ACIT, Kanpur V. Gurdeep Singh Soni, Kanpur

ITA 548/LKW/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9205 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-01-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 24-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Keywords: Gift; Revised return
• Section: 271(1)(c); 143(3); 139(5); 143(1); 274; 139(1); 148; 6; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.548(LKW.)/2010 A.Y. : 2001-02 THE ACIT-3, VS. SHRI GURDEEP SINGH SONI, KANPUR. 77/156, LATOUCHE ROAD, KANPUR. PAN AJGPS0702A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K.BAJAJ, D.R. RESPONDENT BY : SHRI RAKESH GARG, ADVOCATE O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-II, KANPUR DATED 11.6.2010 IN CANCELLING THE PENALTY OF RS.3,51,000 LEVIED UNDER SECTION 271(1)(C) OF THE I NCOME-TAX ACT,1961(IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2001-02. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT O RIGINAL RETURN OF INCOME DECLARING INCOME OF RS.2,60,030 WAS FILED ON 18.10. 2001. SUBSEQUENTLY, NOTICE UNDER SECTION 148 WAS ISSUED BY THE AO ON 23.4.2003. IN RESPONSE TO THIS, THE ASSESSEE FILED HIS WRITTEN SUBMISSION DATED 13.5.2003 IN WHICH HE HAS STATED THAT A REVISED RETURN HAD ALREADY BEE N FILED ON 22.4.2002 DECLARING TOTAL INCOME OF RS.12,60,030 AND THE SAME MAY BE TREATED AS THE RETURN FILED IN RESPONSE TO NOTICE ISSUED UNDER SEC TION 148 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A O ISSUED NOTICE UNDER 2 SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT. THE AO OBSERVED IN THE PENALTY ORDER THAT THE ASSESSEE HAS FURNISHED THE D ETAILS SHOWING A SUM OF RS.10,00,000 DEBITED IN HIS BANK ACCOUNT AS UNEXPL AINED CREDIT ENTRIES. THIS AMOUNT WAS ASSESSEES OWN MONEY BROUGHT INTO THE BANK ACCOUNT UNDER THE GARB OF GIFT AND THEREFORE, THE SAME HAD BEEN ADDED TO THE INCOME OF THE ASSESSEE. FURTHER IN SUCH TYPE OF TRANSACT ION, THE ASSESSEE MUST HAVE PAID CERTAIN COMMISSION OR OTHER CHARGES TO CERTA IN INTERMEDIARIES. ACCORDING TO THE AO, NO COGENT REPLY WAS GIVEN BY T HE ASSESSEE ABOUT THIS COMMISSION, HENCE AN AMOUNT OF RS.50,000 (5% OF RS. 10 LACS) WAS ADDED TO THE INCOME OF THE ASSESSEE. THE AO OBSERVED THAT T HE ADDITION OF RS.50,000 ON ACCOUNT OF COMMISSION PAYMENT WAS DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 22.9.2006. HOWEVER, ON THE AMOUNT OF RS .10 LACS, THE AO LEVIED A PENALTY OF RS.3,51,000. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE C ARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A) AND THE LD. CIT(A) CANC ELLED THE PENALTY OBSERVING AS UNDER : 3.1 ON PERUSAL OF THE CASE RECORDS, IT IS SEEN THA T THE APPELLANT HAD INDEED FILED A REVISED RETURN OF INCOME ON 22.04.20 02 WHEREIN HE HAD, SUO-MOTO, DECLARED THE GIFT AMOUNTS AS HIS INCOME . THIS REVISED RETURN WAS FILED MUCH EARLIER TO THE SUMMON RECEIVE D FROM THE DEPARTMENT, WHICH WAS ISSUED BY THE DDIT(INV.) ONLY ON 31.07.2003. THUS, THERE WAS NO DETECTION AS SUCH BY THE DEPAR TMENT PRIOR TO THE ASSESSEE FILING A REVISED RETURN. 3.2 MY ATTENTION HAS BEEN DRAWN TO THE BOARD'S CIR CULAR NO.451 DATED 17TH FEBRUARY, 1986 WHEREIN THE BOARD HAS CLA RIFIED THE MEANING OF BEFORE DETECTION BY THE DEPARTMENT. TO QUOTE: . ANSWER - IF THE INCOME TAX OFFICER HAS ALREADY FOUND MATERIAL TO SHOW THAT THERE HAS BEEN CONCEALMENT, T HAT WOULD 3 MEAN THE DEPARTMENT HAS DETECTED THE CONCEALMENT. I F THE INCOME TAX OFFICER ONLY HAD PRIMA FACIE BELIEF, THA T WOULD NOT MEAN CONCEALMENT HAS BEEN DETECTED .... ' IN THE CASE OF M/S QUDSI INTERNATIONAL VS. ITO 1(3) , ITA NUMBER 633/LUC/07, ITAT, LUCKNOW DECIDED ON 20.03.2008 AND REPORTED AS 2009(13) MTC 622 (TRIB), THE HONORABLE ITAT HELD T HAT:- ' MERE RAISING OF QUERY BY THE AO DID NOT AMOUNT DE TECTION OF CONCEALMENT. IT CANNOT THEREFORE BE SAID THAT THE R EVISED RETURN WAS FILED AFTER THE DETECTION OF CONCEALMENT AND NO T VOLUNTARY. THE TERM 'DETECTION' ITSELF IMPLIES THE AO REACHED A CONCLUSION BUT THE QUERY RAISED BY ASSESSING OFFICER WAS ONLY FIRST STEP IN DETECTION OF CONCEALMENT. IF THE ASSESSEE VOLUNTARY REVISED THE RETURN, IT COULD NOT BE SAID THAT IT DOES NOT FULFI LL THE REQUIREMENTS OF SECTION 139(5). 4.1 IN THE CASE OF ADDL.CIT VS. PREM CHAND GARG (20 09) 123 TTJ (DEL.)TM 433, THE HONORABLE ITAT BENCH AFTER CONSID ERING THE JUDGMENT OF HONORABLE SUPREME COURT OF INDIA IN UN ION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS (2008) 219 CTR (SC) 617 HELD AS UNDER:- ' ... 18. AFTER THE FULL BENCH DECISION OF SUPREME COURT IN UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS ( 2008) 219 CTR (SC) 617 THERE IS NO REQUIREMENT OF MENS REA TO BE ESTABLISHED AND IT IS ONLY A CIVIL LIABILITY AND TH EREFORE KC BUILDERS & ANR. (SUPRA) DECISION OF THE SUPREME COU RT HOLDING THAT THE WORD 'CONCEALMENT' INHERENTLY INVOLVES THE MENTAL CONDITION OF THE ASSESSEE WITH REGARD TO THE DEFAUL T MAY NOT BE A GOOD LAW. HOWEVER, THAT DOES NOT MEAN THAT THE PROV ISION CONTAINED IN EXPLN.1 ARE GIVEN A COMPLETE GO BYE AN D ARE NOT APPLICABLE. THE SURRENDER OF THE AMOUNT AFTER RECEI PT OF THE QUESTIONNAIRE CANNOT LEAD TO AN INFERENCE THAT IT W AS NOT VOLUNTARY IN 00 ABSENCE OF ANY MATERIAL ON RECORD S UGGESTING IT TO BE BOGUS OR UNTRUE OR THE INCOME THE ASSESSEE BE FORE SUCH SURRENDER. 19. THE FACT WHETHER THERE IS CONCEALMENT OF INCOME OR WHETHER INACCURATE PARTICULAR THEREOF HAVE BEEN FURNISHED I S ESSENTIALLY A 4 QUESTION OF FACT. TO FIND OUT THAT OR TO DECIDE WHI CH, ALL THE ATTENDING CIRCUMSTANCES HAVE TO BE TAKEN INTO ACCOU NT. THE QUESTION IS AT WHAT POINT OF TIME THIS MATERIAL FAC T IS TO FOUND OUT. GENERALLY IT IS WITH REFERENCE TO THE RETURN O F INCOME AND AT THAT TIME IT IS TO BE SEEN WHETHER THERE WAS CONCEA LMENT OF INCOME FROM OR FURNISHING OF INACCURATE PARTICULARS OF THEREOF IN THE RETURN OF INCOME CHARGEABLE TO TAX. BUT THERE M AY BE CASES, WHERE AN INCOME IS NOT DECLARED IN THE RETURN OF TH E PARTICULAR OF INCOME SHOW INACCURATELY IN THE RETURN BUT ASSSE SSEE ON REALIZATION OF MISTAKE, OMISSION OR MISDEED RECTIFI ES THAT AND CORRECTS HIMSELF AND CLEANS HIS BREAST CAN HE STILL BE ACCUSED OF CONCEALMENT THOUGH IN THE RETURN THERE HAS BEEN OMI SSION? BY THE TIME THE AO TAKES UP THE ISSUE AND COME ACROSS THE INFORMATION IN HIS POSSESSION, IF THE ASSESSEE MAKE S UP THE DEFICIENCY AND OFFERS THE INCOME OR FURNISHED ACCUR ATE PARTICULARS HE, IN OUR OPINION, CANNOT BE HELD GUIL TY OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF HIS INCOME. ANY ACTION RECTIFIED RELATES BACK TO ORIGIN AL ACT AND TO THE DATE AND FILING THE RETURN. WHEN AO STARTS S CRUTINY OF THE RETURN AND INITIATES ASSESSMENT PROCEEDINGS THERE IS NOTHING CONCEALED AND THE INACCURACY, IF ANY, DISAP PEARED. THEREFORE, THE ASSESSEE CANNOT BE HELD GUILTY OF CO NCEALMENT .... ' 4.2 IN THE CASE OF CHEAP CYCLE STORES VS CIT, 281 I TR 166 THE HON'BLE ALLAHABAD COURT HAS HELD: PRIOR TO 27.09.1978, THE ORDER SHEET ENTRY SHOWS THAT ON 7.09.1978, NOTICE FIXING 27.09.1978, HAD BEEN ISSUE D. THEREAFTER, THE MATTER WAS GOT ADJOURNED ON TWO DA TES AND REVISED RETURN WAS FILED ON 26.10.1978. IT MAY BE MENTIONED HERE THAT THE APPLICANT HAVING FILED ORIGINAL RETUR N WITH THE STATUTORY PERIOD AS PROVIDED UNDER SECTION 139(1) O F THE ACT, IT WAS ENTITLED TO FILE A REVISED RETURN UNDER THE PROVISIONS OF SECTION 139(5) OF THE ACT. THUS, THE REVISED RETURN FILED UNDER SECTION 139(5) OF THE ACT WAS A VALID RETURN AND WAS TO BE TAKEN INTO CONSIDERATION. NO CONCEALMENT HAVING BEEN FOUND IN THE REVISED RETURN , THE PENALTY IN RESPECT OF THE INCOME DECLARED IN THE RE TURN ORIGINALLY FILED COULD NOT HAVE BEEN TAKEN AS THE 5 CONCEALMENT HAD NOT YET BEEN DETECTED BY THE ASSESS ING OFFICER UP TILL THE TIME REVISED RETURN WAS FILED. THE APPELLATE ASSISTANT COMMISSIONER HAD RIGHTLY CONSID ERED THE ORDER SHEET ENTRY DATED 27.9.1978, WHILE RECORD ING FINDING THAT TILL THEN NO CONCEALMENT HAD BEEN DETE CTED. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT THE TRIBUNAL WAS NOT JUSTIFIED IN UPHO LDING THAT THE APPLICANT HAD CONCEALED THE PARTICULARS OF THE TURN OVER AND REVISED RETURN WAS ONLY A COVER UP. WE ACCORDINGLY ANSWER THE QUESTION REFERRED TO US IN NEGATIVE I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. HOWEVER, THERE SHALL BE NO ORDER AS TO COSTS'. 4.3 IN THE CASE OF DCIT-CCII, LUDHIANA VS RAKESH KU MAR [2006] 157 TAXMAN-MAGAZINE 71, THE HONORABLE ITAT (CHD) H ELD: 'IT COULD NOT BE SAID THAT THE ASSESSEE HAS NOT TEN DERED ANY EXPLANATION BECAUSE THE EXPLANATION WAS GIVEN BY TH E ASSESSEE THAT THE DOCUMENTS RELATING TO AGRICULTURAL INCOME WERE LOST DURING THE COURSE OF SEARCH AND FOR THAT REASON THE INCOME EARLIER CLAIMED AS EXEMPT BEING AGRICULTURAL INCOME WAS SURRENDERED FOR TAXATION AND THE TAX WAS PAID, AND IT WAS ALSO THE EXPLANATION OF THE ASSESSEE THAT TO AVOID VEXAT IONS LITIGATION, THE AMOUNT WAS SURRENDERED. BONAFIDE OF THE ASSESSE E WAS PROVED FROM HIS ACTION OF DEPOSITING THE TAX ON THE SURRENDERED INCOME BEFORE RECEIVING ANY NOTICE U/S 148/143(2) F ROM A.O. OR GETTING ANY LETTER FROM AO. THEREFORE, IT COULD NOT BE SAID THAT THE ASSESSEE CONCEALED INCOME OR FURNISHED INACCURA TE PARTICULAR OF INCOME AND HAD NOT TENDERED A PLAUSIB LE EXPLANATION'. 4.4 IN THE CASE OF ALKA JAIN VS ACIT 2007 (10) MTC 943 (TRIB) THE HONORABLE LUCKNOW BENCH OF TRIBUNAL HAS HELD: . IN THE INSTANT CASE ALSO, NO CONCEALMENT WAS DE TECTED BY THE AO TILL THE TIME REVISED RETURN WAS FILED. RESP ECTFULLY FOLLOWING THE RATIO LAID DOWN BY HON'BLE JURISDICTI ONAL HIGH COURT IN THE CASE OF CHEAP CYCLE STORES (SUPRA), W E ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E NO PENALTY 6 U/S 271(1)(C) OF THE I.T.ACT, 1961 IS LEVIABLE.. 4.5 IN THE CASE OF DCIT VS. TARUN AGARWAL 2009 (13) MTC 831 (TRIB) WHERE THE HONORABLE LUCKNOW BENCH OF TRIBUNA L HAS HELD THAT: 'THE ASSESSEE HAS SURRENDERED THE AMOUNT BEFORE ANY SPECIFIC DETECTION OF UNDISCLOSED INCOME OR EVEN BEFORE THE ISSUE OF NOTICE. EVEN THOUGH A GENERAL ENQUIRY WAS GOING ON AND NOTICES HAVE BEEN ISSUED TO SOME OF HIS RELATIVES AND THE A MOUNT MIGHT HAVE BEEN SURRENDERED BECAUSE OF COMPULSION OF CIRC UMSTANCES, IT WAS NOT SUFFICIENT TO PENALIZE THE ASSESSEE AS T HE FACTUM OF DETECTION WAS NOT THERE.' IN THE CIT VS VED PRAKASH 269 ITR 255 THE HONORABL E PUNJAB & HARYANA HIGH COURT HELD THAT: 'ON THE BASIS OF RETURN FILED ON 10.11.1988, THE AS SESSMENT WAS COMPLETED UNDER SECTION 143(1) ON 18.01.1989. THERE AFTER, ON INVESTIGATIONS CONDUCTED BY THE ASSISTANT DIRECTOR (INV.), IT WAS FOUND THAT THE ASSESSEE HAD PURCHASED THE DRAFTS BU T THE SAME WERE REFLECTED IN THE BOOKS OF ACCOUNT ON SUBSEQUENT DAT ES. WHILE THE PROCEEDINGS BEFORE THE ASSISTANT DIRECTOR WERE ON, THE ASSESSEE FURNISHED ANOTHER RETURN ON 07.03.1991, SUO MOTO IN CLUDING THE PEAK INVESTMENT IN THE BANK DRAFTS TO THE ORIGINALL Y RETURNED INCOME. ASSESSMENT ON THIS RETURN WAS ALSO MADE UND ER SECTION 143(1) ON 11.03.1991. SUBSEQUENTLY THE ASSISTANT DI RECTOR FORWARDED HIS REPORT TO THE ASSESSING OFFICER, WHO ON THE BASIS OF THE SAID REPORT, ISSUED NOTICE UNDER SECTION 148. I N RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED ANOTHER RETURN ON 4 .2.1993 DECLARING AN INCOME WHICH WAS THE INCOME DECLARED BY HIM IN T HE EARLIER RETURN ON 7.3.1991. THIS RETURN WAS FILED UNDER PRO TEST AS THE ASSESSEE CLAIMED THAT NO INCOME HAD ESCAPED ASSESSM ENT. THE ASSESSEE'S OBJECTION WAS OVERRULED AND ASSESSMENT O N THE BASIS OF THIS RETURN WAS MADE U/S 143(3) AT THE INCOME OF RS .2,02,190/WHICH WAS THE INCOME DISCLOSED IN THE RETURN. WHILE COMPL ETING THE ASSESSMENT, THE ASSESSING OFFICER ALSO INITIATED PE NALTY PROCEEDINGS U/S 271(1)(C) FOR CONCEALMENT OF INCOME AND PENALTY WAS IMPOSED. SAME WAS DELETED BY THE COMMISSIONER (APPEALS) AND THE TRIBUNAL HELD THAT THE ENTIRE UNDISCLOSED INCOME IN RESPECT OF WHICH PENALTY HAS BEEN IMPOSED HAD BEEN DISCLOSED IN THE RETURN F ILED BY THE ASSESSEE VOLUNTARILY. ONCE THE ENTIRE AMOUNT STOOD ASSESSED, THERE 7 WAS NO SCOPE FOR ISSUE OF A FRESH NOTICE U/S 148 TO ASSESS THE SAME INCOME ONCE AGAIN. DELETION OF PENALTY BY LOWER APP ELLATE AUTHORITIES WAS, THEREFORE, JUSTIFIED.' 5. LOOKING TO THE FACTS OF THE CASE AND LEGAL PRO NOUNCEMENTS IN THE MATTER, I AM OF THE CONSIDERED VIEW THAT SIN CE THE ASSESSEE HAD OFFERED THE SAID GIFT AMOUNTS VOLUNTARILY AND BEF ORE DETECTION BY THE DEPARTMENT, THE PENALTY U/S 271(1)(C) CAN NOT SURVIVE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS AN ADMITTED FACT TH AT THE ASSESSEE HAD FILED A VALID REVISED RETURN OF INCOME ON 22.4.2002 WHEREIN HE HAD SUO MOTU DECLARED THE GIFT AMOUNTS AS HIS INCOME. IT IS ALS O AN ADMITTED FACT THAT THE INVESTIGATION WING OF THE DEPARTMENT ISSUED SUMMON S ONLY ON 31.7.2003. THUS, THERE WAS NO DETECTION OF CONCEALED INCOME PR IOR TO THE FILING OF THE REVISED RETURN BY THE ASSESSEE. IN OUR VIEW NO CON CEALMENT HAVING BEEN FOUND IN THE REVISED RETURN, THE PENALTY IN RESPECT OF THE INCOME DECLARED IN THE RETURN ORIGINALLY FILED COULD NOT HAVE BEEN TAK EN AS THE CONCEALMENT. IN OUR OPINION, THE ISSUE INVOLVED IS SQUARELY COVERE D IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HON' BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CHEAP CYCLE STORES VS.CIT (20 06) 281 ITR 166(ALL.), WHICH DECISION HAS BEEN MENTIONED BY THE LD. CIT(A) IN PARA 4.2 OF THE IMPUGNED ORDER. IN THE INSTANT CASE ALSO, NO CONCEA LMENT WAS DETECTED BY THE AO TILL THE TIME REVISED RETURN WAS FILED. THEREFOR E, RELYING ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CA SE OF CHEAP CYCLE STORES (SUPRA), WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, NO PENALTY UNDER SECTION 271(1)(C) IS LEVIABL E. WE ALSO ADD HERE THAT THE DECISIONS MENTIONED IN PARAS 4, 4.1, 4.2, 4.3, 4.4, 4.5 AND 4.6 OF THE IMPUGNED ORDER ARE IN FAVOUR OF THE ASSESSEE. IN OU R VIEW, THE LD.CIT(A) HAS PASSED A WELL-REASONED ORDER AFTER APPRECIATING TH E FACTS OF THE PRESENT CASE 8 AND ALSO THE SETTLED LEGAL POSITION AND THEREFORE, WE DO NOT SEE ANY VALID GROUND FOR INTERFERING WITH THE ORDER OF THE LD. CI T(A). ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS THE A PPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 7.1.11. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT JANUARY 7TH ,2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.