Sh. Sanjay Mitra, New Delhi V. DCIT, New Delhi

ITA 1118/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4213 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 03-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK KUMAR JAIN
• Keywords: Search and seizure; Revised return
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DLEHI BEFORE SHRI G.D. AGRAWAL, PRESIDENT AND SHRI K. NARSIMHA CHARY, JUDICIAL MEMBER I.T.A. NOS.1118 & 1119/DEL/2016 ASSESSMENT YEAR: 2006-07 & 2007-08 SHRI SANJAY MITRA, VS DY. COMMISSIONER OF INCOME -TAX, G-25, GREEN PARK, NEW DELHI. CENTRAL CIRCLE - 26, NEW DELHI. (PAN: AAGPM2907G ) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHOK KUMAR JAIN RESPONDENT BY: SMT. RITU SHARMA ORDER PER BENCH AGGRIEVED BY THE ORDERS DATED 7.1.2016 IN APPEAL NO S.156/14-15/CIT(A)-29 AND 157/14-15/CIT(A)-29 FOR ASSESSMENT YEARS 2006-07 AND 2007-08 PASSED BY THE LEARNED CIT(A)-29, NEW DELHI (FOR SHORT HEREINA FTER CALLED AS LD CIT(A)), THE ASSESSEE PREFERRED BOTH THESE APPEALS. SINCE THE Q UESTION INVOLVED IN BOTH THE APPEALS IS SAME, WE DISPOSE OF THESE APPEALS BY WAY O F A COMMON ORDER WITH REFERENCE FOR THE FACTS IN APPEAL NO.1118/DEL/2016. 2 2. FACTS STATED IN BRIEF ARE THAT THE ORIGINAL RETU RN OF INCOME BY THE ASSESSEE FOR THE ASSTT. YEAR 2006-07 WAS FILED ON 24.7.2006 DECLARING A TOTAL INCOME OF RS.7,91,164/- AND IT WAS PROCESSED U/S 143(1) OF TH E ACT. SUBSEQUENTLY, ON 20.1.2012 AND 27.1.2012 , SEARCH AND SEIZURE OPERAT IONS U/S 132 OF THE INCOME- TAX ACT WERE CONDUCTED AT THE PREMISES OF DALMIA GR OUP IN WHICH THE ASSESSEE COMPANY WAS ALSO COVERED. PURSUANT TO THE NOTICE ISS UED U/S 153A OF THE ACT, ASSESSEE FILED A RETURN OF INCOME DECLARING AN INCO ME OF RS.9,95,340/-. THOUGH THE LEARNED AO COMPLETED THE ASSESSMENT ACCEPTING T HE RETURN FILED U/S 153A, HAVING SATISFIED WITH THE CORRECTNESS OF THE PARTIC ULARS OF ACCOUNTS FURNISHED BY THE ASSESSEE THEREIN, HE THOUGHT IT FIT TO INITIATE THE PROCEEDINGS U/S 271(1)(C ) OF THE ACT FOR THE DIFFERENCE OF AMOUNT BETWEEN THE OR IGINAL RETURN OF INCOME AND THE RETURN FILED U/S 153A. BY ORDER DATED 29.9.2014 , LEARNED AO CONCLUDED THE PROCEEDINGS U/S 271(1)(C) WITH LEVY OF PENALTY OF RS .62,477/-. APPEAL PREFERRED BY THE ASSESSEE ENDED UP IN DISMISSAL AND THE LEARNED CIT(A) BY WAY OF IMPUGNED ORDER CONFIRMED THE PENALTY. HENCE, THE ASSESSEE IS IN APPEAL BEFORE US. 3. WHEN THIS APPEAL IS FILED, THE REGISTRY ENDORSED THAT TRIBUNAL FEE DEPOSITED BY THE ASSESSEE IS SHORT BY RS.9453/-. BY PLACING REL IANCE ON THE DECISION OF ITAT DELHI BENCH IN THE CASE OF MRS. MANINDER SIDHU VS A CIT, CIRCLE 22(1), (2011)(12 TAXMANN.COM 7 (DELHI), THE LEARNED AR SUBMITTED THA T DEPOSIT OF RS.500/- IS 3 SUFFICIENT. HAVING CONSIDERED THE MATTER, WE AGREE WITH THE LEARNED AR AND REMOVE THE OFFICE OBJECTION. 4. IT IS THE SUBMISSION OF THE LEARNED AR THAT INAS MUCH AS THE LEARNED AO ACCEPTED THE INCOME AS FURNISHED IN THE RETURN U/S 153A OF THE ACT, THERE IS NEITHER CONCEALMENT OF INCOME NOR ANY FURNISHING OF INACCURATE PARTICULARS THEREOF. HE PLACED RELIANCE ON THE DECISION OF DELH I HIGH COURT REPORTED IN (2017) 79 TAXMANN.COM 96(DELHI) IN THE CASE OF PRINCIPAL C OMMISSIONER OF INCOME-TAX - 19 VS NERAJ JINDAL FOR THE PRINCIPLE THAT WHEN THE ASSESSEE FILED REVISED RETURN AFTER SEARCH HAD BEEN DONE, AND SUCH REVISED RETURN HAS BEEN ACCEPTED BY THE ASSESSING OFFICER, THEN MERELY BY VIRTUE OF THE FACT THAT SUCH RETURN SHOWED A HIGHER INCOME, PENALTY U/S 271(1) CANNOT BE AUTOMAT ICALLY IMPOSED. IT IS FURTHER HELD IN THIS DECISION THAT CONSIDERING THE NON OBSTANTE CLAUSE U/S 153A EXCLUDES THE APPLICATION OF , INTER ALIA, SECTION 1 39, IT IS CLEAR THAT THE REVISED RETURN FILED U/S 153A TAKES THE PLACE OF THE ORIGIN AL RETURN U/S 139, FOR THE PURPOSES OF ALL OTHER PROVISIONS OF THE ACT, AND, T HEREFORE, THE POSITION THAT EMERGES FROM THE ABOVE-MENTIONED PROVISION IS THAT ONCE THE ASSESSEE FILES A REVISED RETURN U/S 153A, FOR ALL OTHER PROVISIONS O F THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED U/S 139. 4 5. FACTS OF THIS CASE ARE SIMILAR TO THE ONE IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME-TAX -19 VS NERAJ JINDAL (SUP RA) AND THE RATIO LAID DOWN BY THE HONBLE HIGH COURT IS APPLICABLE TO THESE FACTS ON ALL FOURS. THEREFORE, WHILE RESPECTFULLY FOLLOWING THE DICTA OF THE HONBLE JURI SDICTIONAL HIGH COURT, WE FIND THAT THE PENALTY CANNOT BE SUSTAINED. WE ACCORDINGL Y DIRECT THE AO TO DELETE THE SAME. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF JANUARY, 2018. (G.D. AGRAWAL) (K. NARSIMHA CHARY) PRESIDENT JUDICIAL MEMBER DATED: 5 TH JANUARY, 2018 VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR