The DCIT, Central Circle-2(2), Ahmedabad V. Yamunaji Corporation, Ahmedabad

ITA 3308/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7696 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 08-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 143(3); 133A; 132

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.3307/AHD/2016 / ASSTT. YEAR: 2012-13 DCIT, CENT.CIR.2(2) AHMEDABAD. VS. MANN CORPORATION MALA HILLS, AARYA MANAN SHOP B/H. ANAND PARTY PLOT ROAD GST CROSSING, RANIP, AHMEDABAD. PAN : AABFA 6682 K ./ ITA NO.3308/AHD/2016 / ASSTT. YEAR: 2012-13 DCIT, CENT.CIR.2(2) AHMEDABAD. VS. YAMUNAJI CORPORATION SURVEY NO.131, NR.YOGESHWAR KUTIR BUNGALOW NEW RANIP, AHMEDABAD. PAN : AABFA 6682 K / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : SHRI S.N. SOPARKAR, SR.AR WITH SHRI PARIN SHAH, AR ! / DATE OF HEARING : 02/04/2019 '#$ ! / DATE OF PRONOUNCEMENT: 24 /04/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THESE ARE TWO APPEALS BY THE REVENUE AGAINST ORDERS OF THE LD.CIT(A)-12, AHMEDABAD OF EVEN DATED I.E. 10.9.201 6 PASSED FOR THE ASSTT.YEAR 2012-13, VIDE WHICH THE LD.CIT(A) HA S DELETED PENALTY OF RS.21,63,000/- IN THE CASE OF MANN CORPO RATION AND ITA NO.3307 AND 3308/AHD/2016 2 RS.6,93,70,500/- IN THE CASE OF YAMUNAJI CORPORATIO N IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF TH E INCOME TAX ACT, 1961. SINCE ISSUE IS COMMON EXCEPT VARIATION IN QUANTUM, WE PROCEED TO DISPOSE OF BOTH THE APPEALS BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS IN THIS BEHALF ARE THAT THE ASSESSEE IS ENGAGED IN CONSTRUCTION ACTIVITIES. A SEARCH ACTION UNDER SEC TION 132 OF THE ACT WAS CARRIED OUT IN THE CASES OF ANKUR DALAL GRO UP ON 28.3.2012. SURVEY ACTION WAS CARRIED UNDER SECTION 133A OF THE ACT IN WHICH DISCLOSURE OF ON-MONEY RECEIPT OF RS.7 0 LAKHS FOR THE ASSTT.YEAR 2012-12 IN THE CASE OF MANN CORPORATION AND RS.22.45 CRORES IN THE CASE OF YAMUNAJI CORPORATION WAS MADE . SUBSEQUENTLY, BOTH THE ASSESSEES FILED RETURNS OF I NCOME ON 18.9.2012 AND 28.9.2012 UNDER SECTION 139(1) OF THE ACT DECLARING TOTAL INCOME OF RS.1,67,69,530/-, WHICH I NCLUDED DISCLOSURE OF RS.70 LAKHS BY MANN CORPORATION AND RS.28,27,20,720/- INCLUDING AN AMOUNT OF RS.22.45 C RORES BY THE YAMUNAJI CORPORATION. THE CASES OF THE ASSESSEES W ERE SELECTED FOR SCRUTINY BECAUSE OF SURVEY UNDER SECTION 133A. ASSESSMENT OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) AT THE RETURNED INCOME. THEREAFTER, THE AO IMPOSED IMPUGNED PENALTY OF RS.64,89,000/- AND RS.21,63,000/- RESPECTIVELY BY O BSERVING THAT DISCLOSURE MADE BY THE ASSESSEES WERE NOT VOLUNTARY , AND IT HAS BEEN MADE ONLY WHEN THE DEPARTMENT DETECTED THE SAM E DURING THE SURVEY ACTION. THE ASSESSEES CARRIED THE MATTE R IN APPEALS BEFORE THE LD.FIRST APPELLATE AUTHORITY WHO AFTER D ISCUSSING THE ISSUE IN GREAT LENGTH AND IN THE LIGHT OF VARIOUS A UTHORITATIVE JUDGMENTS IN THIS BEHALF, ALLOWED THE APPEALS OF TH E ASSESSEES AND ITA NO.3307 AND 3308/AHD/2016 3 DELETED THE IMPUGNED PENALTY. AGGRIEVED REVENUE IS NOW BEFORE THE TRIBUNAL IN SECOND APPEAL. 3. BEFORE US, THE LD.DR RELIED UPON THE ORDER OF THE AO, WHILE LD.COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD.FIRST APPELLATE AUTHORITY. THE LD.AR FURTHER SUBMITTED T HAT ADDITIONAL INCOME DISCLOSED AND OFFERED FOR TAXATION, ON WHICH PENALTY WAS IMPOSED HAS ALREADY BEEN DISCLOSED IN THE RETURNS O F INCOME FILED FOR THE ASSTT.YEAR 2012-13. IT IS FURTHER SUBMITTED THAT THE DATE OF FILING RETURN OF INCOME FOR THE A.Y.2012-13 UNDER S ECTION 139(1) HAD NOT EXPIRED AS ON THE DATE OF SURVEY OPERATION AND REGULAR RETURN OF INCOME WAS YET TO BE FILED. THE LD.AO WH ILE ACCEPTING THE RETURNED INCOME HAS NOT NOTICED ANY FURTHER DIS CREPANCY. THE FACT OF DISCLOSURE HAS ALSO BEEN STATED IN THE NOTE S FORMING PART OF ACCOUNTS. HE SUBMITTED THAT ASSESSEE IS LIABLE FOR PENAL ACTION UNDER SECTION 271(1)(C) OF THE ACT, ONLY WHEN RETUR N OF INCOME FILED BY THE ASSESSEE IS SCRUTINIZED BY THE AO AND HE FINDS SOME MORE INCOME, OVER AND ABOVE WHAT IS DECLARED IN THE RETURN. ASSESSEE HAS PAID TAXES ON THE DISCLOSED INCOME AND THE AO HAS NOT DISTURBED THE BOOK RESULTS AND THE RETURNED INC OME WAS ACCEPTED. THEREFORE, THERE IS NO QUESTION OF IMPOSI NG PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN SUPPORT OF T HE CASE OF THE ASSESSEE, THE LD.COUNSEL FOR THE ASSESSEE RELIED UP ON THE FOLLOWING ORDERS/JUDGMENTS: I) DIVYA STHAPATYA VS. ITO, ITA NO.2220 & 221/AHD/2015 DATED 20-2-2018; II) ACIT VS. JUITER DISTILLERY, 23 TAXMANN.COM 303 (AHD - TRIB.); III) DCIT VS. DR.SATISH B. GUPTA, 42 SOT 48 (AHD); IV) CIT VS. SAS PHARMACETUTICALS, 11 TAXMANN.COM 207 (DEL); V) PR.CIT VS. NEERAJ JINDAL, 79 TAXMANN.COM 96 (DEL) ITA NO.3307 AND 3308/AHD/2016 4 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD CAREFULLY. UNDISPUTED FACTS OF THE CASE IS T HAT SURVEY UNDER SECTION 133A WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 28.3.2012 I.E. MUCH PRIOR TO THE CLOSING DATES OF A CCOUNTS AND DATE OF FILING OF RETURN UNDER SECTION 139(1) OF TH E ACT. THE ASSESSEES HAVE ADMITTED AN AMOUNT OF RS.70 LAKHS AN D RS.22.45 CRORES RESPECTIVELY DURING THE SURVEY ACTION WHICH WERE SUBSEQUENTLY SHOWN IN THE REGULAR RETURNS OF INCOME FILED UNDER SECTION 139(1) OF THE ACT. THESE RETURNS WERE ACCE PTED BY THE AO WITHOUT ANY ADDITION OR DISALLOWANCE NOR POINTED OU T ANY DISCREPANCIES DURING THE ASSESSMENT. HOWEVER, THE IMPUGNED PENALTY WAS LEVIED ON THE PREMISE THAT THE ASSESSEE WOULD NOT HAVE DISCLOSED THE RECEIPT OF ON-MONEY, BUT FOR THE SURVEY ACTION. IT IS THE CASE OF THE ASSESSEE THAT INCOME ADMITTED DURING SURVEY U/S.133A WHEN DISCLOSED IN THE RETURN OF INCOME FUR NISHED ON OR BEFORE DUE DATE AND THE SAME IS ACCEPTED BY THE AO, THERE CANNOT BE A CASE FOR LEVY OF PENALTY. WHEN THE DUE DATE F OR FILING RETURN OF INCOME WAS NOT EXPIRED, THEN HOW THE AO COULD IN FER THAT THE ASSESSEE WOULD NOT DISCLOSE THE INCOME IN ITS RETUR N. THE ASSESSEE HAS DISCLOSED THIS INCOME IN ITS RETURN AN D THE AO HAS ACCEPTED THE SAME WITHOUT ANY ADDITION OR DISALLOWA NCE. THE LD.AO HAS SIMPLY CARRIED AWAY BY THE SURMISE THAT H AD THE SURVEY NOT TAKEN PLACE, THE ASSESSEE WOULD NOT HAVE DISCLO SED THIS INCOME. THIS ASSUMPTION AND SURMISES OF FACTS ARE WITHOUT ANY BASIS. THE LD.AO CANNOT ANTICIPATE THAT ASSESSEE W ILL NOT DISCLOSE A PARTICULAR INCOME. THERE ARE NUMBER OF JUDGMENTS AVAILABLE ON THIS ISSUE WHERE IT IS HELD THAT WHEN AN ASSESSEE H AS MADE A COMPLETE DISCLOSURE IN THE RETURN OF INCOME AND OFF ERED THE ADMITTED AMOUNT FOR TAXATION, THEN THERE IS NO QUES TION OF ITA NO.3307 AND 3308/AHD/2016 5 CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME SO AS TO ATTRACT PROVISIONS OF SECTION 271(1 )(C) OF THE ACT. HONBLE DELHI HIGH COURT IN THE CASE OF SAS PHARMAC EUTICALS (SUPRA) HAS HELD THAT WHEN THE ASSESSEE DISCLOSES A MOUNT DURING ACTION UNDER SECTION 133A, AND THE SAME IS HONOURED BY FILING RETURN OF INCOME SUBSEQUENT THERETO, NO PENALTY U/S .271(1)(C) OF THE ACT IS SUSTAINABLE. THE LD.CIT(A) HAS MADE DET AILED ANALYSIS OF THE ISSUE IN THE LIGHT OF THE OF VARIOUS JUDGMEN TS AND RIGHTLY COME TO THE CONCLUSION THAT LEVY OF IMPUGNED PENALT Y IS NEITHER SUSTAINABLE ON FACTS NOR IN LAW. WE UPHOLD OF ORDE R OF THE LD.CIT(A) AND REJECT THE GROUND OF APPEAL OF THE RE VENUE. 5. IN THE RESULT, BOTH APPEALS OF THE REVENUE ARE D ISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH APRIL, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER