The ITO, Ward-2(4), Surat V. Smt. Nirupaben S.Modi, Surat

ITA 2174/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6327 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Keywords: Revised return
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) ITA NO.2174/AHD/2009 [ASSTT. YEAR : 2005-2006] INCOME TAX OFFICER WARD-2(4) SURAT. VS. SMT. NIRUPABEN S. MODI PROP. OF MODI TEX PLOT NO.6510/9, GIDC SACHIN, DIST. SURAT. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ALBINUS TIRKEY ASSESSEE BY : NONE O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THIS IS REVENUES APPEAL AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, SURAT DATED 31.03.2009 FOR A.Y.2005-2 006 ARISING OUT OF THE ORDER OF THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE IS AGAINST THE DELETION OF PENALTY OF RS.3,60,499/- LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSEE FILED RETURN OF INCOME ON 27.10.2005 DECLA RING TOTAL INCOME AT RS.1,17,530/-. THE ASSESSEE FURNISHED THE REVISED RETURN ON 26.09.2006 DECLARING TOTAL INCOME OF RS.11,88,530/-. NOTICE U NDER SECTION 143(2) WAS ISSUED ON 18.10.2006 AND SERVED UPON THE ASSESS EE ON 19.10.2006. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) O N 22.10.2007 AT RS.12,00,855/-. THE AO LEVIED PENALTY UNDER SECTIO N 271(1)(C) ONLY ON THE GROUND THAT THE REVISED RETURN WAS NOT FILED VO LUNTARILY IN BONA FIDE ITA NO.2174/AHD/2009 -2- MANNER. THE CIT(A) CANCELLED THE PENALTY, HENCE TH IS APPEAL BY THE REVENUE. 4. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MAT ERIAL PLACED BEFORE US INCLUDING THE WRITTEN SUBMISSIONS FILED B Y THE ASSESSEE. WE FIND THAT THE REVISED RETURN WAS FURNISHED ON 26-9- 2006 WHILE NOTICE UNDER SECTION 143(2) WAS ISSUED ON 18.10.2006. THU S, THE REVISED RETURN WAS FURNISHED EVEN BEFORE THE ISSUE OF NOTICE UNDER SECTION 143(2). THE REVISED RETURN WAS FURNISHED WITHIN THE TIME LIMIT PRESCRIBED UNDER SECTION 139(5) FOR FILING OF THE REVISED RETURN. TH EREFORE, ADMITTEDLY, THE REVISED RETURN WAS A VALID REVISED RETURN. THE AO HAS LEVIED PENALTY ON THE GROUND THAT THE REVISED RETURN WAS NOT VOLUNTAR Y AND WAS NOT FILED IN BONA FIDE MANNER. WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE AO. IN THE PENALTY ORDER, HE HAS NOT POINTED OUT ANY CIRCU MSTANCES BY WHICH IT CAN BE SAID THAT THE REVISED RETURN WAS NOT VOLUNTA RY. THE ASSESSEE HAD FURNISHED THE REVISED RETURN EVEN BEFORE THE REVENU E HAS INITIATED THE ASSESSMENT PROCEEDINGS. ASSESSED INCOME IS ALMOST SAME AS THE INCOME DECLARED IN THE REVISED RETURN. CONSIDERING TOTALI TY OF THE ABOVE CASE, WE ARE OF THE OPINION THAT THE ASSESSEE FURNISHED THE REVISED RETURN VOLUNTARILY BEFORE THE DEDUCTION OF ANY CONCEALMENT BY THE REVENUE. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF THE CIT(A ) AND DISMISS THE APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON 24 TH JUNE, 2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT