GAURI JOSHI, MUMBAI V. ASST CIT WD 21(1), MUMBAI

ITA 4886/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93046 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI A.D. JAIN, JM AND SHRI N.K. BILLAIYA, A M .. , . . , ./ I.T.A. NO. 4886 /MUM/2013 ( / ASSESSMENT YEAR : 2009-10 SMT. GAURI JOSHI, C-9, SAHIL SOCIETY, TEJPAL SCHEME ROAD NO. 4, VILE PARLE EAST, MUMBAI 400 057. / VS. ASSTT. COMMISSIONER OF INCOME TAX 21(1), 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI 400 051. ./ PAN : AAJPJ6460C ( ! / APPELLANT ) .. ( '# ! / RESPONDENT ) A PPELLANT BY SHRI HARIDAS BHATT R E SPONDENT BY : SHRI B.S. BIST $ % & ' ( ) / DATE OF HEARING : 02-07-2015 *+,- ' ( ) / DATE OF PRONOUNCEMENT : 03-07-2015 [ . / O R D E R PER A.D. JAIN, J.M . : .. , THIS IS ASSESSEES APPEAL FOR A.Y. 2009-10, CHALLEN GING THE ACTION OF THE LD. CIT(A) IN CONFIRMING LEVY OF CONCEALMENT OF PEN ALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 OF RS. 3,42,990/- ON THE ASSES EE. 2. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE D ID NOT FILE ANY RETURN OF INCOME WITHIN THE DUE DATE. SUBSEQUENTLY, A SURVEY WAS CONDUCTED ON THE ASSESSEE ON 7-12-2009. DURING THE SURVEY, THE ASSE SSEE DECLARED INCOME AND PAID DUE TAXES THEREON. AFTER THE SURVEY ON 17-12-2 009, THE ASSESSEE FILED A RETURN OF INCOME AND DECLARED INCOME OF RS. 21,30,9 90/-. IN THE PENALTY ITA 4886/M/13 2 PROCEEDING, THE ASSESSEE CONTENDED BEFORE THE A.O. THAT THE INCOME WAS VOLUNTARILY DECLARED DURING THE SURVEY AND DUE TAXE S WERE PAID THEREON AND, THEREFORE, NO CONCEALMENT PENALTY WAS LEVIABLE. HOW EVER, THE A.O. OBSERVED THAT THE DISCLOSURE HAS BEEN MADE ONLY AFTER THE SU RVEY. SHE, ACCORDINGLY, LEVIED PENALTY OF RS. 3,42,990/- ON THE ALLEGED UND ISCLOSED INCOME OF RS. 10 LACS SURRENDERED DURING THE SURVEY. THE LD. CIT(A) CONFIRMED THE PENALTY. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT, SINCE NO ADDITION WAS MADE IN THE ASSESSMENT AND THE RETURNED INCOME WAS ACCEPTED, THE PENALTY WAS WRONGLY LEVIED AND CONFIRMED. 4. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELI ANCE ON THE IMPUGNED ORDER, CONTENDING THAT THE DISCLOSURE WAS MADE ONLY AFTER THE SURVEY HAS BEEN CARRIED OUT AND, THEREFORE, THE PENALTY WAS RI GHTLY LEVIED ON THE ASSESSEE. 5. WE HAVE HEARD THE PARTIES AND HAVE ALSO PERUSED THE MATERIAL ON RECORD. IT REMAINS UNDISPUTED THAT NO ADDITION WAS MADE AND THE RETURNED INCOME WAS ACCEPTED BY THE A.O. AS SUCH, THE PROVIS IONS OF SECTION 271(1)(C) OF THE ACT HAVE WRONGLY BEEN APPLIED. IN THIS REGAR D, IN CIT VS. SAS PHARMACEUTICALS, 335 ITR 259 (DEL), RIGHTLY RELIED ON BY THE ASSESSEE, IT HAS BEEN HELD, INTER ALIA, THAT THE EXPRESSION IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, AS APPEARING IN SECTION 271(1)(C) OF THE ACT, CANNOT HAVE REFERENCE TO SURVEY PROCEEDINGS; THAT CONCEALMENT O F PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULAR OF INCOME BY TH E ASSESSEE HAS TO BE IN THE INCOME TAX RETURN FILED BY THE ASSESSEE; THAT THE A SSESSEE CAN FURNISH PARTICULARS OF INCOME IN HIS RETURN AND EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESEE; THAT THIS VIEW GETS SU PPORTED BY EXPLANATIONS 4, 5 AND 5A OF SECTION 271(1)(C) OF THE ACT; THAT NO PEN ALTY CAN BE IMPOSED, UNLESS THE CONDITIONS STIPULATED IN THESE PROVISIONS ARE D ULY AND UNAMBIGUOUSLY MET; THAT SINCE THE ASSESSEE WAS EXPOSED DURING SUR VEY, MAY BE, IT WOULD ITA 4886/M/13 3 HAVE NOT DISCLOSED THE INCOME BUT FOR THE SAID SURV EY; THAT HOWEVER, THERE CANNOT BE ANY PENALTY ONLY ON SURMISES, CONJECTURES AND POSSIBILITIES; AND THAT UNLESS IT IS FOUND THAT THERE IS ACTUALLY A CO NCEALMENT OR NON-DISCLOSURE OF THE PARTICULARS OF INCOME, PENALTY CANNOT BE IMP OSED. THE ASSESSEE HAD MADE A COMPLETE DISCLOSURE IN THE RETURN AND HAS OF FERED THE SURRENDERED AMOUNT FOR THE PURPOSES OF TAX. AS SUCH, THERE CAN NOT BE ANY CONCEALMENT OR NON-DISCLOSURE. SAS PHARMACEUTICALS (SUPRA) HAS BEEN FOLLOWED BY THE MUMBAI BENCH OF ITAT VIDE ITS ORDER DATED 19-6-2014 , IN ITA NO. 2770/MUM/2012, FOR A.Y. 2007-08, IN ACIT VS. CRESC ENT PROPERTY DEVELOPERS, MUMBAI. NO DECISION TO THE CONTRARY HA S BEEN CITED BEFORE US. 6. THEREFORE, ONCE THE ASSESSEE MADE COMPLETE DISCL OSURE IN THE RETURN FILED POST SURVEY AND THE RETURNED INCOME WAS ACCEP TED, AND NO ADDITION WAS MADE, IN KEEPING WITH THE DECISION IN THE CASE OF S AS PHARMACEUTICALS (SUPRA), NO CONCEALMENT PENALTY IS LEVIABLE. ACCOR DINGLY, THE PENALTY LEVIED IN THE PRESENT CASE IS DELETED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESASEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JULY, 2015 . ' *+,- $ /0 1 2 03-07-2015 + ' 3& SD/- SD/- (N.K. BILLAIYA) (A.D. JAIN ) ACCOUNTANT MEMBER /J UDICIAL MEMBER / $ & MUMBAI ; 1 DATED 03-07-2015 [ %.../ R.K. R.K. R.K. R.K. , SR. PS ITA 4886/M/13 4 ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. $ F( () / THE CIT(A)- 32, MUMBAI 4. $ F( / CIT- CITY-= 21, MUMBAI 5. I%J 3 '(KL , ) KL- , / $ & / DR, ITAT, MUMBAI G BENCH 6. 3 M N & / GUARD FILE. ! ( / BY ORDER, # I( '( //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , / $ & / ITAT, MUMBAI