DCIT CEN CIR 44, MUMBAI V. HAFEEZ S CONTRACTOR, MUMBAI

ITA 6415/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100729 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 13-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Keywords: Search and seizure
• Section: 153A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE HONBLE S/SHRI JOGINDER SINGH ( JM ) , AND B.R.BASKARAN (AM) , . . , ./ I. T.A. NO . 6415 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 09 - 10 ) DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 44, ROOM NO.656, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. MR.HAFEEZ S CONTRACTOR, 29, BANK STREET , SONAWALA BUILDIG, MUM BAI - 400023. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AADPC1634R / REVENUE BY SHRI JEETENDRA KUMAR / ASSESSEE BY SHRI NEELKANTH KHANDELWAL / DATE OF HEARING : 7.7 . 201 5 / DATE OF PRONOUNCEMENT: 2.9 . 201 5 / O R D E R PER B.R.BASKARAN, AM: THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 26.08.2013 PASSED BY THE L D. CIT(A) - 38 AND IT RELATES TO THE ASSESSMENT YEAR 2009 - 10. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN DELETING THE PENALTY OF RS. . 5 , 05 , 256 / - LEVIED BY THE AO UNDER SECTION 271AAA OF THE ACT. ITA NO. 6415 / MUM/20 1 3 2 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE WAS SUBJECTED TO SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT ON 22.1.2009. IN THE SWORN STATEMENT TAKEN FROM THE ASSESSEE UNDER SECTION 132(4) OF THE ACT , THE ASSESSEE HAD DISCLOSED A SUM OF RS. 50 LAKHS AS HIS UNDISCLO SED INCOME FOR THE YEAR UNDER CONSIDERATIO N. THE DECLARATION WAS INTENDED TO COVER THE DISCREPANCY, IF ANY, THAT MAY BE NOTICED FROM THE SEIZED MATERIAL S . THE ASSESSEE FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION U/S 153A OF THE ACT, WHEREIN HE DULY DISCLOSED THE ABOVE SAID SUM OF ` .50 LAKHS . THE AO ALSO COMPLETED THE ASSESSMENT BY MAKING A SMALL ADDITION OF RS . 52,560/ - . LATER THE AO INITIATED THE PENALTY PROCEEDINGS U/S 271AAA OF THE ACT . THE ASSESSEE SOUGHT IMMUNITY FROM THE PENALTY UNDER S UB - SECTION(2) OF SECTION 271AAA BY S TAT ING THAT HE HAS COMPLIED WITH ALL THE CONDITIONS PRESCRIBED IN THAT SECTION. HOWEVER, THE AO TOOK THE VIEW THAT THE ASSESSEE HAS NOT EXPLAINED ABOUT THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BY HIM AND ACCORDINGLY HELD THAT THE ASSESSEE HAS NOT COMPLIED WITH ALL THE CONDIT IONS STATED IN SECTION 271AAA(2) OF THE ACT. A CCORDINGLY THE AO LEVIED A PENALTY OF RS .5,05,256/ - U/S 271AAA OF THE ACT. THE LD. CIT(A) DELETED THE PENALTY BY FOLLOWING THE DECISION OF NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF CONCRETE DEVELOPERS V/S ACIT IN ITA NO.381/NAG/2012 DATED 20.3.2013. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 4. THE PROVISIONS OF SUB - SECTION S (1) AND (2) OF SECTION 271AAA OF THE ACT RE ADS AS UNDER : 271AAA. PENALTY WHERE SEARCH HAS BEEN INITIATED. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER TH E 1ST DAY OF JUNE, 2007, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE ITA NO. 6415 / MUM/20 1 3 3 BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB - SECTION (1) SH ALL APPLY IF THE ASSESSEE, ( I ) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER SUB - SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; ( II ) SUBSTANTIATES THE MA NNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND ( III ) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. ACCORDING TO THE ASSESSEE, HE HAS COMPLIED WITH ALL THE THREE CONDITIONS SPECIFIED IN SUB - SECTION 2 O F SECTION 271AAA OF THE ACT . WHEREAS, THE AO HAS STATED THAT THE ASSESSEE HAS NOT SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BY THE ASSESSEE . WE NOTICE THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE NAGPUR BENCH OF THE TRIBUNAL I N THE CASE OF CONCRETE DEVELOPERS ( SUPRA), WHEREIN THE TRIBUNAL NOTICED THAT THE ASSESSEE HAD DECLARED UNDISCLOSED INCOME UNDER THE HEAD BUSINESS AND THE AO HAD ALSO ACCEPTED THE SAME. UNDER THE S E SET OF FACTS, THE TRIBUNAL HELD THAT IT CAN NOT BE SAID T HAT THE ASSESSEE HAD NOT OR COULD NOT SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BY IT. ACCORDINGLY, THE TRIBUNAL DELETED THE PENALTY LEVIED U/S 271AAA BY HOLDING THAT THE ASSES S EES CASE FALLS UNDER SECTION 271AAA OF THE ACT. 5. IN THE INSTANT CASE ALSO , THE LD CIT(A) HAS NOTICED THAT THE ASSESSEE HAS OFFERED THE ADDITIONAL INCOME UNDER THE HEAD BUSINESS AND THE SAME HAS ALSO BEEN ACCEPTED BY THE ASSESSING OFFICER. ACCORDINGLY, THE LD CIT(A) HAS DELETED THE IMPUGNED PENALTY BY FOLLOWING THE DECISION RENDERED IN THE CASE OF CONCRETE DEVELOPERS (SUPRA). SINCE THE FACTS PREVAILING IN THE INSTANT CASE AND THE FACTS RELATING TO CONCRETE DEVELOPERS (SUPRA) ARE IDENTICAL IN NATURE AND SINCE THE LD CIT(A) HAS FOLLOWED THE ITA NO. 6415 / MUM/20 1 3 4 DECISION RENDERED BY THE CO - ORDINATE BENCH OF TRIBUNAL IN THE ABOVE CITED CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS ORDER. 6 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 2 ND S EPT 2015. 2 ND SEPT , 2015 S D SD ( / JOGINDER SINGH ) ( . . , / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 2 ND SEPT , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, T RUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI