A./ Dy.C.I.T., Central Circle, Agra V. Sh. Mahendra Singh, Agra

ITA 137/AGR/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2156 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 137/AGRA/2013 ASSTT. YEAR : 2009-10 A.C.I.T., CENTRAL CIRCLE, VS. SHRI MAHENDRA SING H, AGRA. 19/36C, ALOK NAGAR, JAIPUR HOUSE, AGRA. (PAN : ASEPS 7217 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.L. MAURYA, SR. D.R RESPONDENT BY : NONE DATE OF HEARING : 11.07.2013. DATE OF PRONOUNCEMENT OF ORDER : 19.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, AGRA DATED 27.02.2013 FOR THE ASSESSMENT YEAR 2009- 10, CHALLENGING THE CANCELLATION OF PENALTY U/S. 271(1)(C) OF THE IT AC T. 2. WE HAVE HEARD THE LD. DR AND PERUSED THE FINDING S OF THE AUTHORITIES BELOW. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE DE SPITE SERVICE OF NOTICE. THE ASSESSEE IS, THEREFORE, PROCEEDED EXPARTE. ITA NO. 137/AGRA/2013 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE SILVER ORNAMENTS WEIGHING 378.25 KG AND CASH OF RS.2,50,000/- WAS SEIZED FROM THE ASSES SEE IN A CAR FROM AGRA TO RAJKOT ON 16/17.03.2009 BY THE POLICE AUTHORITIES, LOCAL CRIME BRANCH, GANDHI NAGAR. ON THE INFORMATION OF POLICE AUTHORITIES THE SE ITEMS WERE REQUISITIONED BY THE INCOME TAX DEPARTMENT AND FOR OBTAINING CUSTODY OF THE CASH AND SILVER ITEMS, A MISC. APPLICATION WAS FILED BY THE ADIT (INVESTIG ATION) UNIT-I(2) AHMEDABAD, SHRI T.C. MEENA IN THE COURT OF HONBLE JUDICIAL MA GISTRATE ON 30.03.2009. AS MENTIONED IN THIS MISC. APPLICATION THE ABOVE MENTI ONED SILVER JWELLERY TOTALING TO 378.25 KG WAS VALUED AT RS.35,55,878/-. THE STATEME NT OF THE ASSESSEE WAS RECORDED U/S 131 OF THE I.T. ACT WHEREIN ALL THE AS SETS SEIZED BY THE POLICE AS MENTIONED ABOVE WERE ADMITTED TO BE UNACCOUNTED. SU BSEQUENTLY ON RELEASE OF THE SILVER JEWELLERY FROM THE POSSESSION OF THE POLICE AUTHORITIES, THESE JEWELLERY WERE AGAIN VALUED BY THE GOVT. APPROVED VALUER ON 25.08. 2009 AT RS.43,51,741/-. THE ASSESSEE FILED INCOME TAX RETURN SURRENDERING THE E NTIRE VALUE OF SILVER ORNAMENTS DETERMINED AT RS.35,55,878/- AT THE TIME OF ITS SEI ZURE ON 17.03.2009 BY THE POLICE AUTHORITIES. HOWEVER, DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE AO CONSIDERED THE VALUE OF SILVER JEWELLERY IN THE ASS ESSMENT ORDER PASSED U/S 143(3), THE AO CONSIDERED THE VALUE OF SILVER JWELLERY AT R S.43,51,741/- AS DETERMINED BY THE GOVERNMENT VALUER ON 25.08.2009 AND ADDED THE D IFFERENCE OF RS.7,95,863/- TO ITA NO. 137/AGRA/2013 3 THE RETURNED INCOME OF THE APPELLANT. THE CIT(A)-I, AGRA HAS IN AN ORDER DATED 15.06.2011 DIRECTED THE AO TO ADOPT THE VALUATION O F SILVER ORNAMENTS AS VALUED ON 17.03.2009 AT RS.35,55,878/-. HOWEVER, BEFORE GIVIN G EFFECT TO THE APPEAL ORDER THE REPORT OF SHRI HIMANSHU S. KUMAR WAS DIRECTED TO BE OBTAINED FROM THE INVESTIGATION WING, AHMEDABAD TO DETERMINE WHETHER THE VALUE OF SILVER JEWELLERY ON 17.03.2009 IS AS PER THE RATE OF SILVER PREVAILI NG ON THAT DATE. THE AO IMPOSED PENALTY U/S 271(1)(C) OF RS.5,41,028/- ON THE DIFFE RENCE IN VALUATION OF SILVER ORNAMENTS WEIGHING 378.25 KG VALUED ON 17.03.2009 A ND 25.08.2009. THE DIFFERENCE IN THE VALUATION ON THIS TWO DATES AMOUN TED TO RS.7,95,863/- AND PENALTY @ 200% ON THE TAX SOUGHT TO BE EVADED WAS IMPOSED. ACCORDING TO THE AO, THE ASSESSEE HAS CONCEALED AND FURNISHED IN ACCURATE PA RTICULARS AND HENCE THE ASSESSEE WAS LIABLE FOR PENALTY U/S 271(1)(C). 4. THE ASSESSEE CHALLENGED THE PENALTY BEFORE THE L D. CIT(A) AND IT WAS SUBMITTED THAT THE QUANTUM APPEAL HAS ALREADY BEEN DECIDED IN HIS FAVOUR DELETING THE ADDITION AND THE AO AFTER OBTAINING THE REPORT OF SHRI HIMANSHU S. KHAMAR HAS REDUCED THE VALUATION FROM RS.43,51,741/- TO RS.37, 43,746/- IN APPEAL EFFECT ORDER PASSED U/S. 251 OF THE IT ACT. THE ASSESSEE HAS VAL UED THE SILVER AS PER THE RATE ADOPTED ON THE DATE OF SEIZURE, WHICH WAS BASED ON THE VALUATION ADOPTED BY THE POLICE AUTHORITIES. THEREFORE, IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FILING OF ITA NO. 137/AGRA/2013 4 INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A) FO UND THAT THE QUANTUM ADDITION HAS ALREADY BEEN DELETED WITH THE DIRECTION TO THE AO TO ADOPT THE VALUATION OF SILVER JEWELLERY AS DETERMINED ON 17.03.2009 AND TH E AO IN APPEAL EFFECT ORDER U/S. 251 OF THE IT ACT REDUCED THE VALUATION FROM 43,51, 746/- TO RS.37,43,746/-. THE ASSESSEE HAS VALUED THE SILVER ORNAMENTS AS PER THE VALUATION DONE ON THE DATE OF SEIZURE. THEREFORE, THE ASSESSEE HAS NOT CONCEALED THE PARTICULARS OF INCOME NOR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A) FOUND THAT IT IS NOT A CASE OF INVESTMENT BUT THE PENALTY IS BASED UPON VA LUATIONS BEING DONE ON DIFFERENT DATES AND CANCELLED THE PENALTY. 5. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF SUBMISSIONS OF THE LD. DR, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE R EVENUE. THE POLICE AUTHORITIES HAVE VALUED THE SILVER ORNAMENTS ON THE DATE OF SEI ZURE AT RS.35,55,878/-. THE SAME WAS ALSO ADOPTED BY THE INCOME-TAX DEPARTMENT FOR OBTAINING CUSTODY OF THE SILVER ITEMS FROM THE CRIMINAL COURT. THEREFORE, TH E ASSESSEE HAS ADOPTED VALUATION AS WAS ADOPTED BY THE POLICE AUTHORITIES AND WAS TH E VALUATION MENTIONED BY ADIT (INV.). THEREFORE, THERE WAS DIFFERENCE IN THE VALU ATION TAKEN ON THE DATE OF SEIZURE AND SUBSEQUENT. THEREFORE, IT IS NOT A FIT CASE FOR LEVY OF PENALTY BECAUSE THE ASSESSEE HAS NOT CONCEALED THE PARTICULARS OF INCOM E AND HAS ALSO NOT FILED INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS ITA NO. 137/AGRA/2013 5 AND MATERIAL ON RECORD, CORRECTLY CANCELLED THE PEN ALTY IN THE MATTER. THE APPEAL OF THE REVENUE HAS NOT MERIT AND THE SAME IS ACCORDING LY DISMISSED. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY