M/s Ajay Kumar Sood & Engineers & Contractors, Shimla V. DCIT, CC-II, Chandigarh

ITA 82/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6258 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 29-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRAKANTA SR DR
• Keywords: Set aside
• Section: 271(1)(c); 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CH A, CHANDIGARH , . '.., # $, %& BEFORE: SH. SANJAY GARG, JUDICIAL MEMBER & DR. B.R. R. KUMAR, ACCOUNTANT MEMBER ./ ITA NO. 82/CHD/2018 / ASSESSMENT YEARS : 2010-11 M/S AJAY KUMAR SOOD ENGINEERS & CONTRACTORS, SANJAY SADAN, CHOTTA SHIMLA (H.P.) THE DY. CIT CENTRAL CIRCLE-II, CHANDIGARH ./ PAN NO: AAKFA4648J / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI. SUDHIR SEHGAL # ! ' / REVENUE BY : SMT. CHANDRAKANTA, SR. DR $ % ! &/ DATE OF HEARING : 28/02/2019 '()* ! &/ DATE OF PRONOUNCEMENT : 02/05/2019 %'/ ORDER PER DR. B.R.R. KUMAR, A.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A)-3, GURGAON DT. 30/11/2017. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE APP EAL OF THE ASSESSEE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) AND ALSO EN HANCING THE PENALTY BY RS. 25,44,500/-. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN NOT CONSID ERING THE REPLY FILED BY THE ASSESSEE WITH REGARD TO ENHANCEMENT NOTICE AND, AS SUCH, THE ENHANCEMENT AS MADE BY THE LD. CIT(A) IS AGAINST TH E LEGAL AND FACTUAL CIRCUMSTANCES OF THE CASE. 3. THAT THE ENHANCEMENT MADE BY THE CIT(A) IS TOTALLY VOID ABINITIO AND DESERVES TO BE SET ASIDE, BEING AGAINST THE PROVISI ONS OF LAW. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE ACTION UNDER SECTION 132(1) OF INCOME TAX ACT,1961 HAS BEEN CONDUCTED ON 08/10/2010 ON THE ASSESSEE. THE RETURN HAS BEEN FILED UNDER SECTION 1 39 OF THE INCOME TAX ACT,1961 ON 12/10/2010 DECLARING A TOTAL INCOME OF RS. 1,84,91,090/- WHICH CONSISTS OF RS. 75,00,000/- AS UNDISCLOSED INCOME. THE ASSESSMENT WAS COMPLETED MAKING A FURTHER ADDITION OF RS. 21,85,14 0/- BASED ON THE SEIZED MATERIAL. THE ADDITION MADE BY THE ASSESSING OFFICE R HAS BEEN DELETED BY THE ITAT AND HENCE NO PENALTY ON THIS AMOUNT IS LEVIABL E. HOWEVER, THE LD. CIT(A) 2 HAS LEVIED(ENHANCED) PENALTY ON THE AMOUNT OF RS. 7 5,00,000/- WHICH HAS BEEN DECLARED AS UNDISCLOSED INCOME DURING THE SEARCH PR OCEEDINGS AND DULY DECLARED IN THE RETURN OF INCOME ON TWO GROUNDS: A) THAT THE SURRENDERED INCOME WAS NOT APPARENTLY DISC LOSED TO THE DEPARTMENT BY THE DUE DATE OF FILING OF RETURN FOR THE YEAR UNDER CONSIDERATION WHICH TANTAMOUNT TO CONCEALMENT OF INCOME ON WHICH PENALTY IS LEVIABLE. B) STRONGLY RELYING ON THE JUDGMENT IN THE CASE OF PRA SANNA DUGAR THAT PENALTY IS LEVIABLE EVEN IF THE ASSESSEE VOLUNTARIL Y DISCLOSED A SUM SUBSEQUENT TO SEARCH AND OFFERED THAT SUM TO TAX. 4. WE FIND BASED ON THE RECORDS THAT THE DUE DATE O F FILING OF RETURNS OF INCOME FOR THE A.Y. 2010-11 HAS BEEN EXTENDED FROM 30/09/2010 TO 15/10/2010 BY THE ORDER F.NO. 225/72/2010/IT(A-II), DT. 27/09/ 2010 . THUS THE OBSERVATION THAT THE ASSESSEE HAS NOT FILED RETURN IN DUE TIME AS HE LD BY THE LD. CIT(A) IS NOT CORRECT ON THE FACTS OF THE CASE. FURTHER IN THE CA SE OF PRASANNA DOGAR RELIED BY THE LD. CIT(A) THE ASSESSEE HAS NOT DECLARED THE SU RRENDERED INCOME IN THE RETURN AND THE RETURN WAS ALSO FILED AFTER THE DUE DATE WHEREAS IN THE INSTANT CASE THE ASSESSEE HAS FILED THE RETURN IN THE DUE D ATE AND ALSO DECLARED THE SURRENDERED INCOME IN THE RETURN FILED AND HENCE TH E PROVISIONS OF SECTION 271(1)(C) ARE NOT APPLICABLE TO THE INSTANT CASE. HENCE KEEPING IN VIEW THE FACTS ON RECORD WHICH CONTRAVENE THE OBSERVATION OF THE LD. CIT(A) WE HEREBY DIRECT THE PENALTY LEVIED BE OBLITERATED. 5. AS A RESULT, APPEAL OF THE ASSESEE IS ALLOWED. SD/- SD/- . '.., # $, (SANJAY GARG ) ( DR. B.R.R. KUM AR) / JUDICIAL MEMBER %& / ACCOUNTANT MEMBER AG DATE: 02/05/2019 (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2 THE RESPONDENT , 3. CIT, 4. THE CIT(A), 5. DR, ITAT, CHANDIGARH, 6. GUARD FILE