M/s. Shreeji Darshanam Developers, Baroda V. The Dy.CIT, Central Circle-2, Baroda

ITA 2242/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8194 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 05-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Question of law; Non-deduction of tax
• Section: 271(1)(c)

Judgement Text

ITA NO. 2242/AHD/2014 SHREEJI DARSHANAM DEVELOPERS V/S. DCIT ASSESSMENT YEAR: 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] ITA NO. 2242/AHD/2014 ASSESSMENT YEAR: 2011-12 SHREEJI DARSHANAM DEVELOPERS ............... ...APPELLANT 3 RD FLOOR, PLATINUM COMPLEX, OPP. GANGA JAMNA HOSPITAL, SUBHANPURA, BARODA-390023 [PAN : ABPFS 2971 Q] VS. DY. COMMISSIONER OF INCOME-TAX ...........................RESPONDENT CENTRAL CIRCLE-2, BARODA APPEARANCES BY: MUKUND BAKSHI, FOR THE APPELLANT SK DEV, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 31.12.2018 DATE OF PRONOUNCING THE ORDER : 31.12.2018 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 22 ND MAY 2014 PASSED BY THE CIT(A)-IV, AHMEDABAD, IN TH E MATTER OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME-TA X ACT, 1961, FOR THE ASSESSMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-V I, BARODA HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) ON AN AMOUNT OF RS.95,63,056/- BEING THE ADDITIONAL INCOME DECLA RED ON ACCOUNT OF SUPPRESSION OF CONSTRUCTION RECEIPTS BY SHRI DILIP H. AGRAWAL, ONE OF THE KEY PERSONS MANAGING THE BUSINESS AFFAIRS OF THE DARSHA NAM GROUP WHILE RECORDING THE STATEMENT U/S 131(1)(A) OF THE ACT ON 08/02/2011 AND OFFERED FOR TAXATION IN THE RETURN OF INCOME FILED U/S 139(1) A ND THE AMOUNT AS DECLARED IN THE RETURN OF INCOME FILED IS REPRESENT THE UNDISCL OSED INCOME AND HOLDING THAT SUCH AMOUNT IS THE CONCEALED INCOME. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-VI , BARODA HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS.29,54,985/- U/S. 271(1)(C) IN COMPLETE DISREGARD THE FACTS AND THE L AW AND HENCE IS PRAYED TO BE CANCELLED. ITA NO. 2242/AHD/2014 SHREEJI DARSHANAM DEVELOPERS V/S. DCIT ASSESSMENT YEAR: 2011-12 PAGE 2 OF 3 2. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS ARE REQUIRED TO BE TAKEN NOTE OF. THE ASSESSEE WAS SUBJECTED TO SEARC H AND SEIZURE OPERATIONS ON 25.10.2010. IN THE STATEMENT RECORDED ON OATH, THE ASSESSEE ADMITTED TO, INTER ALIA, SUPPRESSION OF CONSTRUCTION RECEIPTS OF RS.95,63,05 6 IN RESPECT OF THIS ASSESSMENT YEAR. THE RETURN WAS FILED ON 24.09.2011 WHEREIN T HE RELATED INCOME WAS INCLUDED. THE ASSESSING OFFICER NEVERTHELESS IMPOSED PENALTY UNDER SECTION 271(1)(C) AND OBSERVED THAT IT IS OBVIOUS THAT HAD NO SEARCH TAKEN PLACE, THE A PPELLANT WOULD HAVE CONTINUED TO EVADE TAXES ON SUCH TAXABLE INCOME . AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 4. LEARNED REPRESENTATIVES AGREE THAT THE ISSUE IN APPEAL IS COVERED BY HONBLE JURISDICTIONAL HIGH COURTS JUDGEMENT IN THE CASE O F PCIT VS. VALIBHAI KHANBHAI MANKAD (TAX APPEAL NO. 445 OF 2015; JUDGMENT DATED 07.09.2015) WHEREIN HONBLE COURT HAS OBSERVED AS FOLLOWS:- 5. FROM THE FINDINGS RECORDED BY THE TRIBUNAL, IT IS EVIDENT THAT THE FACTUM OF DELETION OF ADDITION IN RESPECT OF NON-DEDUCTION OF TAX BY THE ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE. THE TRIBUNAL HAS F URTHER FOUND THAT THE PENALTY HAD BEEN LEVIED ON THE AMOUNT WHICH WAS REF LECTED IN THE ORIGINAL RETURN AS INCOME. THAT IT WAS AN UNDISPUTED FACT TH AT THE ASSESSEE HAD DECLARED THIS INCOME IN HIS ORIGINAL RETURN OF INCO ME, ALTHOUGH IT WAS A BELATED RETURN. THE TRIBUNAL WAS OF THE VIEW THAT AS PER TH E PROVISIONS OF SECTION 271(1)(C) OF THE ACT, PENALTY CAN BE IMPOSED IF THE ASSESSEE HAD CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURA TE PARTICULARS OF SUCH INCOME. THAT IN THE PRESENT CASE, THERE WAS NO DISP UTE WITH REGARD TO THE FACT THAT THE PARTICULARS OF INCOME WERE REFLECTED IN TH E RETURN OF INCOME. MOREOVER, IT WAS NOT THE CASE OF THE REVENUE THAT T HE RETURNS OF INCOME FILED WERE INVALID AND IN FACT, THE ASSESSING OFFICER HAD PROCEEDED ON THE BASIS OF THE RETURN FILED BY THE ASSESSEE AND PARTICULARS FU RNISHED THEREIN. FROM THE FINDINGS RECORDED BY THE TRIBUNAL, IT IS EVIDENT TH AT THE TRIBUNAL HAS FOUND AS A MATTER OF FACT THAT THERE WAS NO CONCEALMENT OF PAR TICULARS OF INCOME ON THE PART OF THE RESPONDENT ASSESSEE AND IN FACT, THE AS SESSING OFFICER HAD PROCEEDED ON THE BASIS OF THE RETURN FILED BY THE A SSESSEE AND PARTICULARS FURNISHED THEREIN. UNDER THE CIRCUMSTANCES, IN THE ABSENCE OF ANY CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISH ING OF INACCURATE PARTICULARS OF INCOME ON THE PART OF THE ASSESSEE, NO INFIRMITY CAN BE FOUND IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL IN CONFIR MING THE ORDER PASSED BY THE COMMISSIONER (APPEALS) IN DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN THE ABSENCE OF ANY INFIRMITY IN THE IMP UGNED ORDER PASSED BY THE TRIBUNAL, IT IS NOT POSSIBLE TO STATE THAT THE IMPU GNED ORDER GIVES RISE TO ANY QUESTION OF LAW MUCH LESS, ANY SUBSTANTIAL QUESTION OF LAW SO AS TO WARRANT INTERFERENCE. THE APPEAL IS ACCORDINGLY DISMISSED. ITA NO. 2242/AHD/2014 SHREEJI DARSHANAM DEVELOPERS V/S. DCIT ASSESSMENT YEAR: 2011-12 PAGE 3 OF 3 5. IN VIEW OF THE ABOVE AGREED POSITION, AND RESPEC TFULLY FOLLOWING THE ESTEEMED VIEWS OF HONBLE JURISDICTIONAL HIGH COURT, WE DELE TE THE IMPUGNED PENALTY OF RS.29,54,985/-. THE ASSESSEE GETS THE RELIEF ACCOR DINGLY. 6. AS THE PENALTY IS DELETED ON THE SHORT GROUND DI SCUSSED ABOVE, IT IS NOT REALLY NECESSARY TO DEAL WITH THE OTHER ASPECTS OF THE MAT TER. THESE ISSUES ARE ACADEMIC AS ON NOW, AND, ACCORDINGLY OUR ADJUDICATION IS NOT CALLED FOR ON THE SAME. 7. IN THE RESULT, APPEAL IS ALLOWED IN THE TERMS IN DICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DECEMBER, 2018 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 31 ST DAY OF DECEMBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ....ORDER PREPARED AS PER 3 PAGES MANUSCRIPTS OF HONBLE VP......31.12.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ..... 31.12.2018.. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 31.12.2018... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ..... 31.12.2018.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 31.12.2018. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......