Virendra Singh, Meerut V. ITO, Ward- 2(4), Meerut

ITA 51/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4522 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Revised return
• Section: 148; 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 51/DEL/2018 ASSESSMENT YEAR: 2013-14 VIRENDRA SINGH, C/O VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT (PAN : ATMPS7457C) VS. ITO, WARD 2(4), MEERUT (APPELLANT) (RESPONDENT) ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 22.12.2017 PASSED BY THE LD. CIT(A), MEERUT ON THE FOLLOWING GROUNDS:- 1. THAT THE AO AS WELL AS CIT(A) IS IN ERROR THAT PENA LTY WAS IMPOSED OF RS. 2,78,000/- ON REVISED RETURN OF RS. 14,65,590/-. 2. THAT LD. CIT(A) HAS REFERRED THE SUPREME COURT JUD GEMENT IN THE CASE OF MAX DATA (P) LTD. WHICH RELATES TO SUR VEY PROCEEDINGS AND THE ASSESSEE FAILS TO GIVE EVIDENCE OF SURRENDER. HENCE IT IS NOT APPLICABLE TO THE ASSESSEE CASE. HO WEVER, LD. CIT(A) IGNORE THE VARIOUS CASE LAW QUOTED BY THE AS SESSEE. HENCE, REJECTS OF APPEALS IS AGAINST THE FACTS AND LAW. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELET E ANY GROUND DURING THE APPEAL PROCEEDINGS. ASSESSEE BY SH. V.K. GOEL, ADVOCATE DEPARTMENT BY SHRI PRADEEP KUMAR MEEL, SR. DR. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER INF ORMATION FROM AIR DATA, A NOTICE U/S. 148 OF THE I.T. ACT, 1961 WAS I SSUED TO THE ASSESSEE. IN RESPONSE THEREOF, THE ASSESSEE HAS FILED ITS RE TURN DECLARING TOTAL INCOME OF RS. 5,83,000/-. DURING THE ASSESSMENT YE AR, VARIOUS NOTICES WERE ISSUED TO THE ASSESSEE AND IN RESPONSE TO THAT NOTICE, THE ASSESSEE HAS FILED THE EVIDENCES AS REQUIRED BY THE AO. DURI NG THE ASSESSMENT PROCEEDING, THE ASSESSEE HAS FILED REVISED RETURN S HOWING TOTAL INCOME OF RS. 14,65,000/-. THE AO HAS CONSIDERED THE REVISED RETURN AND MADE ASSESSMENT ON TOTAL INCOME OF RS. 14,65,000/- AS SH OWN BY THE ASSESSEE IN HIS REVISED RETURN. THEREAFTER, THE AO IMPOSED THE PENALTY U/S. 271(1)(C) OF THE ACT FOR RS. 2,78,000/- VIDE ORDER DATED 22.6.2017. AGAINST THE PENALTY ORDER, THE ASSESSEE HAS PREFERR ED APPEAL AGAINST THE PENALTY ORDER BEFORE THE LD. CIT(A), MEERUT WHO VI DE HIS IMPUGNED ORDER DATED 22/12/2017 HAS DISMISSED THE APPEAL OF THE A SSESSEE. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LOWE R AUTHORITIES ERRED IN IMPOSING AND CONFIRMING THE PENALTY OF RS. 2,78 ,000/- ON REVISED RETURN OF RS. 14,65,590/-. HE FURTHER SUBMITTED T HAT LD. CIT(A) HAS REFERRED THE JUDGMENT OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF MAX DATA (P) LTD. WHICH RELATES TO SURVEY PROCE EDING AND THE ASSESSEE FAILS TO GIVE EVIDENCE OF SURRENDER. HENCE, IT IS N OT APPLICABLE TO THE ASSESSEES CASE. 3 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED HE HAS PASSED A WELL REASONED ORDER, WHI CH DOES NOT NEED ANY INTERFERENCE ON OUR PART. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDER. I FIND THAT LD. CIT(A) HAS ELABORAT ELY DISCUSSED THE ISSUE IN DISPUTE VIDE PARA NO. 4 & 5 OF THE IMPUGNED OR DER AT PAGE NO. 5 & 6. THE RELEVANT FINDING OF THE LD. CIT(A)S ORDER IS REPRODUCED AS UNDER:- 4. FACTS OF THE CASE AND DECISION: I HAVE GONE THROUGH THE FACTS OF THE CASE, PENALTY ORDER AND THE SUBMISSIONS OF THE AR. BRIEFLY THE FACTS ON THE BASIS OF AIR INFORMATION, THE AO INITIATED PROCEEDI NGS U/S 147/148 OF THE ACT IN RESPONSE TO WHICH THE ASSESSEE REPLIED ON 21.06.2016 THAT EARLIER RETURN FILED FOR A.Y 2013-14 DECLARED INCOME OF RS. 5,83,000/-. THEREAFTER, WHEN THE AO COMMENCE SCRUTINY THE AR OF THE ASSESSEE FILED A REVISED RETURN FOR A.Y 2013-14 DECLARING INCOME OF RS. 14,65,590/-. THE ASSESSMENT WAS CONCLUDED ON THIS INCOME AND PENALTY U/S 271(L) (C) WAS INITIATED. THEREAFTER, ON 22.06.2017 THE AO AFT ER GIVING OPPORTUNITY IN THE APPELLATE PROCEEDINGS LEV IED THE PENALTY ON THE BASIS OF REVISED RETURN AND IMPO SED PENALTY OF RS. 2,78,000/-. 4 IN APPEAL THE ID. AR IN THE FIRST GROUND STATED THA T THE AO WAS NOT JUSTIFIED IN TREATING RS. 14,65,590/- AS CAPITAL GAIN. THIS GROUND IS TOTALLY MISPLACED AND MISCONCEIVED WHEN THE ASSESSEE HAS ALREADY REVISED THE RETURN AND DECLARE THE CAPITAL GAIN. THE GROUND BEING IRRELEVANT IN THE PRESENT FACTS AND CIRCUMSTA NCES IS HEREBY DISMISSED. THE SECOND GROUND RELATES TO LEVY OF PENALTY WHICH HAS BEEN ARGUED AS BEING ARBITRARY, UNJUST AND NOT ACCORDINGLY TO LAW. IN THIS REGARD THE ID. AR HAS R ELIED UPON SEVERAL RULINGS IGNORING THE BASIC FACTS ON RE CORD WHERE DISCOVERY OF UNREPORTED TRANSACTION BY THE ASSESSEE WAS MADE BY THE DEPARTMENT. THE SAME WAS TAKEN NOTE BY THE AO WHO FOUND REASON TO BELIEF THA T TAXABLE INCOME HAD ESCAPED ASSESSMENT AND ACCORDINGLY PROCEEDED U/S 147/148 OF THE ACT. IN RESPONSE, THE ASSESSEE INITIALLY STATED THAT ORI GINAL RETURN FILED DECLARING INCOME OF RS. 5,83,000/- BE TREATED AS RETURN IN RESPONSE TO NOTICE U/S 148 OF THE IT ACT. THEREAFTER DURING THE PROCEEDINGS THE RETURN I S REVISED WHICH SHOWS THAT ASSESSEE HAS ACCEPTED THAT THERE WAS UNREPORTED INCOME WHICH WOULD HAVE NOT COME TO LIGHT HAD THERE BEEN NO PROCEEDINGS AGAINST THE 5 APPELLANT. THE ACT OF REVISING OF THE RETURN IS THE CLEAR ADMISSION THAT HITHERTO CONCEALED UNREPORTED INCOME HAS BEEN BROUGHT TO TAX BY AN ACT OF ADMISSION BY T HE ASSESSEE. IN THIS CONNECTION THE RELIANCE IS PLACED ON THE HO NBLE SUPREME COURT JUDGMENT IN THE CASE OF MAK DATA MAK DATA PVT. LTD. VS CIT II CIVIL APPEAL NO. 9772 OF 2013 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.18389 OF 2013) THE AO, IN OUR VIEW SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE VOLUNTARY DISCLOSURE, BUY PEACE, AVOID LITIGATION, AMICABLE SETTLEMENT, ETC. TO EXPLAIN AWAY ITS CONDUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. EXPLANATION TO SECTION 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AO, BETWEEN REPORTED AND ASSESSED INCOME. IT IS TRITE LAW THAT THE DISCLOSURE MADE UNDER SUCH CIRCUMSTANCES DOES NOT RELEASE THE APPELLANT-ASSESS EE FROM THE MISCHIEF OF PENAL PROCEEDINGS. THE LAW DOE S 6 NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A DISCLOSUR E AND CLAIMS IT TO BE VOLUNTARY REGARDING HIS UNEXPLA INED INCOME, HE HAS TO BE ABSOLVED FROM PENALTY ESPECIAL LY WHEN THE SO CALLED SURRENDER HAS BEEN MADE UNDER COMPULSION ARISING OUT OF THE INQUIRY DURING THE ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABOVE OBSERVATIONS THE ASSESSEES AP PEAL AGAINST THE PENALTY IMPOSED FAILS. 5. IN THE RESULT, THE APPEAL IS DISMISSED. 6. AFTER PERUSING THE AFORESAID FINDING, I AM OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS PASSED A WELL REASONED, WH ICH DOES NOT NEED ANY INTERFERENCE ON MY PART. THEREFORE, I UPHO LD THE ORDER OF THE LD. CIT(A) ON THE ISSUES IN DISPUTE AND REJECT TH E GROUNDS RAISED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-10-2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:29/10/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 7