N. Balasubramaniam, Tiruppur V. DCIT, Tiruppur

CO 124/CHNY/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3542 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 23-01-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 29-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T BANUSEKAR
• Assessee Lawyers: N MADHAVAN
• Section: 143(3); 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2067/MDS/2016 & C.O. NO.124/MDS/2016 (IN I.T.A. NO.2067/MDS/2016) ' (' / ASSESSMENT YEAR : 2012-13 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1, TIRUPUR. V. SH. N. BALASUBRAMANIAM, PROP. SOFT HOSIERY MILLS, 63-C, STANES ROAD, 4 TH STREET, TIRUPUR 641 602. PAN : ADOPB 4165 A (*+/ APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) ./ ITA NO.2931/MDS/2016 ' (' / ASSESSMENT YEAR : 2012-13 SH. N. BALASUBRAMANIAM, PROP. SOFT HOSIERY MILLS, 63-C, STANES ROAD, 4 TH STREET, TIRUPUR 641 602. V. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1, TIRUPUR. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI N. MADHAVAN, ADDL.CIT ,-*+ . / / RESPONDENT BY : SH. T. BANUSEKAR, CA 0 . 1$ / DATE OF HEARING : 23.01.2018 2!( . 1$ / DATE OF PRONOUNCEMENT : 28.02.2018 2 I.T.A. NO.2067/MDS/16 I.T.A. NO.2931/MDS/16 C.O. NO.124/MDS/16 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE REVENUE AND THE ASSESSEE HAVE FILED THE APPEALS. WHEN THE REVENUES APPEALS IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, COIMBATORE, DATED 28.03.2016, DELE TING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF TH E INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), THE ASSESSEES APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -3, COIMBATORE , DATED 31.08.2016, ON THE RECTIFICATION OF PETITION UNDER SECTION 154 OF THE ACT. BOTH THE APPEALS PERTAIN TO ASSESSMENT YEAR 2012-13. THE ASSESSEE H AS ALSO FILED A CROSS- OBJECTION AGAINST THE FORMER ORDER OF THE CIT(APPEA LS). THEREFORE, WE HEARD THESE APPEALS AND THE CROSS-OBJECTION TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. LET US FIRST TAKE I.T.A. NO.2067/MDS/2016. THER E WAS A DELAY OF 5 DAYS IN FILING APPEAL BY THE REVENUE. THE REVENUE HAS F ILED A PETITION FOR THE CONDONATION OF DELAY. WE HAVE HEARD THE LD. D.R. A ND THE LD. REPRESENTATIVE FOR THE ASSESSEE. WE FIND THAT THERE WAS SUFFICIEN T CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE C ONDONE THE DELAY AND ADMIT THE APPEAL. 3. NOW COMING TO MERIT OF THE REVENUES APPEAL, SHR I N. MADHAVAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE ENGAGED IN THE BUSINESS OF HOSIERY GARMENTS EXPORT AND REAL ESTATE . ACCORDING TO THE LD. D.R., 3 I.T.A. NO.2067/MDS/16 I.T.A. NO.2931/MDS/16 C.O. NO.124/MDS/16 A SURVEY WAS CONDUCTED IN THE PREMISES OF THE ASSES SEE ON 04.10.2012 AND THE ASSESSEE ADMITTED 3,60,00,000/- AS HIS INCOME FOR THE ASSESSMENT YEAR 2012-13. HOWEVER, ACCORDING TO THE LD. D.R., THE A SSESSEE FILED THE RETURN OF INCOME FOR ASSESSMENT YEAR 2012-13 ADMITTING INCOME OF ONLY 1,90,23,090/-. SINCE THE INCOME ADMITTED DURING THE COURSE OF SURV EY OPERATION WAS HIGHER THAN THE INCOME ADMITTED IN THE RETURN OF INCOME, A CCORDING TO THE LD. D.R., THE ASSESSING OFFICER HAS RIGHTLY LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 4. ON THE CONTRARY, SH. T. BANUSEKAR, THE LD. REPRE SENTATIVE FOR THE ASSESSEE, SUBMITTED THAT NO DOUBT, THE ASSESSEE OFF ERED 3,60,00,000/- DURING THE COURSE OF SURVEY PROCEEDING. HOWEVER, WHILE FI LING THE RETURN OF INCOME, A SUM OF 1,90,23,090/- WAS SHOWN AS INCOME OF THE ASSESSEE, WHICH WAS ACCEPTED BY THE ASSESSING OFFICER BY AN ORDER UNDER SECTION 143(3) OF THE ACT AND NO FURTHER ADDITION WAS MADE. THEREFORE, ACCOR DING TO THE LD. REPRESENTATIVE, THE CIT(APPEALS) FOUND THAT THERE W AS NO CONCEALMENT OF ANY PART OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. HENCE, ACCORDING TO THE LD. REPRESENTATIVE, THE CIT (APPEALS) HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER . 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. SECTIO N 271(1)(C) ENABLES THE ASSESSING OFFICER / COMMISSIONER, AS THE CASE MAY B E, IN A PROCEEDING BEFORE THEM, TO LEVY PENALTY FOR FURNISHING INACCURATE PAR TICULARS OF INCOME OR CONCEALING ANY PART OF SUCH INCOME. IN THE CASE BE FORE US, DURING THE COURSE OF 4 I.T.A. NO.2067/MDS/16 I.T.A. NO.2931/MDS/16 C.O. NO.124/MDS/16 SURVEY PROCEEDING, THE ASSESSEE ADMITTED 3,60,00,000/- AS HIS INCOME FOR THE ASSESSMENT YEAR 2012-13. HOWEVER, AFTER VERIFYING THE BOOKS OF ACCOUNT, THE ASSESSEE HAS DISCLOSED ONLY 1,90,23,090/-. THE QUESTION ARISES FOR CONSIDERATION IS WHEN THE ASSESSEE FAILS TO DISCLOS E THE INCOME OFFERED DURING THE COURSE OF SURVEY OPERATION AND FILED RETURN OF INCOME ON THE BASIS OF BOOKS OF ACCOUNT, WHETHER THERE WAS ANY CONCEALMENT OF IN COME WHICH ATTRACTS PENALTY UNDER SECTION 271(1)(C) OF THE ACT? THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN BE LEVIED ONLY FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR CONC EALING ANY PART OF SUCH INCOME. IN THE CASE BEFORE US, DURING THE COURSE O F SURVEY OPERATION, THE ASSESSEE ADMITTEDLY OFFERED 3,60,00,000/- AND AFTER SURVEY IS OVER, THE ASSESSEE FILED RETURN OF INCOME SHOWING 1,90,23,090/- ON THE BASIS OF THE BOOKS OF ACCOUNT THE ASSESSING OFFICER ACCEPTED TH E RETURNED INCOME OF 1,90,23,090/- WITHOUT ANY FURTHER ADDITION. THEREF ORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. MERELY BECAUSE T HE INCOME OFFERED DURING THE COURSE OF SURVEY OPERATION, ON AD HOC BASIS, WA S MODIFIED / RECTIFIED WHILE FILING RETURN OF INCOME ON THE BASIS OF THE BOOKS O F ACCOUNT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IT CANNOT BE SAID THAT THERE WAS ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF S UCH INCOME. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 6. NOW COMING TO ASSESSEES APPEAL IN I.T.A. NO.293 1/MDS/2016, THE ASSESSEE HAS FILED APPEAL AGAINST THE ORDER PASSED BY THE CIT(APPEALS) UNDER 5 I.T.A. NO.2067/MDS/16 I.T.A. NO.2931/MDS/16 C.O. NO.124/MDS/16 SECTION 154 OF THE ACT REJECTING THE PETITION FILED BY THE ASSESSEE FOR RECTIFICATION. THE CROSS-OBJECTION IS FILED TO SUP PORT THE ORDER OF THE CIT(APPEALS) WHEREIN THE PENALTY LEVIED UNDER SECTI ON 271(1)(C) OF THE ACT WAS DELETED. AS RIGHTLY OBSERVED BY THE CIT(APPEALS), THE VALIDITY OF REOPENING CANNOT BE RAISED IN A PROCEEDING UNDER SECTION 154 OF THE ACT. THE ORDER OF THE CIT(APPEALS) DELETING THE PENALTY LEVIED UNDER SECTION 271(1)(C) IS CONFIRMED BY THE TRIBUNAL. HENCE, THE CROSS-OBJECT ION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. 7. IN THE RESULT, BOTH THE REVENUES AND ASSESSEES APPEALS IN I.T.A. NO.2067/MDS/2016 AND 2931/MDS/2016 ARE DISMISSED. T HE C.O. NO.124/MDS/2016 ALSO STANDS DISMISSED. ORDER PRONOUNCED ON 28 TH FEBRUARY, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 28 TH FEBRUARY, 2018. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-3, COIMBATORE 4. PRINCIPAL CIT-3, COIMBATORE. 5. 69 ,1 /DR 6. :' ; /GF.