The ACIT, Central Circle-2, RAJKOT-GUJARAT V. Shri Nishant Thaker L/R of Late Shri Vasudev T. Thaker, Bhuj

ITA 383/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0143 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Assessee Lawyers: J C RANPURA
• Keywords: Search and seizure
• Section: 133A; 153A; 27; 132; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM ITA NO. 383/RJT/2012 / ASSESSMENT YEAR 2007-08 ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, RAJKOT ( * / APPELLANT) VS. SHRI VASUDEV THAKKAR, L/R OF SHRI NISHANT THAKKAR, PROP. PURVI ESTATE AGENCY, BHUJ PAN:AAOPT1777F +,* / RESPONDENT - / REVENUE BY SHRI. ANKUR GARG /- / ASSESSEE BY SHRI J.C.RANPURA - / DATE OF HEARING 18.9.2012 - / DATE OF PRONOUNCEMENT 30.10.2012 / / / / ORDER . .. . . .. . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 9.3.2012 OF CIT( A)-IV, AHMADABAD FOR THE ASSESSMENT YEAR 2007-08 CANCELLING THE PENALTY OF RS.36,62,000/- LEVIED BY THE AO U/S 271(1)( C ) OF THE INCOME-TAX ACT 1961. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE SURVEY U/S 133A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSE E ON 23.11.2006, WHEREIN THE ASSESSEE HAD ADMITTED INCOME OF RS.1,10,00,000/-. THE ORIGINAL RETURN FOR THE ASSESSME NT YEAR UNDER CONSIDERATION WAS FILED ON 22.2.2008 DECLARING TOTAL IN COME AT RS.99,45,920/- INCLUDING INCOME ADMITTED DURING THE COU RSE OF SURVEY. ITA NO. 383/RJT/2012 2 LATER SEARCH AND SEIZURE ACTION U/S 132. WAS CARRIED O UT AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 15.9.2008. IN RE SPONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE FILED RETURN ON 24.12.2009 WITHOUT MAKING ANY ALTERATION TO THE ORIGINAL RETURN OF INCOME I.E. DECLARING TOTAL INCOME AT RS.99,45,920/-. THE AO FRAMED THE ASS ESSMENT U/S 153A VIDE ORDER DATED 20.3.2010 ASSESSING TOTAL INCOME AT RS.1 ,00,26,856/- AND ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1) ( C). SUBSEQUENTLY, FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALI NG THE INCOME OF RS.1,10,00,000/- THE AO LEVIED THE PENALTY OF RS.36, 61,675/- VIDE ORDER DATED 29.9.2010. 3. AGAINST THE AFORESAID PENALTY THE ASSESSEE PREFERRED AN APPEAL AND THE LD. CIT(A) IN THE IMPUGNED ORDER DATED 9.3. 2012 CANCELLED THE PENALTY; MAINLY ON THE GROUND THAT THE RETURN OF IN COME WAS FILED ON 22.2.2008 U/S 139 THOUGH SUBSEQUENT TO THE SURVEY CONDUCT ED ON 23.11.2006 BUT BEFORE SEARCH U/S 132 OF THE ACT AND I N THE SAID RETURN, THE ASSESSEE DECLARED ADDITION INCOME OF RS.1,10,00,000/ - WHICH WAS ADMITTED DURING THE COURSE OF SURVEY U/S 133A OF THE ACT. THE LD. CIT(A) IN THE IMPUGNED ORDER OBSERVED THAT NO ADDITIONAL I NCOME IS BROUGHT TO TAX BECAUSE OF SEARCH, THE EXPLANATION 5A TO SECTION 2 71(1)( C ) IS NOT AT ALL APPLICABLE TO THE FACTS OF THE CASE. AGGRIEVED WITH THIS ORDER, THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. AT THE TIME OF HEARING, SHRI ANKUR GARGE, THE L D. DR POINTED OUT THAT IN THIS CASE SEARCH HAS BEEN CONDUCED, THE RETURN OF INCOME WAS FILED AFTER SEARCH, THEREFORE PENALTY U/S 271(1)( C ) H AS RIGHTLY LEVIED BY THE AO, THE LD. CIT(A) IS NOT JUSTIFIED IN CANCELLING TH E SAME. AS AGAINST THIS, ITA NO. 383/RJT/2012 3 SHRI J C RANPURA, THE LD. COUNSEL FOR THE ASSESSEE VEHE MENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). 5. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NO TE THAT IN THIS CASE, THE SURVEY WAS CONDUCTED ON 23.11.2006. WHEREIN THE ASSESSEE H AS ADMITTED THE ADDITIONAL INCOME OF RS.1,10,00,000/- A ND AGREED TO PAY TAX THEREON. THE ORIGINAL RETURN OF INCOME WAS FILED U/S 139 ON 22.2.2008 WHEREIN THE ASSESSEE HAS DULY DECLARED THE ADDITIONAL I NCOME AT THE TIME OF SURVEY ON 22.6.2008. UNDER THESE CIRCUMSTANCES, NO CON CEALED INCOME WAS DETECTED AT THE TIME OF SEARCH U/S 132 WHICH WAS CONDUCTED ON 15.9.2009. AS A MATTER OF FACT THE ADDITIONAL INCO ME ADMITTED AT THE SURVEY U/S 133A OF THE ACT WAS DULY DECLARED IN THE ORIG INAL RETURN OF INCOME FILED PRIOR TO THE DATE OF SEARCH U/S 132 OF TH E ACT. THIS BEING THE FACT, THE EXPLANATION 5A TO SUB-SECTION 1 TO SECTION 27 1(1)(C) OF THE ACT IS NOT APPLICABLE AS RIGHTLY HELD BY THE LD. CIT(A) IN THE IMPUGNED ORDER. WE, THEREFORE, UPHELD THE ORDER OF THE LD. CIT(A) CA NCELLING THE PENALTY OF RS.36,62,000/- U/S 271(!)(C) OF THE ACT. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 30-10-2012. /RAJKOT ITA NO. 383/RJT/2012 4 SRL - -- - +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-, 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT. .