DCIT CENTRAL-1, Nashik V. SHRI PRADEEP GULABCHAND JAIN, Aurangabad

ITA 124/PUN/2010

• Counselvise Citation: 12424514 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 21-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH
• Keywords: Search and seizure
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 124/PN/2010 : A.Y. 2005-06 DY. CIT CIR. 1, NASIK APPELLANT VS. SHRI PRADEEP G. JAIN AT & POST SHIVUR, VIJAPUR AURANGABAD PAN AEOPJ 9240 H RESPONDENT APPELLANT BY: SHRI SANJAY SINGH RESPONDENT BY: SHRI NIKHIL PATHAK ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-I NASIK DATED 16-11-2009 FOR A. Y. 2005- 06 ON THE GROUND THAT THE CIT(A) ERRED IN RESTRICTI NG THE PENALTY LEVIED BY THE ASSESSING OFFICER FROM RS. 3, 40,824/- TO RS. 7,058/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE DERIVES INCOME FROM RENT INCOME, REMUNERATION AND P ROFIT FROM A PARTNERSHIP FIRM AND OTHER SOURCES. DURING T HE PAGE 2 OF 4 ITA NO. 124/PN/2010 PRADEEP G. JAIN A.Y. 2005-06 COURSE OF SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT CONDUCTED ON 22-11-2006 ON BOTHRA GROUP OF CASES, T HE ASSESSEE DECLARED ADDITIONAL INCOME OF RS. 10.00 LA KHS ON ACCOUNT OF CASH FOUND IN LOCKER NO. 23 WITH STATE B ANK OF HYDERABAD. THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 28-12-2005 DECLARING TOTAL INCOME OF RS. 1,14,010/-. IN RESPONSE TO NOTICE U/S 153A THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INC OME OF RS. 11,14,010/- WHICH INCLUDED ADDITIONAL INCOME OF RS. 10.00 LAKHS OFFERED TO TAX DURING THE SEARCH AN D SEIZURE ACTION. THE ASSESSING OFFICER ASSESSED THE TOTAL INCOME TO RS. 11,34,980/- BY MAKING ADDITION ON ACC OUNT OF SHORT TERM DEPOSIT WITH STATE BANK OF INDIA AMOU NTING TO RS. 20,000/- AND BANK INTEREST OF RS. 967/-. TH E ASSESSING OFFICER LEVIED THE PENALTY STATING THAT T HE INCOME OF RS. 10.00 LAKHS ON ACCOUNT OF UNEXPLAINED CASH H AS NOT BEEN SHOWN IN THE RETURN FILED U/S 139(1) OF THE AC T ALONG WITH FURTHER INCOME OF RS. 20,967/- ON ACCOUNT OF UNEXPLAINED DEPOSIT AND BANK INTEREST. HE ACCORDING LY LEVIED PENALTY U/S 271(1)(C) OF THE ACT. PAGE 3 OF 4 ITA NO. 124/PN/2010 PRADEEP G. JAIN A.Y. 2005-06 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT IN VIEW OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT, THE ASSESSEE IS NOT LIABLE FOR IMMUNITY FROM CONCEALMENT PENALTY . IT WAS FURTHER SUBMITTED THAT SINCE THE ADDITIONAL INC OME OF RS. 10.00 LAKHS WAS OFFERED TO TAX IN THE RETURN OF INCOME FILED U/S 153A OF THE ACT, THE PENALTY IS NOT LEVIA BLE. AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE AS SESSEE, THE CIT(A) RESTRICTED THE PENALTY TO RS. 7,058/- BY ALLOWING SUBSTANTIAL RELIEF TO THE ASSESSEE ON THE INCOME DE CLARED U/S 153A OF THE ACT. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THIS ISSUE IS COVE RED BY THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN TH E CASE OF DY. CIT VS. OMKARESHWAR R. KALANTRI & OTHERS (2010) 42 DTR (PUNE) (TRIB) 489 WHEREIN IT HAS BEEN HELD THAT PENALTY U/S 271(1) IS LEVIABLE ON THE DIFFERENCE BETWEEN IN COME RETURNED IN RESPONSE TO NOTICE U/S 153A AND THE INC OME ASSESSED U/S 153A(B) OF THE ACT. SO, FOLLOWING THE SAID DECISION OF THE TRIBUNAL IN THE CASE OF OMKARESHWAR R. KALANTRI (SUPRA) WE HOLD THAT THE CIT(A) WAS NOT JU STIFIED IN PAGE 4 OF 4 ITA NO. 124/PN/2010 PRADEEP G. JAIN A.Y. 2005-06 RESTRICTING THE PENALTY LEVIED BY THE ASSESSING OFF ICER FROM RS. 3,40,824/- TO RS. 7,058/- U/S 271(1)(C) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. DECISION PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE 2011 SD/- (G.S. PANNU) ACCOUNTANT MEMBER SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 15 TH JUNE 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) I NASIK 4. THE CIT CENTRAL 4. THE D.R, A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE