The DCIT, Central Circle-4, Surat V. Sai Khati Enterprise, Surat

ITA 1142/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94294 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Assessee Lawyers: MANISH J SHAH A R
• Keywords: Income from undisclosed sources
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND ANIL CHATURVEDI ACCOUNTANT MEMBER I.T.A. NO.1142/AHD/2012 (ASS TT. YEAR 2009-10) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4, AAYAKAR BHAVAN, MAJURA GATE, SURAT-395001 VS M/S. SAI KHATI ENTERPRISE, ANJANA TP.S.7 FINAL PLOT NO.40, NEXT TO SARVODAYA TEXTILE MARKET, OPP. HARIHAR TEXTILE MARKET, RING ROAD, SURAT-395002. (APPELLANT) (RESPONDENT) PAN ABKFS8870 P BY REVENUE SHRI PRAVIN KUMAR, D.R. BY ASSESSEE SHRI MANISH J. SHAH,A.R. / DATE OF HEARING : 06-08-2015 / DATE OF PRONOUNCEMENT: 28/08/2015 / O R D E R PER ANIL CHATURVEDI ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT (A)-II, AHMEDABAD DATED 22-3-2012 FOR ASSESSMENT YEAR 2009- 10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI AL ON RECORD ARE AS UNDER. 3. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF PURCHASE, SALE, DEVELOPMENT AND CONSTRU CTION OF IMMOVABLE ITA NO 1142/AHD/2012 ASSESSMENT YEAR 2009-10 M/S.SAI KHATI ENTERPRISE. 2 PROPERTIES. A SEARCH ACTION U/S. 132 OF THE INCOME TAX ACT WAS CARRIED OUT ON 20-11-2009 AT THE RESIDENTIAL PREMISES OF SH RI SHAILESH GONAWALA, THE PARTNER OF THE FIRM AND DURING THE CO URSE OF SEARCH HIS STATEMENT WAS RECORDED U/S 132(4), WHEREIN HE MADE A DISCLOSURE OF RS.95 LACS ON ACCOUNT OF UNACCOUNTED INCOME, INVEST MENT, ADVANCES, ASSETS, EXPENDITURE ETC., ON BEHALF OF THE FIRM. TH EREAFTER THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 8-7-2009 AND IN THE RETURN AFORESAID INCOME OF RS.95 LACS WAS DISCLOSED. SUBSE QUENTLY, ASSESSMENT WAS FRAMED ON 31-12-2010 U/S 143(3) R.W. S. 153C OF THE INCOME TAX ACT, AND THE TOTAL INCOME WAS ASSESSED A T RS.95 LACS BEING THE DECLARED INCOME. ON THE AMOUNT OF ADMITTED UNDI SCLOSED INCOME OF RS.95 LAC, PENALTY U/S. 271AAA OF RS.9,50,000/- WAS LEVIED BY ASSESSING OFFICER VIDE ORDER DATED 21-06-2011 AS HE WAS OF THE VIEW THAT ASSESSEE HAD FAILED TO SPECIFY THE MANNER IN W HICH SUCH INCOME WAS DERIVED AND THEREFORE SECTION 271AAA(1) WAS APP LICABLE. AGGRIEVED BY THE PENALTY ORDER, ASSESSEE CARRIED THE MATTER B EFORE THE LD. CIT (A), WHO VIDE ORDER DATED 22-3-2012 ALLOWED THE APP EAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF LD. CIT (A), REVENUE IS NOW IN APPEAL BEFORE AND HAS RAISED FOLLOWING GROUNDS:- 1. THE LD. CIT (A) HAS ERRED DIN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE PENALTY OF RS,.9,50,000/- LE VIED BY THE ASSESSING OFFICER U/S. 271AAA OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 5. BEFORE US THE LD. D.R. SUPPORTED THE ORDER OF A. O. ON THE OTHER HANDS LD. A.R. REITERATED THE SUBMISSIONS MADE BEFO RE THE A.O. AND THE LD. CIT (A) AND SUPPORTED THE ORDER OF LD. CIT (A). HE FURTHER ITA NO 1142/AHD/2012 ASSESSMENT YEAR 2009-10 M/S.SAI KHATI ENTERPRISE. 3 SUBMITTED THAT IN THE CASE OF SAI BHAKTI ENTERPRISE S ITS SISTER CONCERN, AND ON SIMILAR FACTS AND ON THE UNDISCLOSED INCOME RESULTING FROM THE SAME SEARCH U/S.132, THE PENALTY WAS DELETED BY TRI BUNAL VIDE ORDER DATED 30-11-2012 IN ITA NO.1144/AHD/2012. HE PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE SUBMITTE D THAT SINCE THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF ITS SISTER CON CERN, FOLLOWING THE ORDER OF TRIBUNAL, THE ORDER OF LD. CIT (A) DELETING THE PENALTY BE UPHELD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPE CT TO THE LEVY OF PENALTY U/S. 271AAA. WE FIND THAT THE PENALTY LEVIE D BY ASSESSING OFFICER WAS DELETED BY LD. CIT (A) AND THE REASONS FOR ITS DELETION WAS THAT THERE WAS NO SEARCH U/S. 132 IN THE CASE OF FI RM AND THAT THE PROVISIONS OF SECTION 271AAA WAS APPLICABLE ONLY IN A CASE WHERE SEARCH ACTION U/S. 132 HAS BEEN INITIATED. HE HAS T HUS GIVEN A FINDING THAT PROVISIONS OF SECTION 271AAA WERE NOT APPLICAB LE. BEFORE US, REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO C ONTROVERT THE FINDINGS OF LD. CIT (A). WE FURTHER FIND THAT IN T HE CASE OF ASSESSEES SISTER CONCERN, SAI BHAKTI ENTERPRISES, IN SIMILAR SITUATION ARISING OUT OF THE SAME SEARCH, THE PENALTY WAS DELETED BY THE CO- ORDINATE BENCH VIDE ORDER DATED 30-11-2012 (ITA NO.1144/AHD/2012) BY HO LDING AS UNDER:- 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PROVISIONS OF SEC. 271AAA ARE A TTRACTED IN CASE WHERE A SEARCH HAS BEEN INITIATED U/S. 132 ON OR BEFORE 1 ST DAY OF JUNE, 2007 BUT BEFORE 1 ST DAY OF JULY, 2012. WE FIND THAT CIT (A), ON THE BASIS OF MATERIAL ON RECORD, HAS GI VEN A FINDING THAT NO SEARCH U/S. 132 HAD TAKEN PLACE IN THE CASE OF THE ASSESSEE FIRM. FURTHER, CIT (A) HAS ALSO GIVEN A FI NDING THAT THE 3 CONDITIONS PROVIDED IN EXCEPTION IN SUB-SECTION (2) OF SEC. 271AAA ARE ALSO FULFILLED BY THE ASSESSEE. NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO CONTROVERT THE AFORESAID FINDINGS OF CIT (A). CBDT VIDE INSTRUCTIONNO.3 OF 2011 DATED 9-2- 2011 HAS FIXED MONETARY LIMIT FOR FILING OF APPEAL BEFORE VARIOUS AUTHORITIES. AS PER THE AFORESAID INSTRUCTION, THE MONETARY LIMIT FIXED FOR FILING OF APPEAL BEFORE ITAT HAS BEEN FIX ED AT RS.3 LAC. IN ITA NO 1142/AHD/2012 ASSESSMENT YEAR 2009-10 M/S.SAI KHATI ENTERPRISE. 4 THE PRESENT CASE, THE PENALTY LEVIED IS OF RS.3 LAC AND IS THEREFORE WITHIN THE PRESCRIBED LIMIT. IN VIEW OF THE TOTALIT Y OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT CIT (A) HAS RIGHTLY DELETED THE PENALTY. WE THUS FIND NO REASON TO INTERFERE TO TH E ORDER OF THE CIT (A). THUS THE APPEAL OF THE REVENUE IS DISMISS ED. 7. IN VIEW OF THE AFORESAID FACTS AND THE ORDER OF CO-ORDINATE BENCH OF THIS TRIBUNAL, IN THE CASE OF BHAKTI (SUPRA) WE SEE NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT (A). THUS THE G ROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 28 TH AUGUST,2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATE:- 28 -8 -2015 PATKI. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! () / THE CIT(A), AHMEDABAD 5. $%& '', , )*++ / DR, ITAT, AHMEDABAD 6. &,- . / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) ! '#$, &' / ITAT, AHMEDABAD. ITA NO 1142/AHD/2012 ASSESSMENT YEAR 2009-10 M/S.SAI KHATI ENTERPRISE. 5 1. DATE OF DICTATION- 6-8-2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 13-8-2015 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P .S./P.S. - 13-8-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28-8-2015 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28-8 -2015 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER