Prateek Juyal, Dehradun V. DCIT, Dehradun

ITA 4725/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4071 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 16-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR
• Keywords: Search and seizure; Revised return
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4725/DEL./2015 (ASSESSMENT YEAR : 2005-06) ITA NO.4726/DEL./2015 (ASSESSMENT YEAR : 2007-08) ITA NO.4727/DEL./2015 (ASSESSMENT YEAR : 2008-09) SHRI PRATEEK JUYAL, VS. DCIT, 204, SILVER OAK APARTMENTS, CENTRAL CIRCLE, CURZON ROAD, DEHRADUN. DEHRADUN. (PAN : ADVPJ2863Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI AMIT JAIN, SENIOR DR DATE OF HEARING : 13.12.2017 DATE OF ORDER : 22.01.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOS ED OF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUSSIO N. 2. THE APPELLANT, SHRI PRATEEK JUYAL (HEREINAFTER R EFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEALS SOUGH T TO SET ASIDE THE ITA NOS.4725, 4726 & 4727/DEL/2015 2 IMPUGNED ORDERS DATED 14.05.2015 PASSED BY THE COMM ISSIONER OF INCOME-TAX (APPEALS), DEHRADUN AFFIRMING THE PENALTY ORDERS DATED 25.09.2013 PASSED UNDER SECTION 271(1)(C) OF THE IN COME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEAR S 2005-06, 2007- 08 & 2008-09 ON THE COMMON GROUND, EXCEPT THE DIFFE RENCE IN PENALTY AMOUNT, THAT :- THAT THE LEARNED COMMISSIONER (APPEALS) ERRED ON T HE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE IN CONFIRMING THE IMPUGNED PENALTY (RS.24,200/-, RS.1,26,300/- & RS.95,000/- FOR AYS 2005-06, 2007-0 8 & 2008-09 RESPECTIVELY) IMPOSED BY THE LEARNED AO UNDER SECTION 271(1)(C) OF THE ACT ON THE APPELLANT . 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : THE ASSESSMENTS WERE COMP LETED FOR AYS 2005-06, 2007-08 & 2008-09 U/S 153A(1)(B) / 143 (3) OF THE ACT AT RS.3,50,000/-, RS.8,79,460/- & RS.15,81,190/- RESP ECTIVELY. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION O N THE BUSINESS AND RESIDENTIAL PREMISES OF JUYAL GROUP OF CASES, D IARIES PERTAINING TO DIFFERENT YEARS HAVING DETAILS OF VARIOUS RECEIP TS AND EXPENSES WERE FOUND AND SEIZED FROM THE RESIDENCE OF THE ASS ESSEE WHEREIN RECEIPTS AND EXPENSES PERTAINING TO PERSONAL AS WEL L AS BUSINESS CONCERNS WERE RECORDED. ASSESSEE IS ALSO RUNNING A BUSINESS IN PROPERTY DEALING WHO HAS RECORDED COMMISSION INCOME IN HIS RETURN ON ESTIMATED BASIS WHICH WAS FOUND TO BE UND ER-ESTIMATED TO ITA NOS.4725, 4726 & 4727/DEL/2015 3 THE TUNE OF RS.78,760/-, RS.3,75,163/- & RS.2,79,38 8/- FOR AYS 2005-06, 2007-08 & 2008-09 RESPECTIVELY AND CONSEQU ENTLY, THE ASSESSEE HAD THE SAID UNDERSTATED AMOUNT MADE SURRE NDER WHICH HAVE BEEN ADDED BACK TO HIS INCOME AND CONSEQUENTLY PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED . 4. ASSESSEE FILED COMPREHENSIVE REPLY AND STATED TH AT HE HAD NO MOTIVE TO EVADE TAX ON THE INCOME RATHER INADVER TENTLY MADE SHORT REPORTING OF INCOME IN HIS RETURN OF INCOME. FINDING SUBMISSION MADE BY THE ASSESSEE NOT TENABLE, AO CAM E TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEALED HIS INCO ME AND CONSEQUENTLY LEVIED PENALTY OF RS.24,200/-, RS.1,26 ,300/- & RS.95,000/- FOR AYS 2005-06, 2007-08 & 2008-09 RESP ECTIVELY. 5. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EALS BEFORE THE LD. CIT (A) WHO HAS AFFIRMED THE PENALTY BY DIS MISSING THE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY CHALLENGING THE IMPUGNED ORDERS PASSED BY LD. CIT (A) . 6. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. ITA NOS.4725, 4726 & 4727/DEL/2015 4 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. ASSESSEE HAS TAKEN DEFENCE FOR UNDER-REPORTING O F HIS INCOME BEFORE THE LD. CIT (A) THAT AT THE TIME OF F ILING THE RETURN OF INCOME, HE HAS NOT REALIZED THE EXTENT OF HOUSEHOLD EXPENSES AND PERSONAL INCOME RECORDED IN THE DIARIES WHICH WERE OTHERWISE CALCULATED BY HIS ACCOUNTANT AND HE HAS FURTHER SUB MITTED BEFORE THE LD. CIT (A) THAT MOST OF THESE EXPENSES HAVE BE EN MADE BY HIM FROM THE PROFITS ARISEN FROM THE JOINT VENTURES IN THE LAND DEALING RECORDED IN THE DIARIES AND HE, BEING YOUNGEST IN T HE GROUP, WAS ASSIGNED ALL THE MISC. JOBS TO RUN AROUND AND WAS H AVING NO ADEQUATE TIME TO PAY ATTENTION TO HIS PERSONAL ACCO UNTS AND LEFT THE SAME TO THE ACCOUNTANT AND WHEN HE HAS REALIZED THI S INADVERTENT LAPSE, HE HONESTLY COME FORWARD TO VOLUNTARILY REPO RT THE QUANTUM OF INADVERTENT SUPPRESSION BY SURRENDERING THE SAID INCOME. ASSESSEE ALSO SOUGHT PROTECTION U/S 273B OF THE ACT . 9. WHEN UNDISPUTEDLY THE INCOME UNDER-REPORTED BY T HE ASSESSEE HAS BEEN SURRENDERED AND ACCEPTED BY THE A O BEING THE PERSONAL EXPENSES AND IT IS ALSO NOT IN DISPUTE THA T THE ASSESSEE HAS ALSO SHOWN IN HIS RETURN OF INCOME EXPENSES DRAWN F ROM JOINT ITA NOS.4725, 4726 & 4727/DEL/2015 5 VENTURES IN LAND DEALINGS WITH ITS ASSOCIATES, WE A RE OF THE CONSIDERED VIEW THAT UNDER-REPORTING OF PERSONAL EX PENSES IN THE RETURN OF INCOME IS RESULT OF INADVERTENT LAPSE. 10. MOREOVER, WHEN THE INCOME IN QUESTION HAS BEEN SURRENDERED AND ACCEPTED BY THE AO, THERE IS NO QUE STION OF CONCEALED INCOME WHEN ASSESSEE HAS VOLUNTARILY COME FORWARD TO SURRENDER THE INCOME DRAWN FOR PERSONAL EXPENSES. MOREOVER, THE AO HAS NOT MADE ANY INDEPENDENT ENQUIRY RATHER SIMP LY TAKEN THE SURRENDERED INCOME AS CONCEALED WITHOUT APPRECIATIN G THE FACT THAT REMAINING INCOME RECORDED IN THE DIARY HAS ALREADY BEEN REPORTED IN THE RETURN OF INCOME BY THE ASSESSEE ALREADY FIL ED IN THIS CASE. IN SUCH CIRCUMSTANCES, ASSESSEE HAS TO RELY ON HIS ACC OUNTANT TO REPORT ALL THE DETAILS IN THE RETURN OF INCOME AND IT IS A REASONABLE AND SUFFICIENT CAUSE TO DELETE THE PENALTY. EVEN LD. CIT (A) ALSO PROCEEDED TO AFFIRM THE PENALTY ON THE SURMISE THAT THE INCOME HAS BEEN SURRENDERED BY THE ASSESSEE WHEN HE WAS CONFRO NTED BY THE AO WITH THE DIARY IN ITS NOTICE U/S 153A(1)(A) OF T HE ACT. 11. MORE SO, HONBLE HIGH COURT OF ALLAHABAD IN CAS E OF CIT VS. MOHAN LAL SHARMA (2005) 149 TAXMAN 6 (ALL.) ALSO HELD THAT MERELY BECAUSE OF THE FACT THAT THE ASSESSEE HAS SU RRENDERED AMOUNT OF FDRS IN THE REVISED RETURN, IT CANNOT BE SAID TO BE CONCEALED INCOME OF THE ASSESSEE AND NO PENALTY COU LD BE LEVIED ITA NOS.4725, 4726 & 4727/DEL/2015 6 U/S 271(1)(C) OF THE ACT. IN THIS CASE, THE ASSESS EE SURRENDERED THE AMOUNT OF RS.78,760/-, RS.3,75,163/- & RS.2,79,388/ - FOR AYS 2005-06, 2007-08 & 2008-09 RESPECTIVELY PURSUANT TO THE NOTICE U/S 153A(1)(A) OF THE ACT WHEN FOUND DISCREPANT WIT H THE ENTRIES IN THE DIARIES AND RETURN OF INCOME FILED WITH THE REV ENUE. NEEDLESS TO SAY THAT THE AMOUNT RECORDED IN THE DIARY WAS ON ACCOUNT OF EXPENSES MADE BY THE ASSESSEE FOR PERSONAL AND BUSI NESS EXPENSES WHICH CANNOT BE SAID TO BE A CONCEALED INCOME. 12. SIMILARLY, IN CASE CITED AS CIT VS. SURESH CHANDRA MITTAL (2002) 123 TAXMAN 1052 (MP) , HONBLE HIGH COURT HELD THAT, THOUGH IT WAS TRUE THAT THE ASSESSEE HAD NOT SURRE NDERED AT ALL AND THAT HE HAD DONE SO ON THE PERSISTENT QUERIES M ADE BY THE ASSESSING OFFICER, BUT ONCE THE REVISED ASSESSMENT WAS REGULARIZED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE DECLARATION OF INC OME MADE BY THE ASSESSEE IN HIS REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMENT AND TO COM E OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE. THEREFOR E, THE TRIBUNAL WAS JUSTIFIED IN CANCELLING THE PENALTY LEVIED. 13. IN THE INSTANT CASE ALSO, ASSESSEE THOUGH SURRE NDERED THE AMOUNT WHEN CONFRONTED WITH THE ENTRIES ENTERED IN THE DIARIES FOUND AND SEIZED IN THE SEARCH OPERATION BUT WHEN H IS REVISED ITA NOS.4725, 4726 & 4727/DEL/2015 7 RETURN WAS ACCEPTED AND THE EXPLANATION OF THE ASSE SSEE THAT THIS OCCURRED DUE TO INADVERTENT LAPSE ON HIS PART AND B EING THE YOUNGEST MEMBER IN THE GROUP HAVING BEEN ASSIGNED A LL THE JOBS TO ACCOMPLISH, HAVE LITTLE TIME FOR HIM TO PAY ATTENTI ON TO HIS PERSONAL ACCOUNTS AND HAVE A CHECK ON THE ACCOUNTANTS WORK, HAS BEEN ACCEPTED WHEN THE SURRENDERED INCOME ALONG WITH INT EREST HAS BEEN ACCEPTED IN THE REVISED RETURN OF INCOME. SO, THE EXPLANATION COULD BE TREATED AS BONAFIDE AND REASONABLE. SO, WE ARE OF THE CONSIDERED VIEW THAT IN THESE CIRCUMSTANCES, THE PENALTY IS NO T LEVIABLE. 14. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, THE P ENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT (A) CHALLENG ED VIDE APPEALS BEING ITA NO.4725/DEL./2015, ITA NO.4726/DE L./2015 AND ITA NO.4727/DEL./2015 ARE NOT SUSTAINABLE, HENC E HEREBY DELETED BY ACCEPTING THE APPEALS. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF JANUARY, 2018. SD/- SD/- (R.S. SYAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 22 ND DAY OF JANUARY, 2018 TS ITA NOS.4725, 4726 & 4727/DEL/2015 8 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS), DEHRADUN. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.