Shree Neelkanth Corporation, Gandhinagar V. The ACIT, GNR Circle, Gandhinagar

ITA 3076/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85698 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 26-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: S N DIVETIA
• Keywords: Principle of natural justice; Revised return
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFOR E SHRI MUKUL KR. SHRAWAT, J.M. & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO. 3076 / AHD/ 20 1 3 (A SSESSMENT YEAR: 2009 - 10) SHREE NEELKANTH CORPORATION NAKSHATRA IOC ROAD CHANDKHEDA, GANDHINAGAR V/S THE A.C.I.T., GNR CIRCLR, GANDHINAGAR (APPELLANT) (RESPONDENT) PAN: ABFFS 1440L APPELLANT BY : SHRI S.N. DIVETIA, A.R. RESPONDENT BY : SHRI B.L. YADAV, SR. D.R. ( )/ ORDER DATE OF HEARING : 30 - 01 - 2015 DATE OF PRONOUNCEMENT : 20 - 0 2 - 2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) , GANDHINAGAR, AHMEDABAD DATED 01.11.2013 FOR A.Y. 2009 - 10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESS EE IS PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS CONSTRUCTION WORK , LAND PURCHASE AND ITS DEVELOPMENT. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2009 - 10 ON 30.07.2009 ITA NO 3076/AHD/2013 . A.Y. 2009 - 10 2 DECLARING TOTAL INCOME OF RS. 20,10,190/ - . SUBSEQUENTLY, A S URVEY U/S. 133A WAS CONDUCTED ON 10.09.2009 AND DURING THE COURSE OF SURVEY, THE PARTNER SHRI RAGESHKUMAR SHAH DISCLOSED RS. 1,20,00,000/ - AS UNDISCLOSED INCOME FOR A.Y. 2009 - 10 AND RS. 1,80,00,000/ - FOR A.Y. 20 10 - 11 . ASSESSEE THEREAFTER REVISED ITS RETURN OF INCOME ON 28.09.2009 FOR A.Y. 2009 - 10 DECLARING TOTAL INCOME AT RS. 1,40,10,190/ - . THE ASSESSMENT WAS THEREAFTER FRAMED U/S. 143(3) VIDE ORDER DATED 02.12.2011 AND THE ASSESSMENT WAS COMPLETED ON THE RETURN ED INCOME. ON THE ADDITIONAL INCOME OF RS. 1,2 0,00,000/ - THAT WAS DISCLOS ED DURING THE COURSE OF SURVEY, A.O VIDE PENALTY ORDER DATED 22.06.2012 LEVIED PENALTY OF RS. 45,50,000/ - U/S. 271(1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER DATED 0 1.11.2013 CONFIRMED THE ORDER OF A.O. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS; - 1.1 THE ORDER PASSED U/S.250 FOR THE A.Y.2009 - 10 ON 1 - 11 - 2013 BY CIT(A) - GNR A BAD, CONFIRMING THE PENA LTY OF RS. 45.50 LACS LEVIED IN RESPECT OF INCOME OF RS.1.20 CR IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERROR IN NOT CONSIDERING FULLY AND PROPERLY THE EXPLANATIONS FURNISHED AND EVIDENCE PROD UCED BEFORE HIM AS WELL AS DISTINGUISHING THE CASE LAWS RELIED UPON BY THE APPELLANT. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN UPHOLDING THAT THE APPELLANT HAD FURNISHED INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF INCOME OF RS. 1 .20 CR AND THEREBY THE PROVISIONS OF SEC 271(1)(C) WERE ATTRACTED. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD CIT(A) OUGHT NOT TO HAVE CONFIRMED THAT (I) THE APPELLANT HAD NOT FILED REVISED RETURN OF INCOME VOLUNTARY BU T ONLY AFTER THE DETECTION BY THE SURVEY PARTY. (II) MATERIAL WAS FOUND DURING THE COURSE OF SURVEY SHOWING CONCEALED INCOME. THUS THE LD CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN UPHOLDING THE PENALTY OF RS. 45.50 LACS LEVIED U/S 271(1)(C). 3.1 T HE LD. CIT(A) OUGHT NOT TO HAVE HELD THAT THE PENALTY PROCEEDINGS WERE ILLEGAL AND UNLAWFUL IN AS MUCH AS THERE WAS NO ACT OF FURNISHING THE INACCURATE PARTICULARS OF INCOME IN RESPECT OF INCOME DECLARED. IT IS, THEREFORE, PRAYED THAT THE PENALTY OF RS. 45 .50 LACS LEVIED BY AO AND CONFIRMED BY CIT(A) MAY PLEASE BE DELETED. 4. BEFORE US, LD. A.R. SUBMITTED THAT THOUGH ASSESSEE HAS RAISED VAR IOUS GROUNDS BUT THE ONLY ISSUE IS WITH RESPECT TO LEVY OF PENALTY U/S. 271(1)(C). ITA NO 3076/AHD/2013 . A.Y. 2009 - 10 3 5. BEFORE US, LD. A.R. SUBMITTED THAT A SSESSEE HAD FILED THE REVISED RETURN OF INCOME ON 20.09.2008 DECLARING TOTAL INCOME OF RS. 1,40,10,190/ - WHICH INCLUDED THE DISCLOSURE OF RS. 1.20 CRORES AS ADMITTED BY THE PARTNER AT THE TIME OF SURVEY. T HE REVISED RETURN FILED BY THE ASSESSEE WAS ACCE PTED IN TOTO BY THE A.O AND NO ADDITION TO THE INCOME WAS MADE BY THE A.O. HE FURTHER SUBMITTED THAT THE REVISED RETURN WAS FILED BY THE ASSESSEE VOLUNTARILY AS THERE WAS NO NOTICE FROM THE DEPARTMENT TO THE ASSESSEE TO FILE THE RETURN OF INCOME. HE FURTHE R SUBMITTED THAT A.O HAS LEVIED THE PENALTY U/S. 271(1)(C) ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCO ME TO THE EXTENT OF RS. 1.20 CRORE S. HE SUBMITTED THAT ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS AND THEREFORE THE PENALTY COU LD NOT HAVE BEEN LEVIED BY THE A.O. HE FURTHER SUBMITTED THAT DURING THE COURSE OF SURVEY NO INCRIMINATING MATERIAL WAS FOUND. THE LD. A.R. FURTHER SUBMITTED THAT THE RATIO OF THE DECISIONS RELIED BY THE A.O AND LD. CIT(A) IN UPHOLDING THE PENALTY ARE DIST INGUISHABLE ON FACTS AND CANNOT BE APPLIED TO THE PR ESENT CASE. HE, ON THE CONTRARY RELIED O N THE DECISIONS IN THE CASE OF JAY SOMNATH IRON WORKS ITA NO. 2492/AHD/2012 ORDER DATED 21.06.2013, THE DECISION OF VISHAKHAPATNAM BENCH IN THE CASE OF GODVARI TOWN SHIP PVT. LTD. VS. DCIT (2014) 45 TAXMAN.COM 175 VISHAKHAPATNAM TRIBUNAL, DELHI TRIBUNAL DECISION IN THE CASE OF SMT. VINAY SHARMA ITA NO. 871/DEL/2013. HE ALSO RELIED ON THE DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. CAREERS EDUCATION & INFOTECH PVT. LTD. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD FILED ORIGINAL RETURN OF INCOME ON 30.07.200 9 AND LATER ON THE RETURN WAS REVISE D ON 28.09.2009 SHOWING TOTAL ITA NO 3076/AHD/2013 . A.Y. 2009 - 10 4 INCOME AT RS. 1.40 CRORE S WHICH INCLUDED RS. 1.20 CRORE THAT WAS ADMITTED AT THE TIME OF SURVEY. IT IS ALSO A FACT THAT THE REVISED RETURN OF INCOME FILE D BY THE ASSESSEE WAS ACCEPTED IN TO TAL ITY BY THE A.O. AND NO ADDITION WAS MADE. ON THE UNDISCLOSED INCOME OF RS. 1,20,00,000/ - WHICH WAS DISCLOSED BY THE ASSESSEE AND ACCEPTED BY THE RETURN IN THE RETURN OF INCOME PENALTY U/S. 271(1)(C) FOR CONCEALMENT OF INCOME HAS BEEN LEVIED. BEFORE US, LD. A.R. SUBMITTED THAT DURING THE COURSE OF SURVEY, NO INCRIMINATING MATERIAL OR EVIDENCES WER E IMPOUNDED AND THE AFORESAID STATEMENT HAS BEEN CONTROVERTED BY REVENUE BY PLACING ANY MATERIAL ON RECORD. CONSIDERING THE FACT THAT ASSESSEE HAD MADE THE DIS CLOSURE OF INCOME IN THE REVISED RETURN OF INCOME AND THE AO HAS ALSO ACCEPTED THE SAME AND IN VIEW OF THE FACT THAT DURING THE COURSES OF SURVEY, NO INCRIMINATING MATERIAL WAS FOUND AND SINCE REVENUE HAS NOT FOUND ACTUAL CONCEALMENT OF INCOME OR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME IN THE RETURN OF INCOME, WE ARE OF THE VIEW THAT NO PENALTY U/S. 271(1)(C) WOULD BE ATTRACTED IN THE PRESENT CASE. WE FURTHER DRAW SUPPORT FROM THE DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAYABHAI PATEL VS. ACT (TAX APPEAL NO . 1181 OF 2010 AND OTHERS ORDER DATED 03/12/20014) WHERE THE HON BLE HIGH COURT HAS EVEN IN THE CASE WHERE INCOME WAS SHOWN IN THE RETURN FILED U/S. 153 OF THE ACT HAS HELD THAT NO PENALTY U/S. 271(1)(C) IS LEVIABLE. IN THE RE SULT, THE GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORD ER PRONOUNCED IN OPEN COURT ON 20 - 02 - 201 5 . SD/ - SD/ - (MUKUL KR. SHRAWAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER ITA NO 3076/AHD/2013 . A.Y. 2009 - 10 5 AHMEDABAD. RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD