Sh. Joybir Singh Kataria, Jalandhar V. The Dy Commissioner of Income Tax, Jalandhar

ITA 103/ASR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5614 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VEDPAL SINGH
• Section: 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 103/(ASR)/2017 ASSESSMENT YEAR: 2009-10 PAN: AATPK5093N SH. JOYBIR SINGH KATARIA 1-C, SILVER OAK APARTMENTS, NAKODAR ROAD, JALANDHAR. VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-II, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ASHRAY SARNA (C.A.) RESPONDENT BY: SH. VED PAL SINGH (D.R.) DATE OF HEARING: 03.05.2017 DATE OF PRONOUNCEMENT: 05.05.2017 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT (A), JALANDHAR, DATED 25.01.2017 FOR ASST. YEAR 2009-10. 2. THE REVENUE HAD FILED ADJOURNMENT APPLICATION IN THIS CASE, HOWEVER, WHILE GOING THROUGH THE FILE IT WAS OBSERV ED THAT MATTER COULD BE DISPOSED OFF, THEREFORE ADJOURNMENT APPLICATION WAS REJECTED AND THE LD. AR WAS ASKED TO PROCEED WITH HIS ARGUMENTS. THE LD. AR SUBMITTED THAT A SEARCH WAS CONDUCTED ON THE BUSINESS AND RES IDENCE PREMISES OF THE ASSESSEE U/S 132 OF THE ACT AND THEREAFTER, NOT ICE U/S 153A OF THE ACT WERE ISSUED AND IN RESPONSE TO WHICH ASSESSEE F ILED RETURN OF INCOME DECLARING INCOME OF RS. 13,19,080/- AGAINST THE ORI GINAL RETURN OF INCOME OF RS. 6,19,080/-. THE LD. AR SUBMITTED THAT RS. 7 LACS REPRESENTED THE ITA NO. 103 (ASR)/2017 ASST. YEAR: 2009-10 2 INCOME RECEIVED FROM M/S SURYA SATELLITE WHO HAD CR EDITED THE INCOME ON 13.06.2012 WHICH WAS WELL AFTER THE END OF ASSES SMENT YEAR AND THEREFORE, THE ASSESSEE WAS NOT AWARE OF SUCH CREDI T AT THE TIME OF FILING ORIGINAL RETURN OF INCOME. 3. THE LD. AR, IN THIS RESPECT INVITED OUR ATTENTIO N TO FORM 26AS PLACED AT PAPER BOOK PAGE 16 & 17 AND INVITED OUR A TTENTION TO THE CREDIT OF RS. 7 LACS, WHEREIN DATE OF BOOKING HAD BEEN MEN TIONED AS 13 TH JUNE, 2012. THE LD. AR SUBMITTED THAT IN RESPONSE TO NOTI CE U/S 153A, THE SAME WAS OFFERED AS INCOME IN THE RETURN FILED U/S 153A AND NO ADDITION WAS MADE BY ASSESSING OFFICER AND THEREFORE, THE PE NALTY U/S 271(1) (C) WAS NOT IMPOSABLE AS THERE WAS NO DIFFERENCE BETWEE N THE ASSESSED INCOME AND THE RETURNED INCOME. RELIANCE IN THIS RESPECT WAS PLACED ON THE CASE LA WS AS DECIDED BY HON'BLE DELHI BENCH, IN THE CASE OF PREM ARORA VS. DCIT [2012]24 TAXMAN.COM 260 WHEREIN IT HAS BEEN HELD THAT FOR TH E PURPOSE OF IMPOSITION OF PENALTY U/S 271(1) (C) OF THE ACT ON ASSESSMENT MADE U/S 153A, ORIGINAL RETURN FILED U/S 139 CANNOT BE CONSI DERED AND IF THE RETURNED INCOME U/S 153A IS ACCEPTED, THE ASSESSING OFFICER CANNOT IMPOSE PENALTY U/S 271(1) (C). RELIANCE WAS FURTHER PLACED ON A DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT. THEREFORE, IT WAS ARGUED THAT THE PENALTY SUS TAINED BY LD. CIT(A) BE DELETED. ITA NO. 103 (ASR)/2017 ASST. YEAR: 2009-10 3 4. THE LD. DR ON THE OTHER HAND, HEAVILY PLACED HIS RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GON E THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE IN RESPONSE TO NOTICE U/S 153A OFFERED THE ADDITIONAL INCOME OF RS. 7 LACS WHICH A CCRUED TO IT ON 13.06.2012 AS IS APPARENT FROM COPY OF FORM 26AS PL ACED AT PAPER BOOK PAGE OF 16 TO 17 AND THEREFORE, AT THE TIME OF FILI NG OF ORIGINAL RETURN WHICH RELATED TO ASSESSMENT YEAR 2009-10, THE ASSES SEE WAS NOT AWARE OF SUCH INCOME AND MOREOVER, WE FIND THAT ASSESSEE HAD OFFERED THE SAME IN ITS RETURN OF INCOME FILED U/S 153A OF THE ACT W HICH FACT IS EVIDENT FROM THE ASSESSMENT ORDER DATED 26.02.2015 PASSED U /S 153C/143 OF THE ACT AND WHEREIN THE ASSESSING OFFICER HAS NOT M ADE ANY ADDITION OF RS. 7 LACS AS ASSESSEE ITSELF INCLUDED THE SAME IN ITS RETURN OF INCOME, THEREFORE, TO THIS EXTENT THE PENALTY WAS NOT IMPOS ABLE. 6. HON'BLE DELHI ITAT BENCH, IN THE CASE OF PREM AR ORA VS. DCIT [2012] 24 TAXMANN.COM 260 HAS HELD THAT WHERE ASSES SMENT HAS BEEN MADE U/S 153A, ORIGINAL RETURN FILED U/S 139 CANNOT BE CONSIDERED FOR THE PURPOSE OF IMPOSITION OF PENALTY U/S 271(1)( C) OF THE ACT AND IT HAS FURTHER HELD THAT THE CONCEALMENT OF INCOME HAS TO BE SEEN WITH REFERENCE TO ADDITIONAL INCOME BROUGHT TO TAX OVER AND ABOVE INCOME RETURNED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSU ED U/S 153A OF THE ACT AND THEREFORE WHERE RETURN OF INCOME U/S 153A I S ACCEPTED, IT CAN NEITHER BE A CASE OF CONCEALMENT OF INCOME NOR FURN ISHING OF INACCURATE ITA NO. 103 (ASR)/2017 ASST. YEAR: 2009-10 4 PARTICULARS OF SUCH INCOME. THE HON'BLE GUJARAT HIG H COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT HELD THAT IN VIEW OF SPECIFIC PROVISIONS OF SECTION 153A OF THE I.T. ACT, THE RETURN OF INCO ME FILED IN RESPONSE TO NOTICE U/S 153A OF THE I.T.A. ACT. HAS TO BE CONSID ERED AS RETURN FILED U/S 139 OF THE ACT, AND AS THE ASSESSING OFFICER HAS MA DE ASSESSMENT ON THE SAID RETURN AND THEREFORE, THIER RETURN HAS TO BE C ONSIDERED FOR THE PURPOSE OF PENALTY U/S 271(1) (C) OF THE I.T. ACT A ND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE IN COME RETURNED U/S 153A. THEREFORE, IN OUR CONSIDERED OPINION, THE PEN ALTY ON INCOME OF RS. 7 LACS WAS NOT IMPOSABLE. HOWEVER, IN RESPECT OF AM OUNT OF RS. 66,000/- WHICH THE ASSESSEE HAD RECEIVED FROM M/S PARKASH CO MMUNICATION HAD NOT BEEN INCLUDED IN ORIGINAL RETURN OF INCOME AS W ELL AS IN THE RETURN FILED U/S 153A OF THE ACT. THIS FACT IS VERIFIABLE FROM ASSESSMENT ORDER DATED 26.02.2015 WHEREIN THE ASSESSING OFFICER HAD MADE ADDITION OF RS. 66,000/- AND THEREFORE TO THIS EXTENT, THE ASSESSEE CAN BE SAID TO HAVE CONCEALED THE PARTICULARS OF ITS INCOME AS THE ASSE SSEE DID NOT DISCLOSE THE SAME IN THE RETURN FILED U/S 153A ALSO. IN VIEW OF THE ABOVE, WE HOLD THAT PENALTY FOR NON DISCLOSURE OF INCOME OF RS. 66 ,000/- IS IMPOSABLE. 7. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY IN RESPECT OF RS. 7 LACS AND APPLY THE PENALTY FOR AMOUNT OF RS. 66,000/- ONLY. 9. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE A SSESSEE IS PARTLY ALLOWED. ITA NO. 103 (ASR)/2017 ASST. YEAR: 2009-10 5 ORDER PRONOUNCED IN THE OPEN COURT ON 05.05.2017. SD/- SD/- (N.K. CHOUDHRY) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 05/05/2017 GP/SR.PS/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER