Smt. Divya Gulati, Chandigarh V. DCIT, Chandigarh

ITA 805/CHANDI/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9202 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 30-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Search and seizure
• Section: 153A; 132

Judgement Text

INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 805 /CHD/ 2015 ASSESSMENT YEAR : 2008 - 09 SMT. DIVYA GULATI, HOUSE NO. 1272, SECTOR - 18C, CHANDIGARH PAN:ALXPG9668A VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - II, CHANDIGARH (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SUDHIR SEHGAL REVENUE BY: SH. MANJIT SINGH, DATE OF HEARING 08/08/2016 DATE OF PRONOUNCEMENT 10 /08/2016 O R D E R PER PRASHANT MAHARISHI , A . M . 1 . THE ABOVE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31.08.2015 PASSED BY THE LD CIT(A) - 3, GURGAON , WHEREIN THE SOLITARY GROUNDS OF APPEAL HAVE BEEN RAISED THAT HE ERRED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT OF RS. 350 4 / - FOR THE ASSESSMENT YEAR 2008 - 09 . THE PENALTY WAS LEVIED BY T HE LD AO VIDE HIS ORDER DATED 31 .05.201 3. 2 . THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT WAS CARRIED ON 30 TH JUNE 2010 IN GULATI GROUP CASES. THE ASSESSEE BEING ONE OF THE MEMBERS OF THAT GROUP, ASSESSMENT WAS COMPLETED U/S 153A READ WITH SECTION 143 (3) OF THE ACT AT A TOTAL AMOUNT OF RS. 275530 / - VIDE ORDER DATED 30.11.2012. THE AMOUNT OF ADDITION WAS RS. 35034 / - WERE RECEIVED ON ACCOUNT OF REDEMPTION OF MUTUAL FUND UNITS . IT WAS NOT OFFERED FOR INCOME TAX AND THEREFORE WAS ADDED TO THE INCOME UN DER SECTION 153A ORDER AND THEREFORE ON THAT SUM PENALTY SHOW CAUSE NOTICE WAS ISSUED. BEFORE THE AO IT WAS SUBMITTED THAT THE CAPITAL GAIN ON MUTUAL FUND HAS ARISEN BECAUSE OF SWITCH OVER OF FUNDS DONE BY THE FUND MANAGER AND IT WAS NOT IN THE PAGE 2 OF 3 KNOWLEDGE OF THE ASSESSEE, SO SAME WAS NOT OFFERED FOR TAXATION. THE ASSESSEE AGREED FOR THIS ADDITION. REGARDING SAVING BANKS ACCOUNTS ASSESSEE PLEADED OVERSIGHT. LD. ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND LEVIED THE PENALTY OF RS. 35034 / - . THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A) WHO IN TURN CONFIRMED THE SAME AND THEREFORE THE ASSESSEE IS IN APPEAL BEFORE US. 3 . BEFORE US THE LD AR SUBMITTED THE SAME ARGUMENT WHICH WAS RAISED BEFORE THE LD AO AS WELL AS BEFORE THE LD CIT(A). FUR THER THE LD AR STRESSED UPON THE ARGUMEN T WHICH ARE REPRODUCED AT PARA 8 OF THE ORDER OF THE LD CIT(A). 4 . THE LD DR SUBMITTED THAT EXPLANATION 5A OF SECTION 271(1)( C) CLEARLY ATTRACTS THE PENALTY IN THIS CASE AND THEREFORE THE AO AS WELL AS THE LD CIT(A) HAVE CONCURRENTLY UPHELD THE PENALTY. 5 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IN THIS CASE THE SEARCH WAS CONDUCTED ON 30 TH JUNE 2010 AND THEREFORE EXP LANATION 5A OF SECTION 271(1)(C) SQUARELY APPLICABLE WHICH PROVIDES FOR DEEMED CONCEALMENT OF THE INCOME AS UNDER: - EXPLANATION 5A. WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIM S THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF A CCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SU CH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB - SECTION (1) OF THIS SECTION, BE PAGE 3 OF 3 DEEMED TO HAVE CONCEAL ED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 6 . THE CASE OF THE ASSESSEE SQUARELY FALLS WITHIN THE ABOVE EXPLANATION AND THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITIES IN LEVYING PENALTY U /S 271(1)(C) OF THE ACT OF RS. 3504 / - . 7 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 0 /08/2016 . - S D / - - S D / - ( BHAVNESH SAINI ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 0 /08 / 2016 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, CHANDIGARH