The ITO, Ward-1(2), RAJKOT-GUJARAT V. Shri Babulal N. Sakhiya, RAJKOT-GUJARAT

ITA 1291/RJT/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7349 (ITAT-RAJKOT)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N R SONI
• Assessee Lawyers: J C RANPURA
• Keywords: Income from undisclosed sources
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T.K. SHARMA (JUDICIAL MEMBER) AND SHRI A.L. GEHLOT (AM) I.T.A. NO1287/RJT/2010 - AY 2001-02 I.T.A. NO1291/RJT/2010 - AY 2005-06 ITO, WD.1(2) VS SHRI BABULAL N SAKHIYA RAJKOT 3, NEW SUBHASH NAGAR KOTHARIYA ROAD, RAJKOT PAN : AFLPS5849B (APPELLANT) (RESPONDENT) DATE OF HEARING : 11-11-2011 DATE OF PRONOUNCEMENT : 25-11-2011 APPELLANT BY : SHRI NR SONI RESPONDENT BY: SHRI JC RANPURA O R D E R PER AL GEHLOT (AM) THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER COMMON ORDER OF CIT(A)-IV, AHMEDABAD DATED 03-09-20 10 FOR THE ASSESSMENT YEAR 2001-02 AND 2005-06. 2. THE GROUND RAISED IN BOTH THE APPEALS IS IN RESP ECT OF LEVY OF PENALTY OF RS. 2,21,000 FOR ASSESSMENT YEAR 2001-02 AND RS. 5,42,000 FOR ASSESSMENT YEAR 2005-06. ITA NO.1287/RJT/2010 ITA NO.1291/RJT/2010 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT WAS FINALIZED U/S 153A VIDE ORDER DATED 23-10-2008 DETERMINING THE IN COME AT RS.7,17,060. ON THE BASIS OF SEIZED MATERIAL THE ASSESSEE HIMSEL F HAD DISCLOSED HIS UNACCOUNTED INCOME TO THE TUNE OF RS.6,30,000. THE ASSESSING OFFICER LEVIED THE PENALTY ON UNDISCLOSED INCOME OF RS.6,30 ,000 OFFERED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS COME F ORWARD TO DISCLOSE THE INCOME DUE TO SEARCH WHICH AMOUNTED TO DEEMED T O REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAD BEEN CON CEALED BY THE ASSESSEE. THE ASSESSING OFFICER LEVIED PENALTY OF RS.2,21,000 FOR THE ASSESSMENT YEAR 2001-02 AND RS.5,42,000 FOR THE ASS ESSMENT YEAR 2005- 06 BEING 100% OF THE TAX SOUGHT TO BE EVADED. THE CIT(A) AFTER DETAILED DISCUSSIONS ON THE ISSUE AND AFTER CONSIDERING VARI OUS DECISIONS FOLLOWED THE DECISION OF RAJKOT BENCH IN THE CASE OF DY.CIT VS BALAJI MULTIPLEX P LTD IN IT(SS) A.NO.64 & 65/RJT/09 ORDER DATED 10-08-201 0. THE CIT(A) ALSO CONSIDERED THE DECISION OF ITAT, AHMEDABAD BENCH IN THE CASE OF ACIT VS KIRIT DAHYABHAI PATEL (2009) 121 ITD 159 (AHD)(TM). THE LD.AR SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS: ACIT VS SAMAT JARIYA IN ITA NOS.71, 72 & 73/RJT/20 10 ITO VS SHRI MUKESH ZAVERI IN IT(SS)A.NO.67/RJT/201 0 ORDER DATED 28-09-2011 ITA NO.1287/RJT/2010 ITA NO.1291/RJT/2010 3 ITO VS SHRI SUKLA NEHAL CHIMANLAL IN IT(SS)A.NO.60,61,62&63/RJT/2009. 4. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DER OF ASSESSING OFFICER. 5. WE HAVE HEARD THE LD.REPRESENTATIVES OF THE PART IES, RECORD PERUSED. THE ADMITTED FACTS OF THE CASE ARE THAT THE ASSESSE E DISCLOSED UNDISCLOSED INCOME IN RESPONSE TO NOTICE U/S 153A O F THE ACT AND THE AO ACCEPTED THAT WITHOUT ANY ADDITION TO THE UNDISCLOS ED INCOME. THE DISCLOSURE WAS ADHOC DISCLOSURE NOT BASED ON THE MA TERIAL FOUND DURING THE COURSE OF SEARCH. WE FIND THAT ON IDENTICAL SE T OF FACTS, THE ITAT IN IT(SS)A NO.67/RJT/2010 ORDER DATED 28-09-2011 HAS D ISMISSED REVENUES APPEAL. THE RELEVANT FINDING OF THE ITAT IN IT(SS) A NO.67/RJT/2010 (SUPRA) IS REPRODUCED FROM PARAGRAPH 3 AS UNDER: 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND THE LD.REPRESENTATIVE FOR THE ASSESSEE. ADMITTEDLY THE RE WAS A SEARCH IN THE PREMISES OF THE ASSESSEE ON 22-03-2006 AND T HE ASSESSEE DECLARED UNDISCLOSED INCOME OF RS.8,00,000 EACH FOR AYS 2001-02 & 2004-05; RS.10,00,000 FOR A.Y 2005-06 AND RS. 15, 00,000 FOR AY 2006-07. ADMITTEDLY THE ASSESSING OFFICER ACCEPTED THE RETURNS FILED BY THE ASSESSEE WITHOUT ANY FURTHER ADDITION. THE FACT REMAINS THAT THE ASSESSEE HAS DISCLOSED ALL THE INCOME IN T HE RETURNS FILED CONSEQUENT TO THE NOTICES ISSUED U/S 153C OF THE AC T. ONCE THE ITA NO.1287/RJT/2010 ITA NO.1291/RJT/2010 4 RETURNS WERE FILED U/S 153C, ALL PENDING PROCEEDING S FOR THOSE ASSESSMENT YEARS STAND ABATED AND THEREFORE, THE IN COME HAS TO BE COMPUTED ONLY ON THE BASIS OF THE RETURNS FILED BY THE ASSESSEE IN RESPONSE TO NOTICES ISSUED U/S 153A / 153C OF TH E ACT. ON IDENTICAL SET OF FACTS THIS TRIBUNAL BY FOLLOWING I TS EARLIER ORDER IN ITA NO.68/RJT/2009 CONFIRMED THE IDENTICAL ORDER OF CIT (A) IN THE CASE OF SHRI SHANTILAL JERAMBHAI MAHESWARI (SUPRA). IN THIS CASE ALSO THE ASSESSEE HAS DISCLOSED THE INCOME FOR ALL THE A SSESSMENT YEARS UNDER CONSIDERATION CONSEQUENT TO THE SEARCH OPERATION AND NO FURTHER ADDITION WAS MADE BY THE ASSESSING OFFIC ER. THE RETURN, IF ANY PENDING ON THE DATE OF SEARCH, SHALL STAND A BATED AND THEREFORE, IN OUR OPINION, THE CIT(A) HAS RIGHTLY D ELETED THE PENALTY. WE DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE L OWER AUTHORITY. ACCORDINGLY WE CONFIRM THEM. 6. WE RESPECTFULLY FOLLOW THE ABOVE ORDER OF THE IT AT, AND IN THE LIGHT OF IDENTICAL FACTS UPHOLD THE ORDER PASSED BY THE CIT( A) DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-11-2011. SD/- SD/- (T.K. SHARMA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 25 TH NOVEMBER, 2011 PK/- ITA NO.1287/RJT/2010 ITA NO.1291/RJT/2010 5 COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-IV, AHMEDABAD 4. THE CIT, CENTRAL-II, AHMEDABAD 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT