Shri Divyang J. Patel, Ahmedabad V. The ACIT, Cent. Circle-2(4), Ahmedabad

ITA 1494/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9839 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: P M MEHTA
• Section: 153A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 1494/AHD/2013 / ASSESSMENT YEAR : 2009-10 DIVYANG J. PATEL, 95, TAPOVAN SOCIETY, S.M. ROAD, AMBAWADI, AHMEDABAD PAN : AEPPP 6305 Q VS ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : P.M. MEHTA, AR REVENUE BY : G.C. DAXINI, SR DR / DATE OF HEARING : 06/12/2016 / DATE OF PRONOUNCEMENT: 08/12/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-III, A HMEDABAD DATED 07.03.2013 FOR ASSESSMENT YEAR 2009-10. 2. THE SOLITARY GROUND RAISED IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE O F THE APPELLANT, THE LD. CIT(A) HAS ERRED IN CONFIRMING PENALTY LEVIED U/S 2 71AAA OF THE ACT FOR RS.2,00,000/- WHEN NO SUCH PENALTY IS LEVIABLE. TH E PENALTY LEVIED IN CASE OF APPELLANT MAY BE DELETED. 3. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THERE IS NO DIFFERENCE IN THE RETURNED AND ASSESSED INCOME FRAMED U/S 153A CONSEQ UENT TO A SEARCH ON ASSESSEES PREMISES ON 22.04.2008. THE HOUSE IN WH ICH THE SEARCH WAS CONDUCTED BELONGS TO THE JOINT FAMILY IN WHICH VARI OUS MEMBERS INCLUDING LADIES WERE LIVING TOGETHER, QUA THE JEWELLERY FOUN D, IT WAS EXPLAINED THAT THE ORNAMENTS BELONG TO THE VARIOUS MEMBERS OF THE JOINT FAMILY. IN POST SMC-ITA NO. 1494/AHD/2013 DIVYANG J. PATEL VS. ACIT AY : 2009-10 2 SEARCH ENQUIRY, NO INCRIMINATING MATERIAL WAS FOUND REGARDING THE ITEM OF JEWELLERY. THOUGH THERE WAS NO NEED FOR THE ASSESS EE TO DISCLOSE ANY ADDITIONAL INCOME IN RESPECT OF JEWELLERY; HOWEVER, AS A MATTER OF ABUNDANT CAUTION, THE ASSESSEE DISCLOSED AN AMOUNT OF RS.20, 00,000/- AS ADDITIONAL INCOME WHICH HAS BEEN ACCEPTED. WITHOUT FINDING AN Y INCRIMINATING MATERIAL OR THE FACT THAT NO SPECIFIC ITEM OF JEWEL LERY WERE ATTRIBUTED TO THE ASSESSEE IN POST SEARCH ENQUIRIES, LD. ASSESSING OF FICER IMPOSED THE IMPUGNED PENALTY U/S 271AAA OF THE ACT. THE ASSESS EE HAS DULY DISCLOSED THE SOURCE OF JEWELLERY BEING BELONGING TO THE JOIN T FAMILY MEMBERS WHICH HAS NOT BEEN REBUTTED. MERELY BECAUSE THE ASSESSEE OFFERED SOME ADDITIONAL INCOME, IT CANNOT BE AUTOMATICALLY HELD THAT THE CA SE IS LIABLE FOR PENALTY U/S 271AAA OF THE ACT. RELIANCE IS PACED ON THE FOLLOW ING JUDGMENTS:- (I) CIT VS. VIJAYKUMAR BHASIN AND OTHERS (2007) 198 TAX ATION 329 (P&H) (II) CIT VS. SURESH CHAND BANSAL [2009] 223 CTR (CAL) 12 8 (III) CIT VS. SAS PHARMACEUTICALS (2011) 199 TAXMAN 255 ( DEL), [2011] 335 ITR 59 (DEL.) (IV) CIT VS. HARKARN DAS VED PAL (2011) 336 ITR 8 (DELHI ) 4. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN MY CONSIDERED VIEW, THERE IS NOTHING ON RECORD TO SUGG EST THAT ANY INCRIMINATING MATERIAL QUA THE ACQUISITION OF UNDIS CLOSED JEWELLERY WAS FOUND FROM THE ASSESSEE. THE ASSESSEE GAVE AN EXPL ANATION THAT THE ENTIRE JEWELLERY BELONGS TO VARIOUS FAMILY MEMBERS, WHICH IS NOT DISPUTED BY THE SMC-ITA NO. 1494/AHD/2013 DIVYANG J. PATEL VS. ACIT AY : 2009-10 3 REVENUE ALSO AND NO INCRIMINATING MATERIAL IS ATTRI BUTED. IN THESE CIRCUMSTANCES, THE ASSESSEE OFFERED ADDITIONAL INCO ME IN THE RETURN WHICH IS ACCEPTED AND THERE IS NO DIFFERENCE BETWEEN THE RET URNED INCOME AND THE ASSESSED INCOME. IN THESE FACTS AND CIRCUMSTANCES, I AM OF THE VIEW THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271AAA OF THE ACT, WHICH IS DELETED AND THE ASSESSEES APPEAL IS ALLOWED. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 8 TH DECEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 08/12/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD