Divya Sthapatya, Dhangadhra V. The Income Tax Officer, Ward-3, Surendranagar

ITA 2220/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6089 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 27-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MEENAKSHI DOHRI
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2220 & 2221/AHD/2015 (ASSESSMENT YEAR: 2009-10 & 2010-11) DIVYA STHAPATYA 57, MAYURNAGAR, HALVAD ROAD, TALAV STREER, DHANGADHRA-363310 V/S INCOME TAX OFFICER, WARD- 3, SURENDRANAGAR (APPELLANT) (RESPONDENT) PAN: AABFD5598B APPELLANT BY : SMT. MEENAKSHI DOHRI, SR. D.R. RESPONDENT BY : SHRI PARIN SHAH, A.R. ( )/ ORDER DATE OF HEARING : 12 -02-201 8 DATE OF PRONOUNCEMENT : 20-02-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. ITA NOS. 2220 & 2221/AHD/2015 ARE TWO SEPARATE APPE ALS BY THE ASSESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CI T(A)-7, AHMEDABAD DATED 19.05.2015 PERTAINING TO A.Y. 2009-10 & 2010-11. ITA NOS. 222 0 & 2221/AHD/2015 . A.YS. 2009-1 0 & 2010-11 2 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISP OSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. WE WILL FIRST TAKE UP IN ITA NO. 2221/AHD/2015 PERT AINING TO A.Y. 2010- 11 . 3. THE ASSESSEE IS AGGRIEVED BY THE LEVY OF PENALTY OF RS. 6,34,184/- U/S. 271(1)(C) OF THE ACT. 4. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 28.03.2014 FRAMED U/S. 147 R.W.S. 144 OF THE ACT. IN THIS CASE , THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 22.09.2011 DECLARING TOTAL INCOME OF RS. 19,27,392/-. IN PURSUANCE TO SURVEY ACTION, A NOTICE U/S. 148 OF THE ACT DATED 01.03.2013 WAS ISSUED. IN PURSUANCE TO THE NOTICE, THE ASSESSE E STATED THAT THE RETURN OF INCOME FILED BY HIM U/S. 139(1) SHOULD BE TREATED A S RETURN FILED IN PURSUANCE TO NOTICE U/S. 148 OF THE ACT. THE DISCLOSURE OF RS . 25 LACS BY SHRI PRANSHANKAR SOMPURA WAS INCLUDED IN THE RETURNED INCOME. THE RE TURNED INCOME WAS ASSESSED AFTER MAKING A MINOR ADDITION ON ACCOUNT O F FALL IN GROSS PROFIT. 5. PENALTY PROCEEDINGS U/S. 271(1)(C) WERE SEPARATELY INITIATED. THE ASSESSEE WAS ASKED TO SHOW CAUSE WHY PENALTY SHOULD NOT BE LEVIE D ON THE AMOUNT DISCLOSED BY SHRI PRANSHANKAR SOMPURAL IN HIS STATEMENT RECOR DED AT THE TIME OF SURVEY OPERATIONS. IN ITS REPLY, THE ASSESSEE STATED THAT IT HAS OFFERED THE DISCLOSED AMOUNT IN ITS RETURN OF INCOME AND THE RETURNED INC OME HAS BEEN ASSESSED AS SUCH. THEREFORE, THERE IS NO CONCEALMENT OF ANY INC OME, NO PENALTY U/S. 271(1)(C) OF THE ACT SHOULD BE LEVIED. ITA NOS. 222 0 & 2221/AHD/2015 . A.YS. 2009-1 0 & 2010-11 3 6. THE CONTENTION OF THE ASSESSEE DID NOT FIND ANY FAV OUR WITH THE A.O. WHO PROCEEDED BY LEVYING PENALTY OF RS. 6,34,184/- WHIC H WAS CONFIRMED BY THE LD. CIT(A). BEFORE US, THE LD. COUNSEL FOR THE ASSESS EE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. PER CONTRA, TH E LD. D.R. STRONGLY SUPPORTED THE FINDINGS OF THE REVENUE AUTHORITIES. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. IN ITS RETURN OF INCOME FILED ON 22.09.2011, THE ASSESSEE HAS INCLUDED THE DISCLOSURE MADE BY SHRI PRANSHANKAR SOMPURA IN HIS STATEMENT RECORDED U/S. 133A ON 21.04.2010. THE RETURNED INCOME WAS AC CEPTED AS SUCH AFTER MAKING A MINOR ADDITION ON ACCOUNT OF LOW G.P. RATE . NOTICE U/S. 148 IS DATED 01.03.2013. THEREFORE, IT CANNOT BE SAID THAT THE A SSESSEE HAS INCLUDED CERTAIN INCOME IN THE RETURN FILED PURSUANCE TO THE NOTICE U/S. 148 OF THE ACT. MOREOVER, THE ASSESSEE DID NOT FILE ANY FRESH RETUR N BUT INSTEAD STATED THAT THE RETURN ALREADY FILED SHOULD BE TREATED AS FILED IN PURSUANCE TO THE NOTICE U/S. 148 OF THE ACT. 8. IN OUR UNDERSTANDING OF THE FACTS MENTIONED HEREINA BOVE, WE DO NOT FIND THIS TO BE A FIT CASE FOR THE LEVY OF PENALTY U/S. 271(1 )(C) OF THE ACT. WE ACCORDINGLY DIRECT THE A.O. TO DELETE THE PENALTY SO LEVIED. AP PEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO. 2220/AHD/2015 PERTAINING TO A.Y. 2009-10 9. THE ASSESSEE IS AGGRIEVED BY THE LEVY OF PENALTY U/ S. 271(1)(C) OF THE ACT. THE FACTS OF THE YEAR UNDER CONSIDERATION ARE SIMILAR T O THE FACTS OF A.Y. 2010-11 (SUPRA). THE ONLY DISTINGUISHABLE AND GLARING DIFFE RENCE RELATES TO THE TIME OF ITA NOS. 222 0 & 2221/AHD/2015 . A.YS. 2009-1 0 & 2010-11 4 FILING OF RETURN IN WHICH THE ASSESSEE HAS INCLUDED THE INCOME OFFERED BY SHRI PRANSHANKAR SOMPURA IN HIS STATEMENT RECORDED AT TH E TIME OF SURVEY. 10. NOTICE U/S. 148 IS DATED 12.12.202 AND THE ASSESSEE FILED RETURN OF INCOME ON 11.01.2013 WHICH MEANS THAT THE INCOME OFFERED FOR TAXATION AT THE TIME OF SURVEY WAS NOT DISCLOSED BY THE ASSESSEE PRIOR TO T HE ISSUANCE OF NOTICE U/S. 148 OF THE ACT. 11. THE REASONING GIVEN BY US FOR DELETING THE LEVY OF PENALTY IN A.Y. 2010-11 (SUPRA) WILL JUSTIFY THE LEVY OF PENALTY IN A.Y. 20 09-10. THE LEVY OF PENALTY THIS YEAR IS JUSTIFIED AND UPHELD. THIS APPEAL IS ACCORD INGLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 20 - 02- 20 18 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 20 /02/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD