Income-tax Officer, V. Shri narayan Appasaheb Chalge, Jalna

ITA 480/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2702 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Assessee Lawyers: C V DESHPANE
• Keywords: Search and seizure
• Section: 40A(3); 143(3); 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 480/PN/2014 $& ' !(' / ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, (CENTRAL), AURANGABAD ....... / APPELLANT )& / V/S. SHRI NARAYAN APPASAHEB CHALGE, VAIBHAV, SHRIKRISHNA NAGAR, NEAR SAMBHAJI NAGAR, JALNA PAN : AEPPC2024M / RESPONDENT ASSESSEE BY : SHRI C.V. DESHPANE REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 22-12-2015 / DATE OF PRONOUNCEMENT : 19-02-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS), AURANGABAD DATED 31 -12-2013 U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFE RRED TO AS THE ACT) FOR THE ASSESSMENT YEAR 2008-09. 2 ITA NO. 480/PN/2014, A.Y. 2008-09 2. IN APPEAL, THE REVENUE HAS ASSAILED THE FINDINGS OF COM MISSIONER OF INCOME TAX (APPEALS) IN DELETING THE PENALTY LEVIED U/S. 2 71(1)(C) OF THE ACT ON THE INCOME OF ` 46,40,340/- DECLARED IN THE RETURN OF INCOME FILED U/S. 139(4) AFTER THE DATE OF SEARCH. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RE CORDS ARE: THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS O F REAL ESTATE. A SEARCH AND SEIZURE ACTION U/S. 132 WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 08-05-2009. THE ASSESSEE FILED HIS REGULAR RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 1 0-11-2009 DECLARING INCOME OF ` 46,40,340/-. THE ASSESSEE PAID ADVANCE TAX TO THE TUNE OF ` 12,00,000/- BEFORE THE END OF THE FINANCIAL YEAR 2007-08. A NOTICE U/S. 153A WAS ISSUED TO THE ASSESSEE. IN RESP ONSE TO THE NOTICE THE ASSESSEE DECLARED TOTAL INCOME OF ` 1,48,31,255/-. THE INCOME DECLARED U/S. 153A INCLUDED THE REGULAR INCOME OF ` 46,40,340/-. DURING THE ASSESSMENT PROCEEDINGS, THE ASS ESSING OFFICER MADE ADDITION OF ` 7,20,000/- AS UNEXPLAINED PEAK CASH CREDIT. THE ASSESSING OFFICER FURTHER MADE ADDITION OF ` 6,82,000/- U/S. 40A(3) OF THE ACT. PENALTY PROCEEDINGS U/S. 271(1)(C) WERE INITIATED AGAINST THE ASSESSEE. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF E XPLANATION 5A TO SECTION 271(1)(C) AND LEVIED THE PENALTY OF ` 52,85,871/- ON THE ASSESSED INCOME I.E. ` 1,62,33,255/-. AGGRIEVED BY THE ORDER OF PENALTY DATED 28-06-20-12, TH E ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUG NED ORDER DELETED THE PENALTY ON THE AMOUNT OF ` 46,40,340/- I.E. THE 3 ITA NO. 480/PN/2014, A.Y. 2008-09 AMOUNT DECLARED BY THE ASSESSEE IN REGULAR RETURN AND ON WHICH THE ASSESSEE HAD PAID ADVANCE TAX. AGAINST THESE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL. 4. SHRI DHEERAJ KUMAR JAIN REPRESENTING THE DEPARTMENT SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED I N DELETING THE PENALTY LEVIED U/S. 271(1)(C) ON THE INCOME OF ` 46,40,340/-. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO TAKE INTO CONSIDERATION THE FACT THAT THE ASSESSEE HAD DECLARED T HE SAID INCOME IN BELATED RETURN FILED U/S. 139(4) OF THE ACT. THE DUE DAT E FOR FILING THE RETURN IN THE ASSESSMENT YEAR UNDER CONSIDERATION WAS 30-09-2008, WHEREAS THE RETURN WAS FILED BY THE ASSESSEE ON 10-11- 2005. THEREFORE, NO IMMUNITY CAN BE GIVEN TO THE ASSESSEE IN VIE W OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE LD. DR FU RTHER SUBMITTED THAT FOR THE MEANING OF DUE DATE MENTIONED IN EXPLANATION 5A REFERENCE HAS TO BE DRAWN FROM EXPLANATION 2 TO SECT ION 139 OF THE ACT. 4.1 THE LD. DR FURTHER SUBMITTED THAT PAYMENT OF ADVANCE TAX BY THE ASSESSEE DOES NOT MEAN THAT THE ASSESSEE WILL FILE RETURN OF INCOME. THEREFORE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERR ED IN COMING TO THE CONCLUSION THAT SINCE THE ASSESSEE HAD P AID ADVANCE TAX, NO PENALTY SHALL BE LEVIED ON THE INCOME REPRESENTING THE ADVANCE TAX. THE LD. DR IN SUPPORT OF HIS SUBMISSIONS PLACED RELIANCE ON THE FOLLOWING DECISIONS: I. MAK DATA (P.) LTD. VS. COMMISSIONER OF INCOME TAX, 358 ITR 593 (SC); 4 ITA NO. 480/PN/2014, A.Y. 2008-09 II. PANKAJ RATHI VS. COMMISSIONER OF INCOME TAX, 202 TAXMAN 408 (CAL); III. SHREEJI TRADERS VS. DEPUTY COMMISSIONER OF INCOME TAX, 136 ITD 249. 5. ON THE OTHER HAND SHRI C.V. DESHPANE APPEARING ON BE HALF OF THE ASSESSEE VEHEMENTLY SUPPORTED THE FINDINGS OF THE COMMIS SIONER OF INCOME TAX (APPEALS) IN DELETING THE PENALTY ON PART OF IN COME WHICH WAS DECLARED BY THE ASSESSEE IN VOLUNTARY RETURN OF INCO ME. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD ALREADY PAID ADVANCE T AX ON THE INCOME RETURNED U/S. 139(4). THERE IS NO WHISPER IN SEARCH PROCEEDINGS REGARDING INCOME ON WHICH PENALTY CAN BE LEV IED. THE INCOME DECLARED BY THE ASSESSEE IN RETURN OF INCOME HAS ALREADY BEEN ACCOUNTED IN THE BOOKS OF ACCOUNT. THEREFORE, NO PENALTY CAN BE LEVIED ON THE INCOME WHICH HAS ALREADY BEEN DECLARED AND ON WH ICH ADVANCE TAX HAS BEEN PAID. TO STRENGTHEN HIS SUBMISSIONS THE LD. AR DRAWS SUPPORT FROM THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. PRASANNA DUGAR REPORTED AS 371 ITR 19 (CAL). 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH BOTH THE SIDE S HAVE PLACED RELIANCE. THE PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER ON THE INCOME ASSESSED U/S. 153A R.W.S. 143(3) OF THE ACT. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS PAID ADVANCE TAX TO THE TU NE OF ` 12,00,000/- IN THE FINANCIAL YEAR 2007-08. A SEARCH AND SEIZURE OPERA TION WAS 5 ITA NO. 480/PN/2014, A.Y. 2008-09 CONDUCTED ON THE ASSESSEE ON 08-05-2009. THE DUE DA TE FOR FILING OF RETURN U/S. 139(1) WAS ON 30-09-2008. THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING INCOME OF ` 46,40,340/- ON 10-11-2009. ALTHOUGH, AFTER THE DATE OF SEARCH ANY RETURN FILED PRIOR TO THE ISS UANCE OF NOTICE U/S. 153A IS NON-EST, YET THE ASSESSEE FILED HIS RETURN O F INCOME U/S. 139(4) DECLARING INCOME OF ` 46,40,340/-. THE REVENUE HAS NOT DISPUTED THAT THE SAID INCOME HAS BEEN ACCOUNTED IN THE BOOKS OF ACCOUNT. THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A HAS OFFERED TO TAX INCOME OF ` 1,48,31,255/- IN THE RETURN FILED ON 15-03-2011. WE DO NOT CONCUR WITH THE SUBMISSIONS OF THE LD. DR THAT IF THE B ELATED RETURN HAS BEEN FILED, IN VIEW OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT, THE SAID RETURN IS NOT WITHIN DUE DATE AS ENVISAGED UN DER THE PROVISIONS OF EXPLANATION 5A. 7. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS DELETED TH E PENALTY ON ` 46,40,340/-, ON THE GROUND THAT THE ASSESSEE HAS ALREAD Y PAID ADVANCE TAX AGAINST THE AFORESAID DECLARED INCOME. I N HOLDING SO THE COMMISSIONER OF INCOME TAX (APPEALS) HAS PLACED RELIANC E ON SOME OF THE DECISION RENDERED BY THE HON'BLE GUJARAT HIGH COU RT IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LIMITED VS. INC OME TAX OFFICER REPORTED AS 194 ITR 659 (GUJ.-FB), THE DECISION OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF DR. ALAKA GOSWAMI VS. C IT REPORTED AS 268 ITR 178 (GAU.) AND THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. GOPE M. ROCHLANI REPORTED A S 95 DTR 33 (MUM-TRIB). WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN CANCELLING PENALTY ON ` 46,40,340/-. 6 ITA NO. 480/PN/2014, A.Y. 2008-09 8. WE FIND THAT THE DECISIONS ON WHICH THE LD. DR HAS PLACE D RELIANCE ARE ON DIFFERENT SET OF FACTS AND HAVE NO APPLICATIO N IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THEREFORE, THEY ARE DISTINGUISHABLE. 9. IN VIEW OF OUR ABOVE OBSERVATIONS, THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ARE UPHELD AND THE AP PEAL OF THE REVENUE IS DISMISSED BEING DEVOID OF ANY MERIT. ORDER PRONOUNCED ON FRIDAY, THE 19 TH DAY OF FEBRUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 19 TH FEBRUARY, 2016 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A), AURANGABAD 4. ' / THE CIT, CENTRAL, NAGPUR 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE