Daya Singh Bir, Kanpur V. Asstt. Commissioner of Income Tax-3, Kanpur

ITA 672/LKW/2013

• Counselvise Citation: 67223714 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-10-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 09-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Opportunity of being heard; Revised return
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.672/LKW/2013 ASSESSMENT YEAR:2002-03 DAYA SINGH BIR KANPUR V. ACIT-3 KANPUR PAN/PAN:AAMPB6311P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 21 10 2014 DATE OF PRONOUNCEMENT: 10 11 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF RS.97,000/- UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS DECIDED THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON MERIT IT WAS ALSO CONTENDED THAT THE ASSESSEE HAS FILED RETURN OF INCOME ON 23.12.2002 DECLARING TOTAL INCOME AT RS.3,43,802/- THOUGH THE RETURN WAS DUE ON 31.7.2002. THE ASSESSEE HAS FILED REVISED RETURN ON 18.9.2003 DECLARING TOTAL INCOME OF RS.6,43,802/- BY OFFERING TAX ON THE GIFT OF RS.3 LAKHS RECEIVED BY THE ASSESSEE. THEREAFTER NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 10.6.2004 AND THE INCOME WAS ASSESSED AT RS.6,58,802/- VIDE ASSESSMENT ORDER DATED 4.3.2005. SINCE THE ASSESSEE HIMSELF HAS :- 2 -: DECLARED ADDITIONAL INCOME BY OFFERING TAX ON THE GIFT RECEIVED, PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE LEVIED, AS NO DETECTION OF CONCEALED INCOME WAS MADE BY THE REVENUE AUTHORITIES AND ASSESSEE HAS SURRENDERED THE ADDITIONAL INCOME VOLUNTARILY BY FILING THE REVISED RETURN. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE FOLLOWING ORDERS OF THE TRIBUNAL:- 1. VIKRAM BHATIA VS. INCOME TAX OFFICER, I.T.A. NO. 779/LKW/2013, ORDER DATED 30.1.2014. 2. DCIT VS. K. BHANJI VANMALIDAS & CO., I.T.A. NO. 743/RJY/2010. 3. MANISH TRADING CO. VS. ACIT, I.T.A. NO. 646/LKW/2005, ORDER DATED 29.11.2011. 4. CIT VS. RISE LOCK FACTORY, 204 ITR 753 (ALLD) 5. S. GURBACHAN SINGH SALUJA, I.T.A. NO. 136/LKW/2011, ORDER DATED 18.9.2013. 6. AJAI KUMAR KANODIA HUF VS. INCOME TAX OFFICER 3(1), KANPUR, I.T.A. NO. 673/LKW/2006, ORDER DATED 7.11.2008. 3. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT UNDISPUTEDLY THE RETURN WAS DUE ON 31.10.2002 AND ASSESSEE HAS FILED RETURN OF INCOME ON 23.12.2003 DECLARING INCOME AT RS.3,43,802/-. THEREAFTER NO ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT AND THE ASSESSEE HIMSELF HAS REVISED HIS RETURN BY FILING SECOND RETURN ON 18.9.2003 DECLARING TOTAL INCOME AT RS.6,43,802/- WHICH INCLUDES RECEIPT OF GIFT OF RS.3 LAKHS AND OFFERED TAX THEREON. THEREAFTER NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 10.6.2004 AND ASSESSMENT WAS COMPLETED AT :- 3 -: RS.6,58,802/- VIDE ASSESSMENT ORDER DATED 4.3.2005. FROM THE SEQUENCE OF EVENTS, IT IS QUITE OBVIOUS THAT THE ASSESSEE HIMSELF HAS FILED THE REVISED RETURN DECLARING ADDITIONAL INCOME OF RS.3 LAKHS ON ACCOUNT OF RECEIPT OF GIFT BEFORE ANY DETECTION OF THE SAID RECEIPT OF GIFT BY THE REVENUE AUTHORITIES. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS SURRENDERED ADDITIONAL INCOME WHEN HE WAS PUSHED TO THE WALL BY MAKING NECESSARY ENQUIRIES OR INVESTIGATION BY THE REVENUE AUTHORITIES. IT IS A CASE OF VOLUNTARY SURRENDER OF ADDITIONAL INCOME BY THE ASSESSEE. THEREFORE, PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT LEVIABLE. WE ACCORDINGLY DELETE THE SAME AFTER SETTING ASIDE THE ORDER OF THE LD. CIT(A). 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH NOVEMBER, 2014 JJ:3010 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR