ACIT, Coimbatore V. Smt. R.Sasirupa, Coimbatore

ITA 1393/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61168 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 05-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K RAGHU
• Keywords: Unexplained investment; Initiation of penalty proceedings; Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A B ENCH C HENN AI BEFORE SHRI AB RAHAM P.GEORGE ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD , , JUDICIAL MEMBER .. ITA NO. 1393 /MDS./ 20 11 ASSESSMENT YEAR: 200 7 - 08 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - III, 63,RACE COURSE ROAD, COIMBATORE 641 018. VS. SMT. R .SASIRUPA, NO.7 - B, HARI GARDEN, NEAR RAMANUJAM NAGAR, UPPILIPALAYAM(PO), COIMBATORE 641 015. PAN AOIPS 1381 L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY PUNGLIA JCIT DR RESPONDENT BY : SHRI K. RAGHU C.A. DATE OF HEARING : 31 .0 5 .12 DATE OF PRONOUNCEMENT : 31 .0 5 .12 O R D E R PER AB RAHAM P.GEORGE ACCOUNTANT MEMBER : IN THIS APP EAL FILED BY THE REVENUE, ITS GRIEVANCE IS THAT COMMISSIONER OF INCOME TAX DELETED THE PENALTY OF ` 11,94,481/ - LEVIED BY THE ASSESSING OFFICER ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ). ITA . 1393 /MDS/ 11 2 2. SHORT FACTS APROPOS ARE THAT ASSESSEE FI LED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 DECLARING AN INCOME OF ` 32,75,155/ - ON 24.08.2007. THERE WAS A SURVEY IN THE PREMISES OF ASSESSEE ON 24.01.2008. A SSESSEE THEREAFTER FILED A REVISED RETURN AND IN SUCH RETURN, THE TOTAL INCOME WAS ENHANCED TO ` 70,02,155/ - . DURING THE COURSE OF SCRUTINY PROCEEDINGS, ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNTS AND BANK STATEMENTS. THESE WERE PRODUCED AND AFTER SCR UTINIZING THE DETAILS FILED, ASSESSMEN T WAS COMPLETED AS PER THE RETURNED INCOME DECLARED IN THE REVISED RETURN. 3. THEREAFTER, PRO CEEDINGS FOR LEVY OF PENALTY WERE INITIATED AND NOTICE UNDER SECTION 271(1)(C) OF THE ACT ISSUED. AS PER THE ASSESSING OFFICER, DURING THE COURSE OF SURVEY, A N UMBER OF DOCUMENTS PERTAINING TO INVESTMENT S MADE BY THE ASSESSEE ON PURCHASE OF LAND WERE FOUND. ASSESSEE , AS PER THE ASSESSING OFFICER, HAD MADE PAYMENTS OVER AND ABOVE THE AMOUNTS MENTIONED IN THE PURCHASE DEEDS FOR PURCHASE OF LAND. FOR SUCH UNACCOUN TED INVESTMENTS COMING TO ` 37,27,000/ - , ASSESSEE HAD NO SOURCE OF INCOME AND THEREFORE, IN THE REVISED RETURN FILED SUBSEQUENT TO THE SURVEY, HE HAD SHOWN AN ENHANCED AMOUNT. THOUGH THE ASSESSEE HAD RETURN ED THE AMOUNT IN THE REVISED RETURN, AS PER THE ASSESSING OFFICER , ASSESSEE HAD FILED INACCURATE PARTICULARS OF INCOME AND CONCEALED HER INCOME TO THE ABOVE EXTENT. BUT FOR THE SURVEY, ASSESSEE WOULD NOT HAVE COME FORWARD AND ADMIT TED SUCH INCOME. IN REPLY TO THE NOTICE, ASSESSEE STATED THAT THE DIFFERENCE S WERE ALL EXPLAINED AS BORROWINGS AND OTHER INCOME, BUT NEVERTHELESS TO CO - OPERATE WITH ITA . 1393 /MDS/ 11 3 THE DEPARTMENT, THE DIFFERENCE WAS A CCEPTED AND REVISED RETURN FILED. HO WEVER, THE ASSESSING OFFICER WAS NOT IMPRE SS ED . ACCORDING TO HIM, ASSESSEE FILED THE REVISED RETURN ONLY DUE TO THE SURVEY. HE THEREFORE, LEVIED PENALTY OF ` 11,94,481/ - ON THE SUM OF ` 37,27,000/ - SOUGHT TO BE EVADED UNDER SECTION 271(1)(C) OF THE ACT. 4. IN ITS APPEAL BEFORE THE COMMISSIONE R OF INCOME TAX(A), SUBMISSION OF THE ASSESSEE WAS THAT IN ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT, THERE WAS NOTHING WHATSOEVER MENTIONED REGARDING INITIATION OF PENALTY PROCEEDINGS. THERE WAS NO FINDING BY THE ASSESSING OFFICER THAT ASS ESSEE HAD CONCEALED ANY INCOME OR FURNISHED ANY INACCURATE PARTICULARS OF INCOME. PENALTY WAS NOT WARRANTED AND SUCH LEVY WAS OPPOSED TO LAW. COMMISSIONER OF INCOME TAX(APPEALS) WAS APPRECIATIVE OF THESE CONT ENTIONS. ACCORDING TO HIM, ASSESSING OFFICER HA D NOT BROUGHT ON RECORD ANYTHING TO SHOW THAT ASSESSEE HAD CONCEALED ANY INCOME OR FILED ANY INACCURATE PARTICULARS OF HER INCOME. HE THEREFORE, AGREED TO THE SUBMISSIONS OF THE ASSESSEE AND DELETED THE PENALTY LEVIED. 5. NOW BEFORE US, THE DEPARTMENTAL REPRESENTATIVE ASSAILING THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) SUBMITTED THAT BUT FOR THE SURVEY, ASSESSEE W OULD NOT HAVE DISCLOSED HER UNEXPLAINED INVESTMENTS IN LAND. ASSESSEE HAD FILED REVISED RETURN ENHANCING THE ORIGINAL INCOME FROM ` 32,75,155/ - TO ` 70,02,155/ - AND NO REASON WHATSOEVER WAS SHOWN BY THE ITA . 1393 /MDS/ 11 4 ASSESSEE AS TO WHY SHE DID NOT RETURN THE FULL AMOUNT OF INCOME IN THE ORIGINAL RETURN ITSELF. THEREFORE, ACCORDING TO HIM, THE LEVY OF PENALTY WAS JUSTIFIED. 6 . PER CONTRA, AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS). 7. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND HEARD THE RIVAL CONTENTIONS . THERE IS NO DISPUTE THAT IN THE ORIGINAL RETURN, ASSESSEE HAD ADMITTED INCOME OF ` 32,75,155/ - , ONLY AND HAD REVISED THIS TO ` 72,02,155/ - IN HER REVISED RETURN . THOUGH IN THE ASSESSMENT ORDER, IT IS MENTIONED THAT THE REVISED RETURN WAS FILED SUBSEQUENT TO THE SURVEY, NOTHING IS MENTIONED THEREIN WHICH WOULD SHOW WHAT WAS THE ITEM OF INCOME, WHICH WAS CONSIDERED AS CONCEALED OR ON WHICH INACCURATE PARTICULARS OF INCOME WERE SUBMITTED BY THE ASSESSEE. JUST BECAUSE ASSESSEE FILED A REVISED RETURN SUBSEQUENT TO A SURVEY, IT COULD NO T BE PRESUMED THA T THE ASSESSEE HAD CONCEALED ANY INCOME OR GIVEN ANY INACCURATE PARTICULARS OF INCOME. NO PENALTY PROCEEDINGS WERE INITIATED IN THE ASSESSMENT ORDER. EVEN IN THE ORDER LEVYING PENALTY, ASSESSING OFFICER SIMPLY STATED THAT A NUMBER OF DO CUMENTS PERTAINING TO INVESTMENT MADE BY THE ASSESSEE ON PURCHASE OF LAND WERE FOUND DURING THE SURVEY. BUT WHAT THESE DOCUMENTS WERE AND HOW IT WERE EXPLAINED BY THE ASSESSEE AT THE TIME OF SURVEY AND HOW IT WAS LINKED TO THE REVISED RETURN ARE NOT DISC ERNIBLE FROM THE ASSESSMENT ORDER OR PENALTY ORDER. HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ITA . 1393 /MDS/ 11 5 C.I.T. VS. DR. R.GOPALA KRISHNAN (TCA NO.520 OF 2010 DATED 05.07.2010) HAS HELD THAT WHEN THERE WAS NO MATERIAL TO HOLD THAT ANY SUPPRESSION ON THE PART OF THE ASSESSEE WAS WIL FUL AND DELIBERATE, THERE COULD NOT BE A LEVY OF PENALTY. WHILE COMING TO THIS DECISION, THEIR LORDSHIPS CONSIDERED THE DECISION OF HON BLE APEX COURT IN THE CASE OF UNION OF INDIA AND OTHERS VS. DHARMEND RA TEXTILES PROCESSORS AND OTHERS IN 306 ITR 277 (SC) AS WELL AS THE SUBSEQUENT DECISION OF UNION OF INDIA AND OTHERS VS. RAJASTHAN SPINNING AND WEAVING MILL , ( 23 DTR 158 ) . WE ARE OF THE OPINION HERE ALSO THAT THERE WAS NO WILFUL OR D ELIBERATE SUPPRES SION OF FACTS OR ANY INACCURATE PARTICULARS FURNISHED BY THE ASSESSEE. L EVY OF PENALTY WAS RIGHTLY DELETED. NO INTERFERENCE IS CALLED FOR . 8 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AF TER CONCLUSION OF HEARING ON THURSDAY, THE 31 ST MAY , 2012. SD/ - SD/ - ( CHALLA NAGENDRA PRASAD ) ( AB RAHAM P.GEORGE ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED 31 ST MAY , 2012 . K S SUNDARAM COPY TO: ASSESSEE / AO / CIT (A) / CIT / D.R. / GUARD FILE ITA . 1393 /MDS/ 11 6