The ITO, Ward-10(3), Ahmedabad V. Shilpa M.Gupta, Ahmedabad

ITA 1784/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63197 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-12-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 1784/AHD/2012 ASSESSMENT YEAR :2009-10 & C.O. NO. 179/AHD/2012 ASSESSMENT YEAR :2009-10 INCOME TAX OFFICER, WARD 10(3), AHMEDABAD SHILPA V GUPTA 8, PRATIMA SOCIETY, NR. DADASAHEB PAGLA NAVRANGPURA, AHMADABAD- 380009 V/S . V/S. SHILPA V GUPTA 8, PRATIMA SOCIETY, NR. DADASAHEB PAGLA NAVRANGPURA, AHMADABAD- 380009 INCOME TAX OFFICER, WARD 10(3), AHMEDABAD PAN NO. ACAPG8168K (APPELLANT) .. (RESPONDENT) BY REVENUE SHRI Y. P. VERMA, SR.D.R. /BY ASSESSEE MS. URVASHI SHODHAN, A.R. /DATE OF HEARING 06.12.2012 /DATE OF PRONOUNCEMENT 14.12.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE AND C.O. OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF CIT(A )-I, AHMEDABAD, ORDER ITA NO. 1784/AHD/12 & C.O. NO.179/AHD/12 A.Y. 09-10 PAGE 2 DATED 11.06.2012 FOR ASSESSMENT YEAR 2009-2010 AGAI NST THE DELETION OF PENALTY OF RS.9,50,000/- U/S. 271AAA OF THE IT ACT. AS THE MATTER IS HEARD TOGETHER AND ISSUE AS WELL AS YEAR OF DISPUTE IS SA ME. THEREFORE WE PASS COMMON ORDER FOR BOTH. 2. THE LD. A.O. OBSERVED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE MADE A DISCLOSURE OF RS.95 LACS IN THE RET URN OF INCOME IN RESPECT OF UNEXPLAINED JEWELLERY, UNEXPLAINED CASH AND ON-MONE Y PAYMENT FOR AKOLA LAND. THEREFORE, PENALTY PROCEEDING U/S.271AAA IS INITIATED IN RESPECT OF UNDISCLOSED INCOME OF RS.95 LACS. THE LD. A.O. BEF ORE IMPOSING PENALTY U/S.271AAA ISSUED SHOW CAUSE NOTICE ON 29.12.2010 A ND 18.05.2011 WHICH WAS REPLIED BY THE APPELLANT ON 06.06.2011. THE AS SESSEES REPLY WAS CONSIDERED WHICH WAS NOT FOUND CONVINCING TO HIM DU E TO THE SEARCH AND SEIZURE OPERATION WAS CARRIED OUT U/S.132 OF THE IT ACT IN CASE OF GUJARAT AMBUJA GROUP ON 01.09.2008 AND SUBSEQUENT DATES. T HE WARRANT OF AUTHORIZATION U/S. 132 WAS ISSUED IN THE NAME OF AS SESSEE. THE ASSESSEE FILED RETURN OF INCOME ON 30.09.2009 DECLARED TOTAL INCOME AT RS.1,34,49,090/-. THE ASSESSEE MADE A DISCLOSURE O F RS.95 LACS IN THE RETURN OF INCOME FOR A.Y. 09-10 IN RESPECT OF UNEXPLAINED JEWELLERY, UNEXPLAINED CASH AND ON-MONEY PAYMENT FOR AKOLA LAND. FURTHER, IT W AS HELD THAT A LUMP SUM DISCLOSURE WAS MADE BY SHRI VIJAY KUMAR GUPTA (FATH ER-IN-LAW OF THE ASSESSEE) IN HIS STATEMENT U/S.132(4) OF THE IT ACT RECORDED ON 26/27.09.2008. MOREOVER, SHRI VIJAY KUMAR GUPTA DI D NOT SPECIFY ASSESSEE- ITA NO. 1784/AHD/12 & C.O. NO.179/AHD/12 A.Y. 09-10 PAGE 3 WISE BREAK-UP IN HIS STATEMENT. THE SUB-SECTION 2 OF SECTION 271AAA WAS NOT APPLIED, IF THE ASSESSEE, IN STATEMENT U/S.132(4) O F THE ACT RECORDED DURING THE COURSE OF SEARCH, ADMITS THE DISCLOSED INCOME, SPEC IFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED, ALSO SUBSTANTIATES TH E MANNER IN WHICH THE UNDISCLOSED INCOME HAS DERIVED AND PAYS THE TAX, TO GETHER WITH INTEREST, IN RESPECT OF UNDISCLOSED INCOME. AS PER A.O., IN THE PRESENT CASE, NONE OF THE ABOVE CONDITIONS FOR NON APPLICABILITY OF PROVISION S OF SECTION 271 AAA (1) OF THE ACT ARE SATISFIED. THE LUMP SUM DISCLOSURE MAD E BY SHRI VIJAY KUMAR GUPTA ON BEHALF OF ALL FAMILY MEMBERS DOES NOT AMOU NT TO ADMISSION OF DISCLOSURE IN THE CASE OF ASSESSEE. HE ALSO CONSID ERED THE CASE LAW CITED BY THE APPELLANT BEFORE THE HIM. FINALLY, HE IMPOSED PENALTY AT 10% OF UNDISCLOSED INCOME ACCORDINGLY AT RS.9,85,000/-. 3. BEING AGGRIEVED BY THE PENALTY ORDER OF THE A.O. , THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD DELETED THE PE NALTY BY OBSERVING AS UNDER: THE AO DID NOT FOLLOW THE PROVISIONS OF SECTION 2 71AA, WHERE SUB-SECTION(2) OF SECTION 271AAA BARS THE AO FROM I MPOSING PENALTY WHERE TIME IS AVAILABLE FOR FILING OF RETURN WITH R ESPECT TO INCOME DISCLOSED DURING SEARCH, THE MANNER OF EARNING WHIC H HAS BEEN SPECIFIED AND TAXES HAVE BEEN PAID ON SUCH INCOME. ALL THE AFOREMENTIONED CONDITIONS AVAILABLE U/S.271AAA TO T HE APPELLANT, HAVE BEEN FULFILLED INCLUDING THE PAYMENT OF TAXES AND I N THIS BACKGROUND, THE PENALTY OF RS.9,50,000 IS DIRECTED TO BE DELETED. ITA NO. 1784/AHD/12 & C.O. NO.179/AHD/12 A.Y. 09-10 PAGE 4 4. NOW THE REVENUE AS WELL AS ASSESSEE CARRIED THE MATTER BEFORE US. LD. SR. D.R. VEHEMENTLY RELIED UPON THE ORDER OF TH E A.O. AND CONTENDED THAT THE DISCLOSURE MADE BY FATHER-IN-LAW IN CASE OF ASS ESSEE AND MANNER HAS BEEN SHOWN AT THE TIME OF SEARCH AS SPECULATIVE BUS INESS WHEREAS IN RETURN DISCLOSURE WAS MADE ON ACCOUNT OF UNEXPLAINED JEWEL LERY, UNEXPLAINED CASH AND ON-MONEY PAYMENT OF AKOLA LAND. THUS, HE REQUE STED TO CONFIRM THE PENALTY IMPOSED BY THE A.O. AND REVERSE THE ORDER O F CIT(A). FROM THE SIDE OF APPELLANT, MS. URVASHI SHODHAN, LD. COUNSEL FOR THE APPELLANT VEHEMENTLY ARGUED THAT THE APPELLANT HAD FULFILLED ALL THE CON DITION PRESCRIBED IN SECTION 271AAA OF THE IT ACT. THE ASSESSEE HAS MADE DISCLO SURE PAID THE TAX WITH INTEREST AND SPECIFIED MANNER OF INCOME. THEREFORE , NO SUCH PENALTY IS REQUIRED TO BE IMPOSED BY THE A.O. SHE ALSO RELIED UPON CO-ORDINATE A BENCH DECISION IN CASE OF THE DCIT, CENT. CIR-3 VS. SMT. SULOCHANADEVI A. AGARWAL IN ITA NO. 1052/AHD/2012 FOR A.Y. 2009-10, WHEREIN THE FACTS OF THE CASE ARE IDENTICAL AND HONBLE A BENCH HAS DELETE D THE PENALTY IN THIS CASE. THEREFORE, SHE PRAYED TO CONFIRM THE ORDER OF CIT(A ). 5. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE CO-ORDINATE A BE NCH DECISION IN CASE OF SMT. SULOCHANADEVI A. AGARWAL (SUPRA), WHEREIN THE CO-ORDINATE A BENCH HELD AS UNDER: 7. WE HAVE HEARD THE SUBMISSIONS OF THE REVENUE AN D CAREFULLY PERUSED THE MATERIALS ON RECORD. THE LEARNED CIT(A) HAD DELETED THE PENALTY DUE TO THE FOLLOWING REASONS: ITA NO. 1784/AHD/12 & C.O. NO.179/AHD/12 A.Y. 09-10 PAGE 5 (1) THE ASSESSEE HAD VOLUNTARILY DISCLOSED THE SUM OF RS.50,00,000/- DURING THE SEARCH PROCEEDINGS WITH R EQUEST THAT NO PENALTY SHOULD BE LEVIED IN RESPECT OF SUCH DISCLOSURE. (2) DURING THE POST SEARCH PROCEEDINGS NO SPECIFIC QUESTION AS REGARDS MANNER OF EARNING OF UNDISCLOSED INCOME OR SUBSTANTIATION THEREOF WAS PUT FORTH BY THE REVENUE . (3) THE ASSESSEE HAD ALSO PAID DUE TAX FOR THE UN DISCLOSED INCOME OF RS.50,00,000/- DECLARED VOLUNTARILY. (4) IN THE DECISION RENDERED BY THE JURISDICT IONAL HIGH COURT OF GUJARAT IN THE CASE OF CIT VS MAHENDRA C. SHAH (200 8) 299 ITR 305 (GUJ) IT WAS HELD THAT WHEN UNDISCLOSED INCOME ADMITTED BY THE ASSESSEE HAS BEEN OFFERED FO R TAX IN THE RETURN OF INCOME AND THE TAX THEREOF DULY PA ID, PENALTY CANNOT BE LEVIED, SPECIFICALLY, IN THE ABSE NCE OF ANY QUESTION IN THIS RESPECT BY THE AO. AT THIS JUNCTURE, WE MUST ADMIT THAT THE REASONS PO INTED OUT BY THE LEARNED CIT(A) ARE JUSTIFIABLE FOR DELETING THE PEN ALTY LEVIED BY THE LEARNED AO U/S 271 AAA OF THE ACT. THEREFORE, WE D O NOT FIND ANY HESITATION TO CONFIRM THE ORDER OF THE LEARNED CIT( A). THE ASSESSEE MADE DISCLOSURE OF RS.95 LACS DURING T HE COURSE OF SEARCH WHICH HAS BEEN ACCEPTED BY THE LD. A.O. DURING THE ASSESSMENT PROCEEDING. NO QUERY REGARDING MANNER OF INCOME DERIVED, HAD BE EN RAISED BY THE A.O. LD. CIT(A) HAD CERTIFIED THAT ALL THE TAX INCLUDING INTEREST HAD BEEN PAID BY THE APPELLANT. THEREFORE, WE DO NOT FIND ANY REASON TO INTERVENE IN THE ORDER OF THE CIT(A). THUS, THE APPEAL OF THE REVENUE IS DI SMISSED & C.O. OF THE ASSESSEE IS ALLOWED. ITA NO. 1784/AHD/12 & C.O. NO.179/AHD/12 A.Y. 09-10 PAGE 6 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED & ASSESSEES C.O. IS ALLOWED. THESE ORDERS PRONOUNCED IN OPEN COURT ON 14.12.2012 SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. '#$ / APPELLANT 2. &'#$ / RESPONDENT 3. )*)+ ' ', / CONCERNED CIT 4. ' ',- ' / CIT (A) 5. 01'' +, ' ''' +, 34 * / DR, ITAT, AHMEDABAD 6. 167 89 / GUARD FILE. BY ORDER/ , :/3' )' ' ''' +, 34 * < STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07.12.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07.12.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 14.12.2012 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 14.12.2012