Shri Rajesh M. Shah, Baroda V. The Deputy Commissioner of Income Tax, Central Circle-2, Baroda

ITA 100/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2780 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-02-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Document seized; Revised return; Documents seized; Set aside
• Section: 271(1)(c); 143(3); 153A; 13; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI RAJESH M. SHAH 20, ANAND NAGAR SOCIETY, PRODUCTIVITY ROAD, BARODA PAN: AFOPS7013Q (APPELLANT) VS DY. CIT, CENTRAL CIRCLE - 2, BARODA (RESPONDENT) REVENUE BY : S H RI L.P. JAIN , SR. D . R. A SSESSEE BY: MS. URVASHI SHODHAN , A.R. DATE OF HEARING : 13 - 0 2 - 2 020 DATE OF PRONOUNCEMENT : 28 - 02 - 2 020 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPE AL FOR A.Y. 2009 - 10 , ARI SES FROM ORDER OF THE CIT(A) - 12, AHMEDABAD DATED 23 - 11 - 2 016 , IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE S OLITARY GROUND OF APPEAL OF THE ASSESSEE IS FILED AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN LEVYING PENALTY U/S. 271(1)(C) OF RS. 32 , 97 , 030/ - I T A NO . 100 / A HD/20 17 A SS ESSMENT YEAR 2009 - 10 I.T.A NO. 100 /AHD/20 17 A.Y. 2009 - 10 PAGE NO SHRI RAJESH M. SHAH VS. DY. CIT 2 3. THE FACT IN BRIEF IS THAT A SEARCH ACTION U/S. 132 OF THE ACT WAS CONDUCTED IN THE VA SANWALA GROUP C ASES INCLUDING THE CAS E OF THE ASSES SSEE ON 29 TH AUGUST, 2011. A NOTICE U/S. 15 3 A (A) OF THE ACT WAS ISSUED ON 1ST MAY, 2012. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S. 153A R.W.S. 143(3) OF THE ACT ON 25TH MARCH , 2014 AND ACCEPTED THE INCOME DECLARED IN THE REVISED RETUR N FILED BY THE ASSESSEE U/S. 153A OF THE ACT TO THE AMOUNT OF RS . 1 ,37, 26 , 520/ - AND INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) ON AN ADDITION AL INCOME OF RS. 97,00,000/ - SHOWN IN THE REVISED RETURN. THE ASSESSING OFFICER HAS STATED THAT THE ASSESSEE HAS MADE DISC LOSU RE OF ADDITIONAL INCOME ON THE BASIS OF SEIZED MATERIAL. THE ASSESSING OFFICER WAS OF THE VIEW THAT HAD NO SEARCH BEEN TAKEN PLACE THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME FILED U/S. 153A OF THE ACT WOULD HAVE REMAINED UNN OTICED. THEREFORE, THE ASSESSING OFFICER WAS OF THE VIEW THAT THERE WAS OMISSION BY THE ASSESSEE TO DISCLOSE ADDITIONAL INCOME IN THE ORIGINAL RETURN OF INCOME, C ONSEQUENTLY , PENALTY TO THE AMOUNT OF RS. 32,97,030/ - U/S. 271(1)(C) OF THE ACT WAS LEVIED . 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE. BY REFERRING THE SEIZED DOCUMENTS AS PER ANNEXURE A - 1 AND A - 2, THE LD. CIT(A) HAS STATED THAT AMOUNT SHOWN BY THE ASSESSEE CLEARLY COME WITHIN THE PURVIEW OF AMOUNT DEEMED TO HAVE BEEN CONCEALED WITHIN THE MEANING OF EXPLANATION 5A. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS SUBMITTED PAPER BOOK COMPRISING DETAIL AND INFORMATION SUBMITTED BEFORE T HE ASSESSING OFFICER AND LD. CIT(A) DURING THE COURSE OF ASSESSMENT I.T.A NO. 100 /AHD/20 17 A.Y. 2009 - 10 PAGE NO SHRI RAJESH M. SHAH VS. DY. CIT 3 AND APPELLATE PROCEEDINGS. THE LD. COUNSEL CONTENDED THA T THE ASSESSING OFFICER HAS FAILED TO SPECIFY THE RELEVANT I NCRIMINATING MATERIAL SINCE THE ADDITIONAL INCOME WA S OFFER ED VOLUNTA RILY ON THE BASIS OF STATEMENT TAKEN DURING THE SEARCH . T HE LD. COUNSEL HAS ALSO SUBMITTED THAT EVEN IN CASE OF SPECIFIED YEAR S OF ASSESSMENT YEAR 2011 - 12 AND 2012 - 13 IN THE CASE OF THE ASSESSEE NO PENALTY U/S. 271AAA R.W. EXPLANATION 5A HAVE BEEN IMPOSE D BY THE ASSESSING OFFICER. T HE LD. COUNSEL HAS ALSO SUBMITTED THAT ANNEXURE A - 1 & A - 2 WERE ACCOUNTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AS PER COPY OF LEDGER ACCOUNT ATTACHED AND EXPLANATION TO THE DOCUMENTS MENTIONED IN THE ANNEXURE 1 AND ANNEXUR E 2 WERE DULY SUBMITTED TO THE ASSESSING OFFICER WHICH WAS ACCEPTED BY THE ASSESSING OFFICER . SHE HAS ALSO ATTACHED THE COPY OF SUCH EXPLANATION WITH HER WRITTEN SUBMISSION. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 6 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSMENT U/S. 153A R.W.S 143(3) OF THE ACT WAS COMPLETED ON 25 TH MARCH , 2014 AND ASSESSING OFFICER HAD ACCEPTED THE INCOME DECLARED IN THE REVISED RETU RN OF INCOME FILED U/S. 153A OF THE ACT AT RS. 1 , 37 , 26 , 520/ - . AFTER CONSIDERING THE MATERIAL ON RECORD AND FACTS REPORTED BY BOTH THE SIDES, WE OBSERVE THAT THE ASSESSING OFFICER HAS NOT SPECIFIED ANY DOC UMENT OR ENTR Y WHICH DEMONSTRATE THAT ASSESSEE S AD DITIONAL UNDISCLOSED INCOME REP RESENT ANY MONEY, BULLION, JEWELRY, OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132 . IT IS ALSO NOTICED THAT THERE WAS NO PIN POINT QUESTION POSED BY THE SEARCH TEAM IN REGARD TO INCRIMINATING MATERIAL/DOCUMENTS RELATED TO SUCH UNDISCLOSED INCOME. IT IS ALSO NOTICED I.T.A NO. 100 /AHD/20 17 A.Y. 2009 - 10 PAGE NO SHRI RAJESH M. SHAH VS. DY. CIT 4 THAT IN RESPECT OF SPECIFIED YEAR 2011 - 12, THE ASSESSING OFFICER HAS DROPPED THE PENALTY PROCEEDINGS U/ S. 271AA R.W. EXPLANATION VIDE ORDER DATED 26 TH SEP, 2014 PLACED IN THE PAPER BOOK BY THE ASSESSEE IN SPITE OF THE FACT THAT AS PER COPIES OF STATEMENT U/S. 132(4) PLACED IN THE PAPER BOOK THE ASSESSEE HAS SPECIFICALLY DISCLOSED INCOME FOR A.Y. 2011 - 12 AND A.Y. 2012 - 13 . IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE OBSERVE THAT THE LOWER AUTHORITIES HAVE FAILED TO ESTABLISH THAT ASSESSEE HAS DISCLOSED THE INCOME WITH REFERENCE TO ANY SPECIFIC LOOSE PAPER S /ASSET. THE ASSESSING OF FICER HAS FAILED TO SUBSTANTIATE THAT DISCLOSURE MADE BY THE ASSESSEE U/S. 132(4) WAS ON THE BASIS OF SPECIFIED INCRIMINATING MATERIAL . IN THIS REGARD , WE HAVE ALSO CONS IDERED THE DECISION OF ITAT VISHAKAPATNAM ( 2018 ) 92 TAXMAN.COM 109 WHEREIN IT IS HELD THAT THE ASSESSING OFFICER MUST ESTABLISH THAT THERE IS UN DIS CLOSED INCOME ON THE BASIS OF THE INCRIMINATING MATERIAL . IN THE CASE OF ACIT VS. KANWAR SAI N G UP TA VIDE ITA NO. 538/KOL/2017 THE ITA T KOLKATA HAS HELD THAT STATEMENT OF THE ASSESSEE WITHOUT ANY CORROBORATING EVI DENCES CANNOT BE ONLY BASIS FOR LEVYING PENALTY. THEREFORE, WE SET ASIDE THE ORDER OF LOWER AUTHORITIES AND ALLOW THE APPEAL OF THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OU RT ON 28 - 02 - 20 20 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 28 /02 /2020 / COPY OF ORDER FORWARDED TO: - I.T.A NO. 100 /AHD/20 17 A.Y. 2009 - 10 PAGE NO SHRI RAJESH M. SHAH VS. DY. CIT 5 1. ASSESSEE 2. REVE NUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,