K.Gandhi, Coimbatore V. ITO, Coimbatore

ITA 1674/CHNY/2012

• Counselvise Citation: 167421714 RSA 2012
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 28-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR STAND ING
• Assessee Lawyers: K RAGHU
• Keywords: Revised return
• Section: 133A; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.1674(MDS)/2012 ASSESSMENT YEAR : 2008-09 SHRI K.GANDHI, 214, PALANISAMY COLONY, COIMBATORE 641 001. PAN ACLPG0303R. VS. THE INCOME-TAX OFFICER, WARD III(3), COIMBATORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.RAGHU, C.A. RESPONDENT BY : SHRI KEB RENGARAJAN, JR.STAN DING COUNSEL DATE OF HEARING : 22 ND NOVEMBER, 2012 DATE OF PRONOUNCEMENT : 26 TH NOVEMBER, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE PRESIDENT THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-I AT COIMBATORE, DATED 21-6-2012 AND ARISES OUT OF THE P ENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE INCOME-TAX AC T, 1961. - - ITA 1674 OF 2012 2 2. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A TOTAL INCOME OF ` 4,55,430/-. AFTER THE FILING OF THE RETURN THERE WAS A SURVEY OPERATION UNDER SECTION 133A CARRIED O UT ON 12-2-2009. IN THE COURSE OF THE SURVEY OPERATIONS, CERTAIN DETAILS WERE COLLECTED FROM THE ASSESSEE AND FINALL Y THE ASSESSEE HAD AGREED TO OFFER ADDITIONAL INCOME BY W AY OF REVISED RETURN. ACCORDINGLY, THE ASSESSEE OFFERED AN ADDITIONAL INCOME OF ` 98,700/- FROM HOUSE PROPERTY AND ` 45 LAKHS AS INCOME FROM OTHER SOURCES. THESE ADDITIONAL INCOME S OFFERED BY THE ASSESSEE WERE ACCEPTED AND THE ASSESSMENT WAS ACCORDINGLY COMPLETED. 3. BUT THE ASSESSING OFFICER TREATED THE OFFERING OF ADDITIONAL INCOME AS A CASE OF CONCEALMENT AND LEVI ED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSING OFFICER HAS LEVIED A PENALTY OF ` 24,35,381/-. 4. IN FIRST APPEAL, THE PENALTY HAS BEEN CONFIRMED . IT IS AGAINST THE ABOVE THAT THE ASSESSEE HAS COME IN SEC OND APPEAL BEFORE US. 5. WE HEARD BOTH SIDES IN DETAIL. WHATEVER THE ASSESSEE HAD PROMISED IN THE COURSE OF SURVEY OPERA TIONS WERE - - ITA 1674 OF 2012 3 HONOURED BY THE ASSESSEE BY FILING A REVISED RETURN . ONLY FOR THE REASON THAT THERE WAS A SURVEY AND THAT THE ASSESSE E HAD OFFERED ADDITIONAL INCOME, PENALTY UNDER SECTION 27 1(1)(C) CANNOT BE LEVIED. LEVY OF PENALTY CANNOT BE MADE W ITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . 6. IN THE PRESENT CASE, THE ADDITIONAL INCOME OF ` 45 LAKHS OFFERED BY THE ASSESSEE RELATED TO THE IN VESTMENTS MADE BY HIM IN VARIOUS IMMOVABLE PROPERTIES. THE D ATES OF ACQUISITION OF ALL THE IMMOVABLE PROPERTIES ARE AVA ILABLE FROM THE DOCUMENTS. AS PER THE DOCUMENTS ALL THE IMMOVABLE PROPERTIES WERE ACQUIRED BY THE ASSESSEE PRIOR TO THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. IN T HAT CASE, AS RIGHTLY ARGUED BY THE LEARNED CHARTERED ACCOUNTANT APPEARING FOR THE ASSESSEE, THE INCOME ITSELF CANNOT BE ATTRIBUTE D TO THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. BUT, ANYHOW THAT OFFERING OF ADDITIONAL INCOME OF ` 45 LAKHS FOR THE IMPUGNED ASSESSMENT YEAR 2008-09 IS A CLOSED CH APTER, AS THE ASSESSEE HAS ALREADY OFFERED THE SAID INCOME FO R THE IMPUGNED ASSESSMENT YEAR AND PAID TAXES THEREON. B UT WHILE COMING TO THE QUESTION OF LEVY OF PENALTY, THIS LEG AL POSITION - - ITA 1674 OF 2012 4 CANNOT BE IGNORED. ALL THE INVESTMENTS WERE MADE I N EARLIER YEAR. THE INVESTMENTS DID NOT BELONG TO THE PREVIO US YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THER EFORE, IT IS OBVIOUS THAT FOR THE PURPOSE OF PENALTY, SUCH ADDIT IONAL INCOME CANNOT BE TREATED AS THE INCOME ATTRIBUTABLE TO THE IMPUGNED ASSESSMENT YEAR 2008-09. THEREFORE, THERE CANNOT B E A CASE OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME AS FAR AS THE ASSESSMENT YEAR 2008-09 IS CONCERNED. 7. AS SUCH WE FIND THAT LEVY OF PENALTY IN THE PRE SENT CASE IS NOT JUSTIFIED. THE PENALTY IS DELETED. ORDERS PRONOUNCED ON MONDAY, THE 26 TH OF NOVEMBER, 2012 AT CHENNAI. SD/- SD/- (S.S.GODARA) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 26 TH NOVEMBER, 2012. V.A.P. COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.