Smt. Deepika Jayesh Ghael, Surat V. The Income tax Officer,Ward-3(3), Surat

ITA 3023/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0180 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 17-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: ANIL K SHAH
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.3023/AHD/2013 / ASSTT. YEAR: 2006-2007 SMT.DEEPIKA JAYESH GHAEL C/11, TIRUPATI NAGAR BEHIND RAJHANS CINEMA PIPLOD, SURAT 395 007. PAN : AEDPG 1644 K VS ITO, WARD - 3(3) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI ANIL K. SHAH, AR REVENUE BY : MS.SONIA KUMAR, SR.DR / DATE OF HEARING : 27/10/2016 / DATE OF PRONOUNCEMENT: 27/10/2016 $%/ O R D E R ASSESSEE IS IN APPEAL AGAINST ORDER OF LD.CIT(A)-IV , SURAT DATED 05.09.2013 PASSED FOR THE ASTT.YEAR 2006-2007. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING PENALTY OF RS.4,13,520/- LEVIED UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT P ENALTY HAS BEEN IMPOSED AGAINST ADDITION OF RS.13,11,310/- MADE BY THE AO UNDER SECTION 68 OF THE ACT FOR ALLEGED CASH DEPOSITS IN THE BANK AC COUNT. THIS ADDITION HAS BEEN CHALLENGED BY THE ASSESSEE BEFORE THE TRIBUNAL , AND THE TRIBUNAL IN ITA NO.720 AND 721/AHD/2011 FOR A.Y.2006-07 HAS DELETED THE SAME. COPY OF THE ITA NO.3023/AHD/2013 2 TRIBUNALS ORDER DATED 29.6.2016 HAS BEEN PLACED ON THE RECORD ALONG WITH SUBMISSIONS OF THE LD.COUNSEL FOR THE ASSESSEE. TH E LD.DR WAS UNABLE TO CONTROVERT THIS CONTENTION OF THE ASSESSEE. 4. I HAVE GONE THROUGH THE CASE RECORD. I FIND SEC TION 271(1)(C) OF THE ACT HAS A DIRECT BEARING ON THE CONTROVERSY, THEREFORE, I TAKE NOTE OF RELEVANT PROVISION, WHICH READS AS UNDER: '271. FAILURE TO FURNISH RETURNS, COMPLY WITH NOTIC ES, CONCEALMENT OF INCOME, ETC. (1) THE ASSESSING OFFICER OR THE C OMMISSIONER (APPEALS) OR THE CIT IN THE COURSE OF ANY PROCEEDIN GS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON (A) AND (B) ** ** ** (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY. (I)AND (INCOME-TAX OFFICER,)** ** ** (III) IN THE CASES REFERRED TO IN CLAUSE (C) OR CLA USE (D), IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM WHICH SHALL NOT BE LE SS THAN, BUT WHICH SHALL NOT EXCEED THREE TIMES, THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INCOME OR FRINGE BENEFIT THE FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME OR FRINGE BENEFITS: EXPLANATION 1- WHERE IN RESPECT OF ANY FACTS MATERI AL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMM ISSIONER (APPEALS) OR THE CIT TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FI DE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATIO N OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OR SUCH PE RSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF TH IS SUB-SECTION, BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICU LARS HAVE BEEN CONCEALED.' ITA NO.3023/AHD/2013 3 5. A PERUSAL OF SUB-CLAUSE (III) OF SECTION 271(1)( C) WOULD INDICATE THAT IN CASE AN ADDITION IS BEING MADE TO THE INCOME OF AN ASSESSEE, AND IT IS ESTABLISHED THAT THE ASSESSEE HAS CONCEALED OR FURN ISHED INACCURATE PARTICULARS QUA THAT ADDITION, THEN APART FROM TAX TO BE PAYABL E BY THE ASSESSEE, HE WOULD PAY AN AMOUNT EQUIVALENT TO THE TAX OR THREE TIMES OF THE TAX AS PENALTY UNDER SECTION 271(1)(C) OF THE ACT. MEANING THEREBY, THE PENALTY WOULD BE COMPUTED EQUIVALENT TO THE TAX OR THREE TIME OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE ON THE ADDITIONS MADE TO HIS INCOME FO R WHICH HE HAS HELD GUILTY OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME. IN THE PRESENT CASE, THE ADDITION ON WHICH PENALTY HAS BEEN IMPOSED BY THE AO HAS BEEN DELETED BY THE ITAT, AND THEREFORE, THE VERY ADDITION ON WHICH THE AMOUNT OF TAX SOUGHT TO BE EVADED, HAS BEEN EXT INGUISHED. IN VIEW OF THIS, PENALTY IS NOT IMPOSABLE UPON THE ASSESSEE, W HICH IS ACCORDINGLY DELETED, AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE A LLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 27 TH OCTOBER, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 27/10/2016