DY. C.I.T. CENTRAL CIR.-1(2), V. M/S BULDHANA URBAN CO-OP CREDIT SOCIETY LTD., Buldhana

ITA 299/NAG/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5044 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: U U KASAR
• Assessee Lawyers: UMANG AGARWAL
• Keywords: Search and seizure; Bonafide mistake
• Section: 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL BENCH, NAGPUR (AT E - COURT, PUNE) BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO. 299 /NAG /20 16 / ASSESSMENT YEAR : 2009 - 10 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1(2), NAGPUR. ....... / APPELLANT / V/S. M/S. BULDHANA URBAN CO - OPERATIVE CREDIT SOCIETY LTD. SAHAKARI SETU HUTATMA GOREPETH, BULDHANA, DIST. BULDHANA - 443 001 PAN: AAAAB2572M / RESPONDENT A SSESSEE BY : SHRI UMANG AGARWAL REVENUE BY : SHRI U.U. KASAR, SR. DR / DATE OF HEARING : 1 9 .0 2 .2020 / DATE OF PRONOUNCEMENT : 19 .02 .2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE REVENUE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS) - 3, NAGPUR DATED 24.02.2016 FOR THE ASSESSMENT YEAR 2009 - 10 AS PER THE FOLLOWING GROUNDS OF APPEAL ON RECORD: 2 ITA NO. 299 /NAG /20 16 A.Y. 2009 - 10 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.54,52,813/ - LEV IED U/S.271(1)(C) BY THE ASSESSING OFFICER TREATING IT AS BONAFIDE MISTAKE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE DISCLOSED THE INCOME DETECTED IN SEARCH ONLY AFTER ISSUE OF NOT ICE U/S.153A OF I.T. ACT WHICH DOES NOT AMOUNT TO BONA - FIDE AND VOLUNTARY DISCLOSURE. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY WITH REGISTERED OFFICE IN BULDHANA, MAHARASHTRA. THE MAIN BUSINESS OF THE SOCIETY IS ACCEPTING DEPOSITS AND PROVIDING CREDIT FACILITIES TO THE MEMBERS OF THE SOCIETY. THERE WAS SEARCH AND SEIZURE OPERATION U/S.132(1) AND 133A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN THE PREMISES OF THE ASSESSEE ALONG WITH THE TRUSTEES OF THE GROUP, SHRI RADHESHYAM CHANDAK AND OTHERS ON 20.03.2009 BY INVESTIGATION WING. THE RETURN U/S.139 OF THE ACT WAS FILED BY THE ASSESSEE ON 26.11.2010 DECLARING TOTAL INCOME AT RS .8,19,39,594/ - AFTER CLAIMING BROUGHT FORWARD LOSS OF ( - ) RS.7,89,49,425/ - AND DEDUCTIONS U/S.80P(2)(A)(I)/(E) OF RS.6,40,10,846/ - . THE TOTAL INCOME INCLUDES THE ADDITIONAL INCOME AMOUNTING TO RS.15,77,30,000/ - DECLARED U/S.132 (4) PURSUANT TO THE SEARCH A CTION. THIS RETURN WAS FURTHER REVISED ON 21.12.2010 AT TOTAL INCOME OF RS.31,59,019/ - . THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U/S.143(3) ON 31.12.2010 COMPUTING TOTAL INCOME OF RS.27,78,95,810/ - . PENALTY PROCEEDINGS WERE INITIATED U/S.271(1 )(C) OF THE ACT BY THE ASSESSING OFFICER AND THE ORDER OF PENALTY WAS MADE DATED 14.03.2013 LEVYING PENALTY OF RS.54,52,813/ - . 3. THE GRIEVANCE OF THE REVENUE IS AGAINST DELETION OF PENALTY LEVIED U/S.271(1)(C) OF THE ACT BY THE LD. CIT(APPEALS) WHICH WA S IMPOSED BY THE 3 ITA NO. 299 /NAG /20 16 A.Y. 2009 - 10 ASSESSING OFFICER TO THE ASSESSEE AS PER THE ASSESSMENT ORDER ON THE BASIS OF VARIOUS ADDITIONS/ DISALLOWANCE AS ON RECORD. 4. THE LD. AR OF THE ASSESSEE SUBMITTED THAT QUANTUM ADDITION HAS BEEN ACCEPTED BY THE ASSESSEE AND IT HAS REACHED FINALITY. REGARDING PENALTY ISSUE, THE LD. AR OF THE ASSESSEE INVITED OUR ATTENTION TO THE PENALTY ORDER AND THE ASSESSMENT ORDER AND SUBMITTED THAT IN THE ASSESSMENT ORDER PENALTY HAS BEEN LEVIED U/S.271AAA AND U/S.271(1)(C) OF THE ACT WHEREIN IN THE PEN ALTY ORDER, ULTIMATELY THE ASSESSING OFFICER LEVIED PENALTY U/S.271(1)(C) OF THE ACT. THEREAFTER, THE LD. CIT(APPEALS) ADJUDICATED THE ISSUE AND HELD THAT THE PENALTY LEVIED U/S.271(1)(C) IS NOT VALID AND NOW THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDER OF THE LD. CIT(APPEALS). 5. THE LD. DR FOR THE REVENUE HAS PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 6. WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS. WE HAVE GIVEN CONSIDERABLE THOUGHT TO THE FINDINGS OF THE LD. CIT(APPEALS). WE FIND THAT THE LD. CIT(APPEALS) HELD THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT BY THE ASSESSING OFFICER IS NOT VALID AFTER PLACING RELIANCE ON THE DECISIONS IN THE CASE OF DR.NAMAN A SHASTRI VS. ACIT, IN IT(SS) NOS. 561 TO 563 , ITAT, AHMADABAD AND ALSO ON THE DECISION IN THE CASE OF AMIT MENS WEAR VS. DCIT IN ITA NO.4437/DEL/2012 , ITAT, DELHI AND REPRODUCED THE RE LEVANT PARAGRAPHS IN HIS ORDER WHICH ARE ON RECORD. AFTER CONSIDERING THE DECISIONS MENTIONED HEREINABOVE, THE LD. CIT(APPEALS) HELD AS FOLLOWS: 16. CONSIDERING THE JUDGMENTS DISCUSSED ABOVE AND THE FACTS OF THE CASE, IT IS HELD THAT PENALTY U/S.271(1)(C ) IS NOT LEVIABLE FOR A.Y.2009 - 10 IN ASSESSEES CASE. 4 ITA NO. 299 /NAG /20 16 A.Y. 2009 - 10 17. THEREFORE, LEVY OF PENALTY U/S.271(1)(C) FOR A.Y.2009 - 10 BY THE ASSESSING OFFICER IS HELD AS INVALID AND CONTRARY TO THE PROVISIONS OF LAW. THE ORDER U/S.271(1)(C) MADE BY THE AO IS CANCELLED. THE ISSUE IS NOT REQUIRED TO BE DISCUSSED ON MERITS. ON PERUSAL OF THE FINDINGS OF THE LD. CIT(APPEALS) AND DECISIONS RELIED ON BY THE LD. CIT(APPEALS), WE ARE OF THE OPINION THAT THIS IS A CASE WHERE PENALTY CANNOT BE LEVIED U/S.271(1)(C) OF THE ACT AND TH EREFORE, WE DO NOT FIND ANY INFIRMITY WITH THE FINDINGS OF THE LD. CIT(APPEALS) WHICH IS THEREBY UPHELD. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRO NOUNCED ON 19 TH DAY OF FEBRUARY , 2020 . SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 19 TH FEBRUARY , 20 20 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 3, NAGPUR. 4. THE CIT( CENTRAL), NAGPUR. 5 . , , / DR, ITAT, NAGPUR. 6. / GUARD FILE. // TRUE COP Y // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 5 ITA NO. 299 /NAG /20 16 A.Y. 2009 - 10 DATE 1 DRAFT DICTATED ON 19 .0 2 .2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 1 9 .02 .2020 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER