A.C.I.T., Circle-39,Kolkata, Kolkata V. M/s M.B.Jewellers & sons, Kolkata

ITA 2819/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4603 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-12-2013
• Court: TRIBUNAL
• Department Lawyers: S M DAS
• Section: 143(3); 133A

Judgement Text

I.T.A. NO. 2819/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER I.T.A. NO. 2819/KOL/ 2013 ASSESSMENT YEAR: 2009-2010 ASSISTANT COMMISSIONER OF INCOME TAX,.............. .................APPELLANT CIRCLE-39, KOLKATA, PODDAR COURT, 8 TH FLOOR, 18, RABINDRA SARANI, KOLKATA-700 001 -VS.- M/S. M.B. JEWELLERS & SONS,........................ ..........................RESPONDENT P-10, DEBENDRA DUTTA LANE, KOLKATA-700 007 [PAN: AAEFM 7973 J] APPEARANCES BY: SHRI S.M. DAS, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI SUNIL SURANA, FCA, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : AUGUST 17, 2016 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 02, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, KOLKATA DA TED 28.08.2013, WHEREBY HE CANCELLED THE PENALTY OF RS.15,45,000/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE IN COME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADIN G OF JEWELLERY. A SURVEY UNDER SECTION 133A WAS CARRIED OUT AT THE BU SINESS PREMISES OF THE ASSESSEE ON 26.02.2009 AND 27.02.2009. DURING T HE COURSE OF SURVEY, THE VALUE OF STOCK AS DETERMINED ON PHYSICAL VERIFI CATION WAS FOUND TO BE MORE THAN THE VALUE OF STOCK RECORDED BY THE ASSESS EE IN ITS BOOKS OF I.T.A. NO. 2819/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 4 ACCOUNT. AS A RESULT OF THIS ADVERSE FINDING, THE A SSESSEE AGREED TO SURRENDER ADDITIONAL INCOME OF RS.50,00,000/-. ACCO RDINGLY, IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION DE CLARING TOTAL INCOME OF RS.1,19,92,979/-, THE INCOME OF RS.50,00,000/- SURR ENDERED DURING THE COURSE OF SURVEY WAS OFFERED BY THE ASSESSEE AND TA X THEREON WAS ALSO DULY PAID. IN THE ASSESSMENT COMPLETED UNDER SECTIO N 143(3) VIDE AN ORDER DATED 20.12.2011, THE TOTAL INCOME OF THE ASS ESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.1,20,30,210/- AFTER MAKING SOME SMALL ADDITIONS. THEREAFTER PENALTY PROCEEDINGS UNDER SEC TION 271(1)(C) WERE INITIATED BY THE ASSESSING OFFICER IN RESPECT OF TH E INCOME OF RS.50,00,000/- SURRENDERED BY THE ASSESSEE DURING T HE COURSE OF SURVEY ON THE GROUND THAT THE ASSESSEE COULD NOT HAVE DISC LOSED ITS INCOME OF RS.50,00,000/- BUT FOR THE SURVEY TAKEN PLACE AT HI S PREMISES. THE EXPLANATION OFFERED BY THE ASSESSEE IN THIS REGARD IN RESPONSE TO THE NOTICE ISSUED DURING THE COURSE OF PENALTY PROCEEDI NGS THAT THE INCOME OF RS.50,00,000/- SURRENDERED DURING THE COURSE OF SUR VEY HAVING BEEN DECLARED IN THE RETURN OF INCOME AND TAX THEREON AL SO HAVING BEEN PAID, THERE WAS NO CASE OF CONCEALMENT OF PARTICULARS OF ITS INCOME BY THE ASSESSEE OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME WAS NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER AND HE PR OCEEDED TO IMPOSE PENALTY OF RS.15,45,000/- UNDER SECTION 271(1)(C) B EING 100% OF THE TAX ALLEGEDLY SOUGHT TO BE EVADED BY THE ASSESSEE IN RE SPECT OF THE INCOME OF RS.50,00,000/- SURRENDERED DURING THE COURSE OF SUR VEY. 3. THE PENALTY IMPOSED BY THE ASSESSING OFFICER UND ER SECTION 271(1)(C) WAS CHALLENGED BY THE ASSESSEE IN AN APPE AL FILED BEFORE THE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD . CIT(APPEALS) FOUND THAT THE ISSUE INVOLVED IN THE CASE OF THE ASSESSEE WAS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE VARIOUS JUDICIAL P RONOUNCEMENTS. IN ONE OF SUCH JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE LD. CIT(APPALS) IN THE CASE OF CIT VS.- SAS PHARMACEUTICALS [335 ITR 259] , IT WAS HELD BY THE HONBLE DELHI HIGH COURT THAT INCOME SURRENDERED DU RING THE COURSE OF I.T.A. NO. 2819/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 4 SURVEY HAVING BEEN DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME AND TAX THEREON HAVING BEEN PAID BY HIM, THERE WAS NO CASE OF CONCEALMENT OR NON-DISCLOSURE OF THE PARTICULARS OF INCOME, AS SUCH CONCEALMENT OR NON-DISCLOSURE HAS TO BE SEEN WITH REFERENCE TO THE RETURN OF INCOME FILED BY THE ASSESSEE. THE LD. CIT(APPEALS) ALSO NOTED TH AT IN THE CASE OF VINOD GOYAL VS.- ACIT REPORTED IN 115 TTJ 559, IT WAS HE LD BY THE NAGPUR BENCH OF THIS TRIBUNAL THAT THE CASH FOUND DURING T HE COURSE OF SURVEY HAVING BEEN SURRENDERED BY THE ASSESSEE AS HIS INCO ME AND THE INCOME SO SURRENDERED HAVING BEEN DECLARED IN THE RETURN OF I NCOME, WHICH WAS DULY ACCEPTED BY THE DEPARTMENT, THERE WAS NO CASE OF CONCEALMENT OF PARTICULARS OF HIS INCOME BY THE ASSESSEE OR FURNIS HING OF INACCURATE PARTICULARS OF SUCH INCOME ATTRACTING THE PENAL PRO VISIONS OF SECTION 271(1)(C). RELYING ON THESE JUDICIAL PRONOUNCEMENTS AS WELL AS THE OTHER CASE LAWS DISCUSSED IN HIS APPELLATE ORDER, THE LD. CIT(APPEALS) CANCELLED THE PENALTY OF RS.15,45,000/- IMPOSED BY THE ASSESS ING OFFICER UNDER SECTION 271(1)(C). AGGRIEVED BY THE ORDER OF THE LD . CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THERE WAS SOME DIFFERENCE FOUND IN THE VALUATION OF STOCK AS MADE DURING THE COURSE OF SURVEY ON PHYSICAL VERIFICATION AND THE VALUE OF ST OCK AS APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. AS A RESULT OF TH IS ADVERSE FINDING, THE ASSESSEE AGREED TO SURRENDER ADDITIONAL INCOME OF R S.50,00,000/- DURING THE COURSE OF SURVEY AND IN THE RETURN OF INCOME FI LED REGULARLY FOR THE YEAR UNDER CONSIDERATION, THE ADDITIONAL INCOME OF RS.50,00,000/- AS SURRENDERED DURING THE COURSE OF SURVEY WAS OFFERED TO TAX BY THE ASSESSEE. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 20.12.2011, THE ASSESSING OFFICER ACCEP TED THIS DISCLOSURE MADE BY THE ASSESESE WITHOUT RECORDING ANY ADVERSE OBSERVATION. THE ADDITIONAL INCOME SURRENDERED DURING THE COURSE OF SURVEY THUS WAS DULY DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FI LED REGULARLY FOR THE YEAR UNDER CONSIDERATION AFTER PAYMENT OF TAX DUE T HEREON AND THE RETURN I.T.A. NO. 2819/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 4 OF INCOME SO FILED BY THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER ON THIS ISSUE. IT IS A SETTLED POSITION OF LAW THAT THE CONCEALMENT AS ENVISAGED IN SECTION 271(1)(C) IS TO BE INFERRED WI TH REFERENCE TO THE RETURN OF INCOME FILED BY THE ASSESSEE AND WHEN THE INCOME SURRENDERED DURING THE COURSE OF SURVEY WAS DULY DECLARED BY TH E ASSESSEE IN THE RETURN OF INCOME REGULARLY FILED, THERE WAS NO CASE OF CONCEALMENT OF PARTICULARS OF HIS INCOME BY THE ASSESSEE OR FURNIS HING OF INACCURATE PARTICULARS OF SUCH INCOME AS RIGHTLY HELD BY THE L D. CIT(APPEALS) BY RELYING ON THE VARIOUS JUDICIAL PRONOUNCEMENTS. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(APPE ALS) CANCELLING THE PENALTY OF RS.15,45,000/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) AND UPHOLDING THE SAME, WE DISMISS THIS A PPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 02, 2016. SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 2 ND DAY OF SEPTEMBER, 2016 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-39, KOLKATA, PODDAR COURT, 8 TH FLOOR, 18, RABINDRA SARANI, KOLKATA-700 001 (2) M/S. M.B. JEWELLERS & SONS, P-10, DEBENDRA DUTTA LANE, KOLKATA-700 007 (3) CIT(APPEALS)-IV, KOLKATA; (4) CIT, KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.