The ACIT, Central Circle-2, Surat V. Shri Anilbhai Bhikhabhai Shah, Surat

ITA 1816/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63154 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 28-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J P SHAH A R SHRI T SHANKAR

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , ! '#, $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 1816/AHD/2010 2007-08 THE ASST.CIT CENTRAL CIRCLE- 2 SURAT SHRI ANILBHAI BHIKHUBHAI SHAH ARIHANT BUNGLOWS STATION ROAD VYARA, SURAT PAN:AEDPS0363R 2. 1817/AHD/2010 2007-08 -DO- SHRI ASHOKBHAI BHIKHUBHAI SHAH 101, AMIZARA APARTMENTS NR.SURAT TENNIS CLUB ATHWALINES, SURAT PAN:AFSPS3208P 3. 1818/AHD/2010 2007-08 -DO- SHRI MANISHBHAI CHHOTABHAI SHAH MATRU ASHISH NR.KULDIP STORES MAIN BAZAR, VYARA DIST : TAPI PAN:AGUPS7941N ASSESSEE(S) BY : SHRI J.P.SHAH, A.R. REVENUE BY : SHRI T.SHANKAR SR.D.R. !' ( % / / / / DATE OF HEARING : 31/10/2012 *+, ( % / DATE OF PRONOUNCEMENT : 23.11.12 $- / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : ALL THESE APPEALS OF THE REVENUE HAVE IDENTICAL I SSUE PERTAINING TO THE DELETION OF PENALTY LEVIED U/S.271(1)(C) BY CIT(A)- II, AHMEDABAD DATED 04/03/2010 BY RESPECTIVE THREE ORDERS ALL DATED 4.3 .2010. SINCE THE ISSUE ITA NOS.1816, 1 817 & 1818/AHD/2010 (BY REVENUE) ASST.YEAR 2007-08 - 2 - INVOLVED IS IDENTICAL, THEREFORE THESE APPEALS ARE CONSOLIDATED AND HEREBY DECIDED BY A COMMON ORDER. 2. A SEARCH U/S.132 WAS CONDUCTED IN THIS GROUP OF CASES ON 15.11.2006. WE HAVE NOTED FROM THE CORRESPONDING ASSESSMENT ORD ER IDENTICALLY PASSED IN ALL THESE THREE CASES U/S.143(3) RESPECTIVELY DAT ED 29.12.2008 THAT THE RETURNED INCOME WAS ACCEPTED BY THE AO. THE POSITION IS A S UNDER:- NAME OF THE ASSESSEE(S) INCOME DECLARED AS PER RETURN (RS.) INCOME ASSESSED AS PER ASST.ORDER (RS.) ANILBHAI BHIKHUBHAI SHAH 1,03,98,709/- 1,03,98,709/- ASHOKBHAI BHIKHUBHAI SHAH 80,48,030/- 80,48,030/- MANISHBHAI CHHOTABHAI SHAH 75,73,890/- 75,73,890/- 2.1. BEFORE THE AO, IT WAS CONTESTED THAT THE DISCL OSURE WAS IN RESPECT OF THE GROUP TOTALLING TO RS.2.25 CRORES AND RESPECTIVELY IT WAS DECLARED IN EACH HAND. THE DISCLOSED AMOUNT WAS MADE AT THE TIME OF SEARCH WHICH WAS THEREAFTER SUO MOTU TAXED AS PER THE RETURN. HENCE THE PRELIMINARY CO NTENTION WAS THAT THE DISCLOSED AMOUNT WAS DECLARED AS PER THE RETURN AND THEREON TAXES WERE PAID WHICH WAS ACCEPTED BY THE AO AS PER THE ASSESSMENT ORDER, THEREFORE IN THE LIGHT OF EXPLANATION-5 BELOW TO SECTION 271(1)(C) S INCE THE DISCLOSURE HAS BEEN MADE U/S.132(4) OF IT ACT, THEREFORE NO PENALTY SHO ULD BE LEVIED. HOWEVER, THE AO WAS NOT CONVINCED AND LEVIED THE PENALTY IN THESE CASES RESPECTIVELY OF RS.33,60,390/-, RS.16,49,940/- AND RS.20,13,990/-. 3. IN RESPECT OF APPLICABILITY OF THE PROVISIONS OF EXPLANATION-5, THE ASSESSEE HAS MADE THE SUBMISSION BEFORE LD.CIT(A) A S FOLLOWS:- ITA NOS.1816, 1 817 & 1818/AHD/2010 (BY REVENUE) ASST.YEAR 2007-08 - 3 - (II) FROM THE ABOVE FACTS AND EVIDENCES, YOUR HON OUR WOULD FIND THAT THE APPELLANT HAD ALSO SUBMITTED THE DETAILS OF MAN NER OF EARNING OF INCOMES DISCLOSED DURING THE SEARCH BEFORE THE SEAR CH OFFICER. (III) WHILE FILING THE RETURN OF INCOME, THE APPEL LANT HAD ALREADY INCLUDED THE ABOVE DISCLOSED INCOME IN HIS RETURN O F INCOME AND HAD ALSO PAID DUE TAX WITH INTERESTS THEREON BEFORE FIL ING THE RETURN OF INCOME FOR THE CONCERNED ASSESSMENT YEAR 2007-08. THERE IS NO ADDITION MADE IN THE APPELLANTS CASE BY THE ASSESS ING OFFICER AND THAT SINCE THE APPELLANT HAD ALREADY PAID DUE TAX AND IN TERESTS ON THE TOTAL INCOME RETURNED BY HIM INCLUDING THE DISCLOSED INCO ME OF RS.1 CRORE, THE TAX AND INTERESTS PAYABLE IN THE APPELLANTS CA SE ON THE DATE OF PASSING OF THE ASSESSMENT ORDER WORKED OUT TO RS.NI L. AS ALL THE ABOVE CONDITIONS ARE DULY FULFILLED, THE RE IS ABSOLUTELY NO JUSTIFICATION ON THE PART OF THE A.O. FOR LEVYING C ONCEALMENT PENALTY U/SEC. 271(1)(C) OF THE ACT. 3.1. BEING SATISFIED WITH THE CONTENTION OF THE ASS ESSEE, LD.CIT(A) HAS ALLOWED THE APPEAL AND DELETED THE PENALTY IN THE F OLLOWING MANNER:- 3. I HAVE CONSIDERED THE FACTS AND THE SUBMISSION S. I FIND THAT THE APPELLANT HAS MADE DISCLOSURE OF RS.1,00,00,000/- D URING THE COURSE OF SEARCH IN THE STATEMENT RECORDED U/S.132(4) OF THE I.T.ACT AND ALSO GIVE THE BREAK UP OF THE DISCLOSURE DURING THE SEARCH IT SELF. THE SAME AMOUNT WAS OFFERED IN THE RETURN OF INCOME FILED AN D ALSO THE TAX WAS PAID BEFORE FILING THE RETURN OF INCOME. HENCE, AL L THE CONDITIONS ARE SATISFIED UNDER CLAUSE (2) OF EXPLANATION 5 TO SECT ION 271(1)(C) OF THE I.T.ACT. HENCE, THE APPELLANT IS ENTITLED FOR EXEM PTION/IMMUNITY AND PENALTY IS NTO LEVIABLE UNDER EXPLANATION 5 TO SECT ION 271(1)(C) OF THE I.T.ACT. IN VIEW OF THESE FACTS AND THE CASE LAWS RELIED ON BY THE APPELLANT, IT IS HELD THAT THE ASSESSING OFFICER WA S NOT JUSTIFIED IN LEVYING THE PENALTY. ACCORDINGLY, THE PENALTY IS D ELETED. 4. NOW BEFORE US, DECISIONS CITED BY LD.AR ARE AS FOLL OWS:- (I) ASST.CIT VS. GEBILAL KANHAIALAL HUF [2012]2 10 210 TAXMANNN 244/25 214 (SC) (II) CIT VS. MAHENDRA C.SHAH (299 ITR 305) ITA NOS.1816, 1 817 & 1818/AHD/2010 (BY REVENUE) ASST.YEAR 2007-08 - 4 - 5. ON HEARING BOTH THE SIDES AND CONSIDERING THE TO TALITY OF THE FACTS OF THESE CASES, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE IS COVERED BY THE AFORECITED DECISION OF HONBLE GUJARAT HIGH COURT, WHEREIN IT WAS HELD THAT HAVING MADE A DECLARATION U/S.132(4) OF IT ACT AND HAVING PAID THE TAXES THEREON AND THEN THE RETURNED INCOME WAS ACCEPTED B Y THE AO, RESULTANTLY THE ASSESSEE HAD FULFILLED ALL THE CONDITIONS FOR AVAIL ING THE BENEFIT OF IMMUNITY AGAINST LEVY OF PENALTY AS PRESCRIBED UNDER EXPLANA TION-5 TO SECTION 271(1)(C) OF IT ACT. WE THEREFORE HOLD THAT THE CANCELLATION OF PENALTY BY LD.CIT(A) WAS A CORRECT VIEW, HENCE THE SAME IS HEREBY APPROVED. GROUND(S) RAISED IN THIS REGARD BY THE REVENUE DEPARTMENT IS HEREBY DISMISSE D. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE REVE NUE ARE DISMISSED. SD/- SD/- ( ! '# ) ( ) $% ( ANIL CHATURVEDI ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23 /11 /2012 ...!, .!../ T.C. NAIR, SR. PS $- $- $- $- ( 01 2$1, ( 01 2$1, ( 01 2$1, ( 01 2$1,/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 0534 / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-AHMEDABAD 5. 19: 0! , , / DR, ITAT, AHMEDABAD 6. : ;' / GUARD FILE. $-! $-! $-! $-! / BY ORDER, 51 0 //TRUE COPY// < <<