ACIT, Jaipur V. NAYAN TIWARI, Jaipur

ITA 539/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5566 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 31-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KOTHARI CIT DH FRFFK
• Assessee Lawyers: S L JAIN FOHKKX DH LS
• Section: 148; 139

Judgement Text

VKBZVH, LA-539@TSIH@14 ,OA IZR;K{KSI LA- 24@TSIH@14 & JH U;U FROKMH] T;IQJ A VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K (BEFORE SHRI T.R.MEENA AND SHRI LALIET KUMAR) ITA NO.539/JP/2014 ASSESSMENT YEAR : 2006-07 THE DY.CIT, VS. SH.NAYAN TIWARI, C.C.2, JAIPUR. JAIPUR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT CO NO.24/JP/2014 ASSESSMENT YEAR : 2006-07 PAN NO. BFMPS 8288A SH.NAYAN TIWARI, VS. THE DY.CIT, JAIPUR. CIRCLE-2, JAIPUR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KKZFJRH DH VKSJ LS@ ASSESSEE BY : SH.S.L.JAIN (ADVOCATE) FOHKKX DH VKSJ LS@ DEPARTMENT BY : SH.D.S.KOTHARI (CIT) LQUOKBZ DH FRFFK@ DATE OF HEARING : 01.02.2016 ?KKS'K.KK DH FRFFK@ DATE OF PRONOUNCEMTNT: 02.02.2016 VKNS'K ORDER PER T.R.MEENA, AM THE REVENUES APPEAL AND ASSESSEES C.O. ARE INMAT ING FROM THE CIT(A) CENTRAL, JAIPUR AGAINST THE ORDER DATED 02.05.2014 FOR A.Y. 06-07. THE SOLE GROUND OF REVENUES APPEAL IS AGAINST DELETING THE PENALTY OF RS.1,46,53,558/- BY - 2 - THE CIT(A). THE AO OBSERVED THAT THERE WAS A SEARC H SEIZURE OPERATION ON THE MEMBERS OF RANKA GROUP OF CASES OF 24.08.2006. DUR ING THE COURSE OF SEARCH SEVERAL INCRIMATING PAPERS/DOCUMENTS WERE FOUND AN D SEIZED FROM THE VARIOUS PREMISES COVERED IN THE SEARCH ACTION. ONE OF THE MEMBER OF RANKA GROUP HAD ADMITTED A SURRENDERED OF UNDISCLOSED INCOME. THE COMPANY NAMELY M/S.RANKA COLONIZERS P.LTD., HAD PAID AN AMOUNT OF RS. 5.5 CR ORE TO THE ASSESSEE DURING THE FINANCIAL YEAR 2005-06 RELEVANT TO ASSESSMENT YEAR 2006-07 FOR THE PURPOSE OF HELPING THE COMPANY TO PURCHASE LAND FOR ITS PROJECT IN VILLAGE NIMEDA HOWEVER IT WAS NOTICED THAT THE ASSESSEE NEITHER RETURNED THE MONEY BACK TO THE COMPANY NOR GOT LAND OF EQUIVALENT VALUE REGISTERED IN NAME OF THE COMPANY. THE ASSESSEE ADMITTED IN HIS STATEMENT THAT HE RECEIVED RS. 5.5 CRORE FROM THE COMPANY. HE GOT LAND REGISTERED IN THE NAME OF M/S.RANKA COLONI ZERS P.LTD., VALUED RS.1,19,34,828/-. THE AO AFTER GIVING THE CREDIT O F RS.1,19,34,828/- MADE AN ADDITION OF RS.4,35,65,172/- IN THE INCOME. THE AD DITION WAS CONFIRMED BY THE CIT(A) THERE AFTER LD.AO GIVE THE SHOW CAUSE NOTICE TO IMPOSED THE PENALTY U/S 271(1)(C) OF THE ITACT. THE ASSESSEE SUBMITTED BEF ORE THE AO THAT APPEAL BEFORE HONBLE ITAT, JAIPUR IS PENDING. THEREFORE, HE REQ UESTED TO KEEP THE PENALTY PROCEEDING IN ABEYENCE TILL DISPOSAL OF SECOND APPE AL.THE LD.AO AFTER CONSIDERING - 3 - THE ASSESSEES REPLY HAD RELIED UPON IN CASE OF CIT VS. VIDHYA GAURI NATWAR LAL 238 ITR 91 (GUJ.), UNION OF INDIA VS. DHARMENDRA TEX TILE PROCESSOR 295 ITR 244 (SC) AND IMPOSED PENALTY AT RS.1,46,53,558/- WHICH IS 100% OF TAX SOUGHT TO BE EVADED. 2. BEING AGREED BY THE ASSESSEE TO CARRIED THE MATT ER BEFORE CIT(A) WHO HAD DELETED THE PENALTY BY OBSERVING AS UNDER :- 4.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE A O AND ORDER OF THE HONBLE ITAT (SUPRA) IN THE QUANTUM APPEAL O F THE APPELLANT FOR A.Y. 2006-07. ON PERUSAL OF THE ORDE R OF THE HONBLE ITAT IT IS SEEN THAT THE ENTIRE ADDITION MA DE BY THE AO HAS BEEN DELETED IN THE QUANTUM APPEAL. SECONDLY, IT IS SEEN THAT WHEN A NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE HE HAS STATED THAT THE RETUR N OF INCOME FILED EARLIER U/S 139 SHOULD BE TREATED AS ONE FILE D IN RESPONSE TO NOTICE U/S 148. THUS NO DISCLOSURE OR SURRENDER OF INCOME WAS MADE IN THE RETURN FILED U/S 148. SINCE NO DISCLOSURE WAS MADE IN RETURN FILED IN RES PONSE TO NOTICE U/S 148 AND THE ENTIRE ADDITION OF RS.4,3 5,65,172/- HAS BEEN DELETED, THE PENALTY OF RS.1,46,53,558/- U /S 271(1)(C) FOR CONCEALMENT OF THIS INCOME IS NOT SUS TAINABLE AND IS DELETED. 3. NOW REVENUE IN APPEAL AND ASSESSEE IN CROSS OBJEC TION ARE BEFORE US IT IS ARGUED BY THE AR THAT IN QUANTUM ALL THE ADDITION M ADE BY THE AO HAS BEEN DELETED THEREFORE THE PENALTY DOES NOT SURVIVE THER EFORE HE REQUESTED TO CONFIRM - 4 - THE ORDER OF THE CIT (A). THE LD.D.R. FAIRLY ACCEP TED THE ARGUMENT MADE BY THE A.R. 4. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL AVAILABLE ON RECORD THE COORDINATE BENCH IN CASE OF ASSESSEE IN ITA NO. 113/JP/2012 ORDER DATED 05.03.2014 HAD DELETED THE QUANTUM APPEAL THE REFORE BE DO NOT FOUND ANY REASON TO INTERVENE IN THE ORDER OF THE CIT(A). 5. IN THE RESULT REVENUES APPEAL IS DISMISSED AND ASSESSEES CROSS OBJECTION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.02.2016 SD/- SD/- (LALIET KUMAR) (T.R.MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER T;IQJ@ JAIPUR, FNUKAD@ DATE : 02/02/2016 *BASANT* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO :- 1- MIK;QDR VK;DJ] DSUNZH; O`RR&2] T;IQJ A 2- JH U;U FROKMH] T;IQJ A 3- VK;DJ VK;QDR] 4- VK;DJ VK;QDR VIHYL~] 5- FOHKKXH; IZFRFUF/K] T;IQJ@ THE D.R. ITAT, JAIPUR 6- XKMZ QKBZY@ THE GUARD FILE (IN ITA NO.539/JP/2014) VKNS'KKUQLKJ LGK;D IATHDKJ@ ASSISTANT REGISTRAR