Shri M.V.Srinivasan, CHENNAI V. ITO, Coimbatore

ITA 1426/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57970 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-02-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K GOPALAKRISHNA
• Assessee Lawyers: G STANLY
• Section: 133A; 132

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 1426/MDS/2011 ASSESSMENT YEAR: 2008-09 SHRI M.V. SRINIVASAN, PROP. S.A. JEWELLERS, 313, K.G. STREET, COIMBATORE 641 001. [PAN: AIJPS3561P] VS. THE INCOME TAX OFFICER, WARD III (4), COIMBATORE. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G. STANLY, ADVOCATE REVENUE BY : SHRI K. GOPALAKRISHNA, SR.DR DATE OF HEARING : 13 . 0 2 .201 2 DATE OF PRONOUNCEMENT : 13.02.2012 ORDER PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A) I, COIMBATORE DATED 12.05.2011 PASSED IN APP EAL NO. 02/10-11 IN ASSESSMENT YEAR 2008-09. SHRI G. STANLY, ADVOCATE R EPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. GOPALAKRISHNA, SR. DR R EPRESENTED ON BEHALF OF THE REVENUE. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCO ME TAX ACT AMOUNTING TO ` .3,43,541/-. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.14 1414 1426/ 26/26/ 26/M/11 M/11 M/11 M/11 2 AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN T HE INSTANT CASE, THE PENALTY UNDER SECTION 271(1)(C) IS LEVIED BY THE ASSESSING OFFICER OF ` .3,43,541/- IN RESPECT OF INCOME OF ` .11,45,138/-, WHICH IS REPRESENTED BY GOLD JEWELLER Y OF ` .9,67,408/- AND CASH IN HAND OF ` .1,27,730/- AND ADDITION OF ` .50,000/- IN ASSESSMENT ON ESTIMATE FOR WANT OF EVIDENCE. 4. THE LD. CIT(A) CONFIRMED THE LEVY OF PENALTY. 5. THE FACTS RELEVANT TO THE ABOVE ISSUE ARE THAT A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT WAS CONDUCTED IN THE BUS INESS PREMISES OF THE ASSESSEE ON 14.05.2007. DURING THE COURSE OF SURVEY , THE ASSESSEE IN THE STATEMENT RECORDED OWNED UP THE CASH AND JEWELLERY OF ` .10,95,138/- FOUND IN THE POSSESSION OF SHRI K.L.N.M. RAJU, AN EMPLOYE E OF THE ASSESSEE DURING THE COURSE OF SEARCH CONDUCTED BY THE DEPART MENT IN THE CASE OF SHRI RAJU ON 12.05.2007. ON THE BASIS OF THE ABOVE STATE MENT MADE DURING THE COURSE OF SURVEY UNDER SECTION 133A, THE ASSESSEE D ECLARED ADDITIONAL INCOME OF ` .10,95,138/- IN HIS RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2008-09, WHICH WAS ACCEPTED BY THE DEPARTMENT ON AS SESSMENT. 6. IN THE ABOVE CIRCUMSTANCES, IT IS EVIDENT THAT INCOME OF ` .10,95,138/- WAS DULY DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME AND THEREFORE, IT CANNOT BE HELD THAT THE SAID INCOME WAS A CONCEALED INCOME WITH RESPECT TO THE RETURN OF INCOME FILED BY THE ASSESSEE. FURTHER , NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT EXPLA NATION 5 OF SECTION 271(1)(C) WAS ATTRACTED IN THIS CASE. NO MATERIAL H AS BEEN BROUGHT ON RECORD I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.14 1414 1426/ 26/26/ 26/M/11 M/11 M/11 M/11 3 TO SHOW THAT IN THE COURSE OF SEARCH UNDER SECTION 132 ON 12.05.2007, THE ASSESSEE WAS FOUND TO BE THE OWNER OF THE MONEY AND JEWELLERY OF ` .10,95,138/-. 7. ON THE OTHER HAND, WE FIND THAT THE INCOME OF ` .10,95,138/- WAS DISCLOSED BY THE ASSESSEE IN THE COURSE OF SURVEY U NDER SECTION 133A ON 14.05.2007 AND THE SAME WAS ALSO DISCLOSED IN THE R ETURN OF INCOME FILED BY THE ASSESSEE. THUS, THE ASSESSMENT WAS MADE ON THE BASIS OF STATEMENT RECORDED UNDER SECTION 133A OF THE ACT AND ON THE B ASIS OF DISCLOSURE MADE IN THE RETURN OF INCOME. AS EXPLANATION 5 TO SECTIO N 271(1)(C) IS NOT APPLICABLE IN THE INSTANT CASE AND AS THERE WAS NO ACTUAL CONCEALMENT OF ` .10,95,138/- IN THE RETURN OF INCOME FILED BY THE A SSESSEE, IN OUR CONSIDERED OPINION, LEVY OF PENALTY UNDER SECTION 271(1)(C), W ITH REFERENCE TO THE SAID AMOUNT OF ` .10,95,138/- IS NOT SUSTAINABLE. 8. FURTHER, LEVY OF PENALTY UNDER SECTION 271(1)(C ) IN RESPECT OF DISALLOWANCE OF ` .50,000/- ON ESTIMATE FOR WANT OF EVIDENCE CANNOT B E SUSTAINED AS THE REVENUE HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THE SAID AMOUNT OF ` .50,000/- WAS THE ACTUAL INCOME OF THE ASSESSEE OR BOGUS EXPENDITURE CLAIMED BY THE ASSESSEE. IN THE A BOVE CIRCUMSTANCES, THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THE INSTANT CASE IS DELETED AS THEY ARE UNSUSTAINABLE. WE THEREFORE, AL LOW THE APPEAL OF THE ASSESSEE. 9. NO OTHER POINT HAS BEEN URGED BY THE ASSESSEE EXCEPT THE ABOVE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.14 1414 1426/ 26/26/ 26/M/11 M/11 M/11 M/11 4 POINT. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES ON 13.02.2012. SD/ - SD/ - (GEORGE MATHAN) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER CHENNAI, DATED, THE 13.02.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.