Sh. Gangadhar D. Kshirsagar, Satara V. Dy. CIT,Central Circle-1(1), Pune

ITA 1281/PUN/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59975 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 07-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEERA MALHOTRA
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBE R AND SHRI D KARUNAKARA RAO, ACCOUNTANT MEMBER S.NO ITA NO ASSTT.YEAR APPELLANT RESPONDENT 1 1281/PN/10 2000-01 SHRI GANGADHAR D KSHIRSAGAR, SATARA DY. COMMISSIONER OF INCOME-TAX, CEN.CIR.1(1) PUNE 2 1282/PN/10 2001-02 -DO- -DO- 3 1283/PN/10 2002-03 -DO- -DO- 4 1284/PN/10 2003-04 -DO- -DO- 5 1285/PN/10 2004-05 -DO- -DO- APPELLANT BY : SHRI M K KULKARNI RESPONDENT BY : MRS NE ERA MALHOTRA DATE OF HEARING : 06.01.2012 DATE OF PRONOUNCEMENT : 20.01.2012 ORDER PER BENCH : THESE ARE FIVE APPEALS BY THE SAME ASSESSEE AND INVOLVE A COMMON ISSUE AND, THEREFORE, THEY HAVE BEEN HEARD TOGETHER A ND ARE BEING DISPOSED OF BY A CONSOLIDATED ORDER FOR THE SAKE OF BREVITY AND CONVENIENCE. 2. THE COMMON GROUNDS RAISED BY THE ASSESSEE ARE AS FOLLOW S: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE PENALTY LEVIE D U/S 271(1)(C) OF THE ACT WHICH PENALTY WAS LEVIED WITHOUT RECORDING FINDING THAT THE ASSESSEE HAS CONCEALED INCOME OR FURNISH ED INACCURATE PARTICULARS OF INCOME. THE PROVISIONS OF S. 271( 1)(C) ARE NOT ATTRACTED INCLUDING EXPLANATION 1 CL.(A) AND (B) TO THAT EXPLANATION AND THEREFORE THE PENALTY LEVIED AND CON FIRMED BY CIT(A) BE CANCELLED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, T HE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY LEV IED U/S 271(1)(C) IN THE ABSENCE OF ANY DIRECT SEARCH BUT ONLY T HE ASSETS SEIZED BY THE POLICE DEPTT. WERE DEMANDED ON REQUISITI ON U/S 132A OF THE ACT AND IN THE ABSENCE OF ANY STATEMENT R ECORDED U/S 132(4) WHICH COULD NOT BE RECORDED IN VIEW OF MAND ATE OF SUB-SECTION (3) OF S132A SUB-SECTION (4) OF S. 132 WAS NOT APPLICABLE AND RESULTANTLY EXPLN. 5 WAS ALSO NOT APPLI CABLE. IN VIEW OF THIS THE PENALTY LEVIED AND CONFIRMED BY LD. CIT(A) IS ILLEGAL AND WITHOUT JURISDICTION AND THE SAME BE QUASH ED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW T HE PENALTY ORDER LEVYING PENALTY U/S 271(1)(C) IS BARRED B Y LIMITATION SINCE IT WAS NOT SERVED PRIOR TO 31.3.2009. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW T HE LEVY OF CONCEALMENT PENALTY U/S 271(1)(C) WAS NOT JUSTIFIED SINCE THE RETURNS FILED U/S 153-A/153-C WERE VIRTUALLY ACCEPTED. IN THE ABSENCE OF ANY CONCEALMENT PENALTY IS NOT LEVIABLE AND T HE PENALTY BE QUASHED. 3. BEFORE US, AT THE OUTSET THE LEARNED A.R POINTED OUT THAT IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL IN THE ASSESSEES CASE VIDE ITS O RDER DATED 30.9.2008 IN ITA NOS 1042/PN/08 TO 1046/PN/08 FOR T HE ASSESSMENT YEAS 2000-01 TO 2004-05 HAS DELETED THE QUANTUM ADDITIONS , IN RESPECT OF WHICH PENALTIES UNDER SECTION 271(1)(C) WERE LEVIED BY THE ASSE SSING OFFICER AND, THEREFORE, THE IMPUGNED PENALTIES DO NOT SURVIVE. A COPY OF THE ORDER IN THIS REGARD WAS FURNISHED AT THE TIME OF HEARING. THE LEA RNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, HAS NOT CONTROVERTE D THE FACTUAL MATRIX BROUGHT OUT BY THE LEARNED A.R. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND FIND THAT THE QUANTUM ADDITIONS IN RESPECT OF WHICH IMPUGNED PENALTIE S WERE LEVIED UNDER SECTION 271(1)(C) OF THE ACT HAVE BEEN DELETED BY THE T RIBUNAL VIDE ITS ORDER DATED 30.9.2008 (SUPRA) AND, CONSEQUENTLY, THE PENALTI ES ARE ALSO DELETED. 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF JANUARY, 2012. SD/- SD/- (D KARUNAKARA RAO) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 20 TH JANUARY, 2012 B COPY TO:- 1) ASSESSEE 2) DCIT, CEN. CIR. 1(1), PUNE 3) THE CIT (A)-I, PUNE 4 THE CIT (CEN), PUNE 5) DR, B BENCH, I.T.A.T.,PUNE. 6) GUARD FILE TRUE COPY BY ORDER SR. PS, ITAT PUNE