ACIT, New Delhi V. M/s. Saviour Builders Pvt. Ltd., New Delhi

ITA 4818/DEL/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8140 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 04-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: SHAR AD AGARWAL
• Keywords: Revised return
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO . .. . 4818/DEL/2014 4818/DEL/2014 4818/DEL/2014 4818/DEL/2014 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2010 2010 2010 2010 - -- - 11 1111 11 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -25 2525 25, ,, , NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., BB BBBB BB- -- -150, NEAR CHOTI SABJI MANDI, 150, NEAR CHOTI SABJI MANDI, 150, NEAR CHOTI SABJI MANDI, 150, NEAR CHOTI SABJI MANDI, JANAKPURI, JANAKPURI, JANAKPURI, JANAKPURI, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AALCS4258C. PAN : AALCS4258C. PAN : AALCS4258C. PAN : AALCS4258C. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.S. RANA, CIT - DR. RESPONDENT BY : SHRI SHASHWAT BAJPAI AND SHRI SHARAD AGARWAL, ADVOCATES. DATE OF HEARING : 15.04.2019 15.04.2019 15.04.2019 15.04.2019 DATE OF PRONOUNCEMENT : 16.04.2019 16.04.2019 16.04.2019 16.04.2019 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 201 0-11 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-1, NEW DELHI DATED 13 TH JUNE, 2014. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN :- 1. THE ORDER OF THE CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271(1 )(C) OF I.T. ACT, 1961 IMPOSED BY ASSESSING OFFICER AMOUNTING TO RS.2,02,72,800/-. ITA-4818/DEL/2014 2 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEA RING OF THE APPEAL. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED COU NSEL FOR THE ASSESSEE HAS RELIED UPON THE DECISION OF ITAT, DELHI BENC H IN THE CASE OF ASHWANI KUMAR ARORA VS. ACIT [2017] 81 TAXMANN. COM 440 (DELHI- TRIB.). THE LEARNED CIT-DR, ON THE OTHER HAND, REL IED UPON THE FOLLOWING DECISIONS :- (I) CIT VS. PRASANNA DUGAR [2015] 59 TAXMANN.COM 99 (CALCUTTA). (II) ACIT VS. SMT. J. MYTHILI 35 TAXMANN.COM 86. (III) SMT. KIRAN DEVI VS. ACIT [2009] 125 TTJ 631 (DELHI). (IV) CIT VS. S.J. PRASAD [2008] 220 CTR 169 (KER). (V) CIT VS. SMT. MEERA DEVI [2012] 26 TAXMANN.COM 132 (DELHI). (VI) SHOURYA TOWERS (P) LTD. VS. DCIT [2013] 30 TAX MANN.COM 10 (DELHI). (VII) SANJAY AGGARWAL VS. CIT [2011] 15 TAXMANN.CO M 34 (P&H). 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE FACTS OF THE CASE ARE THAT THE SEARCH HAS TAKEN PLACE AT THE ASSESSEES PREMISES O N 31 ST JANUARY, 2011. THE ASSESSING OFFICER COMPLETED THE ASSESSM ENT AT `8,41,36,820/- WHICH WAS THE INCOME DECLARED BY THE ASSESSEE IN THE REVISED RETURN. THE ASSESSING OFFICER LEVIED PENALTY UN DER SECTION 271(1)(C) AT `2,44,72,800/-. ON APPEAL, LEARNED CI T(A) HELD THAT AT THE RELEVANT TIME, NO PENALTY UNDER SECTION 271(1)(C) C OULD HAVE BEEN LEVIED WHERE SECTION 271AAA WAS APPLICABLE. HE, THE REFORE, MODIFIED THE PENALTY ORDER AND, INSTEAD OF PENALTY UNDER SEC TION 271(1)(C), HE IMPOSED PENALTY UNDER SECTION 271AAA AT `42,00,000/- AND ALLOWED THE RELIEF OF `2,02,72,800 I.E., `2,44,72,800 - `42 ,00,000/-. ITA-4818/DEL/2014 3 5. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY T HE LEARNED COUNSEL THAT NO APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST THE PENALTY SUSTAINED UNDER SECTION 271AAA. SECTION 271A AA READS AS UNDER :- 271AAA. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROV ISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BE EN INITIATED UNDER SECTION 132 ON OR AFTER THE 1 ST DAY OF JUNE, 2007 [BUT BEFORE THE 1 ST DAY OF JULY, 2012], THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PE R CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIO US YEAR. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPLY I F THE ASSESSEE,- (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, I N RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) OF SU B- SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1). 6. FROM THE ABOVE, IT IS EVIDENT THAT SECTION 271AAA IS AN OVERRIDING PROVISION AND WHICH IS APPLICABLE WHERE TH E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER 1 ST JUNE, 2007 BUT BEFORE THE 1 ST DAY OF JULY, 2012. IN RESPECT OF SUCH SEARCH FOR ANY UNDISCLOSED INCOME, THE PENALTY IS LEVIABLE UNDER THIS SECTION AT THE RATE OF 10% OF ITA-4818/DEL/2014 4 THE UNDISCLOSED INCOME. SUB-SECTION (3) HAS CLEARLY PR OVIDED THAT NO PENALTY UNDER SECTION 271(1)(C) SHALL BE IMPOSED UPON THE ASSESSEE WHOSE CASE IS COVERED BY SECTION 271AAA. ADMITTEDLY, IN THIS CASE, THE SEARCH HAS TAKEN PLACE ON 31 ST JANUARY, 2011 WHICH FALLS WITHIN THE PERIOD IN WHICH SECTION 271AAA WAS APPLICABLE I.E., AFTER THE 1 ST DAY OF JUNE, 2007 BUT THE 1 ST DAY OF JULY, 2012. IN THE ABOVE CIRCUMSTANCES, IN OUR OPINION, LEARNED CIT(A) RIGHTLY HELD THAT IN TH IS CASE, PENALTY WAS LEVIABLE UNDER SECTION 271AAA AND NOT UNDER SECTION 271(1)(C). SIMILAR VIEW HAS BEEN EXPRESSED BY THE ITAT, DELHI BEN CH IN THE CASE OF ASHWANI KUMAR ARORA (SUPRA) RELIED UPON BY THE LEA RNED COUNSEL. THE FACTS IN ALL THE CASES RELIED UPON BY THE LEARNED CIT-DR ARE ALTOGETHER DIFFERENT. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). THE SAME IS SUSTAINED AND REVENUES APPEAL IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . DECISION PRONOUNCED IN THE OPEN COURT ON 16.04.2019. SD/- SD/- (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -25, NEW DELHI. 25, NEW DELHI. 25, NEW DELHI. 25, NEW DELHI. 2. RESPONDENT : M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., M/S SAVIOUR BUILDERS PVT.LTD., BB BBBB BB- -- -150, NEAR CHOTI SABJI MANDI, JANAKPURI, 150, NEAR CHOTI SABJI MANDI, JANAKPURI, 150, NEAR CHOTI SABJI MANDI, JANAKPURI, 150, NEAR CHOTI SABJI MANDI, JANAKPURI, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR