Ashish Mittal, New Delhi v. DCIT, Central circle-7, New Delhi

ITA 8172/DEL/2019 | 2016-2017
Pronouncement Date: 23-03-2021 | Result: Allowed

Appeal Details

RSA Number 817220114 RSA 2019
Assessee PAN AEMPM5831P
Bench Delhi
Appeal Number ITA 8172/DEL/2019
Duration Of Justice 1 year(s) 5 month(s) 9 day(s)
Appellant Ashish Mittal, New Delhi
Respondent DCIT, Central circle-7, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 23-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 23-03-2021
Assessment Year 2016-2017
Appeal Filed On 14-10-2019
Judgment Text
1 ITA NOS. 8166 & ORS/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. K. PANDA ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE JUDI CIAL MEMBER I.T.A. NO. 8166/DEL/20 19 (A.Y 2010-11) I.T.A. NO. 8167/DEL/20 19 (A.Y 2011-12) I.T.A. NO. 8168/DEL/20 19 (A.Y 2012-13) I.T.A. NO. 8169/DEL/20 19 (A.Y 2013-14) I.T.A. NO. 8170/DEL/20 19 (A.Y 2014-15) I.T.A. NO. 8171/DEL/20 19 (A.Y 2015-16) I.T.A. NO. 8172/DEL/20 19 (A.Y 2016-17) ASHISH MITTAL 5190 LAHORI GATE NEW DELHI AEMPM5831P (APPELLANT) VS DCIT CENTRAL CIRCLE-7 ROOM NO. 330 ARA CENTRE E-2 JHANDEWALAN EXTENSION NEW DELHI (RESPONDENT) I.T.A. NO. 8100/DEL/2019 (A.Y 2013-14) I.T.A. NO. 8101/DEL/2019 (A.Y 2014-15) I.T.A. NO. 8102/DEL/2019 (A.Y 2016-17) SH. AKSHAY GUPTA 5190 LAHORI GATE NEW DELHI ANFPG1208C (APPELLANT) VS DCIT CENTRAL CIRCLE-7 NEW DELHI (RESPONDENT) I.T.A. NO. 8161/DEL/2019 (A.Y 2013-14) I.T.A. NO. 8162/DEL/2019 (A.Y 2014-15) KUNAL GUPTA KH. NO. 239 RAJOKARI FARM NO. 4 BOUGIAN VILLIA DELHI AJJPG9381Q (APPELLANT) VS DCIT CENTRAL CIRCLE-7 ROOM NO. 330 ARA CENTRE E-2 JHANDEWALAN EXTENSION NEW DELHI (RESPONDENT) I.T.A. NO. 8163/DEL/2019 (A.Y 2013-14) I.T.A. NO. 8164/DEL/2019 (A.Y 2014-15) I.T.A. NO. 8165/DEL/2019 (A.Y 2016-17) 2 ITA NOS. 8166 & ORS/DEL/2019 AYUSH GUPTA 5190 LAHORI GATE DELHI ANFPG4151N (APPELLANT) VS DCIT CENTRAL CIRCLE-7 ROOM NO. 330 ARA CENTRE E-2 JHANDEWALAN EXTENSION NEW DELHI (RESPONDENT) (THROUGH VIDEO CONFERENCING) ORDER PER BENCH THESE 15 APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 13/08/2019 & ITA NO. 8172/DEL/2019 8102/DEL/2019 & ITA NO. 8165/DEL/2019 DATED 16/08/2019 PASSED BY CIT(A)S-2 4 NEW DELHI FOR ASSESSMENT YEARS 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 & 2016-17 RESPECTIVELY. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- I.T.A. NO. 8166/DEL/2019 (A.Y 2010-11) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE LEVY OF PENALTY OF RS. 48 364/- U/S 271 (L)(C) OF THE ACT ON ACCOUN T OF ADDITIONAL INCOME OF RS. 1 56.520/- OFFERED BY THE ASSESSEE IN HIS RE TURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8167/DEL/2019 (A.Y 2011-12) APPELLANT BY SH. MAYANK PATWARI ADV RESPONDENT BY SH. SATPAL GULATI CIT(DR) DATE OF HEARING 09.03.2021 DATE OF PRONOUNCEMENT 23.03.2021 3 ITA NOS. 8166 & ORS/DEL/2019 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE LEVY OF PENALTY OF RS. 5 50 527/- U/S 271 (L)(C) OF THE ACT ON ACCO UNT OF ADDITIONAL INCOME OF RS. 17 81 640/-/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRI TTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BO NAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8168/DEL/2019 (A.Y 2012-1 3) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE LEVY OF PENALTY OF RS. 1 44 534/-/- U/S 271 (L)(C) OF THE ACT ON AC COUNT OF ADDITIONAL INCOME OF RS. 4 67 746/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRI TTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BO NAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8169/DEL/2019 (A.Y 2013- 14) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE LEVY OF PENALTY OF RS. 2 63 817/-- U/S 271 (L)(C) OF THE AC T ON ACCOUNT OF ADDITIONAL INCOME OF RS. 8 53 776/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJE CTING THE BONAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8170/DEL/2019 (A.Y 2014 -15) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE LEVY OF PENALTY OF RS. 12 55 492/--- U/S 271 (L)(C) OF THE ACT ON ACCOUNT OF 4 ITA NOS. 8166 & ORS/DEL/2019 ADDITIONAL INCOME OF RS. 36 93 709/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJE CTING THE BONAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8171/DEL/2019 (A.Y 2015-16) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE LEVY OF PENALTY OF RS. 60 200/- U/S 271 (L)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 1 94 820/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJE CTING THE BONAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8172/DEL/2019 (A.Y 2016-17) 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE LEVY OF PENALTY OF RS. 12 851/- U/S 271AAB OF THE ACT ON A CCOUNT OF ADDITIONAL INCOME OF RS. 64255/- OFFERED BY THE AS SESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BO NAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8100/DEL/2019 (A.Y 2013-14) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 1 18 737/- U/S 271 (L)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 3 84 261/- OFFERED BY THE ASSESSEE IN HIS RE TURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . 5 ITA NOS. 8166 & ORS/DEL/2019 I.T.A. NO. 8101/DEL/2019 (A.Y 2014-15) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 9 65 058/- U/S 271 (L)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 31 73 165/- OFFERED BY THE ASSESSEE IN HIS R ETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8102/DEL/2019 (A.Y 2016-17) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 942 145/- U/S 271AAB OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 2 10 723/- OFFERED BY THE ASSESSEE IN HIS RE TURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8161/DEL/2019 (A.Y 2013-14) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS1 551/- U/S 271 (1)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 5 020/- OFFERED BY THE ASSESSEE IN HIS RETURN O F INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSIONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8162/DEL/2019 (A.Y 2014-15) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS 51 38 416/- U/S 271 (1)(C) OF THE ACT ON ACCOUN T OF ADDITIONAL INCOME OF RS. 1 51 17 432/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRI TTEN SUBMISSIONS 6 ITA NOS. 8166 & ORS/DEL/2019 AND EVIDENCES PLACED ON RECORD AND REJECTING THE BO NAFIDE EXPLANATION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8163/DEL/2019 (A.Y 2013-14) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS 1 18 737/- U/S 271 (1)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 3 84 261/- OFFERED BY THE ASSESSEE IN HIS R ETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8164/DEL/2019 (A.Y 2014-15) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS 9 69 546/- U/S 271 (1)(C) OF THE ACT ON ACCOUNT OF ADDITIONAL INCOME OF RS. 31 73 165/- OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . I.T.A. NO. 8165/DEL/2019 (A.Y 2016-17) THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS 42 145/- U/S 271 AAB OF THE ACT ON ACCOUNT OF A DDITIONAL INCOME OF RS. 2 10 723/- OFFERED BY THE ASSESSEE IN HIS R ETURN OF INCOME FILED U/S 153A WHILE IGNORING THE FACTS WRITTEN SUBMISSI ONS AND EVIDENCES PLACED ON RECORD AND REJECTING THE BONAFIDE EXPLANA TION OF THE ASSESSEE FOR NON- IMPOSITION OF THE PENALTY. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED . 7 ITA NOS. 8166 & ORS/DEL/2019 3. FIRSTLY WE ARE TAKING UP FACTS OF ITA NO. 8166/ DEL/2019 FOR ASSESSMENT YEAR 2010-11 AS THE LEAD CASE. SEARCH AND SEIZURE O PERATION U/S 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF SHRI ASHISH MITT AL ALONG WITH K R B L GROUP OF CASES ON 30/03/2016. THE ASSESSING OFFICER OBSE RVED THAT INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED DURING THE COURSE O F SEARCH AT THE RESIDENTIAL PREMISES OF THE ASSESSEE. THEREAFTER IN ASSESSMENT PROCEEDINGS IN RESPONSE TO NOTICE U/S 153A OF THE ASSESSEE FILED RETURN SHOWI NG INCOME OF RS.9 59 650/- WHERE AS IN THE ORIGINAL RETURN OF INCOME U/S 139 O F THE ACT THE ASSESSEE HAD DECLARED INCOME OF RS. 8 03 130/-. THE ASSESSING O FFICER OBSERVED THAT THE ASSESSEE HAS ADMITTED UNDISCLOSED INCOME OF RS. 1 5 6 520/- WHICH WAS DISCLOSED AFTER THE SEARCH AND INCORPORATED THE SAM E IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO SUBSTANTIATE THE MANNER IN W HICH THE ADDITIONAL INCOME WAS DERIVED WHICH WAS OFFERED IN THE RETURN FILED I N RESPONSE TO NOTICE U/S 153A OF THE ACT AND ALSO FAILED TO EXPLAIN WHY THIS INCOME WAS NOT DISCLOSED IN THE ORIGINAL RETURN FILED U/S 139 OF THE ACT. THE ASSESSEE SUBMITTED THAT THIS INCOME WAS OUT OF HIS OWN SOURCES. THE ASSESSING O FFICER CONCLUDED THAT THE ASSESSEE HAS CONCEALED HIS INCOME AMOUNTING TO RS.1 56 520/- AS PER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. 3.1. THE ASSESSMENT WAS COMPLETED U/S 153A/143(3) OF THE ACT AT RS. 9 59 650/- ON 31/1/22017. PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) FOR CONCEALMENT OF INCOME. NOTICE U/S 271(1)(C) O F THE ACT WAS ISSUED TO THE ASSESSEE ON 31/1/2017 WITHOUT SPECIFYING THE PARTIC ULAR LIMB OF SECTION 271 RELATING TO PENALTY. FURTHER SHOW CAUSE NOTICE DAT ED 4/6/2018 WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE SAID NOTICES THE ASSESSEE FILED REPLY ON 1/5/2018 AND 11/6/2018 WITH REQUEST TO DROP THE PEN ALTY PROCEEDINGS. THE REPLY OF THE ASSESSEE WAS CONSIDERED BY THE ASSESSI NG OFFICER AND WAS FOUND NOT TENABLE. THE ASSESSING OFFICER WAS OF THE OPIN ION THAT DURING THE COURSE OF SEARCH PROCEEDINGS CERTAIN LOOSE PAPERS WERE FOUND AND SEIZED AND THE ASSESSEE HAS VOLUNTARILY SURRENDERED THE EXPENDITUR E WHICH WAS UNEXPLAINED/UNACCOUNTED. THUS THESE EXPENDITURE W AS PART OF CONCEALED 8 ITA NOS. 8166 & ORS/DEL/2019 INCOME OF THE ASSESSEE WHICH WAS DISCLOSED ONLY AFT ER THE SEARCH AND IT DEMONSTRATES THAT IT IS CONCEALMENT OF INCOME AND U NEXPLAINED EXPENDITURE. THE PENALTY ORDER IMPOSING THE PENALTY OF RS. 48 36 4/- WAS PASSED ON 28/6/2018 THEREBY STATING THAT THE ASSESSEE CONCEA LED HIS INCOME IN RESPECT OF UNACCOUNTED INCOME OF RS. 1 56 520/- WHICH WAS S URRENDERED BY THE ASSESSEE. 4. BEING AGGRIEVED BY THE PENALTY ORDER THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE APPEAL OF THE ASSESSEE WAS DISMISSED B Y THE CIT(A). 5. THE LD. AR SUBMITTED THAT THE PENALTY ORDER HAS NOT GIVEN ANY SPECIFIC PROVISION AS TO UPON WHICH THE PENALTY IS IMPOSED. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER WAS NOT SURE ABOUT WHETHER I T IS A CONCEALED INCOME OR FURNISHING OF INACCURATE PARTICULARS. THE LD. AR RE LIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF CIT VS. SSAS EMER ALD MEADOWS (2016) 73 TAXMAN.COM 248 (SC) AND CIT V. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565 (KAR). THE LD AR FURTHER SUBMITTED THAT THE HONBLE DELHI HIGH COURT IN CASE OF PR. CIT VS. M/S. SAHARA INDIA LIFE INSURANCE COMPANY LTD. (ITA NO.475/2019 VIDE ORDER DATED 02.08.2019) HELD THAT NOTICE ISSUED BY THE ASSESSING OFFICER WOULD BE BAD IN LAW IF IT DID NOT SPECIFY UNDER WHICH LIMB OF SECTION 271(1)(C) OF THE ACT PENALTY PROCEEDINGS HA D BEEN INITIATED. THEREFORE THE LD. AR SUBMITTED THAT THE PENALTY ORDER ITSELF BECOMES BAD IN LAW. THE LD. AR FURTHER SUBMITTED THAT SURRENDERING UNACCOUNTED MONEY AS ALLEGED BY THE ASSESSING OFFICER AS WELL AS BY THE CIT(A) DOES NO T ATTRACTED THE PROVISIONS OF SECTION 271(1)(C) AND THEREFORE ON MERIT AS WE LL THE PENALTY ORDER DOES NOT SUSTAIN. 6. THE LD. DR ON THE OTHER HAND WHILE SUPPORTING TH E ORDER OF LD.CIT(A) FILED THE FOLLOWING WRITTEN SUBMISSIONS. THE ISSUE IN AFORESAID CASES IS OF IMPOSITION OF P ENALTY ON ACCOUNT 9 ITA NOS. 8166 & ORS/DEL/2019 OF INCOME DISCLOSED BY THE ASSESSEE IN RETURN OF IN COME FILED UNDER SECTION 153A OF THE ACT AFTER THE SEARCH. THE PENAL TY ORDERS FOR THE YEARS PRECEDING THE SEARCH YEAR (I.E. AYS OTHER THAN AY 2 016-17) ARE PASSED UNDER SECTION 271(1) (C)OF THE ACT AND PENALTY ORDE R FOR SEARCH YEAR(AY 2016-17) HAS BEEN PASSED UNDER SECTION 271AAB OF TH E ACT PENALTY UNDER SECTION 271(L)(C) OF THE ACT;- 2. THE AO WHILE PASSING ASSESSMENT ORDER UNDER SECTION 153A OF THE ACT INITIATED PENALTY UNDER SECTION 271(1)(C) OF TH E ACT. THE AO HAS NOT MADE ANY ADDITION IN THE ASSESSMENT ORDER AND ASSES SED THE INCOME OF THE ASSESSEE AS OFFERED BY THE ASSESSEE IN HIS RETU RN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT. I T MAY BE NOTED THAT THE PENALTY HAS BEEN INITIATED ON THE INCOME AS OFFERED /SURRENDERED BY THE ASSESSEE IN RETURN OF INCOME. THE RELEVANT PARA OF THE ASSESSMENT ORDER TO INITIATE THE PENALTY PROCEEDINGS UNDER SECTION 271( L) (C) OF THE ACT IN AFORESAID CASES IS SIMILARLY WORDED. THE EXTRACT OF THE SAME IS TAKEN AND REPRODUCED BELOW FROM ONE OF SUCH ORDERS. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE FILED HIS RETURN U/S 153 A AFTER ENHANCING THE INCO ME OF RS. 3 84 261/- ON ACCOUNT OF UNACCOUNTED HOUSE RENOVATI ON & REPAIR EXPENSES AS PER ANNEXURE A-1 & A-3 OF PARTY KR-4 AS THE ABOVE EXPENDITURES ARE PART OF CONCEALED INCOME OF THE ASSESSEE WHICH WAS DISCLOSED AFTER THE SEARCH THER EFORE 1 AM SATISFIED THAT THE ASSESSEE HAS CONCEALED HIS INCOM E IN THE RETURN FILED U/S 139 OF THE I.T. ACT 1961 WITHIN THE MEANING OF SUB-CLAUSE (C) OF SUB-SECTION (1) OF SECTION 271 OF THE INCOME TAX ACT 1961. FOR THE REASONS DISCUSSED ABOVE PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT ARE BEING INI TIATED SEPARATELY. 10 ITA NOS. 8166 & ORS/DEL/2019 3. THE APPELLANT HAS TAKEN A PLEA THAT THE PENALTY NO TICE U/S 274 READ WITH 271(1)(C) ALSO DID NOT TICK THE EXACT CHARGE F OR LEVY OF PENALTY. 4. PERUSAL OF THE ABOVE PARA OF THE ASSESSMENT ORDER CATEGORICALLY SHOWS THAT THE AO INITIATED THE PENALTY PROCEEDINGS CONSIDERING THE SURRENDERED INCOME AS REPORTED IN RETURN UNDER SECT ION 153A OF THE ACT AS CONCEALMENT OF INCOME UNDER SECTION 271(1)(C). SO THE LIMB TO INITIATE THE PENALTY PROCEEDINGS IS EVIDENT FROM PERUSAL OF THE ASSESSMENT ORDER. MOREOVER IT IS A CASE WHERE THE ASSESSEE TRULY KNO WS THE CHANGE OF CONCEALMENT OF INCOME AS THE INCOME HAS BEEN SURREN DERED ON HIS OWN AS AGAINST ANY ADDITION MADE BY THE AO. 5. THE ASSESSEE HAS RELIED ON THE DECISION OF HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF MANJUNATHA COTTON AND GINN ING FACTORY WHICH IS THE BASIS FOR DECISION IN THE CASE OF SSA EMERALD D ECIDED BY HON'BLE SUPREME COURT. IT MAY BE RELEVANT TO TAKE NOTE OF T HE FACT THAT THE DECISION OF MANJUNATHA COTTON IS IN RESPECT OF FOUR DIFFEREN T ASSESSEE OUT OF WHICH THE FOLLOWING GROUND OF APPEAL ARE IN THE RESPECT O F M/S. VEERABHADRAPPA SANGAPPA & CO. A PARTNERSHIP FIRM CARRYING ON THE B USINESS OF MINING & PROCESSING OF IRON ORE AND SALE AND EXPORT (ITA NO. 5020 OF 2009). 1. WHETHER THE NOTICE ISSUED UNDER SECTION 271(1)(C) IN THE PRINTED FORM WITHOUT SPECIFICALLY MENTIONING WH ETHER THE PROCEEDINGS ARE INITIATED ON THE GROUND OF CONC EALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS IS VALID AND LEGAL? 2. WHETHER THE PROCEEDINGS INITIATED BY THE ASSESSING AUTHORITY WERE LEGAL AND VALID? 6. IT IS TO POINT OUT THAT THE FACTS IN THE CASE OF M/S. VEERABHADRAPPA SANGAPPA & CO. ARE CLEARLY DISTINGUISHABLE. IN THE SANGAPPA CASE THE 11 ITA NOS. 8166 & ORS/DEL/2019 ASSESSING OFFICER HAD MADE ADDITIONS UNDER SECTION 69 OF THE ACT BEING UNDISCLOSED INVESTMENT. THE APPELLATE AUTH ORITY SET ASIDE THE SAME AND THE ADDITION WAS SUSTAINED ON A NEW GROUND THAT IS UNDE R VALUATION OF CLOSING STOCK. HON'BLE TRIBUNAL DECIDED THAT SINCE THE ASSE SSING AUTHORITY HAD INITIATED PENALTY PROCEEDINGS BASED ON THE ADDITION S MADE UNDER SECTION 69 OF THE ACT WHICH WAS STRUCK DOWN BY THE APPELLATE AUTHORITY THE INITIATED PENAL PROCEEDINGS NO LONGER EXISTS. FURTHER THE T RIBUNAL DECIDED THAT ' BEFORE ISSUING THE NOTICE THE INAPPROPRIATE WORDS A ND PARAGRAPHS WERE NEITHER STRUCK OFF NOR DELETED. THE ASSESSING AUTHORITY WAS NOT SURE AS TO WHETHER SHE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR HAS FURNISHED INACCURATE DE TAILS. THE NOTICE IS NOT IN COMPLIANCE WITH THE REQUIREMEN T OF THE PARTICULAR SECTION AND THEREFORE IT IS A VAGUE NOTI CE WHICH IS ATTRIBUTABLE TO A PATENT NON-APPLICATION OF MIND ON THE PART OF THE ASSESSING AUTHORITY. 7. AS DISCUSSED ABOVE IN THE INSTANT CASE THE ASS ESSMENT ORDER CATEGORICALLY MENTIONED THE INITIATION OF PENALTY O N ACCOUNT OF CONCEALMENT OF INCOME. THE ADDITION MADE IN THIS CASE HAS BEEN UPH ELD EXACTLY BY THE APPELLATE AUTHORITY WITHOUT ANY MODIFICATION. IN SU CH A CASE THE FACTS OF THE CASE ARE ENTIRELY DIFFERENT. 8. THE RELEVANT EXTRACTS OF THE DECISION OF HON'BLE KA RNATAKA HIGH COURT ARE REPRODUCED AS UNDER: 12 ITA NOS. 8166 & ORS/DEL/2019 AS THE PROVISION STANDS THE PENALTY PROCEEDINGS C AN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PAS SED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGARDING THE EXIST ENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PROCEEDINGS IS INITIATED IN THE NOTICE TO BE ISSUED UNDER SECTION 274 THEY COULD CONVENIENTLY REFER TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION OF THE AUTHORITY WHICH HA S 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 EXPLANATION- L(B). THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NA TURE OF CIVIL LIABILITY IN FACT IT IS PENAL IN NATURE. IN EITHER EVENT THE P ERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR TH AT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(L)(C) DO NOT E XIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE DEPA RTMENT SENDING A PRINTED FORM WHERE ALL THE GROUND MENTIONED IN SE CTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INIT IAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE T O BE HELD TO BE STRICTLY CONSTRUED NOTICE ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHE RWISE PRINCIPLES OF NATURAL JUSTICE IS OFFENDED IF THE SH OW CAUSE NOTICE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. 13 ITA NOS. 8166 & ORS/DEL/2019 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES TH AT IS TO SAY CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. NO DOUBT THE FACTS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOME CASES THERE M AY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES T HE INITIATION OF THE PENALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE O FFENCES. 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 NEEDLESS TO POINT OUT SATISFACTION OF THE EXISTENCE OF THE GROU NDS MENTIONED IN SECTION 271(L)(C) WHEN IT IS A SINE QUA NON FOR INI TIATION OR PROCEEDINGS THE PENALTY PROCEEDINGS SHOULD BE CONF INED ONLY TO THOSE GROUNDS AND THE SAID GROUNDS HAVE TO BE SPECI FICALLY 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 SHOU LD BE IMPOSED ONLY ON THE GROUNDS ON WHICH HE IS CALLED UPON TO ANSWER . IT IS NOT OPEN TO THE AUTHORITY AT THE TIME OF IMPOSING PENA LTY TO IMPOSE PENALTY ON THE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOUGH THE INITIATION OF PE NALTY PROCEEDINGS MAY BE VALID 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 GROU ND. WHERE THE BASIS OF THE INITIATION OF PENALTY PROCEEDINGS 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 IN FORMATION FACTS AND MATERIALS IN THE HANDS OF THE AUTHORITY I MPOSING THE PENALTY AT THE TIME THE ORDER WAS PASSED AND FURTHE R DISCOVERY OF 14 ITA NOS. 8166 & ORS/DEL/2019 FACTS-SUBSEQUENT TO THE IMPOSITION OF PENALTY CANNO T VALIDATE THE ORDER OF PENALTY WHICH WHEN PASSED WAS NOT SUSTAI NABLE. 61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE AC T TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COU RSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF TOTAL INCOME UNDER CLAUSE (C). CONCEALMENT FURNISHING INACCURATE PARTICULARS OF I NCOME IS DIFFERENT. THUS THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION THAT WEATHER 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 PAI REPORTED IN 292 ITR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FUR NISHING INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CO NNOTATIONS. THE GUJRAT HIGH COURT IN THE CASE OF MANU ENGINEERING R EPORTED IN 122 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF 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 THE FIRST LIMB BEING CONCEALMENT THEN THE NOTICE HAS TO BE APPROPRIATEL Y MARKED. SIMILAR IS THE CASE FOR FURNISHING INACCURATE PARTI CULARS OF INCOME. THE STANDARD PROFORMA WITHOUT STRIKING OF THE RELEV ANT CLAUSES WILL LEAD TO AN INFERENCE AS TO NON-APPLICATION OF MIND...' 9. AS HIGHLIGHTED ABOVE IN THE AFORESAID CITED DECISIO N AT PARA 59 OF THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT THAT IF TH E ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGARDING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PRO CEEDINGS IS INITIATED IN THE NOTICE TO BE ISSUED UNDER SECTION 274 THEY COULD CONVENIENTLY REFER 15 ITA NOS. 8166 & ORS/DEL/2019 TO THE SAID ORDER WHICH CONTAINS THE SATISFACTION O F THE AUTHORITY WHICH HAS PASSED THE ORDER. I FIND THAT HON'BLE KARNATAKA HIG H COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY REPORTE D IN (2013) 35 TAXMANN.COM 250 (KAR.) HELD THAT EXISTENCE OF CONDI TIONS STIPULATED IN SECTION 271(L)(C) IS A SINE QUA NON FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271. HOWEVER IT FURTHER ADDS THAT EV EN IF THERE IS NO SPECIFIC FINDING REGARDING THE EXISTENCE OF THE CONDITIONS M ENTIONED IN SECTION 271(L)(C) AT LEAST THE FACTS SET OUT IN EX PLANATION 1(A) & (B) SHOULD BE DISCERNIBLE FROM THE SAID ORDER WHICH WOULD BY A LE GAL FICTION CONSTITUTE CONCEALMENT BECAUSE OF DEEMING PROVISION. IT FURTHE R MENTIONS THAT EVEN IF THESE CONDITIONS DO NOT EXIST IN THE ASSESSMENT ORD ER PASSED AT LEAST A DIRECTION TO INITIATE PROCEEDINGS UNDER SECTION 271 (L)(C) IS A SINE QUA NON FOR THE ASSESSMENT OFFICER TO INITIATE THE PROCEEDINGS BECAUSE OF THE DEEMING PROVISION CONTAINED IN SECTION 1(B). IN VIEW OF THE FINDINGS OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNA THA COTTON & GINNING FACTORY THAT AT LEAST A DIRECTION TO INITIATE PR OCEEDINGS UNDER SECTION 271(L)(C) IS A SINE QUA NON FOR THE ASSESSMENT OFFI CER TO INITIATE THE PROCEEDINGS BECAUSE OF THE DEEMING PROVISION CONTAI NED IN SECTION 1(B). THUS IT IS PRAYED THAT THE PENALTY ORDER IS SUSTAI NABLE IN THE EYES OF THE LAW ON THIS ACCOUNT. 10. IN THE PRESENT CASE THE NOTICE ISSUED IN THIS CASE READ WITH THE ASSESSMENT ORDER MAKES THE CHARGE OF PENALTY AMPLY CLEAR. IT MAY BE RELEVANT TO NOTE THAT AS PER THE PENALTY ORDER THE AO HAS D RAWN A CONCLUSION THAT THE ASSESSEE HAS CONCEALED INCOME. 11. IT MAY BE RELEVANT TO ADD THAT HON'BLE MUMBAI HIGH COURT IN THE 16 ITA NOS. 8166 & ORS/DEL/2019 CASE OF VENTURA TEXTILES LIMITED (ITA 958 OF 2017) CATEGORICALLY OBSERVED THAT NOTICE MEANS THAT THE ASSESSEE HAS RECEIVED AC TUAL KNOWLEDGE/INFORMATION OF A FACT. THEREFORE THE COU RT HELD THAT IF THE ASSESSEE HAS RECEIVED THE REQUIRED INFORMATION THRO UGH ASSESSMENT ORDER THEN THE STRIKE OFF OF SPECIFIC LIMB IN THE NOTICE FOR PENALTY DOES NOT VITIATE THE PENALTY ORDER. THE RELEVANT EXTRACTS OF THE DEC ISION ARE REPRODUCED AS UNDER:- 25 . THIS BRINGS US TO THE BASIC QUESTION AS TO WHAT IS A NOTICE OR WHAT DO WE MEAN BY NOTICE. CONCISE OXFORD ENGLISH DICTIONARY INDIAN EDITION EXPLAINS NOTICE TO MEAN THE FACT OF OBSERVING OR PAYING ATTENTION TO SOMETH ING; ADVANCED NOTIFICATION OR WARNING; A DISPLAYED SHEET OR PLACARD GIVING NEWS OR INFORMATION. IT MEANS TO BEC OME AWARE OF. IN OTHER WORDS TO PUT SOMEONE ON NOTICE WOULD MEAN WARN SOMEONE OF SOMETHING ABOUT/OR LIKELY TO O CCUR. BLACK'S LAW DICTIONARY EIGHTH EDITION DEFINES THE EXPRESSION 'NOTICE' TO MEAN HAVING ACTUAL KNOWLEDGE OF A FACT; HAS RECEIVED INFORMATION ABOUT IT; HAS REASON TO KNOW IT; KNOWS ABOUT THE RELATED FACT. IN CST VS. SUBHAS H & COMPANY (2003) 3 SCC 454 SUPREME COURT DELIBERATE D UPON THE CONCEPT OF NOTICE AND OBSERVED THAT THE TE RM 'NOTICE' HAS ORIGINATED FROM THE LATIN WORD 'NOTIFI A' WHICH MEANS BEING KNOWN' OR 'A KNOWING'. THEREAFTER SUP REME COURT REFERRED TO THE DEFINITION OF THE WORD 'NOTIC E' 14/19 ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME PENALTY PROCEEDINGS UNDER SECTION 271(L.)(C) WERE A LSO INITIATED SEPARATELY. THEREFORE IT WAS APPARENT TH AT PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF WORD NOTICE IN VARIOUS GE NERAL AND JUDICIAL DICTIONARIES. WITHOUT ADVERTING TO THE LARGE 17 ITA NOS. 8166 & ORS/DEL/2019 NUMBER OF DEFINITIONS SUFFICE IT TO SAY NOTICE WOU LD MEAN INFORMATION WARNING OR ANNOUNCEMENT OF SOMETHING IMPENDING; NOTICE IN ITS LEGAL SENSE MAY BE DEFINED AS INFORMATION CONCERNING A FACT COMMUNICATED TO A PAR TY BY AN AUTHORIZED PERSON OR ACTUALLY DERIVED BY HIM FRO M A PROPER SOURCE; THE TERM 'NOTICE' IN ITS FULL LEGAL SENSE EMBRACES A KNOWLEDGE OF CIRCUMSTANCES THAT OUGHT TO INDUCE SUSPICION OR BELIEF AS WELL AS DIRECT INFORM ATION OF THAT FACT... .. IN THE PRESENT CASE IT WOULD BE TOO TECHNICAL AND PEDANTIC TO TAKE THE VIEW THAT BECAUSE IN THE PRINTED NOTICE THE INAPPLICABLE PORTION WAS NOT STRUCK OFF THE ORDER OF PENALTY SHOULD BE SET ASIDE EVEN THOUGH IN THE ASSESSMENT ORDER IT WAS CLEARLY MENTIONED THAT PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) OF THE ACT HAD BEEN INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THEREFORE THIS CONTENTION URGED BY THE APPELLANT / ASSESSEE DOES NOT APPEAL T O US AND ON THIS GROUND WE ARE NOT INCLINED TO INTERFERE WITH THE IMPOSITION OF PENALTY.' 12. IT MAY BE REITERATED THAT THE CASE IN HAND IS OF THE INCOME SURRENDERED BY THE ASSESSEE AND THEREFORE HE KNOWS THE BEST ABOUT THE NATURE OF SUCH INCOME AND THEREFORE THE RELEVANCE OF NOTICE GETS FURTHER DILUTED IN SUCH CASE WHERE THE CONCEALED INCOME IS THE INCOME SURRENDERE D BY THE ASSESSEE. 13. AS REGARDS THE ARGUMENT OF THE APPELLANT THAT THE DUE INCOME WAS OFFERED VOLUNTARILY IN THE ASSESSMENT IT WOULD BE RELEVANT TO DISCUSS THE PRINCIPLES LAID DOWN BY HON'BLE APEX COURT IN THE DECISION OF MAK DATA PVT. LTD. V. CIT CA NO. 9772 O/ 2013 (SC) DATED 30-10-2013 (REPORTED IN 358/TR 593) 18 ITA NOS. 8166 & ORS/DEL/2019 BECAUSE THE CITED CASE IS DIRECTLY ON THE ISSUE OF IMPOSITION OF PENALTY IN A CASE OF VOLUNTARY DISCLOSURE. THE PRINCIPLES SO LAI D DOWN BY HON'BLE SC ARE SUMMARIZED AS UNDER: - 1. THE ASSESSING OFFICER SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSE LIKE 'VOLUNTARY DISCLOSURE' 'B UY PEACE' 'AVOID LITIGATION' 'AMICABLE SETTLEMENT ETC. TO EXPLAIN AWAY ITS CONDUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS O FFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOM E OR FURNISHING INACCURATE PARTICULARS OF INCOME. 2. EXPLANATION 1 TO SECTION 271(L)(C) RAISES PRESUM PTION OF CONCEALMENT WHEN A DIFFERENCE IS NOTICED BY THE AO BETWEEN THE REPORTED AND THE ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO EXPLAIN BY COGENT AND RELIABLE EVI DENCE AS TO HOW THE ADDITION DOES NOT AMOUNT TO CONCEALMENT OF INCOME. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION HA S BEEN DISCHARGED BY THE ASSESSEE THE ONUS SHIFTS TO THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE CO NCEALED INCOME OF THE ASSESSEE. 3. IT IS TRITE LAW THAT THE VOLUNTARY DISCLOSUR E DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PRO CEEDINGS. 4. THE SURRENDER OF INCOME IN THIS CASE WAS NOT VOLUNTARY BECAUSE THE OFFER OF SURRENDER WAS MADE AFTER THE D ETECTION MADE BY THE ASSESSING OFFICER IT CANNOT THEREFORE BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. HAD IT BEEN THE INTENTION OF THE ASSESSEE TO MAKE FULL AND TRUE DIS CLOSURE OF ITS INCOME IT WOULD HAVE FILED THE RETURN DECLARING AN INCOME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERED LATER DURING COURSE OF THE ASSESSMENT PROCEEDINGS. 14. IN VIEW OF THE ABOVE PRINCIPLES IT IS VERY MUC H EVIDENT THAT THE VOLUNTARY DISCLOSURE OF INCOME DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. 15. IT HAS BEEN HELD IN THE CASE OF CIT V. DR. R.C. GUPTA & CO. (19 80) 19 ITA NOS. 8166 & ORS/DEL/2019 122 ITR 567 (RAJ) THAT ONCE THE ASSESSEE ADMITS THA T CERTAIN AMOUNT REPRESENTS HIS INCOME NO FURTHER EVIDENCE WOULD BE NECESSARY TO SHOW THAT IT WAS THE AMOUNT WHICH REPRESENTED HIS INCOME OR THAT IT REPRESENTED HIS CONCEALED INCOME. FURTHER IT HAS BEEN HELD IN THE CASE OF WESTERN AUTOMOBILES (INDIA) V. CIT (1978) 112 ITR 1048 (BOM ) THAT WHERE THE ASSESSEE HAS AGREED TO THE INCLUSION OF CERTAIN AMO UNTS WHICH WERE DISCOVERED FROM ACCOUNTS LEVY OF PENALTY WAS HELD JUSTIFIED. WHY DECISIONS QUOTED BY THE ASSESSEE ARE NOT APPLIC ABLE TO THE FACTS OF THE CASE? 16. THE ASSESSEE RELIED ON THE DECISION OF SC IN TH E CASE OF RAJ KUMAR GULAB BADGUJAR WHERE BOMBAY HIGH COU RT DECISION WAS UPHELD. IN THE AFORESAID CITED CASE SEARCH ACTION UNDER SECTION 132 WAS NOT TAKEN IN THE CASE OF THE ASSESSEE. SO THE NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED. THE COURT TOOK NOTE OF THE FACT THAT EXPLAN ATION 5A BELOW SECTION 271 OF THE ACT WOULD APPLY ONLY IN CASE OF SEARCHED PERSON. IN THE PRESENT CASE THE SEARCH ACTION HAS TAKEN PLACE IN THE CASE OF THE ASSESSEE AND THEREFORE PROCEEDINGS UNDER SECTION 153A OF THE AC T WERE INITIATED. THERE IS NO DISPUTE IN THIS REGARD. SO THE CITED CASE IS NOT APPLICABLE TO THE FACTS OF THE CASE. THE COURT HELD THAT 'WE FIND NO ERROR IN THE TRIBUNAL HOLDING THAT THE PENALTY COULD NOT HAVE BEEN IMPOSED. THERE WAS NO QUESTION OF THE ASSESSEE NOT DECLARING THE INCOME OF THE PARTIC ULARS OF THE INCOME SO AS TO INVITE PENALTY UNDER SECTION 271C OF THE ACT. THE THREE RETURNS HAD BEEN FILED EVEN BEFORE ISSUANCE OF NOTICE UNDER SEC TION 153C OF THE ACT AND IN OTHER TWO CASES AS ACCEPTED BY THE ASSESSING OFFICER THE ASSESSEE HAD NO TAXABLE INCOME. WHEN THERE WAS NO ADDITION T O THE DECLARED INCOME IN ANY OF THE YEARS PENALTY WAS CORRECTLY DELETED BY THE TRIBUNAL. EXPLANATION 5A BELOW SECTION 271 OF THE ACT WOULD A PPLY ONLY IN CASE OF SEARCHED PERSON.' [PR COMMISSIONER OF INCOME-TAX (CENTRAL) 20 ITA NOS. 8166 & ORS/DEL/2019 NAGPUR VERSUS RAJKUMAR GULAB BADGUJAR] [2019] 9 ITC D ONLINE (23) UGH COURT] 17. THE ASSESSEE HAS RELIED ON THE DECISION OF HON'BLE DELHI HIGH CO URT IN THE CASE OF NEERAJ JINDAL (09/02/2017). HOWEVER TH IS DECISION IS DISTINGUISHABLE AS THE SEARCH ACTION IN THE CITED C ASE TOOK PLACE ON 11.01.2007. THEREFORE EXPLANATION 5 TO SECTION 27 1(1) OF THE ACT WAS OPERATIVE. HOWEVER IN THE PRESENT CASE THE SEARCH ACTION TOOK PLACE ON 30.03.2016. SO EXPLANATION 5A TO SECTION 271(1) OF THE ACT WAS OP ERATIVE WHICH SPECIFICALLY PROVIDES FOR PENALTY FOR THE INC OME DECLARED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT. EXPLANATION 5A CATEGORICALLY MENTIONS THAT IF THE A SSESSEE CLAIMS ANY INCOME BASED ON ANY ENTRY IN ANY DOCUMENT THEN NOT WITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INC OME FURNISHED ON OR AFTER THE DATE OF SEARCH IS DEEMED TO BE A CASE OF CONCEALMENT OF INCOME. THE ASSESSEE ARGUED THAT EXPLANATION 5A IS NOT APPL ICABLE IN HIS CASE BECAUSE THE NOTINGS IN THE SEIZED DOCUMENT ARE IN RESPECT OF EXPENDITURE AND NOT IN THE NATURE OF INCOME. IT IS PRAYED THAT THIS ARGUMENT IS WITHOUT MERIT BECAUSE UNEXPLAINED EXPENDITURE WOULD BE ASSE SSES AS INCOME IN THE HANDS OF THE ASSESSEE WHICH BASICALLY MEANS THA T THE ASSESSEE INVESTED HIS UNACCOUNTED INCOME TO MEET SUCH UNEXPL AINED EXPENSES . IT IS THE CASE OF TWO SIDES OF SAME COIN. MOREOVER THE A SSESSEE ON HIS OWN SURRENDERED THE INCOME ON ACCOUNT OF ENTRIES OF HOU SE RENOVATION EXPENSES AS RECORDED IN SEIZED RECORD THUS THE EXPLANATION 5A IS SQUARELY APPLICABLE IN THE FACTS OF THE PRESENT CASE. 18. THE ASSESSEE HAS RELIED ON CASE LAWS WHICH ARE NOT APPLICABLE TO THE FACTS OF THE CASE AS THE SAME ARE NOT SEARCH CA SES AND EXPLANATION 5A WAS NOT OPERATIVE IN SUCH CITED CASES. PENALTY UNDER SECTION 271AAB;- 21 ITA NOS. 8166 & ORS/DEL/2019 19. PENALTY UNDER SECTION 271AAB IS APPLICABLE TO T HE SEARCH YEAR WHERE UNDISCLOSED INCOME HAS BEEN FOUND DURING THE COURSE OF SEARCH. IT IS NOT A CASE WHERE THE ASSESSEE ADMITTED UNDISCLOSED INCOME IN A STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT. THE INCOME OFFERED IN RETURN OF INCOME DOES FALL UNDER THE DEFINITION OF UNDISCLOSED INCOME AS DEFINED IN SECTION 271AAB OF THE ACT. THE ISSUE OF STRIKE OFF OF LIMB OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME HAS NO RELEVANCE IN THIS CASE AS IT IS A CASE OF UN DISCLOSED INCOME WHICH COVERS BOTH SCENARIO OF CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS THE AO HAS RIGHTLY IMP OSED THE PENALTY IN THIS CASE UNDER SECTION 271AAB OF THE ACT. THE RELEVANT EXTRACTS OF THE ASSESSMENT ORDER ARE REPRODUCED AS UNDER:- 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE FILED HIS RETURN U/S 153A AFTER ENHANCING THE INCOME OF RS. 64.255/- ON ACCOUNT OF UNACCOUNTED HO USE RENOVATION/ REPAIR EXPENSES AS PER ANNEXURE A-1 TO A-3 OF PARTY KR-1. AS THE ABOVE EXPENDITURES ARE PART OF CONCEALED INCOME OF THE ASSESSEE WHICH WAS DISCLOSE D AFTER THE SEARCH THEREFORE 1 AM SATISFIED THAT TH E ASSESSEE HAS CONCEALED HIS INCOME IN THE RETURN FILED U/S 13 9 OF THE I.T. ACT 1961 WITHIN THE MEANING OF SECTION 271AA B OF THE INCOME TAX ACT 1961. FOR THE REASONS DISCUSSED ABO VE PENALTY PROCEEDINGS U/S 271 AAB OF THE ACT ARE BEIN G INITIATED SEPARATELY. 20. IN THE PRESENT CASE THE NOTICE ISSUED IN THIS CASE READ WITH THE ASSESSMENT ORDER MAKES THE CHARGE OF PENALTY AMPLY CLEAR. IT MAY BE RELEVANT TO NOTE THAT AS PER THE PENALTY ORDER THE AO HAS DRAWN A CONCLUSION THAT THE ASSESSEE HAS CONCEALED INCOME. 21. IT MAY BE RELEVANT TO ADD THAT HON'BLE MUMBAI HIGH COURT IN THE 22 ITA NOS. 8166 & ORS/DEL/2019 CASE OF VENTURA TEXTILES LIMITED (ITA 958 OF 2017) CATEGORICALLY OBSERVED THAT NOTICE MEANS THAT THE ASSESSEE HAS RECEIVED AC TUAL KNOWLEDGE/INFORMATION OF A FACT. THEREFORE THE COU RT HELD THAT IF THE ASSESSEE HAS RECEIVED THE REQUIRED INFORMATION THRO UGH ASSESSMENT ORDER THEN THE STRIKE OFF OF SPECIFIC LIMB IN THE NOTICE FOR PENALTY DOES NOT VITIATE THE PENALTY ORDER. 22. IT MAY BE REITERATED THAT THE CASE IN HAND IS O F THE INCOME SURRENDERED BY THE ASSESSEE AND THEREFORE HE KNOWS THE BEST ABOUT THE NATURE OF SUCH INCOME AND THEREFORE THE RELEVANCE OF NOTICE GETS FURTHER DILUTED IN SUCH CASE WHERE THE CONCEALED INCOME IS THE INCOME SURRENDERED BY THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS PER TINENT TO NOTE THAT SECTION 271 HAS SPECIFICALLY GIVEN THE PROCEDURE UPON WHICH RATHER TO SAY PROVISIONS UPON WHICH THE PENALTY IS ATTRACTED IN A PARTICULAR CASE. FIRSTLY THE ASSESSING OFFICER HAS TO GIVE THE SATISFACTION THAT THE PERSON HAS FAILED TO COMPLY WITH THE NOTICE UNDER SUB SECTION 2 OF SECTI ON 115WD OR UNDER SUB SECTION 2 OF SECTION 115WE OR UNDER SUB SECTION 1 O F SECTION 142 OR SUB SECTION 2 OF SECTION 143 OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB SECTION 2 A OF SECTION 142 OR HAS CONCEALED THE PAR TICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. TH US THE ASSESSING OFFICER HAS TO FIRST GIVE HIS SATISFACTION IN THE ASSESSME NT ORDER ITSELF ABOUT THE CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME IN THE ASSESSMENT ORDER WHILE INITIA TING THE PENALTY 23 ITA NOS. 8166 & ORS/DEL/2019 PROCEEDINGS U/S 271(1)(C). IN THE PRESENT CASE FR OM THE PERUSAL OF THE ASSESSMENT ORDER IT IS SEEN THAT THE ASSESSING OFF ICER HAS SIMPLY STATED THAT I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED HIS INCOME IN THE RETURN FILED U/S 139 OF THE INCOME TAX ACT 1961 THEREBY STATI NG THAT THE INCOME WAS DISCLOSED AFTER THE SEARCH AND THEREFORE EXPENDIT URES ARE PART OF CONCEALED INCOME OF THE ASSESSEE. IN-FACT THE ASSESSEE FILE D HIS RETURN U/S 153(A) AFTER ENHANCING THE INCOME ON ACCOUNT OF HOUSE RENOVATION /REPAIR EXPENSES AND THE EXPENDITURE THEREFORE IN OUR OPINION CANNOT BE STATED AS CONCEALMENT OF INCOME. THEREFORE THE SATISFACTION IN THE INST ANT CASE IN OUR OPINION IS INADEQUATE. FURTHER FOR INVOKING CLAUSE (C) OF SE CTION 271(1)(C) OF THE ACT WHILE ISSUING THE NOTICE THE ASSESSING OFFICER HA S TO CATEGORICALLY STATE UPON UNDER WHICH LIMB THE PENALTY IS INITIATED SIN CE THE ASSESSEE HAS TO GIVE REPLY TO THE NOTICE ISSUED U/S 271(1)(C) READ WIT H SECTION 274 IN RESPECT OF CONCEALMENT OF PARTICULARS OF INCOME SEPARATELY AND THAT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME SEPARATELY. IN THE PRESENT CASE THOUGH THE INITIATION IN THE ASSESSMENT ORDER WAS ON CONCEALME NT OF PARTICULARS OF INCOME THE FIRST PRIMARY STAGE OF SATISFACTION WAS NOT GIVEN BY THE ASSESSING OFFICER. THE INITIATION OF PENALTY HAS BEEN SIMPLY STATED ON CONCEALMENT OF INCOME BUT WHICH WAS NOT PROPERLY REVEALED IN NOTIC E ISSUED TO THE ASSESSEE. THE DEPARTMENT CANNOT OVER LOOK THE TECHNICALITIES AND THE PROCEDURE GIVEN UNDER THE INCOME TAX STATUE WHICH IS A MANDATE TO B E FOLLOWED BY THE TAX AUTHORITIES. THE REVENUE AUTHORITIES CANNOT VAGUEL Y ISSUE NOTICES WHICH ARE VERY MUCH THE BASIS OF PROCEEDINGS INITIATED UNDER INCOME TAX STATUTE. 7.1. THE HON'BLE SUPREME COURT IN SSAS EMERALD ( SUPRA) & SAHARA INDIA LIFE INSURANCE CO. LTD. (SUPRA) HAS REITERATED THIS FACT. NOW COMING TO THE ACTUAL PENALTY ORDER THE SAME IS THOUGH STATED UPO N CONCEALMENT OF 24 ITA NOS. 8166 & ORS/DEL/2019 PARTICULARS OF INCOME HAS NOT GIVEN THE SPECIFICATI ON AS TO HOW THE INCOME WAS CONCEALED WHEN THE EXPENDITURES WHICH WAS INCUR RED WAS NOT ACCOUNTED IN ORIGINAL RETURN BUT REVEALED IN THE RETURN FILED U/S 153A. IN-FACT PARA 3 OF PENALTY ORDER HAS MADE THE SPECIFICATION OF FURNISH ING OF INACCURATE PARTICULARS OF INCOME. THUS THE ASSESSING OFFICE R THOUGH FINALLY IMPOSED THE PENALTY ON CONCEALMENT OF PARTICULARS OF INCOME WAS NOT SURE WHETHER IT IS FOR FURNISHING OF INACCURATE PARTICULARS OR CONC EALMENT OF INCOME. THE ASSESSEE HAS SUO MOTO /VOLUNTARILY SURRENDERED THE AMOUNT BEFORE THE ASSESSING OFFICER AND PAID THE TAXES THEREUPON. T HUS ON THE MERIT ALSO THE ASSESSEE HAS PROVED THAT THE PENALTY DOES NOT SURVI VE. 8. THE LD. DR HAS RELIED UPON THE DECISION OF SSAS EMERALD THEREBY MAKING THE DIFFERENCE OF OPINION THAT THERE ARE FOU R DIFFERENT ASSESSEES AND IN CASE OF M/S VEERABHADRAPPA SANGAPPA & COMPANY THE FACTS ARE DISTINGUISHABLE. BUT THE OVERALL PRINCIPLE GIVEN B Y THE HONBLE APEX COURT REMAINS IN LEGAL PARLANCE THAT THE PENALTY HAS TO B E IMPOSED ON A CLEAR SPECIFIC MANNER WHICH IS GIVEN UNDER THE INCOME TAX STATUTE WHILE INVOKING SECTION 271(1)(C) & THAT CANNOT BE OVER LOOKED. TH E LD. DR RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN CASE OF VE NTURA TEXTILE LTD. WHICH STATES THAT THE ASSESSEE ONCE RECEIVED NOTICE THE STRIKING OF SPECIFIC LIMB DOES NOT VITIATE THE PENALTY ORDER. BUT AFTER GOIN G THROUGH THE SAID DECISION OF THE HONBLE BOMBAY HIGH COURT THE HONBLE HIGH C OURT ALSO REITERATED THAT THE INITIATION OF PENALTY HAS TO BE SPECIFIC T HOUGH THE TECHNICALITY MIGHT NOT MATTER IN THE INITIAL STAGES BUT IN THE PENALTY ORDER IT SHOULD BE IN CONSONANCE WITH THE FINAL DECISION OF THE REVENUE A UTHORITIES. THUS IN-FACT THE DECISION OF THE HONBLE BOMBAY HIGH COURT ALSO SUPPORTS THE CASE OF THE ASSESSEE. THE TECHNICALITIES ALONG WITH THE MERITS OF EACH CASE HAS TO BE OVER 25 ITA NOS. 8166 & ORS/DEL/2019 LOOKED INTO WHILE DECIDING THE PENALTY MATTERS AND IN THIS PARTICULAR CASE THE ASSESSING OFFICER WHILE IMPOSING THE PENALTY THOUGH FINALLY OBSERVED THAT IT IS A CONCEALED PARTICULARS OF INCOME AT TH E SAME TIME HE HAS NOT GIVEN ADEQUATE REASONING AS TO HOW THE CONCEALMENT HAS OCCURRED. BESIDES THAT THE FURNISHING OF INACCURATE PARTICULARS HAS ALSO BEEN TAKEN INTO ACCOUNT BUT THE SAME WAS NOT SPECIFIED WITH THE PRO PER REASONING BY THE ASSESSING OFFICER WHILE PASSING THE PENALTY ORDER A ND HENCE PENALTY DOES NOT SUSTAIN AS THE ASSESSEE HAS SURRENDERED THE AMOUNT RELATED TO EXPENDITURE OF INCOME & THE SAME CANNOT BE HELD AS CONCEALMENT OF PARTICULARS OF INCOME. THUS APPEAL BEING ITA NO. 8166/DEL/2019 F OR ASSESSMENT YEAR 2010-11 IS ALLOWED. 9. FACTS OF ITA NO. 8167/DEL/2019 FOR ASSESSMENT YE AR 2011-12 ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER OR DER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8167/DEL/2019 FOR ASSESSMEN T YEAR 20-11-12 IS ALLOWED. 10. FACTS OF ITA NO. 8168 DEL/2019 ASSESSMENT YEAR 2012-13 ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER ORDER FOR AS SESSMENT YEAR 2010-11. THUS ITA NO. 8168/DEL/2019 ASSESSMENT YEAR 2012-13 IS ALLOWED. 11. FACTS OF ITA NO. 8169/DEL/2019 FOR ASSESSMENT Y EAR 2013-14 ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER OR DER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8169/DEL/2019 FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. 12. FACTS OF ITA NO. 8170/ DEL/2019 FOR ASSESSMENT YEAR 2014-15 ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER OR DER FOR ASSESSMENT YEAR 26 ITA NOS. 8166 & ORS/DEL/2019 2010-11. THUS ITA NO. 8170/DEL/2019 FOR ASSESSMENT YEAR 2014-15 IS ALLOWED. 13. FACTS OF ITA NO. 8171/ DEL/2019 FOR ASSESSMENT YEAR 2015-16 ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER OR DER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8171/DEL/2019 FOR ASSESSMENT YEAR 2015-16 IS ALLOWED. 14. FACTS OF ITA NO. 8100/DEL/2019 FOR ASSESSMENT Y EAR 2013-14 IN CASE OF AKSHAY GUPTA ARE IDENTICAL AND HENCE WE ARE FOLL OWING THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8100/DEL/201 9 FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. 15. FACTS OF ITA NO. 8101/DEL/2019 FOR ASSESSMENT Y EAR 2014-15 IN CASE OF AKSHAY GUPTA ARE IDENTICAL AND HENCE WE ARE FOLL OWING THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11 THUS ITA NO. 8101/DEL/201 9 FOR ASSESSMENT YEAR 2014-15 IS ALLOWED. 16. FACTS OF 8161/DEL/2019 FOR ASSESSMENT YEAR 2013 -14 IN CASE OF KUNAL GUPTA ARE IDENTICAL AND HENCE WE ARE FOLLOWIN G THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8161/DEL/201 9 FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. 17. FACTS OF 8162/DEL/2019 FOR ASSESSMENT YEAR 2014 -15 IN CASE OF KUNAL GUPTA) ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8162/DEL/2 019 FOR ASSESSMENT 27 ITA NOS. 8166 & ORS/DEL/2019 YEAR 2014-15 IS ALLOWED. 18. FACTS OF ITA NO. 8163/DEL/2019 ASSESSMENT YEAR 2013-14 IN CASE OF AYUSH GUPTA ARE IDENTICAL AND HENCE WE ARE FOLLOWIN G THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8163/DEL/201 9 FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. 19. ITA NO. 8164/DEL/2019 FOR ASSESSMENT YEAR 2014- 15 IN CASE OF AYUSH GUPTA ARE IDENTICAL AND HENCE WE ARE FOLLOWING THE EARLIER ORDER FOR ASSESSMENT YEAR 2010-11. THUS ITA NO. 8164/DEL/2 019 FOR ASSESSMENT YEAR 2014-15 IS ALLOWED. 20. NOW WE ARE TAKING UP FACTS OF ITA NO. 8172/DEL /2019 FOR ASSESSMENT YEAR 2016-17. A SEARCH AND SEIZURE OPERATION U/S 1 32 OF THE ACT WAS CONDUCTED AT THE BUSINESS AND RESIDENTIAL PREMISES OF SHRI ASHISH MITTAL ALONG WITH K R B L GROUP OF CASE AS CONTEMPLATED IN THE EARLIER PARTS HEREINABOVE IN CASE OF ASHISH MITTAL FOR ASSESSMENT YEAR 2010-11. THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE HAS E ARNED UNDISCLOSED INCOME AMOUNTING TO RS. 64 255/- AS PER THE PROVISI ONS OF SECTION 271AAB OF THE ACT. THE ASSESSMENT WAS COMPLETED U/S 143(3 ) OF THE ACT AT RS.27 41 170/- ON 31/12/2017. ACCORDINGLY NOTICE U /S 271AAB WAS ALSO ISSUED TO THE ASSESSEE ON 18/06/2018. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FILED DETAILED SUBMISSIONS. THE ASSESSING OFFICER WAS OF THE OPINION THAT IN THIS CASE THOUGH THE ASSESSEE HAS ADMITTED THE UNDISCLOSED INCOME AND PAID TAXES THEREON AFTER THE SEARCH HOWEVER H E HAS NOT SATISFACTORILY EXPLAINED THE REASONS FOR HIS DEFAULT. ACCORDINGLY THE CASE OF THE ASSESSEE 28 ITA NOS. 8166 & ORS/DEL/2019 FALLS WITHIN THE AMBIT OF CLAUSE (B) OF SECTION 27 1AAB OF THE ACT ON ACCOUNT OF SURRENDER MADE AFTER THE SEARCH AMOUNTING TO RS. 64 255/- AND SO PENALTY IS ATTRACTED. THE ASSESSING OFFICER FURTHER OBSER VED THAT THE CASE OF THE ASSESSEE CLEARLY FALLS WITHIN THE PURVIEW OF UNDISC LOSED INCOME AS PER THE PROVISIONS OF SECTION 271AAB (B) WHICH IS MENTIONED IN THE ASSESSMENT ORDER WHILE RECORDING SATISFACTION AS WELL AS THE SAME IS ALSO SPECIFICALLY MENTIONED IN THE PENALTY NOTICE. THE ASSESSING OFFICER IMPOS ED PENALTY U/S 271AAB ON THE UNDISCLOSED INCOME OF RS. 64 255/- AS THE ASSES SEE DISCLOSED THE SAID AMOUNT AFTER THE SEARCH PROCEEDINGS THEREBY HOLDING THAT AS THE ASSESSEE DID NOT EXPLAIN THE MANNER OF EARNING SUCH INCOME D URING THE SEARCH PROCEEDINGS U/S 132 OF THE ACT PENALTY AT THE RATE OF 20% OF UNDISCLOSED INCOME TO THE TUNE OF RS. 12 851/- WAS LEVIED ON TH E ASSESSEE ON 27/06/2018. 21. BEING AGGRIEVED BY THE PENALTY ORDER THE ASSES SEE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) DISMISSED THE APPEAL OF TH E ASSESSEE. 22. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS NOT CONTEMPLATED THE PROPER PENALTY NOTICE AS PER THE PROVISIONS OF SECTION 271AAB. THE ASSESSING OFFICER WAS NOT CORRECT IN IMPOSING THE P ENALTY U/S 271AAB AS THE ASSESSEE HAS SURRENDERED THE INCOME AND ALSO PAID T AXES ACCORDINGLY. THUS THE LD. AR SUBMITTED THAT THE PENALTY MAY BE DELETE D. THE LD. AR FURTHER REITERATED THE ARGUMENTS MADE IN ITA NO. 8166/DEL/2 019 FOR ASSESSMENT YEAR 2010-11. 23. THE LD. DR RELIED UPON THE ASSESSMENT ORDER PE NALTY ORDER AND THE 29 ITA NOS. 8166 & ORS/DEL/2019 ORDER OF THE CIT(A) AS WELL AS THE SUBMISSIONS REPR ODUCED HEREINABOVE. 24. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE INSERTION OF THIS SECTION IS FROM FINA NCE ACT 2012 W.E.F 1/7/2012. THE SECTION 271AAB SHALL BE INVOKED IN C ASE WHERE SEARCH HAS BEEN INITIATED U/S 132 ON OR AFTER 1 ST DAY OF JULY 2012. IN THE PRESENT CASE THE SEARCH TOOK PLACE ON 30/03/2016. THIS PENALTY CAN BE IMPOSED IN ADDITION TO TAX IF ANY PAYABLE BY HIM. THE ASSESSI NG OFFICER SPECIFICALLY AT THE TIME OF PENALTY PROCEEDINGS CONTEMPLATED CLAUSE B OF SECTION 271AAB OF THE ACT. BUT THE LIMB OF CLAUSE B SPECIFICALLY MEN TIONS THAT IF SUCH ASSESSEE IN THE COURSE OF SEARCH IN A STATEMENT UNDER SUB CL AUSE 4 OF SECTION 132 DOES NOT ADMIT THE UNDISCLOSED INCOME. HOWEVER I N THE PRESENT CASE THE ASSESSEE HAS VERY MUCH ADMITTED THE UNDISCLOSED INC OME AND SURRENDERED THE UNDISCLOSED INCOME. THE ASSESSEE ALSO PAID THE TAX THEREON. BESIDES THIS THE NOTICE UPON WHICH THE ASSESSEE IS BOUND T O GIVE REPLY IS VAGUE AND NOT AS PER PROVISIONS OF THE INCOME TAX STATUTE. T HE REVENUE AUTHORITIES HAVE NOT PROPERLY ADJUDICATED/ INVOKED IN TRUE SPIR IT OF THE PENALTY PROVISIONS TO IMPOSE PENALTY ON THE ASSESSEE. THUS ON THE TECHNICALITY AS WELL AS ON MERIT THE PENALTY DOES NOT SURVIVE. HE NCE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THUS ITA NO. 8172/DEL/2019 F OR ASSESSMENT YEAR 2016-17 IS ALLOWED. 25. FACTS OF ITA NO. 8165/DEL/2019 FOR ASSESSMENT Y EAR 2016-17 FILED BY AYUSH GUPTA ARE THE IDENTICAL TO THAT OF ITA NO. 81 72/DEL/2019 FOR ASSESSMENT YEAR 2016-17. HENCE THE PENALTY IS DEL ETED AND APPEAL IS ALLOWED. 30 ITA NOS. 8166 & ORS/DEL/2019 26. FACTS OF ITA NO. 8102/DEL/2019 FOR ASSESSMENT Y EAR 2016-17 FILED BY AKSHAY GUPTA IS ALSO ON THE IDENTICAL TERMS AND FAC TS. HENCE THE PENALTY IS DELETED AND APPEAL IS ALLOWED. 27. IN RESULT ALL THE APPEALS FILED BY THE RESPECT IVE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23RD D AY OF MARCH 2021 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED : 23/03/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 31 ITA NOS. 8166 & ORS/DEL/2019