DCIT, UDAIPUR V. Sh. Chandresh Kumar Maheshwari, RAJSAMAND

ITA 179/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5250 (ITAT-JODHPUR)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L MOURYA
• Keywords: Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.179/JODH/2015 ASSESSMENT YEAR: 2009-10 THE DY. COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-2, 3 RD FLOOR, MOOMAL TOWER 16, SAHELI MARG, UDAIPUR 313001 VS. SH. CHANDRESH KUMAR MAHESHWARI, PROP. UDAIPUR ASBESTOS & MINERALS, CHARBHUJA ROAD, AMET, RAJSAMAND PAN : AGQMP4731L APPELLANT RESPONDENT REVENUE BY SHRI S. L. MOURYA, D.R. APPELLANT BY NONE DATE OF HEARING: 15.03.2016 DATE OF PRONOUNCEMENT: 15.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (A-2), UDAIPUR PASSED IN APPEAL NO.ITA 800/2013 -14 DATED 03-03-2015 FOR ASSESSMENT YEAR 2009-10 AGAINST THE DELETION OF PENALTY LEVIED U/S 271AAA OF THE IT ACT. 2. SHRI S. L. MOURYA LEARNED DR REPRESENTED ON BEHA LF OF THE REVENUE AND NONE REPRESENTED ON BEHALF OF THE ASSESSEE. THE LEARNED AR OF THE ASSESSEE HAS SOUGHT FOR ADJOURNMENT ON THE GROUND T HAT SOME DETAILS NEED 2 ITA NO.179/JODH/2015 TO BE COLLECTED FROM THE ASSESSEE. HOWEVER, AS THE REASONS ARE NOT FOUND TO BE SPECIFIC THE ADJOURNMENT APPLICATION IS REJECTED AND THE APPEAL IS DISPOSED OF. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THERE W AS A SEARCH AND SEIZURE OPERATION ON THE ASSESSEE ON 03-10-2008. AS A CONSEQUENCE OF THE SEARCH THE ASSESSMENT CAME TO BE COMPLETED U/S 143( 3) OF THE ACT READ WITH SECTION 153A, WHEREIN THE RETURNED INCOME WAS ACCEP TED. IT WAS A SUBMISSION THAT PENALTY U/S 271AAA HAD BEEN LEVIED. IT WAS A SUBMISSION THAT THE LEARNED CIT (A) DELETED THE PENALTY LEVIED ON THE GROUND THAT NO QUERY HAS BEEN RAISED IN THE STATEMENT RECORDED U/S 132 (4) OF THE ACT REGARDING THE MANNER IN WHICH THE UNDISCLOSED INCOM E HAS BEEN DERIVED AND ABOUT ITS SUBSTANTIATION. IT WAS A SUBMISSION THAT AS THE ASSESSEE HAD NOT SPECIFIED THE MANNER IN WHICH THE UNDISCLOSED INCOM E HAD BEEN DERIVED, THE PENALTY U/S 271AAA WAS LEVIABLE. IT WAS A SUBMISSIO N THAT THE ORDER OF THE LEARNED CIT (A) WAS LIABLE TO BE REVERSED. 4. WE HAVE CONSIDERED THE SUBMISSIONS. ADMITTEDLY, A STATEMENT RECORDED U/S 132 (4) OF THE ACT IS THE PRIMARY STAT EMENT WHEREIN THE ASSESSEE CAN DISCLOSED THE UNDISCLOSED INCOME AS AL SO THE SOURCE AND THE AVAILABILITY OF ITS APPLICATION. THE STATEMENT U/S 132 (4) OF THE ACT IS IN THE FORM OF A QUESTION AND ANSWER. IF A QUESTION IS NOT SPECIFICALLY PUT TO THE ASSESSEE THE ASSESSEE WOULD NEVER BE ABLE TO MAKE A NY SUBMISSION IN THE 3 ITA NO.179/JODH/2015 STATEMENT RECORDED U/S 132 (4) OF THE ACT. FURTHER, IN THE COURSE OF A SEARCH THE ASSESSEE WOULD BE UNDER PRESSURE AND HE WOULD B E PERTURBED AND DISTURBED. AN ASSESSEE NEED NOT KNOW THE FINER NUAN CES OF THE INCOME TAX ACT. CONSEQUENTLY, THE ASSESSEE WOULD BE UNABLE TO GIVE THE DETAILS. THE NON-RECORDING OF STATEMENT IN RESPECT OF THE MANNER BY WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND ABOUT ITS S UBSTANTIATION BY THE SEARCH AUTHORITY CANNOT BE USED AS A GROUND FOR DEN YING THE ASSESSEE THE BENEFIT OF NON-LEVY OF PENALTY U/S 271AAA OF THE AC T. THIS BEING SO, WE ARE OF THE VIEW THAT CANCELLATION OF PENALTY BY THE LEARNE D CIT (A) IS ON RIGHT FOOTING AND DOES NOT CALLED FOR ANY INTERFERENCE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 15 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY 4 ITA NO.179/JODH/2015 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 15.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 16.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 16.03.16 SR.PS 6. DATE OF PRONOUNCEMENT 15.03.16 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER