SURESH MOHAN KANWAR,MUMBAI vs. ASST CIT CEN CIR 20, MUMBAI

PER BENCH:

These twelve appeals, filed by the two different assessee‟s namely Mrs Samita Suresh Kanwar and Mr. Suresh Mohan Kanwar , being ITA No. 64-69/Mum/2016 & 70-75/Mum/2016 are for AY 2006-07 to 2011-12, and are directed against the two common appellate orders both dated 19.10.2015 passed by the learned Commissioner of Income Tax

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 (Appeals)-51, Mumbai, [in short CIT(A)] for AY 2006-07 to 2011-12 with respect to these two different assessee, the appellate proceedings had arisen before the learned CIT(A) from the separate penalty orders all dated 28.08.2014 passed by the learned Assessing Officer (in short „AO‟) under section 271(1)(c) of the Income Tax Act, 1961(hereinafter „the Act‟) with respect to both the assessee for assessment years 2006-07 to 2011- 12.

“1. The learned Commissioner of Income Tax (Appeals) erred in upholding the Assessing Officer‟s action of levying penalty of ₹ 20,00,000 u/s 271(1)(c) of the Income Tax Act, 1961 („Act‟), in respect of income of ₹ 45,39,799/-.

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 3. The penalty of more than 200% of alleged amount of tax evaded was excessive and not justified.

Relief Sought

Your appellant prays that the order of the learned Assessing Officer may be modified by deleting the penalty of ₹ 20,00,000 levied by the Assessing Officer. ”

“Re: Confirmation of levy of penalty u/s 271(1)(c) by CIT(A) for default other than one mentioned while recording satisfaction by the AO in assessment order.

“The learned Commissioner of Income Tax (Appeals) erred in confirming the penalty levied by the assessing officer under section 271(1)(c) on ground that there is a concealment of particulars of income when the learned assessing officer initiated penalty for furnishing inaccurate particulars of income as well as levied penalty for furnishing inaccurate particulars of income.”

The above additional ground of appeal is an legal ground and in the interest of justice is hereby admitted keeping in view decision of Hon‟ble Supreme Court in the case of National Thermal Power Company Limited v. CIT reported in (1998)229 ITR 383(SC).

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 Medicare Group along with other groups concerns and individual entities on 16.09.2011. The assessee is a Director in Universal Group and was covered under the search and seizure action under section 132(1) of the Act conducted by Revenue on the Universal Group. Notice dated 18.01.2013 under section 153A was issued by the AO and served on the assessee. The assessee filed return of income u/s 153A declaring total income of ₹ 96,26,930/- while the original return of income was filed under section 139(1) of the Act on 30.07.2011 declaring total income at ₹ 51,23,570/-, the difference in the income declared was on account of the following income: -

“

1 Long term capital gain Rs 37,10,221 Rs 2 Short term capital gain 1,32,995 Rs 3 Income from other sources (Interest on FD from Co-op 91,137 banks) Rs 4 Income from other sources (Interst on FD from other 2,36,620 banks) Rs 5 Income from other sources (Bank Interest) 6,408 Rs 6 Income from other sources (Receipt of Super Annuation 3,38,418 Fund) Rs 7 Income From other sources (Pension from LIC VBPY) 24,000 -------------- Rs 45,39,799 Total -------------- The return filed u/s 153A was accepted and the AO initiated the penalty proceedings under section 271(1)(c) of the Act for furnishing of inaccurate particulars of income , in the return of income, leading to the concealment of the income , which found mentioned in the assessment order dated 25.02.2014 for AY 2011-12 passed by the AO under section 143(3) read with section 153A of the Act.

During the course of penalty proceedings, the main bone of contention of the assessee was that assessee was under impression that long term capital gain arising from the sale of shares of Universal Medicare Private Limited is not chargeable to tax in view of provisions of Section 10(38)

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 and hence the same was not offered for tax in return of income filed u/s 139(1), but fact of the matter was that since no STT was paid at the time of selling/buy-back of the said shares which were bought back by the company , the long term capital gains were chargeable to tax and no exemption u/s 10(38) from taxation was available. Thus, it was contended that the assessee was under impression that the said long term capital gain on buy back of the shares were not chargeable to tax and hence the same was not offered for taxation in return of income filed u/s 139(1) but the same was offered for taxation in return of income filed u/s 153A pursuant to search conducted by Revenue u/s 132(1). Similarly, in respect to other incomes which were mainly interest income from bank accounts including fixed deposits, saving banks and also receipt from superannuation funds/Pension from LIC VBPY were all in-fact chargeable to tax but were not offered for tax in the return of income filed u/s 139(1) on the pretext that the assessee was ill advised by his chartered accountant that the same were not chargeable to tax which led assessee not to offer the said income to tax , but the said incomes to the tune of Rs.45,39,799/- were all offered to tax in return of income filed by the assessee u/s 153A pursuant to search conducted by Revenue u/s 153A. The Return of income filed u/s 153A in pursuant to search u/s 132(1) was accepted by the AO.

The AO observed that the assessee was required to disclose all the material facts in the return of income filed under 139(1) and the assessee filed inaccurate particulars of income in the return of income filed with the Revenue u/s 139(1). The AO also observed that the assessee did not offer satisfactory explanation w.r.t. filing inaccurate particulars of income in return of income filed u/s 139(1). The AO also observed that the assessee declared these income only after the same were detected during the course of search operations conducted by Revenue u/s 132(1)

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 and only after when the assessee was confronted as to the same by the Revenue. The AO observed that the assessee made false declaration/claim in return of income filed u/s 139(1) and AO after going through several case laws held that the assessee has deliberately and knowingly made false claims and concealed/ furnished inaccurate particulars of income and penalty of 200% was levied u/s 271(1)(c). The AO observed that as the assessee had failed to offer satisfactory explanation as to not declaring the said income and had concealed the particulars of income and explanation 1 to Section 271(1)(c) is attracted and the assessee has clearly furnished inaccurate particulars of income whereby the assessee had made itself liable for penalty u/s 271(1)(c) , the AO relied on the several case laws including decision of Hon‟ble Supreme Court in the case of UOI v. Dharmendra Textiles Processors & Ors. (2008) 306 ITR 277(SC) and decision of Hon‟ble Supreme Court in the case of MAK Data P. Ltd. v. CIT [2013] 38 taxmann.com 448 (SC) and imposed penalty @200% of tax sought to be evaded u/s 271(1)(c) of the 1961 Act , vide penalty order dated 28.08.2014 passed by the AO u/s 271(1)(c) of the 1961 Act..

5.The assessee carried out the matter by filing first appeal before learned CIT(A) and similar contentions were raised as were raised before the AO, the learned CIT(A) held for AY 2007-08 which is followed in the impugned assessment year , as under: -

“7.1 There are three issues involved in this year. The first is the concealment of interest income from Bank accounts, FDs and Post Office MIS. The facts are similar to that of A.Y. 2006-07 and hence, I follow my stand taken therein and confirm the penalty levied.

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 7.2 Second issue is that of receipts from Superannuation fund. The facts in this regard are that during the year under consideration, the assessee received income from Superannuation Fund of Rs. 1,44,747/-. It is claimed by the assessee that he did not offer the sane to taxation being under the impression that the same is exempt u/s. 10(I0A). However, white filing the return u/s. 153A, he was advised that the non-commuted portion of the Superannuation fund is taxable and hence, rectified the mistake by offering the same to tax.

7.2.1 I have considered the arguments of the assessee. The assessee worked in a senior position in Glaxo and has been income tax payee for several years. After retirement, he joined Universal Group and is now CEO of the company. From the background of the assessee, it is seen that he is well qualified and is not a novice to income tax matters. Further, as CEO he must be dealing with such employee issues day in and day out. He is assisted by qualified persons in income tax matters. Hence, his argument that he did not declare certain income under mistaken assumption cannot be bought and at best be treated as a convenient afterthought. Ignorance of law, even otherwise, is no excuse. Further, from the conduct of the assessee in concealing other particulars of his income like interest, it becomes clear that assessee is in the habit of concealing particulars of income from the department and non-disclosure of the annuity income also has to be viewed in the same light.

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 Anyway, assessee's case is covered by deeming provisions of Explanation (5A) to 271(l)(c) and hence, assessee has no escape from penalty. Considering all these aspects and taking into account the other facts and circumstances of the case, I have no hesitation in confirming the action of the AO in levying penalty. Assessee loses on this ground also and penalty on this issue, both in principle and quantum, is confirmed.

7.3 Third issue is Long Term Capital Gains. Facts in this regard are the assessee is holding equity shares of Universal Medicare P. Ltd. allotted him by the Company. During the year under consideration, Company bought back some of the shares which resulted in long term capital gains of Rs, 1,44,747/-. Assessee did not offer the same to tax originally but offered it in the return filed u/s. 153A. In response to penalty notice, it is contended by the assessee that he was wrongly advised by Chartered Accountant that LTCG is exempt income and hence the same was not offered to tax. While filing return u/s. 153A, lie was correctly advised that as the buyback transaction was not through Stock Exchange and as no STT was paid on the transaction, assessee is liable to pay L.TCG. Accordingly, he included the above income in return u/s. 153A. lii support of his argument, the assessee relied on the decision in the case of Somany Evergreen Knits Ltd. 352 ITR 592 (Bombay), Santa Mirza 259 CTR 386 (AP-HC) for the proposition that a bonafide mistake made on the wrong advise of Chartered Accountant does not attract penal consequences. Besides the above

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 arguments, the assessee submitted an affidavit by Shri Uday Soman, C.A., proprietor of Soman Uday & Co., wherein he admitted that a mistake happened in treating the LTCG on sale of Universal Medicare shares as exempt.

7.3.1 I have considered the arguments of the assessee and have gone through the decisions cited by him. First of all, assessee himself is well educated and is CEO of a Company. He is an old assessee filing returns for more than 3 decades. Especially when it comes to buy back of shares generally the companies advice the concerned person on the taxability, of the same, especially when the seller is a Director in the Company. Further, the assessee is a regular investor in shares so he is expected to have a fair knowledge about STT and LTCG. Thus the ease of assessee on facts does not stand on the same footing as that of Sania Mirza. Coming to the case of Somany Evergreen Knits Ltd. (Supra), the issue therein is relating to claim of capital expenditure vs. Revenue expenditure. The issue is legally very complicated with various judicial forums giving different views based on the facts of each case. In such cases, there is a possibility of wrong claim as a bonafide mistake. Further, the revenue in that case did not dispute that it was a bonafide mistake on part of the assessee and therefore, Hon'ble Tribunal held that no penalty is leviable. In the case of Sania Mirza, she is a sports person busy with playing matches and practicing tennis. Hence, she had to depend on CA for advice (similarly, a Company is only a legal

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 entity hence has to depend entirely on CA's advice). This factor is considered by the High Court while holding that it is bonafide mistake of Chartered Accountant on whom Sania had to depend entirely for Income tax matters.

7.3.2 In the present case on hand, the issue of calculation of capital gains is not very complicated, the assessee is well qualified in company affairs and hence he knows the issues relating to buy back of the shares in and out. He is assessee since many years and is a regular investor in shares and hence is knowledgeable about issues involved in STT and LTCG. Further the question as to whether a mistake is bonafide or not is to be seen in the light of the facts and circumstances of each case. When the fact that the assessee is in the habit of concealing various incomes is taken into consideration, the assessee's claim that non-declaration of LTCG is a bonafide mistake does not sound logical. Income Tax Act is based on voluntary compliance and the assessees are expected to make true and full disclosure of their affairs in the Returns of Income which is duly verified by them. It is not the Chartered Accountant who signs the return but is the assessee himself. There is no legal obligation cast upon the Chartered Accountant to verify the return of the assessee as his role is limited only to the extent of tax audit.

7.3.3 The plea that wrong advice is given by the Chartered Accountant is very easy to take up. The affidavit given by Chartered Accountant is to be

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 viewed in the light of the facts and circumstances of the case. As there are no penal consequences cast upon the Chartered Accountant in case of wrong advice, it is very easy for a Chartered Accountant to swear that he gave wrong advice. In certain cases, the Hon'ble Courts have held that wrong advice of Chartered Accountant is sufficient reason to establish the bonafide of the assessee. However, those cases stand on their own facts. As already discussed in the above paras, a plea that the mistake is on the part of the Chartered Accountant cannot be accepted in all the cases. An affidavit by Chartered Accountant can at best be supporting evidence but cannot form the sole basis for deciding whether to levy penalty or not. There is no blanket immunity given to the assessee in case of assumed mistake by Chartered Accountant. However, if it becomes a norm to not levy penalty for the assumed mistake of Chartered Accountant then the entire penal provisions of the Act would become redundant. Though the assessee filed affidavit for A.Y. 2011-12 as additional evidence, the same contents are also considered for the assessment year 2007-08 and are disposed of in the manner discussed above after admitting additional evidence. Besides the above discussion even if, for argument sake, it is considered as a bonafide mistake, the assessee's case is squarely covered by Explanation 5A to 271(1)(c) as per which disclosure in the original return is to be treated as deemed concealment. Based on the above discussion and taking into account the fact that the assessee has concealed various other incomes in various

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 assessment years, it is held that this is not a bonafide mistake and the assessee has taken a convenient argument with help of a consenting Chartered Accountant. Therefore, I hold that the assessee concealed details of LTCG on sale of Universal Medicare shares and hence is liable for penalty. Hence, I confirm the action of AO in levying penalty in terms of both the principle of levy of penalty as well as the quantum of penalty levied.

7.3.4 In the result, the appeal for A.Y. 2007-08 is dismissed.”

The learned CIT(A) while adjudicating the appeal for AY 2011-12 followed his decision for AY 2007-08. Thus, in nutshell, the learned CIT(A) held that assessee has concealed the particulars of income and is liable for levy of penalty u/s 271(1)(c) of the 1961 Act, vide appellate order dated 19-10-2015.

6.Aggrieved by appellate order passed by learned CIT(A), the assessee has filed an appeal before the tribunal. Now before us, the learned Counsel for the assessee has taken a similar contentions that the assessee was ill-advised by his chartered accountant and relying on the advices, the assessee filed its return of income u/s 139(1) wherein the said income‟s were not declared but post search conducted by Revenue u/s 132(1), the assessee declared these income in return of income filed u/s 153A. The assessee has taken before us additional ground of appeal to contend that the AO has levied penalty on the ground of furnishing of inaccurate particulars of income while learned CIT(A) has confirmed the penalty on the ground of concealment of particulars of income. It was submitted that both the connotations are different as there is material difference between furnishing of inaccurate particulars of income and

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 concealment of particulars of income . It was further submitted without prejudice that it could be said that the assessee has concealed the particulars of income by not disclosing the said incomes in the return of income but the same could not be called as furnishing of inaccurate particulars of income. The learned AR relied on the decision of Hon‟ble Supreme Court in the case of CIT v. Reliance Petroproducts (P) Ltd. (2010) 322 ITR 158 (SC). It was submitted by learned counsel for the assessee that long term capital gains on buy back of shares was not at all declared in the return of income filed u/s 139(1) and it is not the case that the same was declared in the return of income filed u/s 139(1) but claimed as an exempt income on the grounds of payment of STT, as it was submitted that no STT was paid by the assessee on buy back of shares of Universal Medicare Private Limited . Our attention was drawn to copy of return of income filed u/s 139(1) which is placed in paper book filed with the tribunal.

The learned Departmental Representative on the other hand submitted that the AO has fulfilled the requirement of the 1961 Act as furnishing of inaccurate particulars of income and concealment of income are same and there is no difference between two. It was further submitted by learned Departmental Representative that the assessee has furnished inaccurate particulars of income . It was submitted that wrong advise has been given by the Chartered Accountants which has been rejected by the Hon‟ble Bombay High Court in the case of Sheraton Apparels v. ACIT reported in (2002) 256 ITR 20(Bom) . The learned DR also relied on the Hon‟ble Delhi High Court decision in the case of CIT v. Zoom Communication Pvt. Ltd in ITA No.07/ 2010, dated 24-05-2010.

On being asked by the Bench, the learned Counsel for the assessee submitted that this income which was not declared in the original return of income u/s 139(1) have originated /reflected in the bank accounts which

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 were already on record with the Revenue and it merely that the income earned from these bank accounts , investments , pension/superannuation which had not been disclosed . The main bone of contention by the learned Counsel for the assessee is that , without prejudice, the assessee has concealed the particulars of income while the AO has held that the assessee has furnished inaccurate particulars of income which takes the assessee out of clutches of penalty provisions as are contained in Section 271(1)(c) due to invocation of wrong limb of provisions of Section 271(1)(c) i.e. furnishing of inaccurate particulars of income as against correct limb being concealment of particulars of income which the AO ought to have invoked. This particular legal contention was not raised before the learned CIT(A) during first appellate proceedings and is raised for the first time before the tribunal.

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 of Rs. 45,39,799/- in the original return of income filed u/s 139(1) on 30- 07-2011, which income was later declared and disclosed in the return of income filed u/s 153A on 22-02-2013. The assessee had earned these additional incomes to the tune of Rs. 45,39,799/- from long term capital gains on sale of shares of Universal Medicare Private Limited on buy- back of the said share by company Universal Medicare Private Limited on which no STT was paid and were in-fact chargeable to tax as per provisions of 1961 Act , as well the assessee had earned interest income from deposits with banks and receipt from superannuation fund /pension from LIC which were all chargeable to tax as per provisions of 1961 Act , but were not offered to tax by the assessee in the original return of income filed with the Revenue u/s 139(1) but were later declared as income and offered for taxation in the return of income filed u/s 153A pursuant to search u/s 132(1) carried out by Revenue against the assessee, as detailed hereunder:-

Long term capital gain Rs 37,10,221 Rs Short term capital gain 1,32,995 Rs Income from other sources (Interest on FD from Co-op 91,137 banks) Income from other sources (Interst on FD from other banks) Rs 2,36,620 Rs Income from other sources (Bank Interest) 6,408 Rs Income from other sources (Receipt of Super Annuation 3,38,418 Fund) Rs Income From other sources (Pension from LIC VBPY) 24,000 -------------- Rs Total 45,39,799 --------------

The assessee was earlier working with Glaxo Laboratories Limited and after retirement there-from joined Universal Medicare Private Limited and at the time of search u/s 132(1) conducted by Revenue was working as CEO cum whole time Director of the said company Universal Medicare Private Limited reporting to Managing Director and Board of Directors.

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 The assessee is a qualified pharmacy graduate. The assessee was at the time of search u/s 132(1) looking after marketing and sales , purchases, general administration , regulatory issues , trademark and other related issues of the said company Universal Medicare Private Limited. Thus, in nut-shell the assessee had been well educated and experienced person working in top positions of Corporate and was earning substantial salary income .The assessee during the course of search conducted by Revenue u/s 132(1), interalia, in a statement on oath recorded u/s 132(4) on 16-09-2011 in reply to question no. 9 stated that the assessee has fixed deposits with banks to the tune of approx Rs. 1 crore , investments in Mutual Funds to the tune of approx. Rs. 90-100 lacs , investments in shares, PPF , LIC etc. The assessee also stated that it had two pension accounts one with LIC so far as existing employer Universal Medicare Private Limited and secondly with its erstwhile employer Glaxo India. The asseseee also stated that it had saving bank accounts with ICICI Bank, IDBI Bank, Maharashtra Co-operative Bank, HSBC and others . The assessee also stated that the assessee also had fixed deposits with Corporates . The assessee also held immovable properties as well jewellery etc. . . The germane of the disclosure is the search conducted by revenue u/s 132(1) against the assessee and in which search there was a seizure of an diary which contained details of investments made by the assessee and his wife as well certain investments recovered from lockers maintained by the assessee. Thus, the assessee was cornered by Revenue on the seizure of diary and investments during search operations u/s 132(1) which forced assessee to declare and disclosed these income which were so far not disclosed to the Revenue successively over years. Reference is drawn to Statement of facts filed by the assesee with the learned CIT(A) which is part of the record with tribunal at para 3 which states as under:

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016

“ 3. A search operation u/s 132 of the Income Tax Act, 1961 was conducted on Universal Medicare Private Limited and its associated entities and persons on 17th September 2011, and the appellant was also covered under the search and seizure action u/s 132(1) of the Income Tax Act, 1961. During the course of search, a diary was found, which contained details of all investments of the appellant and his wife.”

The plea of the assessee that non disclosure of income in the original return of income filed u/s 139(1) w.r.t. taxable long term capital gain on buy back of shares on which no STT was paid to the tune of Rs. 37.10 lacs was the impression which the assessee got that the same is not taxable keeping in view provisions of Section 10(38), while for interest income from FDR with banks, receipt from superannuation fund /pension from LIC is an ill-advise which the assessee got from his chartered accountant which led him not to disclose these interest and other incomes such as receipt from superannuation/pension from year to year in successive years. The assessee has also filed an affidavit of Chartered Accountant Uday Shankar Soman who has taken onus on him for mistake committed by him wherein long term capital gains on buy back of shares to the tune of Rs. 37.10 lacs on which no STT was paid was treated as not taxable keeping in view provisions of Section 10(38) as the said long term capital gain got merged with other long term capital gains on shares earned by the assessee which were exempt u/s 10(38). This is an feeble attempt as perusal of return of income u/s 139(1) which is placed in paper book clearly revealed that the assessee disclosed long term capital gain on sale of others shares on which STT was paid and claimed the same as exempt u/s 10(38) to the tune of Rs. 7,59,109/- in capital gain worksheet(page 4A /paper book) but he did not included long term capital gain on buy back of shares to the tune of Rs. 37.10 lacs on

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 which no STT was paid which demolishes the affidavit of the CA that there was bonafide mistake as both the long term capital gains got merged while computing chargeable long term capital gains on sale of shares and it clearly establishes that it was an deliberate and intentional act not to disclose and declare the said long term capital gains to the tune of Rs. 37.10 lacs on buy back of shares of Universal Medicare Private Limited in an return filed u/s 139(1) with an intention to avoid paying taxes. Now, after the search u/s 132(1) conducted by Revenue against the assessee while filing return of income u/s 153A when the assessee got cornered by Revenue , the assessee has disclosed this long term capital gain and paid taxes.

The assessee had also not declared interest income from FDR with Punjab and Maharashtra Bank Limited, Shamrao & Vitthal Co-op Bank Limited, SBI and the Federal Bank Limited in the return of income filed u/s 139(1), while interest income from FDR with ICICI, OBC, Catholic Syrian Bank , Saraswat co-op Bank Limited, UBI and Axis Bank Limited (page 101/PB) were declared in return of income filed u/s 139(1). Similarly , the assessee has declared some of the interest on Saving Bank accounts in the return of income filed u/s 139(1) while others were omitted and now to contend that it is the chartered accountant who advised not to declare certain interest income from Bank FDR‟s or SB a/c on the pretext the same is exempt while it was clearly chargeable to tax is not only fallacious argument but is an after-thought and an desperate attempt to come out of clutches of penalty provisions as are enshrined in Section 271(1)(c) as the assessee could not explain as to why he declared and paid taxes on some of the interest income earned on FDR‟s with banks and saving bank account and why certain interest income on FDR‟s and saving bank were left out and all these contentions of the assessee on merits are rejected as the assessee was fully aware that all

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 those interest left out in the return of income filed u/s 139(1) were chargeable to tax but were deliberately omitted. Similar is the fate of non disclosure of pension from LIC and receipt from superannuation funds and theory of the assessee that the assessee assumed that these incomes are not chargeable to tax stand rejected. Now, the assessee has come forward and submitted without prejudice that particulars of these incomes were concealed from Revenue but the AO invoked the limb of Section 271(1)(c) concerning furnishing of inaccurate particulars of income while the AO ought to have invoked limb concerning concealment of particulars of income. These legal ground has been raised for the first time before the tribunal and it is a legal issue which goes to the root of the matter. This issue was not raised before learned CIT(A) and in our considered view this issue need to be adjudicated by the learned CIT(A) firstly as it may require investigation of facts and enquiries as to the origin of various sources of income such as deposits , investments etc which led to generation of income which was not disclosed in the return of income filed by the assessee u/s 139(1) and in our considered view the learned CIT(A) having powers co-terminus with the AO is best equipped to carry out necessary enquiries to arrive at conclusions whether the assessee furnished inaccurate particulars of income or concealed the particulars of income based on factual matrix of the origin of these investments/deposits etc. . The assessee has also raised this issue for the first time before the tribunal and hence the learned CIT(A) being the first adjudicating authority did not had the occasion to adjudicate this issue. Under these circumstances , we are of the considered view that this issue needs to be restored to the file of learned CIT(A) for adjudication after giving assessee an opportunity of being heard in accordance with principles of natural justice in accordance with law. The learned CIT(A) shall allow the assessee to file all necessary evidence in

ITA Nos.64-69/Mum/2016 & 70-75/Mum/2016 its defense which shall be admitted by learned CIT(A) and adjudicated on merits. We order accordingly.

9.Our decision in ITA no.75/Mum/2016 for AY 2011-12 shall apply mutatis mutandis to remaining appeals of both the assessee‟s in ITA no.64-74/Mum/2016 for AY 2006-07 to 2011-12 w.r.t. as facts are similar in all these appeal. We order accordingly.

Order pronounced in the open court on 27-03-2018.

Sd/- Sd/-S/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai, Dated: 27-03-2018 Sudip Sarkar /Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT (A), Mumbai. 4. CIT BY ORDER, 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Assistant Registrar ITAT, MUMBAI