MOHAN GUPTA, BHIWADI V. ACIT, Alwar

ITA 82/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5433 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: KRANTI MEHTA
• Keywords: Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 82/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. MOHAN GUPTA, PROP. M/S. COMPETENT BUILDERS, 6/24, UIT COLONY, BHIWADI (RAJ.) CUKE VS. THE ACIT, CIRCLE-2, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABOPG 3984 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI KRANTI MEHTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13.10.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23/10/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. CIT (A), ALWAR DATED 16.11.2012 PERTAINING TO ASSESSMENT YEA R 2006-07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THAT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED CIT (A), ALWAR ERRED IN SUSTAININ G THE PENALTY OF RS. 3,23,160/- ON INCOME OF RS. 10,77,204/- EVEN WH EN THIS INCOME WAS SURRENDERED DURING SURVEY IN ORDER TO PURCHASE PEACE OF MIND AND AVOID LITIGATION/PENALTY PROCEEDINGS. FURTHER, LEARNED CIT (A) SUSTAINED THE PENALTY EVEN WHEN THERE WAS NO MENSRE A/MALAFIDE INTENTION ON THE PART OF THE APPELLANT AND THE AO H AS NOT REFUTED THE CONTENTION OF THE APPELLANT THAT THIS INCOME WA S SURRENDERED ON THE CONDITION THAT PENALTY U/S 271(1)(C) WOULD N OT BE IMPOSED. HENCE, THE SUSTAINED PENALTY OF RS. 3,23,160/- DESE RVES TO BE DELETED. 2 ITA NO. 82/JP/2013 MOHAN GUPTA, ALWAR. 2. THAT THE APPELLANT PRAYS TO ADD OR ALTER ANY GROUND OF APPEAL AT OR BEFORE THE TIME OF HEARING. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMEN T UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS FRAMED VIDE ORDER DATED 22.12.2008. WHILE FRAMING THE ASSESSMENT, TH E AO MADE ADDITION OF RS. 13,50,000/-. SUBSEQUENTLY, PENALTY OF RS. 4,05,000 /- WAS IMPOSED VIDE ORDER DATED 29.06.2009. AGAINST THIS, ASSESSEE PREFERRED AN AP PEAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS, PARTLY ALLOWED THE APP EAL THEREBY THE LD. CIT (A) DIRECTED THE AO TO RE-COMPUTE THE PENALTY @ 100% ON RS. 10,77,204/-. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 3. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMATIO N OF PENALTY. 3.1. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY AR GUED THAT THE INITIATION OF PENALTY PROCEEDINGS AND IMPOSITION OF PENALTY IS UN JUSTIFIED. HE SUBMITTED THAT THE AO HAS NOT SPECIFIED THE CHARGE. THE LD. COUNSEL D REW OUR ATTENTION TO PENALTY NOTICE DATED 15.06.2009 AND THE ASSESSMENT ORDER DA TED 22.12.2008 IN SUPPORT OF HIS CONTENTION. THE LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ASSESSEE HAD SURRENDERED THE INCOME TO BUY PEACE OF MIND. HE SU BMITTED THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. HE SUBMITTED THAT MERELY BECAUSE AN INCOME IS SURRENDE RED THAT SHOULD NOT BE THE ONLY REASON TO IMPOSE PENALTY. 3.2. ON THE CONTRARY, THE LD. D/R SUBMITTED THAT TH ERE IS NO SUCH GROUND IN THE GROUND OF APPEAL. THE LD. D/R OPPOSED THE SUBMISSI ONS OF THE LD. COUNSEL THAT 3 ITA NO. 82/JP/2013 MOHAN GUPTA, ALWAR. SURRENDER WAS MADE TO BUY PEACE OF MIND. HE SUBMITT ED THAT THE AO HAS SPECIFIED THE DEFECT IN THE ACCOUNTS FURNISHED BEFORE HIM. T HEREFORE, IT CANNOT BE SAID THAT THE SURRENDER IS MERELY FOR BUYING PEACE OF MIND. M OREOVER, HE SUBMITTED THAT NOW THE HONBLE SUPREME COURT IN THE CASE OF MAK DATA P VT. LTD. VS. CIT, (2013) 358 ITR 593 (SC) HAS RULED AGAINST THE ASSESSEE. 3.3. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FI ND THAT THE ASSESSEE HAS NOT RAISED ANY GROUND AGAINST THE ISSUANCE OF SHOW CAUS E NOTICE. THEREFORE, THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORDER IS UNJUSTIFIED IS NOT TENABLE. WE DO NOT FIND ANY REASON IN THE ABSENCE OF ANY SPECIFIC GROUND TO DECIDE THIS ISSUE ON MERIT. THE ONLY CONTENTION OF THE LD . COUNSEL FOR THE ASSESSEE IS THAT THE SURRENDER DURING THE COURSE OF SURVEY WAS MADE FOR BUYING PEACE OF MIND. THIS CONTENTION IS CONTRARY TO RECORD. THE AO OBSERVED C ERTAIN DEFECTS IN THE ACCOUNTS FURNISHED BEFORE HIM. THE HONBLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. VS. CIT, SUPRA, HAS HELD AS UNDER :- 8. THE ASSESSEE HAS ONLY STATED THAT HE HAD SURRE NDERED THE ADDITIONAL SUM OF RS. 40,74,000 WITH A VIEW TO AVOI D LITIGATION, BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TO WARDS PRODUCTIVE WORK AND TO MAKE AMICABLE SETTLEMENT WITH THE INCOM E-TAX DEPARTMENT. THE STATUTE DOES NOT RECOGNIZE THOSE TY PES OF DEFENCES UNDER EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT . IT IS TRITE LAW THAT THE VOLUNTARY DISCLOSURE DOES NOT RELEASE THE APPEL LANT-ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HIS CON CEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY. 4 ITA NO. 82/JP/2013 MOHAN GUPTA, ALWAR. RESPECTFULLY FOLLOWING THE SAME, WE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDING OF LD. CIT (A), THE SAME IS HEREBY AFFIRMED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23.10.2 017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 23/10/2017. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI MOHAN GUPTA, ALWAR. 2. THE RESPONDENT THE ACIT, CIRCLE-2, ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 82/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 82/JP/2013 MOHAN GUPTA, ALWAR.