Gopal Glass Works Ltd., Ahmedabad V. The Income tax Officer,Ward-4(1), Ahmedabad

ITA 3123/AHD/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68069 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 25-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Keywords: Depreciation; Principle of natural justice; Revised return
• Section: 133A; 115JB; 139(5)

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ! 1 ./ I.T.A. NO.3123/AHD/2010 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2006-07) M/S.GOPAL GLASS WORKS LTD. 182, GAGAN VIHAR KHANPUR AHMEDABAD-380 001 / VS. THE ITO WARD-4(1) AHMEDABAD ( !./)* !./ PAN/GIR NO. : AAACG 5599 H ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : SHRI TUSHAR P.HEMANI, A.R. ,-(+ / . / RESPONDENT BY : SHRI O.P. BATHEJA, SR.DR ' 0 / $1 / / / / DATE OF HEARING : 26/11/2013 23' / $1 / DATE OF PRONOUNCEMENT : 19/12/2013 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VIII, AHMEDA BAD (CIT(A) FOR SHORT) DATED 28/09/2010 PERTAINING TO ASSESSME NT YEAR (AY) 2006- 07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN LEVYING THE PENALTY OF RS.20,96,842 /- U/S.271(1)(C) OF THE ACT ON ACCOUNT OF ALLEGED UNACCOUNTED INVESTMEN T IN STOCK WHICH WAS VERY MUCH DISCLOSED AND REFLECTED IN THE RETURN OF INCOME FILED BY THE APPELLANT. THE IMPUGNED PENALTY IS THEREFOR E, WHOLLY UNSUSTAINABLE IN LAW AND ON FACTS AND AS SUCH THE A PPELLANT COULD NOT BE CHARGED WITH ANY GUILT OF FURNISHING INACCUR ATE PARTICULARS OF ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 2 - INCOME OR CONCEALING PARTICULARS OF INCOME WITHIN M ISCHIEF OF SECTION 271(1)(C) OF THE ACT. THE LEVY OF PENALTY BEING WITHOUT JURISDICTION AND TOTALLY UNCALLED FOR, DESERVES TO BE QUASHED. 2. IN ANY CASE, THE IMPUGNED PENALTY ORDER IS BAR RED BY LIMITATION AND THUS WITHOUT JURISDICTION AND ILLEGAL. 3. IN ANY CASE, QUANTIFICATION OF THE PENALTY IS ERRON EOUS AND EXCESSIVE. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN INITIATING AND LEVYING PENALTY UNDE R SECTION 271(1)(C) OF THE ACT WITHOUT RECORDING MANDATORY SA TISFACTION AS CONTEMPLATED UNDER THE ACT AT THE TIME OF FRAMING T HE ASSESSING ORDER. 5. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDERS W ITHOUT PROPERLY APPRECIATING THE FACT AND THAT THEY FURTHER ERRED I N GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION S UBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEE N CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLE S OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 30/12/2008. THE PENALTY PROCEEDINGS U/S.271 (1)(C) OF THE ACT WAS ALSO INITIATED. WHILE FRAMING THE PENALTY ORDER U /S.271(1)(C) OF THE ACT, THE AO HAS RECORDED THAT THE ORIGINAL RETURN OF INC OME WAS FILED (E- RETURN) ON 27/12/2006 DECLARING NIL INCOME AFTER SE T OFF OF CARRIED FORWARD LOSS OF RS.1,11,94,881/- OUT OF TOTAL UNABS ORBED CARRIED FORWARD LOSS OF RS.2,61,78,898/- AND BOOK PROFIT U/S.115J O F RS.3,53,13,235/-. THEREAFTER, A REVISED RETURN WAS FILED ON 06/03/200 7 AT RS.NIL AFTER SET OFF OF LOSS OF RS.1,71,84,634/-. THE RETURN WAS FILED DUE TO EXCESS DEPRECIATION OF RS.59,89,753/- HAVING BEEN CLAIMED IN THE ORIGINAL RETURN OF INCOME. IT IS RECORDED THAT A SURVEY U/S.133A OF THE ACT AT THE FACTORY ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 3 - PREMISES OF THE ASSESSEE WAS CONDUCTED ON 18/12/200 7. SUBSEQUENTLY, THE ASSESSEE REVISED ITS RETURN OF INCOME ON 22/12/ 2007 DECLARING A TOTAL INCOME OF RS.2,34,4,061/- AGAINST THE UNABSORBED DE PRECIATION OF RS.2,61,78,898/-. IT IS RECORDED BY THE AO THAT TH E ASSESSMENT U/S.143(3) WAS MADE ON 30/12/2008 DETERMINING THE INCOME AT NI L AS RETURNED BY THE ASSESSEE AS PER THE SECOND REVISED RETURN FILED ON 22/12/2007 AND THE TAX WAS LEVIED ON BOOK PROFIT OF RS.4,15,42,662/- U NDER THE PROVISIONS OF SECTION 115JB OF THE ACT. THE ASSESSEE FEELING AGG RIEVED BY THE PENALTY ORDER, FILED AN APPEAL BEFORE THE LD.CIT(A), WHO AF TER CONSIDERING THE SUBMISSIONS, DISMISSED THE APPEAL OF THE ASSESSEE. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE APPELLANT DISCLOSED INCOME OF RS.62,29,247/- IN RESPECT OF TH E DIFFERENCE IN VALUE OF CLOSING STOCK DURING THE COURSE OF SURVEY AND TH E SAME WAS DULY DISCLOSED IN THE SECOND REVISED RETURN FILED ON 22/ 12/2007. LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REVISED RETURN WAS ACCEPTED WHILE FRAMING THE QUANTUM ASSESSMENT ORDER. HOWEVER, L D.CIT(A) CONFIRMED THE PENALTY ON THE BASIS THAT THE ORIGINAL RETURN O F INCOME WAS FILED ON 22/12/2007, THE SAME WAS BELATED RETURN OF INCOME A S THE DUE DATE FOR FILING OF THE RETURN WAS ON 31.10.2006. SINCE THE ORIGINAL RETURN WAS BELATED, THE SUBSEQUENT RETURN WAS NON-EST. THE LD .COUNSEL FOR THE ASSESSEE SUBMITTED THAT FOR THE AY 2006-07, THE DAT E OF FILING OF RETURN WAS EXTENDED FOR THE STATE OF GUJARAT FROM 31/10/20 06 TO 30/11/2006. HE HAS DRAWN OUR ATTENTION TOWARDS ANNEXURE-A, I. E. THE ORDER PASSED U/S.119 OF THE ACT DATED 24/10/2006. HE SUBMITTED THAT SINCE IN THE REVISED RETURN ALL THE PARTICULARS WERE DISCLOSED, THERE WAS NO OCCASION OR ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 4 - REASON TO LEVY THE PENALTY. HE PLACED RELIANCE ON THE DECISION OF HONBLE COORDINATE BENCH (ITAT B BENCH AHMEDABAD) IN ITA NOS.2642 TO 2644/AHD/2010 FOR AYS 2005-06 TO 2007-08) IN THE C ASE OF SHRI JAYANTILAL J.PATEL VS. DY.CIT, DATED 19/04/2013. A PART FROM THIS, THE LD.COUNSEL FOR THE ASSESSEE ALSO RELIED UPON THE FO LLOWING DECISIONS:- SL.NO(S) IN THE CASE OF .. ITA NO. 1. VIJAY MISTRI CONSTRUCTION & RAJAKAMAL BUILDERS PVT.LTD. VS. ITO 40/AHD/2009 DATED 10/07/2009 2. ACIT VS. SADBHAV ENGINEERING LTD. 3902/AHD/2008 DATED 13/02/2009 3. ACIT VS. M/S.VARUN FINSTOCK PVT.LTD. 757/AHD/2007 DATED 04/09/2009 4. CIT VS. M/S.SIDDHARTHA ENTERPRISES 908 OF 2008 ( O&M) HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 4. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT THE ASS ESSEE HAD EARLIER FILED RETURN OF INCOME ON 06/03/2007, IT IS WHEN TH E SURVEY ACTION WAS CONDUCTED AND THERE WAS A DIFFERENCE IN STOCK. THE ASSESSEE REVISED ITS RETURN OF INCOME. ON THE CONDUCT OF THE ASSESSEE, THERE WAS NO BONA FIDE DISCLOSURE IN THE REVISED RETURN. IT WAS ONLY WHEN THE REVENUE AUTHORITIES DETECTED EXCESS STOCK DURING THE COURSE OF SURVEY, THE ASSESSEE DISCLOSED THE UNDISCLOSED INCOME IN HIS RE VISED RETURN OF INCOME. HE PLACED RELIANCE ON THE DECISION OF HON BLE COORDINATE BENCH (ITAT B BENCH AHMEDABAD) RENDERED IN THE CA SE OF HASMUKHBHAI M.PATEL VS. ITO REPORTED AT (2003) 85 ITD 152 (AHD.), DATED 31/10/2002 AND OF ITO VS. SMT.CHANDRIKABEN A RVIND PATEL (ITAT ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 5 - A BENCH AHMEDABAD) IN ITA NO.2333/AHD/2012 FOR AY 2008-09 DATED 04/10/2013. THE LD.SR.DR ALSO PLACED RELIANC E ON THE DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF MAK DATA (P) LTD. VS. CIT, DATED 30/10/2013 REPORTED AT (2013) 38 TAXMANN.COM 448 (SC). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL THE DECISIONS RELIED UPON BY BOTH THE PARTI ES. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED ITS ORIGINAL RETU RN OF INCOME ON 27/12/2006 AND SUBSEQUENTLY REVISED THE SAME ON 06/ 03/2007. FINALLY, REVISED RETURN OF INCOME, AFTER THE SURVEY ACTION W AS CARRIED OUT, ON 22/12/2007. WE FIND THAT THE HONBLE COORDINATE B ENCH IN ITA NO.2333/AHD/2012 FOR AY 2008-09 IN THE CASE OF SMT. CHANDRIKABEN ARVIND PATEL, DATED 04/10/2013, HAS HELD AS UNDER:- 9. CONSIDERING THE FACT THAT THE CAPITAL GAIN EARN ED BY THE ASSESSEE WAS DISCLOSED ONLY ON BEING CONFRONTED BY THE DEPAR TMENT. THE ASSESSEE HAS NOT BROUGHT ANY CLINCHING MATERIAL IN SUPPORT OF THE STATEMENT THAT SHE WAS NOT AWARE OF THE DETAILS OF THE RETURN OF INCOME FILED BY THE POWER OF ATTORNEY HOLDER AND FURTHER I N THE ABSENCE OF ANY EVIDENCE HAS BEEN BROUGHT ON RECORD TO DEMONSTRATE THAT THE RETURN OF INCOME WAS FILED WITHOUT THE KNOWLEDGE OF THE ASSES SEE. WE ARE OF THE VIEW THAT THE RATIO OF THE AFORESAID DECISION OF TH E COORDINATE BENCH OF TRIBUNAL ARE APPLICABLE TO THE FACTS OF THIS CASE. WE THEREFORE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS FULLY JUSTIFIED LEVIED THE PENALTY IN THE PRESENT CASE AND THUS THE ORDER OF CIT(A) IS SE T ASIDE AND THUS THIS GROUND OF REVENUE IS ALLOWED. 5.1. THE LD.COUNSEL FOR THE ASSESSEE HAS RELIED UPO N THE DECISION ON THE COORDINATE BENCH RENDERED IN THE CASE OF SHRI JAYAN TILAL J.PATEL VS. DY.CIT IN ITA NOS.2642 TO 2644/AHD/2010 FOR AYS 200 5-06 TO 2007- 08, ORDER DATED 19/04/2013, WHEREIN IT WAS HELD AS UNDER:- ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 6 - 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT IN THE ORIGI NAL RETURN WHICH WAS FILED ON 31-10-2005. ASSESSEE DID NOT INCLUDE THE UNDISCLOSED INCOME OF RS.6,38,193/-. PURSUANT TO THE SURVEY U/S.133A THE ASSESSEE FILED REVISED RETURN ON 20-11-2006 WHEREIN HE INCLUDED TH E AFORESAID UNDISCLOSED INCOME. THE ASSESSMENT WAS COMPLETED O N 26-10-2007 AND THE INCOME DISCLOSED DURING THE SURVEY BY THE ASSES SEE WAS ACCEPTED. SINCE THE INCOME WAS REFLECTED IN THE INCOME TAX RE TURN AND THE INCOME RETURNED WAS ALSO ACCEPTED, IT CANNOT BE SAID THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. A.O. H AS NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE THAT THE DECLARATION MA DE BY THE ASSESSEE IN THE REVISED RETURN OR HIS EXPLANATION WAS NOT BONAF IDE. IN THE CASE OF SHRI MOHMAD AMIN DADU ITA NO.1320 & 1321/AHD/2010 O RDER DATED 19-10-2012 THE CO-ORDINATE BENCH HELD AS UNDER:- 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE SURVE Y U/S.133A WAS CARRIED OUT ON 11-9-2008 AT THE BUSINESS PREMISES O F THE ASSESSEE. DURING THE COURSE OF SURVEY THE ASSESSEE MADE DISCL OSURE AGGREGATING TO RS.75 LAKHS TOWARDS PROFESSIONAL EXPENSE CLAIMED IN A.Y. 2005-06 TO 2009-10. SUBSEQUENTLY, FOR A.Y. 2005-06, THE AS SESSEE FILED REVISED RETURN AND DECLARED INCOME OF RS.19,94,180/- WHICH INCLUDED RS.4.5 LACS DISCLOSED DURING THE COURSE OF SURVEY. ASSESS MENT WAS COMPLETED ON 31-12-2008 AND THE INCOME OF RS.19.94 LAKHS DE CLARED BY THE A WAS ACCEPTED. PENALTY WAS LEVIED BY THE A.O. FOR T HE REASON THAT THE ASSESSEE HAD INCLUDED IN THE RETURN OF INCOME THE A DDITIONAL INCOME ONLY ON ACCOUNT OF SURVEY U/S.133A. 8. CLAUSE (C) OF SECTION 271(1) AUTHORIZES THE A. O. TO IMPOSE THE PENALTY WHEN THE A.O. IS SATISFIED THAT THE ASSESSE E HAS EITHER(A) CONCEALED THE PARTICULARS OF HIS INCOME; OR (B) FUR NISHED INACCURATE PARTICULARS OF SUCH INCOME. IN THE PRESENT CASE, I T IS NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AS I N THE INCOME TAX RETURN THE PARTICULARS OF INCOME HAVE BEEN DULY FUR NISHED AND THE SURRENDERED AMOUNT OF INCOME WAS DULY REFLECTED IN THE INCOME TAX AND THE INCOME RETURNED WAS ALSO ACCEPTED AND THERE FORE IT CANNOT BE SAID THAT THE ASSESSEE HAS FURNISHED INACCURATE PAR TICULARS OF INCOME. THE ASSESSEE HAS MADE A COMPLETE DISCLOSURE IN THE INCOME TAX RETURN AND OFFERED THE SURRENDERED AMOUNT TO TAX. IN SUCH A CASE IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED INCOME OR THER E WAS NON DISCLOSURE ON THE PART OF THE ASSESSEE SO AS TO LEV Y PENALTY. THE A.O. HAS ALSO NOT BROUGHT ANY MATERIAL ON RECORD TO PROV E THAT THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS R EVISED RETURN OF HIS ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 7 - EXPLANATION WAS NOT BONAFIDE. IT IS A SETTLED LAW THAT THE PROVISIONS OF SECTION 271(1)(C) HAVE TO BE CONSTRUED STRICTLY. N O PENALTY CAN BE LEVIED UNLESS THE CONDITIONS STIPULATED IN THE PROV ISIONS STIPULATED ARE DULY AND UNAMBIGUOUSLY SATISFIED. IN THE CASE OF C IT VS. SURAT BHAN (2007) 159 TAXMAN 26 WHILE FOLLOWING THE DECISION I N THE CASE OF CIT VS. SURESH CHANDRA MITTAL (2001) 251 ITR 9 (SC) HAS HELD THAT WHEN AN ASSESSEE FILES A REVISED RETURN SHOWING HIGHER I NCOME AND GIVES AN EXPLANATION THAT HE OFFERED HIGHER INCOME TO BUY PE ACE OF MIND AND AVOID LITIGATION, PENALTY CANNOT BE IMPOSED MERELY ON ACCOUNT OF HIGHER INCOME HAVING BEEN SUBSEQUENTLY DECLARED. T HUS IN THE PRESENT CASE CONSIDERING THE TOTALITY OF THE AFORESAID FACT S, ANRESPECTFULLY FOLLOWING THE DECISION OF PUNJAB & HARYANA HIGH COU RT, WE ARE OF THE VIEW THAT NO PENALTY CAN BE LEVIED IN THE PRESENT C ASE. WE THUS DIRECT THE A.O. TO DELETE THE PENALTY. 10. SINCE THE FACTS OF THE PRESENT CARE ARE IDENTI CAL TO THAT OF THE CASE OF MOHAMED AMIN DADU AND CONSIDERING THE TOTALITY OF T HE FACTS AND FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL (SUPRA) WE ARE OF THE VIEW THAT NO PENALTY CAN BE LEVIED IN TH E PRESENT CASE. WE THEREFORE DIRECT THE AO TO DELETE THE PENALTY. 5.2. THE LD.SR.DR HAS RELIED UPON THE DECISION ON T HE COORDINATE BENCH RENDERED IN THE CASE OF HASMUKHBHAI M.PATEL V S. ITO REPORTED AT (2003) 85 ITD 152 (AHD.), DATED 31/10/2002, WHEREIN IT WAS HELD AS UNDER:- 16. IN THE PRESENT CASE, HOWEVER, THE PENALTY WAS INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME AS WELL AS FOR CONCEALING THE PARTICULARS OF INCOME. IN THE ORIGINAL RETURN, THE ASSESSEE DID NOT OFFER THE DIFFERENCE IN THIS STOCK AS INCOME OF TH E ASSESSEE AND THAT AMOUNTS TO CONCEALING THE PARTICULARS OF INCOME. W HEN THE ASSESSMENT WAS IN PROGRESS, HE MADE A STATEMENT TO THE EFFECT THAT A PART OF THE STOCK WAS BELONGING TO SOME OTHER CONCERNS AND THAT THERE WAS ALSO A WRONG CALCULATION OF THE DIFFERENCE IN STOCK. THE STATEMENTS, AS AFORESAID REMAINED BALD STATEMENT AND THEREFORE, TH E ASSESSEE COULD BE SAID TO HAVE FURNISHED INACCURATE PARTICULARS OF IN COME FOR JUSTIFYING HIS ACTION FOR NON-DISCLOSURE OF THE INCOME ON ACCO UNT OF DIFFERENCE IN CLOSING STOCK. ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 8 - 5.3. THE LD.SR.DR HAS ALSO RELIED UPON THE DECISIO N OF HONBLE APEX COURT RENDERED IN THE CASE OF MAK DATA (P) LTD. VS. CIT REPORTED AT (2013) 38 TAXMANN.COM 448 (SC), WHEREIN THE HONBLE APEX COURT HELD AS UNDER:- 9. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURREN DER WAS MADE IN VIEW OF DETECTION MADE BY THE AO IN THE SEARCH CONDUCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATION, IT CAN NOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURING THE C OURSE OF ASSESSMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOC UMENTS COMPRISING OF SHARE APPLICATION FORMS, BANK STATEMENTS, MEMORA NDUM OF ASSOCIATION OF COMPANIES, AFFIDAVITS, COPIES OF INC OME TAX RETURNS AND ASSESSMENT ORDERS AND BLANK SHARE TRANSFER DEEDS DU LY SIGNED, HAVE BEEN IMPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CONDUCTED ON 16.12.2003, IN THE CASE OF A SIST ER CONCERN OF THE ASSESSEE. THE SURVEY WAS CONDUCTED MORE THAN 10 MO NTHS BEFORE THE ASSESSEE FIELD ITS RETURN OF INCOME. HAD IT BEEN T HE INTENTION OF THE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE OF ITS IN COME, IT WOULD HAVE FILED THE RETURN DECLARING AN INCOME INCLUSIVE OF T HE AMOUNT WHICH WAS SURRENDERED LATER DURING THE COURSE OF THE ASSESSME NT PROCEEDINGS. CONSEQUENTLY, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS TRUE INCOME. IT IS THE STATUTORY DUTY OF THE ASSES SEE TO RECORD ALL ITS TRANSACTIONS IN THE BOOKS OF ACCOUNT, TO EXPLAIN TH E SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCOME IN THE RE TURN OF INCOME FILED BY IT FROM YEAR TO YEAR. THE AO, IN OUR VIEW, HAS REC ORDED A CATEGORICAL FINDING THAT HE WAS SATISFIED THAT THE ASSESSEE HAD CONCEALED TRUE PARTICULARS OF INCOME AND IS LIABLE FOR PENALTY PRO CEEDINGS UNDER SECTION 271 READ WITH SECTION 274 OF THE INCOME TAX ACT, 1961. 6. IN THE CASE IN HAND, THE ADMITTED POSITION IS TH AT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 27/12/2006 WHICH W AS REVISED ON 06/03/2007. IN THE REVISED RETURN FILED ON 06/03/2 007, THE ASSESSEE HAS NOT OFFERED ANY INCOME FOR TAXATION IN RESPECT OF T HE DIFFERENCE IN STOCK. A SURVEY ACTION WAS CONDUCTED ON 18/12/2006 (AS PER CIT-AS ORDER), WHEREIN THE REVENUE OFFICIAL DETECTED DIFFERENCE IN STOCK, ONLY THEN THE ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 9 - ASSESSEE FINALLY FILED A REVISED RETURN ON 22/12/20 07 DECLARING THE DIFFERENCE OF RS.62,29,247/- IN VALUE OF CLOSING ST OCK. IT IS SETTLED POSITION OF LAW THAT THE RELEVANT RETURN FOR THE PU RPOSE OF PENALTY PROCEEDINGS IS THE ORIGINAL RETURN FILED BY THE ASS ESSEE AND NOT THE REVISED RETURN SUBSEQUENTLY FILED. THE EFFECT OF FILING OF A REVISED RETURN IS THAT IT MAY NOT ABSOLVE THE ASSESSEE FROM THE LEVY OF PE NALTY UNLESS THE REVISED RETURN IS WITHIN THE AMBIT AND SCOPE OF SEC TION 139(5) OF THE ACT. FOR READY REFERENCE SECTION 139(5) IS REPRODUCED HE REUNDER:- SECTION 139(5) :- IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB-SECTION (1), OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB- SECTION (1) OF SECTION 142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE R ELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT, WHICHEVER IS EARLIER : PROVIDED THAT WHERE THE RETURN RELATES TO THE PREVI OUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1988, OR ANY EARLIER ASSESSMENT YEAR, THE REFERENCE TO ON E YEAR AFORESAID SHALL BE CONSTRUED AS A REFERENCE TO TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 6.1. THE FACTS OF THE PRESENT CASE ARE TO BE TESTED ON THIS PROVISION OF LAW. THE UNDISPUTED FACTS OF THE PRESENT CASE ARE THAT THE ASSESSEE REVISED ITS RETURN OF INCOME ON 06/03/2007. IN THI S REVISED RETURN, HE HAS NOT DISCLOSED OR OFFERED ANY ADDITIONAL INCOME, HOW EVER, HE REVISED HIS RETURN SECOND TIME, AFTER THE SURVEY WAS CONDUCTED BY THE REVENUE AUTHORITIES ON THE PREMISES OF THE ASSESSEE AND DUR ING THE SURVEY SO CONDUCTED EXCESS STOCK WAS FOUND. THE ASSESSEE AFT ER SURVEY ACTION, REVISED HIS RETURN AND DECLARED ADDITIONAL INCOME W ITH REGARD TO EXCESS STOCK FOUND DURING THE COURSE OF SURVEY. THEREFORE , IT IS NOT THE CASE ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 10 - WHERE THE ASSESSEE WISHES TO CORRECT ANY OMISSION O R MISSTATEMENT DETECTED SUBSEQUENTLY TO THE FILING OF THE ORIGINAL RETURN OF INCOME. IT WAS ONLY AFTER THE SURVEY ACTION BY THE REVENUE OFF ICIAL CONDUCTED AT THE FACTORY PREMISES OF THE ASSESSEE AND DETECTION OF E XCESS STOCK BY THE REVENUE OFFICIAL. IN OUR CONSIDERED VIEW, IT IS A DELIBERATE ATTEMPT BY THE ASSESSEE TO COVER UP THE CONCEALMENT OF INCOME UNDER THE GUISE OF FILING OF REVISED RETURN. THE CASE-LAWS RELIED UPO N BY THE LD.COUNSEL FOR THE ASSESSEE WOULD NOT APPLY ON THE FACTS OF THE PR ESENT CASE, SINCE IT IS NOT THE INTENTION OF LEGISLATURE TO CONDONE ANY ACT OF CONCEALMENT MERELY ON THE GROUND THAT THE ASSESSEE REVISED ITS RETURN AND OFFERED FOR CONCEALED INCOME FOR TAXATION. RESPECTFULLY FOLLO WING THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF MAK DATA (P) LTD. VS. CIT REPORTED AT (2013) 38 TAXMANN.COM 448 (SC) :: CIVIL APPEAL NO.9772 OF 2013, DATED 30/10/2013, WE DO NOT FIND A NY REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A), THE SAME IS HEREBY UPHELD. THUS, GROUNDS OF ASSESSEES APPEAL ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/12/2013 71.., .../ T.C. NAIR, SR. PS ITA NO3123/AHD/ 2010 M/S. GOPAL GLASS WORKS LTD. VS. ITO ASST.YEAR 2006-07 - 11 - 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-VIII, AHMEDABAD 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 5/12.12.13(DICTATION-PAD 15+4 PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6/12.12.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.19.12.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19.12.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER