Dr. Mahendrabhai B.Soni, Himatnagar V. The Income tax Officer,Ward-S.K.Ward-3, Himatnagar

ITA 1403/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9073 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 01-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P M SHUKLADR
• Assessee Lawyers: M G PATEL
• Keywords: Income from undisclosed sources; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,B-BENCH,AHMEDA BAD . BEFORE : SHRI T.K.SHARMA, JUDICIAL MEMBER, AND SHRI N.S.SAINI, ACCOUNTANT MEMBER. ITA NO. 1403/AHD/2009 (ASSESSMENT YEAR 2003-04) DR. MAHENDRABHAI B.SONI, PROP. OF YASHDEEP HOSPITAL, NR. NYAY MANDIR, HIMATNAGAR PAN ACUPS 2245 R` VERSUS THE ITO, HIMATNAGAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI M.G.PATEL, AR FOR THE RESPONDENT SHRI P.M.SHUKLA,DR ORDER SHRI T.K.SHARMA, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT.27.2.2009 OF THE COMM ISSIONER OF INCOME-TAX (APPEALS) X, AHMEDABAD CONFIRMING THE PENALTY OF RS .3 LAKHS MADE U/S.271(1)(C) OF THE INCOME-TAX ACT,1961 FOR THE AS SESSMENT YEAR 2003-04. 2. THE FACTS RELEVANT ARE THAT A SURVEY U/S.133A WA S CARRIED OUT IN THE CASE OF THE ASSESSEE ON 17.3.2004 WHICH RESULTED INTO AD MISSION OF UNACCOUNTED INCOME OF RS.3 LAKHS, WHICH THE ASSESSEE NOT ONLY A DMITTED BUT ALSO DISCLOSED IN THE RETURN FILED BY IT ON 31.3.2004. THE ASSESSI NG OFFICER ACCEPTED THE DISCLOSURE BUT TREATING THE SAME AS CONCEALMENT LEV IED PENALTY U/S.271(1)(C). THE SAME HAVING BEEN CONFIRMED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE LEARNED AR OF THE ASSESSEE CONTENDED BEFORE US THAT THE ASSESSEE HAS MADE THE DISCLOSURE OF INCOME OF RS.3 LAKHS AT THE TIME OF SURVEY AND ALSO INCLUDED THE SAME IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THUS, THERE BEING NO CONCEALMENT OF INCOME OR PARTICULARS OF INCOME, LEVY OF PENALTY AS SUSTAINED BY THE LEARNED CIT(A) IS NOT IN ORDER AND IT DESERVES TO BE CANCELLED. 4. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE HAS SHOWN IN THE RETURN OF INCOME THE AMOUNT OF RS.3 LAKHS DISCLOSED AT THE TIME OF SURVEY. THE ASSESSIN G OFFICER HAS ACCEPTED THE ITA NO. 1403/AHD/2009 2 RETURN. THEREFORE, IT CANNOT BE SAID THAT THE ASSES SEE HAS CONCEALED THE INCOME OR FURNISHED PARTICULARS OF INCOME. WE FIND THAT TH E LEARNED CIT(A) HAS RELIED ON THE DECISION IN THE CASE OF CIT V. DR. A. MUHAM MED ABDUL KHADIR [260 ITR 650 (MAD)], WHEREIN LEVY OF PENALTY U/S.271(1)( C) IS HELD JUSTIFIED. THIS DECISION, IN OUR CONSIDERED VIEW, IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE THE ASSESSEE FURNISHED REVISED RETURN AFTER THE SURVEY WHICH WAS NOT A PURELY VOLUNTARY ACT UNACCOUNTED WITH THE SEARCH OR UNCONNECTED WITH THE STATEMENTS GIVEN BY HIS ACCOUNTANT. CONSID ERING THESE FACTS, HONBLE COURT HAS HELD THAT MERE FILING OF THE REVISED RETU RNS IN THESE CIRCUMSTANCES COULD NOT HAVE THE EFFECT OF EXONERATING THE ASSESS EE FROM THE LIABILITY FOR PENALTIES, AS THE REVISED RETURN WAS FILED ONLY ON THE BASIS THAT HE HAD CONCEALED HIS INCOME DURING THE EARLIER YEARS. BUT IN THE INS TANT CASE, AS STATED EARLIER, THE ASSESSEE HAS MADE A DISCLOSURE AT THE TIME OF SURVE Y U/S.133A AND INCLUDED THE SAME IN THE FIRST / ORIGINAL RETURN OF INCOME, WHIC H ACT OF THE ASSESSEE IS NO DOUBT VOLUNTARY. THEREFORE, CONSIDERING THE FACTS A ND CIRCUMSTANCES OF THE CASE, THERE BEING NO CASE OF CONCEALMENT OF INCOME OR SUBMISSION OF PARTICULARS OF INCOME WHICH IS A SINE-QUA-NON FOR L EVY OF PENALTY U/S.271(1)(C) OF THE ACT. THEREFORE, PENALTY LEVIED BY ASSESSIN G OFFICER AND CONFIRMED BY THE CIT(A) IN RESPECT OF RS. 3 LAKHS IS NOT JUSTIFI ED. WE, THEREFORE, CANCEL THE SAID PENALTY AND ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT.11.09. 2009 SD/- SD/- (N.S.SAINI) ACCOUNTANT MEMBER. (T.K.SHARMA ) JUDICIAL MEMBER DATE: 11.09.2009 (H.K.PADHEE) SENIOR PRIVATE SECRETARY. ITA NO. 1403/AHD/2009 3 COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. THE DR, AHMEDABAD 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, DEPUTY.REGISTRAR.