SMT. UMA SABHLOK, V. A,C.I.T CENT CIR. 1(3), Nagpur

ITA 164/NAG/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2164 (ITAT-NAGPUR)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 14-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Keywords: Search and seizure
• Section: 153A; 139

Judgement Text

1 ITA NOS. 164 TO 168/NAG/2016 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) S.NO. I.T.A. NO. ASSTT. YEAR. 1. 164/NAG/2016 2004 - 05. 2. 165/NAG/2016 2005 - 06. 3. 166/NAG/2016 2006 - 07. 4. 167/NAG/2016 2007 - 08. 5. 168/NAG/2016 2008 - 09. SMT . UMA SABHLOK, ASSTT. COMMISSIONER OF INCOME - TAX, JABALPUR (MP). VS. CENTRAL CIRCLE - 1(3), NAGPUR. PAN ANBPS1664A. APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SMT. AGNES P. THOMAS. DATE OF HEARING : 07 - 07 - 2016 DATE OF PRONOUNCEMENT : 8 TH JULY, 201 6 O R D E R THESE ARE APPEALS BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF LEARNED CIT(APPEALS) FOR THE CONCERNED ASSESSMENT YEARS. SINCE THE ISSUES ARE COMMON AND CONNECTED AND THE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER. THE COMMON ISSUE RAISED IN THESE APPEALS IS THAT THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE PENALTY LEVIED U/S 271(1))(C) AS UNDER : 2 ITA NOS. 164 TO 168/NAG/2016 ASSTT. YEAR PENALTY LEVIED 2004 - 05 RS. 49,500/ - 2005 - 06 RS. 23,459/ - 2006 - 07 RS. 4,058/ - 2007 - 08 RS. 15,060/ - 2008 - 09 RS. 19,918/ - . 2. IN THESE CASES THERE WAS A SEARCH AND SEIZURE OPERATION. THE ASSESSEE FILED RETURN U/S 153A. TOTAL INCOME RETURNED U/S 153A WAS ASSESSED BY THE AO. HOWEVER, THE AO NOTED THAT THERE WAS DIFFERE NCE BETWEEN THE INCOME OF RETURN FILED U/S 139 AND THE RETURN FILED U/S 153A. THE AO OBSERVED THAT AN EXAMINATION OF THE SEIZED MATERIAL REVEALED THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF INVESTMENT MADE IN NSC/KVP/LIC, HOUSEHOLD EXPENSES, SUNDRY I NCOME ON ACCOUNT OF INTEREST ON DEPOSITS AND INVESTMENTS AND ACCORDINGLY THE AO LEVIED PENALTY U/S 271(1)(C). 3. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) HAS CONFIRMED THE PENALTY AT THE MINIMUM LEVEL. 4. AGAINST THE ABOVE ORDER, THE ASSESSEE IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OPINION, THE MATTER CAN B E DISPOSED OF BY HEARING THE LEARNED D.R. AND PERUSING THE RECORDS. 6. I FIND THA T IN THIS CASE THE ASSESSEE HAS FILED RETURN U/S 153A. THE INCOME SO RETURNED HAS BEEN ACCEPTED BY THE AO. THE DIFFERENCE BETWEEN THE RETURN FILED U/S 139 AND SECTION 153A IS A RESULT OF DIS CLOSURE BY THE ASSESSEE U/S 139(4). IT IS NOT THE CASE THAT THE AS SESSEE HAS NOT PAID TAXES THEREON OR THE SAME HAS NOT BEEN ASSESSED. THE AO HAS NOT REFERRED AS TO WHAT EXACT MATERIAL WAS FOUND DURING THE SEARCH WHICH CAN PROVE THAT THERE WAS ANY CONCEALMENT BY THE ASSESSEE. IN MY CONSIDERED OPINION, WHEN THE ASSESSEE HAS DISCLOSED THE 3 ITA NOS. 164 TO 168/NAG/2016 INCOME, PAID THE TAXES THEREON AND THE AMOUNT SO RETURNED HAS BEEN ACCEPTED BY THE REVENUE, THE ASSESSEE CANNOT BE VISITED WITH THE RIGOURS OF PENALTY U/S 271(1)(C) DEHORSE ANY FINDING THAT THERE WAS SPECIFIC CONCEALMENT O R FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE. IN THIS REGARD I ALSO PLACE RELIANCE UPON THE DECISION OF A LARGER BENCH OF HONBLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LTD. VS. STATE OF ORISSA 83 ITR 26 . IN THIS CASE THEIR LORDSHIPS HAVE OBSE RVED THAT AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI - CRIMINAL PROCEEDING, AND PENALTY WILL NOT ORDINARILY IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILT Y OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT AND DISCUSSION AS ABOVE, I SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE LEVY OF PENAL TY. 7. IN THE RESULT, THESE APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 8 TH JULY, 2016. 4 ITA NOS. 164 TO 168/NAG/2016 COPY FORWARDED TO : 1. SMT. UMA SABHLOK , PROP. M/S OM SAI MARBLES, MAIN ROAD, GORKHPUR, JABALPUR (MP) - 482002. 2. A.C.I.T., CENTRAL CIRCLE - 1(3) , NAGPUR. 3. C.I.T. - (CENTRAL) , NAGPUR. 4. CIT(APPEALS), - 3 , NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.