BANSI FOODS PVT. LTD., Nagpur V. ITO, WARD-1, Amaravati

ITA 166/NAG/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1736 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Section: 133A; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER ITA NO. 166/NAG./2013 ( ASSESSMENT YEAR : 2006-07 ) BANSI FOODS PVT. LTD. TRADE NAME: M/S. SONY FOOD PRODUCTS C/O ADVOCATE SHRI MANOJ G. MORYANI C/O MANOJ MORYANI & CO., SUDAMA BHAWAN, BEHIND SUT MARKET, GANDHIBAUG NAGPUR 440 002 PAN AAECB0039P APPELLANT V/S INCOME TAX OFFICER WARD-I, AMRAWATI .... RESPONDENT ASSESSEE BY : SHRI MANOJ G. MORYANI REVENUE BY : SHRI NARENDRA KANE DATE OF HEARING 21.07.2015 DATE OF ORDER 19.08.20 15 O R D E R THE APPEAL FILED BY THE ASSESSEE IS EMANATING FROM T HE IMPUGNED ORDER DATED 2 ND JANUARY 2013, PASSED BY THE LEARNED COMMISSIONER (APPEALS)-II, NAGPUR, FOR THE ASSESSMENT YEAR 2006-07. T HE SOLE DISPUTE IN THIS APPEAL IS WHETHER OR NOT THE LEARNE D CIT(A) WAS JUSTIFIED IN CONFIRMING THE PENALTY OF ` 40,000, LEVIED BY THE ASSESSING OFFICER BANSI FOODS PVT. LTD. 2 UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 ( FOR SHORT 'THE ACT' ). 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASS ESSMENT ORDER PASSED UNDER SECTION 144 R/W 147 OF THE ACT DAT ED 24 TH DECEMBER 2009 AND THE PENALTY UNDER SECTION 271(1)(C) DATED 17 TH JUNE 2010, WERE THAT THE ASSESSEE IS IN THE BUSINESS OF MANUFACT URING BISCUITS AND FOOD PRODUCTS. A SURVEY UNDER SECTION 133A OF THE ACT W AS CONDUCTED ON THE ASSESSEE ON 13 TH SEPTEMBER 2005. AT THE TIME OF SURVEY, THE ASSESSEE HAD VOLUNTARILY DECLARED A SUM OF ` 1,00,000, FOR ASSESSMENT YEAR 2006-07. FINALLY, THE ASSESSMENT WAS COMPLETED O N AN INCOME OF ` 1,08,850. WHILE IMPOSING THE PENALTY UNDER SECTION 271 (1)(C), THE ASSESSING OFFICER HAS MENTIONED THAT IF THERE WAS N0 SU RVEY, THEN THE CONCEALED INCOME WOULD NOT HAVE BEEN DETECTED BY TH E REVENUE. IN HIS OPINION, THE AMOUNT WHICH WAS OFFERED AT THE TIME OF SU RVEY WAS DELIBERATELY CONCEALED BY THE ASSESSEE. RESULTANTLY, THE IMPUGNED PENALTY OF ` 40,000, WAS LEVIED. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY, THE LEARNED CIT(A) HAS AFFIRMED THE ACTION OF THE ASSESSI NG OFFICER MAINLY ON THE GROUND THAT ONLY BECAUSE OF SURVEY, THE SAID INCOME WAS BANSI FOODS PVT. LTD. 3 BROUGHT TO TAX OTHERWISE THE ASSESSEE HAS NOT DISCL OSED THE SAID INCOME BEFORE THE REVENUE. 4. ON THIS SMALL ISSUE, WE HAVE HEARD THE PARTIES. FEW FA CTS, AS EMERGED FROM THE ORDERS OF THE AUTHORITIES BELOW WERE THAT, THE ASSESSEE HAD MAINTAINED THE BOOKS OF ACCOUNT. THE FACT S HAVE ALSO REVEALED THAT THE ACCOUNTS WERE AUDITED UNDER SECTI ON 44AB OF THE ACT. THE ASSESSEE HAS INFORMED DURING THE PENALTY PROCEED INGS THAT ALL THE DETAILS, PAYMENT VOUCHERS, ETC., HAVE BEEN DULY MAINTA INED BY THE ASSESSEE AND WERE ALSO PRODUCED FOR VERIFICATION. IT W AS EXPLAINED THAT THE BUSINESS OF MANUFACTURING OF BISCUITS WAS AT A VER Y SMALL SCALE. ALTHOUGH, THERE WAS NO DISCREPANCY FOUND AT THE TIME O F SURVEY BUT TO BUY MENTAL PIECE, AN ESTIMATED SUM OF ` 1,00,000, WAS OFFERED. IN MY HUMBLE UNDERSTANDING, THE LEARNED CIT(A) HAS NOT CORRE CTLY APPRECIATED THESE FACTS. THE ASSESSEE HAS FURNISHED A COPY OF THE W RITTEN SUBMISSIONS WHICH WAS STATED TO BE FILED BEFORE THE L EARNED CIT(A). IT WAS PLEADED BEFORE HIM THAT NOTHING WAS FOUND CONCEAL ED FROM THE BOOKS OF ACCOUNT OF THE ASSESSEE. EVEN AFTER A SURVEY, N O PARTICULAR OF INCOME WAS DEDUCTED SO AS TO ALLEGE THAT THE ASSESS EE HAS EARNED INCOME WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUN T. IT WAS MERELY AN OFFER THAT TOO ON ESTIMATE BASIS. BANSI FOODS PVT. LTD. 4 5. NOW, BEFORE US, FEW DECISIONS APPLICABLE ON THE FACTS H AVE BEEN CITED NAMELY NARENDRA KUMAR V/S ITO, 94 TTJ 156 (SM C) (JODH.); AND CIT V/S CAFCO SYNDICATE SHIPPING CO., 294 ITR 134 (MAD.). 6. THE VIEW TAKEN IN THESE DECISIONS WERE THAT THERE W AS NO INDEPENDENT FINDING WHATSOEVER TO ESTABLISH THAT THE RE WAS A PARTICULAR DETECTION OF CONCEALED INCOME DUE TO WHICH AN OFFER W AS MADE BY THE ASSESSEE AT THE TIME OF SURVEY. MERE OFFER OF AN INCOME THAT TOO ON ESTIMATED BASIS WITHOUT HAVING ANY INCRIMINATING MA TERIAL ON RECORD SHALL NOT, IPSO FACTO, LEAD TO THE FINDING THAT THE ASS ESSEE HAD CONCEALED THE INCOME. THEREFORE, IN THE ABSENCE OF AN INDEPENDENT FINDING THAT THE PARTICULARS OF A SPECIFIC INCOME WAS CONCEALED B Y THE ASSESSEE, I HEREBY REVERSE THE FINDINGS OF THE LEARNED CIT(A) AND D IRECT TO DELETE THE PENALTY. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALL OWED. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER NAGPUR, DATED: 19 TH AUGUST 2015 BANSI FOODS PVT. LTD. 5 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR