Vikas Bhartiya, Kanpur V. Dy. Commissioner of Income Tax-I, Kanpur

ITA 51/LKW/2014

• Counselvise Citation: 5123714 RSA 2014
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K DEY
• Keywords: Revised return
• Section: 148; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.51/LKW/2014 ASSESSMENT YEAR:2001 - 02 SHRI VIKAS BHARTIYA, 332, HEERA SADAN, KANPUR. PAN:ADZPB9908Q VS. DY.C.I.T. - 1, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI P. K. DEY, D.R. DATE OF HEARING 05/03/2014 DATE OF PRONOUNCEMENT 0 8 /05/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, KANPUR DATED 24/12/2013 FOR ASSESSMENT YEAR 2001 - 2002. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE CIT (A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE LEVY OF PENALTY OF RS.3,00,000/ - U/S 271(1)(C) OF THE ACT 1961, WHICH LEVY IS BAD IN LAW. 2. BECAUSE THERE BEING NEITHER ANY CONCEALMENT OF PARTICULARS OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME THE CIT(A) HAS FAILED TO APPRECIATE THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAS THEREBY ERRED IN UPHOLDING LEVY OF PENALTY OF RS.3,00,000/ - AS IMPOSED BY AO. 3. BECAUSE THE APPELLANT HAVING FILED HIS RETURN BEFORE THE DUE DATES/TIME AND DISCLOSED AS WELL AS DECLARED HIS INCOM E VOLUNTARILY PRIOR TO DETECTION AND ISSUE OF ANY NOTICE AND THERE BEING COMPLETE COMPLIANCE, THE CIT(A) AS WELL AS THE AO HAVE 2 WRONGLY CONCLUDED THAT THE ASSESSEE APPELLANT IS LIABLE FOR PENALTY U/S 271(L)(C) OF THE ACT 1961. 4. BECAUSE THE PENALTY IMPOSED BY AO AND UPHELD BY THE CIT(A) IS CONTRARY TO THE PRINCIPLES OF NATURE JUSTICE, BAD IN LAW THEREBY BE DELETED. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ORIGINALLY THE RETURN WAS FILED ON 15/02/200 2 AND THE SAME WAS REVISED ON 31/ 10/2002 AND IN THE REVISED RETURN, THE INCOME DECLARED WAS RS.8,40,570/ - WHEREAS IN THE ORIGINAL RETURN, THE INCOME DECLARED WAS RS.40,520/ - . HE ALSO SUBMITTED THAT AS PER THE ASSESSMENT ORDER ALSO, THE ASSESSED INCOME IS RS.8,80,520/ - . HE FURTHER SUBMIT TED THAT THE DIFFERENCE BETWEEN THE ASSESSED INCOME AND INCOME DECLARED BY THE ASSESSEE IN THE REVISED RETURN IS RS.40,000/ - WHICH HAS BEEN DELETED BY CIT(A) IN QUANTUM PROCEEDINGS AND THEREFORE, THE FINAL ASSESSED INCOME IS THE SAME AS PER THE INCOME DEC LARED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME. HE ALSO SUBMITTED THAT THERE IS NO SATISFACTION DISCERNABLE FROM THE ASSESSMENT ORDER REGARDING ANY CONCEALMENT OF INCOME AND ONLY IN THE FOOTNOTE OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS IN ITIATED THE PENALTY PROCEEDINGS. HE PLACED RELIANCE ON THE JUDGMENT OF HON'BLE PUNJAB & HARYANA IN THE CASE OF COMMISSIONER OF INCOME - TAX VS VED PRAKASH (P&H) AS REPORTED IN [2004] 269 ITR 255. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE. WE FIND THAT ADMITTEDLY , THE INCOME OF RS.40,520/ - WAS DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME FILED ON 15/02/2002 BUT IN THE REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 31/10/2002, THE INCOME DECLARED BY THE ASSESSEE WAS OF RS.8,40,570/ - AND ULTIMATELY AF TER CONSIDERING THE RELIEF OF RS.40,000/ - ALLOWED BY LEARNED CIT(A), THE FINAL ASSESSED INCOME AS PER ASSESSMENT ORDER, REMAINS SAME AS DECLARED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME. THIS IS ALSO 3 ADMITTED FACTUAL POSITION THAT THE REVISED RETUR N FILED BY THE ASSESSEE ON 31/10/2002 WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF SUB SECTION (5) OF SECTION 139 OF THE ACT BECAUSE THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE ON 15/02/2002 WAS NOT FILED BEFORE THE EXPIRY OF TIME PERMITTED UNDER S UB SECTION (1) OF SECTION 139 OF THE ACT AND THEREFORE, SUCH RETURN CANNOT BE REVISED U/S 13 9 (5) BUT STILL THIS IS A FACT THAT NO CONCEALMENT WAS DETECTED BY THE ASSESSING OFFICER BEFORE FILING OF RETURN OF INCOME BY THE ASSESSEE SINCE NOTICE U/S 148 WAS I SSUED BY THE ASSESSING OFFICER ON 09/07/2004 WHEREAS THE REVISED RETURN WAS FILED ON 31/10/2002 AND THE SAME WAS PROCESSED ALSO ON 31/03/2003 U/S 143(1) OF THE ACT. IT IS ALSO TRUE THAT IN THE ASSESSMENT ORDER, THERE IS NO SATISFACTION RECORDED BY THE ASS ESSING OFFICER REGARDING ALLEGED CONCEALMENT OF INCOME BY THE ASSESSEE. EVEN THIS SATISFACTION IS NOT DISCERNABLE FROM THE ASSESSMENT ORDER, WHICH IS PRE REQUISITE FOR IMPOSING THE PENALTY U/S 271(1)(C) OF THE ACT AS HELD BY HON'BLE DELHI HIGH COURT IN TH E JUDGMENT RENDERED IN THE CASE OF MADHUSHREE GUPTA & BRITISH AIRWAYS PLC VS UNION OF INDIA (DEL) AS REPORTED IN [2009] 317 ITR 107. 6. UNDER THESE FACTS AND BY RESPECTFULLY FOLLOWING TH IS JUDGMENT OF HON'BLE DELHI HIGH COURT, WE HOLD THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICER IS NOT SUSTAINABLE . WE, THEREFORE, DELETE THE SAME. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DA TED: 0 8 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR