ACIT CC 31, MUMBAI V. JAY LEELA LOGISTICS P. LTD, MUMBAI

ITA 2321/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75907 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 11-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J B ENCH, MUMBAI , , ! '#$ , % & BEFORE SHRI VIJAY PALO RAO AND SHRI N.K. BILLAIY A, AM ./ I.T.A. NO.2321/MUM/2012 ( ' ' ' ' / ASSESSMENT YEAR :2008-09 THE ACIT, CENTRAL CIRCLE-31, CENT. RANGE-7 , AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. JAY LEELA LOGISTICS PVT. LTD., 106/107, PRESTIGE CHAMBERS, 1 ST FLOOR, KALYAN STREET, MASJID BUNDER, MUMBAI-400 009 ( % ./ ) ./ PAN/GIR NO. : AABCJ 7559H ( (* / APPELLANT ) .. ( +,(* / RESPONDENT ) (* - / APPELLANT BY: SHRI MAURYA PRATAP +,(* . - / RESPONDENT BY: SHRI ANUJ KISNADWALA . /0% / DATE OF HEARING :11.03.2014 12' . /0% / DATE OF PRONOUNCEMENT :14.03.2014 3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-40, MUMBAI DT.13.01.2012 PERTAINING TO A.Y. 2008-09. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DELETING THE PENALTY LEVIED U/S. 271AAA OF THE ACT AMOUNTING TO RS. 10,00,000/-. ITA NO. 2321/M/2012 2 3. THE FACTS OF THE CASE ARE THAT THE SEARCH AND SE IZURE OPERATION U/S. 132 OF THE ACT WAS CARRIED OUT IN THE GROUP OF M/S. MEHTA TRANSPORT SERVICES (I) LTD ON 5.10.2007. THE OFFICE AND THE RESIDENTIAL PREMISES OF THE DIRECTORS WERE SEARCHED. THE ASSESSEE IS ONE O F THE GROUP COMPANIES WHICH WERE SEARCHED BY THE AUTHORITIES. DURING THE COURSE OF THE SEARCH PROCEEDINGS, VARIOUS INCRIMINATING DOCUMENTS WERE F OUND AND WHEN THE ASSESSEE WAS CONFRONTED, THE ASSESSEE SURRENDERED R S. ONE CRORE AS ADDITIONAL INCOME FOR FINANCIAL YEAR 2007-08. THE RETURN OF INCOME WAS FILED WHICH DID NOT INCLUDE RS. ONE CRORE SURRENDE RED DURING THE COURSE OF THE SEARCH PROCEEDINGS. THE ASSESSEE FILED REVI SED COMPUTATION OF INCOME. THE REVISED INCOME WAS INCLUSIVE OF THE ADD ITIONAL INCOME OF RS. ONE CRORE DECLARED DURING THE COURSE OF SEARCH. TH E AO WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAD SURRENDERED RS. ONE CR ORE ON THE BASIS OF VARIOUS INCRIMINATING DOCUMENTS FOUND AND SEIZED DU RING THE COURSE OF SEARCH AND LIABLE FOR PENALTY U/S. 271AAA OF THE AC T. 3.1. A SHOW CAUSE NOTICE WAS ISSUED AND SERVED UPON THE ASSESSEE INITIATING PENAL PROCEEDINGS WHICH WAS COMPLETED BY THE LEVY OF PENALTY AT THE RATE OF 10% ON ONE CRORE. THE PENALTY SO LE VIED AMOUNTED TO RS. 10,00,000/-. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFOR E THE LD. CIT(A). IT WAS CONTENDED THAT THE ASSESSEE HAS FULFILLED AL L THE CONDITIONS BY WHICH IT GET IMMUNITY FROM THE LEVY OF PENALTY U/S. 271AAA. IT WAS EXPLAINED THAT THE ASSESSEE HAS DECLARED THE INCOME IN THE COURSE OF SEARCH ITSELF IN A STATEMENT GIVEN U/S. 132(4) OF T HE ACT AND HAS ALSO SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED AND HAS ALSO PAID THE TAX. AFTER CONSIDERING THE F ACTS AND THE SUBMISSIONS ITA NO. 2321/M/2012 3 OF THE ASSESSEE, THE LD. CIT(A) DELETED THE PENALTY . THE FINDINGS OF THE LD. CIT(A) READS AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE B Y THE APPELLANT IN RESPECT OF THE PENALTY LEVIED BY THE L D. AO. THE FACT OF THE MATTER IS THAT THE REQUIREMENT ON THE PART O F AN APPELLANT TO SUBSTANTIATE THE SOURCE OF INCOME HAS BEEN DISCHARG ED IN THIS CASE, AS IS APPARENT FROM THE STATEMENT OF INCOME FILED W ITH THE RETURN OF INCOME FILED U/S. 153A. THE REQUIREMENT OF DISCLOS ING THE SOURCE OF INCOME CANNOT BE TAKEN TO MEAN THAT ALL EVIDENCES I N THIS RESPECT HAS TO BE PRODUCED. THE VERY FACT THAT THE DISCLOS URE IS MADE IN RESPECT OF UNDISCLOSED INCOME, ALL THAT CAN BE REQU IRED OF AN ASSESSEE IS THAT THE PROXIMATE NATURE OF ACQUISITIO N CAN BE MENTIONED BY HIM. IT CANNOT BE THE CASE THAT VERY MINUTE DETAIL THEREOF WOULD BE PRESERVED WITH EVIDENCE WHICH IS P OSSIBLE ONLY FOR THE REGULAR INCOME BEING DISCLOSED BY HIM. THE REQUIREMENT AS PER SEC (2) OF SEC. 271AAA IS ONLY THAT THE MANNER OF EARNING INCOME SHOULD BE SPECIFIED SO THAT UNDUE ADVANTAGE OF TELESCOPING OR SOME OTHER INCOME BEING BROUGHT WITHIN THE TOTAL AMBIT OF UNDISCLOSED INCOME SURRENDERED DOES NOT HAPPEN. FR OM THE ORDER OF THE LD. AO ALSO, IT IS APPARENT THAT THE PENALTY IS NOT LEVIED BY HIM ON ACCOUNT OF SOME CONVICTION BUT HAS BEEN JUST LEVIED TO COMPLETE THE PROCEEDINGS. IN FACT, THERE ARE NO MA TERIAL FACTS WARRANTING THE LEVY OF PENALTY AND, ACCORDINGLY THE PENALTY OF RS. 10,00,000/- LEVIED U/S. 271AAA IS DIRECTED TO BE DE LETED. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY REL IED UPON THE ORDER OF THE AO. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES. IT IS NOT IN DISPUTE THAT THE ASSESSEE DECLARED RS. ONE C RORE DURING THE COURSE OF THE SEARCH PROCEEDINGS ITSELF. IT IS ALSO NOT I N DISPUTE THAT THE ASSESSEE HAS SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOS ED INCOME WAS ITA NO. 2321/M/2012 4 DERIVED AND IT IS NOT IN DISPUTE THAT TAX , IF ANY , WAS PAID IN RESPECT OF THE UNDISCLOSED INCOME. A PERUSAL OF SEC. 271AAA(2) IN THE LIGHT OF THE FACTS AS DISCUSSED HEREINABOVE SHOWS THAT THE ASSES SEE HAS FULFILLED ALL THE CONDITIONS WHICH GIVE IT IMMUNITY FROM THE LEVY OF PENALTY. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) WHICH WE CONFIRM. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MARCH, 2014 . 3 . 2' % 4 5 6 14.3.2014 2 . = SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER % / ACCOUNTANT MEMBER MUMBAI; 5 DATED 14.3.2014 . . ./ RJ , SR. PS 3 . +/ >'/ 3 . +/ >'/ 3 . +/ >'/ 3 . +/ >'/ / COPY OF THE ORDER FORWARDED TO : 1. (* / THE APPELLANT 2. +,(* / THE RESPONDENT. 3. ? ( ) / THE CIT(A)- 4. ? / CIT 5. @= +/ , , / DR, ITAT, MUMBAI 6. =A B / GUARD FILE. 3 3 3 3 / BY ORDER, ,/ +/ //TRUE COPY// C CC C / D D D D (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI