Shri Pankaj Somabhai Prajapati, Ahmedabad V. The ACIT, Central Circle 2(2), Ahmedabad

ITA 2149/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0455 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 12-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA
• Assessee Lawyers: PF JAIN
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2149/AHD/2013 / ASSESSMENT YEAR : 2010-11 PANKAJ SOMABHAI PRAJAPATI, PROP. OF AAI SHRI KHODIYAR BRICKS, KHODAL BHUVAN, KHODIYAR KRUPA BUNGALOW, NEW VADAJ, AHMEDABAD PAN : AIOPP 0311 K VS ACIT, CENTRAL CIRCLE 2(2), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.F. JAIN, AR REVENUE BY : SHRI ADITYA SHUKLA, SR DR / DATE OF HEARING : 12/07/2016 / DATE OF PRONOUNCEMENT: 29/09/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, AHMEDABAD DATED 24.06.2013 FOR AY 2010-11, CONFIRMING PENALTY OF RS.67,000/- I MPOSED BY THE AO U/S. 271AAA OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT). 2. BRIEF FACTS ARE IN ASSESSEES CASE, INCRIMINAT ING MATERIAL IN THE FORM OF LOOSE PAPER SHOWING UNDISCLOSED INTEREST INCOME OF RS.6,70,000/- WAS FOUND. THE SAID UNDISCLOSED INCOME WAS ADDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ADDITION WAS ADMITTED BY THE ASSESSEE. PENALTY PROCEEDINGS U/S 271AAA WERE INITIATED, WHER E THE ASSESSEE CONTENDED THAT IT WAS A DUMP PAPER AND THE ADDITION WAS ACCEPTED IN ORDER TO CO-OPERATE WITH THE DEPARTMENT AND TO AVOID LITI GATION. THE LD. AO, HOWEVER, IMPOSED THE PENALTY. AGGRIEVED, THE ASSES SEE PREFERRED FIRST APPEAL, WHEREIN THE LD. CIT(A) OBSERVED THAT THE AS SESSEE HAD HIMSELF ACCEPTED THAT THE UNRECORDED SUMS WERE ADVANCED BY HIM AND INTEREST THEREFROM WAS NOT OFFERED TO TAX; THEREFORE, THE AS SESSEES CASE WAS COVERED SMC-ITA NO. 2149/AHD/2013 PANKAJ SOMABHAI PRAJAPATI VS ACIT AY : 2010-11 2 U/S 271AAA OF THE ACT AND THE PENALTY WAS CONFIRMED . LD. CIT(A), WHILE CONFIRMING THE PENALTY, RELIED ON THE FOLLOWING JUD GMENTS:- (I) SURESH CHANDRA MITTAL, 251 ITR 9 (SC), (II) RAJ KUMAR CHOURASIYA VS. CIT, 288 ITR 329 (III) ZOOM COMMUNICATIONS PVT LTD, 327 ITR 510 (DELHI) 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE ARGUMENTS AND RELIED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN TH E CASE OF TARABEN RAMANBHAI PATEL AND ANOTHER VS. ITO IN S.C.A. NO.73 06 OF 1988, REPORTED IN (1995) 215 ITR 323 (GUJ.). 4. THE LD. DR, ON THE OTHER HAND, CONTENDS THAT IT CLEARLY EMERGES FROM THE RECORD THAT THE ASSESSEE HAD ADVANCED UNRECORDE D AMOUNT ON WHICH INTEREST WAS EARNED WHICH WAS NOT OFFERED IN THE RE TURN OF INCOME. THE ADDITION HAS BEEN ACCEPTED BY THE ASSESSEE. THERE IS NO SUBSTANCE IN THE PLEA THAT THE ADDITION WAS ACCEPTED IN ORDER TO CO- OPERATE WITH THE DEPARTMENT AND TO AVOID LITIGATION. IT WAS ONLY BEC AUSE OF THE SEARCH THAT THE INCRIMINATING MATERIAL CAME INTO THE POSSESSION OF THE DEPARTMENT. FURTHER, RELIANCE IS PLACED ON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD. VS. CIT, REPORTED (2013) 3 58 ITR 593, FOR THE PROPOSITION THAT PENALTY IS CIVIL LIABILITY AND ASS ESSEES OWN ADMISSION CONSTITUTES ADMISSION OF LIABILITY. THE FACTS IN T HE CASE OF TARABEN RAMANBHAI PATEL (SUPRA) ARE TOTALLY DIFFERENT, AS I N THAT CASE IT WAS IN THE CONTEXT OF SECTION 271(1)(A) AND NOT SECTION 271AAA . 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. FROM THE RECORD, IT CLEARLY EMERGES THAT THE ASSESSEE HAS EA RNED UNACCOUNTED INTEREST INCOME WHICH WAS NOT OFFERED IN THE INCOME-TAX RETU RN. THEREFORE, I SEE NO INFIRMITY IN THE ORDER OF LD. CIT(A) IN CONFIRMING THE PENALTY. RESPECTFULLY SMC-ITA NO. 2149/AHD/2013 PANKAJ SOMABHAI PRAJAPATI VS ACIT AY : 2010-11 3 FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD. (SUPRA), THE PENALTY IS CONFIRMED AND THE A SSESSEES APPEAL IS DISMISSED. 6. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 29 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 29/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD