Shri Govindbhai Joitaram Patel, Mehsana V. The Dy.CIT., Cent.Circle-1(3), Ahmedabad

ITA 193/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62997 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-09-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 20-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , . ! ' ,#$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT( S) 1. 193/AHD/2010 1998-99 SHRI GOVINDBHAI J.PATEL 56, SAHYOG SOCIETY PANCHVATI, KALOL MEHSANA PAN:ABIPP 7295 B DY.CIT CENTRAL CIRCLE-1(3) AHMEDABAD 2. 194/AHD/2010 1999-2000 -DO-ASSESSEE -DO-REVENUE 3. 195/AHD/2010 2000-01 ASSESSEE REVENUE 4. 196/AHD/2010 2001-02 ASSESSEE REVENUE 5. 197/AHD/2010 2002-03 ASSESSEE REVENUE 6. 198/AHD/2010 2003-04 ASSESSEE REVENUE ASSESSEE(S) BY : SHRI G.S.PATEL REVENUE BY : SHRI A.TIRKEY, SR.D.R. !& ' ($ / / / / DATE OF HEARING : 20/09/2012 * + ' ($ / DATE OF PRONOUNCEMENT : 28/09/12 #, / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE SIX APPEALS HAVE BEEN FILED BY THE ASSESSEE ARISING FROM THE CONSOLIDATED ORDER OF LD.CIT(APPEALS)-I, AHMEDABAD DATED 5.11.2009. THE MAIN CONTENTION WHICH WAS RAISED BY THE LD.COUN SEL FOR THE ASSESSEE IS IN RESPECT OF APPLICABILITY OF EXPLANATION-5 TO SECTION 271(1)(C) OF THE I.T.ACT. ITA NOS.193 TO 198/A HD/2010 SHRI GOVINDBHAI J.PATEL ASST.YEARS 1998-99 TO 2003-04 - 2 - 2. BRIEF FACTS AS PER CORRESPONDING PENALTY ORDER P ASSED U/S.271(1)(C) OF THE I.T.ACT FOR RESPECTIVE YEARS (ALL DATED 28/3 /2008) AND THE ASSESSMENT ORDER PASSED U/S.153A(B) OF THE I.T.ACT FOR RESPECTIVE YEARS DATED 24/3/2006 ARE THAT THE ASSESSEE WAS SEARCHED U/S.132 OF THE I.T.ACT ON 4.9.2003. 3. THE LD.AR INFORMED THAT A STATEMENT WAS RECORDED U/S.132(4) OF THE I.T.ACT AT THE TIME OF SEARCH. LD.AR MR.G.S.P ATEL ALSO INFORMED THAT FOR ALL THE YEARS INCOME-TAX RETURN WAS FILED DISCL OSING THE AMOUNT WHICH WAS OFFERED AT THE TIME OF SEARCH AND FINALLY AFTER SLIGHT VARIATIONS THE SAME WAS ASSESSED AS PER THE FOLLOWING FIGURES. ASST.YEAR INCOME RETURNED (RS.) INCOME FINALLY ASSESSED (RS.) INCOME CONCEALED AS PER A.O. (RS.) PENALTY LEVIED (RS. 1998-99 3,76,020 3,90,140 3,90,140 90,000 1999-00 1,36,440 1,40,550 1,40,550 14,360 2000-01 7,81,000 7,81,000 6,46,920 2,11,218 2001-02 2,42,030 2,42,800 47,930 16,620 2002-03 3,15,300 3,59,610 2,10,820 61,450 2003-04 3,73,800 3,81,940 3,81,940 85,320 3.1. LD.AR MR.G.S. PATEL HAS THUS CONCLUDED THAT SI NCE THE RETURNED INCOME WAS ALMOST ACCEPTED ON THOSE VERY FIGURES WH ICH WERE OFFERED AS PER STATEMENT U/S.132(4) OF THE I.T.ACT, THEREFORE IN THE LIGHT OF THE EXPLANATION-5 ANNEXED TO SECTION 271(1)(C), NO PENA LTY SHOULD HAVE BEEN LEVIED. ITA NOS.193 TO 198/A HD/2010 SHRI GOVINDBHAI J.PATEL ASST.YEARS 1998-99 TO 2003-04 - 3 - 4. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.A.TIRKEY APPEARED AND CONTESTED THAT THIS ASPECT HAS NOT BEEN PROPERLY ADDRESSED BEFORE THE AO BY THE LD.COUNSEL FOR THE ASSESSEE AND, THEREFORE, THE STATEMENT RECORDED U/S.132(4) REMAIN ED TO BE EXAMINED, HENCE THE ISSUE NOW RAKED UP SHOULD NOT BE ADJUDICA TED. RATHER, HE HAS SUPPORTED THE ORDERS OF THE REVENUE AUTHORITIES PAS SED ON THE GROUND THAT THE HIDDEN INCOME WAS UNEARTHED CONSEQUENT UPO N THE SEARCH, THEREFORE THE PENALTY WAS RIGHTLY LEVIED. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT THE ISSUE IS TO BE DECIDED IN THE LIGHT OF THE FOLLOWING JUDGEMENTS: (I) IN THE CASE OF CIT VS. MAHENDRA C.SHAH 299 ITR 305 (GUJ.) (II) IN THE CASE OF CIT VS. S.D.V.CHANDRU 266 ITR 175 ( MAD.) (III) IN THE CASE OF CIT VS. MISHRIMAL SONI 289 ITR 77 ( RAJ.) (IV) IN THE CASE OF CIT VS. KANHAIYALAL 299 ITR 19 (RAJ. ) (V) IN THE CASE OF DY.CIT VS. AVINASH CH.GUPTA (2010) 6 ITR 173 (KOL.TRIB) 5.1. WE HAVE ALSO NOTED THAT THE ASSESSEE HAS INFOR MED THE REVENUE DEPARTMENT IN COMPLIANCE NOTICE U/S.271(1)(C) THAT THE QUESTION OF LEVY OF PENALTY IS TO BE DECIDED IN THE LIGHT OF EXPLANA TION-5 AS IS EVIDENT FROM PARAGRAPH NO.5 OF THE SAID REPLY; REPRODUCED BELOW: - 5. WITHOUT PREJUDICE TO THE ABOVE I BEG TO DRAW Y OUR ATTENTION TO THE PROVISION OF SEC.132(4) R.W. EXPLANATION 5 TO S EC.271(1)(C) AS PER WHICH WHEN THE CONDITIONS LAID DOWN ARE FULFILL ED NO PENALTY CAN BE LEVIED. I BEG TO REFER MY STATEMENTS RECORD ED AT THE TIME OF SEARCH AND RETURN OF INCOME DECLARING THE INCOME AS STATED IN THE ITA NOS.193 TO 198/A HD/2010 SHRI GOVINDBHAI J.PATEL ASST.YEARS 1998-99 TO 2003-04 - 4 - STATEMENTS RECORDED AT THE TIME OF SEARCH, PAYMENTS OF TAX AND CO- OPERATION THROUGHOUT DURING SEARCH PROCEEDINGS AND ASSESSMENT PROCEEDINGS. AS I HAVE FULFILL ALL THE CONDITIONS, IT IS HUMBLY SUBMITTED THAT NO PENALTY CAN BE LEVIED U/S.271(1)( C) AS I AM COVERED UNDER THE IMMUNITY GRANTED VIDE THE PROVISI ONS OF I.T.ACT AND MORE PARTICULARLY THE SECTIONS ABOVE REFERRED. 6. WE HAVE CONSIDERED THE CASE LAWS AND THE RELEVAN T PROVISIONS OF EXPLANATION-5 TO SECTION 271(1)(C). AN EXPLANATION HAS BEEN PRESCRIBED IN THIS SECTION 271(1)(C) ACCORDING TO WHICH IF IN THE COURSE OF A SEARCH THE ASSESSEE MAKES A STATEMENT U/S.132(4) OF THE I. T.ACT IN RESPECT OF ANY MONEY; BULLION, JEWELLERY, ETC. WHICH IS FOUND IN H IS POSSESSION AND UNDER HIS CONTROL EXPRESSING HIS INTENTION TO DISCL OSE IN THE RETURN YET TO BE FURNISHED AS PER THE PROVISIONS OF SECTION 139(1 ) OF THE I.T.ACT AND IN THE SAID STATEMENT ALSO SPECIFIES THE MANNER IN WHI CH SUCH INCOME HAS BEEN DERIVED WITH AN UNDERTAKING TO PAY THE TAXES, THEN THE ASSESSEE IS TO BE TREATED AS OUT OF THE AMBITS OF THE PROVISIONS O F SECTION 271(1)(C) OF THE I.T.ACT. IN THE PRESENT CASE, ALTHOUGH THE AS SESSEE HAS TIME AND AGAIN RAISED THIS LEGAL ISSUE BEFORE THE REVENUE AU THORITIES, HOWEVER, IT WAS NOT ADJUDICATED. THE REVENUE DEPARTMENT HAS ON LY DECIDED THE ADMISSIBILITY OF LEVY OF PENALTY ON THE GROUND OF C ONCEALMENT DETECTED CONSEQUENT UPON THE SEARCH. SINCE THE OTHER LEGAL ASPECT WAS NOT CONSIDERED AND THE STATEMENT U/S.132(4) OF THE I.T. ACT IS YET TO BE EXAMINED, THEREFORE WE HEREBY RESTORE ALL THESE GRO UNDS BACK TO THE STAGE OF ASSESSING OFFICER WITH THE DIRECTION THAT IF THE CONTENTION IS FOUND CORRECT, THEN FOLLOWING THE AFORESAID DECISIONS, WH EREIN THE LAWS IS PRONOUNCED IN FAVOUR OF THE ASSESSEE, THESE PENALT IES SHOULD ALSO BE ITA NOS.193 TO 198/A HD/2010 SHRI GOVINDBHAI J.PATEL ASST.YEARS 1998-99 TO 2003-04 - 5 - DELETED. WITH THESE DIRECTIONS, GROUNDS RAISED ARE ALLOWED BUT FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ALL THE APPEALS ARE TREATED AS AL LOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- ( . ! ' ) ( ) #$ ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 28/ 09 /2012 -(..!, .!../ T.C. NAIR, SR. PS #, ' ./ 0#/+ #, ' ./ 0#/+ #, ' ./ 0#/+ #, ' ./ 0#/+/ COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. .312 / THE RESPONDENT 3. 4 / CONCERNED CIT 4. 4() / THE CIT(A)-I, AHMEDABAD 5. /78 .! , , / DR, ITAT, AHMEDABAD 6. 89 :& / GUARD FILE. #,! #,! #,! #,! / BY ORDER, 3/ . //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 21.9.12 (DICTATION-PAD 9 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.9.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 28.9.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.9.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER