ITO, CHENNAI V. M/s. Menakur Infrastructure P. Ltd., CHENNAI

ITA 393/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58002 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 27-02-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENN AI BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. ITA NO.393/MDS./2011 ASSESSMENT YEAR:2007-08 INCOME TAX OFFICER, COMPANY WARD IV(1), CHENNAI 600 034. VS. M/S.MENAKUR INFRASTRUCTURE P. LTD. 228/279, J.J.ROAD,ALWARPET, CHENNAI 600 018. PAN AADCM 9732 B (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI ASHOK KUMAR, C.I.T. DR ASSESSEE BY : SHRI T.BANUSEKAR C.A. DATE OF HEARING : 27.02.12 DATE OF PRONOUNCEMENT : 29.02.1 2 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-V, CHENNAI IN APPEAL NO.101/09-10 DA TED 09.11.2010 FOR THE ASSESSMENT YEAR 2007-08. 2. SHRI ASHOK KUMAR, C.I.T. DR REPRESENTED ON BEHA LF OF THE REVENUE AND SHRI T.BANUSEKAR, C.A. REPRESENTED ON BEHALF OF THE ASSESSEE. ITA. 393/MDS/11 2 3. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSES SEE IS A COMPANY ON DOING THE BUSINESS OF BUILDERS AND DEVEL OPERS. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD FILED ITS ORIGINAL RETURN ON 07.11.06 ADMITTING NIL INCOME. IT WAS TH E SUBMISSION THAT THERE WAS A SURVEY U/S.133A CONDUCTED ON 14.02 .08. IT WAS THE SUBMISSION THAT IN COURSE OF SURVEY, THE MA NAGING DIRECTOR OF THE ASSESSEE COMPANY HAD ADMITTED A SUM OF ` 1,00,00,000/- TOWARDS PRE-OPERATIVE EXPENSES, WHIC H WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT. IT WAS FURT HER SUBMISSION THAT THE ASSESSEE HAD FILED A REVISED RE TURN ON 12.03.2008 ADMITTING ` 1,00,00,000/- AS INCOME AND TAX WAS ALSO PAID. IT WAS THE SUBMISSION THAT THE REVISED RETURN FILED BY THE ASSESSEE HAD BEEN ASSESSED U/S.143(3) ACCEPTING THE INCOME RETURNED. IT WAS FURTHER SUBMISSION THAT TH E PENALTY U/S.271(1)(C) HAD ALSO BEEN INITIATED TO WHICH THE ASSESSEE HAD REPLIED THAT A SUM OF ` 1,00,00,000/- WAS OFFERED ONLY FOR THE PURPOSE OF BUYING PEACE WITH THE DEPARTMENT A ND THE REVENUE HAD NOT BROUGHT ANY EVIDENCE ON RECORD, THA T THERE WAS SUPPRESSION OF INCOME OR THAT THE ASSESSEE HAD CONCEALED ITS INCOME. IT WAS THE SUBMISSION THAT O N APPEAL LD. COMMISSIONER OF INCOME TAX(A) DELETED THE PENA LTY LEVIED ITA. 393/MDS/11 3 U/S.271(1)(C) OF ACT BY RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUC TS, 322 ITR 158 (SC). IT WAS THE SUBMISSION THAT THE PENAL TY DELETED BY LD. COMMISSIONER OF INCOME TAX(A) IS LIABLE TO B E REVERSED AND THE ORDER OF THE ASSESSING OFFICER RESTORED. H E VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 4. IN REPLY, LD. AR SUBMITTED THAT THE OFFER MADE OF ADDITIONAL INCOME OF ` 1 CRORE WAS ONLY TO BUY PEACE WITH THE DEPARTMENT AND NO EVIDENCE IN THE COURSE OF SURVEY HAD BEEN FOUND TO SHOW THAT THE ASSESSEE HAD CONCEALED ITS I NCOME OR FURNISHED ANY INACCURATE PARTICULAR OF ITS INCOME. IT WAS THE SUBMISSION THAT THE REPLY FILED BY THE ASSESSEE HAD ALSO NOT BEEN SHOWN TO BE FALSE. IT WAS THE SUBMISSION TH AT THE PENALTY AS LEVIED BY THE AO WAS RIGHTLY DELETED BY THE LD. COMMISSIONER OF INCOME TAX(A). HE FURTHER PLACED R ELIANCE ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF C.I.T. VS. S.KHADER KHAN SON 300 ITR 157 T O SUPPORT HIS SUBMISSION THAT THE STATEMENT RECORDED IN THE C OURSE OF SURVEY HAS NO EVIDENTIARY VALUE AND ANY ADMISSION M ADE DURING SUCH STATEMENT CANNOT, BY ITSELF, BE MADE TH E BASIS FOR ADDITION. IT WAS THE SUBMISSION THAT NO EVIDENCE H AD BEEN ITA. 393/MDS/11 4 FOUND IN THE COURSE OF SURVEY NOR AFTER SURVEY TO SHOW THAT THE ASSESSEE HAD CONCEALED ITS INCOME OR FURNISHED INAC CURATE PARTICULARS OF INCOME. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD OFFERED AN AMOUNT OF ` 1 CRORE AND THE SAME HAD ALSO BEEN DISCLOSED IN THE REVISED RETURN FILED AND THE SAME HAD ALSO BEEN ACCEPTED WITHOUT MURMUR. IT WAS THE SUBM ISSION THAT THE ORDER OF LD.C.I.T.(A) IS LIABLE TO BE UPHE LD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. PER USAL OF THE ORDER OF THE ASSESSING OFFICER LEVYING THE PENA LTY U/S.271(1)(C) OF THE ACT SHOWS THAT THE ASSESSING O FFICER HAS RELIED UPON THE STATEMENT OF THE MANAGING DIRECTOR FOR THE PURPOSE OF LEVYING OF PENALTY. ADMITTEDLY, AS PER THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF S.KHADER KHAN SON REFERRED TO SUPRA, THE STATEMENT ITSELF I S NOT EVIDENCE FOR THE PURPOSE OF MAKING ADDITION MUCH L ESS FOR THE PURPOSE OF LEVY OF PENALTY. PERUSAL OF THE DECISIO N OF THE LD. C.I.T.(A) SHOWS THAT LD. C.I.T.(A) HAS TAKEN INTO C ONSIDERATION THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF C.I.T. VS CAFCO SYNDICATE SHIPPING CO. IN 294 IT R 134 TO HOLD THAT THE ASSESSING OFFICER HAS TO RECORD A FIN DING THAT THE EXPLANATION OFFERED BY THE ASSESSEE IN THE EVENT HE OFFERS ONE, ITA. 393/MDS/11 5 WAS FALSE. HE MUST BE FOUND TO HAVE FAILED TO PROV E THAT SUCH EXPLANATION IS NOT BONAFIDE AND ALL THE FACTS RELAT ING TO THE SAME AND MATERIAL TO THE INCOME WERE NOT DISCLOSED BY THE ASSESSEE, WHICH IN THE PRESENT CASE HAS NOT BEEN DO NE BY THE ASSESSING OFFICER. PERUSAL OF THE ORDER OF THE AS SESSING OFFICER SHOWS THAT OTHER THAN RELYING UPON THE STAT EMENT OF THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY, NO INDEP ENDENT EVIDENCE HAS BEEN FOUND NOR BROUGHT ON RECORD TO SH OW THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF IN COME OR SUPPRESSED ITS INCOME. IN THE CIRCUMSTANCES, WE AR E OF THE VIEW THAT THE FINDING OF THE C.I.T.(A) DELETING THE PENALTY IS ON RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENC E. IN THE CIRCUMSTANCES, THE APPEAL OF REVENUE IS DISMISSED. 6. IN RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 29 TH FEBRUARY, 2012. SD/- SD/- ( N.S.SAINI ) (GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 29 TH FEBRUARY, 2012. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE ITA. 393/MDS/11 6