PIYUSH A. VORA, MUMBAI V. ASST CIT CEN CIR 47, MUMBAI

ITA 3221/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6950 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDER SINGH
• Assessee Lawyers: PRAKASH K JOTWANI
• Keywords: Search and seizure; Revised return
• Section: 143(3); 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A, MU MBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3222/MUM/2017 (ASSESSMENT YEAR- 2009-10) PIYUSH A. VORA 52/5 TH FLOOR, KEDIA APARTMENT, DOONGARSHI ROAD, MALABAR HILL, MUMBAI-400006 PAN:ABLPV6068P VS ACIT, CC-47 MUMBAI. (APPELLANT) (RESPONDENT) ITA NO.3221/MUM/2017 (ASSESSMENT YEAR- 2010-11) PIYUSH A. VORA 52/5 TH FLOOR, KEDIA APARTMENT, DOONGARSHI ROAD, MALABAR HILL, MUMBAI-400006 PAN:ABLPV6068P VS. ACIT, CC-47 MUMBAI. (APPELLANT) (RESPONDENT) TA NO.3223/MUM/2017 (ASSESSMENT YEAR- 2011-12) PIYUSH A. VORA 52/5 TH FLOOR, KEDIA APARTMENT, DOONGARSHI ROAD, MALABAR HILL, MUMBAI-400006 PAN:ABLPV6068P VS. ACIT, CC-47 MUMBAI. (APPELLANT) (RESPONDENT) ITA NO.3224/MUM/2017 (ASSESSMENT YEAR- 2011-12) PIYUSH A. VORA 52/5 TH FLOOR, KEDIA APARTMENT, DOONGARSHI ROAD, MALABAR HILL, MUMBAI-400006 PAN:ABLPV6068P VS. ACIT, CC-47 MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH K. JOTWANI (AR) REVENUE BY : SHRI VIRENDER S INGH (DR) ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 2 RESERVE FOR ORDER : 10.05.2018 DATE OF PRONOUNCEMENT : 23.05.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS GROUP OF FOUR APPEALS BY ASSESSEE UNDER SECTIO N 253 OF INCOME TAX ACT ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD. COM MISSIONER OF INCOME-TAX (APPEALS)-50, MUMBAI, [FOR SHORT THE LD. CIT(A)] FO R ASSESSMENT YEARS 2009-2010 TO 2011-12. IN APPEAL FOR ASSESSMENT YEAR 2009-10, 2010-11 & 2011-12, THE LD. CIT(A) CONFIRMED THE PENALTY LEVI ED UNDER SECTION 271(1)(C) OF THE ACT. FOR ASSESSMENT YEAR 2011-12, THE ASSESSING OFFICER ALSO LEVIED THE PENALTY UNDER SECTION 271AAA, WHICH WAS ALSO CONFIRMED BY LD. CIT(A). IN ALL APPEAL ARISING OUT OF PENALTY LE VIED UNDER SECTION 271(1)(C) THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEAL. THEREFORE, ALL APPEALS WERE TAKEN TOGETHER AND ARE DECIDED BY A CO NSOLIDATED ORDER TO AVOID THE CONFLICTING DECISION. 2. IN ITA NO. 3222/M/2017 , THE APPEAL FOR ASSESSMENT YEAR 2009-10, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. A. THE LD. COMMISSIONER OF INCOME TAX APPEAL HAS ERRED IN CONFIRMING THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER ON ACCO UNT OF FURNISHING INACCURATE PARTICULARS AND CONCEALMENT OF INCOME. THE SAME SHO ULD BE DELETED IN FULL. B. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT THAT THE APPELLANT VOLUNTARILY OFFERED TO TAX, THE INCOME RECEIVED AMOUNTING TO RS. 2,00,000/- AS COMMISSION INCOME IN THE REVISED RETURN FILED U/S 139 R.W.S. 153A WHICH WAS ERRONEOUSLY CONSIDERED AS EXEMPT DIV IDEND INCOME IN THE ORIGINAL RETURN. C. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT THAT THE ASSESSMENT WAS COMPLETED BY THE LD. AO BY ACCEPTING THE REVISED RETURN FILED BY THE APPELLANT VOLUNTARILY. THEREFOR E, THE LD. CIT (APPEAL) HAS ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 3 ERRED IN STATING THAT THERE IS NO PROVISION FOR REV ISING THE RETURN OF INCOME FILED U/S 153A. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZU RE ACTION UNDER SECTION 132 WAS CARRIED OUT AT THE RESIDENCE AND BUSINESS PREMI SES OF ROHAN GROUP RELATED NOTICE ON 26.05.2011 BY DDIT(INV.), UNIT-3, MUMBAI. SEARCH ACTION AT THE RESIDENCE OF ASSESSEE WAS ALSO CARRIED OUT. THE ASSESSEE IS ONE OF THE INDIVIDUAL IN ROHAN GROUP. THE ASSESSEE FILED RETUR N OF INCOME UNDER SECTION139 OF THE ACT FOR ASSESSMENT YEAR 2009-10 ON 26.12.2011 DECLARING TOTAL INCOME OF RS. 36,16,250/-. CONSEQUE NT UPON THE SEARCH THE ASSESSEE WAS SERVED WITH NOTICE UNDER SECTION 153A. IN RESPONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE FILED RETUR N OF INCOME ON 28.01.2014 DECLARING THE SAME INCOME AS DECLARED IN THE RETURN OF INCOME UNDER SECTION 139. DURING THE ASSESSMENT PROCEEDIN G THE ASSESSEE FILED REVISED RETURN UNDER SECTION 153A AND REVISED RETU RN OF INCOME DECLARING TOTAL INCOME OF RS. 38,31,250/-. IN THE REVISED RET URN OF INCOME, THE ASSESSEE ADDED COMMISSION INCOME OF RS. 2,00,000/-, WHICH WA S NOT OFFERED IN EARLIER RETURNS. THE ASSESSING OFFICER PASSED THE A SSESSMENT ORDER ON 28.03.2014 UNDER SECTION 143(3) RWS 153A ACCEPTING THE REVISED RETURN OF INCOME. THE ASSESSING OFFICER INITIATED PENALTY UND ER SECTION 271(1)(C). THE ASSESSING OFFICER INITIATED PENALTY ON THE ADDITION AL INCOME OF RS. 2,00,000/- OFFERED IN THE REVISED RETURN OF INCOME AND THE DED UCTION OF RS. 15,000/- CLAIMED UNDER SECTION 80D, WHICH WAS NOT OFFERED/ C LAIMED IN EARLIER INCOME. THE ASSESSING OFFICER LEVIED A MINIMUM PENA LTY @ 100% OF THE TAX ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 4 SOUGHT TO BE EVADED. THE ASSESSING OFFICER WORKED O UT THE PENALTY OF RS. 73,078/- IN ITS ORDER DATED 19.09.2014. ON APPEAL B EFORE THE LD. CIT(A), THE PENALTY ORDER ON ADDITIONAL INCOME OF RS.200,000/- WAS CONFIRMED, HOWEVER ON DEDUCTION UNDER SECTION 80D OF RS.15,000/- THE P ENALTY WAS DELETED. THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF LD. CI T(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE SUBMITS THAT ASSESSEE HAS NEITHER CONCEALED THE INCOME NOR FURNI SHED INACCURATE PARTICULAR THEREOF. DURING THE ASSESSMENT PROCEEDIN G, THE ASSESSEE FILED REVISED RETURN OF INCOME DECLARING/OFFERING THE TAX ON COMMISSION INCOME, WHICH WAS NOT OFFERED IN THE EARLIER RETURN. THE AS SESSEE OFFERED SUO-MOTO. THE ASSESSING OFFICER HAS NOT DETECTED ANY CONCEALE D INCOME OR FACT OF INACCURATE PARTICULAR. SINCE THE ASSESSEE HAS NEITH ER CONCEALED NOR FURNISHED INACCURATE PARTICULAR OF INCOME, THEREFORE, THE PEN ALTY LEVIED BY ASSESSING OFFICER IS NOT SUSTAINABLE. THE LD. AR OF THE ASSES SEE SUBMITS THAT THE ASSESSING OFFICER MADE THE ERRONEOUS APPLICATION OF RATIO IN CASE OF MAK DATA (SUPRA) 358 ITR 493(SC). ON THE OTHER HAND, TH E LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER. T HE LD. DR FOR THE REVENUE SUBMITS THAT IT WAS A CASE OF SEARCH. THE R ETURN OF INCOME IN RESPONSE TO THE NOTICE UNDER SECTION 153A WAS FILED BY ASSESSEE. DURING THE ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 5 ASSESSMENT PROCEEDING UNDER SECTION 153A WHEN THE Q UESTION WAS RAISED BY THE ASSESSING OFFICER THE THEN THE ASSESSEE FILED H IS REVISED RETURN OF INCOME. THE REVISED RETURN FILED BY THE ASSESSEE WA S NOT VOLUNTARY RATHER THE ASSESSEE WAS CORNERED BY THE ASSESSING OFFICER. THE LD. DR FOR THE REVENUE FURTHER SUBMITS THAT THE PLEA OF BONAFIDE E RROR IS AN AFTER THOUGH STORY OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE ASSESSEE FILED RETURN OF INCOME UNDER SECTION 139 ON 26.12.2 011 DECLARING TOTAL INCOME AT RS. 36,16,250/-. THE ASSESSEE AGAIN IN RE SPONSE TO THE NOTICE UNDER SECTION 153A FILED RETURN OF INCOME ON 28.01. 2014 DECLARING THE TOTAL INCOME AT RS. 38,16,250/-. THE ASSESSMENT WAS COMPL ETED ON 18.03.2014 UNDER SECTION 153A R.W.S. 143(3). THE ASSESSING OFF ICER WHILE PASSING THE ASSESSMENT ORDER ASSESSED THE TOTAL INCOME AT RS. 3 8,31,250/-. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 15,000/- UNDER SECTION 80D HOLDING THAT WHILE FILING REVISED RETURN OF INCOME ON 14.02.2014 NO CLAIM OF RS. 15,000/- UNDER SECTION 80D WAS MADE. THE ASSESS ING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) ON ADDITION INCOME OF RS. 2,00,000/- OFFERED BY ASSESSEE IN THE REVISED RETURN OF INCOME AND ON ADDITION OF RS. 15,000/- UNDER SECTION 80D. THE ASSESSING OFFICER LEVIED THE PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED. ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 6 6. ON APPEAL BEFORE THE LD. CIT(A), THE LD. CIT(A) DEL ETED THE PENALTY QUA THE ADDITION OF RS. 15,000/- ADDED UNDER SECTION 80 D. HOWEVER, THE PENALTY OF RS. 2,00,000/- OFFERED IN REVISED RETURN OF INCO ME WAS SUSTAINED. THE LD. CIT(A) SUSTAINED THE PENALTY WHILE RELYING ON THE D ECISION OF HON'BLE SUPREME COURT IN CASE OF MAK DATA 358 ITR 493(SC). IN OUR VIEW, THE RATIO OF DECISION IN MAK DATA (SUPRA) IS NOT APPLIC ABLE ON THE FACT OF PRESENT CASE. IN CASE OF MAK DATA, THE TRANSACTION WERE NOT RECORDED IN THE BOOKS OF ACCOUNT AND THAT THE ASSESSING OFFICER HAS CATEGORICALLY RECORDED THE FINDING THAT HE IS NOT SATISFIED AND THAT THE A SSESSEE CONCEALED THE TRUE PARTICULAR OF INCOME. HOWEVER, IN THE PRESENT CASE, THE ASSESSEE HIMSELF OFFERED THE ADDITIONAL INCOME IN REVISED RETURN OF INCOME. THE HON'BLE SUPREME COURT IN CASE OF CIT VS RELIANCE PETROPRODU CTS (P.) LTD. HELD THAT THE CONDITIONS UNDER SECTION 271(1)(C) MUST EXIST B EFORE THE PENALTY IS IMPOSED. EVERYTHING DEPENDS UPON THE RETURN OF INCO ME FILED, BECAUSE RETURN OF INCOME IS THE ONLY DOCUMENT, WHERE THE AS SESSEE CAN FURNISH THE PARTICULAR OF INCOME. WHEN SUCH PARTICULARS FOUND T O BE INACCURATE, THE LIABILITY WOULD ARISE. IN THE PRESENT CASE, THE ASS ESSEE OFFERED ADDITIONAL INCOME OF RS. 2,00,000/-, WHICH WAS ACCEPTED BY ASS ESSING OFFICER. WE HAVE NOTED THAT THE ASSESSING OFFICER HAS NOT RECOR DED HIS SATISFACTION THAT RETURN OF INCOME WAS FOUND TO BE INCORRECT OR ERRON EOUS OR FALSE. THE HON'BLE COURT IN RELIANCE PETROPRODUCTS (P.) LTD. ( SUPRA) FURTHER HELD THAT IF THERE IS NO FINDING OF THE ASSESSING OFFICER TO REC ALL THAT RETURN WERE FOUND ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 7 TO BE INCORRECT OR ERRONEOUS, THERE WOULD BE NO QUE STION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). THUS, IN OUR VIEW, THERE WAS NO PARTICULAR INACCURATE PARTICULARS OF INCOME WAS FURNISHED BY THE ASSESSEE WHILE FILING REVISED RETURN OF INCOME. THUS, IN OUR VIEW, NO PEN ALTY WAS LEVIABLE ON THE FACT OF THE PRESENT CASE. HENCE, THE GROUNDS OF APP EAL RAISED BY THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED. ITA NO. 3221/MUM/2017 FOR A.Y. 2010-11 8. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. A. THE LD. COMMISSIONER OF INCOME TAX APPEAL HAS ERRED IN CONFIRMING THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER AMOUNTI NG TO RS. 90,946/- ON ACCOUNT OF FURNISHING INACCURATE PARTICULARS AND CO NCEALMENT OF INCOME. THE SAME SHOULD BE DELETED IN FULL. B. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT THERE WAS NO ADDITION MADE IN THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S 153A OF THE INCOME TAX ACT, 1961 AND HENCE THERE IS NO QUESTION OF FILING OF INACCURATE PARTICULARS OF INCOME. C. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAD VOLUNTARILY FILED THE RETURN OF INCOME AND HAS NOT FURNISHED ANY INACCURATE PARTICULARS OF INCOME. THE APPELLANT HAD SUBMITTED ALL THE REQUIRED DETAILS AND OFFERED A BONAFIDE EXPLANA TION FOR THE STAND TAKEN. 9. BRIEF FACTS OF THE CASE ARE THAT CONSEQUENT UPON A SEARCH AND SEIZURE ACTION UNDER SECTION 132 ON 26.05.2011 ON THE ROHAN GROUP. THE SEARCH ACTION WAS ALSO CARRIED OUT AT THE RESIDENCE OF THE ASSESS EE. IN RESPONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE FILED RETUR N INCOME ON 28.01.2014 DECLARING TOTAL INCOME OF RS. 25,48,400/-. THE ASSE SSMENT UNDER SECTION 143(3) R.W.S. 153A WAS COMPLETED ON 18.03.2014 DETE RMINING THE TOTAL INCOME AT RS. 25,48,400/-. THE ASSESSING OFFICER IN ITIATED THE PENALTY WHILE ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 8 PASSING THE ASSESSMENT ORDER AND LEVIED PENALTY OF RS. 6,88,575/-. THE ASSESSING OFFICER LEVIED THE PENALTY HOLDING THAT A SSESSEE CONCEALED THE INCOME OF RS. 25,48,400/- WHICH WAS DECLARED BY THE ASSESSEE ONLY IN RESPONSE TO THE NOTICE UNDER SECTION 153A. THE ASSE SSING OFFICER FURTHER CONCLUDED THAT HAD THE SEARCH NOT BEEN TAKEN PLACE, THE ASSESSEE WOULD NOT HAVE DECLARED INCOME OF RS. 25,48,400/-. THE ASSESS ING OFFICER LEVIED THE PENALTY OF RS. 6,88,575/- UNDER SECTION 271(1)(C) B EING @ 100% OF THE TAX ALLEGEDLY TO BE EVADED. ON APPEAL BEFORE THE LD. CI T(A), THE PENALTY WAS RESTRICTED TO RS. 90,946/-. THEREFORE, FURTHER AGGR IEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL B EFORE US. 10. WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A R OF THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER MADE THE ERRONEOUS APPLI CATION OF RATIO IN CASE OF MAK DATA (SUPRA). THE ASSESSEE HAS NEITHER CONCEALE D ANY INCOME NOR FURNISHED ANY INACCURATE PARTICULAR THEREOF. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELO W. THE LD. DR FURTHER SUBMITS THAT HAD THE SEARCH NOT TOOK PLACE AT THE P REMISES OF THE ASSESSEE, THE ASSESSEE WOULD HAVE SUCCESSFULLY EVADED THE TAX LIABILITY. THE LD. DR ADOPTED THE SAME SUBMISSIONS ARE MADE IN APPEAL FOR AY 2009-10. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESS ING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) HOLDING THAT NO RET URN OF INCOME WAS FILED ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 9 BY ASSESSEE UNDER SECTION 139 OF THE ACT. BEFORE TH E LD. CIT(A), THE ASSESSEE URGED THAT THE ASSESSING OFFICER ACCEPTED THE RETUR N OF INCOME FILED BY ASSESSEE WHICH PROVED THAT NO INACCURATE PARTICULAR WAS FURNISHED BY ASSESSEE AND THERE IS NO EVASION OF TAX. THE ASSES SEE ALSO URGED THAT HE HAS PAID THE ADVANCE TAX ON HIS TAX LIABILITY ON HIS IN COME OF RS. 25,48,400/-. THE LD. CIT(A) CONSIDERING THE CONTENTION RESTRICTE D THE PENALTY TO THE EXTENT OF ADVANCE TAX. AS WE HAVE NOTED IN THE APPE AL FOR ASSESSMENT YEAR 2009-10 THAT THE ASSESSING OFFICER HAS NOT RECORDED THAT HIS SATISFACTION THAT ANY PARTICULARS OF INCOME FURNISHED BY ASSESSEE WER E FOUND TO BE INACCURATE. THE HON'BLE COURT IN RELIANCE PETROPRODUCTS (P.) LT D. (SUPRA) FURTHER HELD THAT IF THERE IS NO FINDING OF THE ASSESSING OFFICE R TO RECALL THAT RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS, THERE WOULD BE NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). THUS, IN OUR V IEW, THERE WAS NO INCORRECT PARTICULAR FURNISHED BY THE ASSESSEE WHIL E FILING REVISED RETURN OF INCOME. MOREOVER, FOR FAILURE TO FURNISH RETURN OF INCOME THE ASSESSING OFFICER HAS LEVIED PENALTY SEPARATELY UNDER SECTION 271F. THUS, IN OUR VIEW, NO PENALTY WAS LEVIABLE UNDER SECTION 271(1)(C), ON THE FACT OF THE PRESENT CASE. HENCE, THE GROUNDS OF APPEAL RAISED BY THE AS SESSEE ARE ALLOWED. ITA NO. 3223/MUM/2017 FOR A.Y. 2011-12 [ UNDER SECTION 271(1)(C)] 12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. A. THE LD. COMMISSIONER OF INCOME TAX APPEAL HAS ERRED IN CONFIRMING THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER AMOUNTI NG TO RS. 25,340/- ON ACCOUNT OF FURNISHING INACCURATE PARTICULARS AND CO NCEALMENT OF INCOME. THE SAME SHOULD BE DELETED IN FULL. ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 10 B. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT IN THE ORIGINAL RETURN, INCOME FROM MEETING FEES RECEI VED WAS RS. 8,20,000/- AND TDS ON THE SAME WAS RS. 82,000/-. HOWEVER, DUE TO O VERSIGHT INCOME BEING NET OF TDS AMOUNTING TO RS. 7,38,000/- WAS OFFERED AS INCOME FROM MEETING FEES. THE LD. CIT APPEAL FAILED TO APPRECIATE THE F ACT THAT THE APPELLANT VOLUNTARILY REVISED THE INCOME TAX RETURN U/S 139 R.W.S. 153A OF THE INCOME TAX ACT, 1961 OFFERING RS . 8,20,000/- AS INCOME FROM MEETING FEES. C. THE LD. COMMISSIONER OF INCOME TAX APPEAL FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAD VOLUNTARILY FILED THE RETURN OF INCOME AND HAS NOT FURNISHED ANY INACCURATE PARTICULARS OF INCOME. THE APPELLANT HAD SUBMITTED ALL THE REQUIRED DETAILS AND OFFERED A BONAFIDE EXPLANA TION FOR THE STAND TAKEN. 13. BRIEF FACTS RELATED TO THE GROUNDS OF APPEAL ARE T HAT ASSESSEE FILED HIS RETURN OF INCOME UNDER SECTION 139 ON 30.03.2013 FOR AY 20 11-12 DECLARING TOTAL INCOME OF RS.32,59,062/-. CONSEQUENT UPON THE SEARC H AND SEIZURE UNDER SECTION 132 ON 26.05.2011 AS REFERRED ABOVE, THE AS SESSEE WAS SERVED WITH NOTICE UNDER SECTION 153A DATED 21.01.2014. IN RESP ONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE FILED HIS RETURN OF INCO ME 28.01.2014 DECLARING TOTAL INCOME OF RS. 48,21,930/-. SUBSEQUENTLY, THE ASSESSEE FILED REVISED RETURN OF INCOME ON 14.02.2014/- REVISING THE TOT AL INCOME AT RS.49,02,700/-. THE ASSESSING OFFICER PASSED ASSESS MENT ORDER ON 18.03.2014 ACCEPTING THE RETURN OF INCOME DECLARED IN THE REVISING RETURN DATED 14.02.2014. THE ASSESSING OFFICER LEVIED PENA LTY UNDER SECTION 271(1)(C) ON THE ADDITIONAL INCOME OFFERED IN THE R EVISED RETURN. THE ASSESSING OFFICER LEVIED PENALTY @100% OF TAX SOUGH T TO BE EVADED. ON APPEAL BEFORE LD. CIT(A) THE ACTION OF ASSESSING OF FICER WAS CONFIRMED. THEREFORE, FURTHER AGGRIEVED THE ASSESSEE FILED THI S APPEAL BEFORE THIS TRIBUNAL. ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 11 14. WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A R OF THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER MADE THE ERRONEOUS APPLI CATION OF RATIO IN CASE OF MAK DATA (SUPRA). THE ASSESSEE HAS NEITHER CONCEALE D ANY INCOME NOR FURNISHED ANY INACCURATE PARTICULAR THEREOF. THE LD . AR FOR THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSEE DUE TO OVER SIGHT OMITTED TO INCLUDE THE TAX DEDUCTED AT SOURCE IN HIS TOTAL RETURN OF INCOME BE ING NET TDS OF RS.82,000/-. THE OMISSION FOR NOT OFFERING RS.82,00 0/- AS THE INCOME FROM MEETING FEE OF RS.8,20,000/- WAS TAKEN AS RS.7,38,0 00/-. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPORTED THE ORDE R OF AUTHORITIES BELOW. THE LD. DR FURTHER SUBMITS THAT HAD THE SEARCH NOT TOOK PLACE AT THE PREMISES OF THE ASSESSEE, THE ASSESSEE WOULD HAVE SUCCESSFUL LY EVADED THE TAX LIABILITY. THE LD. DR ADOPTED THE SAME SUBMISSIONS ARE MADE IN APPEAL FOR AY 2009-10 AND IN 2010-11. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESS ING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) HOLDING THAT THE AS SESSEE IN HIS REVISE RETURN OF INCOME AND OFFERED ADDITIONAL INCOME RS.82,000/- BY ENHANCING THE INCOME OF MEETING FEE TO RS.820,000/- AS AGAINST RS .7,38,000/- FILED IN THE ORIGINAL RETURN OF INCOME. THE ASSESSING OFFICER L EVIED THE PENALTY ON ADDITIONAL INCOME OFFERED IN REVISED RETURN OF RS.8 2,000/-. THE ASSESSING OFFICER LEVIED THE PENALTY @ 100% OF TAX ALLEGEDLY TO BE EVADED. THE ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 12 PENALTY WAS WORKED OUT AT RS.25,340/-. BEFORE THE L D. CIT(A), THE ASSESSEE AGAIN EXPLAINED THE FACT ABOUT UNINTENTIONAL OMISSI ON TO INCLUDE THE AMOUNT OF TDS OF RS.82,000/- AS INCOME FROM MEETING FEE OF RS.820,000/- AS AGAINST RS.7,38,000/- OFFERED IN THE REVISE RETURN. THE LD CIT(A) NOT ACCEPTED THE CONTENTION OF THE ASSESSEE HOLDING THA T THERE IS NO PROVISION IN THE ACT TO REVISE THE RETURN OF INCOME FILED UNDER SECTION 153A AND CONFIRMED THE ACTION OF ASSESSING OFFICER. THE LD C IT(A) FURTHER HELD THAT TECHNICALLY THE INCOME OF RS.82,000/- CANNOT BE TRE ATED AS DECLARED INCOME OF THE ASSESSEE. 16. WE HAVE NOTED THAT THERE WAS NO TAX EVASION IN OFFE RING THE INCOME OF RS.82,000/-. THE SAID AMOUNT IN THE FORM OF ADVANCE TAX (TDS) BY PAYER OF MEETING FEE, HAS ALREADY BEEN DEPOSITED. THE ASSESS EE HAS NOT CLAIMED SETOFF OF THE SAID TDS, RATHER IT WAS INCLUDED IN T HE TOTAL INCOME OFFERED BY THE ASSESSEE. IN OUR VIEW THE ASSESSEE HAS NOT F URNISHED INACCURATE PARTICULARS OF INCOME. MOREOVER, THE CONTENTION OF THE ASSESSEE THAT THE INCOME OF RS.82,000/- WAS LEFT TO BE DECLARE WHILE FILING RETURN OF INCOME SEEMS TO BE BONAFIDE AND GENUINE. WE HAVE ALSO NOT ED THAT THE ASSESSING OFFICER HAS ACCEPTED THE RETURN OF INCOME FILED BY ASSESSEE WHICH PROVED THAT NO INACCURATE PARTICULAR WAS FURNISHED BY ASSE SSEE. THERE WAS NO REVENUE LOSS TO THE IN OFFERING THE SAID INCOME OF RS.82,000/-. EVASION OF TAX. THUS, IN OUR CONSIDERED VIEW, NO PENALTY WAS L EVIABLE UNDER SECTION ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 13 271(1)(C), ON THE FACT OF THE PRESENT CASE. HENCE, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 17. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED . ITA NO. 3224/MUM/2017 FOR A.Y. 2011-12 [UNDER SECTION 271AAA] 18. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. A. THE LD. COMMISSIONER OF INCOME TAX APPEAL HAS ERRED IN CONFIRMING THE PENALTY LEVIED U/S 271AAA BY THE LD. ASSESSING OFFI CER AMOUNTING TO RS. 1,60,975/- ON ACCOUNT OF UNDISCLOSED INCOME. THE SA ME SHOULD BE DELETED IN FULL. B. THE LD. CIT APPEAL HAS FAILED TO APPRECIATE THE FACT THAT THE APPELLANT ADMITTED THAT THERE WAS UNDISCLOSED INCOME AMOUNTIN G TO RS. 15,62,870/- AND HAS SPECIFIED AND SUBSTANTIATED THE MANNER IN WHICH THE SAME HAS BEEN DERIVED. FURTHER, THE APPELLANT HAS SUFFICIENT TAX CREDIT AN D IS NOT LIABLE TO PAY ANY FURTHER TAX IN RESPECT OF THE UNDISCLOSED INCOME. 19. BRIEF FACTS RELATED TO THE GROUND OF APPEAL ARE TH AT DURING THE SEARCH UNDER SECTION 132 ON 26.05.2011, THE ASSESSEE DECLARE UND ISCLOSED JEWELLERY OF RS.15,62,870/- AS HIS UNDISCLOSED INCOME. HOWEVER, WHILE FILING RETURN OF INCOME UNDER SECTION 139(4) ON 30.03.2013, THE ASSE SSEE NOT OFFERED THE SAID UNDISCLOSED INCOME. IN RESPONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE INCLUDED THE SAID UNDISCLOSED INCOME. THE ASSESSING OFFICER INITIATED PENALTY UNDER SECTION 271AAA, WHILE PASSI NG ASSESSMENT ORDER ON 18.03.2014. NO REPLY WAS FURNISHED BY ASSESSEE; THE ASSESSING OFFICER LEVIED THE PENALTY @10% OF THE UNDISCLOSED INCOME. THE ASS ESSING OFFICER LEVIED THE PENALTY OF RS.15,62,70/- UNDER SECTION 271AAA. ON APPEAL BEFORE LD CIT(A) THE ACTION OF THE ASSESSING OFFICER WAS CONF IRMED. THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A) THE ASSESSEE H AS FILED THIS APPEAL BEFORE THIS TRIBUNAL. ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 14 20. WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A R OF THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271AAA WITHOUT ANY BASIS. THE ASSESSEE DURING THE SEARCH OFFERED U NDISCLOSED INCOME OF RS.15,6,270/- AND PAID THE TAX ON SUCH UNDISCLOSED INCOME. THE ASSESSEE ALSO SUBSTANTIATED THE MANNER IN WHICH THE SAID INC OME WAS DERIVED. IN SUPPORT OF HIS SUBMISSION THE LD AR FOR THE REVENUE RELIED ON DECISION OF TRIBUNAL IN SUNIL KUMAR VS DCT [2015] 70 SOT137/62 TAXMANN.COM 78(CHANDIGARH), UDAI C.TAMHANKAR VS DCIT (2015) 174 TTJ 151. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPORTED TH E ORDER OF AUTHORITIES BELOW. THE LD. DR FURTHER SUBMITS THAT DESPITE DISC LOSING THE UNDISCLOSED INCOME DURING THE SEARCH ON 26.05.2011, THE ASSESSE E NOT INCLUDED THE SAID INCOME IN HIS RETURN OF INCOME FILED UNDER SECTION 139(4) ON 30.03.2013. HAD THE SEARCH NOT TOOK PLACE AT THE PREMISES OF TH E ASSESSEE, THE ASSESSEE WOULD HAVE SUCCESSFULLY EVADED THE TAX LIABILITY. T HE ASSESSEE HAS NOT SUBSTANTIATED THE MANNER IN WHICH THE SAID UNDISCLO SED INCOME WAS DERIVED. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESS ING OFFICER WHILE PASSING ASSESSMENT ORDER RECORDED THAT IN RESPONSE TO THE NOTICE UNDER SECTION 153A THE ASSESSEE FURNISHED RETURN OF INCOME, INCLU DING THE SAID UNDISCLOSED INCOME. A PENALTY PROCEEDING UNDER SECT ION 271AAA IS INITIATED . THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SE CTION 271AAA ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 15 HOLDING THAT THE ASSESSEE OFFERED NO EXPLANATION. T HE ASSESSING OFFICER FURTHER HELD THAT THE ASSESSEE FAILED TO SUBSTANTIA TE THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED. BEFORE, LD CIT(A) T HE ASSESSEE URGED THAT DURING THE COURSE OF SEARCH THE ASSESSEE DECLARE I NCOME OF RS. 15,62,870/- DURING THE STATEMENT RECORDED UNDER SECTION132(4). THE ASSESSEE IN THE SAME STATEMENT SPECIFIED THAT THE SAID INCOME HAS BEEN D ERIVED FROM BROKERAGE AND FINANCIAL ADVISORY BUSINESS. THE ASSESSEE FURTH ER VIDE HIS LETTER DATED 17.02.2014 FURTHER SUBSTANTIATED THE MANNER IN WHIC H THE SAID UNDISCLOSED INCOME WAS DERIVED. 22. WE HAVE NOTED THAT THE ASSESSING OFFICER HAS NOT RE FERRED THE CONTENTS OF STATEMENT OF ASSESSEE RECORDED UNDER SECTION 132(4) , WHILE LEVYING THE PENALTY. NO REFERENCE OF THE QUESTION DURING THE RE CORDING THE STATEMENT, PUT TO THE ASSESSEE OR THE ANSWER OF ASSESSEE IS REFERR ED BY ASSESSING OFFICER IN HIS ORDER UNDER SECTION 271AAA. THE ASSESSEE DURING THE FIRST APPELLATE STAGE SPECIFICALLY RELIED ON HIS REPLY/LETTER DATED 17.02.2014 THAT HE HAS SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED AND CONTENDED THAT INCOME WAS DERIVED FROM THE BROKERAG E AND ADVISORY BUSINESS. THE LD CIT(A) NOT DISPUTED THE CONTENTS O F THE REPLY OF ASSESSEE DATED 17.02.2014 OR THE STATEMENT OF ASSESSEE UNDER SECTION 132(4) IN SUBSTANTIATING THE MANNER OF DERIVING THE UNDISCLOS ED INCOME. THE LD CIT(A) DISCARDED THE CONTENTION OF THE ASSESSEE HOL DING THAT NO DOCUMENTARY EVIDENCE WAS PRODUCE OF SUCH INCOME. IN OUR VIEW IT WAS ITA NO. 3221 TO 3224 /M/2017 - PIYUSH A. VORA 16 ESCAPED FROM ATTENTION OF LD CIT(A) THAT THE ASSESS EE HAS SHOWN THE TDS OF RS. 82,000/-, WHICH WAS INITIALLY OMITTED TO INCLUD E IN HIS RETURN OF INCOME. MOREOVER, THE LD CIT(A) HAVING CO-TERMINUS POWER AN D WAS FULLY COMPETENT TO INQUIRE ABOUT THE NON- GENUINITY OF SUCH TDS. TH E ASSESSEE HAS DISCHARGED HIS ONUS IN SUBSTANTIATING THE MANNER OF DERIVING THE UNDISCLOSED INCOME. IN OUR VIEW THE LOWER AUTHORITY WAS NOT JUS TIFIED IN LEVYING THE PENALTY UNDER SECTION 271AAA. 23. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DAY OF MAY 2018. SD/- SD/- (B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 23/05/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE C