Mannu Rai, Jhansi V. DCIT Central Circle, Bhopal

ITA 235/Ind/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9486 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 22-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Search and seizure; Set aside
• Section: 143(3); 142(1); 153A; 153C; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NOS 235 TO 241/IND/2018 ASSESSMENT YEARS: 2010-11 TO 2016-17 JHANSI : APPELLANT PAN: AHSPR0521F V/S DY. COMMISSIONER OF INCOME TAX, : RESPONDENT CENTRAL CIRCLE, BHOPAL ITA NOS 242 TO 248/IND/2018 ASSESSMENT YEARS: 2010-11 TO 2016-17 JHANSI : APPELLANT PAN: AHSPR0620E V/S DY. COMMISSIONER OF INCOME TAX, : RESPONDENT CENTRAL CIRCLE, BHOPAL MRS. MANU RAI, Q-8, RAS BAHAR COLONY, SHIVPURI ROAD, SHRI MANISH RAI, Q-8, RAS BAHAR COLONY, SHIVPURI ROAD, ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 2 ITA NOS 249 TO 255/IND/2018 ASSESSMENT YEARS: 2010-11 TO 2016-17 JHANSI : APPELLANT PAN: AFIPR5616C V/S DY. COMMISSIONER OF INCOME TAX, : RESPONDENT CENTRAL CIRCLE, BHOPAL APPELLANT BY MS. NISHA LAHOTI, C.A REVENUE BY SMT. A SHIMA GUPTA, CIT DATE OF HEARING 19.08. 2020 DATE OF PRONOUNCEMENT 2 1 .08.2020 O R D E R PER BENCH. THE ABOVE CAPTIONED APPEALS ARE AT THE INSTANCE OF RESPECTIVE ASSESSEE(S) WHICH ARE DIRECTED AGAINST SEPARATE ORD ERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, BHOPAL (IN SHORT LD.CIT], INDORE EVENLY DATED 30.01.2018. 2. AS THE ISSUE AND FACTS RAISED IN ALL THESE APPEA LS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY THIS S MT. MEENA DEVI RAI, Q-8, RAS BAHAR COLONY, SHIVPURI ROAD, ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 3 COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. FOR THE PURPOSE OF ADJUDICATION WE WILL TAKE UP THE FACTS O F THE ASSESSEE NAMELY MRS. MANU RAI, ITA NO.235 TO 241/IND/2018 WH EREIN THE ASSESSEE HAS COMMONLY CHALLENGED THE FINDING OF LD. CIT(A) CONFIRMING THE PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT LEVIED BY THE LD. A.O IN ALL THE SEVEN YEARS. 3. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. THE SOURCE OF INCOME IS BUSINESS AND TUITION FEES. SEARCH AND SEIZURE OPERATIONS U/S 132 WERE CONDUCTED AT THE VARIOUS PREMISES OF THE SHIVHARE GROUP AND I TS ASSOCIATES ON 07.01.2016 WHICH INCLUDES THE INSTANT APPELLANT. NOTICES U/S 153A WERE ISSUED FOR AY 2010-11 TO 2015-16 ON 27.10.2016 . ASSESSEE FILED RETURN IN RESPONSE TO THESE NOTICES. RETURN F OR AY 2016-17 WAS FILED ON 15.12.2016. NOTICE U/S 142(1) FOR AY 2 010-11 TO 2016- 17 WAS ISSUED ON 22.05.2017 FIXING THE DATE OF HEAR ING 29.05.2017. REPLY TO THIS NOTICE WAS FILED BY ASSESSEE ON 14.07 .2017. SHOW CAUSE NOTICE WAS ISSUED ON 07/12/2017 REQUIRING ASS ESSEE TO EXPLAIN THE NATURE OF POSSESSION AND SOURCE OF THE JEWELLERY AND SILVER ARTICLES FOUND FROM HER PREMISES AND TO RECO NCILE THE SAME ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 4 WITH HER DECLARED INCOME/ASSETS WITH DOCUMENTARY EV IDENCES. DETAILED REPLY WAS FILED BY THE ASSESSEE. PROCEEDIN GS WERE COMPLETED U/S 153A R.W.S 143(3) FOR AY 2010-11 TO 2 015-16 AND U/S 143(3) FOR AY 2016-17. LD. AO PASSED PENALTY OR DER U/S 271(1)(B) ON 25.10.2017 IMPOSING A PENALTY OF RS. 1 0,000 FOR EACH OF THE SEVEN YEARS I.E. AY 2010-11 TO 2016-17. AGGR IEVED ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). LD. CIT(A) S USTAINED THE PENALTY OF RS. 10,000 IMPOSED BY LD. A.O FOR EACH O F THE SEVEN YEARS I.E. AY ~ 2010-11 TO 2016-17. 4. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 5. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED R EFERRING TO THE FOLLOWING WRITTEN SUBMISSION PLACED ON RECORD. A. ASSESSMENTS COMPLETED U/S 153A RWS 1 43(3) FOR AY 2010-11 TO 2015-16 AND U/S 143(3) FOR AY 2016-17 1. ASSESSMENTS FOR AY 2010-11 TO 2015-16 HAVE BEEN COM PLETED U/S 153A RWS 143(3) AND FOR AY 2016-17 U/S 143(3). ASSESSEE FILED REPLIES BEFORE LD. A O FOR THE PURPOSE OF COMPLETING ASSESSMENT FACT OF W HICH IS DISCERNIBLE FROM THE ASSESSMENT ORDER ITSELF. ALSO, IT IS NOT A CASE OF ASSESSMENT DONE EX-PARTE BY APPLYING PROVISIONS OF SECTION 144. ACC ORDINGLY, IMPOSITION OF PENALTY U/S 271(L)(B) IS NOT E L IGIBLE. 2. THE SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEE DINGS ARE TO BE CONSIDERED AS GOOD COMPLIANCES AND DEFAULT COMMITTE D EARLIER SHOULD BE ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 5 IGNORED. PENALTY IMPOSED U/S 271(L)(B) FOR EACH OF THE SEVEN YEARS OUGHT TO BE DELETED. B. ASSESSED INCOME IS SAME AS RETURNED INCOME FOR A Y 2010-11 TO 2015-16 1.ASSESSEE SUBMITS THAT THE RETURNED INCOME FOR AY 2010-11 TO 2015-16 HAS BEEN ACCEPTED BY LD. AD AS ASSESSED INCOME. 2.THIS EVIDENTLY DEMONSTRATES THAT SUBMISSIONS OF THE ASSESSEE HAVE BEEN CONSIDERED BY THE LD. AD BEFORE COMPLETING T HE ASSESSMENTS U/S 153A RWS 143(3). C. ASSESSEE HAS COMPLIED TO THE NOTICES ISSUED BY LD. AO 1. COMPLIANCE TO THE VARIOUS NOTICES ISSUED CAN BE EVIDENTLY DEMONSTRATED FROM THE ASSESSMENT ORDER PASSED U/S 153A RWS 143(3), AS UNDER- A. ' .... THE ASSESSEE HAS FILED THE R ETURN UNDER SECTION 153A OF THE ACT IN PURSUANCE OF THE ABOVE NOTICES FOR AY S 2010-11 TO 2016-17 // [PB 2 PARA 6] B. ' ... NOTICE U/S 142(1) OF THE ACT, CONTAINING DETAILED QUESTIONNAIRE WAS ISSUED ON 22.05.2017. THE ASSESSEE HAS FILED WRITTE N REPLIES TO THE NOTICE U / S 142(1} FOR THE A. YS. 2010-11 TO 2016-17 WHICH HAVE BEEN CONSIDERED AND PLACED ON RECORD [PB 3 PARA 7] C. ' .... IN THIS REGARD SPECIFIC SHOW CAUSE QUERY RA ISED WHEREIN MS. MANU RAI REQUIRED TO EXPLAIN THE SOURCE OF THIS CASH FAILING WHICH AMOUN T OF RS. 3,8,6,900/- WAS PROPOSED TO BE ADDED. IN HER REPLY ASSESSEE CLAIMED THAT THE CASH BELONGED TO HER FATHER .. [PB 3 PARA 8] ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 6 D. ' IN THIS REGARD SPECIFIC SHOW CAUSE QUERY RAISED WHEREIN MS. MANU RAI REQUIRED TO EXPLAIN THE SOURCE OF THIS CASH FAILING WHICH AMOUN T OF RS. 75,000/WAS PROPOSED TO BE ADDED. IN HER REPLY ASSESSEE CLAIMED THAT THE CASH BELONGED TO HER FATHER ' [PB 4 PARA 9] E. 'DURIN G THE COURSE OF ASSESSMENT P ROCEEDIN GS 22/05/2017, THE ASSESSEE WAS REQUIRED TO EXPLAIN THE NATURE OF POSSESSION AND SOURCE/MODE OF ACQUISITION OF SUCH JEWELLERY AND RE CONCILE THE SAME WITH HER DECLARED INCOME/ASSETS. FURTHER, AGAIN, VIDE SH OW-CAUSE NOTICE DATED 07/12/2017 THE ASSESSEE HAS BEEN AGAIN REQUIRED TO EXPLAIN THE NATURE OF POSSESSION AND SOURCE OF THIS JEWELLERY AND SILV ER ARTICLES FOUND FROM HIS PREMISES AND TO RECONCILE THE SAME WITH HER DECLARED INCOME/ASSETS WITH DOCUMENTARY EVIDENCES. THE ASSESSEE HAS ALSO B EEN REQUIRED TO STATE AS TO WHY THE ADDITION SHALL NOT BE ADDED TO HER TOTAL INCOME, IN ABSENCE OF NECESSARY EVIDENCES. IN THIS RE G ARD ASSESSEE RE L I ED DETAILED SUBMISSION THE IS AS UNDER... [PB 5 PARA 10.2] FROM THE ABOVE IT IS EVIDENTLY CLEAR THAT THE ASSES SEE HAS COMPLIED WITH VARIOUS NOTICES ISSUED. THERE IS NO FAILURE ON THE PART OF THE ASSESSEE ON ACCOUNT OF NONCOMPLIANCE OF NOTICES. THE DETAILS WE RE AVAILABLE WITH THE LD. AO FOR COMPLETING THE ASSESSMENT PROCEEDINGS. D. LD. CIT(A) HAS RELIED ON THE DECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF STANDARD MERCANTILE CO (1986) 160 ITR 613 . THIS DECISION IS DISTINGUISHABLE ON THE FACTS OF THE INSTANT CASE. IN THE ABOVE MENTIONED DECISION, ASSESSEE FAILED TO COMPLY WITH THE NOTIC E ISSUED U/S 142(1) AND ALSO FAILED TO PRODUCE BOOKS OF ACCOUNTS. HOWEVER, IN THE INSTANT CASE, ASSESSEE HAS COMPLIED WITH THE NOTICES ISSUED U/S 142(1) ON SUBSEQUENT ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 7 DATES AS NOTED BY THE LD. A.O IN THE ASSESSMENT O RDER ITSELF. THUS, THE DECISION OF HONBLE PATNA HIGH COURT IS NOT APPLIC ABLE IN THE INSTANT CASE. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS:- (I) RAMBHAU GHYANSHYAM ASAI (HUF)-ITA NO.798/IND/2016 TO 804/UND/2016 ORDER DATED 16.05.2018 - HONBLE BENCH OF INDORE ITAT. (II) AKHIL BHARATIYA PRATHMIK SHMSHAK SANGH BHAWAN TRUST (2008) 115 TTJ 419- HON'BLE DELHI BENCH OF ITAT. (III) HEMANT KUMAR SONI ITA NO.1361/IND/2016 TO 1367/IND/2016 HON'BLE INDORE BENCH OF I.T.A.T. (IV) VINEET CHAUHAN ITA NO.1061/IND/2016 TO 1067/IND/2016 - HON'BLE INDORE BENCH OF I.T.A.T. (V) M. AHUJA CONSTRUCTION PRIVATE LIMITED ITA NO.655/IND/2016 TO 657/IND/2016 - HON'BLE INDORE BENCH OF I.T.A.T. 6. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGU ED SUPPORTING ORDER OF BOTH THE LOWER AUTHORITIES BUT COULD NOT C ONTROVERT THE FACT THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS DECIS ION OF JURISDICTIONAL INDORE BENCH OF I.T.A.T. 7. WE HAVE HEARD RIVAL CONTENTIONS AND CAREFULLY GO NE THROUGH THE DECISION OF THE JURISDICTIONAL TRIBUNAL RELIED AND REFERRED BY THE ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 8 ASSESSEE. THE SOLE ISSUE RAISED IN THE CASE OF MRS . MANU RAI RELATES TO LEVY OF PENALTY U/S 271(1)(B) OF THE ACT AT RS.1 0,000/- FOR NON APPEARANCE BEFORE THE LD. A.O ON THE SCHEDULED DATE OF HEARING. PERUSAL OF THE RECORDS SHOWS THAT IN THE INSTANT CA SE ASSESSEE AFTER FAILING TO APPEAR ON THE INITIAL DATE OF HEARING SU BSEQUENTLY COMPLIED WITH THE NOTICE ISSUED U/S 142(1) OF THE A CT ON SUBSEQUENT DATES AS NOTED BY THE LD. A.O IN THE ASS ESSMENT ORDER ITSELF. FURTHER THIS FACT REMAIN UNDISPUTED THAT B ASED ON THESE COMPLIANCES THE ASSESSMENTS WERE COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT FOR ASSESSMENT YEARS 2010-11 TO 2 015-16 AND U/S 143(3) FOR ASSESSMENT YEAR 2016-17. NONE OF THESE ASSESSMENTS WERE EX-PARTE . SIMILAR ISSUE UNDER IDENTICAL FACTS WERE DEALT B Y US IN THE CASE OF REGENT BEERS & WINES LTD V/S DCIT I TA NO. 350 & 351/IND/2018 ORDER DATED 16.05.2019 WHEREIN WE HAVE HELD AS FOLLOWS:- 6. WE FIND THAT THE SIMILAR ISSUE RELATING TO LEVY OF PENALTY U/S 271(B) OF THE ACT CAME UP BEFORE THE CO-ORDINATE BENCH IN THE BUNCH OF APPEALS WHICH INCLUDED ASSESSEES OWN CASE FOR OT HER ASSESSMENT YEARS. THE TRIBUNAL VIDE ORDER DATED 24.1.2019 DELETED T HE PENALTY OF RS.10,000/- LEVIED U/S 271(B) OF THE ACT BY RELYI NG ON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF PRAMILA KUMARI V S DCIT (2011) 49 CCH 0401 DATED 20.3.2017 HOLDING THAT THE PENALTY WAS NOT LEVIABLE FOR NON ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 9 COMPLIANCE OF NOTICE U/S 271(B) OF THE ACT AS THE ASSESSMENT WERE FRAMED U/S 143(3) OF THE ACT SHOWING THAT NECESSA RY CO-OPERATION WAS GIVEN BY THE ASSESSEE FOR COMPLETING THE ASSESSMEN T PROCEEDINGS. 7. EXAMINING THE FACTS OF THE INSTANT CASE IN THE LIGHT OF ABOVE DECISION, WE FIND THAT IN THE CASE OF REGENT BEERS & WINES LTD THE ASSESSMENT FOR ASSESSMENT YEAR 2015-16 AND 2016-17 IS FRAMED U/S 153A R.W.S. 143(3)OF THE ACT AND IN THE CASE OF PA TEL EDUCATION & WELFARE SOCIETY ASSESSMENT YEAR 2010-11 FRAMED U/S 153A R. W.S. 143(3) OF THE ACT. WE ARE THEREFORE OF THE CONSIDERED OPINION T HAT IN ALL THE THREE CASES AS THE ASSESSMENT ORDERS HAVE BEEN FRAMED U/S 143( 3) OF THE ACT, IT PROVES THAT THE ASSESSEE HAD COOPERATED IN THE AS SESSMENT PROCEEDINGS AND THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL REFERRED ABOVE, WE DELETE THE PENALTY OF RS.10,000/- LEVIED U/S 271(1)(B) OF THE ACT IN THE THREE APPEALS BEARING NO.350 TO 352/IND/201 8. 8. IN THE RESULT ALL THE THREE APPEALS ARE ALLOWED . 8. SIMILAR VIEW WAS ALSO TAKEN BY THE INDORE BENCH OF ITAT IN THE CASE OF RAMBHAU GHYANSHYAM ASAI (HUF) ITA NO.798/IN D/2016 TO 804/IND/2016 ORDER DATED 16.05.2018 (SUPRA) WHEREIN THE TRIBUNAL DELETED THE PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT AFTER CONSIDERING THE DECISIONS OF OTHER CO-ORDINATE BENC HES NAMELY (I) AKHIL BHARATIYA PRATHMIK SHMSHAK SANGH BHAWAN TRUST (SUPRA) , (II) HEMANT KUMAR SONI (SUPRA) , (III) VINEET CHAUHAN (SUPRA) , AND ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 10 (IV) M. AHUJA CONSTRUCTION PRIVATE LIMITED (SUPRA) OBSERVING AS FOLLOWS:- PARA 15 THE ASSESSEE HAS DULY COMPLIED WITH TH E REQUIREMENTS ON THE SUBSEQUENT DATES BECAUSE OF WHICH THE ASSESSME NT WAS COMPLETED U/S 153C R.W.S. 143(3) OF THE ACT. WE ARE, THEREF ORE, OF THE VIEW THAT BOTH THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN L EVYING AND CONFIRMING PENALTY U/S 271(1)(B) OF THE ACT AT RS.10,000/- I N EACH CASE. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND DELETE THE PENALTY OF RS.10,000/- IN EACH OF THESE CASES 9. IN THE LIGHT OF ABOVE DECISIONS AND ON EXAMINING THE FACTS OF THE INSTANT CASE, WE FIND THAT THE ASSESSEE COOPERA TED IN THE ASSESSMENT PROCEEDINGS AFTER ATTENDING THE PROCEEDI NGS ON SUBSEQUENT DATES. BASED ON THESE COMPLIANCES THE ASSESSMENTS WERE COMPLETED U/S 153A R.W.S. 143(3) FOR A.Y 2010 -11 TO 2015-16 AND U/S 143(3) FOR A.Y 2016-17. NEEDLESS TO MENTIO N THAT NONE OF THE ASSESSMENT ORDERS WERE FRAMED EX-PARTE . 10. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AND RESPECTFULLY FOLLOWING ABOVE DECISIONS OF THE T RIBUNAL, DIRECT THE REVENUE AUTHORITIES TO DELETE THE PENALTY OF RS.10, 000/- LEVIED U/S 271(1)(B) OF THE ACT FOR ASSESSMENT YEAR 2010-11 TO 2016-17 IN THE ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 11 CASE OF MRS. MANU RAI (ITA NO.235 TO 241/IND/2018). THE SOLE GROUND RAISED IN ALL THE SEVEN APPEALS STANDS ALLOW ED. 11. NOW WE TAKE UP THE REMAINING APPEALS OF THE ASS ESSEE(S) NAMELY MANISH RAI (ITA NO.242 TO 248/IND/2018) AND MRS. MEENA DEVI RAI (ITA NO.249 TO 255/IND/2018). SIMILAR ISS UES AND FACTS HAVE BEEN DEALT BY US IN THE CASE OF MRS. MANU RAI IN THE PRECEDING PARAGRAPHS. BEFORE US BOTH THE PARTIES I.E. LD. COU NSEL FOR THE ASSESSEE AND DEPARTMENTAL REPRESENTATIVE FAIRLY ACC EPTED THAT THE ISSUES RAISED AND FACTS IN THESE APPEALS OF THE ASS ESSEE(S) NAMELY MANISH RAI AND MRS. MEENA DEVI RAI ARE SIMILAR TO T HAT OF MRS. MANU RAI WHICH WE HAVE ADJUDICATED IN THE PRECEDING PARAGRAPHS. WE THEREFORE APPLY THE FINDING IN THE CASE OF MRS. MANU RAI (ITA NO.235 TO 241/IND/2018) ON THE ISSUES RAISED IN THE SE 14 APPEALS IN THE CASE OF MANISH RAI AND MRS. MEENA DEVI RAI A ND ALLOW THE SOLE GROUNDS RAISED IN ALL THESE 14 APPEALS ITA NO. 242 TO 248/IND/2018 AND ITA NO.249 TO 255/IND/2018 RESPECT IVELY AND DIRECT THE REVENUE AUTHORITIES TO DELETE THE PENALT Y LEVIED U/S 271(1)(B) OF THE ACT AT RS.10,000/- EACH FOR ASSESS MENT YEARS 2010- 11 TO 2016-17. ITA NOS.235 TO 255/IND/2018 MANU RAI & ORS 12 12. IN THE RESULT ALL THE APPEALS OF THE THREE AS SESSEE(S) NAMELY MRS. MANU RAI (ITA NO.235 TO 241/IND/2018), MANISH RAI (ITA NO.242 TO 248/IND/2018), AND SMT. MEENA DEVI RAI (I TA NO.249 TO 255/IND/2018), ARE ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.08.20 20. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 21 AUGUST, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE