Shri Abbas Nabi Shekh, SILVASSA V. The ACIT.,Cent.Circle-3, Surat

ITA 1184/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0618 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 30-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: M K PATEL
• Keywords: Retraction
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI S.S. GODARA, JM, & SHRI MANISH BORAD , AM. ITA NO. 1184/AHD/2012 ASST. YEAR: 2005-06 ABBAS NABI SHAIKH, PROP. M/S R.A. SHAIKH PACKAGING, PLOT NO.126/P, SURVEY NO.49, AMLI INDUSTRIAL ESTATE-SILVASSA U.T. OF DADRA & NAGAR HAVELI. VS. ACIT, CC-3, SURAT. APPELLANT RESPONDENT PAN AHHPS2732F APPELLANT BY SHRI M. K. PATEL, A.R. RESPONDENT BY SHRI S. L. CHANDEL, SR.DR DATE OF HEARING: 9/9/2016 DATE OF PRONOUNCEMENT: 9/9/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ASSESSEE IS IN APPEAL AGAINST THE ORDER OF LD. CIT (A)-II, AHMEDABAD, DATED 29/03/2012 FOR ASST. YEAR 2005-06 VIDE APPEAL NO.CIT(A)-II/CC-3, 49/2010-11 PASSED AGAINST ORDER U/S 271(1)(C) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAMED BY ACIT, CC-3, SURAT ON 31.3.2010. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 01. THE ORDER IMPOSING PENALTY U/S. 271(L)(C) OF TH E ACT IS CONTRARY TO THE FACTS OF THE CASE AND PREJUDICIAL TO THE LAW. THE APPELLANT HAS NEITHER CONCEALED HIS INCOME NOR SUBMITTED ANY INACCURATE PARTICULARS OF INCOME. ITA NO. 1184/AHD/2012 ASST. YEAR 2005-06 2 02. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IMPOSING PENALTY U/S. 271 (L)(C) TO THE TUNE OF RS. 42,59,945/-. THE APPELLANT HAS NEITHER CONCEALED HI S INCOME NOR SUBMITTED ANY INACCURATE PARTICULARS OF INCOME AND THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE FACTS OF TH E CASE AND LAW AND DESERVES TO BE DELETED. 03. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIF Y OR ALTER THE ABOVE GROUNDS OF APPEAL AT ANY STAGE OF APPELLATE PROCEEDINGS. 04. THE APPELLANT HUMBLY PRAYS THAT THE APPEAL BE A LLOWED IN TOTO. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE BEING AN INDIVIDUAL FILED HIS RETURN OF INCOME ON 31.10.2005 DECLARING TOTAL INCOME AT RS.1,06,00,000/-. ACTION U/S 133A WAS CAR RIED OUT IN THE CASE OF ASSESSEE ON 22.07.2004 AND THEREAFTER THE C ASE WAS SELECTED FOR COMPULSORY SCRUTINY AND ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 27.12.2007 DETERMINING TOTAL I NCOME AT RS.2,44,64,761/-. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. ASSESSEE LOST IN QUANTUM APP EAL BEFORE LD. CIT(A). ASSESSEE WENT IN APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER OF CIT(A). IN THE MEANTIME PENALTY O RDER U/S 271(1)(C) OF THE ACT WAS FRAMED ON 29.03.2010 IMPOS ING PENALTY OF RS.45,09,038/-. 3. AGGRIEVED BY THE ORDER UNDER SECTION 271(1)(C) O F THE ACT ASSESSEE WENT IN APPEAL BEFORE CIT(A) AND GOT PART RELIEF AS THE PENALTY WAS SUSTAINED TO RS.42,59,945/-. ITA NO. 1184/AHD/2012 ASST. YEAR 2005-06 3 4. NOW ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AG AINST THE SUSTAINED PENALTY OF RS.42,59,945/- U/S 271(1)(C) O F THE ACT. 5. AT THE OUTSET LD. AR BROUGHT TO THE NOTICE OF TH E BENCH THAT IN THE QUANTUM APPEAL, MAJOR ADDITION OF RS.1,26,55,80 4/- HAS BEEN DELETED BY THE CO-ORDINATE BENCH IN HIS APPEAL IN I TA NO.366/AHD/2009 FOR ASST. YEAR 2005-06 VIDE ITS ORD ER DATED 31.8.2012 (COPY OF ORDER PLACED ON RECORD) AND REQU ESTED THAT THE PENALTY OF RS.42,59,945/- IMPOSED U/S 271(1)(C) OF THE ACT ON THE IMPUGNED ADDITION MAY BE DELETED IN THE LIGHT OF TH E GIVEN FACT THAT THE IMPUGNED ADDITION HAS BEEN DELETED BY THE CO-OR DINATE BENCH. 6. LD. DR DID NOT RAISE ANY OBJECTION TO THE CONTEN TIONS MADE BY LD. AR. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE DECISION OF THE CO-ORDINATE BENCH REFERRED TO ABOVE BY THE LD. AR. SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAINST THE A CTION OF LD. CIT(A) SUSTAINING PENALTY OF RS.42,59,945/- U/S 271(1)(C) OF THE ACT ON THE ADDITION OF RS. 1,26,55,804/- MADE BY LD. ASSESSING OFFICER IN THE ASSESSMENT ORDER U/S 143(3) OF THE ACT. 8. WE FIND THAT IN THE QUANTUM APPEAL THE IMPUGNED ADDITION OF RS.1,26,55,804/- HAS BEEN DELETED BY THE CO-ORDINAT E BENCH VIDE ITS ORDER IN ITA NO.366/AHD/2009 BY OBSERVING AS UNDER :- ITA NO. 1184/AHD/2012 ASST. YEAR 2005-06 4 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE FACTUAL MATRIX OF THE CASE IS THAT A SURVEY U/S . 133A WAS CARRIED OUT ON 22-7- 2004 AND THE STATEMENT OF THE ASSESSEE WAS RECORDED WHEREIN THE ASSESSEE ADMITTED ADDITIONAL INCOME OF RS.1,51,55,8Q4/-.THE ASSESSEE VIDE LETTER DATED 10-12-2007 RETRACTED THE DISCLOSURE MADE AT THE TIM E OF SURVEY. THE ASSESSEE HOWEVER SUBMITTED THAT IT HAD OFFERED ADDITIONAL IN COME OF RS.1,06,00,000/- AND HAD PAID THE TAX ON THE SAME. THE A.O. IGNORED THE RETRACTION MADE BY THE ASSESSEE. THE A.O. THUS BROUGHT THE ADDITIONAL INCO ME OF RS.1,51,55,804/- DISCLOSED AT THE TIME OF SURVEY TO TAX BUT HOWEVER GRANTED RELIEF OF RS.25,00,000/- WHICH THE ASSESSEE HAD OFFERED UNDER THE HEAD OF AD VANCE. THUS THE TOTAL ADDITION OF RS.1,126,55,804/- (RS.1,51,55,804 LESS RS.25,00,000) WAS ADDED TO THE TOTAL INCOME. CIT (A) HAS GIVEN A FINDING THAT THERE IS NO INDEPENDENT EVIDENCE OR FINDING REGARDING THE PURPORTED DECLARA TION/ DISCREPANCIES FOUND DURING THE SURVEY BUT HOWEVER UPHELD THE ADDITIONS MADE BY THE A.O. 11. IN THE CASE OF CIT VS. KHADER KHAN SON (SUPRA) THE HON'BLE HIGH COURT HAS HELD THAT SEC. 133A DOES NOT EMPOWER ANY IT. AUTHOR ITY TO EXAMINE ANY PERSON ON OATH, HENCE, ANY SUCH STATEMENT HAS NO EVIDENTIA RY VALUE AND ANY ADMISSION MADE DURING SUCH STATEMENT CANNOT BY ITSELF BE MADE THE BASIS FOR ADDITION. FURTHER THE HON'BLE HIGH COURT HAS HELD AS UNDER:- '7. IN THE DECISION OF PULLANGODE RUBBER PRODUCTS C O. LTD. VS STATE OF KERALA (1973) 91 ITR 18, THE APEX COURT HELD THAT A N ADMISSION IS EXTREMELY AN IMPORTANT PIECE OF EVIDENCE BUT IT CAN NOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE TH E ADMISSION TO SHOW THAT IT IS INCORRECT,' 12. CONSIDERING THE TOTALITY OF THE FACTS AND RESPE CTFULLY FOLLOWING THE DECISIONS OF HIGH COURT STATED ABOVE, WE ARE OF THE CONSIDERED V IEW THAT IN THE PRESENT CASE, THE ADDITIONS ARE BASED ON THE STATEMENT RECORDED A T THE TIME OF SURVEY U/S. 133A WHICH HAVE BEEN LATER ON RETRACTED BY THE ASSE SSEE. THE A.O, HAS NOT BROUGHT ANY CORROBORATIVE EVIDENCE AND MATERIAL ON RECORD TO JUSTIFY THE ADDITION. THE A.O. HAS NOT BROUGHT ANY INDEPENDENT EVIDENCE O R GIVEN ANY FINDING TO SUBSTANTIATE THE DECLARATION MADE AT THE TIME OF SU RVEY. IN VIEW OF THESE FACTS WE ARE OF THE VIEW THAT NO ADDITION CAN BE MADE ONLY O N THE BASIS OF ADMISSION DURING THE COURSE OF SURVEY. WE THUS DIRECT THE DEL ETION OF THE ADDITION MADE. THUS THIS GROUND OF THE ASSESSEE IS ALLOWED. 9. GOING THROUGH THE DECISION OF THE CO-ORDINATE BE NCH, WE OBSERVE THAT THE IMPUGNED ADDITION OF RS.1,26,55,80 4/- STANDS DELETED AS ASSESSING OFFICER WAS UNABLE TO BRING AN Y CORROBORATIVE MATERIAL ON RECORD TO JUSTIFY THE ADDITION. AS THE IMPUGNED ADDITION ON ITA NO. 1184/AHD/2012 ASST. YEAR 2005-06 5 WHICH THE PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN IMPOSED STANDS DELETED, THEN CERTAINLY PENALTY U/S 271(1)(C) OF TH E ACT WILL HAVE NO LEGS TO STAND FOR. WE DELETE THE PENALTY OF RS.42,5 9,945/- U/S 271(1)(C) OF THE ACT AND ALLOW THE GROUND OF APPEAL OF ASSESSEE. 10. OTHER GROUNDS ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER, 2016 SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 9/9/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1184/AHD/2012 ASST. YEAR 2005-06 6 1. DATE OF DICTATION: 9/09/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 9/09/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 16/9/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: