The Deputy Commissioner of Income Tax, Central Circle, Belagavi., Belagavi V. M/s Volga Dresses, Gulbarga., Gulbarga

ITA 202/PAN/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7492 (ITAT-PANAJI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIRAJ Y V LD
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K.BANSAL, HON'BLE ACCOUNTANT MEMBER SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 2 01 & 202 /P AN /201 6 (ASST. YEAR : 20 13 14 , 2014 15 ) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE SHRADDHA BUILDING SARAF COLONY KHANAPUR ROAD TILAKWADI BELAGAVI V. M/S VOLGA DRESSES PLOT NO.19, NAMOSHI BUILDING, SUPER MARKET, MAIN ROAD GULBARGA KARNATAKA STATE PAN NO. AABFV 2733 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRA THIBHA R. ADVOCATE DEPARTMENT BY : SHRI RAVIRAJ Y.V . LD. DR DATE OF HEARING : 2 7 /03/2017 . DATE OF PRONOUNCEMENT : 27/03/2017 . O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER 1 . THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (A) 2, PANAJI IN APPEAL NO ITA.NO.205/C I T(A) - 2/PNJ/2015 16 DATED 10.08.2016 FOR THE ASSESSMENT YEAR 2013 14 AND ITA.NO.206/CIT(A) - 2/PNJ/2015 16 DATED 10.08.2016 FOR THE ASSESSMENT YEAR 201 4 15. 2 . SHRI RAVIRAJ Y.V. REPRESENTED ON BEHALF OF THE REVENUE AND SHRI PRATHIBA R, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3 . AT THE TIME OF HEARING THE LEARN ED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE WAS A SEARCH CARRIED ON 18.0 7 .2013 IN THE CASE OF M/S. HYDERABAD KARNATAK EDUCATION SOCIETY (HEREINAFTER IN SHORT 2 ITA NOS. 20 1 & 202 /PNJ/201 6 M/S VOLGA DRESSES HKES) AND THE RESIDENCE OF SHRI SHASHIL G. NAMOSHI WHO WAS ONE OF THE TRUSTEE OF M/S HK ES AS ALSO PARTNE R IN THE ASSESSEE FIRM. IT WAS SUBMISSION THAT IN THE COURSE OF THE SEARCH AT THE RESIDENCE OF SHRI SHASHIL G. NAMOSHI CASH TO AN EXTENT OF . 2,86,50 , 000/ - WAS FOUND WHICH WAS EXPLAINED BY HIM AS BELONGING TO THE ASSESSEE FIRM. 4 . SURVEY WAS ALSO CONDUCTED ON THE PREMISES OF THE ASSESSEE FIRM. NOTICE UNDER SECTION 153C C AME TO BE ISSUED ON THE ASSESSEE FIRM AND THE ASSESSEE HAD FILED HIS RETURN DECLARING AMOUNT IN ITS RETURN. THE ASSESSMENTS CAME TO BE COMPLETED ACCEPTING THE AMOUNT DECLARED IN THE RETURN. IT WAS SUBMISSION THAT PENALTY UNDER SECTION 271AAB CAME TO BE PASSED IMPOSING PENALITY ON THE ASSESSEE FIRM . IT WAS SUBMISSION THAT ON APPEAL THE LEARNED CIT(A) DELETED THE LEVY OF PENAL TY HOLDING THAT THE S EARCH WAS NOT AT THE PREMISES OF THE ASSESSEE FIRM BUT ON THE RESIDENTIAL PREMISES OF THE PARTNE R OF THE ASSESSEE FIRM AND PENALTY UNDER SECTION 271AAB COULD NOT BE LEVIED UNLESS THERE IS A SEARCH UNDER SECTION 132 OF THE ACT ON THE AS SESS EE FIRM. IT WAS SUBMISSION THAT THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE REVERSED. 5 . IN REPLY LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT(A). 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE PROVISIONS OF SECTION 271AAB SHOWS THAT THE OPENING WORDS ARE PENALTY WHERE SEARCH HAS BEEN INITIATED A PERUSAL OF THE PROVISIONS UNDER SECTION 271AAB ALSO TALKS OF THE ASSESSEE DECLAR ING ANY UN DISCLOSED INCOME IN THE COURSE OF THE SEARCH IN THE STATEMENT UNDER SECTION 132 (4) . ADMITTEDLY IN THE PRESENT CASE , THAT IS IN THE CASE OF THE ASSESSEE FIRM IN APPEAL THERE HAS BEEN NO SEARCH. SEARCH ADMITTEDLY IS ON THE RESIDENCE OF ONE OF THE PARTNER O F THE ASSE SS EE FIRM. FURTHER A PERUSAL OF THE ORDER OF THE LEARNED CIT(A) ALSO CLEARLY SHOWS THAT THE LEARNED CIT(A) HAS CANCELLED THE PENALTY ON THE GROUND T HAT THERE WAS 3 ITA NOS. 20 1 & 202 /PNJ/201 6 M/S VOLGA DRESSES NO SEARCH IN THE CASE OF THE ASSESSEE FIRM. THE REVENUE HAS NOT BEEN ABLE TO POINT OUT AS TO HOW THIS FINDING OF THE LEARNED CIT(A) IS ERRONEOUS. THIS BEING SO THE FINDING OF T HE LEARNED CIT(A) ON THIS ISSUE STANDS CONFIRMED. 7 . IN THE RESULT THE APPEAL S FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON MONDAY , THE 27 TH DAY OF MARCH, 2017 AT GOA. SD/ - SD/ - (P.K.BANSAL) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27 TH MARCH, 2017. VSSGB / - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A), 5 . THE D.R. 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI