M/s. Kalpana Nursing Home Private Limited, UDAIPUR V. ACIT (OSD) (Central), UDAIPUR

ITA 42/JODH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1539 (ITAT-JODHPUR)
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH KUMARDR
• Section: 132

Judgement Text

1 IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 42/JU/13 (A.Y. 2000-01) ITA NO. 43/JU/13 (A.Y. 2001-02) ITA NO. 44/JU/13 (A.Y. 2002-03) ITA NO. 45/JU/13 (A.Y. 2003-04) KALPANA NURSING HOME P. LTD. VS. ACIT (OSD), (CEN TRAL), 214-C, SARDARPURA, UDAIPUR. UDAIPUR. PAN NO. AAACK 5892 M ASSESSEE BY : SHRI G.K. GARGIEYA, SHRI SARVESH BALDI. DEPARTMENT BY : SHRI MAHESH KUMAR(DR) DATE OF HEARING : 25/02/2013 DATE OF PRONOUNCEMENT: 25/02/2013 PER BENCH :- IN THESE FOUR APPEALS FILED BY THE ASSESSEE IDENTIC AL ISSUES ARE INVOLVED AND ARISE OUT OF COMMON SET OF FACTS AND ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CI T(A), CENTRAL, JAIPUR DATED 26.12.2012 FOR ASSESSMENT YEARS 2000- 01 TO 2003-04. THEREFORE, WE PROCEED TO DECIDE THEM BY THIS COMMON ORDER. 2 2. EXCEPT FOR THE AMOUNT OF PENALTY, THE COMMON ISS UE INVOLVED IN ALL THESE APPEALS IS AS UNDER: 1. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS WHILE CONFIRMING THE IMPOSITION OF PENALTY OF RS. 3,48,603 BY INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT WHICH IS BAD IN LAW AND UNJUSTIFIED AND IS CONTRARY TO THE SETTLED LAW AND SUPPORTED BY SERIES OF DECISIONS OF ITAT/HIGH COURT/SUPREME COURT. 2. THAT IT IS PRAYED THAT PENALTY SO IMPOSED AMOUNT TO RS. 3,48,603/- DESERVES TO BE DELETED AND PENALTY ORDER REQUIRED TO BE QUASHED BEING ILLEGAL AND BAD IN LAW 3. AT THE TIME OF HEARING, AT THE VERY OUTSET, IT W AS CONVEYED TO US BY THE LD. COUNSEL FOR THE ASSESSEE THAT THIS ISSUE STANDS COVERED BY THE TRIBUNAL ORDER DATED 29 .01.2013 PASSED IN ASSESSEES OWN CASE IN ITA NOS. 430 TO 43 2/JU/2012 FOR ASSESSMENT YEARS 2004-05 TO 2006-07 WHOSE COPIE S ARE ENCLOSED. THE LD. COUNSEL FOR THE DEPARTMENT COULD NOT CONTROVERT THIS CONTENTION OF THE LD. COUNSEL FOR T HE ASSESSEE. BUT HE RELIED ON THE FINDINGS OF THE A.O . GIVEN IN THIS REGARD. 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O GONE THROUGH THE ORDERS RELIED UPON BY THE LD. COUNSEL F OR THE ASSESSEE AND HAVE ALSO CAREFULLY TREADED THROUGH TH E APPELLATE ORDER. WE HAVE CLEARLY NOTICED THAT THE I SSUE RAISED IN THIS APPEAL STANDS FULLY COVERED BY THE O RDER OF THE TRIBUNAL DATED 29.1.2013 IN ITA NOS. 430 TO 432/JU/ 2012 PASSED IN ASSESSEES OWN CASE WHEREIN IT HAS BEEN H ELD AS UNDER: 3. WE HAVE HEARD THE RIVAL SUBMISSIONS IN THE LIGH T OF THE EVIDENCE ON RECORD. IN OUR CONSIDERED OPINION THE B ENEFIT OF EXPLANATION 5 OF SECTION 271(1)(C) IS AVAILABLE TO THE ASSESSEE- COMPANY, AS ALL THE REQUISITE CONDITIONS OF THIS EX PLANATION STAND FULFILLED. THE VERSION THAT THE SURRENDER IS NOT VOLUNTARY WOULD NOT APPLY IN THE CASE WHEN SURRENDER OF UNDIS CLOSED INCOME IS MADE U/S 132(4) AND CERTAIN SPECIFIC COND ITIONS ARE FOUND TO EXIST. 4. EXPLANATION 5 TO SECTION 271(1)(C) READS AS UNDE R :- WHERE IN THE COURSE OF A ]SEARCH INITIATED UNDER S ECTION 132 BEFORE THE 1 ST DAY OF JUNE, 2007], THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLAN ATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS TH AT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING (WHOL LY OR IN PART) HIS INCOME,- 4 (A) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE TH E DATE OF THE SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAS NOT BEEN FURNISHED BEFORE THE SAID DATE OR, WHERE SUCH RETURN HAS BEEN FURNISHED BEFORE THE SAID DATE, SUCH INCOME HAS NOT BEEN DECLARED THEREIN OR (B) FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFT ER THE DATE OF THE SEARCH, THEN, NOTWITHSTANDING THAT SUC H INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF THE SEARCH, HE SH ALL, FOR THE PURPOSES OF IMPOSITION OF PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF SUCH INCOME OR FURNISH ED INACCURATE PARTICULARS OF SUCH INCOME, (UNLESS,- (1) SUCH INCOME IS, OR THE TRANSACTIONS RESULTING I N SUCH INCOME ARE RECORDED,- (I) IN A CASE FALLING UNDER CLAUSE (A), BEFORE THE DATE OF THE SEARCH; AND (II) IN A CASE FALLING UNDER CLAUSE (B), ON OR BEFO RE SUCH DATE, IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME OR SUCH INCOME IS OTHE RWISE DISCLOSED TO THE [CHIEF COMMISSIONER OR COMMISSIONE R] BEFORE THE SAID DATE; OR 5 (2) HE, IN THE COURSE OF THE SEARCH, MAKES A STATEM ENT UNDER SUB-SECTION (4) OF SECTION 132 THAT ANY MONEY , BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG FOUND IN HIS POSSESSION OR UNDER HIS CONTROL, HAS BEEN AC QUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO F AR IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB-SECTION (1) OF SECTION 139, AND AL SO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME. THEREFORE, THE THREE REQUISITE CONDITION OF THIS EX PLANATION ARE FOUND TO BE SATISFIED BY THE ASSESSEE-COMPANY. THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS KANHAY LAL REPORTED (2008) 299 ITR 19 (RAJ.)- (200 8) 214 CTR (RAJ.) 611, SQUARELY APPLIES TO THE FACTS OF THIS C ASE. 5. THE HELD PORTION OF THE ABOVE DECISION IS AS UND ER :- DISMISSING THE APPEALS, THAT THE ASSESSING OFFICER HAD FOUND THE INCOME TO RELATE TO DIFFERENT ASSESSMENT YEARS, IN DIFFERENT VOLUMES, AS CONTRADISTINGUISHED TO THE ONE SUBMITTED BY THE ASSESSEE, AND HAD ACCORDINGLY MADE THE ASSESSMENTS, WHICH ASSESSMENT HAD BECOME FINAL, AND WERE NOT THE SUBJECT-MATTER OF CHALLENGE. HENCE THE ASSE SSEE WAS ENTITLED TO THE IMMUNITY UNDER EXPLANATION 5 TO SECTION 271(1)(C).PENALTY COULD NOT BE IMPOSED. 6 6. ANOTHER SIMILAR DECISION OF HONBLE RAJASTHAN HI GH COURT WAS RENDERED IN THE CASE OF GEBILAL KANHAIYALAL (HU F) VS. ACIT (2004) 270 ITR 523 (RAJ.). THIS DECISION HAS BEEN A PPROVED BY HONBLE APEX COURT AND IS REPORTED AS (2012) 348 IT R 561 (SC). THE HELD PORTION OF RAJASTHAN HIGH COURT DECISION I S AS UNDER :- THAT, IN THE INSTANT CASE, THERE WAS NO DISPUTE AB OUT THE FACT THAT THE SEARCH CONTINUED TILL AUGUST 1, 1987, AND ON AUGUST, 1, 1987, IN THE STATEMENT, THE ASSESSEE HAD DISCLOSED A PARTICULAR CONCEALED INCOME AND SURREND ERED IT FOR TAX AND TAX HAD BEEN PAID ALONG WITH INTEREST. PENALTY COULD NOT THEREFORE BE IMPOSED. THE HELD PORTION OF THE HONBLE APEX COURT IS AS UN DER :- DISMISSING THE APPEAL, THAT THE ONLY CONDITION WHI CH WAS REQUIRED TO BE FULFILLED FOR GETTING THE IMMUNITY, AFTER THE SEARCH, PROCEEDINGS GOT OVER, WAS THAT THE ASSE SSEE HAD TO PAY THE TAX TOGETHER WITH INTEREST IN RESP ECT OF SUCH UNDISCLOSED INCOME UP TO THE DATE OF PAYMENT. CLAUSE (2) DID NOT PRESCRIBE THE TIME LIMIT WITHIN THE ASS ESSEE SHOULD PAY TAX ON INCOME DISCLOSED IN THE STATEMENT UNDER SECTION 132(4). THE ASSESSEE WAS ENTITLED TO IMMUN ITY UNDER CLAUSE (2) OF EXPLANATION 5 TO SECTION 271(1) (C). 7 7. ACCORDINGLY BY RESPECTFULLY FOLLOWING THE ABOVE CONSIDERED OPINION THAT THE BENEFIT OF EXPL. 5 IS A VAILABLE TO THIS ASSESSEE AND NO PENALTY U/S 271(1)(C) CAN B E IMPOSED IN ALL THE THREE ASSESSMENT YEARS. THEREFOR E, WE ORDER TO DELETE PENALTY LEVIED IN ALL THESE YEARS N AMELY (2004-05) AND (2006-07), ARE ORDERED TO BE DELETED . THEREFORE, IT IS CLEAR FROM THE ABOVE THAT THE GROU ND RELATING TO CONFIRMATION OF PENALTY STANDS COVERED IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE ALLOW THIS GROUND OF THE ASSESSEE. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/02/2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25 TH FEBRUARY, 2013 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR