ITO, Central-2, Nashik V. Shri Nareshkumar G. Mittal (Ind), Khandwa

ITA 1137/PUN/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8542 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Search and seizure; Tax effect
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.1137/PN/2011 (ASSESSMENT YEAR : 2008-09) INCOME TAX OFFICER, (CENTRAL)-2, NASHIK. . APPELLANT VS. SHRI NARESHKUMAR G. MITTAL (IND.), 380, RAMKRISHNA GANJ, KHANDWA. PAN : AINPM9006H . RESPONDENT DEPARTMENT BY : SHRI A. K. MODI ASSESSEE BY : SHRI SUNIL PATHAK DATE OF HEARING : 13-11-2014 DATE OF PRONOUNCEMENT : 19-11-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGA INST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 22.06.2011 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.06.2010 PASSED BY THE ASSESSING OFFICER U/S 271AAA OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, THE SOLITARY DISPUTE RELATES TO THE ACTION OF THE CIT(A) IN DELETING THE PENALTY OF RS.3,95,513/- IMPOSED BY TH E ASSESSING OFFICER U/S 271AAA OF THE ACT. 3. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE I S AN INDIVIDUAL ENGAGED IN THE BUSINESS OF TRADING IN COMMODITIES AND IS ALSO A PARTNER IN VARIOUS FIRMS, AND WAS SUBJECT TO A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 22.11.2007. IN THE COURSE OF SEARCH, ASSESSEE SURR ENDERED AN INCOME OF RS.39,55,136/- IN THE COURSE OF A DEPOSITION MADE U /S 132(4) OF THE ACT. THE SAID DECLARATION WAS ON ACCOUNT OF INVESTMENT IN JE WELLERY, UNEXPLAINED ITA NO.1137/PN/2011 EXPENDITURE AND EXPENDITURE INCURRED ON ACCOUNT OF RENOVATION/FURNITURE. SUBSEQUENTLY, ASSESSEE ALSO OFFERED THE SAID INCOME IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2008-09. THE ADDITIO NAL INCOME SO DECLARED IN THE STATEMENT U/S 132(4) OF THE ACT AND OFFERED IN THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE ASSES SMENT FINALIZED U/S 153B R.W.S. 143 (3) OF THE ACT DATED 30.12.2009. SUBSEQ UENTLY, THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 271AAA OF THE ACT AND VIDE ORDER DATED 29.06.2010 LEVIED PENALTY WITH RESPECT TO THE AFORESAID ADDITIONAL INCOME OF RS.39,55,136/-. THE ASSESSING OFFICER HE LD THAT THE ASSESSEE DID NOT FULFILL ONE OF THE CONDITIONS PRESCRIBED IN SUB -SECTION (2) OF SECTION 271AAA OF THE ACT AND THEREFORE A PENALTY EQUIVALENT TO 10 % OF THE SURRENDERED INCOME WAS LEVIABLE THEREBY RESULTING IN LEVY OF PE NALTY AMOUNTING TO RS.3,95,513/-. THE CIT(A) HAS NOT AGREED WITH THE STAND OF THE ASSESSING OFFICER BECAUSE ACCORDING TO HIM, ASSESSEE HAD COMP LIED WITH ALL THE CONDITIONS LAID DOWN IN SUB-SECTION (2) OF SECTION 271AAA OF THE ACT AND THEREFORE NO PENALTY WAS LEVIABLE U/S 271AAA OF THE ACT. THE REVENUE HAS CHALLENGED THE AFORESAID ACTION OF THE CIT(A) BY WA Y OF THE PRESENT APPEAL. 4. AT THE TIME OF HEARING, A PRELIMINARILY OBJECTIO N WAS RAISED BY THE LD. REPRESENTATIVE FOR THE RESPONDENT-ASSESSEE TO THE E FFECT THAT THE CAPTIONED APPEAL IS NOT MAINTAINABLE IN VIEW OF INSTRUCTION N O.5 OF 2014 DATED 10.07.2014 ISSUED BY THE CBDT. THE PLEA RAISED BEF ORE US IS THAT THE TAX EFFECT IN RESPECT OF THE ISSUE RAISED IN THE PRESEN T APPEAL IS BELOW THE LIMIT PRESCRIBED BY CBDT IN ITS INSTRUCTION NO.5 OF 2014 (SUPRA) FOR FILING OF APPEALS BEFORE THE TRIBUNAL. 5. IN RESPONSE, THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT CONTESTED THE FACTUAL MATRIX THAT THE TAX EFFECT INVOLVED IN PRESENT APPEAL IS BELOW THE MONETARY LIMITS PRESCRIBED BY THE CBDT IN ITS INSTR UCTION NO.5 OF 2014 (SUPRA) REGARDING FILING OF APPEALS BEFORE THE TRIBUNAL. ITA NO.1137/PN/2011 6. IN VIEW OF THE AFORESAID FACTUAL POSITION, IT IS EVIDENT THAT THE CAPTIONED APPEAL IS NOT MAINTAINABLE AND IS HIT BY THE MONETA RY LIMITS PRESCRIBED BY THE CBDT VIDE INSTRUCTION NO.5 OF 2014 (SUPRA) FOR FILI NG OF APPEALS BEFORE THE TRIBUNAL. NOTABLY, AS PER THE CBDT INSTRUCTION NO. 5 OF 2014 (SUPRA) APPEAL BEFORE THE TRIBUNAL SHALL NOT BE FILED IN CASES WHE RE THE TAX EFFECT IN RESPECT OF THE ISSUES RAISED IS BELOW RUPEES FOUR LACS. AS A RESULT OF THE AFORESAID DISCUSSION, IN OUR VIEW, THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN THE LIGHT OF THE CBDT INSTRUCTION NO.5 OF 2014 ( SUPRA). ACCORDINGLY, THE CAPTIONED APPEAL IS DISMISSED AS NOT MAINTAINABLE. 7. RESULTANTLY, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 19 TH NOVEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, NASHIK; 4) THE CIT-I, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE