ITO, Bangalore v. Shri. S. Bhaskar, Bangalore

ITA 871/BANG/2009 | 2001-2002
Pronouncement Date: 29-01-2010 | Result: Dismissed

Appeal Details

RSA Number 87121114 RSA 2009
Assessee PAN OMEIN1989A
Bench Bangalore
Appeal Number ITA 871/BANG/2009
Duration Of Justice 5 month(s) 2 day(s)
Appellant ITO, Bangalore
Respondent Shri. S. Bhaskar, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-01-2010
Assessment Year 2001-2002
Appeal Filed On 26-08-2009
Judgment Text
PAGE 1 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K J.M. AND SHRI A MOHAN ALANKAMONY A.M ITA NO. ASST. YEAR APPELLANT RESPONDENT 869/BANG/2009 2001-02 INCOME TAX OFFICER WARD-2 BANGALORE. SMT. LAKSHMAMMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. 883/BANG/2009 2002-03 -DO- -DO- C.O.NO.56/B/2010 (IN ITA NO.869/B/09) 2001-02 SMT. LAKSHMAMMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.2/B/2010 2001-02 SMT. LAKSHMAMMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.3/B/2010 2002-03 SMT. LAKSHMAMMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. ITA NO.870/B/09 2001-02 INCOME TAX OFFICER WARD-2 BANGALORE. SHRI K SHYAMARAJU NO.150/B 10TH MAIN RMV EXTN. BANGALORE. ITA NO.884/B/09 2002-03 INCOME TAX OFFICER WARD-2 BANGALORE. SHRI K SHYAMARAJU NO.150/B 10TH MAIN RMV EXTN. BANGALORE. C.O.NO.57/B/09 (IN ITA NO.870/B/09) 2001-02 SHRI K SHYAMARAJU NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.4/B/2010 (IN ITA NO.870/B/09) 2001-02 SHRI K SHYAMARAJU NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.5/B/2010 (IN ITA NO.870/B/09) 2002-03 SHRI K SHYAMARAJU NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. ITA NO.871/B/09 2001-02 INCOME TAX OFFICER WARD-2 BANGALORE. SHRI S BHASKAR NO.150/B 10TH MAIN RMV EXTN. BANGALORE. PAGE 2 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 2 ITA NO.878/B/09 2002-03 INCOME TAX OFFICER WARD-2 BANGALORE. SHRI S BHASKAR NO.150/B 10TH MAIN RMV EXTN. BANGALORE. C.O.NO.58/B/2010 (IN ITA NO.871/B/09) 2001-02 SHRI S BHASKAR NO.150/B 10TH MAIN RMV EXTN. BANGALORE. INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.6/B/2010 (IN ITA NO.871/B/09) 2001-02 SHRI S BHASKAR NO.150/B 10TH MAIN RMV EXTN. BANGALORE INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.7/B/2010 (IN ITA NO.871/B/09) 2002-03 SHRI S BHASKAR NO.150/B 10TH MAIN RMV EXTN. BANGALORE INCOME TAX OFFICER WARD-8(2) BANGALORE. ITA NO.872/B/09 2001-02 INCOME TAX OFFICER WARD-2 BANGALORE. SMT. S UMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. ITA NO.882/B/09 2002-03 INCOME TAX OFFICER WARD-2 BANGALORE. SMT. S UMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE. C.O.NO.59/B/09 2001-02 SMT. S UMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.8/B/2010 (IN ITA NO.872/B/09) 2001-02 SMT. S UMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE INCOME TAX OFFICER WARD-8(2) BANGALORE. C.O.NO.9/B/2010 2002-03 SMT. S UMA NO.150/B 10TH MAIN RMV EXTN. BANGALORE INCOME TAX OFFICER WARD-8(2) BANGALORE. REVENUE BY : SMT. V S SREELEKHA ASSESSEE BY : SHRI S R R K SHARMA O R D E R PER BENCH : THESE TWENTY APPEALS (I) EIGHT APPEALS BY THE REVENUE WHICH ARE DIRECTED AGAINST THE ORDERS OF LD. CIT(A ) II BANGALORE FOR THE ASSESSMENT YEARS 2001-02 AND 2002-03 [UNDER PAGE 3 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 3 SECTION 271(1)(C) OF THE ACT) IN THE GROUP CASES O F (1) K.SHYAMARAJU (2) SMT.LAKSHMAMMA (3) S.BHASKAR AND (4) SMT.S.UMA AND (II) THE REMAINING TWELVE CROSS OBJECTIONS (APPEALS) BY THE ABOVE NAMED ASSESSEES AGAINST THE REVENUES APPEALS. 2. THE REVENUE HAS RAISED SEVEN IDENTICAL GROUNDS IN ALL THIS GROUP OF CASES FOR BOTH THE ASSESSMENT YEARS UN DER DISPUTE. OUT OF SEVEN GROUNDS GR. NOS: 1 2 AND 7 BEING GEN ERAL AND NO SPECIFIC ISSUES INVOLVED THEY ARE CONSIDERED AS NON -CONSEQUENTIAL. IN THE REMAINING GROUNDS THE CRUX OF THE ISSUE IS MAINLY CONFINED TO: THE CIT(A) HAS ERRED IN CANCELING THE PENALTIES LEVIED U/S 271(1)(C ) OF THE ACT FOR THE AYS IN DISPUTE IN NOT APPRECIATING THE FACT THAT THE ASSESSEES HAVE NOT FURNISHED THEIR RETURNS VOLUNTARILY BUT CONSEQUENT TO THE ISSUANCES OF NOTICES U/S 148 OF THE ACT. 3. THE ASSESSEES IN THEIR IDENTICAL CROSS OBJECTIONS HAVE RAISED EIGHT (SIC) SEVEN GROUNDS WHICH WERE RATHER VERY ILLUSTRATIVE AND EXHAUSTIVE IN NATURE. ON A CLOSE READING OF TH E SAME THE GIST OF CROSS OBJECTIONS IS THAT THE CIT(A) HAD CANCELLED THE PENALTIES LEVIED U/S 271(1)(C ) OF THE ACT FOR THE ASSESSMENT PAGE 4 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 4 YEARS UNDER DISPUTE ON PROPER FACTS AND LEGALITY AND THUS NO INTERFERENCE IS CALLED FOR. 4. THE ISSUES RAISED BY THE REVENUE AND COUNTERED BY THE ASSESSEES IN THEIR CROSS OBJECTIONS ARE SIMILAR AND INTER-LINKED FOR THE ASSESSMENT YEARS UNDER DISPUTE ALL THESE APPEAL S ARE CONSIDERED TOGETHER AND DISPOSED OFF FOR THE SAKE OF CONVENIENCE BY THIS COMMON ORDER. REVENUES APPEALS: I. K.SHYAMARAJU ITA NOS: 870 & 884/09 - A.YS. 2001-02 & 02-03: 5. THE ASSESSEE AS A PARTNER IN THE FIRM M/S. SR I MARUTHI BUILDER HAD DRAWN REMUNERATION AND INTERE ST AND SALARY FROM M/S. HOTEL MARUTHI PVT. LTD BESIDES INTEREST ON DEPOSITS. 5.1. THE AO HAD ISSUED A NOTICE U/S 148 OF THE AC T ON THE GROUND THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSEE IN FILING THE RETURN OF INCOME WITHIN THE TIME STIPULATED U/S 139(1) OF THE ACT AND THAT THE ASSESSEE WAS IN RECEIPT OF INTERE ST ON CAPITAL AND ALSO REMUNERATION CHARGEABLE TO TAX AS BUSINESS INC OME WHICH HAD ESCAPED ASSESSMENT. AS THE ASSESSEE HAD NOT DISCLO SED HIS INCOME THE AO INITIATED PENAL PROCEEDINGS U/S. 271(1)(C) O F THE ACT AND CALLED UPON THE ASSESSEE TO FURNISH HIS EXPLANATION IF ANY. PAGE 5 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 5 5.2. AFTER DUE CONSIDERATION OF THE ASSESSEES EXP LANATION AND ALSO TAKING CUE FROM THE RULING OF THE HIGHEST JUDICIARY OF THE LAND IN THE CASE OF K.C. BUILDERS V. CIT REPORTED I N (2004) 135 TAXMAN 461 THE AO HAD LEVIED PENALTIES OF RS.1 42 953/- AND RS.1 96 104/- FOR THE AYS UNDER DISPUTE RESPECTIVE LY. 6. DISILLUSIONED WITH THE FINDINGS OF THE AO THE ASSESSEE TOOK UP THE ISSUE BEFORE THE LD. CIT(A) FOR REDRESS AL. AFTER ANALYZING THE ISSUE IN DEPTH AND ALSO EXTENSIVELY QUO TING THE RELEVANT PARTICULARS SUCH AS PAYMENT OF INTEREST TD S DEDUCTED TDS AMOUNTS CREDITED TO THE GOVT. EXCHEQUER DATES OF ISSUE OF TDS CERTIFICATE RATHER IN A TABULAR COLUMN ETC THE LD. CIT(A) HAD OBSERVED THUS 5.7. IT IS WELL-SETTLED LAW THAT FINDINGS IN THE ASSESSMENT PROCEEDINGS ARE RELEVANT BUT NOT CONCLUSIVE IN PENALTY PROCEEDINGS. THE FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS ARE CERTAINLY RELEVANT AND HAVE PROBATIVE VALUE BUT SUCH FINDINGS ARE MATERIAL ALONE AND MAY NOT JUSTIFY THE PENALTY IN A GIVEN CASE BECAUSE THE CONSIDERATIONS THAT ARISE IN PENALTY PROCEEDINGS ARE DIFFERENT FROM THOSE THAT ARISE IN THE ASSESSMENT PROCEEDINGS. IN THE INSTANT CASE THE RETURN OF INCOME WAS FILED BEYOND THE STIPULATED PERIOD BUT THE AO HAD ASSESSED THE RETURNED INCOME AND NO FURTHER ADDITION WAS MADE. IT IS NOT A CASE WHERE THE AO HAD MADE ENQUIRIES AND CONSEQUENT TO SUCH ENQUIRIES PAGE 6 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 6 INCOME WAS DETECTED. THE INCOME DISCLOSED IN THE RETURN OF INCOME HAS ALREADY BEEN DISCLOSED BEFORE THE DEPARTMENT. FURTHERMORE THE EXPLANATION GIVEN IN RESPECT OF DELAY IN FILING THE RETURN OF INCOME IS BONA FIDE AND IT IS ONLY A CASE OF THE APPELLANTS FAILURE TO ESTABLISH REASONABLE CAUSE FOR NON-COMPLYING WITH STATUTORY PROVISIONS. 5.7.1. WHILE IMPOSING THE PENALTY U/S 271(1)(C) OF THE ACT THE AO INVOKED EXPLANATION 3 TO SECTION 271(1)(C). HOWEVER THE EXPLANATION OFFERED BY THE APPELLANT IS CONSIDERED TO BE BONA FIDE BELIEF AND REASONABLE CAUSE. THEREFORE THERE IS NO CASE FOR LEVY OF PENALTY.. 7. DISENCHANTED WITH THE FINDING OF THE LD. CIT ( A) THE REVENUE HAS COME UP WITH THE PRESENT APPEALS. THE LD. D.RS ARGUMENT WAS REVOLVED AROUND (I) THE ASSESEE DID NOT FILE RETURNS OF INCOME VOLUNTARILY BUT FILED RETURNS CO NSEQUENT ON THE ISSUANCE OF NOTICES U/S. 148 OF THE ACT; AND (I I) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASS ESSEE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCO ME AND HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND THE ACTION OF THE AO WAS IN ACCORDANCE WITH LAW. IT WAS PLEADED THAT SINCE THE AO HAD ELABORATELY DEALT WITH THE ISSUE AND HIS WELL REASONING FOR LEVY OF INTEREST U/S 271(1)(C) OF THE ACT REQUIRES TO BE SUSTAINED. TO DRIVE HOME HER POINT THE LD D .R. HAD PAGE 7 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 7 PLACED STRONG RELIANCE IN THE CASE OF ITO V. DINESH CHAND RASTOGI (1994) 49 TTJ (DEL) 118. 7.1. ON THE OTHER HAND THE LD. A R WAS EMPHATIC I N HIS ELABORATE ARGUMENT WHICH IS FOR THE SAKE OF CLARIT Y SUMMARIZED HERE-BELOW: (I) THE RULING OF THE HONBLE SUPREME COURT REFERRED SUPRA IS NOT APPLICABLE TO THE FACTS OF THE ISSUE ON HAND; (II) THE ASSESSEE WAS FORCED TO RECEIVE THE PRE-DATED NOTICE U/S 148 OF THE ACT ON THE DATE OF FILING OF RETURN OF INCOME ON 11.11.05. THE DATE OF NOTICE WAS QUOTED BUT NOT THE DATE OF SERVICE SINCE THE PRE-DATED NOTICE WAS SERVED AT THE TIME OF FILING OF THE RETURN OF INCOME WHICH WAS VOLUNTARY AND NOT CONSEQUENT TO THE NOTICES U/S 148 OF THE ACT AS CLAIMED BY THE REVENUE; (III) THE ASSESSEE BEING A PARTNER IN SRI MARUTHI BUILDERS AND A DIRECTOR IN HOTEL MARUTHI PVT. LIMITED WHOSE RETURNS OF INCOME FOR THE AYS UNDER DISPUTE HAVE BEEN DULY FILED WITHIN THE STIPULATED TIME; - REMUNERATION AND INTEREST PAID TO THE ASSESSEE AS A PARTNER AND A DIRECTOR HAVE BEEN DISCLOSED BEFORE THE PAGE 8 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 8 AUTHORITIES IN THE RETURNS OF INCOME OF THE FIRM AND THE COMPANY RESPECTIVELY; - THERE WAS THUS NO CONCEALMENT OF PARTICULARS OF RECEIPT OF SALARY AND INTEREST AS ALLEGED BY THE REVENUE; (IV) THERE WAS NO VARIATION AND NO CONCEALMENT IN THE INCOME RETURNED. THE DEFECTS IN THE BANK STATEMENT RELATING TO INTEREST WAS RECTIFIED BY THE AO IN HIS RECTIFICATION ORDER AND THUS THE ERROR DUE TO BANK STATEMENT CANNOT BE CONSTRUED AS CONCEALMENT SINCE TAXES HAVE BEEN DEDUCTED AT SOURCE; - TAXES HAVE BEEN DULY PAID AND INTEREST FOR THE FURNISHING OF RETURNS OF INCOME HAVE ALSO BEEN PAID VOLUNTARILY; - THE DELAY IN FURNISHING OF RETURNS WAS DUE TO THE FACT THAT THE ASSESSEE WAS CONCENTRATING ON PROFESSIONAL WORK AND THE ACCOUNTANT WHO WAS WELL VERSED WITH THE INCOME-TAX MATTERS HAD LEFT THE JOB ABRUPTLY WHICH CAUSED A BONA FIDE DELAY ON THE PART OF THE ASSESSEE TO FURNISH HIS RETURNS OF INCOME.. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS PERUSED THE RELEVANT RECORDS AND ALSO WITH DUE REGA RDS GONE THROUGH THE CASE LAW ON WHICH THE REVENUE HAD PLACE D ITS STRONG RELIANCE. PAGE 9 OF 16 ITA NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 9 8.1. ON A CURSORY OF GLIMPSE OF THE STATEMENTS REVE AL THAT THERE WAS NO CONCEALMENT OF ANY INCOME BUT OF COUR SE THERE WAS A CONSIDERABLE DELAY IN FURNISHING OF THE RETURNS OF I NCOME FOR WHICH THE REASONING OF THE ASSESSEE WAS THAT THE A CCOUNTANT WHO LOOKED AFTER THE INCOME-TAX MATTER OF THE ASSESSEE DESERTED THE JOB ABRUPTLY. THE ASSESSEES ASSERTION THAT HE WAS PRE-OCCUPIED WITH THE CONSTRUCTION OF GENERATING POWER STATIONS AT KABINI AND HEMAVATHI RIVERS AND COULD NOT FIND A SUITABLE PER SON TO ENTRUST THE INCOME-TAX MATTERS APPEARS TO BE BONA-FIDE. 8.1.1 FURTHER THE ISSUE CLINCHES IN FAVOUR OF THE ASSESSEE ON THE VERY FACT THAT THE FIRM AND THE COMPANY IN WH ICH HE WAS EITHER A PARTNER OR A DIRECTOR AS THE CASE MAY BE H AVE CREDITED HIS REMUNERATION AND THE INTEREST AFTER DULY DEDUCTING T HE TAXES AT SOURCE AND PAID TO THE GOVERNMENT EXCHEQUER. THIS VERY FACT WAS FINDING A PLACE IN THEIR BOOKS OF ACCOUNT AND THE R ELEVANT INFORMATION HAS BEEN DULY FURNISHED WHILE FILING THE IR RETURNS OF INCOME FOR THE AYS UNDER DISPUTE. 8.1.2. AS RIGHTLY HIGHLIGHTED BY THE LD. CIT(A) THO UGH THERE WAS A CONSIDERABLE DELAY IN FURNISHING HIS RETURNS O F INCOME THAT TOO BEYOND THE PERMISSIBLE PERIOD U/S 139(1) OR 139( 4) OF THE ACT THE ASSESSEES PLEA THAT HE WAS HANDICAPPED DUE TO ABRUPT ABSTAINING OF THE ACCOUNTANT WHO WAS LOOKING AFTER HIS TAX MATTERS PAGE 10 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 10 AND ALSO HE WAS TIED UP WITH HIS PROFESSIONAL WORK EXECUTION OF POWER GENERATION STATIONS AT KABINI AND HEMAVATHI R IVERS FAR AWAY FROM BANGALORE APPEARS TO BE GENUINE. THIS VER Y FACT CAN NEITHER BE DISBELIEVED NOR BRUSHED ASIDE. JUST BEC AUSE THERE WAS INORDINATE DELAY IN FURNISHING OF HIS RETURNS OF INC OME WHICH DOES NOT CONSTITUTE A VALID GROUND TO COME TO A CONCLUSI ON THAT THE ASSESSEE HAD INDULGED IN FURNISHING OF INACCURATE P ARTICULARS AND CONCEALED HIS INCOME. THE AO FAILED TO BRING ON REC ORD AS TO HOW THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS O F HIS INCOME. AS RIGHTLY POINTED OUT BY THE FIRST APPELLATE AUTHORI TY THAT EVEN THOUGH A FINDING IN THE ASSESSMENT PROCEEDING IS RE LEVANT BUT AT THE SAME TIME IT IS NOT CONCLUSIVE IN THE PENALTY P ROCEEDINGS. THE FINDINGS OF THE ASSESSMENT PROCEEDING CANNOT BE ALO NE A CONCLUSIVE MATERIAL WHICH JUSTIFY FOR IMPOSING A PENALTY AS TH E PENALTY PROCEEDING IS A SEPARATE ENTITY FROM THAT OF THE ASS ESSMENT PROCEEDING. WHILE PENALIZING AN ASSESSEE THE ASSES SING AUTHORITY OUGHT TO HAVE FOUND THAT THE EXPLANATION OFFERED BY THE ASSESSEE TO BE FALSE AND THE ASSESSEE HAD IN FACT INDULGED IN CONCEALING THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE P ARTICULARS OF SUCH INCOME. IN THE CASE ON HAND NO SUCH AN ATTEM PT HAS BEEN MADE BY THE AO. FURTHERMORE THE RETURNS FURNISHED BELATEDLY HAVE BEEN DULY PROCESSED AND THE INCOMES RETURNED WE RE ACCEPTED WITHOUT RESORTING TO ANY ADDITION. THE AO HAD NOT M ADE ANY INQUIRIES TO UNEARTH THE FACT THAT THE ASSESSEE HAD CONCEALED HIS PAGE 11 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 11 INCOME AND FURNISHED IN ACCURATE PARTICULARS WITH A N INTENTION TO EVADE TAX. THE RECEIPT OF REMUNERATION AND INTERES T ON CAPITALS BY THE ASSESSEE WAS DULY DISCLOSED BEFORE THE DEPARTMEN T WELL BEFORE THE ISSUANCE OF THE SO-CALLED NOTICES U/S 148 OF TH E ACT. 8.1.3. WITH REGARD TO INVOKING OF EXPLANATION 3 TO S.271(1)(C) OF THE ACT BY THE AO WE ARE OF THE FIRM VIEW THAT T HE EXPLANATION OF THE ASSESSEE THAT HE WAS PREVENTED BY A REASONABL E CAUSE AND BEYOND HIS CONTROL IN NOT FURNISHING HIS RETURNS OF INCOME WITHIN THE STIPULATED TIME FRAME APPEARS TO BE BONA FIDE AND R EASONABLE. 8.1.4. WE HAVE DULY PERUSED - (I) THE FINDING OF THE HONBLE HIGHEST JUDICIARY O F THE LAND IN THE CASE OF K.C.BUILDERS V. CIT (2004) 135 TAXMAN 4 61 WITH DUE RESPECTS WE WOULD LIKE TO MENTION THAT THE FACTS O F THE ISSUE DEALT BY THE HONBLE APEX COURT DO NOT FIT IN TO THE ISSUE ON HAND AND THUS DISTINGUISHABLE; & (II) IN THE CASE OF ITO V. DINESH CHAND RASTOGI RE PORTED IN (1994) 49 TTJ (DEL) 118 THE ISSUE BEFORE THE HON BLE ITAT DELHI C BENCH WAS THAT FOR NONE OF THE FOUR AYS 80-81 TO 83-84 THE ASSESSEE HAD FILED HIS RETURNS OF INCOME WITHIN THE STIPULATED TIME FRAME AND THAT NO NOTICES U/S 139(2) OR 148 WE RE ISSUED. HOWEVER THE ASSESSEE HAD FURNISHED HIS RETURNS OF INCOME IN 1989 AFTER REALIZING THAT THE AO WAS AWARE OF THE FACT T HAT THE HE WAS PAGE 12 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 12 HAVING SUBSTANTIAL INCOME WHICH WERE TAXABLE FOR TH E ABOVE MENTIONED AYS ETC. AFTER DUE CONSIDERATION OF THE P ROS AND CONS OF THE ISSUE THE HONBLE TRIBUNAL HAD COME TO A CONCL USION THAT THE ASSESSEE ON REALIZING THAT INTIMATION REACHED THE AO OF HE HAVING SUBSTANTIAL INCOME FILED RETURNS AFTER THE EXPIRY O F LIMITATION THOUGH BEFORE ISSUE OF NOTICE U/S 148 AND THE CONDI TIONS STATED IN EXPLANATION 3 TO S.271(1)(C) OF THE ACT HAVING BEEN SATISFIED THE AO WAS RIGHT IN INVOKING EXPLN.3 TO S.271(1)(C) OF THE ACT. 8.1.5. WITH DUE REGARDS WE WOULD LIKE TO POINT OU T THAT THE CASE ON HAND IS ON THE DIFFERENT FOOTING AND THAT T HE REVENUE CANNOT TAKE SANCTUARY IN JUSTIFYING FOR HAVING INVOKE D THE SAID EXPLANATION ON THE GROUND THAT - THE INTEREST ON CAPITAL AND REMUNERATION F ROM THE FIRM AND THE COMPANY WHERE THE ASSESSEE WAS A PARTNER AND A DIRECTOR RESPECTIVELY HAVE BEEN DISCLOSED TO THE DEPARTMENT (IN THEIR RETURNS OF INCOME FOR THE AYS UNDER DISPUTE) WELL B EFORE THE INITIATION OF THE SO CALLED PROCEEDINGS U/S 147 OF THE ACT AND AS SUCH IN OUR CONSIDERED VIEW THERE WAS NO QUESTIO N OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS INVITING TO INVOKE EXPLANATION 3 TO S.271(1)(C) OF THE ACT EVEN THOUGH THERE WAS A FAILURE ON THE PART OF THE ASSESSEE TO FURNISH HIS RETURNS OF INCO ME BEYOND THE PERMISSIBLE PERIOD U/S 139(1) OR 139(4) OF THE ACT. FOR THE REASONS PAGE 13 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 13 SET-OUT IN THE FORE-GOING PARAGRAPHS THE EXPLANATI ON OFFERED BY THE ASSESSEE WAS CONSIDERED TO BE BONA FIDE AND REA SONABLE CAUSE IN FURNISHING OF HIS RETURNS OF INCOME BELATEDLY. F URTHERMORE THE AO HAD NOT MADE ANY INQUIRIES AND CONSEQUENT TO THA T HE HAD COME TO A CONCLUSION THAT THE ASSESSEE CONCEALED HIS INC OME AND FURNISHED INACCURATE PARTICULARS AND SO ON SO FORTH . 8.1.6. IN AN OVERALL CONSIDERATION OF THE FACTS AN D CIRCUMSTANCES OF THE ISSUE WE ARE OF THE UNANIMOUS VIEW THAT THE LD.CIT (A) WAS JUSTIFIED IN DELETING THE PENALTIES LEVIED U/S 271(1) (C) OF THE ACT FOR THE ASSESSMENT YEARS UNDE R DISPUTE . IT IS ORDERED ACCORDINGLY. II. SMT. LAKSHMAMMA ITA NOS: 869 & 883/09 - A.YS. 2001-02 & 02-03: 9. IN THESE APPEALS THE ISSUES RAISED AND CONTENT IONS OF THE LD. A.R ARE SIMILAR TO THAT OF THE ISSUES CONSI DERED IN THE CASE OF K.SHYAMA RAJU REFERRED SUPRA [I] EXCEPT TO THE F ACT THAT THE ASSESSEE WAS NOT IN BANGALORE FOR A LONG TIME AS SHE HAD TO LOOK AFTER HER AILING MOTHER-IN-LAW AND AS SUCH SHE COULD NOT GIVE MUCH ATTENTION WHICH WAS REQUIRED TO HER TAX MATTER AND THAT THE DELAY WAS NOT INTENTIONAL. 9.1. AS THE FACTS AND ISSUES ARE SIMILAR AND IDENT ICAL TO THAT OF K.SHYMARAJUS CASE CITED SUPRA THE REASONS AND THE PAGE 14 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 14 DECISION RECORDED IN THE CASE OF SHYMARAJU HOLDS GOO D FOR THESE TWO APPEALS TOO. IT IS ORDERED ACCORDINGLY. III. S. BHASKAR ITA NOS: 871 & 878/09 - A.YS. 2001-02 & 02-03: 10. IN THESE APPEALS THE ISSUES RAISED AND CONTEN TIONS OF THE LD. A.R ARE SIMILAR TO THAT OF THE ISSUES CONSI DERED IN THE CASE OF K.SHYAMA RAJU REFERRED SUPRA [I] EXCEPT TO THE F ACT THAT THE ASSESSEE WAS OF STATION FOR HIGHER STUDIES AT C ARDIFF UNIVERSITY UK AND THEREFORE HE COULD NOT DEVOTE T IME FOR THIS ASPECT WHICH WAS VERY IMPORTANT. THE DEFAULT WAS NO T DUE TO ANY INTENTION TO AVOID DECLARATION. 10.1. AS THE FACTS AND ISSUES ARE SIMILAR AND IDEN TICAL TO THAT OF K.SHYMARAJUS CASE CITED SUPRA THE REASONS AND THE DECISION RECORDED IN THE CASE OF SHYMARAJU HOLDS GOO D FOR THESE TWO APPEALS TOO. IT IS ORDERED ACCORDINGLY. IV. SMT. S.UMA ITA NOS: 872 & 882/09 - A.YS. 2001-02 & 02-03: 11. IN THESE APPEALS THE ISSUES RAISED AND THE CO NTENTIONS OF THE LD. A.R ARE SIMILAR TO THAT OF THE ISSUES CO NSIDERED IN THE CASE OF K.SHYAMA RAJU REFERRED SUPRA [I] EXCEPT TO THE FACT THAT THE ASSESSEE WAS NOT IN INDIA AS SHE WAS STAYING WIT H HER HUSBAND IN U.S.A. AND AS SUCH SHE COULD NOT GIVE AT TENTION WHICH PAGE 15 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 15 WAS REQUIRED TO HER TAX MATTER AND THAT THE DELAY WA S NOT INTENTIONAL. 11.1. AS THE FACTS AND ISSUES ARE SIMILAR AND IDEN TICAL TO THAT OF K.SHYMARAJUS CASE CITED SUPRA THE REASONS AND THE DECISION RECORDED IN THE CASE OF SHYMARAJU HOLDS GOO D FOR THESE TWO APPEALS TOO. IT IS ORDERED ACCORDINGLY. 12. CROSS OBJECTIONS: 1. SMT. LAKSHMAMMA C.O.NOS. 56/09 & 2 & 3/2010 AYS 2001-02 & 2002-03 2. K. SHYAMARAJU C.O.NOS. 57/09 & 4 & 5/2010 AYS 2001-02 & 2002-03 3. S. BHASKAR C.O.NOS. 58/B/09 & 6 & 7/B/2010 AYS 2001-02 & 2002-03 & 4. SMT. S. UMA C.O.NOS. 59/B/09 & 8 & 9/B/2010 AYS 2001-02 & 2002-03. 12.1. IN THEIR IDENTICAL CROSS OBJECTIONS THEY HAV E CLAIMED THAT - THE CIT(A) HAD CANCELLED THE PENALTIES LEVIED U/S 271(1)(C ) OF THE ACT FOR THE ASSESSMENT YEARS UNDER DISPUTE ON A PROPER FACTS AND LEGALITY AND THUS NO INTERFERENCE IS CALLED FOR. 13. AT THE OUT-SET WE WOULD LIKE TO MENTION THAT SINCE WE HAVE DECIDED IN THE FORE-GOING PARAGRAPHS [PARAS: 8 TO 11] THAT THE LD.CIT (A) WAS JUSTIFIED IN DELETING THE PENALTIES LEVIED U/S PAGE 16 OF 16 IT A NOS.869 & 883/BANG/09 & C.O.NO.56/B/09 2&3/B/2010 ITA NOS.870 & 884/BANG/09 & C.O.NOS.57/B/0 9 4 & 5/B/2010 ITA NOS.871 & 878/B/ 09 & C.O.NOS.58/B/09 6 & 7/B/2010 ITA NOS.872 & 882/B/ 09 & C.O.NOS.59/B/0 9 8 & 9/B/2010 16 271(1) (C) OF THE ACT FOR ASSESSMENT YEARS 2001-02 AND 2002- 03 IN THESE GROUP OF CASES FOR THE REASONS SET-OUT REFERRED SUPRA WE ARE OF THE FIRM VIEW THAT THE CROSS OBJECTIONS R AISED BY THE ABOVE MENTIONED ASSESSEES HAVE BECOME SUPERFLUO US AND THUS THEY HAVE NOT BEEN ADDRESSED TO. 14. IN THE RESULT : (I) THE REVENUES APPEALS IN ITA NOS: 869 883 870 884 871 878 872 AND 882/BANG/09 FOR THE AYS 2001-02 AND 20 02-03 ARE DISMISSED ; & (II) THE CROSS OBJECTIONS OF THE ASSESSEES IN ITA NOS: 869 870 871 & 872/BANG/09 FOR THE AYS 2001-02 AND 2002 -03 ARE (TREATED AS) ALLOWED. PRONOUNCED IN THE OPEN COURT ON 29TH JANUARY 2010. SD/- SD/- (A M ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE DTD.29/1/2010 COPY TO : 1) THE ASSESSEE (2) THE REVENUE (3) THE CIT(A) CONCERNED. (4) THE CIT CONCERNED. (5) THE DR (6) GUARD FILE. (7) GUARD FILE NEW DELHI. MSP/28.1. BY ORDER ASST. REGISTRAR ITAT BANGALORE.