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M/s. Mahavir Builders No.67, Goyal Shopping Centre S.V. Road, Borivali (West) Mumbai 400 092 V/s. Income Tax Officer (Technical) CentralIII, Aayakar Bhavan 101, M.K. Road, Mumbai 400 020
November, 27th 2014
                 ,  Û `' 
                 ,

                 IN THE INCOME TAX APPELLATE TRIBUNAL
                               "B" BENCH, MUMBAI

      .. ,  ,  ^  È,
    ^ .            , Û   ¢

          BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND
                  SHRI AMIT SHUKLA, JUDICIAL MEMBER

                     . / ITA no. 4136/Mum./2013
                    ([ [ / Assessment Year : 2002­03)

                     . / ITA no. 4137/Mum./2013
                    ([ [ / Assessment Year : 2004­05)

                     . / ITA no. 4138/Mum./2013
                    ([ [ / Assessment Year : 2008­09)

M/s. Mahavir Builders
No.67, Goyal Shopping Centre
                                                          .......................  /
S.V. Road, Borivali (West)
Mumbai 400 092                                                           Appellant



                                     v/s

Income Tax Officer (Technical)
                                                              ................... × /
Central­III, Aayakar Bhavan
101, M.K. Road, Mumbai 400 020                                        Respondent

  ./ Permanent Account Number ­ AAKFM5577C

                / Revenue by               : Shri Manjunatha Swamy
            [    / Assessee by             : Shri V. Chandra Shekhar a/w
                                             Shri Narendra Sharma


   /                                                    /
Date of Hearing ­ 21.11.2014                       Date of Order ­ 26.11.2014


                                   / ORDER

  , Û  
 È,      /
PER AMIT SHUKLA, J.M.


      The present appeals preferred by the assessee, are directed

against the separate impugned order dated 26th March 2013, passed
                                                       M/s. Mahavir Builders

                                                                        2

for the assessment year 2002­03 and 2008­09 and order dated 28th

March 2013, for the assessment year 2004­05 passed by the learned

Commissioner, Central­III, Mumbai. Since all these appeals pertain to

the same assessee involving common issues arising out of identical set

of facts and circumstances, therefore, as a matter of convenience,

these appeals were heard together and are being disposed off by way

of this consolidated order.


2.   The assessee, in all the years under consideration, is mainly

aggrieved by the order passed under section 263, thereby setting aside

the order passed by the Assessing Officer dropping the penalty

proceedings under section 271(1)(c).


3.   Facts in brief:­ A search and seizure action under section 132(1)

was conducted in case of Prakash H. Salva, on 17th January 2008.

Simultaneously, a survey under section 133A, was conducted on the

business premises of the assessee along with others. During the course

of search as well as under survey operations, statement on oath of

concerned persons were recorded and certain documents were seized.

The assessee is a partnership firm which is engaged mainly in the

business of property development. In the statement on oath, the

associates of the assessee S/Shri Prakash S. Savla and Pankaj Gangar,

had offered / declared additional income of Rs. 6,85,04,767, vide letter

dated 25th February 2008, in pursuance of their declaration made

under section 132(4). The contents of the said letter was as under:­
                                                         M/s. Mahavir Builders

                                                                          3

The disclosure, of undisclosed income now being made under, the
provisions of Section 132(4) mainly consist of the fol/owing:

       a.    Unsecured Loans
       b.    Traveling Expenses
       c.    Purchase of Electronic Gadgets
       d.    Repairs & Maintenance Expenses
       e.    Business Expenses including Security Charges and Gifts.
       f.    Purchase of Cars
       g.    Income tax paid in Cash
       h.    Cash on hand
       i.    Purchase of Gold and Diamond Jewel/ery
       j.    Difference between Purchase Price and Book Value of
             Shares.
      k.     Commission and Brokerage
      I.     Marriage Expenses
      m.     Improvement of House, Furniture, Equipments, etc.

   We are declaring herewith undisclosed income of Rs.
   6,85,04,767/- under the provision of Section 132(4) over several
   assessment years in the hands of various assesses in our group.
   The total amount of Income tax and interest applicable thereon
   comes to Rs.2,78,55,278/-. Please find enclosed challans
   evidencing payments of the entire amount of Rs.2,78, 55,278/-.
   Details of the said disclosure, assessee wise and assessment year
   wise is enclosed herewith.




   Sir, we would also like to bring to your notice the fact that the
   above disclosure of Rs.6,85,04,767/- made u/s 132(4) is apart
   from the regular income of the respective assesses for the current
   assessment year 2008-09.

   Annexure to declaration uls. 132(4) vide letter dated 2512/2008

   Name of the        Particulars                 A.Y.    Amount (Rs)
   assessee
   Mahavir Builders   Foreign Travel          2002-03           21,370
   Mahavir Builders   Unsecured loan          2002-03        3,000,000
   Mahavir Builders   Foreign Travel          2004-05          261,446
   Mahavir Builders   Foreign Travel          2005-06          418,362
   Mahavir Builders   Foreign Travel          2006-07          674,514
   Mahavir Builders   Foreign Travel          2007-08          449,134
   Mahavir Builders   Foreign Travel          2008-09          248,880
                      Cash seized from
   Mahavir Builders                           2008-09          800,000
                      Prakash Savla
   Sei Developers
   Proprietor PHS     Unsecured loan          2003-04          255,825
   Hirjibhai Savla    Unsecured loan          2003-04          185,820
   Sunderben Savla    Unsecured loan          2003-04          500,000
   Seial Savla        Unsecured loan          2003-04        1,470,000
   Sejal Savla        Unsecured loan          2004-05         1,50,000
   Prakash Savla      Unsecured loan          2002-03          224,000
                                                                  M/s. Mahavir Builders

                                                                                   4

        Prakash Savla        Unsecured loan            2003-04          245,000
        Prakash Savla        Unsecured loan            2004-05          200,000
        Mahavir Builders     Vehicle - Qualis          2005-06          925,482
        Mahavir Builders     Vehicle - Civic           2008-09        1,273,265
        Mahavir Builders     Jewellery - cash          2008-09        3,150,000
        Mahavir Builders     Tax paid in cash          2008-09        1,149,269

                             Misc. expenses /
        Mahavir Builders     payments (Repairs,        2008-09        2,342,000
                             security, gadget, etc.)

                             Brokerage/commission
        Mahalaxmi
                             Pankaj Gangar ­ Chq       2008-09        1,000,000
        Lay/Dev P
                             Recd

                             Mahalaxmi - Share
        Sejal Savla                                    2008-09        8,740,000
                             Purchase
        Pankaj Gangar        Oorja ­ Share Purchase   2007­           2,430,000
                                                         08
        Chhaya Gangar        Oorja - Share Purchase 2007-08           2,430,000
        Sejal Savla          Toshniwal - Share      2006-07           2,184,897
                             Purchase
                             Toshniwal- Share
        Prakash Savla                               2006-07          30,425,503
                             Purchase
        Prakash Savla        Daughter Marriage      2008-09             350,000
                             DoM - April 2007
                             Chq -PHS-167850
                             30.5.2007
                             Cost of Improvement of
        Pankaj Gangar        House and House        2007-08           3,000,000
                             equipments

                                                         Total       68,504,767



4.   In pursuance of such declaration, the assessee had filed its return

of income for various assessment years declaring following additional

income in response to notice under section 153C:­


             A.Y.          Head under which income was       Amount
                               disclosed u/s 132(4)
         2002­03        Foreign Travel                           Rs. 21,370

                        Unsecured Loan                     Rs.
                                                           30,00,000
         2004­05        Foreign Travel                      Rs. 2,61,446
                                                        M/s. Mahavir Builders

                                                                         5

         2008­09 *   Travelling Expenses              Rs. 75,000

                     Travelling Expenses               Rs. 44,700

                     Salary added under section 92C   Rs. 5,83,000


        * In addition to this, return of income of Rs. 2,10,11,499
        was also filed.

5.   The Assessing Officer accepted the said additional income offered

by the assessee as per the declaration made vide aforesaid letter and

completed the assessment on the return income under section 143(3),

r/w section 153C, vide order dated 30th December 2009, for all the

three assessment years. Thereafter, the Assessing Officer initiated the

penalty proceedings under section 271(1)(c) on the same income

which was offered in the declaration made under section 132(4). In

response to the said show cause notice, the assessee filed detail

explanation vide letter dated 21st June 2010, filed on 24th June 2010,

for the aforementioned assessment years 2002­03, 2004­05 and

2008­09. In the said explanation, the assessee had given elaborate

explanation for each and every income offered. For e.g., on account of

foreign travel expenses for the assessment year 2002­03 and 2004­

05, the assessee submitted that these expenditures were incurred by

the partners out of their personal drawings for their personal travel.

The drawings of the partners were quite substantial to meet such

expenditures and, therefore, no declaration on additional income was

called for in the hands of the firm. However, only to buy peace, the

assessee had declared the said amount in the hands of the firm even

though no material was found in the search / survey qua foreign travel
                                                      M/s. Mahavir Builders

                                                                       6

Thus, there could not be a case of any concealment of income or

furnishing of inaccurate particulars of income.


     Regarding unsecured loans, the assessee had submitted that the

assessee had received loans from several loan creditors, which were

received through banking channels, i.e., through account payee

cheques, credited in the books of account. However, due to lapse of

time, at the time of the search, the assessee was not able to get

proper cooperation from the loan creditors, therefore, it decided to

offer the said income for taxation. This was done purely to buy peace.

In suport of these contentions, reliance was placed on the decision of

the Hon'ble Jurisdictional High Court in CIT v/s Haji Gaffar Haji Dada

Chini, 169 ITR 33 (Bom.). For the assessment year 2008­09, the

assessee had made one very important submission that the return of

income was not due at the time of search and, therefore, there could

not have been any concealment of income. Apart from that for each

and every item disclosed in the return of income the assessee has

given elaborate explanation about the source of expenditure and the

investment.

6.   After considering the assessee's explanation, the Assessing

Officer has dropped the penalty proceedings vide order dated 30th June

2010, for the assessment years under consideration.

7.   Thereafter, the Commissioner of Income Tax, Central­3, issued

show cause notice dated 18th February 2013, under section 263, as to
                                                       M/s. Mahavir Builders

                                                                        7

why the order passed by the Assessing Officer dropping the penalty

proceedings under section 271(1)(c) should not be set aside. In

response, the assessee filed detail submissions before the learned

Commissioner, the contents of which has been incorporated by the

Commissioner    in   the   impugned   order.   However,    the    learned

Commissioner rejected the assessee's contention and set aside the

order of the Assessing Officer dropping the penalty proceedings under

section 271(1)(c) and directed the Assessing Officer to consider the

issue relating to the penalty proceedings afresh. The sum and

substance of the Commissioner's observation and conclusion for setting

aside the order of the Assessing Officer is that the Assessing Officer

while dropping the penalty proceedings had not carried out any proper

enquiry   on the additions which were subject matter of penalty and

also distinguished the decision of the Hon'ble Jurisdictional High Court

in Haji Gaffar Haji Dada Chini (supra). He has also referred and relied

upon the decision of the Hon'ble Supreme Court in Malabar Industrial

Co. Ltd. v/s CIT, [2000] 243 ITR 83 (SC) to come to his conclusion.

8.   Before us, the learned counsel, Shri V. Chandra Shekher, on

behalf of the assessee, after explaining the entire facts submitted that

the levy of penalty is discretionary which depends upon the facts and

the explanation given by the assessee. The words used in section

271(1) are "may" and not "shall" and therefore, a discretion is given to

the Assessing Officer for levying penalty or dropping the same after

considering the attendant facts and circumstances of the case and the
                                                        M/s. Mahavir Builders

                                                                         8

explanation given by the assessee. He further submitted that the

learned Commissioner, in the impugned orders has not given any

specific finding that the surrender made by the assessee was based on

some material found in the course of search which was         against the

assessee. There is no such finding in the assessment order passed

under section 143(3) / 154C also. Once no specific material has been

found on the various items of expenses, loan etc., for which the

assessee had offered the additional income, then no adverse inference

for the purpose of levy of penalty under section 271(1)(c) can be

drawn. The order of the Assessing Officer should be found to be

unsustainable on facts and in law, then only such an order can be held

to be erroneous error and prejudicial to the interests of Revenue u/s

263. In support of his contention, he strongly relied upon the decision

of the Hon'ble Delhi High Court in CIT v/s DLF Ltd., [2013] 350 ITR

355 (Del.). and on the 3rd Member decision of the Tribunal, Pune

Bench, in Jamnadas T. Mehta v/s ITO, wherein it was held that if two

views are possible, then such an order cannot be revised under section

263. If the Assessing Officer had initiated penalty proceedings and

after accepting the assessee's explanation has dropped the penalty

proceedings, then a conscious view has been taken by the Assessing

Officer which cannot be set aside. Lastly, he relied upon the decision of

the Hon'ble Delhi High Court in CIT v/s Sunbeam Auto Ltd., [2011] 332

ITR 167 (Del.), wherein the High Court has made a distinction between

on lack of enquiry and inadequate enquiry and it is on lack of inquiry,
                                                       M/s. Mahavir Builders

                                                                         9

CIT can set aside the assessment order u/s 263. Thus, he submitted

that on the facts of the present case, the impugned order passed by

the learned Commissioner under section 263, is bad­in­law and

unsustainable.

9.    The learned Departmental Representative, on the other hand,

submitted that the order passed by the Assessing Officer for dropping

the penalty proceedings will reveal that there is no proper application

of mind and it cannot be inferred that, whether he had examined the

issues properly or not. Here in this case, the assessee had made

surrender after the search and that to be after a long gap. If the

search would not have taken place, the assessee would not have come

forward with the declaration offering huge additional income. The

learned Commissioner has rightly pointed out that the Assessing

Officer before dropping the penalty proceedings should have carried

out some enquiry on the matters of the additions which was made by

the Assessing Officer in the assessment order. Such an order of the

learned Commissioner is fully justified. In support of his contention

that in the matter of penalty proceedings where the Assessing Officer

has   dropped    the   proceedings,   the   Commissioner   is   within   his

jurisdiction to set aside such order under section 263, he relied upon

the following case laws viz. (i) 275 ITR 360; (ii) 340 ITR 253 (Pat.);

224 ITR 169 (Mad.); 4 (Trib.) 297 (Hyd.). Besides this, he has also

quoted catena of case laws with which we are not dealing with as he

has not given the proper context in which such decisions were
                                                       M/s. Mahavir Builders

                                                                        10

rendered and how the ratio of such decisions are applicable in the

present case. Even the copy of such orders was not filed before us.

10.   After hearing the case, the appeal was re fixed for certain

clarification and to whether the explanation/submissions filed before us

after the date of hearing was part of the assessment records or not. It

has now been clarified by both the parties that, the explanation filed

before the AO was part of assessment record. Ld. Counsel also pointed

out before us, that the Assessing Officer in the set aside proceedings

has passed fresh order, wherein he has, after detail examination has

deleted the penalty on most of the issues. Now in the fresh order,

penalty levied are on some minor issues and the quantum of penalty

has also been substantially reduced. The copy of the fresh penalty

order were also filed.

11.   We have heard the rival contentions, perused the impugned

order and the material available on record. In the course of search and

seizure action in the case of Prakash H. Savla and survey action under

section 133A, on the business premises of the assessee, a statement

on oath under section 132(4) was recorded of Shri Prakash H. Savla

and Shri Pankaj Gangar.     In pursuance thereof, these persons vide

letter dated 25th February 2008, have declared additional income of Rs.

6,85,04,767, which consisted of various items as has been listed above

in para 3. Insofar as the assessee is concerned, the disclosure was

mainly on account of foreign travel, unsecured loan, cash seized from

Prakash Savla, purchase of vehicle, jewellery, etc. On the basis of such
                                                      M/s. Mahavir Builders

                                                                       11

declaration, the income has been assessed accordingly, under section

143(3) r/w section 153C for the assessment year 2002­03, 2004­05

and 2008­09. It is important to mention here that the assessment

order for the assessment year 2008­09, has been framed under

section 143(3), as it is the year of search and at the time of search

even the return of income under section 139(1) was not due. The

assessment orders so passed in all the years have attained finality, as

no appeal has been filed by the assessee nor it has been the subject

matter of revision under section 263. The assessment orders for the

impugned assessment years, simply incorporates the break­up of

declaration for a particular assessment year and on that basis income

has been computed in the assessment order. After having completed

the assessment in the said manner, the penalty proceedings under

section 271(1) (c) was initiated by the Assessing Officer vide notice

dated 30th December 2009. In response, the assessee, vide letter

dated 21st June 2010, filed on 24th June 2010, has given a detail

explanation with regard to each and every addition which was mainly

on the basis of declaration made by the assessee. For the assessment

year 2003­04 and 2004­05, with regard to the expenditure incurred

for foreign travel, the assessee had submitted that the amount

spended on foreign travel has been incurred by the partners out of

their personal drawings for their personal travel. The drawings of the

partners were quite substantial to meet such expenditure. The amount

was offered as income even though no corroborating or adverse
                                                        M/s. Mahavir Builders




                                                                         12

material was found during the search. It was offered only to buy

peace. No material has been referred in the assessment order to

controvert the said explanation of the assessee. Similarly, on account

of unsecured loans of Rs. 30 lakhs, offered for the assessment year

2002­03, the assessee had submitted that loan has been received

from various creditors through account payee cheques and through

proper banking channels. However, after a lapse of time, the loan

creditors were not in a position to give full cooperation, therefore, the

assessee decided to offer the same to be taxed as its own income,

even though, nothing incriminating has been found during the course

of search qua the loan. As regards various additions made in the

assessment year 2008­09, the assessee's explanations were two fold,

firstly, the return of income for the assessment year 2008­09 was not

due and secondly, most of the items were already appearing in the

books of account. The Assessing Officer, after considering such

explanation has dropped the penalty proceedings vide order dated 30th

June 2010. This order of the Assessing Officer dropping the penalty

proceedings is subject matter of revision under section 263. The main

plank of the impugned order for setting aside         the order of the

Assessing Officer by the Commissioner is that, the Assessing Officer

has not carried out any proper enquiry before dropping the penalty

proceedings and consequently, the additional income offered by the

assessee cannot be said to be voluntarily. The learned Departmental

Representative is supporting the order of the learned Commissioner on
                                                         M/s. Mahavir Builders

                                                                          13

the ground that, had there been no search or survey, the assessee

would not have come forward with such a declaration.

12.   It is a trite law that to assume jurisdiction under section 263, the

Commissioner has to satisfy twin conditions namely, (i) the order of

the Assessing Officer which has been sought to be revised is erroneous

and, (ii) it is prejudicial to the interest of revenue. Both the conditions

should exist simultaneously. The order can be termed erroneous only

when there is an incorrect assumption of facts or an incorrect

application of law, whereas prejudicial to the interest of revenue has to

be understood as erroneous order passed by the Assessing Officer

which has caused loss of revenue. This trite law has been opined by

the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. (supra),

which has also been referred and relied upon by the Commissioner.

Now, whether on the facts of the present case, can it be held that the

order of the Assessing Officer dropping the penalty proceedings can be

said to be erroneous or prejudicial to the interests of Revenue. The

main charge of the Commissioner is that the Assessing Officer has not

carried out proper enquiry. Here in this case, as stated above, the

assessments have been completed on the basis of income offered by

the assessee. While completing the assessment, there is no reference

to any incriminating material found at the time of search. There is not

a whisper about any adverse material in the assessment order

indicating any concealment of income or furnishing of inaccurate

particulars of income qua the income offered. The offer made by the
                                                              M/s. Mahavir Builders

                                                                               14

assessee has been accepted as such. If at all any enquiry was called

for, the same should have been made at this stage i.e., assessment

stage. The penalty proceedings under section 271(1)(c) is leviable only

in respect of those additions for which there is a material available on

record which indicates concealment of income or furnishing of

inaccurate particulars of income. For levying the penalty under section

271(1)(c), the basic element which has to be seen is, whether in

respect of any facts which is material to the computation of income by

the Assessing Officer, the assessee has failed to offer an explanation or

offers an explanation which has been found to be false or is unable to

substantiate its bonafide. The Commissioner in his entire order has not

pointed out as to how the assessee's explanation which was rendered

before the Assessing Officer as well as before him is false or not

bonafide or has not been substantiated. While cancelling such an

order,     the   Commissioner   in    his   revisionary   jurisdiction   has    to

demonstrate, as to, on what ground the order of the Assessing Officer

is unsustainable either on facts or in law. Once in the assessment

order itself, there is no reference of any incriminating material qua the

additions made except for accepting the offer of the assessee of

undisclosed income, then at the penalty stage what kind of enquiry

was required to be done by the Assessing Officer has not be elaborated

by   the     Commissioner.   At      the    penalty   proceedings,    the    only

requirement was to see whether the assessee has been able to adduce

proper explanation or not or he has been able to substantiate its bona
                                                       M/s. Mahavir Builders

                                                                        15

fide at the time of filing of return of income. This has not been culled

out by the learned Commissioner. Thus, on these facts, it cannot be

held that the Commissioner was justified in cancelling the order of the

Assessing Officer for dropping the penalty proceedings under section

271(1)(c). Further, from the explanation which were furnished before

the Assessing Officer, it is seen that such an explanation are quite

bonafide and they have not been found to be false. Once such an

explanation has been accepted, then the Assessing Officer has formed

a considered opinion which cannot be held to be erroneous, unless an

opinion is based on incorrect assumption of facts or incorrect

application of law. Merely because some different opinion could have

been drawn by the Assessing Officer, this itself cannot justify the

revision of the order under section 263 by the Commissioner. This

preposition is still settled by the Hon'ble Supreme Court in Malabar

Industrial Co. (supra) and in CIT v/s Max India Ltd, [2007] 295 ITR

282 (SC). For the assessment year 2008­09, there is also one

additional factor that the income which was offered by the assessee

was 139(1) and that too such an income has been offered with proper

explanation which has not been found to be false and unsubstantiated.

Here are aspect which is very important to note is that, for this year

penalty u/s 271AAA is not an issue for consideration before us, but

penalty u/s 271(1)(c), same application of Explanation 5A.
                                                              M/s. Mahavir Builders

                                                                               16

13.    At this stage, it has been brought on record that in set aside

proceedings,   the    Assessing   Officer   in   a   very   detail order      has

deleted/dropped the penalty on most of issues. This itself goes to show

that the impugned order of CIT was not justified on merits also.

However, our finding as given above is sans the subsequent events.

Thus, on the present facts of the case, we are of the opinion that the

order of the Assessing Officer for dropping the penalty proceedings

under section 271(1)(c) for the assessment year 2002­03 and 2004­

05 and 2008­09, is neither erroneous nor prejudicial to the interests of

Revenue within the meaning of section 263 and, accordingly, such an

order cannot be set aside by the Commissioner under the revisionary

power of 263. Accordingly, all the three appeal of the assessee are

treated as allowed.

14.   Various other arguments advanced by both the parties are not

addressed in view of our finding given above.

15.   In the result, assessee's appeals for the assessment year 2004­

05, 2002­03 and 2008­09 are allowed.

      Order pronounced in the open Court on 26th November, 2014.
           Sd/-                                                Sd/-
            Sd/-                                                    Sd/-
        ..
        .. [                                                    È
                                                              Û 
      R.C. SHARMA                                             AMIT SHUKLA
  ACCOUNTANT MEMBER                                         JUDICIAL MEMBER


 MUMBAI,  DATED: 26.11.2014
                                            M/s. Mahavir Builders

                                                             17

     / Copy of the order forwarded to:

(1)   [ / The Assessee;
(2)    / The Revenue;
(3)    () / The CIT(A);
(4)     / The CIT, Mumbai City concerned;
(5)    ,   ,  / The DR, ITAT, Mumbai;
(6)   [  / Guard file.
                                  ×  / True Copy
                                    / By Order
*Srivastava


                           /   / (Dy./Asstt. Registrar)
                            ,  / ITAT, Mumbai


[       / É           

 
 
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