Maya Deepak Lawande, Margao V. ACIT, Central Circle, Panaji

ITA 37/PAN/2021

AI Insights

The case involves ten appeals filed by Shri Deepak Datta Lawande and Smt. Maya Deepak Lawande against penalties imposed for the assessment years 2012-13 to 2016-17. The penalties were imposed following a search operation on 14.11.2016, which revealed undisclosed incomes admitted by the assessees in their statements. However, the Tribunal noted that the penalties under section 271(1)(c) were incorrectly applied as there was no actual material evidence found during the search for the earlier assessment years, and the last assessment year was specifically covered under section 271AAB, which has an overriding effect over section 271(1)(c).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136814 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: WT(D)
• Next Hearing Date: 10-10-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 09-11-2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P.S. SHIVSHANKAR
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH : PANAJI (THROUGH VIRTUAL HEARING AT ITAT : PUNE BENCHES : PUNE) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK RIPOTE, ACCOUNTANT MEMBER Sl. No. ITA.No. Name of Assessee Respondent A.Y. CIT(A)'s Order Appealed Against Penalty Amount in Rs. Proceedings under sec. 1. 31/PAN./2021 Deepak Datta Lawande, Dr. Lawande Hospital, Near Power House, Aquem, Margao, Goa PIN 403 601 PAN AALPL8850E ACIT, Central Circle, Pundalik Niwas, Rua De Ourem, Panaji, Goa PIN 403 001 2012- 13 CIT(A)- 2/PNJ/10033/2019-20 1,01,540 271(1)(c) of the of the Income Tax Act, 1961 (in short "the Act"). 2. 32/PAN./2021 2013- 14 CIT(A)- 2/PNJ/10035/2019-20 1,22,230 3. 33/PAN./2021 2014- 15 CIT(A)- 2/PNJ/10037/2019-20 1,35,730 4. 34/PAN./2021 2015- 16 CIT(A)- 2/PNJ/10039/2019-20 1,63,150 5. 35/PAN./2021 2016- 17 CIT(A)- 2/PNJ/10042/2019-20 1,82,730 6. 36/PAN./2021 Smt. Maya Deepak Lawande, Dr. Lawande Hospital, Near Power House, Aquem, Margao, Goa. PIN 403 601 PAN AALPL8849F 2012- 13 CIT(A)- 2/PNJ/10034/2019-20 1,01,540 7. 37/PAN./2021 2013- 14 CIT(A)- 2/PNJ/10036/2019-20 1,22,230 8. 38/PAN./2021 2014- 15 CIT(A)- 2/PNJ/10038/2019-20 1,35,730 9. 39/PAN./2021 2015- 16 CIT(A)- 2/PNJ/10040/2019-20 1,63,150 10. 40/PAN./2021 2016- 17 CIT(A)- 2/PNJ/10041/2019-20 1,82,730 For Assessees : Shri P.K. Bansal For Revenue : Shri P.S. Shivshankar, CIT-DR Date of Hearing : 11.10.2023 Date of Pronouncement : 13.10.2023 ORDER PER BENCH : The instant batch of ten appeals pertain to twin assessee’s viz., Shri Deepak Datta Lawande, and his wife Smt. Maya Deepak Lawande. All other relevant details stand duly tabulated hereinabove in the common cause title. 2 I.T..A.Nos.31 to 40/PUN./2021 Heard both the assessees’ as well as the department through their respective learned representatives. Case files perused. 2. We note during the course of hearing that these twin assessees’ instant ten appeals i.e., five cases each raise identical substantive grounds seeking to reverse the learned lower authorities action imposing sec.271(1)(c) penalties thereby invoking Explanation 5A thereof as this is an instance of a search carried out in the latter assessee’s case dated 14.11.2016. And that the former assessee herein Shri Deepak Datta Lawande had been proceeded u/sec.153C of the Act. There is further no dispute between the parties that the Assessing Officer had framed his identical as many corresponding assessments dated 30.11.2018 assessing both these assessee’s thereby apportioning the corresponding undisclosed incomes equally in their names as they are governed under the Portuguese Civil Court as prescribed u/sec.5A of the Act. 3. Now comes the impugned penalty proceedings initiated in both of these assessees’ cases by the learned lower authorities holding that they had concealed their taxable income which could see light of the day only after the impugned search dated 14.11.2016. It is in this factual backdrop that both the lower authorities have imposed the 3 I.T..A.Nos.31 to 40/PUN./2021 above tabulated penalties identically in these twin assessee’s cases. This is what leaves these twin assessee’s aggrieved who are in appeal before us. 4. It transpires during the course of arguments that the alleged undisclosed incomes in both these assessees’ cases had been assessed going back their sec.132(4) search statements only wherein they had admitted to have not disclosed the correct OPD receipts right from F.Y. 2011-12 [A.Y.2012-13] till the date of search. There would be further no quarrel that these assessees’ have duly admitted their undisclosed income(s) in question which also stood declared in their post-search returns as the Assessing Officer(s) had not made any addition as it is evident to us from a combined perusal of all these case files. 5. The first and foremost question that arises for our apt adjudication in all these cases therefore, is regarding the applicability of sec.271(1)(c) Explanation-5A itself. Learned CIT-DR vehemently argued that this is a search case which was conducted after 01.06.2007 wherein the assessees’ had been found to have concealed their respective particulars of income going by their sec.132(4) statements. We are afraid that such a course of invoking impugned penal provision is nowhere contemplated u/sec.271(1)(c), Explanation-5A, clauses-(I) and (II) wherein the legislature has made it clear 4 I.T..A.Nos.31 to 40/PUN./2021 that the searched person has to be as the owner of “any money, bullion or jewellery etc.” in former category and “any income based on any entry in any books of accounts” in the latter one; respectively. We do not see any actual material apart from the assessees’ so-called sec.132(4) admissions in case files atleast in the former four assessment years i.e., 2012-13 to 2015-16. The Revenue is equally fair in not disputing this clinching factual position. 6. This is also coupled with the fact that so far as the last assessment year before us i.e., A.Y. 2016-17 is concerned, we again note that sec.271(1)(c) would hardly apply as there is yet another specific provision i.e., Sec.271AAB of the Act dealing with a searched assessee’s case in the “specified previous year”. Faced with the situation, we conclude that these impugned identical penalties in the former four assessment years are not sustainable since not based on any actual evidence found during the course of search in light of sec.271(1)(c) Explanation-5A(I) and (II) and in the last assessment year; for the reason that the same falls in the definition of “specified previous year” in sec.271AAB Explanation (b) of the Act in the nature of a special provision having overriding effect over sec.271(1)(c) of the Act. We thus accept the assessees’ submissions challenging correctness of the impugned penalties in all these ten cases. The Revenue’s 5 I.T..A.Nos.31 to 40/PUN./2021 arguments through learned CIT-DR supporting the same are declined in very terms. Ordered accordingly. All other pleadings on merits stand rendered academic. 7. These twin assessee’s instant ten appeals are allowed in above terms. A copy of this common order be placed in the respective case files. Order pronounced in the open Court on 13.10.2023. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 13 th October, 2023 VBP/- Copy to 1. The applicant 2. The respondent 3. The CIT(A)-2, 3 rd Floor, Pundalik Niwas, Rua Documentary evidence Ourem, Panaji, Goa-403 001 4. Pr. CIT (Central), Bangalore 5. D.R. ITAT – ‘Panaji’ Bench, Panaji 6. Guard File. //By Order// //True Copy // Assistant Registrar, ITAT, Pune Benches, Pune.