Dr. Gautam Khastgir, Kolkata V. A.C.I.T CC - VII,kolkata, Kolkata

ITA 2376/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4794 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2013
• Court: TRIBUNAL
• Assessee Lawyers: V N PUROHIT
• Keywords: Revised return
• Section: 143(3); 14A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI N. V. VASUDEVAN, JM & SHRI M. BALAGAN ESH, AM] I.T.A NO.2376/KOL/2013 ASSESSMENT YEAR: 2010-11 DR. GAUTAM KHASTGIR VS. ASSISTANT COMMISSIONER OF INCOME-TAX, (PAN:AGVPK4744Q) CENTRAL CIRCLE-VII, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 18.05.2016 DATE OF PRONOUNCEMENT: 20.05.2016 FOR THE APPELLANT: SHRI V. N. PUROHIT, FCA FOR THE RESPONDENT: SHRI SALLONG YADEN, ADDL. CI T, SR. DR ORDER PER SHRI BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), CENTRAL-1, KOLKATA VIDE APPEAL NO. 406/CC-VII/CIT(A)/C-1/12-13 DATED 27.06. 2013. ASSESSMENT WAS FRAMED BY DCIT, CC-VII, KOLKATA U/S. 143(3) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2010-11 VIDE H IS ORDER DATED 28.12.2011. PENALTY WAS IMPOSED BY ACIT, C.C.VII, KOLKATA U/S. 271AAA O F THE ACT VIDE HIS ORDER DATED 29.06.2012. 2. THE SOLE ISSUE TO BE DECIDED IN THIS APPEAL OF A SSESSEE IS AS TO WHETHER THE LD. CIT(A) IS JUSTIFIED IN DIRECTING TO LEVY PENALTY OF RS.1,36,722/- U/S. 271AAA OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSESSEE IS A GYNAECOLOGIST WHO HAS SPECIALIZED IN INFERTILITY TREATMENT. A SEARCH U/S. 132 OF THE ACT WAS CONDUCTED ON 02.12.2009 AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE WHEREFROM SEVERAL BOOKS OF ACCOUNT AND DOCUMENTS WERE SEIZED. THE AS SESSEE FILED HIS ORIGINAL RETURN OF INCOME U/S. 139(1) OF THE ACT ON 30.09.2010 DECLARI NG TOTAL INCOME OF RS.1,36,16,510/-. THE ASSESSEE FILED ANOTHER REVISED RETURN ON 22.11. 2010 DECLARING TOTAL INCOME OF RS.1,49,55,230/-. STATUTORY NOTICES WERE DULY SERV ED AND ASSESSMENT WAS COMPLETED ON 28.12.2011 ON A TOTAL INCOME OF RS.1,49,83,730/- WH ICH CONSISTS OF ADDITION OF RS.28,516/- BEING DISALLOWANCE MADE U/S. 14A OF THE ACT. THEREAFTER, THE LD. AO INITIATED PENALTY PROCEEDINGS U/S. 271AAA OF THE AC T AND IMPOSED PENALTY @ 10% OF RS.1.5 CR., WHICH WAS THE FIGURE DISCLOSED BY THE A SSESSEE IN THE DISCLOSURE PETITION FILED 2 ITA NO.2376/K/2013 DR. GAUTAM KHASTGIR AY 2010-11 BEFORE THE ADIT(INV.), WHICH COMES TO RS.15 LACS. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A), WHO HELD THAT THE PENALTY IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE COULD BE RESTRICTED ONLY TO RS.1,3 6,722/- WORKED OUT AT 10% OF RS.13,67,220/-, BEING THE DIFFERENCE BETWEEN THE AS SESSED INCOME OF RS.1,49,83,730/- AND ORIGINAL RETURN OF INCOME OF RS.1,36,16,510/-. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND: 1. THAT ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE THE CIT(A)-C-1 HAS ERRED IN HOLDING THAT CONDITION AS LAID DOWN IN CLA USE (1) OF SUB-SECTION (2) OF SEC. 271AAA IS NOT SATISFIED IN ASSESSEES CASE AND HENC E IMMUNITY AS PROVIDED UNDER SUB-SECTION (2) OF SEC. 271AAA IS NOT AVAILABLE TO ASSESSEE. 2. THAT WITHOUT PREJUDICE TO ABOVE GROUND, THE ORD ER PASSED U/S. 271AAA IS BAD IN LAW AND ON THE FACTS AND UNDER THE CIRCUMSTANCE THE CASE AND CIT(A)-C-1 HAS ERRED DIRECTING TO LEVY PENALTY ON RS.13,38,723/-. 4. THE LD. AR, AT THE OUTSET, ARGUED THAT THE PROVI SIONS OF SECTION 271AAA OF THE ACT CANNOT BE INVOKED IN THE FACTS OF THE PRESENT C ASE AS ADMITTEDLY THE RETURN OF INCOME WAS FILED BY THE ASSESSEE U/S. 139(1) OF THE ACT AN D ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT AND HENCE, IT FALLS WITHIN THE AM BIT OF REGULAR ASSESSMENT FOR WHICH PENALTY PROCEEDINGS U/S. 271AAA OF THE ACT COULD NO T BE INITIATED. IN RESPONSE TO THIS, LD. DR ARGUED THAT PENALTY U/S. 271AAA OF THE ACT I S LEVIED @ 10% OF UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR AND THE TER M SPECIFIED PREVIOUS YEAR HAS DEFINED IN EXPLANATION (B) AS FOLLOWS: SPECIFIED PREVIOUS YEAR MEANS THE PREVIOUS YEAR (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETUR N OF INCOME FOR THE PREVIOUS YEAR BEFORE SAID DATE; OR (II) IN WHICH SEARCH WAS CONDUCTED. 5. ACCORDINGLY, AS PER THE MANDATE PROVIDED IN THE STATUTE ASSESSMENT COULD BE COMPLETED ONLY U/S. 143(3) OF THE ACT FOR THE YEAR OF SEARCH AND HENCE, PENALTY LEVIED U/S. 271AAA OF THE ACT FOR THE YEAR OF SEARCH IS VE RY MUCH VALID. WE ARE IN AGREEMENT WITH THE ARGUMENTS ADVANCED BY THE LD. DR IN THIS R EGARD AND ACCORDINGLY, DISMISS THE FIRST LINE OF ARGUMENT OF THE LD. AR. 6. THE SECOND LINE OF ARGUMENT ADVANCED BY THE LD. AR IS THAT, AT MOST, THE PENALTY, IF ANY, LEVIABLE U/S. 271AAA OF THE ACT COULD BE RE STRICTED ONLY TO THE EXTENT OF 3 ITA NO.2376/K/2013 DR. GAUTAM KHASTGIR AY 2010-11 DIFFERENCE IN INCOME BETWEEN THE ASSESSED INCOME AN D THE REVISED RETURN OF INCOME WHICH IS HARDLY RS.28,500/- AND PENALTY, IF ANY, CO ULD BE LEVIED ONLY TO THE EXTENT OF MAXIMUM OF RS.2,850/- THEREON. HE ALSO ARGUED THAT THE SAID DIFFERENCE IN INCOME WAS ATTRIBUTED DUE TO THE DIFFERENCE ON DISALLOWANCE U/ S. 14A OF THE ACT WHICH IS MAINLY NOTIONAL DISALLOWANCE AND NO CONCEALMENT COULD BE A TTRIBUTED FOR THE SAME. IN RESPONSE TO THIS, THE LD. DR VEHEMENTLY RELIED ON THE ORDER OF THE AO. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND LOT OF FORCE IN THE ARGUMENTS OF THE LD. AR THAT THE PENALTY U/S. 271AA OF THE ACT SHOULD BE RESTRICTED ONLY TO THE EXTENT OF ADDI TION MADE IN THE ASSESSMENT I.E. RS.28,500/- BEING THE DIFFERENCE BETWEEN ASSESSED I NCOME OF RS.1,49,83,730/- AND REVISED RETURN OF INCOME OF RS.1,49,55,230/-. ACCO RDINGLY, THE GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 8. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED. 9. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20.05.2 016 SD/- SD/- (N. V. VASUDEVAN) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 20TH MAY, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT DR. GAUTAM KHASTGIR, C/O, V. N. PUROHI T & CO. CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT-III, 4 TH FLOOR, SUIT NO. 4G, 4, CHOWRINGHEE LANE, KOLKATA-700 016. 2 RESPONDENT ACIT, CENTRAL CIRCLE-VII, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .