The DCIT, Central Circle-4, Surat V. Shri Ashok P.Jain, Surat

ITA 1140/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94685 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAGENDRA SINGH
• Keywords: Income from undisclosed sources
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 4, SURAT (APPELLANT) VS SHRI ASHOK P. JAIN, 8 - C, RATNABH APPT. NR. PANJARA POLE, SURAT - 395002 PAN: AASPJ8016D (RESPONDENT) REVENUE BY : S H RI NAGENDRA SINGH , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 17 - 11 - 2 015 DATE OF PRONOUNCEMENT : 18 - 11 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS R EVENUE S APPEAL FOR A.Y. 2009 - 10 , AR ISES FROM ORDER OF THE CIT(A) - II, AHMEDABAD DATED 19 - 03 - 2012 IN APPEAL NO. CIT(A) - II/CC.4 / 77/2011 - 12 , IN PROCEEDING S UNDER SECTION 271AAA OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 1140 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 1140 /AHD/20 12 A.Y. 2009 - 10 PAGE NO DCIT VS. SHRI ASHOK P. JAIN 2 2. THE REVENUE S SOLE S UBSTANTIVE GRIEVANCE PLEADED IN ITS GROUND CHALLENGES THE CIT(A) S ORDER DELETING SECTION 271AAA PENALTY OF RS. 8,80,770/ - IMPOSED BY THE ASSESSING OFFICER IN HIS ORDER DATED 20 TH JUNE, 2011. NONE APPEARS AT ASSESSEE S BEHEST DESPITE SERVICE OF NOTICE. C ASE FILE REVEALS THAT HE HAS CHOSEN TO FILE WRITTEN SUBMISSIONS. WE TAKE INTO ACCOUNT AVERMENTS THEREIN AND PROCEED TO DEAL WITH THE CASE ON MERITS. 3. THIS ASSESSEE IS AN INDIVIDUAL. THE DEPARTMENT CARRIED OUT A SEARCH ON 20/01/2009 AT THE RESIDENCE OF SHRI DINES H BHAGIRATH BHAIYA AT SURAT. IT CAME ACROSS AN MOU SHOWING ASSESSEE AND MR. BHAIYA TO HAVE PURCHASED A LAND FROM SHRI MUTUL SHAH FOR RS. 2,93,59,000/ - TO THE EXTENT OF 30% AND 70%; RESPECTIVELY. THE ASSESSEE GOT RECORDED ITS STATEMENT STATIN G TO HIS SHARE OF RS. 88,07,700/ - EARNED FROM TRADING IN ART SILK CLOTH. HE FILED HIS RETURN ON 30 - 09 - 2009 SHOWING THE VERY INCOME AND PAID TAXES. THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT ON 22 - 12 - 2010 ASSESSING TOTAL INCOME AT RS. 85,00,090/ - . HE FURTHER INITIALED SECTION 271AAA PENALTY PROCEEDINGS. THE ASSESSEE DOES NOT SEEM TO HAVE FILED ANY QUANTUM APPEAL. ASSESSMENT PROCEEDINGS ACCORDINGLY ATTAINED FINALITY. 4. NOW WE COME TO PENALTY PROCEEDINGS. T HE ASSESSEE STRONGLY CONTESTED THIS P ENALTY PROPOSAL ON THE GROUND THAT HE HAD ALREADY COMPLIED WITH THE RELEVANT PROVISIONS U/S. 132(4) OF THE ACT R.W.S. 271AAA SPECIFYING THE MANNER OF HAVING DERIVED THE UNDISCLOSED I.T.A NO. 1140 /AHD/20 12 A.Y. 2009 - 10 PAGE NO DCIT VS. SHRI ASHOK P. JAIN 3 INCOME ALONG WITH ALL NECESSARY DETAIL S . THE ASSESSING OFFICER REJECTED TH E SAME ALLE GING NON - COMPLIANCE SUB - SECTION 2 OF SECTION 271AAA THAT HE HAD NOT GIVEN PARTICULARS OF THE UNACCOUNTED INCOME IN QUESTION. HE WOULD FURTHER HOLD THAT THE MANNER OF DERIVING THIS UNDISCLOSED INCOME HAD ALSO NOT BEEN SUBSTANTIATED. IT IS TO B E SEEN THAT THE ASSESSING OFFICER TREATED THE IMPUGNED ASSESSMENT YEAR AS THE SPECIFIED PERIOD UNDER THE RELEVANT PENALTY PROVISION FOR IMPOSING THE IMPUGNED PENALTY OF RS. 8,80,770/ - I.E. 10% OF THE UNDISCLOSED INCOME OF RS. 88,07,700/ - (SUPRA). 5. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) IN THE COURSE OF LOWER APPELLATE PROCEEDINGS SOUGHT DETAILS FROM THE ASSESSING OFFICER VIDE ORDER SHEET DATED 14 - 03 - 2012 AS TO WHETHER ANY SEARCH ACTION U/S. 132 OF THE ACT HAS TAKEN PLACE IN ASSESSEE S CASE. THE REPLY CAME FROM THE OTHER SIDE WAS IN NEGATIVE. ASSESSEE S NAME DID NOT FIGURE IN THE LIST OF ASSESSEES COVERED U/S. 153A OF THE ACT. THIS MADE THE CIT(A) TO HOLD THAT SECTION 271AAA APPLIES ONLY IN CASE OF A SEARCH CONDUCTED ON OR AFTER 01 - 06 - 2007 AND N OT OTHERWISE. HE HAS PROCEEDED TO DELETE THE IMPUGNED PENALTY BY ADOPTING THE VERY REASONING. THIS LEAVES THE REVENUE AGGRIEVED. 6. WE HAVE HEARD THE REVENUE AND GONE THROUGH THE CASE FILE. RELEVANT FACTS NARRATED IN THE PRECEDING PARAGRAPHS ARE NOT REPEATED FOR THE SAKE OF BREVITY. THE REVENUE STRONGLY SEEKS RESTORATION OF THE IMPUGNED PENALTY IMPOSED U/S. 271AAA OF THE ACT. IT IS UNABLE TO DISPUTE THE FACTUAL POSITION THAT THERE IS NO SEARCH CONDUCTED IN I.T.A NO. 1140 /AHD/20 12 A.Y. 2009 - 10 PAGE NO DCIT VS. SHRI ASHOK P. JAIN 4 ASSESSEE S CASE U/S. 132 SO AS TO ATTRACT THE PENALTY PROVISION IN QUESTION ENSHRINED U/S. 271AAA OF THE ACT. IT IS MADE CLEAR THAT WE ARE DEALING WITH A PE NALTY PROVISION IN A TAX STATU TE LIABLE TO BE CONSTRUED VERY STRICTLY. THE REVENUE DOES NOT QUOTE ANY CASE LAW IN SUPPORT OF ITS ARGUMENTS THAT THE IMPUGNED PENALTY PROVI SION APPLIES EVEN IN CASE OF ASSESSEE NOT COVERED U/S. 153A OF THE ACT. WE UPHOLD THE CIT(A) S REASONING UNDER CHALLENGE. THE REVENUE S SOLE SUBSTANTIVE GROUND FAILS. 7. THIS REVENUE S APPEAL IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 18 - 11 - 2015 SD/ - SD/ - ( ANIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 18 /11 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,