Dr.P.S.Ganesh, CHENNAI V. ACIT, CHENNAI

ITA 11/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61083 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 04-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAY ANAGAYAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Revised return
• Section: 139(5); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P.GEORGE, ACCOUNTANT ME MBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.11/MDS/2012 (ASSESSMENT YEAR: 2005-06) DR. P.S.GANESH, C/O. S.SRIDHAR ADVOCATE NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI-600 020. PAN:AAIPG6561A VS. ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-III, CHENNAI-34 (APPELLANT) (RESPONDENT) APPELLANT BY : MR. S.SRIDHAR, ADVOCATE RESPONDENT BY : MR. JAY ANAGAYAN, CIT DR DATE OF HEARING : 10 TH MAY, 2012 DATE OF PRONOUNCEMENT : 18 TH MAY, 2012 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE APPEAL HAS BEEN FILED BY THE ASSESSEE IMPUGN ING THE ORDER DATED 9.11.2011 PASSED BY THE CIT(A)-VIII , CHENNAI. 2. THE ASSESSEE/APPELLANT IS A DOCTOR BY PROFESSION . THE ASSESSEE FILED HIS FIRST RETURN OF INCOME RELEVANT TO THE ASSESSMENT YEAR 2005-06 ON 30.07.2005 ADMITTING TOT AL INCOME OF ` 3,44,560/-. DURING THE COURSE OF SURVEY CONDUCTED BY INVESTIGATING WING OF THE INCOME-TAX DEPARTMENT AT APOLLO ITA NO. 11/MDS/2012 2 HOSPITAL, CHENNAI, IT WAS FOUND THAT THE ASSESSEE R ECEIVED AN AMOUNT OF ` 10,57,813/- IN CASH AS FEES FROM APOLLO HOSPITAL DURING THE RELEVANT ASSESSMENT YEAR. ON THE BASIS OF ENQUIRY, ASSESSMENT WAS REOPENED AND NOTICE DATED 18.6.2007 UNDER SECTION 148 WAS ISSUED TO THE ASSE SSEE. IN THE MEANTIME, ASSESSEE HAD FILED REVISED RETURN OF HIS INCOME ON 30.03.2006 DECLARING HIS TOTAL INCOME A S ` 10,93,146/-. IN THE REVISED RETURN, THE ASSESSEE O FFERED ADDITIONAL INCOME OF ` 7,48,586/- FROM PROFESSION AFTER CLAIMING SOME NEW EXPENSES INCURRED. PURSUANT TO T HE NOTICE ISSUED UNDER SECTION 148, THE ASSESSEE AGAIN FILED REVISED RETURN AND INCREASED THE TOTAL INCOME TO ` 12,32,350/-. NOT SATISFIED WITH THE EXPLANATION SUB MITTED FOR ALLEGED MISTAKES/OMISSIONS IN FILING OF ORIGINAL R ETURN, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT VIDE ORD ER DATED 24.12.2009 AND INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C)OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT). IN PURSUANCE TO THE ASSESSMENT ORDER DATED 24.12.2009, THE ASSESSING OFFICER VIDE ORDER DATED ITA NO. 11/MDS/2012 3 29.06.2011 IMPOSED PENALTY OF ` 2,06,040 UNDER SECTION 271(1)(C) OF THE ACT ON THE ALLEGED CONCEALED INCOM E OF ` 8,87,790/- 3. AGGRIEVED AGAINST THE ORDER DATED 29.06.2010 UN DER SECTION 271(1)(C) OF THE ACT PASSED BY THE ASSISTAN T COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE III, CH ENNAI, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) VIDE ORDER DATED 9.11.2011 UPHELD THE ORDER PASSED BY THE ASSESSING OFFICER AND DISMISSED THE APPEAL O F THE ASSESSEE. NOW, THE ASSESSEE/APPELLANT IS IN SECOND APPEAL BE FORE THE TRIBUNAL ASSAILING THE ORDER OF THE CIT(A). 4. MR. S.SRIDHAR, ADVOCATE APPEARING FOR THE ASSESS EE SUBMITTED THAT THERE WAS NO CONCEALMENT OF INCOME B Y THE ASSESSEE. THE ASSESSEE DECLARED HIS INCOME VOLUNTAR ILY AND FILED REVISED RETURN OF INCOME FOR THE RELEVANT ASS ESSMENT YEAR. HE CONTENDED THAT THE ASSESSEE HAD PAID TAXE S ALONG WITH INTEREST ON THE ADDITIONAL INCOME DECLARED. HE SUBMITTED THAT IT IS NOT THE CASE OF THE DEPARTMENT THAT THE INCOME WAS DETECTED BY THE ASSESSING OFFICER OR THE DEPARTMENT . SINCE ITA NO. 11/MDS/2012 4 ADDITIONAL INCOME WAS DECLARED VOLUNTARILY BEFORE D ETECTION, EXPLANATION1 TO SECTION 271(1)(C) OF THE ACT WOULD VITIATE THE ACTION OF IMPOSING PENALTY ON THE ASSESSEE. IN SUPP ORT OF HIS CONTENTIONS, THE COUNSEL FOR THE ASSESSEE RELIED ON THE JUDGEMENT PASSED BY THE HONBLE MADRAS HIGH COURT I N THE CASE OF CIT VS. DR. R.GOPALAKRISHNAN REPORTED AS 23 9 CTR (MAD) 558. 5. ON THE OTHER HAND, MR. JAYANAGAYAN, CIT DR APPEA RING FOR THE DEPARTMENT SUBMITTED THAT THE ASSESSEE HAD NOT FILED CORRECT RETURN AND THERE WAS WILLFUL CONCEALMENT OF INCOME. HE SUBMITTED THAT THE ASSESSEE HAS BEEN FREQUENTLY CHANGING THE INCOME RETURNED BY FILING VARIOUS RETURNS OF IN COME AND NO VALID EXPLANATION FOR FILING SUBSEQUENT REVISED RETURNS WAS GIVEN BY THE ASSESSEE. THEREFORE, THE ASSESSING OFF ICER HAS RIGHTLY LEVIED THE PENALTY WHICH HAS BEEN SUSTAINED BY THE CIT(A). HE STRONGLY SUPPORTED THE ORDERS PASSED BY THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE PARTIES AND HAVE GONE THROUGH THE DOCUMENTS ON RECORD. THE ASSESSEE HAS FILED REVISED RETURNS DECLARING HIS ADDITIONAL INCOME AND HAS PAID TAX AL ONG WITH ITA NO. 11/MDS/2012 5 INTEREST ON THE ADDITIONAL INCOME DECLARED. A PERU SAL OF PROVISIONS OF SECTION 139(5) WOULD SHOW THAT IF A R ETURN HAS ALREADY BEEN FILED AND THE ASSESSEE DISCOVERS ANY O MISSION, HE MAY FURNISH REVISED RETURN AT ANY TIME BEFORE TH E EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR O R BEFORE THE COMPLETION OF ASSESSMENT WHICHEVER IS EARLIER. IN THE INSTANT CASE, ORIGINAL RETURN OF INCOME RELEVANT TO THE ASSESSMENT YEAR 2005-06 WAS FILED BY THE ASSESSEE O N 30.07.2005. THE ASSESSEE FILED REVISED RETURN OF IN COME ON 30.03.2006. THE ASSESSEE HAS FILED REVISED RETURN W ITHIN THE TIME SPECIFIED IN SECTION 139(5). THE ASSESSEE HAS ALSO PAID TAX AND INTEREST ON ADDITIONAL INCOME DECLARED. IN THE CASE LAW, RELIED ON BY THE ASSESSEES COUNSEL, I.E. CIT VS. DR. R.GOPALAKRISHNAN(SUPRA), DIVISION BENCH OF THE HON BLE MADRAS HIGH COURT HAS HELD THAT WHERE THERE IS NO MATERIAL TO HOLD THAT SUPPRESSION ON THE PART OF THE ASSES SEE WAS WILLFUL AND DELIBERATE, IT IS NOT APPROPRIATE TO LE VY PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE HONBLE HI GH COURT THEREFORE UPHELD THE ORDER PASSED BY THE TRIBUNAL, WHEREIN IN SIMILAR CIRCUMSTANCES THE PENALTY LEVIED BY THE DEP ARTMENT ITA NO. 11/MDS/2012 6 WAS CANCELLED BY THE TRIBUNAL. IN THE PRESENT CASE ALSO, THE DEPARTMENT HAS FAILED TO SHOW THAT THERE WAS WILLFU L OR DELIBERATE ATTEMPT ON THE PART OF THE ASSESSEE TO C ONCEAL THE INCOME OR THE ASSESSEE HAD FILED INITIAL RETURN KNO WING IT TO BE FAKE. 7. IN VIEW OF OUR ABOVE FINDINGS AND RESPEC TFULLY FOLLOWING THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH CO URT CITED ABOVE, WE SET ASIDE THE IMPUGNED ORDER DATED 9.11.2 011 PASSED BY THE CIT(A) AND CANCEL THE PENALTY IMPOSE D BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE AC T. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, TH E 18 TH OF MAY, 2012 AT CHENNAI. SD/- SD/- (ABRAHAM P.GEORGE) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 18 TH MAY, 2012. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.