The DCITValsad Circle, Valsad V. Smt. Sunita K.Shah, Valsad

ITA 1649/AHD/2009

• Counselvise Citation: 164920514 RSA 2009
• Duration Of Justice: 3 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-08-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 20-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KK SHAH
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTAN T MEMBER I.T.A. NO.1648/AHD/2009 A. Y. 2003-04 WITH I.T.A. NO.1649/AHD/2009 A. Y. 2004-05 THE D.C.I.T., VALSAD CIRCLE, VALSAD APPELLANTS VS. SMT. SUNITA K. SHAH, PROP. CHANDNI DEVELOPERS XITIJ APPARTMENT, TITHAL ROAD, VALSAD RESPONDENTS DEPARTMENT BY : SHRI SANJAY DHARIWAL, SR. D.R. ASSESSEE BY : SHRI K.K. SHAH, A.R. DATE OF HEARING : 27.08.2012 DATE OF PRONOUNCEMENT : 31.08.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER BOTH THESE APPEALS HAVE BEEN FILED BY THE REVENUE A GAINST THE ORDERS OF LD. CIT(A), VALSAD DATED 13.03.2009. SIN CE BOTH THE APPEALS BELONG TO THE SAME ASSESSEE AND THE FACTS ARE SIMIL AR, WE ARE DISPOSING OF THESE APPEALS BY PASSING A CONSOLIDATED ORDER. ITA NO.1648 OF 2009 2. REVENUE IN THIS APPEAL IS AGGRIEVED BY THE ACTIO N OF LD. CIT(A) IN DELETING THE PENALTY OF RS.4,94,000/- LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT. I.T.A. NO.1648/AHD/2009, A. Y. 2003-04 WITH I.T.A. NO.1649/AHD/2009, A. Y. 2004-05 2 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FIRM F ILED RETURN OF INCOME SHOWING TAXABLE INCOME OF RS.17,61,410/- IN RESPONSE TO NOTICE U/S 153A(A) OF THE ACT. SUBSEQUENTLY, ASSESSEE FIL ED REVISED RETURN DECLARING TOTAL INCOME OF RS.2,76,110/-. IN THE EA RLIER RETURN ASSESSEE FIRM HAD SHOWN ADDITIONAL INCOME OF RS.16,13,150/- BEING ENTIRE ON MONEY ON SALE OF PART OF THE PROJECT AS CALLED RUSHABH AP ARTMENT. THE ASSESSEE, IN THE REVISED RETURN OF INCOME SHOWED ONLY PROFIT AT 8% ON ADDITIONAL INCOME OF RS.16,13,150/-. DURING THE ASSESSMENT PR OCEEDINGS THE A.O. TOOK THE ENTIRE ON MONEY OF RS.16,13,150/- AS INC OME AND MADE ASSESSMENT OF RS.17,61,810/- AND THIS ADDITION WAS SUSTAINED BY HONBLE ITAT. THEREAFTER THE A.O. LEVIED PENALTY U/S 271(1 )(C) OF THE ACT ON ENTIRE ADDITION ON ON MONEY. 4. IN APPEAL LD. CIT(A) HAS DELETED THIS PENALTY OB SERVING THAT THE A.O. HAS LEVIED THE PENALTY IN ROUTINE MANNER AND T HERE IS NO PRECISE CHARGE WHETHER PENALTY IS INITIATED ON CONCEALMENT OF INCOME OR FILING INACCURATE PARTICULARS OF INCOME. AGGRIEVED BY THI S ORDER NOW THE REVENUE IS IN APPEAL BEFORE US. 5. LD. D.R., PLACING RELIANCE ON THE ORDER OF THE A .O. FURTHER SUBMITTED THAT ASSESSEE HIMSELF HAD DECLARED ENTIRE ON MONEY AS INCOME IN RETURN OF INCOME FILED U/S 153 OF THE ACT AND LA TER ON HAS CHANGED HIS PLEA AND DECLARED INCOME AND PROFIT ON ON MONEY A S AGAINST THE ENTIRE ON MONEY RECEIPT. THE QUESTION OF CHARGING PROFI T ON ON MONEY HAS ALREADY BEEN DECIDED IN APPEAL BY THE HONBLE ITAT IN FAVOUR OF THE I.T.A. NO.1648/AHD/2009, A. Y. 2003-04 WITH I.T.A. NO.1649/AHD/2009, A. Y. 2004-05 3 REVENUE. SINCE THE RETURN OF INCOME WAS FILED IN V IEW OF SEARCH CONDUCTED AT THE ASSESSEES BUSINESS PREMISES AND ON THE BASI S OF DECLARATION MADE DURING THE COURSE OF SEARCH AS WELL AS IN VIEW OF H ONBLE SUPREME COURT DECISION IN THE CASE OF DHARMENDRA TEXTILE PROCESSO RS & OTHERS THE DECISION OF LD. CIT(A) IS NOT SUSTAINABLE IN LAW AN D THE SAME MAY KINDLY BE SET SIDE AND THAT OF THE A.O. BE RESTORED BACK. LD . COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, PLACED RELIANCE ON THE DECISION OF LD. CIT(A) AND THE SUBMISSIONS MADE BY HIM BEFORE LD. CIT(A). 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT DURING THE PENALTY PROCEEDINGS U/S 271(1)(C) O F THE ACT THE ASSESSEES EXPLANATION WAS THAT ONLY PROFITS ON ON MONEY SHO ULD HAVE BEEN TAXED AND NOT ON ON MONEY ITSELF. THIS CONTENTION OF T HE ASSESSEE WAS BASED ON VARIOUS JUDICIAL PRONOUNCEMENTS ON THIS ISSUE AN D RELYING ON THE JUDICIAL PRONOUNCEMENTS THE ASSESSEE OFFERED ONLY PROFITS ON ON MONEY IN HIS REVISED RETURN. IT WAS ALSO THE CONTENTION OF THE ASSESSEE THAT NO ASSETS TO THE EXTENT OF ENTIRE ON MONEY WAS FOUND DURING TH E SEARCH CONDUCTED BY THE REVENUE. SINCE THIS EXPLANATION OF THE ASSESSE E WAS NOT FOUND FALSE BY THE A.O. LD. CIT(A) HAS RIGHTLY DELETED THE PENA LTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT AS IN THE FACTS OF THE CAS E EXPLANATION-1 TO SECTION 271(1)(C) IS NOT ATTRACTED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ITA NO.1649 OF 2009 8. SINCE THE FACTS OF THIS CASE ARE SIMILAR TO THE FACTS OF ITA NO.1648/AHD/2009, FOR THE REASONS GIVEN BY US IN IT A NO.1648/AHD/2009, I.T.A. NO.1648/AHD/2009, A. Y. 2003-04 WITH I.T.A. NO.1649/AHD/2009, A. Y. 2004-05 4 THE ORDER OF LD. CIT(A) DELETING THE PENALTY IS HER EBY CONFIRMED AND THE REVENUES APPEAL IS DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 31.08.2012 SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TY AGI) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE BY ORDER AR,ITAT,AHMEDABAD