Kachrulal Nathamal Mutha, Jalna V. Income-tax Officer,

ITA 431/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7394 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-09-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 10-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SUMIT R SUHANDA
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , ! # . $ , % , & BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM ' / ITA NO. 431/PUN/2015 ( ) ) / ASSESSMENT YEAR : 2006-07 SHRI KACHRULAL NATHAMAL MUTHA SHREE COLONY, COLLEGE ROAD, JALNA-431 203 PAN :AMPPM0401Q ....... / APPELLANT ( / V/S. THE INCOME-TAX OFFICER, WARD-1(3), JALNA / RESPONDENT ASSESSEE BY : SHRI SUMIT R. SUHANDA, CA RESPONDENT BY : SHRI AJAY MODI / DATE OF HEARING : 27.09.2017 / DATE OF PRONOUNCEMENT : 29.09.2017 * / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-1, AURANGABAD DATED 27.02.2015 FOR ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-1 AURANGABAD ERR ED IN CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT, 1961 OF RS.2567691/- BY INCOME TAX OFFICER WARD 1(3) JALNA. 2 ITA NO. 431/PUN/2015 A.Y.2006-07 2. THE PENALTY LEVIED IS EXCESSIVE AND UNJUSTIFIED. 3. SUCH OTHER GROUNDS AT MAY BE SUBMITTED AT THE TI ME OF OR BEFORE THE HEARING OF THE APPEAL. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT TH E ASSESSEE IS AN INDIVIDUAL AND CLAIMED TO HAVE BEEN ENGAGED IN THE BUSINE SS OF MONEY LENDING. A SURVEY ACTION U/S. 133A WAS CONDUCTED AT THE RESIDENTIAL- CUM BUSINESS PREMISES OF THE APPELLANT ON 02.02.2006. IT R ESULTED IN DISCOVERY ON ADDITIONAL INCOME OF RS.2,47,52,985/-. HOWEVER, ASSESSEE FILED RETURN OF INCOME DECLARING THE INCOME OF RS.86,35,767/- ONLY. ASSESSEE PROVIDED VARIOUS EXPLANATIONS FOR NOT DECLARING T HE ENTIRE ADDITIONAL INCOME. IN THE SCRUTINY ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE ACT, THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENT ION OF THE ASSESSEE AND COMPLETED THE ASSESSMENT ON THE ASSESSE D INCOME OF RS.1,63,84,267/-. THE ASSESSING OFFICER INITIATED PENALTY PROCEE DINGS U/S. 271(1) (C) OF THE ACT IN RESPECT OF THE ADDITIONS BY GIVIN G FOLLOWING SATISFACTION: ..THE PENALTY PROCEEDINGS ARE INITIATED U/S. 271(1) (C) R.W.S 274 OF THE INCOME TAX ACT FOR FURNISHING INACCURATE PARTICULARS/ CONCEALMENT. ( CONTENTS OF SUB-PARA OF PARA 7.5 OF ASSESSMENT ORDE R). 4. AFTER FOLLOWING THE DUE PROCESS OF LAW, THE ASSESSING OFFIC ER LEVIED THE PENALTY OF RS.14.85 LAKHS U/S. 271(1) (C) OF THE ACT. THE PENALTY ORDER DATED 30.03.2012 IS RELEVANT. THE ASSESSING OFFICER GAVE THE FOLLOWING REASONS FOR LEVYING THE SAID PENALTY. RELEVANT PARAG RAPH FROM THE PENALTY ORDER IS EXTRACTED AS UNDER : 8. ASSESSEE HAS CONCEALED THE PARTICULA RS OF INCOME 3 ITA NO. 431/PUN/2015 A.Y.2006-07 IN THE FIRST APPELLATE PROCEEDINGS, THE COMMISSIONER OF INCO ME TAX (APPEALS) CONFIRMED THE SAID PENALTY. THEREFORE, THE ASSESSE E IS IN APPEAL BEFORE US RAISING THE GROUNDS EXTRACTED ABOVE. 5. BEFORE US, DEVIATING FROM THE GROUNDS, LD. AR FOR THE A SSESSEE SUBMITTED THAT THE PENALTY ORDER OF THE ASSESSING OFFICER IS UNSUSTAINABLE ON THE GROUNDS OF AMBIGUITY IN THE MIND OF AS SESSING OFFICER WITH RESPECT TO THE SATISFACTION ON THE APPLICATION O F CORRECT LIMB OF THE PROVISION OF CLAUSE (C) OF SECTION 271(1) (C) OF THE ACT . BRINING OUR ATTENTION TO THE ABOVE SAID EXTRACTS, LD. AR SUBMITTED THAT THE ASSESSING OFFICER FAILED IN MENTIONING CORRECT LIMB OF THE OFFENCE SPECIFIED IN THE SAID CLAUSE (C). ACCORDING TO LD. AR, THE PENALTY ORDER N EEDS TO BE CANCELLED IN VIEW OF THE AMBIGUITY. FOR THIS PROPOSITION, LD. A R RELIED ON THE BINDING JUDGMENTS IN THE CASE OF CIT VS. MANJUNATA COTTON AND GINNING FACTORY REPORTED IN 359 ITA 565 (KAR.) AND CIT VS. SAMSON PERINCHERY REPORTED IN 292 ITR 11(BOM.) . 6. THE LD. DR RELIED ON THE ORDERS OF THE ASSESSING OFFIC ER/ COMMISSIONER OF INCOME TAX (APPEALS) DUTIFULLY. 7. WE HAVE HEARD BOTH THE PARTIES ON THE LEGAL ISSUE AN D PERUSED THE SAID ORDERS AND THE DECISIONS CITED ABOVE. IT IS UNDISPUT ED FACT THAT THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS BOTH FOR CONC EALMENT OF INCOME/ FURNISHING INACCURATE PARTICULARS OF INCOME. HOWEVER , ASSESSING OFFICER LEVIED PENALTY FOR CONCEALMENT OF INCOME. THUS, THE A MBIGUITY IS EVIDENT. THEREFORE, THE ABOVE SAID JUDGMENTS APPLY TO TH E FACTS OF THIS CASE. HENCE, IN OUR VIEW, THE PENALTY ORDER OF THE ASSESS ING OFFICER IS REQUIRED TO BE CANCELLED. ACCORDINGLY, THE GROUNDS RAISE D BY THE 4 ITA NO. 431/PUN/2015 A.Y.2006-07 ASSESSEE ARE ALLOWED ON THIS LEGAL ISSUE. CONSIDERING THE SA ID RELIEF, WE FIND THE ADJUDICATION ON THE GROUND RELATING TO MERITS BE COMES AN ACADEMIC EXERCISE. THEREFORE THE SAME ARE DISMISSED AS ACADEMIC. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 29 TH DAY OF SEPTEMBER, 2017. SD/- SD/- ( / SUSHMA CHOWLA ) ( . / D. KARUNAKARA RAO ) ! '# / JUDICIAL MEMBER $ '# / ACCOUNTANT MEMBER $ / PUNE; %'& / DATED : 29 TH SEPTEMBER, 2017 SB *+,-./0/- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-1, AURANGABAD. 4. THE CIT-1, AURANGABAD. 5. '() !!*+ , , *+ , - -. , $ / DR, ITAT, B BENCH, PUNE. 6. )/ 01 / GUARD FILE. // TRUE COPY // ,'$2 / BY ORDER !3 * / PRIVATE SECRETARY , *+ , $ / ITAT, PUNE.