Appeal details
Counselvise Citation
[2013] 120 COUNSELVISE.COM (IT) 4494 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 2 month(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-09-2013
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
23-09-2013
Assessment Year
2004-2005
Appeal Filed On
29-06-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NOS. 1415, 1416, 1417 & 1418/MDS/2012 (ASSESSMENT YEARS : 2000-01, 2002-03, 2004-05 & 2 005-06) THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II, KULAMANGALAM MAIN ROAD, MEENAMBALPURAM, MADURAI 2. (APPELLANT) V. SHRI (LATE) KASS. RAVI, L/R OF (LATE) KAS. SEKAR, NO.9, NADAR VIDYSALAI STREET, SOUTH GATE, MADURAI. PAN : AJIPS 9411 N (RESPONDENT) APPELLANT BY : SHRI S. DAS GUPTA, JCIT RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE DATE OF HEARING : 23.09.2013 DATE OF PRONOUNCEMENT : 23.09.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THESE APPEALS FILED BY THE REVENUE ARE DIRECTED A GAINST AN ORDER DATED 30.3.2012 OF COMMISSIONER OF INCOME TAX (APPEALS)-II, MADURAI, DELETING PENALTIES LEVIED UNDER SECTION 27 1(1)(C) OF INCOME- TAX ACT, 1961 (IN SHORT 'THE ACT'), FOR THE IMPUGNE D ASSESSMENT YEARS. I.T.A. NOS. 1415 TO 1418/MDS/12 2 2. FACTS APROPOS ARE THAT ASSESSEE, A LOTTERY AGENT IN TAMIL NADU, WAS SUBJECTED TO SEARCH UNDER SECTION 132 OF THE AC T ON 18.10.2005. SINCE ASSESSEE EXPIRED ON 30.4.2006, ASSESSING OFFI CER ISSUED NOTICE UNDER SECTION 153A TO ASSESSEES SON WHO WAS HIS LEGAL HEIR. DURING THE COURSE OF SEARCH, A STATEMENT WAS RECORD ED FROM SMT. S. RANI, DAUGHTER OF THE ASSESSEE, WHEREIN SHE HAS STA TED THAT SHE WAS ONLY A SALARIED EMPLOYEE AND BUSINESS OF REAL ESTAT E WAS BEING DONE BY HER FATHER. ASSESSEE ALSO STATED IN A SWORN STA TEMENT THAT THE BUSINESS OF REAL ESTATE, THOUGH RUN IN HIS DAUGHTER S NAME, WAS ACTUALLY CARRIED ON BY HIM. ASSESSING OFFICER WHIL E CONCLUDING THE ASSESSMENT FOR IMPUGNED ASSESSMENT YEARS INCLUDED I NCOME OFFERED BY SMT. S. RANI ALSO IN THE HANDS OF THE ASSESSEE O N SUBSTANTIVE BASIS. INCOME OFFERED BY SMT. RANI WAS IN THE NATU RE OF PROFITS DERIVED FROM A HOUSING PROJECT ON WHICH, THERE WAS A CLAIM OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. 3. THEREAFTER, PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) WAS INITIATED FOR THE ADDITIONS MADE IN THE ASSESSEES HAND ON THE INCOME FROM HOUSING PROJECTS OFFERED IN HIS DAUGHTERS RET URNS. ASSESSING OFFICER WAS OF THE OPINION THAT INCOME FROM HOUSING PROJECT WAS CONCEALED BY THE ASSESSEE, THOUGH SUCH INCOME WAS O FFERED BY SMT. I.T.A. NOS. 1415 TO 1418/MDS/12 3 RANI, HIS DAUGHTER. WHEN PUT ON NOTICE, REPLY OF T HE ASSESSEE WAS THAT CLUBBING OF INCOME IN ASSESSEES HANDS DID NOT RESULT IN ANY EVASION OF TAX AT ALL. ACCORDING TO ASSESSEE, THE ONY DIFFERENCE IN TAX EFFECT WAS ON ACCOUNT OF THE REASON THAT SMT. RANI WAS A FEMALE. HOWEVER, THIS WAS NOT ACCEPTED BY THE ASSESSING OFF ICER. PENALTY WAS LEVIED FOR THE ADDITION MADE IN THE HANDS OF AS SESSEE FOR INCOME ADMITTED BY HIS DAUGHTER SMT. RANI FROM HOUSING PRO JECTS. IT IS TO BE NOTED THAT WHILE MAKING ADDITION FOR INCOME FROM HO USING PROJECTS, DEDUCTION CLAIMED UNDER SECTION 80-IB(10) WAS NOT A LLOWED BY THE ASSESSING OFFICER. ASSESSING OFFICER TAKING THE VI EW THAT ASSESSEE HAD CONCEALED INCOME FROM HOUSING PROJECTS, LEVIED PENALTY FOR ALL THE IMPUGNED ASSESSMENT YEARS TREATING THE INCOME D ECLARED BY ASSESSEES DAUGHTER AS ASSESSEES INCOME. 4. MEANWHILE, ASSESSEE HAD MOVED IN APPEALS AGAINST DENIAL OF CLAIM FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT, FOR THE IMPUGNED ASSESSMENT YEARS. IN SUCH APPEALS, CIT(AP PEALS) HELD THAT THE ASSESSEE WAS ENTITLED FOR PROPORTIONATE DE DUCTION UNDER SECTION 80-IB(10) OF THE ACT FOR HOUSES WHICH HAD B UILT-UP AREA LESS THAN 1500 SQ.FT. FURTHER APPEALS FILED BY THE REVE NUE, ON THIS ISSUE WERE DISMISSED BY THE TRIBUNAL. I.T.A. NOS. 1415 TO 1418/MDS/12 4 5. AGAINST THE PENALTY LEVIED FOR IMPUGNED ASSESSME NT YEARS, ASSESSEE MOVED IN APPEALS BEFORE CIT(APPEALS). LD. CIT(APPEALS) NOTING THAT ASSESSEE WAS ALLOWED DEDUCTION UNDER SE CTION 80-IB(10) FOR ALL THE IMPUGNED ASSESSMENT YEARS, HELD THAT TH ERE COULD HAVE BEEN NO CONCEALMENT. ACCORDING TO HIM, ASSESSEE HA D AT THE BEST TRIED TO AVOID TAX BUT, THIS COULD NOT BE CONSIDERE D AS EQUIVALENT TO FURNISHING OF ANY INACCURATE PARTICULARS OR CONCEAL MENT. TAKING THIS VIEW OF THE MATTER, HE HELD THAT THERE WAS NO REASO N TO LEVY ANY PENALTY. HE DELETED THE PENALTY LEVIED FOR IMPUGNE D ASSESSMENT YEARS. 6. NOW BEFORE US, SHRI S. DAS GUPTA, APPEARING FOR THE REVENUE, STRONGLY ASSAILING THE ORDER OF CIT(APPEALS), SUBMI TTED THAT ASSESSEE HAD KNOWINGLY SHOWN THE INCOME FROM HOUSE BUILDING PROJECTS IN HIS DAUGHTERS HAND, WHEN SUCH INCOME WAS EARNED BY THE ASSESSEE. ADDITION OF SUCH INCOME IN ASSESSEES ASSESSMENTS W ERE CONFIRMED BY APPELLATE AUTHORITIES. JUST BECAUSE DEDUCTION U NDER SECTION 80- IB(10) WAS ALLOWED, WOULD NOT MEAN THAT ACCURATE PA RTICULARS WERE FURNISHED BY THE ASSESSEE. OFFERING INCOME BELONGI NG TO THE ASSESSEE IN ANOTHER PERSONS NAME, ITSELF IS A CONC EALMENT. I.T.A. NOS. 1415 TO 1418/MDS/12 5 7. PER CONTRA, ADV. S. SRIDHAR, APPEARING FOR THE A SSESSEE, SUPPORTED THE ORDER OF CIT(APPEALS). 8. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THERE IS NO DISPUTE THAT INCOME FROM HOUSING PROJEC TS, ON WHICH ADDITIONS WERE MADE IN ASSESSEES HAND AND ON WHICH PENALTY WAS LEVIED BY THE ASSESSING OFFICER, WAS ADMITTED BY AS SESSEES DAUGHTER SMT. S. RANI IN HER RETURNS. LD. CIT(APPE ALS) HAS NOTED IN HIS ORDER THAT THE BUSINESS OF HOUSING PROJECTS WAS DONE BY THE ASSESSEE IN HIS DAUGHTERS NAME. THERE IS NO CASE FOR THE REVENUE THAT ASSESSEES DAUGHTER WAS A MINOR REQUIRING A CL UBBING IN ASSESSEES HAND. JUST BECAUSE ASSESSEE DID NOT OBJ ECT TO SUCH INCOME BEING INCLUDED IN HIS OWN ASSESSMENTS, WOULD NOT MEAN THAT THERE WAS FURNISHING OF INACCURATE PARTICULARS OR C ONCEALMENT OF INCOME. IN ANY CASE, THE APPELLATE AUTHORITIES IN THE QUANTUM ASSESSMENTS HAD HELD THE ASSESSEE TO BE ELIGIBLE FO R CLAIMING DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. THE TAX DUE ON THE INCOME FROM HOUSING PROJECTS STOOD PAID BY ASSESSEE S DAUGHTER SMT. RANI. HENCE, THE ONLY DETRIMENT THAT COULD HA VE BEEN CAUSED TO THE REVENUE IS DUE TO THE ADVANTAGE ENJOYED BY SMT. RANI BY VIRTUE OF SHE BEING A LADY. BUT, THIS WOULD NOT IN ANY CA SE SHOW THAT I.T.A. NOS. 1415 TO 1418/MDS/12 6 ASSESSEE HAD INDULGED IN ANY CONCEALMENT OR HAD FUR NISHED ANY INACCURATE PARTICULARS. WE ARE, THEREFORE, OF THE OPINION THAT THE CIT(APPEALS) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED FOR IMPUGNED ASSESSMENT YEARS. NO INTERFERENCE IS REQUIRED. 9. IN THE RESULT, ALL THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON MONDAY, THE 23 RD OF SEPTEMBER, 2013, AT CHENNAI. SD/- SD/- (S.S. GODARA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 23 RD SEPTEMBER, 2013. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-II, MADURAI (4) CIT, CENTRAL-II, CHENNAI (5) D.R. (6) GUARD FILE
