Kanni Uvaraj, CHENNAI V. DCIT, CHENNAI

ITA 3141/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6485 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-07-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: L NATARAJAN; QUADIR HUSSEYN
• Keywords: Onus to prove; Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI . . . , ! . , '# BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ! ./ ITA NO.3141/MDS/2016 $ %$ /ASSESSMENT YEAR: 2013-14 SHRI KANNI UVARAJ, NO.30, ARCOT ROAD, KODAMBAKKAM, CHENNAI-24. VS. THE DY. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-5(2), CHENNAI. [PAN: AIPPK 6051 Q ] ( &' /APPELLANT) ( ()&' /RESPONDENT) &' * / APPELLANT BY : MR.QUADIR HUSSEYN, CA & MR. L.NATARAJAN, CA ()&' * /RESPONDENT BY : MR.A.R.V.SREENIVASAN, JCIT * -. /DATE OF HEARING : 26.07.2017 % * -. /DATE OF PRONOUNCEMENT : 02.08.2017 / O R D E R PER A. MOHAN ALANKAMONY , ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI DATED 29.09.2016 IN ITA NO.151/CIT(A)-5/15-16 FOR THE AS SESSMENT YEAR 2013-14 PASSED U/S.250(6) R.W.S.271(1)(C) OF THE AC T. ITA NO.3141/MDS/2016 :- 2 -: 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN ITS A PPEAL, HOWEVER THE CRUX OF THE ISSUE IS THAT THE LD.CIT(A) HAS ERR ED IN CONFIRMING THE ORDER OF THE LD.A.O WHO HAD IMPOSE PENALTY OF RS.48 ,66,750/- U/S.271(1)(C) OF THE ACT FOR CONCEALING INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND DIRECTOR OF M/S.POORVIKA MOBILES PVT LTD., FILE D HIS RETURN OF INCOME ON 30.07.2013 ADMITTING TOTAL INCOME OF RS.8,79,38, 250/-. DURING THE COURSE OF SURVEY U/S.133A OF THE ACT, IN THE CASE O F M/S.POORVIKA MOBILES PVT LTD., ON 24.09.2013, THE ASSESSEE HAS ADMITTED AN ADDITIONAL INCOME OF RS.1,50,00,000/- FOR THE RELEVANT ASSESSMENT YEA R 2013-14 IN HIS INDIVIDUAL CAPACITY. THEREAFTER, THE ASSESSEE FILED REVISED RETURN ON 28.02.2014 ADMITTING AN INCOME AS RS.10.29,38,250/- WHEREIN THE SUM OF RS.1,50,00,000/- WAS OFFERED AS ADDITIONAL INCOM E. THE LD. ASSESSING OFFICER THEREAFTER COMPLETED THE ASSESSMENT U/S.143 (3) R.W.S.147 VIDE ORDER DATED 22.07.2015 ASSESSING THE TOTAL INCOME O F THE ASSESSEE AT RS.10.29,40,990/-. IN THE PENALTY PROCEEDINGS, THE LD. ASSESSING OFFICER TREATED THE ADDITIONAL INCOME OFFERED BY THE ASSESS EE AT THE TIME OF SURVEY PROCEEDINGS AS A CASE OF CONCEALMENT OF INCO ME, WHICH WOULD NOT HAVE COME TO LIGHT BUT FOR THE SURVEY CONDUCTED ON THE ASSESSEE AND ITA NO.3141/MDS/2016 :- 3 -: THEREBY IMPOSED PENALTY IN THE CASE OF THE ASSESSEE . THE LD. ASSESSING OFFICER ARRIVED AT SUCH CONCLUSION BECAUSE IT WAS O PINED THAT THE ASSESSEE HAD MADE CERTAIN CASH PAYMENTS OUTSIDE HIS BOOKS OF ACCOUNTS TO HIS SPOUSE FOR CONSTRUCTION OF A RESIDE NTIAL HOUSE PROPERTY. ON APPEAL, THE LD.CIT(A) FOLLOWING VARIOUS JUDICIAL DECISIONS CONFIRMED THE ORDER OF ASSESSING OFFICER FOR IMPOSING PENALTY . 4. BEFORE US, THE LD. AR SUBMITTED THAT THE ASSESS EE HAD ADMITTED ADDITIONAL INCOME OF RS.1.5 CRORES FOR THE RELEVANT ASSESSMENT YEAR ONLY AT THE INCIDENCE OF THE REVENUE IN ORDER TO AVOID P ROTRACTED LITIGATION AND NO MATERIAL EVIDENCE WAS FOUND. THE LD. AR FURTHER ARGUED THAT THE LD. ASSESSING OFFICER HAD NOT EVEN VALUED THE RESIDENTI AL BUILDING CONSTRUCTED BY THE SPOUSE OF THE ASSESSEE, BUT SIMPLY COERCED T HE ASSESSEE TO ADMIT THE ADDITIONAL INCOME. HENCE, THE ADDITION WAS A F ORCED ADDITION AND THE ASSESSEE HAD AGREED FOR THE SAME IN ORDER TO AVOID LITIGATION. THEREFORE, IT WAS PLEADED THAT THE PENALTY LEVIED BY THE REVEN UE MAY BE DELETED. 5. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND PRAYED FOR SUSTAINING THE SAME. ITA NO.3141/MDS/2016 :- 4 -: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE FACTS OF TH E CASE, IT IS APPARENT THAT THE ASSESSEE HAS ADMITTED THE ADDITIONAL INCOM E IN ORDER TO AVOID CONFRONTATION WITH THE REVENUE. FURTHER, IT IS APPA RENT THAT THE LD. ASSESSING OFFICER HAD INTIMIDATED THE ASSESSEE IN ADMITTING THE INCOME BY CITING THE RESIDENTIAL BUILDING CONSTRUCT ED BY THE ASSESSEES SPOUSE. WHILE DOING SO, THE LD. ASSESSING OFFICER D ID NOT EVEN VALUE THE RESIDENTIAL BUILDING CONSTRUCTED BY THE ASSESSEES SPOUSE, BUT SIMPLY ESTIMATED BY SURMISES AND CONJECTURES. IN SIMILAR CIRCUMSTANCES, THIS BENCH OF THE TRIBUNAL IN ITA NO.1009/MDS./2016 IN T HE CASE OF M/S.TRISHA KRISHNAN VIDE ORDER DATED 06.09.2016, AS POINTED OUT BY THE LD.AR, HAD HELD THAT IN A SITUATION WHERE ADDITION IS MADE WHICH IS ACCEPTED BY THE ASSESSEE IN ORDER TO AVOID CONFRONT ATION WITH THE REVENUE, THEN PENALTY CANNOT BE VALID. IN THE CASE OF THE ASSESSEE ALSO, IT APPEARS THAT THE ASSESSEE HAD AGREED FOR THE ADD ITION IN ORDER TO AVOID PROTRACTED LITIGATION AND AVOID CONFRONTATION WITH THE REVENUE. FURTHER, WE ARE REMINDED OF THE DECISION OF THE HONBLE SUPR EME COURT IN THE CASE OF DILIP N. SHROFFS REPORTED IN 291 ITR 519(S C), WHEREIN IT WAS HELD THAT ONLY BECAUSE THE OPINION OF THE REGISTERED VAL UER IS NOT ACCEPTED OR SOME OTHER EXPERT GIVES ANOTHER OPINION, IS NOT BY ITSELF SUFFICIENT FOR ARRIVING AT A CONCLUSION THAT THE ASSESSEE HAD FURN ISHED INACCURATE ITA NO.3141/MDS/2016 :- 5 -: PARTICULARS ATTRACTING PENALTY U/S. 271(1)(C) OF TH E ACT. PRIMARY BURDEN OF PROOF OF FURNISHING INACCURATE PARTICULARS OF INCOM E IS ON THE REVENUE AND IT IS ONLY ON DISCHARGE OF PRIMARY BURDEN THAT THE SECONDARY BURDEN OF PROOF WOULD SHIFT ON THE ASSESSEE. IN THE CASE OF THE ASSESSEE, THE ADDITION OF RS.1.5 CRORES IS MADE ONLY ON THE PRESU MPTION ON THE VALUE OF THE RESIDENTIAL BUILDING CONSTRUCTED BY THE SPOUSE OF THE ASSESSEE AND NOT EVEN BY THE VALUATION OF THE LD.DVO. THE ASSESS EE HAD ALSO SIMPLY ACCEPTED THE ADDITIONAL INCOME SUGGESTED BY THE LD. ASSESSING OFFICER IN ORDER TO AVOID FURTHER COMPLICATIONS. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT IN THE CASE OF THE ASSESSEE THE LEVY OF P ENALTY IS NOT WARRANTED. ACCORDINGLY, WE HEREBY DIRECT THE LD. ASSESSING OFF ICER TO DELETE THE PENALTY U/S. 271(1)(C) OF THE ACT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND AUGUST, 2017, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) ( A. MOHAN ALANKAMONY ) . /ACCOUNTANT MEMBER ITA NO.3141/MDS/2016 :- 6 -: /CHENNAI, /DATED: 02 ND AUGUST, 2017. KSSUNDARAM /COPY TO: 1. /APPELLANT 4. /CIT 2. /RESPONDENT 5. /DR 3. ( ) /CIT(A) 6. ! /GF