S & P Foundation Pvt. Ltd.,Old v. Assistant Commissioner Of Income Tax,Central Circle-Iv(2)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.9.2020 CORAM THE HON'BLE DR.JUSTICE VINEET KOTHARIANDTHE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY Tax Case (Appeal) No.840 of 2017 S & P Foundation Pvt. Ltd.,Old No.27, New No.38, Madley Road, T.Nagar,Chennai 600 017. PAN: AAICS 0224K... Appellant Vs. Assistant Commissioner of Income Tax,Central Circle-IV(2),46, Nungambakkam High Road, Chennai 600 034. ... Respondent Tax Case (Appeal) filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, 'C' Bench, Chennai, dated 6.6.2017 made in ITANo.2084/Mds/2013, as against the order of the Commissioner of Income Tax(Appeals)-II No.46(Old No.108) Mahatma Gandhi Road, Chennai-34made in ITA No.223/10-11/A.11 dated 05/12/2012 as against theorder of the Assistant Commissioner of Income Tax Central CircleIV(2), Chennai-34 in PAN/GIR No.AAICSO224K dated 30/12/2009 forthe Assessment Year 2006-2007. (Delivered by DR.VINEET KOTHARI,J) The Assessee has preferred this Tax Case under Section 260-A of the Income Tax Act aggrieved by the order dated 6.6.2017for the Assessment Year 2006-2007, restoring the penalty underSection 271(1)(c) of the Act by reversing the order passed by https://hcservices.ecourts.gov.in/hcservices/ the learned Commissioner of Income Tax (Appeals) in favour ofthe Assessee by which the learned Commissioner of Income Tax(Appeal) deleted the said penalty. 2. The substantial questions of law raised in this Appealare as under:-"Perverse finding in respect of Return u/s.139(1)of the Act (i) Whether on facts and in the circumstances,order of the Income Tax Appellate Tribunal wasperverse in holding that the Assessee had notoriginally filed his return of income u/s.139(1)of Income Tax Act, 1961, on 30.11.2006? Tribunal exceeded its jurisdiction (ii) Whether on the facts and the circumstances ofthe case, the Income Tax Appellate Tribunal hasexceeded its jurisdiction, when there was noground raised by the Department and withoutaffording any opportunity to the Assessee,proceeded to hold that the Assessee shall beliable for penalty even on the income declaredu/s.139(1) on 30.11.2006, which was prior to thesearch on 10.01.2008?(iii) Whether on the facts and in thecircumstances of the case, the Income TaxAppellate Tribunal was right in law in upholdingthe levy of penalty u/s.271(1)(c) of the Act onthe entire income including the income declared inthe original return of income which was not asubject matter of the Appeal before it?Penalty on additional income offered in returnfiled in response to notice u/s.153A (iv) Whether on the facts and in the circumstancesof the case, the Income Tax Appellate Tribunal wasright in law in upholding the levy of penaltyu/s.271(1)(c) of the Act in respect of additionalincome offered in return filed in response tonotice u/s.153A of Income Tax Act, 1961? (v) Whether on facts and in the circumstances, theIncome Tax Appellate Tribunal is right in law inholding that the explanation provided by theAssessee in respect of additional incomevoluntarily disclosed was not satisfactory todelete the penalty u/s.271(1)(c) of Income TaxAct, 1961? Penalty on disallowance u/s.40(a)(ia) (vi) Whether on facts and in the circumstances,the Income Tax Appellate Tribunal is right in lawin holding that mere disallowance u/s.40(a)(ia) ofIncome Tax Act, 1961, made in the assessment would not amount to concealment of income or furnishingof inaccurate particulars of income for levyingpenalty u/s.271(1)(c) of the Act? Validity of Initiation of penalty (v) Whether on facts and in the circumstances, theIncome Tax Appellate Tribunal is right in law inholding that the explanation provided by theAssessee in respect of additional incomevoluntarily disclosed was not satisfactory todelete the penalty u/s.271(1)(c) of Income TaxAct, 1961? Penalty on disallowance u/s.40(a)(ia) (vi) Whether on facts and in the circumstances,the Income Tax Appellate Tribunal is right in lawin holding that mere disallowance u/s.40(a)(ia) ofIncome Tax Act, 1961, made in the assessment would not amount to concealment of income or furnishingof inaccurate particulars of income for levyingpenalty u/s.271(1)(c) of the Act? Validity of Initiation of penalty (vii) Whether on facts and in the circumstances,the Income Tax Appellate Tribunal is right in lawin not holding that initiation of penalty byissuance of notice under section 274 read withsection 271(1)(c) of the Income Tax Act, 1961 tobe bad in law as it did not specify which limb ofsection 271(1)(c) of the Act, the PenaltyProceedings had been initiated?" 3. The findings of the learned Commissioner of Income Tax(Appeals) in this regard are quoted below for ready reference:-"6. l have carefully considered the facts of the caseand the submission made by the ld. AR. I have alsogone through the decisions relied on by the ld. AR. Ihave also gone through the returns of income filedon 30.11.2006 and 12.8.2009. It has wrongly beenstated in the penalty order that the appellant hadnot filed any return of income u/s.139 of the Act.The assessee had e-filed his return for AY 2006-07 on28.11.2006 declaring income of Rs.1,01,46,668/-.Subsequently, in response to the notice u/s.153Adated 29.9.2008, it filed return on 12.8.2009admitting income of Rs.2,55,13,240/- inclusive ofadditional income of Rs.1,53,98,570/- by withdrawingclaim of land development charges. In the assessmentorder, the same was accepted with a further additionof Rs.13,000/- only u/s.40(a)(ia). Thus, the totalincome determined was Rs.2,55,26,240/-. The AO haslevied penalty on the entire asseesed income. Themain contention of the AO is that but for searchoperation u/s.132, the assessee would not havedisclosed the income filed in response to noticeu/s.153A. While doing so, he has ignored the returnfiled by assessee before the date of search on28.11.2006 declaring income of Rs.1,01,46,668/-. Nopenalty could be levied on such voluntary incomeadmitted by the assessee u/s.139(1) prior to thedate of search. Hence, the issue for adjudication isthe additional income of Rs.1,53,98,570/- towardswithdrawal of land development charges andRs.13,000/-being disallowance u/s.40(a)(ia). 6.1. As regards the penalty on additional amount ofRs.1,53,98,570/-,beingwithdrawaloflanddevelopment charges, the AO has stated that but forsearch, the assessee would not have disclosed anyincome filed in response to notice u/s.153A. He has, however, not given any definite finding as to how itconstitutes concealed income. While considering anappeal against an order made u/s.271(1)(c), what isrequired to be examined is the record which the AOimposing penalty had before him and if that recordcan sustain that there has been concealment orfurnishing inaccurate particulars of income, thatwould be sufficient to sustain the penalty. At thisjuncture, it would be appropriate to note that theExplanation contained section in u/s.271(1)(c) isself contained in that it treats every differencebetween the reported and assessed income as concealedincome, but at the same time, provides the criteriawhere penalty would be warranted. Penalty is leviablefor concealment where an assessee fails to offer anyexplanation for a difference or offers anexplanation, which is found to be false. In theinstant case, the amount has been voluntarily offeredby the appellant in the return of income u/s.153A bywithdrawing the land development expenses debited tothe profit and loss account. The appellant has beenable to offer an explanation which is satisfactory.Further, as submitted by the ld. AR, taxes have alsobeen paid on the admitted income. The decision of theHon’ble Supreme Court in the case of CIT v. SureshChandra Mittal 259 ITR 9 (SC) is relevant in such asituation. The Hon'ble Supreme Court held thatpenalty is not leviable if the assessee files revisedreturn offering additional income. In that case, theassessee had originally filed returns showing meagreincome. When, after search action u/s.132, a noticeu/s.148 was served on him, he filed revised returnsshowing higher income. Subsequently, assessment orderwas passed and the return submitted was regularizedu/s.148. In penalty proceedings u/s.271(1)(c), theassessee claimed that he offered additional income tobuy peace of mind and avoid litigation. A.O. did notaccept the contention and levied penalty which wasconfirmed by CIT(A). But the ITAT held that thedepartment has not discharged its burden of provingconcealment and had simply rested its conclusion onthe act of voluntary surrender done by assessee ongood faith, and that penalty order could not belevied on such income. On a reference, the Hon'bleHigh Court held that no penalty could be levied forconcealment. The Department preferred appeals to theHon'ble Supreme Court. The Hon'ble Supreme Courtdismissed the appeals holding that no interferencewith the order of the High Court was called for. (251ITR 9). There is no reason as to why the ratio of the above decision will not be applicable to the facts ofthe present case. Here also, a search action u/s.132was carried out at the premises of the assessee. Theappellant had filed original return of income on28.11.2006 declaring income of Rs.1,01,46,668/-.Subsequent to search u/s.132, it filed return ofincome in response to the notice u/s.153A wherein ithas offered additional income of Rs.1,53,98,570/- bywithdrawing the claim of land development expenses.The AO has also accepted the above income in theassessment order. There is no definite findingregarding concealment of income of furnishing ofinaccurate particulars of such income. The appellantdid not file any appeal because addition ofRs.13,000/- only was made u/s.40(a)(ia) to thereturned income. Moreover, it is well settled thatassessment and penalty proceedings are separate. Inview of these facts and respectfully following theabove decision, I am of the considered opinion thatpenalty cannot be levied on the additional incomeoffered by the assessee. 6.2. As rewards disallowance u/s.40(a)(ia), it may bestated that penalty was not initiated on thisaddition of Rs.13,000/- in the assessment order.However, penalty has been levied because the entireassessed income was subjected to penalty u/s.271(1)(c). The Hon'ble ITAT(SB), Vishakhapatnam in the caseof Merilyn Shipping & Transport v. Addl. CIT, (2012)20 taxmann.com 244 has held that provisions ofsec.40(a)(ia) are applicable only to amounts ofexpenditure payable as on 31st March of the previousyear and not to actual amounts paid during theprevious year without deduction of TDS. When theaddition itself is not sustainable, there is noquestion of levy of penalty on such addition. TheHon'ble Supreme Court in CIT v. ReliancePetroproducts Pvt. Ltd., 322 ITR 158 has also heldthat disallowance of expenses per se will not amountto furnishing inaccurate particulars of income.Hence, the penalty is not leviable on this addition.In the result, the ground is allowed." 4. The Revenue, aggrieved by the order of the learnedCommissioner of Income Tax (Appeals), preferred Appeal beforethe learned Tribunal with the following grounds:-" GROUNDS OF APPEAL BY THE DEPARTMENT1. On the facts and the circumstances of the case,the ld. CIT(A) erred in deleting the penalty leviedu/s.271(1)(c) of I.T.Act, on the additional income ofRs. 1,58,98,570/-. https://hcservices.ecourts.gov.in/hcservices/ 2. On the facts and the circumstances of the case,the ld. CIT(A) failed to appreciate that theExplanation 5A to the section u/s.271(1)(c) of I.T.Act, clearly attracts in the-case of the Assessee asthe additional income of Rs.1,58,98,570/- was offeredin the return of income filed post search and no suchincome was disclosed in the original return of incomefiled by the assessee." 5. The learned Tribunal allowed the Appeal of the Revenueby a detailed order, apparently going beyond the grounds raisedby the Revenue before it in the Memorandum of Appeal, whilerestoring the penalty on both the grounds viz., alleged non-disclosure of income and by voluntary surrender of income in thereturn of income filed by it to the extent of Rs.1,53,99,000/-which was claimed to be an expenditure for Land DevelopmentCharges debited to Profit and Loss Account, which later on, theAssessee did not claim in the revised return filed afterissuance of notice under Section 148 of the Act had been issuedon 12.8.2009. The learned Tribunal also restored the penaltyunder Section 271(1)(c) of the Act for the disallowance ofRs.13,000/- under Section 40(a)(ia) of the Act which was notfound in the grounds raised by the Revenue in the Appeal beforeit. 6. The relevant portion of the impugned order dated6.6.2017 for Assessment Year 2006-2007 passed by the learnedTribunal is quoted below for ready reference:- 6. The relevant portion of the impugned order dated6.6.2017 for Assessment Year 2006-2007 passed by the learnedTribunal is quoted below for ready reference:- "3. Before us, the admitted position was that noreturn of income had been filed prior to the date ofsearch and had been only after the issue of noticeu/s.153A, on 12/8/2009. While the Revenue relied onthe findings in assessment and the penalty orders,the ld. AR would on the decisions in RawatmalHarakchand v. CIT (1981) 129 ITR 346 and inP.V.Doshi v. CIT (1978) 113 ITR 22, averring thateven the initiation of the penalty is bad in law. 4. We have heard the parties, and perused thematerial on record. 4.1. We may proceed by delineating the respectivecases of the parties before us. The Revenue’s caseis that the filing of the return by the assessee isonly subsequent to the search and upon discoveringthat it had no reasonable explanation for the‘advance from allottees' credited in its books incash, in the like sum, i.e., Rs.153.99 lakhs,corresponding to the expenditure booked under theaccount head 'development charges’, and which isadmittedly on money paid to the persons from whomland or rights therein had been acquired. The basis for the relief by the first appellate authority isthat the assessee having already filed its return on30/11/2006, it is only the additional income (ofRs.153.99) lacs offered per the return u/s.153A, orthe disallowance effected in assessment, that couldat all be considered for the purpose of levy ofpenalty under section 271(1)(c). The latter was onthe basis that the amount was not payable as at theyear-end, even as advocated by the Tribunal inMarilyn Shipping & Transport v. Addl. CIT [2012] 16ITR (Trib) 1 (Vish)(SB) (refer para 6.2 of theimpugned order). With regard to the former, therewas no finding as to concealment or furnishinginaccurate particulars of income by the AO, who hadmerely inferred that the assessee would not have‘returned’ its income but for the search thereon.The burden to prove that it was not a case of avoluntary surrender of income, made in good faith,is on the Revenue, which it had not discharged. Theassesses has only offered the income to buy peace ofmind. He, accordingly, deleted the penalty on theentire sum, relying on the decision in the case ofCIT v. Suresh Chandra Mittal (2001) 251 ITR 9 (SC),wherein, similarly, notice u/s.148 had been issuedafter search action u/s.132, in response to whichthe assessee had offered a higher income (refer para6.1).The penalty, which stands levied on the entireassessed income, would accordingly need to beconsidered separately for each of the three sumscomprising it. While the Revenue maintains that noreturn of income had been filed prior to 12/8/2009,the ld. CIT(A) has allowed relief to the assessee(on the regular business profit as per it’s books ofaccount) on the basis that the same had been dulyreturned on 30/11/2006. The issue thus turns on amatter of fact, i.e., whether or not the assesseehad filed its return of income on 30/11/2006, theonly return admittedly furnished by it prior to thatu/s.153A on 12/8/2009. It is indeed surprising thatthere should be any ambiguity and, further,continuing up to the second appellate stage, on sucha simple matter of fact. Where the assessee hasfiled a return on 30/11/2006, the same-wouldnecessarily be receipted, i.e., carry a receiptnumber and, besides, would have been processedu/s.143(1)(a). Be that as it may, where furnished,there is no question of the assessee being subjectto penalty thereon, while, where not, the same isreturned for the first time only on 12/8/2009, even as the same is only as per its books of account,found and seized in search. Accordingly, theassessee having not furnished any explanation fornot returning the income chargeable to tax, it shallbe liable for penalty on the income of Rs.101.15lakhs. The issue is in fact squarely covered byExplanation 3 to section 271(1)(c), which reads asunder; the time period prescribed u/s.153 expiringon 31/3/2009: ‘Explanation 3. -- Where any person fails,without reasonable cause, to furnish within theperiod specified in sub-section (1) of section153 a return of his income which he is requiredto furnish under section 139 in respect of anyassessment year commencing on or after the 1stday of April, 1989 and until the expiry of theperiod aforesaid, no notice has been issued tohim under clause (i) of sub-section (1) ofsection 142 or section 148 and the AssessingOfficer or the Commissioner (Appeals) issatisfied that in respect of such assessmentyear such person has taxable income, then, suchperson shall, for the purposes of clause (c) ofthis sub-section, be deemed to have concealedthe particulars of his income in respect of suchassessment year, notwithstanding that suchperson furnishes a return of his income at anytime after the expiry of the period aforesaid inpursuance of a notice under section 148.' In this regard, however, we observe from theassessment order that the assessee had paid 'advancetax' at Rs.35 lacs. The computation of penalty,which stands levied at 100 per cent of the taxsought to be evaded shall, in the present case, bewith reference to Explanation 4(b) to S.271(1)(c),reading as under, which allows credit for theadvance tax. Without doubt, interest u/ss.234A,234B, and 234C shall, in View of S.140A, chargeableup to, the date/s of the payment of advance-tax,have to be appropriated first, and only the balanceamount regarded in law as the amount of advance-taxpaid by the assessee for the relevant year: Explanation 4 -- For the purposes of clause (iii) of this sub-section, the expression “theamount of tax sought to be evaded”, -- (a) .... (b) in any case to which Explanation 3applies, means the tax, on the total incomeassessed as reduced by the amount of advancetax, tax deducted at source, tax collected at source and self-assessment tax paidbefore the issue of notice under section148; (c)..." Explanation 4 -- For the purposes of clause (iii) of this sub-section, the expression “theamount of tax sought to be evaded”, -- (a) .... (b) in any case to which Explanation 3applies, means the tax, on the total incomeassessed as reduced by the amount of advancetax, tax deducted at source, tax collected at source and self-assessment tax paidbefore the issue of notice under section148; (c)..." We decide accordingly, with the AO computingthe penalty, where no return has been filed on30.11.2006, allowing credit for the advance tax.4.2. Next, we may discuss the aspect of levy ofpenalty on the sum of Rs.153.99 lacs offered asadditional income per the S.153A return. Explanation5A to S.271(1)(c) of the Act reads as under: 'Explanation 5A --- Where in the course of asearch initiated under section 132 on or afterthe 1st day of June, 2007, the assesses isfound to be the owner of,-- (i) any money, bullion, jewellery or otherva1uable article or thing (hereinafter inthis Explanation referred to as assets) andthe assessee claims that such assets havebeen acquired by him by utilizing (whollyor in part) his income for any previousyear; or. (ii) any income based on any entry in anybooks of account or other documents ortransactions and he claims that such entryin the books of account or other documentsor transactions represents his income(wholly or in part) for any previous year,which has ended before the date of thesearch and, -(a) where the return of income for suchprevious year has been furnished before thesaid date but such income has not beendeclared therein; or (b) the due date for filing the return ofincome for such year has expired and theassessee has not filed the return, then,notwithstanding that such income isdeclared by him in any return of incomefurnished on or after the date of thesearch, he shall, for the purposes ofimposition of a penalty under clause (c) ofsub-section (1) of this section, be deemedto have concealed the particulars of hisincome or furnished inaccurate particularsof such income. Where, therefore the assessee is found in the courseof search to be the owner of any asset, the sourceof which is attributable to income, or otherwise as the owner of any income (for any previous year)based on any entry in the books of account,documents or transactions, which has not beendisclosed per the return of income for the relevantyear ended prior to the date of search (or inrespect of which year no return had been fileddespite the expiry of the due date for furnishingthe return of income as on the date of search),then, notwithstanding it being returned as incomeper the return filed subsequent to be deemed to haveconcealed the particulars of his income or furnishedinaccurate particulars of income, i.e., per thereturn of income as furnished. the owner of any income (for any previous year)based on any entry in the books of account,documents or transactions, which has not beendisclosed per the return of income for the relevantyear ended prior to the date of search (or inrespect of which year no return had been fileddespite the expiry of the due date for furnishingthe return of income as on the date of search),then, notwithstanding it being returned as incomeper the return filed subsequent to be deemed to haveconcealed the particulars of his income or furnishedinaccurate particulars of income, i.e., per thereturn of income as furnished. In the facts of instant case, the assesseehaving returned the additional income of Rs.153.99lacs in pursuance to notice u/s.153A, which itadmits as having done voluntarily, how, we wonder,is it not a case squarely governed by the saidExplanation 5A. The assessee in fact admits to thesum credited to the account 'advance from allottees'as representing it's income. The same, it needs tobe appreciated, does not explain, much lesssatisfactorily the nature and source of the saidcredit so that section 68, deeming the same as theassessee's income for the current year, shall applywith full force. Who are the allottees? What istheir creditworthiness? Have they confirmed payingthe same, representing the money paid to the sellersof land? Why, again, if they have, is the amount notreflected as the sale proceeds of the relevant realestate/property, having been recovered from theallottees by the assessee as a part of the cost, orotherwise charged to them? This is all the more soas the assessee has claimed and been alloweddeduction (in computing its regular profit) inrespect of expenditure of its business by way of onmoney paid to the sellers of land, as ‘developmentcharges’. How does it, in any case, represent aliability of the assessee? In fact, to the extentthe assessee has received money, duly entered inits' books of account, the same is also coveredunder clause (i), i.e., besides clause (ii), ofExplanation 5A. The facts and circumstances of thecase are squarely covered by the said provision,even as observed by the Bench during hearing, to nosatisfactory answer by the ld. AR. The ld. CIT(A)has in our view completely misled himself in thematter by not considering a direct provision of law,clearly applicable in the facts and circumstances ofthe case. In fact, that the AO has not referred to it is not relevant in-as-much as the provision oflaw (section), is to be read along with Explanationappended thereto, with there being no estoppelagainst law (also refer: CIT v. Durga Prasad More(1971) 82 ITR 540 (SC)). The scope for the non-application of the said Explanation is only wherethe assessee does not admit the same as its' income,which then becomes a subject matter of disputebetween the assessee and the Revenue. Again, in viewof the foregoing, reference to the admission beingvoluntary, or to the decisions, as the case ofSuresh Chandra Mittal (supra), is completelymisplaced. As afore-noted, that the income isadmitted, and the disclosure voluntary, is thereason or the basis for the application ofExplanation 5A. Even on facts, it is to beappreciated that it is the search and theconcomitant discovery of the books of account, dulycompleted, reflecting the said credit as well asexpenditure claimed, that has led to the disclosure,with the assessee having no answer to the variousaspects of the credit or the amounts credited to theaccount head ‘advance to allottees’ as well as thecorresponding debit to the account ‘developmentcharges’, claimed as deduction. There is noconfirmation from the transferor/s of the realestate to having received on money, i.e., qua theamount debited to the said (latter) account, whichhas in any case been claimed and allowed asdeduction.As explained in Mak Data (P) Ltd. v. CIT (2013)358 ITR 593 (SC), the plea as to the disclosurebeing only to buy peace of mind, etc., is only aruse or a make believe. The assessee’s case, on thecontrary, is squarely covered against it by thedecisions in the case Mak Data (P) Ltd. (supra);K.P.Madhusudhahan v. CIT (2001) 251 ITR 99 (SC); andCIT v Zoom Communications P. Ltd (2010) 327 ITR 510(Del.) to name some, being clearly applicable in thefacts and circumstances of the case, qua additionalincome. And considered either way, irrespective ofwhether the assessee has filed, or not filed, thereturn of income on 30/11/2006. Both Explanation 5A,as well as Explanation 1 to S.271(1)(c) are,accordingly,attractedinthefactsandcircumstances of the case for the said sum. Wedecide accordingly (also refer page 4.4). 4.3. Finally, we may discuss the aspect ofdisallowance under section 40(a)(ia) effected atRs.13,000. The ld. CIT(A) has directed deletion on the basis of the corresponding amount being notpayable as at the year-end following MerilynShipping & Transport (supra). The plea is valid.However, we observe no explanation by the assesseeto that effect; rather, whatsoever. And,consequently, absence of any finding by anyauthority. The matter would accordingly have to goback to the file of the AO to determine as a matterof fact whether the amount disallowed outstands, inwhole or in part, as at the year-end, so that to theextent it outstands, no penalty would be exigible.Where, and to the extent not, an absence of anyexplanation would justify the levy of penalty under271(1)(c) We decide accordingly." 7. We have gone through the order of the learned Tribunal,which was almost fully read out by the learned counsel for theAssessee before us. 7. We have gone through the order of the learned Tribunal,which was almost fully read out by the learned counsel for theAssessee before us. 8. We are of the opinion that the matter deserves to beremanded back to the learned Tribunal as it seems, prima facie,that the learned Tribunal has not only committed some factualerrors in respect of filing of return of income by the Assesseebut also invoked Explanation 3 and 5A of Section 271(1)(c) ofthe Act with respect to the alleged non-filing return of incomeby the Assessee in pursuance of notice issued after the Searchwhich took place in the business place of the Assessee and sucha revised Return was filed by the Assessee voluntarilysurrendering such income of Rs.1,53,99,000/- and whileapparently surrendering all the income on its own by theAssessee ought not to have attracted penalty for concealmentunder Section 271(1)(c) of the Act, the learned Tribunal has notonly restored the penalty by the impugned order but alsorestored the penalty on the issue for which no ground was raisedin the Grounds of Appeal filed by the Revenue before it. TheExplanations which give rise to presumption of concealment arerebuttable presumptions and therefore without discussing thosefacts about such rebuttal or otherwise, the Penalty could not bereimposed by the Tribunal particularly when it was reversing theorder of the learned Commissioner of Income Tax (Appeals) inthis regard, who found the explanation of the Assesseesatisfactory and had deleted the penalty in question. 9. Therefore, without commenting any further on the orderpassed by the learned Tribunal, we are of the opinion that thelearned Tribunal ought to decide the Appeal again after givingopportunity to both the parties afresh on the grounds of Appealraised by the Revenue. Therefore, without answering thequestions of law raised before us, we set aside the order passedby the learned Tribunal on 6th June 2017 for the Assessment Year 2006-2007 in respect of penalty under Section 271(1)(c) of theAct and we request the learned Tribunal to decide the Appealagain in accordance with law after giving opportunity to boththe parties, discussing the relevant facts. With the above observation, the Appeal is disposed of. Nocosts. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrarssk.To1. The Income Tax Appellate Tribunal, 'C' Bench, Chennai.2. The Assistant Commissioner of Income Tax, Central Circle-IV(2), 46, Nungambakkam High Road, Chennai 600 034.3. S & P Foundation Pvt. Ltd., Old No.27, New No.38, Madley Road, T.Nagar, Chennai 600 017. 4. The Commissioner of Income Tax (Appeals)-II, No.46, (Old No.108) Mahatma Gandhi Road, Chennai-34. T.C.(A) No.840 of 2017spd[co]srg 05/11/2020