SHREE CHAND SAINI, Jaipur V. ITO, Alwar

ITA 819/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5284 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 30-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN DCIT DHK
• Keywords: Opportunity of being heard; Revised return
• Section: 143(3); 133A; 139(5); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI T.R.MEENA, AM VK;DJ VIHY LA -@ ITA NO. 819/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 SHREE CHAND SAINI, 9/120, UIT, BHIWADI, TEHSIL, TIJARA, ALWAR. CUKE VS. ITO, WARD 2(2), ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AYEPS 4998 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.K. JAIN (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/04/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/05/2016. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19/10/2015 PASSED BY THE LD. CIT(A), ALWAR FOR THE AS SESSMENT YEAR 2006-07 WHEREIN THE ASSESSEE RAISED SOLE GROUND AS UNDER: 1. THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF A.O. IN LEVYING PENALTY OF RS. 5,00,000/- U/S 271(1)(C) OF THE IT ACT, 1961. ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 2 2. IN THIS CASE, THE ASSESSEE FILED RETURN ON 13/8/ 2007, WHICH WAS REVISED ON 29/1/2008 FOR A.Y. 2006-07. THE CASE WAS P ROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 05/2/2008 WITHOUT REG ULARIZATION OF RETURN U/S 148 OF THE ACT AS ORIGINAL RETURN WAS BEL ATED, WHICH CANNOT BE REVISED U/S 139(5) OF THE ACT. 2.1 THERE WAS A SURVEY U/S 133A OF THE ACT ON 29/8/20 07. THE LD ASSESSING OFFICER OBSERVED THAT CERTAIN INCRIMINATI NG DOCUMENTS WERE FOUND AND CONFRONTED. THE ASSESSEE ADMITTED ADDITION AL INCOME U/S 133A AT RS. 15 LACS. THE LD ASSESSING OFFICER INITIATED P ENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PART ICULARS OF INCOME AND CONCEALMENT OF INCOME. THE ASSESSEE HAD CHALLENGED T HE MATTER BEFORE THE LD CIT(A), WHO HAD DISMISSED THE ASSESSEES APPE AL VIDE ORDER DATED 12/12/2012. 2.2 THE LD ASSESSING OFFICER BEFORE IMPOSING PENALTY , HAD GIVEN REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSEE REQUESTED TO KEEP THE PENALTY PROCEEDINGS IN ABEYAN CE TILL DISPOSAL OF APPEAL VIDE LETTER DATED 24/6/2009 BUT WHEN THE LD CIT(A) HAD DISMISSED THE ASSESSEES APPEAL, HE AGAIN GAVE REASONABLE OPP ORTUNITY OF BEING ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 3 HEARD TO IMPOSE THE PENALTY ON CONCEALED INCOME FUR NISHED IN THE RETURN. THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER DURING THE PENALTY PROCEEDINGS THAT THE ASSESSEE FILED RETURN ON 13/8/ 2007 AND REVISED RETURN WAS FILED ON 29/1/2008 WHEREAS DUE DATE OF RE TURN WAS 31/7/2006. IT IS CLAIMED THAT SINCE THE ORIGINAL RE TURN HAS BEEN FILED BEFORE DUE DATE, HIS REVISED RETURN AS ON 29/1/2008 IS VALID. ONCE THE REVISED RETURN IS FILED, THE ORIGINAL RETURN MUST B E TAKEN TO HAVE WITHDRAWN AND SUBSTITUTED BY THE REVISED RETURN. IT I S SUBMITTED THAT FOR IMPOSING PENALTY U/S 271(1)(C), THERE MUST BE CONCE ALMENT OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAD M ADE FULL DISCLOSURE IN REVISED INCOME TAX RETURN AND OFFERED THE SURRENDER ED AMOUNT FOR THE PURPOSE OF TAX AND THE ASSESSEE HAD COOPERATED WITH THE DEPARTMENT AND PAID THE TAX ON RS. 15 LACS. THERE IS NO CONCEA LMENT ON THE PART OF THE ASSESSEE. THERE WAS NO MALAFIDE INTENTION TO EVAD E THE TAX. THE ASSESSEES EXPLANATION IS BONAFIDE. AFTER CONSIDERI NG THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THAT THE ASSESSING OF FICER MADE ASSESSMENT IN THIS CASE ON THE BASIS OF REVISED RETURN FILED B Y THE ASSESSEE. DURING THE SURVEY, THE ASSESSEE SURRENDERED RS. 15 LACS ON ACCOUNT OF UNRECORDED MARRIAGE EXPENSES AND INVESTMENT IN RENO VATION OF THE ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 4 HOUSE. THUS, HE IMPOSED MORE THAN 100% PENALTY I.E. RS. 5.00 LACS, WHICH IS TAX SOUGHT TO BE EVADED ON CONCEALED INCOME OF RS. 15.00 LACS. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CON FIRMED THE PENALTY BY OBSERVING THAT DURING THE COURSE OF SURVEY ON 29 /08/2007, INCRIMINATING EVIDENCE RELATED TO UNACCOUNTED INCOM E OF RS. 15.00 LACS WERE FOUND AND ADMITTED BY THE APPELLANT. THE APPELLA NT DID NOT DISCLOSE THIS INCOME VOLUNTARILY AT THE TIME OF FILING OF RE TURN OF INCOME. THE APPELLANT HAD CLEARLY CONCEALED THE INCOME AND FURN ISHED INACCURATE PARTICULARS OF INCOME. HE FURTHER RELIED ON THE DEC ISION OF HON'BLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. VS CIT 358 ITR 593 (SC) WHEREIN THE PENALTY WAS HELD TO BE VALID EVEN IF THE AMOUNT SURRENDERED IN THE SURVEY WAS TO BUY PEACE OF MIND. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE AR O F THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT (A) AND FURTHER ARGUED THAT DURING THE COURSE OF SURVEY, STATEMENT WAS RECORDED AND THE ASSESSEE HAS SURRENDERED AN ADDITIONAL INCOME OF RS . 5 LACS ON ACCOUNT OF UNRECORDED EXPENDITURE INCURRED ON MARRIAGE OF H IS DAUGHTER AND IN RESPONSE TO QUESTION NO. 25, HE SURRENDERED RS. 10 LACS ON ACCOUNT OF ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 5 UNRECORDED EXPENDITURE INCURRED ON RECONSTRUCTION/ REPAIR OF THE HOUSE. THIS AMOUNT OF RS. 15 LACS WAS INCLUDED IN REVISED RE TURN FILED BY THE ASSESSEE. THE RELEVANT PORTION OF STATEMENT IS REPR ODUCED AS UNDER:- IKZU-24& VKIUS VIUS IQ=H DH KKNH ESA TKSA FD UOEC KJ 2005 ESA GQBZ FKH ML KKNH ESA VIUS /;KU ESA YXHKX MSM YK[K :IK;S DK [KP KZ CRK;K GS VKIDH LKEKFTD GSFL;R DKS NS[KRS GQ;S ;G [KPKZ CGQR DE I`RHR GKSRK GS VKIUS KKNH ESA FN;S X;S LKEKU@MIGKJ DS EN ESA H KH DKSBZ [KPKZ UGH CRK;K TKS FD LGH IZRHR UGH GKSRK A D`IK;K IQU% ;KN DJ DS CRK;S FD VKIUS IQ=H DH KKNH ESA FDRUK [KPKZ FD;K GSA MRJ & TH ESUS VIUH IQ=H DH KKNH ESA YXHKX 2000 VKN FE;KSA DK [KKUK FD;K FKK FTLESA ESJS YXHKX 2 YK[K :IK;S [KPKZ GQVK RFKK TSOJ O DIMKSA IJ YXHKX 2 YK[K :IK;S RFKK CSVH DKS FN;S X;SA ?KJSYQ L KEKU IJ :-1 YK[K DK [KPKKZ FD;K GS FTLS ESUS DGH HKH UGH NKK;K Z GSAMDR IKAP YK[K :IK;SA ESA VIUH V|KSF'KR VK; EKU DJ LOSPNK LSA VK; DJ NSUS DKS RS;KJ GWWA FTLDS FY;S ES FU/KKFJR O'KZ 2006 &2007 D H LAKKSF/KR FOOJ.KKSA ESA ISK DJ NWXK A IKZU-25&VKIUS VIUS ISR`D XKO FLFKR EDKU ESA FUEKZ .K DK DK;Z DJOK;K GS FTLESA VKIUS DKSBZ [KPKZ UGH CRK;K GS D`IK;K CRK;S FD VKIUS MDR EDKU ESA DQY FDRUK [KPKZ FD;K GS A MRJ & CHT OKMZ PKSGKU ESA VIUS FLFKR EDKU EAS IQU% FUEKZ.K IJ YXHKX : 10 YK[K DK [KPKZ FD;K GSAEDKU ESA QZK FYIKBZ] IQRKBZ RFKK EDKU DH LKT LTTK DK YXHKX LKJK DKE NQCKJK DJOK;K FKK OG [KP KZ DGH HKH NTZ UGH GS] VR% ;G [KPKKZ ESJH V|KSF'KR VK; LSA FD; K GS FTL IJ ESA LOSPNK LS VK; DJ NSUS DKS RS;KJ GW MIJKSDRKUQLKJ E SA ESJH O'KZ 2007 &08 DH VK; DJ DH FOOJ.KH ESA :-10 YK[K DH JKFK LEF IZR DJRS GQ;SA FN[KK NWXK A ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 6 THE LD AR FURTHER ARGUED THAT THERE WAS NO INCRIMINAT ING DOCUMENT/PAPER WAS FOUND DURING THE COURSE OF SURVEY . IN FACT SURRENDER OF RS.5 LACS ON ACCOUNT OF MARRIAGE EXPENSES WAS MAD E AS ACCORDING TO THE SURVEY PARTY, THE EXPENDITURE DECLARED BY THE A SSESSEE CONSIDERING THE SOCIAL STATUS OF THE ASSESSEE APPEARED TO THEM TO BE ON LOWER SIDE AND THEREFORE ASSESSEE AGREED FOR SUCH SURRENDER. TH E SURRENDER OF RS.10 LACS ON ACCOUNT OF RENOVATION OF HOUSE WAS MAD E FOR A.Y. 08-09 NOT FOR A.Y. 06-07. THUS THE PENALTY ON THIS AMOUNT IS OTHERWISE NOT LEVIABLE. HE FURTHER ARGUED THAT THE STATEMENT RECO RDED U/S 133A DOES NOT HAVE ANY EVIDENTIARY VALUE AS HELD BY THE HON'B LE SUPREME COURT IN THE CASE OF S.KHADAR KHAN SONS 352 ITR 24. HE FURTH ER RELIED ON THE DECISION IN THE CASE OF CIT VS. SURESH MITTAL 251 IT R 9 (SC) WHEREIN PENALTY IMPOSED BY THE ASSESSING OFFICER ON THE BAS IS OF REVISED RETURN HELD PENALTY NOT IMPOSABLE. IN THE CASE OF ITO VS. DR. V. GOURISRI (2014) 40 CCH 0197 (HYD.) (TRIB.) HELD THAT AFTER SURVEY, T HE REVISED RETURN HAS BEEN ACCEPTED ON THE BASIS OF DECLARATION BY THE AS SESSING OFFICER U/S 143(3) OF THE ACT WHEREIN PENALTY IMPOSED U/S 271(1) (C) HELD NOT LEVIABLE AS THE ASSESSMENT WAS MADE ON REVISED INCOM E. IN CASE OF GODAVARI TOWNSHIPS PVT. LTD. VS. DCIT (2014) 103 DTR 0 001 (VISAKHAPATNAM) (TRIB.) REVISED RETURN FILED AFTER SURVEY HAS BEEN ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 7 QUASHED ON THE BASIS OF NO SATISFACTION HAS BEEN RE CORDED BY THE ASSESSING OFFICER. HE FURTHER ARGUED THAT THE HON'B LE SUPREME COURT DECISION RELIED BY THE LD CIT(A) I.E. MAK DATA P LTD . (SUPRA) IS NOT SQUARELY APPLICABLE AS IN THIS CASE, DURING THE COU RSE OF SURVEY, CERTAIN DOCUMENTS PERTAINING TO SHARE APPLICABLE WERE FOUND, WHICH WERE SURRENDERED IN REVISED RETURN BY THE ASSESSEE. THERE FORE, THE FACTS OF THE ASSESSEES CASE ARE DISTINGUISHABLE FROM THE CASE C ITED BY THE LD CIT(A). FURTHER ALTERNATIVELY, HE ALSO ARGUED THAT IN THIS CASE, ASSESSMENT WAS COMPLETED ON 30/12/2008 WHEREAS THE PENALTY ORDER WAS PASSED ON 03/2/2014. THEREFORE, PENALTY ORDER IS BARRED BY LIM ITATION U/S 271(1)(A) OF THE ACT. THEREFORE, HE PRAYED TO DELETE THE PENAL TY CONFIRMED BY THE LD CIT(A). 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT THAT BOTH THE RETURNS WERE BELATED, BUT THE LD ASSESSING OFFICER HAS NOT REGULARIZED THE RETURN U/S 148 OF THE ACT. WHATEVER DISCLOSURE MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY WAS NOT BAS ED ON INCRIMINATING ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 8 DOCUMENTS FOUND DURING THE COURSE OF SURVEY. THE REV ISED RETURN HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AS SUCH. FUR THER THE DISCLOSURE MADE AT RS. 10.00 LACS ON ACCOUNT OF REPAIR AND REN OVATION OF HOUSE PERTAINED TO A.Y. 2008-09, WHICH CANNOT BE CONSIDERE D IN A.Y. 2006-07. THE ALTERNATE GROUND TAKEN BY THE AR IS ALSO VALID A S IN THIS CASE SCRUTINY ASSESSMENT WAS PASSED ON 31/12/2008. THE LD CIT(A) HA S DISMISSED THE APPEAL ON 12/12/2012. THE LD ASSESSING OFFICER PASSE D PENALTY ORDER ON 03/2/2014 WHICH IS BEYOND TIME LIMIT PRESCRIBED U/S 271(1)(A) OF THE ACT. THEREFORE, WE REVERSE THE ORDER OF THE LD CIT(A) AND D ELETE THE PENALTY CONFIRM BY HIM. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/05/2016. SD/- SD/- DQYHKKJR VH-VKJ-EHUK (KUL BHARAT) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH MAY, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SHREE CHAND SAINI, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 2(2), ALWAR. 3. VK;DJ VK;QDR @ CIT ITA NO. 819/JP/2015 SHREE CHAND SAINI VS ITO 9 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 819/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR