JAYAMALA SUTRAVE, MUMBAI V. DCIT CEN CIR 24 & 26, MUMBAI

ITA 2992/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2057 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 143(3); 142(1); 153A; 32; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI C. N. PRASAD , JM AND SHRI N. K. PRADHAN , AM ./ I.T.A. NO. 2992/MUM/2015 ( / ASSESSMENT YEAR: 2011 - 12 ) MRS. JAYAMALA SUTRAVE E - 1603, XCLUSIVE, AKURLI ROAD, LOKHANDWALA COMPLEX, KANDIVALI (E), MUMBAI - 400 101 / VS. DY. CIT, CENTRAL CIRCLE - 24 & 26 MUMBAI ./ ./ PAN/GIR NO. AAZPN 5847 K ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAJESH OJHA / DATE OF HEARING : 19.10.2016 / DATE OF PRONOUNCEMENT : 11 .1 1 .2016 / O R D E R PER N. K. PRADHAN , A. M.: THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 20 11 - 12 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 51, MUMBAI AND ARISES OUT OF PENALTY U/S 271(1) (C ) OF THE INCOME TAX ACT, 1961 (THE ACT). 2 ITA NO. 2992/MUM/2015 (A.Y. 2011 - 12) MRS. JAYAMALA SUTRAVE VS. DY. CIT 2. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN CONFIRMING PENALTY OF RS.71,741/ - LEVIED BY THE AO U/S 271(1)(C) NOT APPRECIATING THE SUBMISSION THAT THE ASSESSMENT UNDER CONSIDERATION WAS NOT PURSUANT TO RETURN FILED U/S 153A ; THAT THE ASSESSEE HAD FILED THE RETURN OF INCOME U/S 139(1) ; THAT THERE WAS NO A DDITION OF INCOME MADE IN THE ASSESSMENT I.E. THE RETURNED INCOME HAD BEEN ACCEPTED AS THE ASSESSED INCOME ; THAT IN SUCH CIRCUMSTANCES THERE WA S NO QUESTION OF CONCEALM ENT OF INCOME U/S 271(1)(C) OF THE ACT OR UNDER ANY PROVISIONS OF THE ACT AND THAT IN VIEW OF PROVISIONS OF SECTION 271AAA THE PENALTY WAS WRONGLY INITIATED AND LEVIED BY T HE AO U/S 271(1)(C) OF THE ACT. 3. A SEARCH AND SEIZURE ACTION U/S. 1 3 2 OF THE AC T WAS C ARRIED OUT IN THE CASE OF TRANSW ORLD F U RTICHEM PVT. LTD. GROUP OF CASES ON 11.02.2011 AND THE ASSESSEE WAS COVERED IN THE SAID ACTION. PURSUANT TO THE SEARCH, THE ASSESSEE FILED A RETURN OF INCOME DECLARING TOTAL INCOME AT RS.9,26,713/ - . IN THE SAID RETURN INCOME, THE ASSESSEE DISCLOSED RS.5,18,254/ - AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. IT WAS EXPLAINED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ( AO ) THAT THE ABOVE SUM OF RS.5,18,254/ - COMPRISES OF INTEREST RECEIVED ON SAVINGS BANK ACCOUNT AND LOAN GIVEN FOR WHICH THE DETAILS WERE NOT READILY AVAILABLE. THE AO HAD INITIATED THE PENALTY PROCEEDINGS BY ISSUING NOTICE U/S. 271(1)(C) FOR THE REASON THAT THE ASSESSEE HAD NOT GIVEN SUFFICIENT PROOF/DETAILS OF THE SOURCE OF INCOME. THE AO ALSO IMPOSED A PENALTY @ 100% ON THE INCOME OF RS.5,18,254/ - WHICH COMES TO RS. 71,741/ - AS THE ASSESSEE HAD NOT FILED A N APPEAL BEFORE THE LD. CIT(A). 3 ITA NO. 2992/MUM/2015 (A.Y. 2011 - 12) MRS. JAYAMALA SUTRAVE VS. DY. CIT 4. THE LD. CIT(A) CAME TO A FINDING THAT SUBSEQUENT TO THE SEARCH ON 11.02.2011, THE ASSESSEE FILED A R ETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 2 7 .4.2012. THEREFORE , THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE RETURN OF INCOME WAS FILED VOLUNTAR IL Y . ALSO THE LD. CIT(A) FOUND THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT CORRO BORATED BY RELEVANT MATERIAL S / DOCUMENTS. THEREFORE, THE LD. CIT(A) UPHELD THE PENALTY OF RS.71,741/ - IMPOSED BY THE AO U/S. 271(1)(C) OF THE ACT. 5. NONE APPEARED ON BEHALF OF THE APPELLANT. 6. THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A) UPHOLDI NG THE PENALTY OF RS.71,741/ - LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT. 7. WE HAVE PERUSED T HE RELEVANT MATERIAL ON RECORD AND HEARD THE LD. DR. WE FIND THAT THE ASSESSEE FILED HER RETURN OF INCOME FOR THE AY 2011 - 12 ON 27.04.2012 DECLARING TOTAL INCOM E AT RS.9,26,713/ - . THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT. AFTER ISSUING NOTICE U/S 143(2) AND 142(1) OF THE ACT, THE AO MADE AN ASSESSMENT U/S 143(3) ON 20.03.2013 ACCEPTING THE RETURN ED INCOME OF RS.9,26,713/ - DISCLOSED BY THE ASSESSEE . THUS FROM THE ASSESSMENT ORDER PASSED BY THE AO, IT IS EVIDENT THAT THE ASSESSMENT IN THE PRESENT CASE HAS NOT BEEN MADE U/S 153A OF THE ACT. THERE IS PROVISION IN THE ACT FOR FILING BELATED RETURN OF INCOME U/S 139(4) OF THE ACT. ALSO WE HAVE MENTIONED HEREINABOVE THAT THE AO HAS ACCEPTED THE RETURN ED INCOME OF RS.9,26,713/ - SHOWN BY THE ASSESSEE. SO THIS IS NOT THE CASE WHERE ONE CAN INFER CONCEALMENT OF INCOME OR INACCURATE PARTICULARS OF INCOME . T HEREFORE, THE PENALTY OF RS.71,741/ - IMPOSED BY THE AO U/S 271(1)(C) OF THE ACT IS DELETED. 4 ITA NO. 2992/MUM/2015 (A.Y. 2011 - 12) MRS. JAYAMALA SUTRAVE VS. DY. CIT 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEM BER 11 , 201 6 SD/ - SD/ - ( C. N. PRASAD ) ( N. K. PRADHAN ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 . 1 1 .201 6 . . ./ AKS ON TOUR (DOC) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI