ACIT, New Delhi V. Smt. Nirmal Gupta, Ghaziabad

ITA 4814/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3849 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 01-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 04-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SHARD AGGARWAL; SHASHWANT BAJPAI
• Keywords: Search and seizure
• Section: 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : E : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NOS.4814 TO 4816/DEL/2014 ASSESSMENT YEARS : 2006-07 TO 2008-09 ACIT, CENTRAL CIRCLE-25, NEW DELHI. VS. NIRMAL GUPTA, A-13, LAJPAT NAGAR, SECTOR-4, SAHIBABAD, GHAZIABAD. PAN: ACRPG3766G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SHASHWANT BAJPAI, ADVOCATE & SHRI SHARD AGGARWAL, ADVOCATE DEPARTMENT BY : SHRI ARUN KUMAR YADAV, SR. DR DATE OF HEARING : 24.10.2017 DATE OF PRONOUNCEMENT : 25.10.2017 ORDER PER R.S. SYAL, VP: THESE THREE APPEALS BY THE REVENUE RELATE TO THE A YS 2006-07 TO 2008-09. SINCE COMMON ISSUE IS RAISED IN THESE THR EE APPEALS, WE ARE, ITA NOS.4814 TO 4816/DEL/2014 2 THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED, THE FACTS OF THE CASE FOR THE AS SESSMENT YEAR 2006-07 ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT IN THE CASE OF THE ASSESSEE. RETURN FOR THE ASSESSMENT YEAR 2006-07 WA S FILED DECLARING TOTAL INCOME OF RS.1,03,10,131/- AS AGAINST THE INC OME DECLARED IN ORIGINAL RETURN AT RS.3,10,130/-. THUS, THE ASSESS EE OFFERED AN ADDITIONAL SURRENDERED INCOME OF RS.1 CRORE FOR THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) IN R ESPECT OF SUCH ADDITIONAL INCOME OF RS.1 CRORE. THIS PENALTY CAME AT RS.33.70 LAC. THE LD. CIT(A) OBSERVED THAT THE PENALTY OUGHT TO HAVE BEEN IMPOSED U/S 271AAA AS THE SEARCH WAS CONDUCTED ON 31.01.2011, W HICH DATE FALLS WITHIN THE PERIOD 01.06.2007 TO 30.06.2012, BEING T HE PERIOD PRESCRIBED U/S 271AAA. HE, THEREFORE, RESTRICTED THE PENALTY TO RS.10 LAC, BEING 10% AS STIPULATED U/S 271AAA . THAT IS HOW THE ASS ESSEE GOT RELIEF OF RS.23.70 LAC. THE REVENUE IS AGGRIEVED AGAINST THE REDUCTION IN PENALTY. ITA NOS.4814 TO 4816/DEL/2014 3 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. RELEVANT PART OF SECTION 271AAA(1) PROVIDE S THAT : `THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CON TAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHER E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007 BUT BEFORE THE 1ST DAY OF JULY, 2012, THE ASSESSEE SHAL L PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM , A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF T HE SPECIFIED PREVIOUS YEAR . DEFINITION OF THE TERM SPECIFIED PREVIOUS YEAR HAS BEEN GIVEN IN EXPLANATION (B) AS UNDER:- EXPLANATION.FOR THE PURPOSES OF THIS SECTION, (A) (B) 'SPECIFIED PREVIOUS YEAR' MEANS THE PREVIOUS Y EAR (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BU T THE DATE OF FILING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 1 39 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSES SEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE T HE SAID DATE; OR (II) IN WHICH SEARCH WAS CONDUCTED. ITA NOS.4814 TO 4816/DEL/2014 4 4. ON GOING THROUGH THE DEFINITION SPECIFIED PREVI OUS YEAR IN JUXTAPOSITION TO SECTION 271AAA(1), IT BECOMES CLEA R THAT PENALTY AT THE RATE OF 10% OF THE UNDISCLOSED INCOME IS TO BE IMPO SED ONLY IN RESPECT OF SPECIFIED PREVIOUS YEAR. THE LD. DR HAS PLACED ON RECORD A COPY OF THE ORDER PASSED BY THE CHENNAI BENCH OF THE TRIBUN AL IN ACIT VS. SMT. J. MYTHILI (2013) 35 TAXMANN.COM 83 (CHENNAI-TRIB.) IN WHICH PENALTY U/S 271(1)(C) HAS BEEN HELD TO BE APPLICABLE AS AGA INST SECTION 271AAA FOR THE PERIOD COVERED WITHIN SUB-SECTION (1) OF SE CTION 271AAA. WE FIND THAT THE LD. CIT(A) SIMPLY WENT BY THE DATES G IVEN IN SUB-SECTION (1) OF SECTION 271AAA WITHOUT EXAMINING SPECIFIED PREVIOUS YEAR WHICH IS CRUCIAL FOR DETERMINATION OF THE APPLICABI LITY OR OTHERWISE OF SECTION 271AAA. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE LD. CIT(A) FOR EXAMINING THE CASE AFRESH IN THE LIGHT OF THE EXPLA NATION (B) TO SECTION 271AAA. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOW ED A REASONABLE OPPORTUNITY OF HEARING IN SUCH FRESH PROCEEDINGS. ITA NOS.4814 TO 4816/DEL/2014 5 5. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS A ND CIRCUMSTANCES OF THE OTHER TWO YEARS ARE MUTATIS MUTANDIS SIMILAR TO THOSE FOR THE A.Y. 2006-07. FOLLOWING THE VIEW TAKEN HEREINABOVE, WE SET ASIDE THE IMPUGNED ORDERS FOR SUCH TWO YEARS ALSO AND REMIT T HE MATTER TO THE FILE OF CIT(A) FOR TAKING A FRESH DECISION IN CONFORMITY WITH THE VIEW EXPRESSED BY US HEREINABOVE. 6. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 25.10.201 7. SD/- SD/- [KULDIP SINGH] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 25 TH OCTOBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.