M/s. Hotel Shree, Ahmednagar V. Assistant Commissioner of Income tax,

ITA 2977/PUN/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9157 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 29-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Section: 143(3); 133A

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.2975/PUN/2016 / ASSESSMENT YEAR : 2012-13 M/S. HOTEL DARSHAN, NEAR SHREE SAI BABA TEMPLE, PIMPALWADI ROAD, A.P. SHIRIDI, TAL. RAHATA, DIST. AHMEDNAGAR. PAN : AAFFH3480C . / APPELLANT V/S ASST.COMMISSIONER OF INCOME TAX, AHMEDNAGAR CIRCLE, AHMENDNAGAR, BEHIND MAHESH THEATRE, AURANGABAD ROAD, AHMEDNAGAR 414001. . / RESPONDENT . / ITA NO.2976/PUN/2016 / ASSESSMENT YEAR : 2012-13 M/S. HOTEL KETAN, NEAR SHREE SAI BABA TEMPLE, PIMPALWADI ROAD, A.P. SHIRIDI, TAL. RAHATA, DIST. AHMEDNAGAR - 423109. PAN : AAFFH3481D . / APPELLANT V/S ASST.COMMISSIONER OF INCOME TAX, AHMEDNAGAR CIRCLE, AHMENDNAGAR, BEHIND MAHESH THEATRE, AURANGABAD ROAD, AHMEDNAGAR 414001. . / RESPONDENT . / ITA NO.2977/PUN/2016 / ASSESSMENT YEAR : 2012-13 M/S. HOTEL SHREE, NEAR SHREE SAI BABA TEMPLE, PIMPALWADI ROAD, A.P. SHIRIDI, TAL. RAHATA, DIST. AHMEDNAGAR - 423109. PAN : AAFFH3479K . / APPELLANT V/S 2 ASST.COMMISSIONER OF INCOME TAX, AHMEDNAGAR CIRCLE, AHMENDNAGAR, BEHIND MAHESH THEATRE, AURANGABAD ROAD, AHMEDNAGAR 414001. . / RESPONDENT . / ITA NO.2978/PUN/2016 / ASSESSMENT YEAR : 2012-13 NITIN UTTAMRAO KOTE, NEAR SHREE SAI BABA TEMPLE, PIMPALWADI ROAD, A.P. SHIRIDI, TAL. RAHATA, DIST. AHMEDNAGAR - 423109. PAN : ANCPKL981F . / APPELLANT V/S ASST.COMMISSIONER OF INCOME TAX, AHMEDNAGAR CIRCLE, AHMENDNAGAR, BEHIND MAHESH THEATRE, AURANGABAD ROAD, AHMEDNAGAR 414001. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI VIVEK AGGARWAL / ORDER PER ANIL CHATURVEDI, AM : THESE FOUR APPEALS FILED BY DIFFERENT ASSESSEES ARE EMANATING OUT OF SEPARATE ORDERS OF COMMISSIONER OF INCO ME TAX (APPEALS)-2, PUNE DT.16.09.2016 FOR THE ASSESSMENT YEAR 2012- 2013. 2. BEFORE US, AT THE OUTSET LD.A.R. SUBMITTED THAT THOUGH THE APPEALS ARE FILED BY DIFFERENT ASSESSES BUT THEY BELONG TO THE / DATE OF HEARING :06.07.2017 / DATE OF PRONOUNCEMENT: 26.07.2017 3 SAME GROUP AND THE FACTS AND ISSUES INVOLVED IN ALL THE AP PEALS ARE IDENTICAL EXCEPT FOR THE AMOUNTS INVOLVED AND THEREFOR E THE SUBMISSIONS MADE BY HIM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO OTHER APPEALS ALSO AND THEREFORE, ALL T HE APPEALS CAN BE HEARD TOGETHER. THE AFORESAID SUBMISSION OF THE LD.A.R. HAS NOT BEEN OBJECTED TO BY LD.D.R. WE, THEREFORE FOR THE SAKE OF CONVENIENCE, PROCEED TO DISPOSE OF ALL THE APPEALS BY A CONSOLIDATED ORDER. HOWEVER, WE PROCEED WITH NARRATING T HE FACTS IN ITA.NO.2975/PUN/2016. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- 3.1 ASSESSEE IS A PARTNERSHIP FIRM AND DERIVING INCOME FROM RENTING OF ITS HOTEL PREMISES AND SHOPS THEREIN. A SURVE Y U/S 133A OF THE ACT WAS CARRIED OUT ON 24.01.2012 WHEREIN AS SESSEE ADMITTED ADDITIONAL INCOME OF RS.20,00,000/- ON ACCOUNT OF R ENT RECEIPTS. THEREAFTER ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2012-13 ON 22.10.2012 SHOWING TOTAL INCOME OF RS.46,14,320/- WHICH INCLUDED THE ADDITIONAL INCOME ADMITTED DURING THE COU RSE OF SURVEY. THE CASE WAS TAKEN UP FOR SCRUTINY AND THER EAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT AND THE RE TURN OF INCOME OFFERED BY THE ASSESSEE WAS ACCEPTED WITHOUT MAK ING ANY ADDITION. ON THE INCOME OF RS.20,00,000/- DECLARED DURING TH E COURSE OF SURVEY, AO VIDE PENALTY ORDER DT.28.09.2015 HELD THAT THE INCOME OF RS.20,00,000/- DECLARED DURING THE COURSE O F SURVEY REPRESENTED THE CONCEALED INCOME AS HE WAS OF THE VIEW THAT IF THERE HAD BEEN NO SURVEY ACTION, THE RENT INCO ME OFFERED 4 BY THE ASSESSEE WOULD HAVE ESCAPED TAXATION. HE ACCOR DINGLY LEVIED PENALTY OF RS.6,18,000/- U/S 271(1)(C) OF THE ACT. AGGRIEVED BY THE PENALTY ORDER OF THE AO, ASSESSEE CARR IED THE MATTER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO. AGGRIE VED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED CIT (A) HAS ERRED IN UPHOLDING TH E ORDER OF THE ASSESSING OFFICER LEVYING PENALTY U/S. 271 (1)( C) OF RS. 6 , 18 , 000/- WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. THE LEARNED CIT (A) HAS ERRED IN HOLDING THAT THERE IS NO MERIT IN THE CONTENTION OF THE APPELLANT THAT THE P ENALTY PROCEEDINGS UNDER EXPLANAT I ON 1 TO SECTION 271 (1)(C) ARE RELATED TO THE ASSESSMEN T PROCEEDINGS AND CANNOT BE EXTENDED TO THE SURVEY. 3. THE LEARNED CIT (A) DID NOT APPRECIATE THE FACT THA T THE INCOME DECLARED IN SURVEY WAS DULY DISCLOSED IN THE RETURN OF INCOME FILED AND THE ASSESSMENT WAS COMPLETED U/ S 143(3) ACCEPTING THE RETURNED INCOME AND THERE WERE NO ADDITIONS OR DISALLOWANCES MADE I N COMPUTING THE TOTA L INCOME. 4. THE LEARNED CIT (A) ERRED IN CONFIRMING THE PENALT Y ON THE BASIS OF SURMISES AND PRESUMPTIONS BY HOLDING T HAT THE APPELLANT WOULD HAVE CONCEALED THE INCOME HAD THERE BEEN NO SURVEY . 4. BEFORE US, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT THE ADDITION AL INCOME ADMITTED DURING THE COURSE OF SURVEY WAS OFFERED IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND WAS ALSO ACCEP TED BY THE REVENUE AND ON SUCH INCOME ADMITTED DURING THE COU RSE OF SURVEY, PENALTY WAS LEVIED IN THE CASE OF OTHER GROUP AS SESSEE WHICH ARE NOW IN APPEAL BEFORE TRIBUNAL. BEFORE US, LD.A.R. RELIED ON THE DECISIONS OF TRIBUNAL IN THE CASE OF ANAND SUR ESH 5 JAIN AND SURESH N. JAIN IN ITA NOS.353/PN/2015 AND 354/PN/2015 ORDERS DT.13.01 . 2017 AND SUBMITTED THAT THE ISSUE IN THE PRESENT CASE IS DIRECTLY COVERED BY THE AFORESA ID DECISION OF PUNE TRIBUNAL AND THEREFORE SUBMITTED THAT IN THE PRESENT CASE ALSO, THE PENALTY BE DELETED. LD.D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF AO. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ON THE INCOME D ECLARED DURING THE COURSE OF SURVEY. IT IS AN UNDISPUTED FACT TH AT THE ADDITIONAL INCOME ADMITTED DURING THE COURSE OF SURVEY WAS INCLUDED IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND THE RETURNED INCOME THAT WAS FILED BY THE ASSESSEE WAS ACCE PTED WITHOUT ANY FURTHER ADDITIONS. THE AO HAD LEVIED PENALTY U /S 271(1)(C) OF THE ACT ON THE INCOME OFFERED DURING THE COURSE OF SURVEY. ON THE ISSUE OF INCOME OFFERED DURING THE COURSE OF SURVEY, WE FIND THAT ON IDENTICAL FACTS IN THE CASE OF ANAND SURESH JAIN AND SURESH N. JAIN (SUPRA) IN ITA NOS.353 AND 354/PUN/2015, THE CO-ORDINATE BENCH OF THE TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 6. WE FURTHER FIND THAT THE CO-ORDINATE BENCH OF THE TRIBUNA L IN THE CASE OF ANAND SURESH JAIN (SUPRA) AND AFTER RELYIN G ON THE DECISION OF PUNE TRIBUNAL IN THE CASE OF NANDKKISHORE TULSID AS KATORE VS. ACIT (ITA NO.2174 TO 2180/PN/2014 ORDER DT . 14 . 12 . 2016) HAS HELD THAT WHEN ASSESSEE HAS OFFERED ADDITIONAL INCOME IN THE RETURN OF INCOME AND WHICH HAS BEEN ACCEPT ED BY 6 AO THEN NO PENALTY ON ACCOUNT OF CONCEALMENT OF INCOME U /S 271(1)(C) IS LEVIABLE AND FURTHER THE ADDITIONAL INCOME OFFERED DURING THE COURSE OF SURVEY DOES NOT PARTAKE THE NATU RE OF ADDITIONAL INCOME REFERRED TO IN EXPLANATION 5 TO SEC.271(1)(C ) OF THE ACT. IN VIEW OF THE AFORESAID FACTS AND IN THE ABSENCE OF ANY CONTRARY BINDING DECISION POINTED OUT BY REVENUE IN ITS SU PPORT, FOLLOWING THE DECISION IN THE CASE OF ANAND SURESH JAIN (SUP RA), WE ARE OF THE VIEW THAT NO PENALTY IS LEVIABLE IN THE PRES ENT CASE AND THEREFORE WE DIRECT ITS DELETION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.2975/PUN/2016 IS ALLOWED. 8. AS FAR AS APPEALS IN ITA NOS.2976 TO 2978/PUN/2016 ARE CONCERNED, SINCE BOTH THE PARTIES BEFORE US HAVE SUBMITT ED THAT THE FACTS AND ISSUE OF THE CASE FOR THE APPEAL IN ITA NO.2975/PUN/2016 ARE IDENTICAL TO THE FACTS AND ISSUE OF THE CASES IN ITA NOS.2976-2978/PUN/2016, WE, THEREFORE, FOR TH E REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.2975/PUN/2016 AND FOR SIMILAR REASONS, ALLOW THE APPEALS OF ASSESSEE IN ITA NOS.2976 TO 2978/PUN/2016 ALSO. 9 . IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE A LLOWED. ORDER PRONOUNCED ON 26 TH DAY OF JULY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 26 TH JULY, 2017. YAMINI 7 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. CIT(A)-V, PUNE. CIT-V, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER , // TRUE COPY / / //TRUE COPY// ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE