Shree Ram Corporation, Ahmedabad V. The Dy. CIT, Central Circle-2(1), Ahmedabad

ITA 726/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89539 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 31-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: S N SOPARKAR
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S.S. GODARA , JUDICIAL MEMBER SHREE RAM CORPORATION, 522/1/1, SHREE RAM RESIDENCY, OPP. CENTRAL WARESHOUSE, N.H. NO. 8, NAROL, AHMEDABAD - 382405 PAN: ABRFS1955L (APPELLANT) VS DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 2(1), AHMEDABAD (R ESPONDENT) ASSESSEE BY: S H RI S.N. SOPARKAR , A.R. REVENUE BY: S H RI DINESH SINGH , SR. D.R. DATE OF HEARING : 29 - 04 - 2 015 DATE OF PRONOUNCEMENT : 09 - 06 - 2 015 / ORDER P ER : S.S. GODARA , JUDICIAL MEMBER : - THIS ASSE SSEE S APPEAL ARISES AGAINST ORDER OF THE CIT(A) - X II, AHMEDABAD IN CASE OF CIT(A) - 12/552/DCIT/CC - 2(1)/13 - 14 DATED 17 - 02 - 2015 , CONFIRMING PENALTY OF RS. 77,25,000/ - , IN PROCEEDINGS U/S. 271(1)(C ) OF THE ACT. 2. FACTS OF THE CASE ARE IN A NARROW CO MPASS . THE ASSESSEE - COMPANY BUILDS AND DEVELOPS HO USING PROJECTS. THE DEPARTMENT CARRIED I T A NO . 726 / A HD/20 15 A SSESSMENT YEAR 200 11 - 12 I.T.A NO. 726 /AHD/20 15 A.Y. 2011 - 12 PA GE NO SHREE RAM CORPORATION VS. DCIT 2 OUT A SEARCH IN CASE OF ITS PARTNER , SHRI PARESH M GAJE RA. HE WOULD DECLARE ON - MONEY RECEIPTS OF RS. 2.5 C RORE S IN RESPECT OF 2 9 5 FLATS @ RS. 1000 PER SQUARE FEET COLLECTED IN THE RELEVANT PREVIOUS YEAR AT THE ASSESSEE S BEHEST. THE ASSESSEE FILED ITS RETURN ON 30 - 09 - 2011 DECLARING INCOME OF RS. 2,74,86,150/ - INCLUDING THE AFO RESAID ON MONEY RECEIPTS. THE AS SESSING O FFICER COMPLETED A REGULAR ASSESSMENT ON 15 - 03 - 2013 ACCEPTING THE RETURNED INCOME. HE ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AGAINST THE ASSESSEE ALLE GING CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME I N RES PECT OF THE AFORESAID ON - MONEY RECEIPT S . 3. T HE ASSESSEE STRONGLY PRESSED F OR DROPPING SECTION 271(1)(C) NOTICE IN PENALTY PROCEEDINGS . THE ASSESSING OFFICER DID NOT AGREE. HE PASSED PENALTY ORDER ON 23 - 09 - 2013 INTERALIA HOLDING THAT THE ASSESSEE S DECL ARATION OF ON - MONEY RECEIPT W AS ONLY CONSEQUENT TO THE AFORESAID SEARCH, IT S CASE WAS NOT COVERED BY SEC TION 271(1)(C) EXPLANATION 5 IMMUNITY; I T HAD NOT QUANTI FIED SEPARATELY THE IMPUGNED ON - MONEY RECEIPT S FROM THE INDIVIDUAL MEMBERS AND ITS ACTION AMOUN TED TO CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. HE ACCORDINGLY LEVIED MINIMUM PENALTY OF RS. 77,25,000/ - IN QUESTION QUA THE ABOVE - STATED ON - MONEY RECEIPT S OF RS. 2.5 CRORES. THE CIT(A) HAS ALSO CONFIRMED THE SAID PENALTY . THIS LEAVES THE ASSESSEE AGGRIEVED. 4. WE HAVE HEARD BOTH SIDES AND PERUSED THE CASE FILE. THERE IS NO FACTUAL DISPU TE INVOLVED IN THIS CASE. THE R EVENUE SEEKS TO TREAT THE IMPUGNED ON - MONEY RECEIPTS OF RS. 2.5 CRORES ADMITTED IN THE COURSE OF SEARCH AND DECLARED IN THE RETURN (SUPRA) AS CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. WE REITERATE THAT THE SEARCH IS DATED 06 - 01 - 2011 I.E. WITHIN THE RELEVANT ACCOUNTING PERIOD. AND THE ASSESSEE S I.T.A NO. 726 /AHD/20 15 A.Y. 2011 - 12 PA GE NO SHREE RAM CORPORATION VS. DCIT 3 RETURN HAS COME ON 13 - 09 - 2011. THE SAME ST ANDS A CCEPTED IN THE ASSESSMENT FRAMED T HEREI N. IN THESE FACTS, WE QUOTE LATEST DECISION OF H ON BLE JURISDICTIONAL HIGH COURT IN KIRIT DA YABHAI PATEL VS. ACIT CASE TAX A PPEAL NO. 1181 OF 2010 WITH 1182 OF 2010 TO 1185 OF 2010 DECIDED ON 03 - 12 - 2014 HOLDIN G THAT IF NO ADDITION IS MADE IN FURTHERANCE TO THE POST SEARCH RETURN , THE SAME HAS TO BE TREATED AS THE ONE FILED U/ S. 139 AND NO PENALTY IS LEVIABLE IN SUCH A CASE. WE DEEM IT PROPER TO OBSERVE THAT THE SECTION 271(1)(C) EXPLANATION 5 A INSTEAD OF EXPLA NATION 5 APPLIES TO A SEARCH CONDUCTED ON OR AFTER 01 - 06 - 200 7. BE THAT AS IT MAY, THE ASSESSE E HAS FILED RETURN ADMITTING ON - MONEY RECEIPTS AS ITS INCOME. THE DEEMING FICTION OF CONCEALMENT STIPULATED THEREIN IS NOT ATTR ACTED ACCORDING LY . WE FOLLOW THE H ON BLE J URISDICTIONAL HIGH COURT S VIEW AND DELETE THE IMPUGNED PENALTY. THE ASS ESS EE S ARGUMENT S ON MERITS SUCCEED. 5. IN THE RESULT, ASSESSEE S APPEAL IS ALLOWED. ORDER PRONO UNCED IN THE OPEN COURT ON 09 - 0 6 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S.S.GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHME DABAD : DATED 09 /0 6 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,