Jaswant Singh Hora, RAIPUR (CG) V. ASSTT.COMMISSIONER OF INCOME TAX -1(2), RAIPUR

ITA 1/BIL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94014 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 02-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: S C MAHESHWA RI
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE S/SHRI MUKUL K SHRAWAT, ( JM) AND SHAMIM YAHYA,(AM) I TA . NO . 01 / BLPR / 201 2 (ASSESSMENT YEAR : 200 5 - 06 ) JASWANT SINGH HORA, 20/995, SHYAM NAGAR, DIST - RAI PUR (CG) VS. THE ASSTT. CO MMISSION ER OF INCOME TAX 1(2), CENTRAL REVENUE BUILDING, RAIPUR (CG). APPELLANT .. RESPONDENT PAN/GIR NO. : ADQPC8815N APPELLANT BY : SHRI S C MAHESHWARI RESPONDENT BY : SHRI D K JAIN DATE OF HEARING : 1 8 .6.2015 DATE OF PRONOUNCEMENT : 19 . 6. 201 5 O R D E R PER MUKUL K SHRAWAT, ( JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF LD. CIT(A) ORDER DATED 12.10.2011 F OR THE ASSESSMENT YEAR 2005 - 06 AND THE ONLY GROUND IS IN RESPECT OF CONFIRMATION OF PENALTY U/S 271(1)(C) OF THE INCOME TA X ACT, 1961(THE ACT) OF RS.56192/ - . 2. THE ASSESSMENT WAS MADE UNDER SECTION 153A/143(3) OF T HE ACT DATED 31.12.2009, ACCORDING TO WHICH THE OBSERVATIONS WAS MA DE THAT A SEARCH OPERATION WAS CONDUCTED ON 16 TH JULY 2007 ON CHAND H OK GROUP OF RAIPUR. IN CONSEQUENT THEREUPON A NOTICE UNDER SECTION 153C WAS ISSUED AND IN COMPLIANCE THEREOF A RETURN DECLARING A N INCOME OF RS.1 , 58 , 031 / - ITA. NO. 01/ BLPR/201 2 2 WAS FILED WHICH WAS LATER R EVISED AT RS.2,80,450/ - . SINCE THE RETURN WAS FILED IN COMPLIANCE OF NOTICE UNDER SE CTION 153C, THEREFORE , A PEANTLY WAS LEVIED UNDER SE C T I ON 271(1)( C ) OF THE ACT VIDE ORDER DATED 28.6.2010 ON THE GROUND THAT THE INCOME WAS UNEARTHED AFTER A SEARCH W HICH WAS NOT DISCLOSED BY THE ASSESSEE . THE STAND OF THE REVENUE DEPARTMENT WAS THAT HAD THE SEARCH WAS NOT CONDUCTED U/S 132, THE INCOME WOULD NEVER HAVE BEEN BROUGHT TO TAX. WHEN THE MATTER WAS CARRIED BEFORE THE LD.CIT(A) THE LEVY OF PENALTY WAS CONFIR MED. 3. HEARD BOTH THE SIDES. WE HAVE BEEN INFORMED, AT THE OUTSET , THAT IN ASSESSEE S O W N CASE FOR THE ASSESSMENT YEAR 2004 - 05 THE LD. CIT(A) RAIPUR VIDE ORDER DATED 24.12.2014 IN APPEAL NO. CIT(A)/R P R/A - NO.7 2 /2010 - 11 HAS CONSIDERED THE IDENTICAL ISS UE AND AFTER FOLLOWING THE CIT V/S S . A . S . PHARMACEUTICALS (2011) 11 TAXMANN.COM 207 (DELHI) HAS DELED THE PENALTY. LIKEWISE IN AY 2006 - 07 VIDE ORDER DATED 24.12.2014 THE LD.CIT(A) RAIPUR HAS DELETED T HE PENALTY ON IDENTICAL GROUND. OUR ATTENTION WAS D RAWN ON AN OBSERVATIONS MADE BY LD. CIT ( A) IN THOSE APPELLATE ORDERS THAT THERE WAS NO DISCUSSION O F ANY INCRIMINATING DOCUMENT HA S BEEN FOUND IN THE COURSE OF SEARCH IN RESPECT OF THE ASSESSEE IN APPEAL. IT HAS ALSO BEEN PLEADED THAT THE ADMITTED FACTUA L POSITION WAS THAT THERE WAS NO SUCH ACTION ON THE ASSESSEE AND THE SEARCH WAS CONDUCTED AT THE PREMISES OF THIRD PARTY. WHATEVER INCOME WAS DECLARED BY T HE A S SES S EE WAS ASSESSED AS SUCH BY THE AO WITHOUT ANY ADDITION . IT HAS ALSO BEEN ARGUED THAT WHI LE LEVYING THE PENALTY, THE AO HAS INVOKED THE PROVISIONS OF SECTION 271(1)( C ) OF THE ACT READ WITH EXPLANATION 5A OF THE ACT. THE EXPLANATION WAS WRONGLY APPLIED ON THE FACT OF THIS CASE BECAUSE NO SEARCH WAS CONDUCTED ON THE ASSESSEE, HOWEVER, EXPL ANATION IS APPLICABLE WHEREIN CONCEALMENT IS DETECTED IN THE COURSE OF SEARCH INITIATED U/S 132 ON THE ASSESSEE . WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE, THEREFORE, WE HEREBY HOLD THAT UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CA S E AND THE LAW APPLICABLE ITA. NO. 01/ BLPR/201 2 3 THE PE NALTY IN QUESTION IS NOT SUSTAINABLE IN THE EYES OF LAW.WE HEREBY DIRECT THE AO TO DELETE THE PENALTY. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH JUNE , 201 5 SD SD ( SHAMIM YAHYA ) ( MUKUL K SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR : 19TH JUNE,2015. SRL , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - CONCERNED 4. CIT CONCERNED 5. DR, ITAT, RAIPUR CONCERNED 6. GUARD FILE. BY ORDER, TRUE COPY SENIOR PRIVATE SECRETARY /AR