TMI Blog2021 (12) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... concealed income and when the assessee was confronted with the same he had no other alternative but to admit that he had indeed concealed the particulars of income and he in the due course of time came out with a correct calculation of his undisclosed income. Thus, the assessee having not disclosed the income in the return of income filed under section 139[1] but has shown the same in the return in response to the notice under section 153C cannot be said to be voluntary. With regard to the alleged defect in the notice issued under section 274 of the Act, either on the ground that the relevant portions have not been clearly indicated or that satisfaction of the Assessing Officer has not been properly made was not canvassed before the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sushil Kuamr Mishra, Adv. For the Respondent: Mr. J. P. Khiatan, Sr. Adv. Ms. Swapna Das, Adv. Mr. Siddharth Das, Adv. T. S. SIVAGANANAM, J. : The Court : This appeal by the Revenue filed under section 260A of the Income Tax Act, 1961 [the Act, in brevity] is directed against the composite orders dated 6.4.2016 passed by the Income Tax Appellate Tribunal A Bench, Kolkata in ITA Nos.1238 to 1243/Kol/2011 for the assessment years 2002-03 to 2007-08 and in ITA No.1183 to 1187/Kol/2011 for the assessment years 2002-03 to 2005-06 and 2007-08 respectively. The Revenue has raised the following substantial questions of law for consideration. a. Whether on the facts and in the circumstances of the case the learned Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual details may not be required to be considered and it will suffice to note that the assessment was completed by the Assessing Officer by order dated 31.12.2009 under section 143[3] read with section 153C of the Act. In the said order the Assessing Officer stated that the penalty proceedings under section 271[1][c] of the Act will be initiated separately. This leads to issuance of show cause notice dated 31.12.2009 calling upon the assessee to show cause as to why penalty should not be imposed on them. The assessee participated in the opportunity of hearing granted by the Assessing Officer and raised various contentions including the contentions that merely because the assessee has offered an additional income after the search and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the assessee and in paragraph 16 after briefly discussing the facts of Satyananda Achariya Biswas s case the Tribunal has extracted the decision almost in its entirety and the finding of the Tribunal is in paragraph 17. The Tribunal would state that respectfully following the decision in the said case it holds that the penalty levied under section 271[1][c] of the Act is liable to be cancelled on the ground that there was no proper recording of satisfaction in the order of assessment and that the show cause notice under section 274 of the Act does not satisfy the specific charge against the assessee. We have gone through the order of assessment and the order passed under section 271[1][c] of the Act. The first contention raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant portions have not been clearly indicated or that satisfaction of the Assessing Officer has not been properly made was not canvassed before the CIT[A]. This contention appears to have been canvassed for the first time before the Tribunal. It may be true that the Tribunal being the last fact finding forum in the hierarchy is entitled to examine an issue qua the assumption of jurisdiction of the authority to initiate proceedings as it may be argued by the assessee that the said issue goes to the root of the matter. Be that as it may, if the Tribunal proposes to undertake such an exercise then it should do so after hearing the assessee and the Revenue also and the reasons of its satisfaction for accepting the case of the assessee should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axmann.com 36 [SC]. In the light of the aforesaid discussion, we are of the view that more thorough exercise is required to be done by the Tribunal on the issue with regard to the levy of penalty which was sustained by the CIT[A] on the ground whether the additional income offered by the assessee in the return filed pursuant to notice under section 153C could be taken to be not voluntary and whether it could be treated imposition of penalty. Similarly, with regard to the validity of the notice also needs to be considered after taking note of the factual position. For the above reasons, the appeal is allowed and the order passed by the Tribunal is set aside and the matter is remanded to the Tribunal for fresh consideration on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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