Smt Sarita Mohta, Kolkata V. DCIT, CC-XII, KOLKATA, Kolkata

ITA 622/KOL/2008

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4992 (ITAT-KOLKATA)
• Duration Of Justice: 7 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 25-04-2008
• Court: TRIBUNAL
• Assessee Lawyers: PRADYUT CHAUDHURI ACA
• Keywords: Search and seizure
• Section: 153A; 132

Judgement Text

I.T.A. NO. 622/KOL./2008 ASSESSMENT YEAR: 2003-2004 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 622/KOL/ 2008 ASSESSMENT YEAR: 2003-2004 SMT. SARITA MOHTA,................................. ................................APPELLANT P-31A, KALAKAR STREET, KOLKATA-700 007 [PAN: ADVTM 8078 Q] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ............RESPONDENT CENTRAL CIRCLE-XII, KOLKATA, 18, RABINDRA SARANI, KOLKATA-700 001 APPEARANCES BY: SHRI PRADYUT CHAUDHURI, ACA, FOR THE ASSESSEE SHRI RAJAT SUBHRA BISWAS, CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 23, 2016 DATE OF PRONOUNCING THE ORDER : MARCH 04, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I I, KOLKATA DATED 13.03.2008 FOR THE ASSESSMENT YEAR 2003-04, WHEREBY HE PARTLY SUSTAINED THE PENALTY OF RS.1,26,305/- IMPOSED BY THE ASSESSI NG OFFICER UNDER SECTION 271(1)(C). 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED, INTER ALIA, IN THE BUSINESS OF TRADING OF EMBROIDERY SAREES. A SEARCH AND SEIZURE ACTION UNDER SECTION 132 WAS CONDUCTED IN H ER CASE ON 02.09.2004. CONSEQUENTLY NOTICE UNDER SECTION 153A WAS ISSUED BY THE ASSESSING OFFICER, IN RESPONSE TO WHICH THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 13 .06.2006 DECLARING I.T.A. NO. 622/KOL./2008 ASSESSMENT YEAR: 2003-2004 PAGE 2 OF 3 TOTAL INCOME OF RS.5,01,420/- AS AGAINST THE INCOME OF RS.2,20,736/- DECLARED IN THE RETURN ORIGINALLY FILED. IN THE SAI D RETURN, ADDITIONAL INCOME OF RS.1,50,000/- WAS DECLARED BY THE ASSESSE E ON ACCOUNT OF UNDISCLOSED STOCK OF SAREES LYING WITH JOB WORKERS AS ON 31.03.2003, AS SURRENDERED DURING THE COURSE OF SEARCH. FURTHER, A SUM OF RS.1,30,679/- WAS ALSO OFFERED TO TAX BY THE ASSESSEE BEING NET P ROFIT AT 17% ON THE UNDISCLOSED SALES AS DECLARED DURING THE COURSE OF SEARCH. IN THE ASSESSMENT COMPLETED UNDER SECTION 153A/143(3) VIDE AN ORDER DATED 05.12.2006, THE TOTAL INCOME AS DECLARED BY THE ASS ESESE AT RS.5,01,420/- WAS ACCEPTED BY THE ASSESSING OFFICER. HE ALSO INIT IATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AND SINCE THE E XPLANATION OFFERED BY THE ASSESSEE IN RESPONSE TO THE SHOW-CAUSE NOTICE I SSUED BY HIM WAS NOT FOUND SATISFACTORY, THE ASSESSING OFFICER IMPOSED A PENALTY OF RS.1,26,305/- UNDER SECTION 271(1)(C) BEING 150% OF THE TAX ALLEGEDLY SOUGHT TO BE EVADED BY THE ASSESSEE ON THE ADDITION AL INCOME OF RS.2,80,679/- OFFERED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A AS A RESULT OF SEARCH. 3. ON APPEAL, THE LD. CIT(APPEALS) UPHELD THE ACTIO N OF THE ASSESSING OFFICER IN IMPOSING PENALTY UNDER SECTION 271(1)(C) HOLDING THAT THE ASSESSEE WAS NOT ENTITLED FOR THE IMMUNITY UNDER EX PLANATION 5 TO SECTION 271(1)(C). HE, HOWEVER, RESTRICTED THE PENALTY IMPO SED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) TO THE EXTENT OF 10 0% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. AGGRIEVED BY THE ORDER O F THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE T RIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, THE ISSUE INVOLV ED IN THIS APPEAL OF THE ASSESESE IS SQUARELY COVERED IN FAVOUR OF THE ASSES SEE BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS.- BRIJENDRA GUPTA REPORTED IN 234 TAXMAN 51, WHEREIN IT WAS HELD THAT THE ADDITIONAL INCOME OFFERED UNDER SECTION 132(2) AND ASSESSED IN COME UNDER SECTION I.T.A. NO. 622/KOL./2008 ASSESSMENT YEAR: 2003-2004 PAGE 3 OF 3 153A BEING IDENTICAL WITH THE INCOME RETURNED BY TH E ASSESSEE UNDER SECTION 153A, NO PENALTY UNDER SECTION 271(1)(C) WA S LEVIABLE. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WHICH IS SQUARELY APPLICABLE IN THE PRESENT CASE, WE CANCEL THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND PARTLY SUSTAINED BY THE LD. CIT(APPEALS) UNDER SECTION 271(1)(C) AND ALLOW THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 04, 201 6. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 4 TH DAY OF MARCH, 2016 COPIES TO : (1) SMT. SARITA MOHTA, P-31A, KALAKAR STREET, KOLKATA-700 007 (2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XII, KOLKATA, 18, RABINDRA SARANI, KOLKATA-700 001 (3) COMMISSIONER OF INCOME-TAX (APPEALS),CENTRAL-I I, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.