Smt. Hema Bhatia, Kanpur V. Dy. Commissioner of Income Tax-II, Kanpur

ITA 303/LKW/2015

• Counselvise Citation: 30323714 RSA 2015
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-09-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Principle of natural justice; Revised return
• Section: 27; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.303/LKW/2015 ASSESSMENT YEAR:2001-02 DY.C.I.T.-II, KANPUR. VS SMT. HEMA BHATIA, 113/27, SWAROOP NAGAR, KANPUR. PAN:AGKPB7387B (RESPONDENT) (APPELLANT) SHRI P. K. KAPOOR, C.A. APPELLANT BY SHRI AMIT NIGAM, D.R. RESPONDENT BY 30/09/2015 DATE OF HEARING 14/10/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A)-I, KANPUR DATED 23/02/2015 FOR THE ASSESSMENT YEAR 2001-2002. 2. GROUND RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE AUTHORITIES BELOW, ON A DUE CONSIDE RATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY T HAT (A) THE 'APPELLANT' HAD FILED REVISED RETURN ON 21.08.2 003, WELL BEFORE THE OUTER TIME LIMIT FOR COMPLETION OF THE A SSESSMENT FOR THE ASSESSMENT YEAR 2001-02; (B) IN THE 'RETURN' SO FILED BY HER, SHE HAD DULY DISCL OSED A GIFT OF RS.2.00 LACS AND HAS EVEN SURRENDERED THE SAME FOR TAXATION; (C) TAX DUE ON THE BASIS OF SUCH A REVISED RETURN HAD D ULY BEEN PAID; AND (D) EVEN IF THE 'RETURN' SO FILED DID NOT COMPLETELY AN SWER THE REQUIREMENT OF PROVISION RELATING TO FILING OF REVI SED RETURN, THE SAME INCLUDED VOLUNTARY DISCLOSURE OF INCOME; (E) SUCH A 'RETURN' CONSTITUTED A VALID BASIS, FOR NON- LEVIABILITY OF PENAL PROVISIONS. SHOULD HAVE HELD THAT THE 'APPELLANT' HAD NEITHER C ONCEALED THE PARTICULARS OF HER INCOME NOR HAD FURNISHED INACCUR ATE PARTICULARS 2 THEREOF AND ACCORDINGLY NO PENALTY UNDER SECTION 27 1(1)(C) WAS LEVIABLE. 2. BECAUSE OTHERWISE ALSO THE ORDER DATED 27.05.20 09 PASSED BY THE DY. CIT-II, KANPUR LEVYING A PENALTY UNDER S ECTION 271(1)(C) ON THE 'CHARGE' THAT 'I HOLD THAT ASSESSEE HAS CONCEALED PARTICULARS OF INCOME TO THE EXTENT OF RS.2.00 LACS AND FURNISHED INACCURATE PARTICULARS OF ITS INCOME....' WAS VOID AB-INITIO AS THE SAME IS BASED ON A DIFFER ENT 'CHARGE' THAN THE CHARGE LEVELLED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ACCORDINGLY THE SAME WAS LIABLE TO BE QUASHED. 3. BECAUSE THE CASE LAW AS HAS BEEN REFERRED TO AND RELIED UPON BY THE 'CIT(A)' WHILE UPHOLDING THE LEVY OF PE NALTY UNDER SECTION 271(L)(C) IS DISTINGUISHABLE ON THE FACTS A ND IN ANY CASE THE ISSUE IS NOW COVERED FULLY IN FAVOUR OF THE 'APPELL ANT' AND AS PER THE PRINCIPLE LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT REPORTED IN (2 012) 348 ITR 306. 4. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY T O FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IN THE PRESENT CASE, REVISED RETURN WAS FILED BY THE ASSESSEE ON 21/08/2 003, COPY OF WHICH IS AVAILABLE ON PAGES 3 & 4 OF THE PAPER BOOK. HE ALSO SUBMITTE D THAT NOTICE U/S 148 WAS ISSUED BY THE ASSESSING OFFICER ON 28/03/2008, COPY AVAILABLE ON PAGE NO. 5 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT SINCE REVISE D RETURN WAS FILED BY THE ASSESSEE INCLUDING THE ADDITIONAL INCOME OF RS.2 LA C FOR WHICH PENALTY HAS BEEN IMPOSED BY THE ASSESSING OFFICER, PENALTY IS NOT JU STIFIED AND IN SUPPORT OF THIS CONTENTION, RELIANCE WAS PLACED BY HIM ON A JUDGMEN T OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF CHEAP CYCLE STORES VS . CIT [2006] 281 ITR 166 (ALL). 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT AS PER THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT CITED BY LEARNED A. R. OF THE ASSESSEE, IT WAS HELD THAT WHEN THE ASSESSEE HAS FILED REVISED RETURN OF INCOME AND IF NO CONCEALMENT HAS BEEN DETECTED BY THE ASSESSING OFFICER TILL THE TIME REVISED RETURN WAS FILED 3 DECLARING ADDITIONAL INCOME, PENALTY U/S 271(1)(C) COULD NOT BE LEVIED IN RESPECT OF SUCH ADDITIONAL INCOME. IN THE PRESENT CASE, REVIS ED RETURN WAS FILED BY THE ASSESSEE ON 21/08/2003 AND IN THIS REVISED RETURN O F INCOME, THE ASSESSEE INCLUDED ADDITIONAL INCOME OF RS.2 LAC IN RESPECT OF AMOUNT DEPOSITED IN BANK IN THE MONTH OF FEBRUARY 2001. NOTICE U/S 148 WAS ISSUED BY THE ASSESSING OFFICER ON 28/03/2008 I.E. MUCH AFTER THE FILING OF THE REVISE D RETURN OF INCOME BY THE ASSESSEE. AS PER THE ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER ON 21/11/2008 U/S 147/143(3), THE ONLY ADDITION MADE B Y THE ASSESSING OFFICER IS OF RS.2 LAC, WHICH WAS ALREADY INCLUDED BY THE ASSESSE E IN HER INCOME IN THE REVISED RETURN FILED BY HER. UNDER THESE FACTS, THIS JUDGM ENT OF HON'BLE ALLAHABAD HIGH COURT IS SQUARELY APPLICABLE AND RESPECTFULLY FOLLO WING THE SAME, WE HOLD THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICER IN THE PRE SENT CASE U/S 271(1)(C) IS NOT SUSTAINABLE. WE, THEREFORE, DELETE THE SAME. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:14/10/2015 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. RE GISTRAR