The ACIT, Central Circle 1, Baroda V. Shri Rajendra I. Patel, Anand

ITA 2055/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9409 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 07-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA.NO.2055/AHD/2013 / ASSTT. YEAR: 2010-2011 ACIT, CENT.CIR.1 BARODA. VS SHRI RAJENDRA I. PATEL BRIJESH VINUKAKA MARG BAKROL-LAMBHEL ROAD VALLABH VIDYANAGAR ANAND. PAN : AETPP 5550 K. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI G.C. DAXINI, SR.DR ASSESSEE BY : MS. URVASHI SHODHAN, AR / DATE OF HEARING : 07/12/2016 / DATE OF PRONOUNCEMENT: 27/01/2017 $%/ O R D E R THIS IS REVENUES APPEAL. THE SOLE GROUND RAISED IN THE APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENAL TY IN A COMBINED ORDER OF RS.14,19,627/- FOR A.Y.2010-11 LEVIED U/S. 271AAA OF THE I.T.ACT, DESPITE ASSESSEE HAVING NOT SATISFIED THE CONDITIONS MENTIONED IN CLAUSE (I) & (III) OF SECT6ION 271AAA(2) OF THE ACT. 2. THE LD.DR HAS RELIED UPON THE ORDER OF THE AO. 3. THE LD.COUNSEL FOR THE ASSESSEE CONTENDS THAT TH E LD.CIT(A) HAS DELETED PENALTY BY FOLLOWING OBSERVATIONS: IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINIO N THAT SO FAR AS THE MANNER OF EARNING THE INCOME AND SUBSTANTIATING THE SAME IS CONCERNED, THE APPELLANT HAS, IN MY VIEW, HOT SPECI FIED THE MANNER OF EARNING THE UNDISCLOSED INCOME AS WELL AS SUBSTANTI ATED THE --SAME ITA NO.2055/AHD/2013 2 SINCE NO QUESTION AS REGARDS SPECIFICATION OF MANNE R OF EARNING THE UNDISCLOSED INCOME AND SUBSTANTIATION THEREOF WAS P UT FORTH IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE APPELLANT HAS FAILED TO RESPOND TO ANY OF THE QUESTIONS RELATING TO THE MANNER OF EARNING UNDISCLOSED INCOM E AS THE SAME EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN VIE W OF THIS, THE APPELLANT IS DEEMED TO HAVE FULFILLED THE FIRST TWO CONDITIONS FOR AVAILING OF IMMUNITY FROM PROCEEDINGS U/S 271AAA OF THE ACT. THERE IS NO DISPUTE ABOUT THE THIRD CONDITION APPELLANT HAS PAID TAX WITH INTEREST ON THE UNDISCLOSED INCOME. THUS, THE APPELLANT FULF ILLED ALL THE CONDITIONS REQUIRED FOR IMMUNITY FROM LEVY OF PENAL TY U/S 271AAA OF THE ACT 6.6 IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OP INION THAT THE APPELLANT IS ELIGIBLE FOR IMMUNITY FROM PENALTY U/S 271 AAA OF THE ACT AND, THEREFORE, PENALTY LEVIED BY THE AO OF RS.86,0 00/- AND RS. 14,19,627/- FOR A.YS. 2009-10 AND 2010-11 RESPECTIV ELY IS HEREBY CANCELLED. 4. THE LD.COUNSEL FOR THE ASSESSEE CONTENDS THAT IT HAS NOT BEEN DISPUTED THAT NO QUESTIONS WERE ASKED BY THE DEPARTMENT TO S UBSTANTIATE THE INCOME. IN THE ABSENCE OF ANY QUESTIONS BEING ASKED IN THIS BE HALF, NO INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE THAT THE ASSESSEE IS FAI LED TO DISCHARGE HIS BURDEN. RELIANCE IS PLACED ON ITAT, AHMEDABADS DECISION IN THE CASE OF ACIT VS. DWARKADAS P. PATEL (HUF) IN ITA NO.2059/AHD/2013 IN WHICH ON SIMILAR FACTS AND CIRCUMSTANCES NO QUESTIONS WERE ASKED BY THE DEPARTMENT BY FOLLOWING OBSERVATIONS: 4.1 SINCE THE ID. CIT(A) HAS REFERRED TO THE ENTIR E MATERIAL ON RECORD, INCLUDING THE STATEMENT OF THE ASSESSEE AND THE REL IEF HAS BEEN GRANTED BY RELYING ON HON'BLE GUJARAT HIGH COURT JUDGMENT I N THE CASE OF MAHENDRA C. SHAH (SUPRA), THERE IS NO INFIRMITY IN THE ORDER OF THE ID. CIT(A). 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE ID. CIT(A) HAS RECORDED CLEAR FINDING OF FACTS THAT DUR ING THE COURSE OF SEARCH ITSELF THE ASSESSEE HAD ACCEPTED THE ABOVE U NDISCLOSED INCOME AND EXPLAINED THE SOURCE THEREOF TO BE BUSINESS OPE RATIONS OF THE ITA NO.2055/AHD/2013 3 ASSESSEE. NO FURTHER QUESTIONS WERE ASKED FROM THE ASSESSEE AND IT IS CLEAR FROM QUESTION AND ANSWER NO.10 OF HIS STATEME NT AT PAPER-BOOK PAGE NO.44. IN VIEW THEREOF, I SEE NO INFIRMITY IN THE ORDER OF ID. CIT(A) IN DELETING THE PENALTY RELYING ON HON'BLE G UJARAT HIGH COURT JUDGMENT IN THE CASE OF MAHENDRA C. SHAH (SUPRA) AN D THE ORDER OF THE ID. CIT(A) IS ACCORDINGLY UPHELD. 6. IN THE RESULT, APPEAL OF THE REVENUE IS D ISMISSED. 5. FURTHER RELIANCE WAS PLACED ON THE DECISIONS IN THE CASE OF DCIT VS. SMT. SULOCHANADEVI A. AGARWAL IN ITA NO.1052/AHD/20 12 AND ITO VS. SHILPA V. GUPTA IN ITA NOS.1784/AHD/2012 & CO NO.17 9/AHD/2012 AND HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. SIDHNATH GOEL, 359 ITR 481 (ALL) 6. I HAVE HEARD RIVAL CONTENTIONS. IT IS AN INSTAN CE WHERE NO QUESTIONS WERE ASKED BY THE AO TO THE ASSESSEE TO SUBSTANTIAT E THE INCOME. IN THE ABSENCE OF ANY QUESTIONS, IT CANNOT BE HELD THAT NO INFERENCE CAN BE DRAWN THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE DETAIL S OF INCOME. THUS, THE CONCLUSION DRAWN BY THE AO IS WITHOUT ANY BASIS IN THIS BEHALF. THE LD.CIT(A) HAS RIGHTLY OBSERVED PERTINENT FACTS AND DELETED THE IMPUGNED PENALTY. THE VIEW TAKEN BY THE LD.CIT(A) FINDS SUP PORT FROM THE ITATS ORDER AND HONBLE ALLAHABAD HIGH COURT ORDERS (SUPR A). IN VIEW THEREOF, WE SEE NO INFIRMITY IN THE ORDER OF THE LD.CIT(A) DELE TING THE PENALTY, AND ACCORDINGLY HIS ORDER IS CONFIRMED. 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON 27 TH JANUARY, 2017 AT AHMEDABAD. SD/- (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 27 /01/2017