Gandhimanagar, Sulur V. ITO, Tiruppur

ITA 3071/CHNY/2014

• Counselvise Citation: 307121714 RSA 2014
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 18-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 16-12-2014
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T BANUSEKARC A
• Keywords: Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI ... , . , , BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.3071 /MDS./2014 (ASSESSMENT YEAR: 2010-11) M/S.GANDHIMA NAGAR , SARASWATHI NAGAR, 108,TRICHY ROAD, SULUR 641 402. VS. THE INCOME TAX OFFICER, WARD I(6), TIRUPUR. PAN AAIFG 2470 N ( / APPELLANT ) ( / RESPONDENT ) !' # $ / APPELLANT BY : MR.T.BANUSEKAR,C.A %&!' # $ / RESPONDENT BY : MR.A.B.KOLI, JCIT D.R ' ( # )* / DATE OF HEARING : 18.08.2015 + , # )* /DATE OF PRONOUNCEMENT : 15.10.2015 / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-II, COIMBATOR E DATED ITA NO.3071 /MDS/2014 2 30.09.2014 IN ITA NO.172/2013-14 PASSED UNDER SEC. 271(1)(C) READ WITH SECTION SEC. 250 OF THE ACT. 2. THE ASSESSEE HAS RAISED NINE ELABORATE GROUNDS IN ITS APPEAL. HOWEVER, THE CRUX OF THE ISSUE IS THAT THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LD. CIT (A) WHO HAS SUSTAINED THE MINIMUM PENALTY LEVIED AT ` 3,12,091/- UNDER SEC. 271(1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A FIRM, ENGAGED IN THE BUSINESS OF REAL ESTATE, FILED ITS RETURN OF INCOME ON 30.09.2010 ADMITTING INCOME AS ` 2,65,180/-. A SURVEY U/S.133A WAS CONDUCTED IN THE ASSESSEES PREMISES ON 06.09.2011. AT THE TIME OF SURVEY, CERTAIN INCRIMINATING MATERIALS WERE IMPOUN DED AND IT WAS FOUND THAT CERTAIN INCOME WAS NOT DISCLOSED IN ITS RETURN OF INCOME. IN RESPONSE TO NOTICE U/S.148 OF THE ACT, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 18.01.2012 RETURNING A TOTAL IN COME OF ` 12,75,180/- THEREAFTER, THE LD.A.O COMPLETED THE A SSESSMENT U/S.143(3) OF THE ACT ON THE BASIS OF REVISED RETUR N FILED ON 18.01.2012 WHEREIN THE ASSESSEE HAD ADMITTED THE EN HANCED INCOME ITA NO.3071 /MDS/2014 3 OF ` .12,75,180/-. WHILE DOING SO, THE LD. ASSESSING OFF ICER OBSERVED IN HIS ASSESSMENT ORDER THAT REVISING THE TOTAL INC OME AFTER INCRIMINATING MATERIALS WERE UNEARTHED WILL NOT AMO UNT TO TRUE DISCLOSURE AND THEREFORE, THERE IS A CASE FOR CONCE ALMENT OF INCOME BY THE ASSESSEE. HENCE, THE LD. ASSESSING OFFICER L EVIED MINIMUM PENALTY U/S.-271(1)(C) OF THE ACT ON THE INCOME EVA DED OF ` 10,10,000/- VIDE ORDER DATED 30.09.2013. 4. ON APPEAL, THE LD. CIT (A) CONFIRMED THE ORDER OF THE LD. ASSESSING OFFICER OBSERVING AS UNDER:- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIO NS OF THE APPELLANT AND THE MATERIALS AVAILABLE ON RECORD. A PERUSAL OF THE ABOVE WOULD INDICATE THE FOLLOWING: A) THE ASSESSEE FILED THE ORIGINAL RETURN OF INC OME ON 30/09/2010 DECLARING AN INCOME OF RS.2,65,178/- B) A SURVEY U/S.133A WAS CONDUCTED ON THE ASSESSE E ON 6/9/2011. AT THE TIME OF SURVEY INCRIMINATING DOCUMENTS WERE FOU ND INDICATING ADDITIONAL RECEIPTS OF RS.10,00,000/- AND RS.10,000 /- BY ASSESSEE, OVER AND ABOVE THE AMOUNT REFLECTED IN THE BOOKS OF THE ASSESSEE. C) THE ASSESSEE ADMITTED THIS ADDITIONAL INCOME OF RS.10,00,000/- AND RS.10,000/- IN THE REVISED RETURN OF INCOME. ITA NO.3071 /MDS/2014 4 6.1. A PERUSAL OF THE ABOVE FACTS AND CIRCUMSTANCES CLEARLY INDICATE THAT BUT FOR SURVEY AND SEIZURE OF INCRIMINATING DOCUMENTS U /S.133A, THE ASSESSEE WOULD NOT HAVE DISCLOSED THE ADDITIONAL RE CEIPT OF RS.10,00,000/- AND RS.10,000/-. THIS AMOUNTS TO CON CEALMENT OF INCOME BY THE ASSESSEE AND THEREFORE LIABLE FOR PENALTY. IN VIEW OF THE SAME, THE MINIMUM PENALTY LEVIED BY THE ASSESSING OFFICER OF RS.3,12,091/- IS CONFIRMED IN THE HANDS OF THE ASSESSEE. 5. BEFORE US, LD. A.R. ARGUED FOR DELETING THE PEN ALTY BY STATING AS FOLLOWS:- I) EXCEPT THE STATEMENT OF THE APPELLANT OFFERING ADDITIONAL INCOME THERE WAS NOTHING ON RECORD TO CORRELATE THE AMOUNT OFFERED WITH ANY CONCEALED INCOME. II) THERE WAS NO FURTHER INVESTIGATION OR ENQUIRY TO PROVE CONCLUSIVELY THAT THERE WAS CONCEALED INCOME. III) NOTHING IN THE SLIPS IMPOUNDED GIVE ANY DETAI LS ABOUT THE NATURE OF CONCEALED INCOME. IV) THE ASSESSEE HAD AGREED FOR THE ADDITION SO AS TO SIMPLIFY THE ASSESSMENT PROCEEDINGS AND NOT CONFRONT WITH THE RE VENUE. V) PENALTY CANNOT BE LEVIED ON THE AGREED INCOME O FFERED DURING THE COURSE OF SURVEY PROCEEDINGS UNLESS THE CONCEAL ED INCOME IS SUBSTANTIATED. ITA NO.3071 /MDS/2014 5 6. THE LD. D.R ON THE OTHER HAND, ARGUED IN SUPPOR T OF THE ORDERS OF THE REVENUE BY STATING THAT, BUT FOR THE SURVEY AND THE INCRIMINATING MATERIALS IMPOUNDED DURING THE COURSE OF SURVEY PROCEEDINGS, THE INCOME OF ` 10,10,000/- WOULD HAVE ESCAPED FROM ASSESSMENT AND THEREFORE IT WAS JUSTIFIED FOR THE L EVY OF PENALTY. 7. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PE RUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSING THE ASSE SSMENT ORDER WE FIND THAT LD. ASSESSING OFFICER HAS NOT EXPLICITLY MENTIONED AS TO WHAT IS THE INCRIMINATING DOCUMENTS FOUND DURING THE COU RSE OF SURVEY WHICH RESULTED IN THE ADDITION OF ` 10,10,000/- IN THE HANDS OF THE ASSESSEE. FURTHER IT IS APPARENT FROM THE ORDER OF THE LD. ASSESSING OFFICER THAT THE MANAGING DIRECTOR HAD SIMPLY ACCEP TED SUPPRESSION IN SALES AND ADMITTED ` 10,10,000 AS UNDISCLOSED. THERE IS NO OTHER CORROBORATING EVIDENCE TO SUGGEST CONCLUSIVELY THAT THE ASSESSEE HAD SUPPRESSED INCOME OF ` 10,10,000/-. THEREFORE, IT APPEARS THAT THE ASSESSEE HAS AGREED FOR THE ADDITION IN ORDER TO AV OID UNNECESSARY LITIGATION. HENCE, WE DO NOT FIND THIS CASE FIT FOR LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. ACCORDINGLY WE HEREBY DIR ECT THE LD. ITA NO.3071 /MDS/2014 6 ASSESSING OFFICER TO DELETE THE PENALTY LEVIED BY T HE LD. ASSESSING OFFICER WHICH WAS FURTHER CONFIRMED BY THE LD. CIT (A). 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 15 TH OCTOBER, 2015 AT CHENNAI. SD/- SD/- ( . . . ) ( N.R.S.GANESAN ) ( . '#$ %' ) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 15 TH OCTOBER, 2015. K S SUNDARAM. # %)-. / .,) /COPY TO: 1. !' /APPELLANT 2. %&!' /RESPONDENT 3. ' 0) ( ) /CIT(A) 4. ' 0) /CIT 5. .3 %)45 /DR 6. 6 7( /GF