The ACIT, Cent Cir-., Vijayawada V. Sri KYN Punna Rao, Guntur

ITA 6/VIZ/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2822 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 03-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Section: 271(1)(c); 143(3); 153A

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.6/VIZAG/2008 ASSESSMENT YEAR:2002-03 ACIT, CENTRAL CIRCLE, VIJAYAWADA VS. KYN PUNNA RAO, GUNTUR (APPELLANT) (RESPONDENT) PAN NO. ADSPK 7736 O APPELLANT BY: SHRI R.K. SINGH, DR, RESPONDENT BY: NONE ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE O RDER DATED 25.10.2007 PASSED BY THE LD CIT (A)-I, HYDERABAD AND IT RELATES TO THE ASSESSMENT YEAR 2002-03. 2. THE PENALTY OF RS.2,43,930/- LEVIED U/S 271(1)C OF THE ACT, HAVING BEEN DELETED BY THE LD CIT (A), THE REVENUE IS IN APPEAL BEFORE US. 3. THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS. WE H AVE ALSO HEARD THE LD DR IN THIS REGARD. THE FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINESS NAMED M/S KONARK BA KERY AT GUNTUR. CONSEQUENT TO THE SEARCH OPERATION, THE ASSESSMENT FOR THE YEA R UNDER CONSIDERATION WAS COMPLETED U/S 153A OF THE ACT. DURING THE COURSE OF SEARCH THE ASSESSEE ADMITTED GROSS PROFIT ON THE SUB PROCEEDS SALE OF R S.67,800/- AND ALSO A SUM OF RS.6,67,300/- RELATING TO FIXED DEPOSITS MADE IN VA RIOUS BANKS AS HIS UNDISCLOSED INCOME IN THE SWORN STATEMENT TAKEN FROM HIM U/S 13 2(4) OF THE ACT. THE PAGE 2 OF 3 ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 153A OF THE ACT DETERMINING THE TOTAL INCOME AT RS.8,73,310/-. SUBSEQUENTLY THE ASS ESSING OFFICER INITIATED PENALTY PROCEEDINGS AND LEVIED A MINIMUM PENALTY OF RS.2,43,930/-. BEFORE THE AO THE ASSESSEE SOUGHT IMMUNITY FROM PENALTY PROCEE DING AS PER THE PROVISIONS OF EXPLANATION 5 TO SEC.271(1)(C) OF THE ACT, BY PL ACING RELIANCE ON THE FOLLOWING CASE LAW: I) C.I.T. V. S.D.V. CHANDRU (2004) 266 ITR 175 (M AD.) II) C.I.T. V. RADHA KRISHNA GOEL (2005) 278 ITR 45 4 (ALL.) III) C.I.T. V. MISHRIMAL SONI (2007) 2189 ITR 77 (RAJ.) THE AO REJECTED THE PLEA OF THE ASSESSEE. IN THE AP PEAL FILED BY THE ASSESSEE, THE LD CIT (A) IN HIS COMMON ORDER RELATING TO THE ASSESSMENT YEARS 2000-01 TO 2003-04 DELETED THE PENALTY LEVIED IN ALL THE 4 YEA RS. AGGRIEVED, THE REVENUE FILED APPEALS BEFORE ITAT. THE APPEALS RELATING TO THE ASSESSMENT YEAR 2000-01, 2001-02 AND 2003-04 WERE DISPOSED OF BY THE SMC BEN CH OF THIS TRIBUNAL ON 24.03.2008. THE PRESENT APPEAL PERTAINS TO THE ASS ESSMENT YEAR 2002-03. 4. IN THE APPEAL RELATING TO THE ASSESSMENT YEARS 20 00-01, 2001-02 AND 2003-04, THE SMC BENCH OF THIS TRIBUNAL DISMISSED T HE THREE APPEALS ON 2 COUNTS VIZ., (A) THE REVENUE EFFECT IN THESE APPEALS IS LE SS THAN THE MONETARY LIMIT FIXED BY THE CBDT AND (B) THE ASSESSEE IS ENTITLED TO THE BENEFIT PROVIDED UNDER EXPLANATION 5 TO SEC. 271(1)(C) OF THE ACT. 5. WE HAVE GONE THROUGH THE WRITTEN SUBMISSIONS FIL ED BY THE ASSESSEE AND ALSO THE ORDER OF THE SMC BENCH. IN THE SAID ORDER THE SMC BENCH HAS CLEARLY OBSERVED THAT THE CASE LAW RELIED UPON BY THE LD CI T (A) FOR GRANTING RELIEF TO THE ASSESSEE COULD NOT BE DISTINGUISHED BY THE LD D R OR NO CASE LAW WHEREIN A CONTRARY VIEW WAS TAKEN COULD BE PLACED BEFORE THE TRIBUNAL FOR ITS CONSIDERATION. THE SMC BENCH WAS ALSO TOOK THE VIEW THAT THE BENEFIT PROVIDED UNDER EXPLANATION 5 TO SEC.271(1)(C) OF THE ACT WAS CORRECTLY EXTENDED BY THE LD CIT (A) TO THE ASSESSEE IN THE CIRCUMSTANCES OF THE CASE. IT IS NOT IN DISPUTE PAGE 3 OF 3 THAT THE FACTS AND CIRCUMSTANCES OF THE ORDER UNDER CONSIDERATION ARE IDENTICAL WITH THE APPEALS DEALT WITH BY THE TRIBUNAL. HENCE WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW. ACCORDINGLY WE UPHOLD THE OR DER OF THE LD CIT (A). 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON 11/12/2009 SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 11 TH DECEMBER, 2009. COPY TO 1 THE ACIT, CENTRAL CIRCLE, GUNTUR. 2 SHRI K.Y.N. PUNNA RAO, FLAT NO.105, MAYURI KRISHN A APARTMENTS, 1 ST LINE, CHANDRAMAULI NAGAR, GUNTUR 3 4 5 6. THE CIT(A)-I, HYDERABAD THE CIT (CENTRAL), HYDERABAD THE DR, ITAT, VISAKHAPATNAM GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM