Sanjay Babasaheb Patil, Kolhapur V. Assistant Commissioner of Income-tax, (Central) Circle -Kolhapur, Kolhapur

ITA 1578/PUN/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1487 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-09-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 30-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.1578/PUN/2018 िनधाᭅरण वषᭅ / Assessment Year: 2012-13 Sanjay Babasaheb Patil, 252, E-Ward, Dipti Park, Assembly Road, Kolhapur- 416001. PAN : ABLPP1660K Vs. ACIT, (Central) Circle, Kolhapur. Appellant Respondent आदेश / ORDER PER S. S. GODARA, JM: This assessee’s appeal for assessment year 2012-13 arises against the CIT(A)-11, Pune’s order dated 31.05.2018 passed in case no. Pn/CIT(A)-11/ACIT Cen. Cer. Kolhapur/Kol/973/2014-15, involving proceedings u/s 271AAA of the Income Tax Act, 1961; in short “the Act”. Heard both the parties. Case file perused. 2. We notice at the outset that the assessee’s sole substantive grievance challenging correctness of both the learned lower authorities’ action imposing section 271AAA penalty of Assessee by : Shri M. K. Kulkarani Revenue by : Shri M. G. Jasnani Date of hearing : 30.09.2022 Date of pronouncement : 07.10.2022 ITA No.1578/PUN/2018 2 Rs.3,59,200/-; hardly requires us to delve deeper in the relevant factual matrix. We make it clear that the impugned penalty provision comes into play when an assessee concerned fails to satisfy the three conditions of admitting the undisclosed income followed by the manner of having derived the sums, substantiation thereof and payment of taxes; as the case may be. 3. We keep in mind the foregoing statutory provision and proceed to deal with the facts of the instant case. We make it clear that the department had carried out the search in issue on 25.08.2011. The assessee had disclosed unaccounted investment of Rs.5,49,000/- therein. There is further an issue of foreign unexplained expenses amount of Rs.3,63,482/- as well. It is these two heads which form subject matter of penalty imposed herein u/s 271AAA of the Act. We find from a perusal of the Assessing Officer’s penalty order dated 17.12.2014 and CIT(A)’s order that the Revenue has not been able to pinpoint any specific averment of violation the foregoing three statutory conditions in their respective orders. Mr. Jasnani quoted PCIT vs. Smt. Ritu Singal [2018] 92 taxmann.com 224 (Delhi) that it is not a mandatory condition for the department to raise any specific query regarding the above three conditions whereas hon’ble Gujarat high court in PCIT vs. Mukeshbhai Ramanlal Prajapati [2018] 99 taxmann.com 447 ITA No.1578/PUN/2018 3 (Gujarat) appears to have decided the very issue in assessee’s favour. Faced with this situation and in light of facts the hon’ble jurisdictional high court having not adjudicated the instant legal question, we go by the latter case law to decide the issue in assessee’s favour and against the department in light of CIT vs. Vegetable Products Ltd. [1973] 88 ITR 192 (SC). The impugned penalty is directed to be deleted therefore. Delay of 41 days in filing of the instant appeal stands condoned in light of assessee’s contentions and in larger interest of justice. 4. This assessee’s appeal is allowed in above terms. Order pronounced on this 07 th day of October, 2022. Sd/- Sd/- (G. D. PADMAHSHALI) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 07 th October, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-11, Pune. 4. The Pr. CIT (Central), Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.