DCIT, UDAIPUR V. Shri Anil Kumar Wadhwani, UDAIPUR

ITA 469/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5260 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 07-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Search and seizure
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.469/JODH/2015 ASSESSMENT YEAR: 2007-08 THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, 3 RD FLOOR, MOOMAI TOWER 16, SAHELI MARG, UDAIPUR VS. SH. ANIL KUMAR WADHWANI, F-7, E- BLOCK, SHIV PARK COLONY, UDAIPUR PAN :AAMPW 7491B APPELLANT RESPONDENT I.T.A.NO.470 & 471/JODH/2015 ASSESSMENT YEAR: 2007-08 & 2008-09 THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, 3 RD FLOOR, MOOMAI TOWER 16, SAHELI MARG, UDAIPUR VS. M/S. DEHIWALA REAL ESTATE PVT. LTD., S-11, SHYAM PLAZA, HOSPITAL ROAD, PAN : AABCD 8488 K APPELLANT RESPONDENT APPELLANT BY SHRI S. L. MOURYA, D.R. RESPONDENT BY SHRI AMIT KOTHARI, A. R. DATE OF HEARING: 14.03.2016 DATE OF PRONOUNCEMENT: 14.03.16 O R D E R PER: GEORGE MATHAN, J.M. : ITA NO.469/JODH/2015 IS AN APPEAL FILED BY THE REV ENUE AGAINST THE ORDER OF THE LEARNED CIT (A-2), UDAIPUR PASSED IN APPEAL NO.ITA 90/2013-14 DATED 06-08-2015 FOR ASSESSMENT YEAR 2007-08 AGAINS T DELETION OF PENALTY 2 ITA NO.469, 470 & 471/JODH/2015 LEVIED U/S 271(1) (C) OF THE IT ACT IN THE CASE OF SHRI ANIL KUMAR WADHANI, ITA NO.470/JODH/2015 IS AN APPEAL FILED BY THE REVE NUE AGAINST THE ORDER OF THE LEARNED CIT (A-2), UDAIPUR PASSED IN APPEAL NO. ITA 486/2013-14 DATED 06-08-2015 FOR ASSESSMENT YEAR 2007-08I N THE CASE OF M/S. DEHIWALA REAL ESTATES PVT. LTD. AGAINST DELETION OF PENALTY LEVIE D U/S 271 (1) (C) OF THE ACT AND ITA NO.471/JODH/2015 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (A-2), UDAIPUR PASSED IN A PPEAL NO.ITA 487/2013- 14 DATED 05-08-2015 FOR ASSESSMENT YEAR 2008-09 IN THE CASE OF M/S. DEHIWALA REAL ESTATES PVT. LTD. AGAINST CANCELLATIO N OF PENALTY LEVIED U/S 271 (1) (C) OF THE ACT. 2. SHRI S. L. MOURYA, LEARNED DR REPRESENTED ON BEH ALF OF THE REVENUE AND SHRI AMIT KOTHARI, LEARNED AR REPRESENTED THE A SSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THERE WA S A SEARCH AND SEIZURE OPERATION IN THE CASE OF DHARAMPAL DEMBLA G ROUP OF UDAIPUR ON 20- 09-2007. IT WAS A SUBMISSION THAT THE ASSESSMENT OR DERS CAME TO BE PASSED U/S 153A READ WITH SECTION 153C OF THE ACT IN ALL T HE CASES. IT WAS A SUBMISSION THAT IN ALL THE CASES THE RETURNED INCOM E CAME TO BE ACCEPTED. IT WAS A SUBMISSION THAT CONSEQUENT TO THE SEARCH AND THE ASSESSMENT, PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE ACT WAS INITIATED AND PENALTY WAS LEVIED FOR CONCEALMENT OF INCOME. IT WAS A SUBMISSI ON THAT THE LEARNED CIT 3 ITA NO.469, 470 & 471/JODH/2015 (A) HAD CANCELLED THE PENALTY LEVIED BY HOLDING THA T THE PROVISIONS OF SECTION 271 (1)(C) DO NOT APPLY IN ASSESSEES CASE IN SO FA R AS THE SEARCH HAS TAKEN PLACE ON 20-09-2007 AND AS PER THE PROVISIONS OF SE CTION 271AAA (3) OF THE ACT WHICH CAME INTO EFFECT FROM 1 ST APRIL, 2007 WHERE A SEARCH HAS BEEN CONDUCTED ON OR AFTER 01-06-2007, PENALTY U/S 271 ( 1) (C) OF THE ACT WOULD NOT BE APPLICABLE AND THE PENALTY PROVISIONS APPLICABLE WOULD BE 271AAA OF THE ACT. IT WAS A SUBMISSION THAT THE ORDER OF THE LEAR NED CIT (A) WAS ERRONEOUS AND WAS LIABLE TO BE REVERSED. 4. IN REPLY THE LEARNED AR VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT (A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ON PER USAL OF THE ORDER OF THE LEARNED CIT (A) CLEARLY SHOWS THAT HE HAS CANCE LLED THE PENALTY ON THE GROUND THAT THE PROVISIONS OF SECTION 271 (1) (C) O F THE ACT WOULD NOT APPLY IN THE ASSESSEES CASE AND IT WAS THE PROVISIONS OF SE CTION 271AAA WHICH WAS APPLICABLE. AGAIN, AFTER CONSIDERING THE SAID PROVI SIONS OF SECTION 271AAA, THE LEARNED CIT (A) HAD ALSO DELETED THE PENALTY. T HE REVENUE HAS NOT CHALLENGED THE ACTION OF THE LEARNED CIT (A) IN HOL DING THAT THE PROVISIONS OF SECTION 271AAA WERE APPLICABLE AND NOT THE PROVISIO NS OF SECTION 271(1) (C) OF THE ACT. A PERUSAL OF THE PROVISIONS OF SECTION 271AAA ALONG WITH SUB CLAUSE (3) OF THE SECTION SHOWS THAT WHEN A SEARCH HAS BEEN CONDUCTED AFTER 4 ITA NO.469, 470 & 471/JODH/2015 1 ST JUNE, 2007, THE PENALTY PROVISIONS APPLICABLE IS T HE PROVISIONS OF SECTION 271AAA AND NOT THE PROVISIONS OF SECTION 271 (1) (C ) OF THE ACT. THIS BEING SO, WE ARE OF THE VIEW THAT THE FINDING OF THE LEAR NED CIT (A) IS ON RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 6. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ST AND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 14 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 15.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 16.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 16.03.16 SR.PS 6. DATE OF PRONOUNCEMENT 14.03.16 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER