Sh. Vaikunth Lal, Ludhiana V. The Asstt. Commissioner of Income-tax, Jalandhar

ITA 548/ASR/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2493 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-12-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 08-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SHARDA
• Section: 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NOS. 553, 548 TO 552(ASR)/2014 ASSESSMENT YEAR: 2004-05, 1999-2000 TO 2003-04 VAIKUNTH LAL B-55, SARGODHA COLONY, PAKHOWAL ROAD, LUDHIANA. PAN:ABTPL6347H VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-II, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIONS. RESPONDENT BY: SH. R.K. SHARDA (D R.) DATE OF HEARING: 22.12. 2015 DATE OF PRONOUNCEMENT: 14.01.2016 ORDER PER T. S. KAPOOR (AM): THIS IS A GROUP OF SIX APPEALS ALL RELATING TO ISSU E OF PENALTY U/S 271(1)(C) OF THE ACT. THE ONLY APPEAL NO.553(ASR)/2 014 WAS LISTED FOR HEARING ON THE DATE OF HEARING AND THE REST OF THE APPEALS WERE NOT LISTED FOR HEARING, HOWEVER, IT WAS BROUGHT TO OUR NOTICE BY BENCH CLERK THAT SIMILAR APPEALS OF ASSESSEE RELATING TO OTHER YEARS WERE ALSO PENDING FOR HEARING ON SOME OTHER DATE, THEREFORE, THOSE APPEAL S WERE DIRECTED TO CLUB WITH PRESENT APPEAL AND ALL THE APPEALS ARE DI SPOSED OFF THROUGH THIS COMMON AND CONSOLIDATE ORDER. 2. THE FACTS OF THE APPEALS AS NOTED IN ASSESSMENT ORDER ARE THAT A SEARCH U/S 132 OF INCOME TAX WAS CONDUCTED AT RESID ENTIAL AND BUSINESS ITA NO. 553, 5 48 TO 552(ASR)/2014 A.Y S 2004-05 & 1999 - 2000 TO 2003-04 2 PREMISES OF ASSESSEE ON 16.3.2015 AND SUBSEQUENTLY NOTICES U/S 153A WERE ISSUED REQUIRING THE ASSESSEE TO FURNISH RETUR N OF INCOME. IN RESPONSE TO NOTICE U/S 153A THE ASSESSEE FILED HIS RETURN OF INCOME FOR SIX YEARS AND THE ASSESSING OFFICER ACCEPTED THE RE TURNS OF INCOME FOR ALL THE SIX YEARS AT AMOUNTS FOR WHICH RETURNS WERE FIL ED. HOWEVER, HE INITIATED PENALTY PROCEEDINGS U/S 271(1) (C) BY REC ORDING SIMILAR FINDINGS. THE FINDINGS AS RECORDED IN ASST. YEAR 2004-05 ARE REPRODUCED BELOW. AS THE ASSESSEE HAS NOT FILED RETURN OF INCOME VOL UNTARY WITHIN TWO YEARS FROM THE END OF RELEVANT YEAR 2004-05 AND NO NOTIC E U/S 142(1)/148 WERE ISSUED TO HIM TILL THE EXPIRY OF SAID PERIOD THE AS SESSEE IS TREATED TO HAVE CONCEALED HIS INCOME WITHIN THE MEANING OF EXPLANAT ION-3 TO SECTION 271(1)( C). 3. AT THE OUTSET, WE FIND THAT NO BODY WAS PRESENT ON BEHALF OF THE ASSESSEE AND ASSESSEE HAD RELIED UPON THE WRITTEN S UBMISSIONS WHEREIN IT WAS CLAIMED THAT THERE IS NO CONCEALMENT OF INCO ME AS THE RETURNS OF INCOME HAS BEEN ACCEPTED WITHOUT ANY FURTHER ADDITI ONS. IN HIS WRITTEN ARGUMENTS THE ASSESSEE HAS ALSO ARGUED THAT THE LEA RNED CIT(A) HAD DISMISSED THE APPEALS OF THE ASSESSEE ON THE BASIS OF DECISIONS OF HONBLE TRIBUNAL IN THE CASE OF ACIT VS. KRITI DAHYABHAI PA TEL (2009) 125 TTJ 145 (AHD) AND IT WAS SUBMITTED THAT RELIANCE OF THE LEARNED CIT(A) ON THE ORDER OF HONBLE TRIBUNAL WAS MISCONCEIVED AS THE S AID JUDGMENTS STAND REVERSED BY HONBLE GUJRAT HIGH COURT VIDE ORDER DA TED 3.12.2014. IT WAS SUBMITTED THAT HONBLE GUJRAT HIGH COURT IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 153A HAS HELD THAT WHERE THE RETURN OF INCOME IS ITA NO. 553, 5 48 TO 552(ASR)/2014 A.Y S 2004-05 & 1999 - 2000 TO 2003-04 3 FILED IN RESPONSE TO NOTICE U/S 153A THEN THAT RETU RN HAS TO BE CONSIDERED AS RETURN FILED U/S 139 OF THE ACT, AND HAS FURTHER HELD THAT PENALTY U/S 271(1)(C) IS TO BE LEVIED ON INCOME ASS ESSED OVER AND ABOVE THE INCOME RETURNED U/S 153A IF ANY. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE FINDINGS OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE LEARNED DR AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD INCLUDING WRITTEN SUBMISSIONS FILE D BY LEARNED AR OF ASSESSEE. WE FIND THAT ASSESSEE HAD NOT FILED RETUR NS OF INCOME U/S 139 AND IT WAS ONLY IN VIEW OF NOTICES ISSUED BY DEPART MENT U/S 153A, THE ASSESSEE FILED HIS RETURNS OF INCOME FOR SIX YEARS. THESE RETURNS WERE FILED ON 17.09.2007 AND THE ASSESSING OFFICER HAS A CCEPTED THE RETURNS OF INCOME DECLARED BY ASSESSEE WITHOUT MAKING ANY ADDI TION, HOWEVER, HE HAS IMPOSED PENALTY U/S 271(1)(C) AS IN HIS OPINIO N THE ASSESSEE HAD CONCEALED PARTICULARS OF INCOME AS HE FILED RETURNS ONLY AFTER GETTING NOTICES FROM DEPARTMENT U/S 153A. THE LEARNED CIT(A ) CONFIRMED THE PENALTY RELYING UPON THE HONBLE TRIBUNAL ORDER IN THE CASE OF ACIT VS. KRITI DAHYABHAI PATEL (SUPRA). WE FIND THAT THE SAI D TRIBUNAL JUDGMENT HAS BEEN REVERSED BY HONBLE GUJRAT HIGH COURT WHER EIN THE HONBLE COURT HAS HELD THAT PENALTY U/S 271(1)(C) IS IMPOSA BLE ON RETURNS FILED U/S 153A IF THE INCOME IS ASSESSED OVER AND ABOVE T HE INCOME DECLARED BY ASSESSEE U/S 153A OF THE ACT. THE RELEVANT FINDI NGS OF HONBLE GUJRAT ITA NO. 553, 5 48 TO 552(ASR)/2014 A.Y S 2004-05 & 1999 - 2000 TO 2003-04 4 HIGH COURT IN THE CASE OF KRITI DAHYABHAI PATEL (SU PRA), IN ITA NO.1181 OF 2010 TO 1185 OF 2010 AS CONTAINED IN PARA 13 ARE RE PRODUCED AS UNDER: CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CAS E AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY LEARNED SE NIOR ADVOCATE FOR THE APPELLANT, WE ARE OF THE CONSIDERED OPINION THA T THE VIEW TAKEN BY THE TRIBUNAL IS ERRONEOUS. THE CIT(A) RIGHTLY HE LD THAT IT IS NOT RELEVANT WHETHER ANY RETURN OF INCOME WAS FILED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN VIEW OF SP ECIFIC PROVISION OF SECTION 153A OF THE I.T. ACT, THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE I.T. ACT, IS TO BE CONSIDERED AS RETURN FILED UNDER SECTION 139 OF THE ACT, AS THE A SSESSING OFFICER HAS MADE ASSESSMENT ON THE SAID RETURN AND THEREFOR E, THE RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENALTY UNDE R SECTION 271(1) (C) OF THE I.T. ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED UNDER S ECTION 153A, IF ANY. WE FIND THAT THE HONBLE GUJRAT HIGH COURT HAS CLEA RLY HELD THAT PENALTY IS NOT IMPOSABLE IN THE CASE OF RETURNS FILED U/S 1 53A WHEREIN THE ASSESSED INCOME AND RETURN OF INCOME ARE SAME. 6. IN VIEW OF THE ABOVE, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2016. SD/- SD/- (A.D. JAIN) ( T. S. KAPOOR) JUDICIAL MEMBER AC COUNTANT MEMBER DATED: 14.01.2016. /PK/ PS. ITA NO. 553, 5 48 TO 552(ASR)/2014 A.Y S 2004-05 & 1999 - 2000 TO 2003-04 5 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.