SAMSON PERINCHERY, MUMBAI v. ACIT CEN CIR 8 & 19, MUMBAI

ITA 4629/MUM/2013 | 2007-2008
Pronouncement Date: 11-10-2013 | Result: Allowed

Appeal Details

RSA Number 462919914 RSA 2013
Assessee PAN ACWPP0166C
Bench Mumbai
Appeal Number ITA 4629/MUM/2013
Duration Of Justice 3 month(s) 28 day(s)
Appellant SAMSON PERINCHERY, MUMBAI
Respondent ACIT CEN CIR 8 & 19, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 11-10-2013
Date Of Final Hearing 01-10-2013
Next Hearing Date 01-10-2013
Assessment Year 2007-2008
Appeal Filed On 13-06-2013
Judgment Text
IN THE INCO ME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA JUDICIAL MEMBER ./I.T.A. NO. 4625/M/2013 ( AY : 2003 - 20 04 ) ./I.T.A. NO. 4626/M/2013 ( AY : 2004 - 20 05 ) ./I.T.A. NO. 4627/M/2013 ( AY : 2005 - 20 06 ) ./I.T.A. NO. 4628/M/2013 ( AY : 2006 - 20 07 ) ./I.T.A. NO. 4629/M/2013 ( AY : 2007 - 20 08 ) ./I.T.A. NO. 4630/M/2013 ( AY : 2008 - 20 09 ) SHRI SAMSON PERINCHERY PANCHAVATI BLDG 91 - E FANASWADI 1 ST FLOOR S.P. MARG MUMBAI 400 002. / VS. ACIT - CENTRAL CIRCLE - 18 & 19 AAYAKAR BHAVAN M.K. ROAD NEW MARINE LINES MUMBAI - 20. ./ PAN : ACWPP 0166 C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RAJEEV KHANDELWAL & MR. NEELKANTH KHANDELWAL / RESPONDENT BY : SHRI GIRIJA DAYAL CIT - DR / DATE OF HEARING : 1.10 .2013 / DATE OF PRONOUNCEMENT : 11 .10 .2013 / O R D E R PER BENCH : THERE ARE 6 APPEALS UNDER CONSIDERATION. THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE SINGLE ORDER OF CIT (A) - MUMBAI DATED 14.2.2013 FOR THE ASSESSMENT YEARS 2003 - 2004 TO 2008 - 2009 RESPECTIVELY. SINC E THE ISSUES RAISED IN THESE SIX APPEALS ARE IDENTICAL FOR THE SAKE OF CONVENIENCE; THEY ARE CLUBBED HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE AND GROUND WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS. 2. FOR T HE SAKE OF COMPLETENESS AND REFERENCE THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE RELEVANT FOR THE AY 2003 - 2004 COMMON TO OTHER AYS IS IMPORTED HERE AND THE SAME READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) HAS ERRED IN CONFIRMING PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT 61. 2 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND RECEIVED INC OME FROM BROKERAGE. ASSESSEE FILED THE RETURN OF INCO ME U/S 139(1) FOR THE AY 2003 - 04 DECLARING THE TOTAL INCOME OF RS. 97 669/ - . THERE WAS A SEARCH ACTION U/S 132 OF THE ACT ON THE ASSESSEE ON 18.12.2008. IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT ASSESSEE FILED RETURN OF INCOME ON 30.3.2009 DECLARING THE TOTAL INCOME OF RS. 30 26 460/ - WHICH INCLUDES AN ADDITIONAL INCOME OF RS.29 28 791/ - . THE DETAILS OF ADDITIONAL INCOME FOR SIX AYS ARE TABULATED AS FOLLOWS. 3.1. ASSESSMENT WAS COMPL ETED U/S 143(3) OF THE ACT ON 29.12.2010 AND THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT RS. 31 98 460/ - FOR THE AY 2003 - 2004 AND THE DETAILS OF ASSESSED INCOME FOR OTHER AY S ARE GIVEN IN THE TABLE ABOVE . DURING THE ASSESSMENT PROCEEDINGS AO ACCEP TED THE INCOME RETURNED U/S 153A OF THE ACT . ACCORDINGLY AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT BY LEVYING MINIMUM PENALTY AT 100% OF TAX I.E. RS. 9 30 200/ - AND PASSED PENALTY ORDER ON 29.6.2011. THE DETAILS OF PENALTY IMPOSED FOR 6 A YS ARE TABULATED AS UNDER. 3 3.2. AGGRIEVED WITH THE ACTION OF THE AO ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY CIT (A) DISMISSED THE ASSESSEES APPEALS FOR AY S AND HELD THAT THOUGH THE SUFFICIENT AND REASONABLE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE NOBODY APPEARED ON BEHALF OF THE ASSESSEE EXCEPT SEEKING ADJOURNMENTS. IN SUCH CIRCUMSTANCES CIT (A) CAME TO THE CONCLUSION THAT THE ASSES SEE IS NOT INTERESTED TO PURSUE HIS CASE AND THEREFORE DISMISSED THE APPEALS FOR AYS UNDER CONSIDERATION FOR WANT OF PROSECUTION. EXPECTEDLY THE CIT(A) HAS NOT ADJUDICATED THE PENALTY APPEALS ON ITS MERITS . AGGRIEVED WITH THE DECISION OF THE CIT (A) ASS ESSEE FILED THE PRESENT APPEALS BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUND. 5. DURING THE PROCEEDINGS BEFORE US SHRI RAJEEV KHANDELWAL LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THESE APPEALS CAN BE DISPOSED OFF WITHOUT REMANDING THEM TO T HE CIT(A) ON THE PRELIMINARY ISSUE RELATING TO SATISFACTION OF THE AO ON THE ISSUE OF INITIATION OF PENALTY PROCEEDINGS AND WITHOUT GOING INTO THE MERITS OF TH E PENALTY. IN THIS REGARD LD C OUNSEL BROUGHT OUR ATTENTION TO LAST PARAGRAPH OF THE ASSESSMENT ORDER AND MENTIONED THAT THE PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF THE INCOME. (PARA 6 OF THE ASSESSMENT ORDER IS RELEVANT IN THIS REGARD). SIMILAR LANGUAGE I.E. FURNISHING OF THE DETAILS WAS REIT ERATED IN THE BODY OF THE ASSESSMENT ORDER ALSO. THERE IS NO APPEAL BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER . BRINGING OUR ATTENTION TO PARA 2 OF THE PENALTY ORDER U/S 271(1)(C) OF THE ACT LD COUNSEL READ OUT THE FOLLOWING LINES: 2. SINCE THE ASSE SSEE ON HIS OWN HAD FAILED TO FURNISH THE TRUE AND CORRECT PARTICULARS IN THE ORIGINAL RETURN FILED SHOW CAUSE NOTICE WAS ISSUED FOR INITIATING PENALTY PROCEEDINGS U/S 271(1)(C) OF THE I.T. ACT. 6. FURTHER LD COUNSEL MENTIONED THAT PENALTY WAS INITIATED FOR FURNISHING OF INACCURATE PARTICULARS . HOWEVER THE PENALTY OF WAS LEVIED FOR CONCEALMENT OF INCOME AND PARA 4 OF THE PENALTY ORDER IS RELEVANT IN THIS REGARD. 4 6.1. FINALLY LD COUNSEL BROUGHT OUR ATTENTION TO THE NOTICE I.T.N.S - 29 THE NOTICE ISSUED UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT 1961 DATED 29.12.2010 COPIES OF WHICH ARE PLACED AT PAGE 1 TO 6 OF THE PAPER BOOK AND MENTIONED THAT THE ASSESSING OFFICER HAS NOT SPECIFIED IF THE NOTICE WAS ISSUED FOR CONCEA LMENT OF THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME . 7. THUS THE LD COUNSEL ARGUED STATING THAT THE ASSESSING OFFICER IS NOT CLEAR AT THE TIME OF INITIATING THE PENALTIES WHETHER THE PROCEEDINGS ARE INITIATED FOR CO NCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING THE INACCURATE PARTICULARS OF SUCH INCOME. FURTHER LD COUNSEL MENTIONED THAT ASSESSING OFFICER INITIATED THE PENALTIES FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME AND HOWEVER HE LEVIED THE PENALTY FOR CONCEALMENT OF THE PARTICULARS OF SUCH INCOME. THUS THE INITIATION WAS DONE UNDER ONE LIMB OF THE PROVISIONS OF THE ACT AND PENALTIES WERE LEVIED IN ANOTHER LIMB OF THE SECTION 271(1)(C) OF THE ACT. FURTHER HE EXTENDED THE ARGUMENTS B Y S TAT ING THAT SUCH PENALTY PROCEEDINGS ARE NOT SUSTAINABLE IN LAW. FOR THIS PROPOSITION LD COUNSEL RELIED ON THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY [2013] 35 TAXMANN.COM 250 (KAR.) DAT ED 13.12.2012. BRINGING OUR ATTENTION TO PARA 59 TO 61 OF THE SAID HIGH COURT JUDGMENT LD COUNSEL MENTIONED THAT RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ASHOK PAI 292 ITR 11 AND ALSO THE JUDGMENT OF THE HONBLE GUJARAT HIGH CO URT IN THE CASE OF MANU ENGINEERING 122 ITR 306 TOGETHER WITH DELHI HIGH COURT JUDGMENT IN THE CASE OF VIRGO MARKETING 171 TAXMANN 156 THE LEVY OF THE PENALTY HAS TO BE CLEAR AS TO THE LIMB OF WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. 8. ON THE OTHER HAND LD DR ARGUED VEHEMENTLY STATING THAT ON MERITS THIS IS THE CASE OF SECTION 132 OF THE ACT WHERE THE ASSESSEE OFFERED ADDITIONAL INCOME BY WAY OF FILING OF RETURN CONSEQUENT TO THE NOTICE U/S 153A OF THE ACT. THE ADDITIONAL INCOME WAS NOT ORIGINALLY FILED U/S 139(1) OF THE ACT THEREFORE ON MERITS THE PENALTY IS SUSTAINABLE. HOWEVER ON THE LEGAL PROPOSITION EN UNCIATED BY THE 5 KARN ATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) LD DR HAS NOTHING TO OFFER. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE JUDGMENTS CITED BY THE LD COUNSE L. ON THE PRELIMINARY ISSUE WE FIND THAT THE TRIBUNAL CAN ADJUDICATE THE APPEALS ON THE GROUNDS OF LEGAL ARGUMENTS WITHOUT GOING INTO THE MERITS OF THE PENALTIES LEVIED BY THE AO IN ALL THESE YEARS. A DMITTEDLY THIS IS THE CASE WHERE THERE WAS AN OPERAT ION U/S 132 OF THE ACT AND THE ADDITIONAL INCOME 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 GOING INTO THE MERITS AT THE OUTSET WE HAVE UNDER T AKEN THE ASSESSEES LEGAL PROPOSITIONS WHETHER THE PENALTY IS SUSTAINABLE ON TECHNICALITIES CONSIDERING THE CITED JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA). 10. ON THE FACTS RELATING TO THE R ECORDING OF THE SATISFACTION FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT W E HAVE PERUSED THE RELEVANT ORDERS OF THE REVENUE AND EXAMINED THE LAST PARA OF THE ASSESSMENT ORDER WHICH READS AS UNDER: ASSESSED U/S 143(3) OF THE INCOME TAX ACT 1961 AT A TOT AL INCOME OF RS. 31 98 460/ - . CHARGE INTEREST U/S 234B & 234C AS APPLICABLE. 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 PARTICULARS OF THE INCOME. THIS ORDER IS PASSED AFTER GETTING APPROVAL FROM ADDL. CIT 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 INITIATED EITHER FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND NOT FOR CONCEALMENT OF INCOME. HOWEVER THE AO IS UNDER OBLIGATION TO SPECIFY THE SAME AND SHOULD NOT LEAVE THE SCOPE FOR IMAGINATIONS AND SU RMISES. AT THE END WE FIND THAT THE P ENALTY WAS ACTUALLY LEVIED FOR CONCEALMENT OF (PARTICULARS) OF INCOME WHICH IS EVIDENT FROM PARA 4 OF THE ASSESSMENT ORDER WHICH READS AS UNDER: 4. FROM THE ABOVE I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME SO AS TO EVADE TAX AND AS SUCH 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 30 200/ - . ACCORDINGLY I HEREBY LEVY A MINIMUM PENALTY AT 100% OF TAX I.E. RS. 9 30 200/ - . 6 11 .1. FURTHER WE HAVE ALSO PERUSED THE NOTICE ISSUED 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 T HE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. 1 2 . THE ABOVE EXTRACT S REVEAL THAT THE AO HAS NOT APPLIED HIS MIND TO THE FACT FOR WHICH REASON OF THE PENA LTY THE NOTICES WERE ISSUED. THE ABOVE DOCUMENTS REVEAL THAT THE PENALTY PROCEEDINGS WERE INITIATED FOR FAILURE 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 PRARAS 59 TO 61 OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) AND THE SAME READ AS UNDER: NOTICE UNDER SECTION 27 4 59. AS THE PROVISION STANDS THE PENALTY PROCEEDI NGS CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGA RDING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PRO CEEDINGS IS INITIATED IN THE NO TICE TO BE ISSUED UNDER SECTION 274 THEY COULD CONVENIENTLY REFER TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION OF THE 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 OF R ELYING ON DEEMING PROV ISION CONTAINED IN EXPLANATION - 1 OR IN EXPLANATION - 1(B) THEN THOUGH PENALTY PROCEEDINGS ARE IN THE N ATURE OF CIVIL LIABILITY IN FACT IT IS PENAL IN NATURE. IN EITHER EVENT THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN S ECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR THAT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND S HOW 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 MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE A SSESSEE 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 H AVE TO BE HELD TO BE STRICTLY CO N S TRUED NOTICE ISSUED UNDER SEC TION 274 SHOULD SATISFY THE GROUNDS WHICH HE HAS TO MEET SPECIFICA LLY . OTHERWISE PRINCIPLES OF NA TURAL JUSTICE IS OFFENDED IF THE SHOW CAUSE NOTICE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES THAT IS TO SAY CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME . NO 7 DOUBT THE FACTS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOME CASES THERE MAY BE OVERLAPPING OF THE TWO OFFENCE S 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 ASSE S SEE GUILTY OF ANOTHER OFFENCE OR FINDING HIM GUILTY FOR EITHER THE ONE OR THE OTHER CA NNOT BE SUSTAINED IN LAW . IT IS NEEDLESS TO POINT OUT SATISFACTION OF THE EXISTENCE OF THE GROUNDS MENTIONED IN SECTION 271(L)(C) WHEN IT IS A SINE QUA NON FOR INITIATION OR PROCEEDINGS THE PENALTY PROCEEDINGS SHOULD BE CONFINED ONLY TO THOSE 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 G ROUNDS ON WHICH HE IS CALLED UPON 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 PROCEEDINGS MAY BE V ALID AND LEGAL THE FINAL ORDER IMPOSING PENALTY WOULD OFFEND PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND THE PENALTY SHOULD ALSO BE IMPOSED ON THE SAME GROUND. WHERE THE BASIS OF THE INITIA TION OF PENALTY PROCEEDINGS IS NOT IDENTICAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED THE 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 HA NDS 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 EMP OWERED UNDER THE ACT TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COURSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF TOTAL INCOME UNDER CLAUSE (C). CONCEALMENT FURNISHING INACCURATE PART ICULARS 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 P AL REPORTED IN 292 FLR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJRAT HIGH COURT IN THE CASE OF MANU ENGINEERING REPORTED IN 122 ITR 306 AND THE DELHI 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 NOT SUSTAINABLE . THEREFORE WHEN THE ASSESSING OFFICER PROPOSES TO INVOKE T HE FIRST LIMB BEING CONCEALMENT THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE STANDARD PROFORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON - APPLICA TION OF MIND . 13 . FROM THE ABOVE IT IS CLEAR THAT THE PENALTY SHOULD BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR HERE THE PENALTY IS NOT SUSTAINABLE. THEREFORE CONSIDERING THE SAME WE ARE OF THE OPINION THAT THE GROUND RAISED BY THE ASS ESSEE SHOULD BE ALLOWED ON TECHNICAL GROUNDS ACCORDINGLY ADJUDICATION OF THE PENALTIES ON MERITS BECOME AN ACADEMIC EXERCISE. THEREFORE THE GROUNDS RAISED IN ALL THE SIX ASSESSMENT YEARS ARE ALLOWED . 14 . IN THE RESULT 6 APPEALS FILED BY THE ASSESSEE A RE ALLOWED. 8 ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 T H OCTOBER 2013. S D / - S D / - ( AMIT SHUKLA ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 1 .10 .2013 . . ./ OKK SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI