ACIT 25(1), MUMBAI V. CHIRAG CONSTRUCTION, MUMBAI

ITA 4321/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3372 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 16-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2013
• Court: TRIBUNAL
• Department Lawyers: DR DARSI SUMAN RATNAM
• Keywords: Revised return
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S/SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 4321 /MUM/ 20 13 (ASSESSMENT YEAR 200 8 - 0 9 ) ACIT - 25(1) C - 11, PRATYAKSHAKAR BHAVAN, ROOM NO. 202 BANDRA KURLA COMPLEX BANDRA EAST MUMBAI - 4 00 051. VS. M/S. CHIRAG CONSTRUCTION 105, GOPAL PURI S.V. ROAD BORIVALI WEST MUMBAI - 400 092. ( APPELLANT ) ( RESPONDENT ) PAN NO . AACFC7646N ASSESSEE BY NONE DEPARTMENT BY DR.DARSI SUMAN RATNAM DATE OF HEARING 9 . 6. 201 6 DATE OF PRONOUNCEMEN T 9 . 6 . 201 6 O R D E R PER B.R. BASKARAN, A M : - THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 25.3.3013 PASSED BY LEARNED CIT(A) - 3 5 , MUMBAI AND IT RELATES TO A.Y. 2008 - 0 9 . 2. THE REVENUE AGGRIEVED BY THE DECISION OF LEARNED CIT( A) IN DELETING THE PENALTY OF ` 16.97 LAKHS LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH HEARING WAS ADJOURNED ON THE LAST OCCASION AT THE REQUEST OF THE ASSESSEE. HENCE, WE PROCEED TO D ISPOSE OF THE APPEAL EX PARTE, WITHOUT PRESENCE OF THE ASSESSEE. 4. W E HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. THE ASSESSEE WAS SUBJECTED TO SURVEY OPERATION U/S. 133A OF THE ACT ON TWO OCCASIONS, VIZ., FIRST ON 17.3.20 08 AND AGAIN ON 25.8.2009. DURING THE COURSE OF SURVEY OPERATION CONDUCTED ON 17.3.2008, THE ASSESSEE ADMITTED CHIRAG CONSTRUCTION CO. 2 ADDITIONAL INCOME OF ` 125 LAKHS. DURING THE COURSE OF SECOND SURVEY OPERATION CONDUCTED ON 25.8.2009, THE ASSESSEE ADMITTED A SUM OF ` 49.94 L AKHS CONSISTING OF UNPROVED EXPENSES OF ` 42.51 LAKHS AND UNPROVED LABOUR CHARGES OF ` 7.42 LAKHS , AS ADDITIONAL INCOME . THE ASSESSEE FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION U/S 139(1) OF THE ACT ON 30.9.2008, WHEREIN HE ADMITTED INCOME OF ` 125 LAKHS SURRENDERED BY IT DURING THE COURSE OF FIRST SURVEY OPERATION . HOWEVER, IT DID NOT DISCLOSE THE INCOME OF ` 49.94 LAKHS SURRENDERED DURING THE COURSE OF SECOND SURVEY OPERATION . SUBSEQUENTLY, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 1 0.10.2009 AND IN THAT REVISED RETURN; THE ASSESSEE DISCLOS ED ` 49.94 LAKHS REFERRED ABOVE. THE ASSESSING OFFICER LEVIED PENALTY OF RS.16.97 LAKHS U/S. 271(1)(C) OF THE ACT ON THE AMOUNT OF ` 49.94 LAKHS , SINCE IT WAS NOT DISCLOSED IN THE ORIGINAL RETURN O F INCOME. HOWEVER, THE SAID P ENALTY WAS DELETED BY LEARNED CIT(A) ON THE GROUND THAT THE ASSESSEE HAS DISCLOSED ADDITIONAL INCOME IN THE REVISED RETURN OF INCOME. 5. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE SHOULD HAVE DISCLOSED I MPUGNED AMOUNT OF ` 49.94 LAKHS IN THE ORIGINAL RETURN OF INCOME ITSELF SINCE IT WAS FILED AFTER COMPLETION OF SECOND SURVEY OPERATION. HE SUBMITTED THAT T HE ASSESSEE HAS TAKE N A CHANCE IN THIS R EGARD AND IT WAS CONSTRAINED TO FILE A REVISED RETURN OF INCO ME BY OFFERING INCOME SURRENDERED BY IT DURING THE COURSE OF SECOND SURVEY. ACCORDINGLY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ADDITIONAL INCOME OFFERED BY THE ASSESSEE IS AFTER DETECTION BY THE ASSESSING OFFICER AND HENCE LEARNED CIT(A) WAS N OT JUSTIFIED IN DELETING THE PENALTY LEVIED THEREON. 6. HAVING HEARD THE CONTENTIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND ALSO UPON PERUSAL OF THE RECORD, WE FIND MERIT IN THE SAID CONTENTIONS. ACCORDINGLY, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE PENALTY LEVIED BY THE ASSESSING OFFICER. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS ALLOWED. CHIRAG CONSTRUCTION CO. 3 ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 9. 6 .2016 . SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 9 / 6/ 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TR UE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS