Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 3187 (ITAT-NAGPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 11 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-04-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2004-2005
Appeal Filed On
26-04-2012
Judgement Text
, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO. 14 0 TO 142 / N AG / 20 1 2 ( ASSESSMENT YEAR S : 2000 - 01, 2001 - 02 & 2004 - 05 ) M/S RADHEY MINERALS LIMITED, C/O. M/S LOYA BAGRI & CO., CHATTERED ACCOUNTANTS, GANDHIBAG, NAGPUR. VS. ACIT, CENT.CIR.2(3), NAGPUR . PAN/GIR NO. : A AACR 6904 M ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. RAJESH LOYA /REVENUE BY : MR. MILLIND BHUSARI DATE OF HEARING : 30 TH JAN ., 201 3 DATE OF PRONOUNCEMENT : 6 TH FEB. ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E SE THREE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (A) - I , NAGPUR REL ATING TO THE ASSESSMENT YEAR S 200 - 01, 01 - 02 & 04 - 05 , RESPECTIVELY, WHICH HAVE BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE ASSESSEE RAISED OBJECTION IN ALL THE THREE APPEALS IN REGARD TO CONFIRMATION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT RELATING TO ASSESSMENT YEARS 200 0 - 01, 2001 - 02 & 2004 - 05, RESPECTIVELY . SINCE COMMON ISSUES ARE INVOLVED IN ALL THE CASES, THEREFORE, FOR THE SAKE OF ITA NO S . 140 TO 142 / 20 1 2 2 CONVENIENCE , ALL THESE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER TOGETHER. 3 . WE WILL DISCU SS THE FACTS OF THE CASE IN ITA NO.140/NAG/2012 RELATING TO ASSESSMENT YEAR 2000 - 01 AND THE OUTCOME OF THE SAME WILL BE APPLICABLE IN THE CASE OF OTHER TWO APPEALS IE. FOR THE ASSESSMENT YEARS 2001 - 02 & 2004 - 05 RESPECTIVELY AS THE FACTS ARE IDENTICAL. 4 . IN THIS CASE T HE RETURN OF INCOME WAS FILED ON 31 - 03 - 2001 DECLARING TOTAL INCOME OF RS. 17,76,340/ - . A SEARCH WAS CONDUCTED U/S 132 ON 24 - 12 - 2003 IN GUPTA GROUP OF CASE S . NOTICE U/S 153A WAS ISSUED. SUBSEQUENTLY COMPANY FILED RETURN ON 27 - 03 - 2006 DECLARING A TOTAL INCOME OF RS. 30,06,340/ - . AN AMOUNT OF RS. 15,00,000/ - WAS SURRENDERED ON ACCOUNT OF SALES COMMISSION. ASSESSMENT U/S 153A RWS 143(3) WAS COMPLETED ON TOTAL INCOME OF RS. 32,06,340/ - ON ACCOUNT OF DISALLOWANCES OF EXCESS DEDUCTION O F RS. 2,70,000 / - CLAIMED U/S 80I . THE CIT(A) DELETED THE ENTIRE ADDITION RS. 2,70,000/ - . ON THE SURRENDERED AMOUNT, THE AO LEVIED PENALTY U/S 271(1)(C) AT RS. 5,80, 000/ - . 5 . THE ASSESSEE PREFERRED APPEAL S BEFORE THE L EARNED CIT(A) . DETAIL SUBMISSIONS WERE FILED BEFOR E HIM, HOWEVER, THE LEARNED CIT(A) WAS ALSO OF THE VIEW THAT THE PENALTY LEVIED BY THE AO WAS JUSTIFIED. ITA NO S . 140 TO 142 / 20 1 2 3 ACCORDINGLY, HE CONFIRMED THE LEVY OF PENALTY. NOW, THE ASSESSEE IS IN APPEALS FOR THE AFORESAID ASSESSMENTS YEARS HERE BEFORE THE TRIBUNAL. 6 . LEARNE D COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE WRITTEN SUBMISSION FILED BEFORE THE LEARNED CIT(A) , COPY OF WHICH IS PLACED IN THE COMPILATION. IT WAS FURTHER SUBMITTED THAT ON SIMILAR FACTS, PENALTY WAS LEVIED IN ANOTHER CASE I.E M/S GUPTA DOMESTIC FUELS P. (N) LTD. AND THE TRIBUNAL HAS CONFIRMED THE DELETION OF PENALTY, COPY OF WHICH IS PLACED IN THE PAPER BOOK AT PAGE 12 AND 13. IT WAS FURTHER SUBMITTED THAT FACTS ARE SIMILAR IN THE PRESENT CASE AND IN THE CASE OF M/S GUPTA DOMESTIC FUELS P. (N) LTD. . T HEREFORE, IT WAS REQUESTED THAT PENALTY LEVIED BY THE AO, WHICH IS CONFIRMED BY THE CIT(A) IS LIABLE TO BE DELETED. 7 . ON THE OTHER HAND, L EARNED DR PLACED RELIANCE ON THE ORDER OF THE AO AND CIT(A) . 8 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ASSESSEE DESERVES TO SUCCEED IN ITS APPEAL. WE NOTED THAT THE AMOUNT OF RS. 15 LAKHS WAS SURRENDERED AND THEREAFTER THE ASSESSEE HAS FILED EXPLANATION IN RESPECT TO SURRENDERED INCOME. IT WAS EXPLAINED THAT THE ASSESSEE GROUP HAS DECLARED INCOME OF RS. 3 CRORES AT THE TIME OF SEARCH IN THE STATE MENT RECORDED UNDER SECTION 132(4) AND AFTER DECLARING THE SAME, ON INSPECTION OF THE RECORDS, ADDITIONAL INCOME WAS ALSO SURRENDERED JUST TO AVOID LITIGATION ITA NO S . 140 TO 142 / 20 1 2 4 AND TO COOPERATE WITH THE DEPARTMENT. ACCORDINGLY, IT WAS SUBMITTED THAT PENALTY IS NOT LEVIABLE ON THE ADDITIONAL INCOME SURRENDERED BY THE ASSESSEE AT RS. 15 LAKHS . IT WAS ALSO SUBMITTED THAT THE ASSESSEE WAS GIVEN AN UNDERSTANDING THAT NO PENALTY WOULD BE LEVIED IN VIEW OF TH E SURRENDERED MADE BY THE ASSESSEE. IT WAS ALSO EXPLAINED THAT THE SURRENDERED MADE BY THE ASSESSEE WAS IRRESPECTIVE OF THE FACT THAT NO INCOME WAS FOUND TO HAVE BEEN EARNED AND RECORDED IN THE BOOKS OF ACCOUNT. THUS, IT IS NOT THE CASE OF CONCEALMENT OF T HE INCOME BY FURNISHING INACCURATE PARTICULARS OR CONCEALING ANY INCOME. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS VOLUNTARILY PAID THE TAX AND THE INTEREST THEREON ALONGWITH RETURN OF INCOME. THE VOLUNTARY ACTION WAS TO AVOID UNNECESSARY LITIGATION AND COST ATTACHED TO IT, OTHERWISE THERE WAS NO MATERIAL TO HOLD THAT THE ASSESSEE HAS CONCEALED ANY INCOME OR HAS FURNISHED INACCURATE PARTICULARS. 9 . WE HAVE GONE THROUGH THE ORDER OF THE AO AND CIT(A ) AND WE FOUND THAT THE EXPLANATION OF THE ASSESSEE NEIT HER WAS FOUND INCORRECT NOR THERE WAS ANY ARTICLE/MATERIAL SHOWING THAT THE ASSESSEE HAS CONCEALED ANY INCOME. IT IS FURTHER SEEN THAT THE ASSESSEE ON INSPECTION OF RECORDS FOUND THAT CORRECT FIGURE OF INCOME IS NOT POSSIBLE TO ARRIVE AND THEREFORE, TO AVO ID LITIGATION AND ON ASSURANCE THAT NO PENALTY WILL BE LEVIED, AN ADDITION AL OF RS. 15 LAKHS WAS SURRENDERED. AFTER GOING THROUGH THE ORDERS OF BOTH THE LOWER AUTHORITIES, IT IS SEEN THAT THESE CONTENTIONS OF THE ASSESSEE WERE NOT FOUND FALSE OR ITA NO S . 140 TO 142 / 20 1 2 5 OTHERWISE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT PENALTY LEVIED BY THE AO, WHICH IS CONFIRMED BY THE CIT(A) ON ADDITIONAL AMOUNT OF SURRENDERED WAS NOT JUSTIFIED. IT IS SETTLED POSITION OF LAW THAT THERE SHOULD BE A CONCRETE MATERIAL BY WHICH IT CAN BE ASCER TAINED THAT ANY PART OF INCOME HAS BEEN CONCEALED OR CERTAIN INACCURATE PARTICULAR HAS BEEN FURNISHED TO CONCEAL THE INCOME. IN THE PRESENT CASE, AS STATED ABOVE, THE ASSESSEE WITHOUT ANY MATERIAL HAD SURRENDERED ADDITIONAL INCOME OF RS. 15 LAKHS FOR THE YE AR UNDER CONSIDERATION, THEREFORE, WE ARE OF THE VIEW THAT NO PENALTY CAN BE LEVIED WHEN THERE IS NO DIRECT MATERIAL SHOWING THAT ANY INCOME HAS BEEN CONCEALED. WE FURTHER NOTED THAT IN SIMILAR FACTS, THE TRIBUNAL HAS CANCELLED THE LEVY OF PENALTY IN THE C ASE OF M/S GUPTA DOMESTIC FUELS P. (N) LTD. , DECIDED IN IT(SS)A NO .246/NAG/ 2007 FOR THE ASSESSMENT YEAR 2000 - 01 VIDE ORDER DATED 14 - 10 - 2008 . WE FURTHER NOTED THAT THE HON BLE NAGPUR BENCH OF HIGH COURT OF BOMBAY IN CASE OF MUKESH DEDUTTA GUPTA IN ITA NO.7 6/2009 VIDE ITS ORDER DATED 3 - 9 - 10 , HAS HELD THAT THE TRIBUNAL DELETED THE PENALTY FIRSTLY ON THE GROUND THAT THE ASSESSEE HAS FILED RETURN PURSUANT TO NOTICE UNDER SECTION 153A OF THE ACT OFFERING ADDITIONA L INCOME WITH A VIEW TO BUY PEACE AND ON THE UND ERS T ANDING THAT NO PENALTY WOULD BE LEVIED. HAVING ACCEPTED THE RETURN SUBJECT TO CONDITION ATTACHED TO IT, IMPOSITION OF PENALTY WAS NOT JUSTIFIED . ACCORDINGLY, THE ORDER OF THE TRIBUNAL CANCELLING THE LEVY OF PENALTY IS CONFIRMED. ITA NO S . 140 TO 142 / 20 1 2 6 FACTS IN THE PRESENT C ASE AR E SIMILAR AS THE ASSESSEE OFFERED ADDITIONA L INCOME OF RS. 15 LAKHS JUST TO BUY PEACE AND AVOID LITIGATION. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE CANCEL THE LEVY OF PENALTY OF RS. 5,80, 000/ - LEVIED FOR THE YEAR UNDER CONSIDERAT ION. 10 . SIMILAR FACTS ARE INVOLVED IN THE ASSESSMENT YEARS 2001 - 02 AND 2004 - 05 ( ITA NO. 141/NAG/2012 & 142/NAG/2012 ) , WHERE PENALTY OF RS. 3,20,000/ - AND RS. 80,000/ - , RESPECTIVELY WERE IMPOSED AND CONFIRMED BY THE CIT(A) . SINCE FACTS ARE SIMILAR, THEREFORE , FOR THE SAME REASONING GIVEN FOR THE ASSESSMENT YEAR 2000 - 01 I.E IN ITA NO. 140/8NAG/2012 , WE CANCEL THE LEVY OF PENALTIES FOR THESE TWO YEARS ALSO. 1 1 . IN THE RESULT , ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE E - COURT ON THIS 6 TH DAY OF FEB , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 6 / 02 / 201 3 . /PKM , PS ITA NO S . 140 TO 142 / 20 1 2 7 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI
