Shri Rajesh Kumar Agarwal, Kanpur V. DCIT-II, Kanpur

ITA 554/LKW/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6539 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-05-2014
• Assessment Year: misc
• Appeal Filed On: 23-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Search and seizure
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 554/LKW/2011 ASSESSMENT YEAR: 2004 - 05 SHRI. RAJESH KUMAR AGARWAL 43, CHAMANLAL MARKET GUMTI NO.5, KANPUR V. DY. CIT - II KANPUR PAN: AALPA8243Q (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 22 0 5 2014 DATE OF PRONOUNCEMENT: 25 0 6 2014 O R D E R PER SUNI L KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF RS.75,931/ - LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). 2 . THE FACTS IN BRIEF BORNE OUT FROM THE ORDERS OF THE AUTHORITIES BELOW ARE THAT A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN SHIKHAR GUPTA GROUP OF CASES. ASSESSMENT IN THE CASE OF THE ASSESSEE WAS RE - OPENED UNDER SECTION 147 OF THE ACT AND IN RESPONSE TO NOTICE , THE ASSESSEE FIL ED HIS RETURN OF INCOME DECLARING THE TOTAL INCOME AT RS.2,51,590/ - . ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.5,80,730/ - B Y MAKING THE IMPUGNED ADDITION ON ACCOUNT OF COMMISSION INCOME OF CONSIGNMENT BUSINESS @ 4% INSTEAD OF @1% APPLIED BY THE ASS ESSEE. BESIDES, PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : ASSESSEE HAS ALSO SURRENDERED UNDISCLOSED INVESTMENT IN JEWELLERY AT RS.1,34,700/ - . 3 . AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) IN QUANTUM AND THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF COM MISSION ON CONSIGNMENT BUSINESS AND RESTRICTED THE COMMISSION AT 2% INSTEAD OF 4% APPLIED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS.75,931/ - ON THE ADDITION SUSTAINED BY THE LD. CIT(A) IN THIS REGARD , AGAINST WHICH AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A), BUT DID NOT FIND FAVOUR WITH HIM. 4 . NOW THE ASSESSEE IS BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE ADDITION WAS BASED ON THE ESTIMATION MADE BY THE LD. CIT(A) AND FOR ADDITION ON ACCOUNT OF ESTIMATI ON , IT CANNOT BE PRESUMED THAT THE ASSESSEE HAS CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME, THEREFORE, PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT CALLED FOR. 5 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 6 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD , WE FIND THAT UNDISPUTEDLY PENALTY WAS LEVIED ON ACCOUNT OF ESTIMATION OF COMMISSION INCOME WHICH WAS EARLIER ESTIMATED @ 4% BY THE AS SESSING OFFICER AND LATER ON REDUCED TO 2% BY THE LD. CIT(A). THE ASSESSEE HAS DECLARED COMMISSION @ 1% WHICH WAS NOT ACCEPTED BY THE REVENUE AUTHORITIES. THEREFORE, ADDITION WAS MADE ON THE BASIS OF ESTIMATION, FOR WHICH PENALTY UNDER SECTION 271(1)(C) OF THE ACT SHOULD NOT BE LEVIED. SINCE THE ASSESSEE HIM SELF HAS DECLARED RECEIPT OF COMMISSION THOUGH AT A LOWER RATE, BUT IT CANNOT BE SAID THAT HE HAS EITHER CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THEREFORE, WE FIND NO MERI T IN THE PENALTY LEVIED BY THE REVENUE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : AUTHORITIES. WE ACCORDINGLY DELETE THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). 7 . IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.6.2014 . SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH JUNE , 2014 JJ: 1906 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )