ACIT CEN CIR 24, MUMBAI V. ANJUM ABDUL GAFFAR SOPARIWALA, MUMBAI

ITA 2780/MUM/2010

• Counselvise Citation: 278019914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA SR
• Assessee Lawyers: KESHAV B BHUJLE
• Keywords: Search and seizure; Period of limitation; Time period of passing order; Set aside
• Section: 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.K.PANDA, ACCOUNTANT MEMBER ITA. NO. 2780/MUM/2010 ASSESSMENT YEAR 2004-2005 ACIT, CC 24 MUMBAI. VS. SHRI ANJUM ABDUL GAFFAR SOPARIWALA, MUMBAI 400 003 PAN AACPS9357A (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI P.C.MOURYA, SR. A.R. FOR RESPONDENT : SHRI KESHAV B. BHUJLE ORDER PER D. MANMOHAN, V.P. 1. THIS APPEAL IS FILED AT THE INSTANCE OF THE REV ENUE AND IT PERTAINS TO THE ASSESSMENT YEAR 2004-2005. PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) OF THE ACT, REFERABLE TO THE INCOME OF RS.26,23,000/- DECLARED BY THE ASSESSEE V OLUNTARILY, HAVING BEEN SET ASIDE BY THE LEARNED CIT(A), REVENUE IS IN APPEAL BEFORE US. 2. UNDISPUTEDLY, THE ASSESSEE DECLARED TOTAL INCOM E OF RS.29,19,184/- ON 1-11-2004 I.E., WITHIN THE DUE DA TE FOR FILING THE REGULAR RETURN OF INCOME. IT IS ALSO NOT IN DISPUTE THAT ADDITIONAL INCOME OF RS.26,23,000/- WAS DECLARED IN THE SAID R ETURN CONSEQUENT TO THE SEARCH AND SEIZURE ACTION CONDUCTED AT THE R ESIDENTIAL PREMISES OF ASSESSEES FATHER AND BUSINESS PREMISES OF M/S. HAJI YAKUM USMAN SOPARIWALA. THE CASE OF THE REVENUE WAS THAT THE SAID INCOME WAS DECLARED ONLY AFTER DETECTION BY THE DEPARTMENT , DURING THE SOURCE OF SEARCH ACTION, AS OTHERWISE THE SAME WOUL D HAVE REMAINED CONCEALED AND HENCE, IT IS A FIT CASE FOR LEVY OF P ENALTY UNDER SECTION 271 (1) (C) OF THE ACT. 2 3. ON THE OTHER HAND, THE CASE OF THE ASSESSEE WAS THAT A RETURN OF INCOME CAN BE FILED AT ANY TIME BEFORE TH E END OF THE LIMITATION PERIOD PRESCRIBED UNDER SECTION 139 (1) OF THE ACT. IN THE INSTANT CASE, AS PER THE CIRCULAR ISSUED BY THE CBD T ON 20-10-2004. THE DATE ON WHICH ASSESSEE DECLARED THE INCOME FALL S BEFORE THE DUE DATE FOR FILING A VOLUNTARY RETURN OF INCOME. THERE FORE, THERE IS NO CASE FOR LEVY OF PENALTY. ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE. 4. BEFORE THE LEARNED CIT(A), IT WAS CONTENDED BY THE ASSESSEE THAT EXPLANATION 5 TO SECTION 271 (1) (C) OF THE ACT CAN BE INVOKED ONLY WITH REGARD TO CASH AND VALUABLE ASSET S FOUND DURING THE SEARCH. WHEREAS, IN THE INSTANT CASE, INCOME OFFERE D FOR TAXATION WAS BIFURCATED INTO VARIOUS HEADS SUCH AS DRAWINGS FOR HOUSE HOLD EXPENSES, MISCELLANEOUS EXPENSES ETC., IN WHICH EVE NT EXPLANATION 5 IS NOT APPLICABLE AND THUS IT CANNOT EVEN BE BROUGH T WITHIN THE AMBIT OF DEEMED CONCEALMENT. 4.1. HAVING REGARD TO THE CIRCUMSTANCES OF THE CAS E, LEARNED CIT(A) ACCEPTED THE PLEA OF THE ASSESSEE AND SET AS IDE THE PENALTY LEVIED WITH REFERENCE TO THE VOLUNTARY DECLARATION OF INCOME OF RS.26,23,000/-. 5. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. THOU GH THE LEARNED DR SUBMITTED THAT ASSESSEE WOULD NOT HAVE D ECLARED THE AFOREMENTIONED INCOME BUT FOR THE SEARCH AND SEIZUR E PROCEEDINGS, NO SPECIFIC PROVISION UNDER THE INCOME TAX ACT WAS BRO UGHT TO OUR NOTICE IN SUPPORT OF HIS CONTENTION THAT AN INCOME VOLUNTA RILY OFFERED TO TAX BEFORE THE DUE DATE FOR FILING THE REGULAR RETURN O F INCOME WOULD ATTRACT THE PROVISIONS OF SECTION 271 (1) (C) OF TH E ACT EVEN THOUGH IT FALLS OUTSIDE THE AMBIT OF EXPLANATION 5 THERETO. 3 5.2. ON THE OTHER HAND, LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, STRONGLY RELIED UPON THE ORDER PAS SED BY THE LEARNED CIT(A). 6. IN OUR CONSIDERED OPINION, THE ORDER PASSED BY THE LEARNED CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. ADMITTEDLY, RETURN OF INCOME WAS FILED BEFORE THE DUE DATE PRESCRIBED UND ER SECTION 139 (1) OF THE ACT. THOUGH INCOME WAS DECLARED SUBSEQUENT T O THE INITIATION OF PROCEEDINGS UNDER SECTION 132 OF THE ACT, IT IS NOT THE CASE OF THE REVENUE THAT THE INCOME VOLUNTARILY DECLARED PERTAI NS TO ANY MONEY, JEWELLERY ETC., FOUND DURING THE COURSE OF SEARCH A CTION, SO AS TO BRING THE CASE WITHIN THE AMBIT OF EXPLANATION 5 TO SECTI ON 271 (1) (C) OF THE ACT. SUCH BEING THE CASE WE ARE OF THE VIEW THAT TH E INCOME DECLARED VOLUNTARILY BY THE ASSESSEE CANNOT BE CONSIDERED AS CONCEALED INCOME OF THE ASSESSEE. 7. IN THE RESULT, AS PRONOUNCED IN THE OPEN COURT, APPEAL FILED BY THE REVENUE IS DISMISSED. SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 20 TH JUNE, 2011 VBP/- COPY TO 1. ACIT, CENTRAL CIRCLE 24 & 26, ROOM NO. 404, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. 2. SHRI ANJUM ABDUL GAFFAR SOPARIWALA, 144/148, ERS KINE ROAD, NULL BAZAR, MUMBAI 400 003 PAN AACPS9357A 3. CIT(A)-39, MUMBAI 4. CIT, CENTRAL-2, MUMBAI. 5. DR A BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.