Shri Jagdish Rai Goyal, Panchkula V. DCIT, Chandigarh

ITA 1055/CHANDI/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5061 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 28-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 06-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Unexplained cash credit
• Section: 132; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1055/CHD/2016 ASSESSMENT YEAR: 2009-10 SH. JAGDISH RAI GOYAL, VS. THE DCIT, PANCHKULA CENTRAL CIRCLE-II, CHANDIGARH PAN NO. ACIPG5588M (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 04.07.2017 DATE OF PRONOUNCEMENT : 14.07.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-3 [HER EINAFTER REFERRED TO AS CIT(A)], GURGAON DATED 28.07.2016. 2. THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE C IT(A) IN CONFIRMING THE PENALTY OF RS. 13,52,068/- LEVIED U/S 271AAA OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONS IDERATION ARE THAT DURING THE SEARCH ACTION CARRIED OUT U/S 133 / 132 OF THE ACT, AT THE PREMISES OF THE ASSESSEE, THE ASSESSEE HAD MADE A L UMP SUM DISCLOSURE OF 2 RS. 4,50,00,000/- FOR THE ENTIRE GROUP OF THE COMPA NIES RELATING TO THE ASSESSEE. IN THE RETURN FILED FOR THE YEAR UNDER CO NSIDERATION, THE ASSESSEE SURRENDERED AMOUNT OF RS. 99,15,000/- OUT OF SAID T OTAL SURRENDERED AMOUNT OF RS. 4.50 CORES. FURTHER, THE ASSESSING OFFICER H AD MADE CERTAIN ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDITS. THE ASSESSI NG OFFICER OBSERVED THAT THE ASSESSEE HAD NOT SPECIFIED THE MANNER OF E ARNING OF SURRENDERED INCOME IN THE RETURN OF INCOME. HE, ACCORDING INITI ATED PENALTY PROCEEDINGS U/S 271AAA OF THE ACT AND IMPOSED THE P ENALTY OF RS. 13,52,068/- UPON THE ASSESSEE. BEING AGGRIEVED BY THE ACTION OF THE ASSESSING OFFI CER THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 4. THE LD. CIT(A) WHILE RELYING UPON THE DECISION OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. HARMO HINDER SINGH CHADHA ITA NO. 188/CHD/2015 AND FURTHER IN THE CASE OF DCI T VS. AMARJIT GOYAL AND OTHERS ITA NO. 1081/CHD/2013 & OTHERS OBSERVED THAT IN THE FACTS OF THE CASE AND IN THE LIGHT OF THE ABOVE STATED DECIS IONS OF THE TRIBUNAL THE ASSESSEE HAD BEEN ABLE TO SUBSTANTIATE THE MANNER I N WHICH THE INCOME WAS DERIVED. HE, HOWEVER, CONFIRMED THE PENALTY ON ANO THER GROUND THAT FROM THE PERUSAL OF FORM NO. 26AS, THE TAX AND INTEREST ON SURRENDERED INCOME HAD NOT BEEN PAID BEYOND THE DUE DATE OF FILING OF THE RETURN WHICH WAS 31.7.2009. 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS PLEA DED THAT NO TIME LIMIT HAS BEEN PRESCRIBED U/S 271AAA FOR PAYMENT OF TAX F OR ATTRACTING PENALTY U/S 271AAA OF THE ACT. THE EXCEPTION PROVIDED U/S 2 71AAA (2)(III) OF THE ACT IS THAT THE PROVISIONS OF SUB SECTION (1) WILL NOT APPLY, IF THE ASSESSEE 3 PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RE SPECT OF THE DISCLOSED INCOME. THE LD. COUNSEL HAS SUBMITTED THAT THE ASSE SSEE HAD PAID ALL THE TAXES EVEN BEFORE THE INITIATION OF THE PRESENT PEN ALTY PROCEEDINGS U/S 271AAA OF THE ACT. HE, IN THIS RESPECT HAS RELIED U PON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF MAN OHAR INFRASTRUCTURE AND CONSTRUCTION PVT LTD, CHANDIGARH VS. DCIT IN ITA N O.729/CHD/2016 VIDE ORDER DATED 9.11.2016 WHEREIN THE TRIBUNAL AFTER DE LIBERATING ON VARIOUS CASE LAWS INCLUDING THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF ACIT , UDAIPUR VS. M/S GEBILAL KANHAIYALAL HUF, THROUGH KARTA, UDAIPUR, (2012) 348 ITR 561 (SC) WHEREIN THE HON'BL E SUPREME COURT HAS HELD THAT FOR THE PURPOSE OF CLAIMING IMMUNITY FROM PENALTY U/S 271AAA OF THE ACT, THERE IS NO REQUIREMENT OF PAYING TA XES ON THE UNDISCLOSED INCOME BEFORE THE DUE DATE OF RETURN OF INCOME U/S 139(1) OF THE ACT AND THAT WHERE THE ASSESSEE HAD PAID TAXES ON THE SURRE NDERED INCOME, AND HAS FULFILLED THE OTHER CONDITIONS OF IMMUNITY, THE PEN ALTY LEVIED U/S 271AAA OF THE ACT IS LIABLE TO BE DELETED, DELETED THE PEN ALTY. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TR IBUNAL, WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE LOWER AUT HORITIES FOR LEVYING PENALTY ON THE ASSESSEE U/S 271AAA OF THE ACT AND T HE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 14.07.2017 SD/- SD/- ( ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH JULY, 2017 4 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR