RAJENDRA AGARWAL, Jaipur V. ITO, Jaipur

ITA 102/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5366 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 10-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Revised return
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 102/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 SHRI RAJENDRA AGARWAL D-8, MUKHERJEE COLONY, SHASTRI NAGAR JAIPUR CUKE VS. THE ITO WARD- 4 (1) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABSPA 1326 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT-.. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/102/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25 /04/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)- JODHPUR CAMP AT JAIPUR DATED 01-01-2014 FO R THE ASSESSMENT YEAR 2004-05 WHEREIN THE ASSESSEE IS AGGRIEVED THAT THE LD. CIT(A) HAS IMPOSED PENALTY U/S 271(1)(C ) OF THE ACT AMOUNTIN G TO RS. 1,06,350/-. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED THE ORIGINAL RETURN OF INCOME ON 30-10-2004 AT A TOTAL INCOME OF RS. 11 ,66,190/- ON 6-05- ITA NO. 102//JP/2014 SHRI RAJENDRA AGARWAL VS. ITO, WARD- 4 (1), JAIPUR . 2 2005. THEREAFTER, THE ASSESSEE FILED THE REVISED RE TURN SHOWING TOTAL INCOME OF RS. 14,40,347/- INCLUDING THE SURRENDER O F FOLLOWING CREDIT ENTRIES 1. AJAY KUMAR SHARMA RS. 1,50,000/- 2. INTEREST RS. 11,137 3. RAKESH KUMAR SHARMA RS. 1,50,000/- 4. INTEREST RS. 11,137 THE ASSESSMENT U/S 143(3) OF THE ACT WAS ACCORDINGL Y FRAMED AND PENALTY PROCEEDINGS WERE INITIATED. THE ASSESSEE FILED REPL Y DATED 10-02-2010 CONTENDING THAT :- (I) THE ASSESSEE HAS FILED SUO MOTU REVISED RETURN WITHOUT ANY DETECTION BY THE DEPARTMENT. (II) THE INCOME BEING DISCLOSED IN THE REVISED RETU RN, THERE WAS NO JUSTIFICATION FOR IMPOSING PENALTY THE AO WITHOUT ESTABLISHING ANYTHING FURTHER MERELY HELD THAT THE FACTS OF THE ASSESSEE'S CASE CLEARLY ATTRACT PENALTY PROC EEDINGS U/S 271(1) OF THE ACT WHICH WAS IMPOSED @ 20% FOR THE TAX AMOUNTI NG TO RS. 2,12,700/-. ITA NO. 102//JP/2014 SHRI RAJENDRA AGARWAL VS. ITO, WARD- 4 (1), JAIPUR . 3 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) REDUCED THE PENALTY TO 100% OF THE TAX AMOUNTING TO RS. 1,06,350/-. 2.3 THE ASSESSEE IS NOW IN SECOND APPEAL. THE LD. C OUNSEL FOR THE ASSESSEE VEHEMENTLY CONTENDS THAT IN THE ENTIRE LEN GTH AND BREADTH OF THE ORDER, NOWHERE IT HAS BEEN MENTIONED THAT WHETHER T HE ASSESSEE'S NAME WAS FOUND IN ANY DOCUMENTS FOUND FROM THE PREMISES OF M/S. B.C. PUROHIT & CO. IT HAS BEEN ARGUED THAT THE ASSESSEE FILED THE REVISED RETURN OUT OF FEAR AS TO SEARCH OF B.C. PUROHIT & CO. AND NO DATA OF SEARCH RELATING TO B.C. PUROHIT IS ANYWHERE MENTIONED. THE ONLY FINDING ON THE BASIS WHEREOF PENALTY HAS BEEN IMPOSED BY THE AO IN HIS 271(1) ORDER DATE4D 16-08-2010 IS AS UNDER:- . THE FACTS OF THE CASE CLEARLY ATTRACT THE PENA LTY U/S 271(1). I HOLD THE ASSESSEE GUILTY OF CONCEALM ENT OF PARTICULARS OF HIS INCOME IMPOSE A PENALTY OF RS. 2 ,12,700/- U/S 271(1) OF I.T. ACT, 1961 CALCULATED 2 200% OF THE TAX SOUGHT TO BE EVADED. SIMILARLY, THE LD. CIT(A) HELD AT PARA 11 AND 16 OF HIS ORDER AS UNDER:- 11. I FIND THAT THIS A CASE OF DELIBERATE CONCEAL MENT IN ORIGINAL RETURN AND VOLUNTARY FILING OF REVISED RET URN WOULD HAVE NO EFFECT AS THE APPELLANT WAS COMPELLED BY CIRCUMSTANCES TO DO SO. ACCORDINGLY, PENALTY WOULD BE LIABLE TO BE IMPOSED WITH REFERENCE TO THE ORIGINAL RETURN . ITA NO. 102//JP/2014 SHRI RAJENDRA AGARWAL VS. ITO, WARD- 4 (1), JAIPUR . 4 16. HOWEVER, I FIND THE ASSESSING OFFICER LEVIED T HE PENALTY OF RS. 2,17,200/- BEING 200% TAX SOUGHT TO BE EVADED FOR WHICH NO BASIS WHATSOEVER HAS BEEN GIVEN BY HIM. FURTHER LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT IN THIS CASE, QUANTUM OF PENALTY LEVIED @ 200% IS ON THE HIGHER SIDE PARTICULARLY WHEN NO REA SON FOR TAKING THE APPLIED RATE HAS BEEN GIVEN BY THE ASSES SING OFFICER. UNDER THESE CIRCUMSTANCES, IN MY CONSIDERE D VIEW, IT WOULD BE JUSTIFIABLE IF THE QUANTUM OF PENALTY I S RESTRICTED TO 100% OF THE TAX SOUGHT TO BE EVADED. SO THE ASSE SSING OFFICER IS DIRECTED TO LEVY PENALTY @ 100% OF TAX S OUGHT TO BE EVADED. THUS THERE IS NEITHER OBJECTIVE CONSIDERATION OF AS SESSEE'S EXPLANATION NOR THERE IS PROPER APPLICATION OF MIND TO THE FACTS OF THE CASE. THE CASE LAWS CITED BY THE LD. CIT(A) ARE CLEARLY DISTINGUISHABLE AND THE DISTINGUISHING FACTORS ARE MENTIONED IN THE WRITTEN SUBMISSIONS. I T IS FURTHER PLEADED THAT HON'BLE SUPREME COURT IN THE CASE OF CIT V SURESH CHAND MITTAL, 251 ITR 9 HAS HELD THAT WHEN THE ASSESSEE HAS FILED VOL UNTARY REVISED RETURN AND OFFERED INCOME THEREIN THEN NO PENALTY CAN BE I MPOSED U/S 271(1)( C) OF THE ACT. HOWEVER, SURRENDER OF INCOME ON ITS OWN DOES NOT ENTAIL PENALTY U/S 271(1)( C) OF THE ACT. THE ASSESSEE PLA CED RELIANCE AS UNDER:- (I) CIT VS. SAS PHARMACEUTICALS 335 ITR 259 (DEL) (II) SVC PROJECTS (P) LTD. VS. JCIT (2011) 10 ITR 552 ITA NO. 102//JP/2014 SHRI RAJENDRA AGARWAL VS. ITO, WARD- 4 (1), JAIPUR . 5 (III) ACIT VS. ASHOK KUMAR JAIN (ITAT JAIPUR ITA N O. 830/JP/2011 DATED 18-10-2012 (IV) SMT. PRAMILA ASHTEKAR & ORS. VS. ITO 154 TTJ ( PUNE) (V) VASAVI SHELTERS VS. ITO , 141 ITD 590 (BANG) (VI) SHYAM LAL SONI (2005) 276 ITR 156 (M.P.) (VII) CIT VS. PUSHPENDRA SURANA, (2013), 96 DTR,2 31 RAJ,) 2.4 THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PENALTY ORDER, IT CLE ARLY EMERGES THAT THE AO HAS NOT CONSIDERED THE ASSESSEE'S EXPLANATION WH ICH AMOUNTS TO NON- APPLICATION OF MIND WHILE IMPOSING PENALTY. THE PEN ALTY HAS BEEN IMPOSED MERELY RELYING ON REVISED RETURN. THE HON'B LE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHAND MITTAL (SUPRA) HEL D THAT IF INCOME IS DECLARED IN THE REVISED RETURN THEN PENALTY CANNOT BE IMPOSED. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SAS PHARMACEUTICALS (SUPRA) HAS HELD THAT IF THE AMOUNT IS SURRENDERED SUO MOTU, THE PENALTY CANNOT BE IMPOSED U/S 271(1)( C) OF THE ACT. FURTHE R THE PENALTY IS BASED ON ASSUMPTION THAT THE ASSESSEE FILED HIS REVISED R ETURN OUT OF FEAR FOR WHICH NO CORROBORATIVE EVIDENCE IS OFFERED AND A SU MMARY CONCLUSION IS ITA NO. 102//JP/2014 SHRI RAJENDRA AGARWAL VS. ITO, WARD- 4 (1), JAIPUR . 6 DRAWN. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE AND CASE LAWS CITED BY THE ASSESSEE (SUPRA), I OF THE VIEW THAT I T IS NOT A FIT CASE FOR IMPOSITION OF PENALTY WHICH IS DISMISSED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 25 /04/2 016 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /04/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- RAJENDRA AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 4 (1), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 102/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR