Sh. Babu Lal Motawat S/o Sh. Bhanwarlal Motawat, UDAIPUR V. DCIT, UDAIPUR

ITA 33/JODH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70258 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SEHGALCIT
• Keywords: Search and seizure; Document seized; Documents seized
• Section: 143(3); 153A; 27; 132

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 33/JODH/2013 (A.Y. 2008-09) SH. BABU LAL MOTAWAT VS DCIT, CENTRAL CIRCLE-1, S/O. SH. BHANWAR LAL MOTAWAT UDAIPUR. 5-SHANTIVAN, BEDLA ROAD, UDAIPUR. PAN NO. AFGPM0658R (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AMIT KOTHARI. DEPARTMENT BY : SH. DEEPAK SEHGAL-CIT- DR. DATE OF HEARING : 04/10/2013. DATE OF PRONOUNCEMENT : 07/10/2013. O R D E R PER HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE, FOR A.Y. 2008-09, IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), CENTRAL, JAIPUR DATED 06/1 2/2012 AND HAS EMANATED FROM THE ORDER OF LD. DCIT, CENTRAL CIRCLE -1, UDAIPUR, DATED 2 13/06/2011 PASSED U/S 271(1)(C) OF THE INCOME TAX A CT, 1961, (THE ACT FOR SHORT). 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT CO NSEQUENT UPON A SEARCH AND SEIZURE OPERATION CARRIED OUT AT ASSESSE ES RESIDENCE AND BUSINESS PREMISES, U/S 132 OF THE ACT, ON 03/09/200 8, THE ASSESSEE FILED HIS (RETURN OF INCOME [ROI]) U/S 153A AND DEC LARED INCOME OF RS. 1.40 CRORES ON THE BASIS OF SEIZED DOCUMENTS ETC. T HE RETURNED INCOME HAS BEEN ASSESSED AS SUCH AND NO ADDITION HAS BEEN MADE IN THE ORDER DATED 16/12/2010 MADE U/S 153A R.W.S. 143(3) OF THE ACT. THE A.O. HAS INITIATED PENALTY PROCEEDING U/S 271(1)(C) BECA USE THE ASSESSEE HAS NOT VOLUNTARILY DISCLOSED INCOME. A PENALTY OF RS. 47,58,600/- HAS BEEN IMPOSED VIDE ORDER DATED 13/06/2011. 2.1 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL AND LD. CIT(A) HAS NOT FOUND IT A FIT CASE FOR IMPOSITION OF PENALTY U /S 271(1)(C) OF THE ACT. HOWEVER, HE HAS GIVEN A FINDING THAT INSTEAD, IN THE GIVEN FACTS AND THE CIRCUMSTANCES OF THE CASE, A PENALTY U/S 27 1 AAA OF THE ACT IS LEVIABLE AND NOT U/S 271(1)(C) FOR CONCEALMENT OF I NCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. ACC ORDINGLY, HE HAS CONFIRMED A PENALTY OF RS. 14,00,000/- U/S 271 AAA OF THE ACT. 3 AGGRIEVED AGAINST THIS ORDER DATED 06/12/2012, THE ASSESSEE HAS CAME IN SECOND APPEAL. 2.2 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFU LLY PERUSED THE ENTIRE RECORD. IT HAS BEEN ARGUED BY LD. AR THAT WI THOUT INITIATION OF A PENALTY U/S 271 AAA OF THE ACT, EITHER BY THE A.O. OR THE LD. CIT(A), WHO HAVE ADMITTEDLY NOT DONE SO, A PENALTY IS BAD I N LAW. THE LD. DR HAS SUPPORTED THE APPELLATE ORDER. 2.3 WE HAVE FOUND IT FOR A FACT THAT NEITHER THE A. O. NOR THE LD. CIT(A) HAS GIVEN NOTICE TO THE ASSESSEE ABOUT IMPOS ITION OF A PENALTY U/S 271 AAA OF THE ACT. THE PARAMETERS FOR IMPOSIT ION OF A PENALTY U/S 271(1)(C) AND 271 AAA OF THE ACT ARE ENTIRELY D IFFERENT AND DISTINCT. NO PENALTY CAN BE IMPOSED UPON ASSESSEE EXPARTE AND WITHOUT GIVING AN NOTICE OF SUCH A PROPOSED PENALTY . THE LAW ON THIS SUBJECT BEING ORDAIN BEING A PRINCIPLE OF AUDI ALTE RAM PERTAM (NATURAL JUSTICE), ANY VIOLATION THEREOF IS NOT SUSTAINABLE IN THE EYES OF THE LAW. THEREFORE, WE HAVE TO DELETE THE IMPUGNED PENALTY O F RS. 14 LACS IMPOSED U/S 271 AAA BY LD. CIT(A). 4 3. IN THE RESULT, WE ALLOW ASSESSEES APPEAL. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH OCTOBER, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH OCTOBER, 2013. VL/ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR