DCIT, Coimbatore V. Lakshmi Ceramics, Coimbatore

ITA 1033/CHNY/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7571 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T N SEETHARAMAN
• Keywords: Revised return
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1033/MDS/2014 ( )( / ASSESSMENT YEAR : 2007-08 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II, COIMBATORE. V. M/S LAKSHMI CERAMICS, NO.63, KRISHNASAMY MUDALIAR ROAD, (BROOKE BOND ROAD), COIMBATORE 641 007. PAN : AACFL 0921 B (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI SASIKUMAR, JCIT -.+, / 0 / RESPONDENT BY : SH. T.N. SEETHARAMAN, ADVOCATE 1 / 2% / DATE OF HEARING : 23.02.2016 3') / 2% / DATE OF PRONOUNCEMENT : 24.03.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, COIMBA TORE, CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1)( C) OF THE INCOME- TAX ACT, 1961 (IN SHORT 'THE ACT'). 2 I.T.A. NO.1033/MDS/14 2. THERE WAS A DELAY OF 3 DAYS IN FILING THIS APPEA L BY THE REVENUE. THE REVENUE HAS FILED A PETITION FOR COND ONATION OF DELAY. WE HAVE HEARD THE LD. D.R. AND THE LD.COUNS EL FOR THE ASSESSEE. WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE C ONDONE THE DELAY AND ADMIT THE APPEAL. 3. SHRI SASIKUMAR, THE LD. DEPARTMENTAL REPRESENTAT IVE, SUBMITTED THAT THERE WAS SURVEY IN THE PREMISES OF THE ASSESSEE ON 17.09.2008. SEARCH WAS ALSO CONDUCTED IN GROUP CAS ES AND INCRIMINATING MATERIALS WERE FOUND IN RESPECT OF UN ACCOUNTED SALES AND UNDER INVOICED SALES. THE QUANTUM ADDITION MAD E BY THE ASSESSING OFFICER IN RESPECT OF UNACCOUNTED SALES A ND UNDER INVOICED SALES WAS ACCEPTED BY THE ASSESSEE. THE A SSESSEE, BY REPLY DATED 20.12.2010, ADMITTED THE UNACCOUNTED SA LES BUT IT DECIDED THE GROSS PROFIT RATE ADOPTED BY THE ASSESS ING OFFICER. THE ASSESSEE HAS FILED THE REVISED RETURN ADMITTING UNA CCOUNTED SALES IN KARAIKUDI BRANCH AND COIMBATORE BRANCH. THE ASS ESSEE HAS ALSO ACCEPTED THE UNDER INVOICED SALES IN KARAIKUDI BRANCH AND COIMBATORE BRANCH. THEREFORE, THE ASSESSING OFFICE R FOUND THAT THERE WAS A CONCEALMENT OF INCOME TO THE EXTENT OF UNACCOUNTED 3 I.T.A. NO.1033/MDS/14 SALES AND UNDER INVOICED SALES, AND LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LD. D.R. FURTHER POINTED OUT THAT EVEN THOUGH THE ASSESSEE FILED REVISED RETURN VOLUNTARIL Y, THE CONCEALMENT OF INCOME IN THE ORIGINAL RETURN WILL N OT EXEMPT THE ASSESSEE FROM THE RIGOUR OF PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT. THEREFORE, THE CIT(APPEALS) COMMITTED AN ERRO R IN DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. REFERRING TO THE ORDER OF THE CIT(APPEALS), MORE PARTICULARLY PARA 6.1, THE LD. DEPARTMENTAL REPRESENTATIVE POINT ED OUT THAT THE JUDGMENT OF THE APEX COURT IN DILIP N. SHROFF (291 ITR 519) REFERRED BY THE CIT(APPEALS) WAS OVERRULED BY THE APEX COURT IN UNION OF INDIA V. DHARMENDRA TEXTILES PROCESSORS AND OTHERS (2008) 306 ITR 277. REFERRING TO THE JUDGMENT OF DELHI HIGH C OURT REFERRED BY THE CIT(APPEALS) IN CHHABRA EMPORIUM (264 ITR 249), THE LD. D.R. SUBMITTED THAT EXPLANATION 5 TO SECTION 271(1)(C) O F THE ACT WAS NOT AVAILABLE IN THE STATUTE BOOK WHEN THE DELHI HIGH C OURT DECIDED THE CASE. THEREFORE, THESE JUDGMENTS OF APEX COURT AND DELHI HIGH COURT MAY NOT HELP THE ASSESSEE. THEREFORE, ACCORD ING TO THE LD. D.R., THE CIT(APPEALS) HAS COMMITTED AN ERROR IN DE LETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4 I.T.A. NO.1033/MDS/14 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THERE WAS A SURVEY IN THE PREMISES OF THE ASSESSEE. A SE ARCH WAS ALSO CONDUCTED IN GROUP CASES UNDER SECTION 132A OF THE ACT AND THE ASSESSEE WAS CALLED UPON TO FILE RETURN OF INCOME. ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD, THE ASSESSEE FILE D THE RETURN. WHEN CERTAIN OMISSIONS WERE BROUGHT TO THE NOTICE O F THE ASSESSEE, THE ASSESSEE IMMEDIATELY FILED REVISED RETURN WITH AN INTENTION TO RECTIFY THE BONAFIDE ERROR IN THE ORIGINAL RETURN. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THERE WAS ANY CONCEALM ENT OR THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS? THE ASSESSEE FILED THE RETURN OF INCOME CONSEQUENT TO THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 153A R.W.S. 153C OF THE ACT. SINCE IT IS A CASE OF SEARCH AND SURVEY, THE ASSESSEE COU LD NOT COMPUTE THE TOTAL INCOME ON THE BASIS OF MATERIAL FOUND DUR ING THE COURSE OF SEARCH OPERATION. THE FACT REMAINS THAT THE ASSESS EE HAS FILED RETURN OF INCOME AND THE ENTIRE INCOME DISCLOSED IN THE REVISED RETURN IS ACCEPTED BY THE ASSESSING OFFICER AND NO FURTHER ADDITION WAS MADE IN THE ASSESSMENT PROCEEDING. WHEN THE IN COME DISCLOSED IN THE REVISED RETURN WAS ACCEPTED AND NO FURTHER ADDITION WAS MADE, THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT IT IS NOT A 5 I.T.A. NO.1033/MDS/14 FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C ) OF THE ACT. THE POWER TO LEVY PENALTY UNDER SECTION 271(1)(C) OF TH E ACT IS ONE THING AND EXERCISING OF POWER IS ANOTHER THING. THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT THE POWER OF THE ASSESSING OFFICER TO LEVY PENALTY HAS TO BE EXERCISED JUDICIOUSLY IN APPROPRI ATE CASES. WHEN THE ASSESSEE HAS DISCLOSED ENTIRE INCOME BY WAY OF REVISED RETURN AND NO ADDITION WAS MADE, THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENAL TY LEVIED BY THE ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS) AND ACCORDINGLY, THE SAME IS CONFIRMED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 24 TH MARCH, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 24 TH MARCH, 2016. KRI. 6 I.T.A. NO.1033/MDS/14 / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-II, COIMBATORE 4. 1 92 /CIT, COIMBATORE 5. 7: -2 /DR 6. ;( < /GF.