RENU KUMAR JAIN, BEAWAR V. DCIT, Ajmer

ITA 208/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99330 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 01-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHANMUGA PRIYA
• Assessee Lawyers: MUKESH AGARWAL
• Keywords: Initiation of penalty proceedings; Assessment record
• Section: 153A; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 208 & 209/JP/2013 AND 444 & 445/JP /2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2002-03 TO 2005-06 SHRI RENU KUMAR JAIN PROP. M/S MECHANIZATION(INDIA) 5,VINOD NAGAR, BEAWAR. CUKE VS. THE DCIT, CENTRAL CIRCLE, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABXPJ 5953 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MUKESH AGARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SRI SHANMUGA PRIYA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/02/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/04/2018 VKNS'K@ ORDER PER BENCH: THESE ARE FOUR APPEALS BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDERS DATED 13.12.2012 & 28.03.2016 OF CIT (A) FOR THE ASSESSMENT YEARS 2002-03 TO 2005-06 RESPECTIVELY. THE ASSESSEE HAS RAISED THE COMMON GROUNDS IN THESE APPEALS. THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2002-03 ARE REPRODUCED AS UNDER:- ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 2 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF RS. 3,96,800/- LEVIED U/S 271(1)(C) IGNO RING THE FACTS, EVIDENCES AND SUBMISSIONS PLACED ON RECORD. THUS, T HE PENALTY SO IMPOSED SHOULD BE DELETED. 2. THE APPELLANT CRAVES THE LEAVE TO ADD, SUBSTITUT E, MODIFY, DELETE OR AMEND ALL OR ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 2. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUND A LONG WITH APPLICATION FOR ADMISSION OF ADDITIONAL GROUND IN A LL FOUR APPEALS. THE ADDITION GROUND RAISED BY THE ASSESSEE IS COMMON IN ALL THE APPEALS HENCE, THE ADDITIONAL GROUND RAISED FOR THE ASSESSM ENT YEAR 2002-03 IS REPRODUCED AS UNDER:- THE LD. CIT(APPEALS) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 496000/- U/S 271(1)(C) EVEN WHEN THE ASSESSEE WAS NOT APPRISED OF THE SPECIFIC CHARGE F OR ITS LEVY, I.E., WHETHER IT WAS FOR CONCEALMENT OF INCOME OR FURN ISHING OF INACCURATE PARTICULARS IN THE PENALTY NOTICE AND N OT EVEN IN THE ASSESSMENT ORDER. THUS, THE PENALTY SO LEVIED SHOUL D BE DELETED. 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR O N ADMISSION OF THE ADDITIONAL GROUND WHEREBY THE ASSESSEE HAS CHAL LENGED THE VALIDITY OF NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) FOR WANT OF SPECIFYING THE DEFAULT WHETHER CONCEALMENT OF INCOME OR FURNISHING INACCURATE ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 3 PARTICULARS OF INCOME. THE LD. AR OF THE ASSESSEE H AS SUBMITTED THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS LEGAL I N NATURE AND GOES TO THE ROOT OF THE MATTER. FURTHER, FOR ADJUDICATION O F THE ADDITIONAL GROUND NO FRESH INVESTIGATION OF FACT IS REQUIRED EXCEPT T HOSE ALREADY ON RECORD. THUS, THE LD. AR HAS ALSO SUBMITTED THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF NTPC VS. CIT 229 ITR 383 THE TRIBUNAL MAY ADMIT THE ADDITIONAL GROUND WHICH IS L EGAL IN NATURE AND ARISING FROM THE FACTS WHICH ARE ON RECORD OF THE A SSESSMENT PROCEEDINGS. THE LD. AR HAS RELIED UPON THE VARIOUS DECISIONS ON THIS POINT AND SUBMITTED THAT THE ADDITIONAL GROUND RAIS ED BY THE ASSESSEE MAY BE ADMITTED FOR ADJUDICATION ON MERITS. 4. ON THE OTHER HANDS, THE LD. DR HAS RAISED STRONG OBJECTION AGAINST THE ADMISSION OF ADDITIONAL GROUND AND SUBM ITTED THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE AO IN THE PENALTY PROCEEDINGS AS WELL AS BY THE LD. CIT(A) IN THE FIR ST APPELLATE PROCEEDINGS BUT THE ASSESSEE DID NOT RAISE SUCH OBJ ECTION AGAINST THE VALIDITY OF NOTICE ISSUED U/S 274 OF THE ACT. THE L D. DR HAS FURTHER CONTENDED THAT IN THE ABSENCE OF DISCLOSING A REASO NABLE CAUSE WHICH HAS PREVENTED THE ASSESSEE FROM RAISING SUCH GROUND BEFORE THE ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 4 AUTHORITIES BELOW THE ADDITIONAL GROUND RAISE AT TH IS STAGE CANNOT BE ACCEPTED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ADDITIONAL GRO UND WHICH IS COMMON FOR ALL THESE FOUR APPEALS RAISED BY THE ASS ESSEE IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER. FURTH ER, SINCE THE NOTICE ISSUED U/S 274 R.W.S. 271 OF THE ACT FOR INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IN ALL THESE CASES IS IDEN TICAL AND THE REVENUE HAS NOT DISPUTED THE ALLEGED DEFECT IN THE NOTICE THAT THE AO HAS NOT SPECIFIED IN THE NOTICE THAT THE PENALTY PROCEEDIN GS U/S 271(1)(C) OF THE ACT HAS BEEN INITIATED FOR CONCEALMENT OF INCOM E OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THUS, IN THE FACT S AND CIRCUMSTANCES OF THE CASE WHEN THE ADDITIONAL GROUND RAISED BY TH E ASSESSEE DOES NOT REQUIRE ANY INVESTIGATION OF FACTS FOR ITS ADJUDICA TION AND RELEVANT RECORD AND FACTS ARE AVAILABLE ON THE ASSESSMENT RECORD TH EN, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN CASE OF NTPC V S. CIT (SUPRA) THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ADMITTE D FOR ADJUDICATION ON MERITS. 6. ON MERITS OF THE ADDITIONAL GROUND THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE NOTICE ISSUED U/S 274 HAS NOT SPECIFIED THE ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 5 CHARGE FOR LEVY OF PENALTY WHETHER IT WAS CONCEALME NT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME THEN TH E SAID NOTICE SUFFERS FROM ILLEGALITY AND THEREFORE, IN VIEW OF THE DECIS ION OF HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY 359 ITR 565 THE ORDER PASSED BY THE AO U/S 271(1)(C) OF THE ACT IS NOT SUSTAINABLE IN LAW AND LIABLE TO BE QUASHED. THE LD. AR HAS ALSO RELIED UPON THE DECISION OF HON BLE SUPREME COURT IN CASE OF CIT VS. SSAS EMERALD MEADOWS 242 TAXMAN 150 WHEREIN THE HONBLE SUPREME COURT HAS DISMISSED THE SLP FILED BY THE REVENUE AND THEREFORE, THE DECISION OF HONBLE KARN ATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTO RY (SUPRA) WAS UPHELD. THUS, THE LD. AR HAS CONTENDED THAT THE NO TICE ISSUED U/S 274 R.W.S. 271 OF THE ACT WAS BAD IN LAW AND THEREFORE, CONSEQUENTIAL PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS ALSO BAD IN LAW. 7. ON THE OTHER HANDS, THE LD. DR HAS SUBMITTED THA T IN THIS CASE THERE WAS SEARCH U/S 132 OF THE ACT WHEREIN THE FAT HER OF THE ASSESSEE ADMITTED THAT THE ASSESSEE HAS ADVANCED RS. 12 LACS TO SHRI PREMJI MEHTA OUT OF HIS UNDISCLOSED INCOME. FURTHER, AS PE R SEIZED MATERIAL THE TRANSACTIONS WERE ALSO DULY FOUND RECORDED AT PAGE 43 OF ANNEXURE A-5 HOWEVER, IN THE RETURN OF INCOME FILED U/S 153A OF THE ACT THE ASSESSEE ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 6 DID NOT DISCLOSE THIS INCOME. THE ASSESSEE SURRENDE RED THIS AMOUNT BEFORE THE SETTLEMENT COMMISSION U/S 245D OF THE AC T HOWEVER, THE APPLICATION SUBMITTED BY THE ASSESSEE STAND ABATED IN TERMS OF SECTION 245HA(2) OF THE ACT. THEREFORE, THE ASSESSING OFFIC ER WAS DUTY BOUND TO ASSESS THE SAID INCOME SURRENDERED BY THE ASSESS EE. THE ASSESSEE HAS CONSEQUENTLY SURRENDERED THIS AMOUNT AND WAS AD DED TO THE TOTAL INCOME OF THE ASSESSEE. THUS, THE LD. DR HAS SUBMIT TED THAT THIS IS NOT A CASE OF ADDITION MADE BY THE AO BY THE ASSESSEE H IMSELF HAD SURRENDERED THIS INCOME BEING UNDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, THE AO WAS NOT REQUIRED TO SPECIFY THE C HARGE FOR INITIATION OF PENALTY PROCEEDINGS WHEN THE ASSESSEE HIMSELF SU RRENDERED THIS AMOUNT AS UNDISCLOSED INCOME. THE LD. DR HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO QUARREL ON THE POIN T THAT IF THE PENALTY PROCEEDINGS WERE INITIATED BY THE AO IN RESPECT OF THE ADDITION MADE TO BE TOTAL INCOME OF THE ASSESSEE THEN THE AO IS REQU IRED TO SPECIFIED THE CHARGE/DEFAULT ON THE PART OF THE ASSESSEE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT WHETHER IT WAS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THO UGH, IN THE CASE IN ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 7 HAND ALL THE FACTS WERE ALREADY ON RECORD OF ASSESS MENT PROCEEDINGS HOWEVER, THE SAME WERE NOT AVAILABLE BEFORE US PART ICULARLY THE STATEMENT RECORDED U/S 132(4), THE SEIZED MATERIAL AS WELL AS ALLEGED SURRENDERED MADE BY THE ASSESSEE BEFORE THE SETTLEM ENT COMMISSION AND CONSEQUENT SURRENDER IN THE ASSESSMENT PROCEEDI NGS. SINCE, THESE FACTS ARE RELEVANT FOR DECIDING THE ISSUE WHETHER T HE PENALTY HAS BEEN LEVIED BY THE AO ON THE SUM WHICH WAS SURRENDERED B Y THE ASSESSEE OR AGAINST THE ADDITION MADE BY THE AO. THE ASSESSEE H AS RAISED THIS ISSUE FIRST TIME BEFORE THIS TRIBUNAL AND IN THE ABSENCE OF THE SAID ISSUE RAISED BEFORE THE AUTHORITIES BELOW THE RELEVANT FACTS THO UGH AVAILABLE ON THE ASSESSMENT RECORD WERE NOT REFERRED IN THE IMPUGNED ORDERS BY THE AUTHORITIES BELOW. EVEN THIS ADDITIONAL GROUND WAS PREFERRED BY THE ASSESSEE AT THE LAST MOVEMENT AND THEREFORE, NEITHE R THE ASSESSEE NOR THE REVENUE HAS PRODUCED THOSE FACTS AND RECORD BEF ORE US. HENCE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CA SE, WE SET ASIDE THESE APPEALS TO THE RECORD OF THE LD. CIT(A) FOR C ONSIDERING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE WHICH HAS BEEN ADMITTED BY US FOR ADJUDICATION ON MERITS IN LIGHT OF THE RELEV ANT FACTS AS WELL AS THE LEGAL PRECEDENT AS RELIED BY THE ASSESSEE. THE OTHE R GROUNDS RAISED BY THE ASSESSEE ARE KEPT OPEN. ITA NO. 208 & 209/JP/2013 AND 444 &445/JP/2016 SHRI RENU KUMAR JAIN VS. DCIT 8 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/04/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/04/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RENU KUMAR JAIN, BEAWAR. 2. IZR;FKHZ@ THE RESPONDENT - DCIT, CENTRAL CIRCLE, AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 208 & 209/JP/2013 AND 444 & 445/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR