ACIT, CHENNAI V. M/s. Jaya EducationalTrust, Thiruninravur

ITA 1359/CHNY/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8163 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 30-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-06-2012
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Period of limitation; Reasonable cause; Revised return
• Section: 139(5); 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.1359/MDS/2012 / ASSESSMENT YEAR : 2007-08 THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE I(2) CHENNAI VS. M/S JAYA EDUCATIONAL TRUST NO.8, II MAIN ROAD KRISHNAPURAM THIRUNINRAVUR 602 024 [PAN AAATJ 0369 D ] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : DR B NISCHAL, JCIT /RESPONDENT BY : SHRI A S SRIRAMAN, ADVOCATE / DATE OF HEARING : 30 - 12 - 2015 ! / DATE OF PRONOUNCEMENT : 22 - 01 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, CHENNA I, DATED 30.3.2012 AND PERTAINS TO ASSESSMENT YEAR 2007-08 . 2. DR B NISCHAL, LD. DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C ) OF THE ACT. HOWEVER, THE CIT(A) DELETED THE PENALTY MAINLY ON T HE GROUND THAT ITA NO. 1359/12 :- 2 -: THE ASSESSEE HAS PAID THE ADMITTED TAXES AND INTER EST. ACCORDING TO THE LD. DR, THE ASSESSEE FILED THE ORIGINAL RETURN OF INCOME ON 5.9.2008 AFTER THE DUE DATE SPECIFIED U/S 139(1) O F THE ACT. THERE WAS A SEARCH IN THE PREMISES OF THE ASSESSEE ON 23 .1.2007. SUBSEQUENTLY A REVISED RETURN WAS FILED ON 26.12.20 08. SINCE THE FIRST RETURN ITSELF WAS FILED ON 5.9.2008 WHICH WAS BEYON D THE PERIOD SPECIFIED U/S 139(1) OF THE ACT, ACCORDING TO THE LD. DR, THE ASSESSEE CANNOT FILE A REVISED RETURN U/S 139(5) OF THE ACT . THEREFORE, THE PAYMENT OF TAX AND INTEREST CANNOT BE A REASON FOR DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 3. ON THE CONTRARY, SHRI A S SRIRAMAN, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SEARCH IN THE P REMISES OF THE ASSESSEE ON 23.1.2007, MUCH BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATI ON. SINCE THERE WAS A SEARCH AND THE MATERIALS WERE SEIZED BY THE R EVENUE AUTHORITIES, THE ASSESSEE COULD NOT FILE THE RETUR N OF INCOME IN TIME. HOWEVER, THE ASSESSEE FILED THE RETURN OF INCOME O N 5.9.2008. A STATEMENT WAS ALSO RECORDED DURING THE COURSE OF SE ARCH OPERATION. THE ASSESSEE ADMITTED THE INCOME AND OFFERED THE S AME FOR TAXATION. THE REVISED RETURN WAS FILED ON 26.12.2008. IN FAC T, THE ASSESSING OFFICER HAS ACTED UPON THE REVISED RETURN AND INCOM E WAS COMPUTED ONLY ON THE BASIS OF THE INFORMATION FURNISHED IN T HE REVISED RETURN. ITA NO. 1359/12 :- 3 -: ACCORDING TO THE LD. COUNSEL, WHEN THE ASSESSING OF FICER ACTED UPON THE REVISED RETURN FILED BY THE ASSESSEE AND ACCEP TED THE INCOME DISCLOSED IN THE REVISED RETURN, IT CANNOT BE SAID THAT THE ASSESSEE FURNISHED INACCURATE PARTICULARS. THE REVISED RETU RN WAS FILED VOLUNTARILY DISCLOSING ALL THE INCOME OF THE ASSES SEE, THEREFORE, THIS VOLUNTARY ACT OF THE ASSESSEE IN DISCLOSING THE IN COME CANNOT BE CONSTRUED AS FURNISHING INACCURATE PARTICULARS OR C ONCEALING ANY PART OF THE INCOME OF THE ASSESSEE. PLACING RELIANCE ON T HE UNREPORTED JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF CI T VS M/S MUTHUMANI FINANCE, TAX CASE (APPEAL) NO.472 OF 2010 , THE COPY OF WHICH IS FILED BY THE ASSESSEE, THE LD. COUNSEL SU BMITTED THAT WHEN THE ASSESSEE DISCLOSED THE CONCEALED INCOME, THERE IS NO QUESTION OF INVOKING THE PENAL PROVISIONS U/S 271(1)(C) OF TH E ACT. THE LD. COUNSEL HAS ALSO PLACED HIS RELIANCE ON THE DECISI ON OF THIS TRIBUNAL IN THE CASE OF ACIT VS M/S RAM THANGA NAGAI MALIGAI IN I.T.A.NO. 2183/MDS/2014, DATED 10.6.2015, THE COPY OF WHICH I S FILED BY THE ASSESSEE AND SUBMITTED THAT WHEN THE ASSESSEE ACCE PTED THE INCOME IN THE COURSE OF SEARCH BY MAKING A STATEMENT, U/S 271(1)(C) EXPLANATION (4), THERE CANNOT BE ANY LEVY OF PENALT Y. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY, THERE WAS A SEARCH OPERATION IN THE PREMISES OF THE ASSESSEE A ND THE ASSESSEE ITA NO. 1359/12 :- 4 -: ALSO FILED THE RETURN OF INCOME. THE ASSESSEE FOU ND THAT THERE WAS AN ERROR IN THE FIRST RETURN AND VOLUNTARILY FILED ANO THER RETURN BY DECLARING THE INCOME OF ` 2 CRORES. IT IS NOT IN DISPUTE THAT ON THE DATE O F SEARCH, THE DUE DATE FOR FILING THE RETURN WAS NO T EXPIRED, THEREFORE, NATURALLY, THE REGULAR RETURN HAS TO BE FILED ONLY AFTER THE SEARCH OPERATION IS COMPLETED. DURING THE COURSE OF SEARCH OPERATION, THE ASSESSEE ADMITTED BEFORE THE REVENUE AUTHORITIES TH AT THE INCOME FOUND DURING THE COURSE OF SEARCH ARE ITS INCOME AN D THE SAME WOULD BE OFFERED FOR TAXATION. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT EXPLANATION 5 TO SEC. 271(1)(C) OF TH E ACT WOULD COME INTO OPERATION. MOREOVER, AS RIGHTLY SUBMITTED BY THE LD. COUNSEL, THE ASSESSING OFFICER ACTED UPON THE REVISED RETURN FIL ED BY THE ASSESSEE FOR COMPUTING THE UNDISCLOSED INCOME. THOUGH TECHN ICALLY, THE RETURN FILED BEYOND THE PERIOD OF LIMITATION CANNOT BE REV ISED BY FILING A REVISED RETURN U/S 139 (5), THE VERY FACT THAT THE ASSESSING OFFICER ACTED UPON THE REVISED RETURN FILED BY THE ASSESSE E FOR COMPUTING THE INCOME WOULD INDICATE THAT THE ASSESSEE VOLUNTARIL Y DISCLOSED THE INCOME. THEREFORE, THERE WAS A REASONABLE CAUSE DE FINED WITHIN THE MEANING OF SEC.273B FOR NOT DISCLOSING THE ENTIRE I NCOME IN THE ORIGINAL RETURN FILED ON 5.9.2008. HENCE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHTLY DELETED THE PEN ALTY LEVIED BY THE ITA NO. 1359/12 :- 5 -: ASSESSING OFFICER. THIS TRIBUNAL DO NOT FIND ANY R EASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AND ACCORDINGLY, THE S AME IS CONFIRMED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JANUARY, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 22 ND JANUARY, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF