DCIT, Coimbatore V. M/s. Advaith Realities Pvt. Ltd., Coimbatore

ITA 1479/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57897 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-02-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. I.T.A. NO. 1479/MDS/2011 ASSESSMENT YEAR : 2007-08 THE DEPUTY COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-I(3), COIMBATORE. V. M/S. ADVAITH REALITIS PVT. LTD., NO.84, SIR SHANMUGHAM ROAD, R.S. PURAM, COIMBATORE-641 002. (PAN: AAFCA3203K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT RESPONDENT BY : NONE DATE OF HEARING : 06-02-2012 DATE OF PRONOUNCEMENT : 06 -02-2012 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-I, COIMBATORE IN APPEAL NO. 49/10-11 D ATED 16.06.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. SHRI SHAJI P. JACOB, LEARNED SR. DR REPRESENTED ON BEHALF OF THE REVENUE AND NONE REPRESENTED ON BEHALF OF THE ASSESSEE. TH E NOTICE OF HEARING HAD BEEN SENT BY REGISTERED POST TO THE ASSESSEE WHICH HAS BEEN RETURNED UNSERVED. I.T.A. NO.1479/MDS/2011 2 IN THE CIRCUMSTANCES, THE APPEAL FILED BY THE REVEN UE IS BEING HEARD EX PARTE THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THERE WA S A SURVEY ON THE ASSESSEES PREMISES ON 30-07-2009. IN THE COURSE O F SURVEY THE ASSESSEE HAD OFFERED AN ADDITIONAL INCOME OF ` 48 LAKHS AND HAD FILED A REVISED RETURN ADMITTING AN INCOME OF ` 1,96,07,975/-. IT WAS THE SUBMISSION THAT THE REV ISED RETURN FILED HAD BEEN ACCEPTED WITHOUT MAKING ANY F URTHER ADDITION. IT WAS THE SUBMISSION THAT THE ADDITIONS WERE ON ACCOUNT OF TH E DEPOSIT IN THE BANK ACCOUNT OF THE MANAGING DIRECTOR WHICH WAS WITHDRAWN AND GI VEN TO THE ASSESSEE COMPANY AND THE MANAGING DIRECTOR WAS SHOWN AS A LO AN CREDITOR IN THE ACCOUNTS OF THE ASSESSEE COMPANY. IT WAS THE SUBMI SSION THAT IN THE COURSE OF THE SURVEY IT WAS ADMITTED THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT OF THE MANAGING DIRECTOR WAS UNACCOUNTED MONEY OF THE COMP ANY. IT WAS THE SUBMISSION THAT THE PENALTY UNDER SEC. 271(1)(C) HA D BEEN LEVIED ON ACCOUNT OF THE FACT THAT THE ASSESSEE COMPANY HAD NOT FULLY AN D CORRECTLY FILED ITS PARTICULARS OF INCOME IN THE ORIGINAL RETURN FILED. IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) DELETED THE PENALTY BY HOLDING THAT THE AMOU NT OF ` 33 LAKHS OFFERED AS AN ADDITIONAL INCOME WAS A MISTAKE SINCE THIS AMOUN T WAS NOT CREDITED IN THE BANK ACCOUNT OF THE MANAGING DIRECTOR. IT WAS THE FURTHER SUBMISSION THAT THE BALANCE OF ` 15 LAKHS WAS ON ACCOUNT OF THE DISALLOWANCE OF EXP ENDITURE INCURRED FOR VACATING THE OCCUPANTS OF THE LAND AND ALSO FOR LEVELING AND DEVELOPING THE I.T.A. NO.1479/MDS/2011 3 LAND AT SARAVANAMPATTY. IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) HAD CONSEQUENTLY DELETED THE PENALTY LEVIED. IT WAS TH E SUBMISSION THAT AS THE ASSESSEE HAD OFFERED THE ADDITIONAL INCOME AS A RES ULT OF THE SURVEY, THE PENALTY AS DELETED BY THE LEARNED CIT(A) WAS LIABLE TO BE R EVERSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LEARNED CIT(A) CLEARLY SHOWS THAT THE AMOUNT OF ` 48 LAKHS REPRESENTS TWO AMOUNTS, ONE BEING AN AMOUNT OF ` 15 LAKHS WHICH WAS THE EXPENDITURE INCURRED BY THE ASSESSEE. THE BALANCE AMOUNT OF ` 33 LAKHS IS NOT A CASH TRANSACTION IN THE ACCOUNTS OF THE MANAGING DIRECTOR BUT WAS AN OF FER OF ADDITIONAL INCOME. IT IS ALSO NOTICED THAT NO INCRIMINATING EVIDENCE HAS BEEN FOUND IN THE COURSE OF SURVEY NOR SUCH INCRIMINATING EVIDENCE BEING CONSID ERED IN THE ASSESSMENT OR IN THE PENALTY ORDER FOR THE PURPOSE OF MAKING THE ADD ITION OR LEVYING THE PENALTY. IN FACT, IT IS NOTICED THAT THE REVISED RETURN FILE D BY THE ASSESSEE HAS BEEN ACCEPTED AFTER VERIFYING THE REGULAR BOOKS OF ACCOU NTS AND SUPPORTING BILLS AND VOUCHERS ETC. AS NO INCRIMINATING EVIDENCE HAS BEE N FOUND IN THE COURSE OF SURVEY AND AS IT IS NOTICED THAT THE ASSESSEE HAS F ILED ITS RETURN SHOWING THE ADDITIONAL INCOME OF ` 48 LAKHS AS A RESULT OF THE OFFER MADE IN THE COUR SE OF SURVEY, IT CANNOT BE HELD THAT THE ASSESSEE HAS FIL ED INACCURATE PARTICULARS OF ITS INCOME OR CONCEALED ITS INCOME. FURTHER, THE REVEN UE HAS NOT BEEN ABLE TO REBUT THE FACTS AS BROUGHT OUT BY THE LEARNED CIT(A ) IN HIS ORDER FOR CANCELING THE PENALTY. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES AS LAID I.T.A. NO.1479/MDS/2011 4 DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CI T V. SURESH CHANDRA MILLTAL, REPORTED IN 251 ITR 9, WE ARE OF THE VIEW THAT THE FINDING OF THE LEARNED CIT(A) IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INT ERFERENCE. IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE STANDS DISMISSED. 5,. THE ORDER WAS PRONOUNCED IN THE COURT ON 06/02/ 2012. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 06 TH FEBRUARY, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE