASSESSMENT ORDER PASSED BY THE ASS ESSING OFFICER 13 WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST O F THE REVENUE AND ACCORDINGLY SAME IS QUASHED. 13 ITA NO. 357/CHD/2013 IS ALLOWED. ITA NO. 358/CHD/2013 APPEAL OF VIMAL DHALL 14 THE FACTS ARE IDENTICAL TO THE FACTS INVOLVED IN ITA NO. 357/CHD/2013 IN CASE OF AMARJEET DHALL WHICH WE HAV E ADJUDICATED ABOVE AND THEREFORE FOLLOWING THE ABOVE ORDER WE Q UASH THE ORDER PASSED BY THE LD. COMMISSIONER. 15 ITA NO. 358/CHD/2013 IS ALLOWED. 16 IN THE RESULT BOTH THE APPEALS OF THE ASSESSES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.4.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21.4.2014 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR