Shri Chittusinh M.Chauhan, Dadra & Nagar Haveli V. The ACIT.,Cent,Circle-2, Surat

ITA 840/AHD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73153 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 24-03-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2013
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: HARDIK N VORA
• Keywords: Document seized; Documents seized

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , , , . .. . . . . . , , , , !' ! # !' ! # !' ! # !' ! # BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ./ ././ ./ ITA NO. 840/AHD/2013 % &% % &% % &% % &% / // / ASSESSMENT YEAR 2004-05 CHITTUSINGH M. CHAUHAN AVDHESH MANSION, PLOT NO. 262/4/26-A, P.W.D. ROAD, SILVASA, DAMAN & NAGAR HAVELI PAN: ABNPC6044J VS ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2 SURAT. '(/ APPELLANT )*'( / RESPONDENT REVENUE BY : SH. P.L. KUREEL, SR. DR ASSESSEE(S) BY : SH. HARDIK N. VORA, AR + , -'/ // / DATE OF HEARING : 24/03/2014 ./& , -' / DATE OF PRONOUNCEMENT : 31/03/2014 !0 !0 !0 !0/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, AHMEDABAD DATED 31.01.2013. 2. THE SOLE GROUND OF APPEAL RAISED BY THE ASSESSE E IS THAT THE LD. CIT(A) ERRED IN CONFIRMING PENALTY OF RS 73,100/- U/S 271(1)(C) OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, PENALTY U/S 271(1)(C) OF RS 73,100/- WAS LEVIED BY ASSESSING OFFICER IN ITA NO. 840/AHD/2013 CHITTUSINGH M CHAUHAN VS. ACIT, C.C.-2, SURAT. FOR A.Y. 2004-05 - 2 - RESPECT OF FOLLOWING ADDITIONS MADE ON THE BASIS OF FOLLOWING SEIZED DOCUMENTS: ANNEXURE AMOUNT AS-15 PAGE NO. 56 5000/- A-1 PAGE NO. 128 5900/- A-1 PAGE NO. 16, 169 89170/- A-1 PAGE NO. 185 39870/- A-1 PAGE NO. 375 TO 387 80985/- TOTAL 221465/- 4. THE LD. CIT(A) ON APPEAL CONFIRMED THE LEVY OF AFORESAID PENALTY. 5. THE LD. AR OF THE ASSESSEE EXPLAINED BEFORE US THAT THE SEIZED DOCUMENT MARKED AS A-1 PAGE 128 ON THE BASIS OF WHI CH ADDITION OF RS 5,900/- WAS MADE WAS FOUND FROM THE PREMISES OF M/S KRISHNA PAPER PRODUCTS AND THE SAME RELATES TO M/S KRISHNA PAPER PRODUCTS AND NOT THE ASSESSEE. THEREFORE, PENALTY U/S 271(1)(C) CANNOT BE LEVIED ON THE ASSESSEE IN RESPECT OF SAID RS 5,900/-. A COPY OF THE SAID SEIZED DOCUMENT IS PLACED AT PAGE NO. 8 OF THE PAPER BOOK FILED BY THE ASSESSEE. 6. FROM A PERUSAL OF THE SAID SEIZED DOCUMENT, WE FIND THAT THE SAID DOCUMENT WAS DRAWN ON SHREE KRISHNA CONSTRUCTI ON AND THE ASSESSEES NAME APPEARS THEREON AS C/O DR. C.M. CHAUHAN. THE LD. DR COULD NOT CONTROVERT THAT THE SAID DOCUMENT PERTAINS TO SHREE KRISHNA CONSTRUCTION AND NOT TO THE ASSESSEE. WE, THEREFORE, ARE OF THE VIEW THAT PENALTY U/S 271(1)(C) CANNOT BE SUSTAINED IN RESPECT OF RS 5,9 00/-. ITA NO. 840/AHD/2013 CHITTUSINGH M CHAUHAN VS. ACIT, C.C.-2, SURAT. FOR A.Y. 2004-05 - 3 - 7. FURTHER, THE ASSESSEE CONTENDED BEFORE THE LOWE R AUTHORITIES DURING THE ASSESSMENT PROCEEDINGS THAT RS 89,710/- REPRESENTED BY SEIZED DOCUMENT MARKED AS A-1 PAGE NOS. 166,169 WAS ALREAD Y RECORDED IN THE REGULAR BOOKS OF ACCOUNT OF THE ASSESSEE. THE LD. AR OF THE ASSESSEE SUBMITTED THAT IN SUPPORT OF THE ABOVE CONTENTION, THE ASSESSEE SUBMITTED LEDGER COPY OF ACCOUNT BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAS NOT CONTROVERTED OR DISPUTED THE ABOVE FACT. T HE LD. DR COULD NOT CONTROVERT THE ABOVE SUBMISSION OF THE ASSESSEE. W E ARE THEREFORE OF THE VIEW THAT PENALTY U/S 271(1)(C) LEVIED IN RESPECT O F AFORESAID ADDITION OF RS 89,710/- CANNOT BE SUSTAINED. 8. IN RESPECT OF ADDITION OF RS 5,000/- ON THE BAS IS OF SEIZED DOCUMENT MARKED AS AS-15 PAGE NO. 56 AND RS 80,985/ - BASED ON SEIZED DOCUMENT MARKED AS A-1 PAGE NO. 375 TO 387, THE LD. AR CONTENDED THAT THESE DOCUMENTS WERE NOT FOUND AND SEIZED FROM THE POSSESSION OF THE ASSESSEE BUT WERE FOUND AND SEIZED FROM THE PREMISE S OF DILIP K. GUJARATI WHO WAS THE ACCOUNTANT OF THE ASSESSEE. THE LD. AR FILED A COPY OF THE ABOVE SEIZED DOCUMENTS IN PAPER BOOK PAGE NOS. 7, 1 2 TO 22 AND POINTED OUT THEREFROM THAT NOWHERE NAME OF THE ASSESSEE ON THOSE DOCUMENTS WAS STATED. NO CORROBORATIVE MATERIAL COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THESE DOCUMENTS PERTAIN TO THE ASSESSEE. THE ADDITIONS WERE MADE SOLELY ON THE BASIS OF SURRENDE R MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT AND NOT ON THE BASI S OF ANY MATERIAL FOUND TO SHOW THAT THESE PAPERS ACTUALLY BELONGED TO THE ASSESSEE. THE LD. DR COULD NOT CONTROVERT THE ABOVE CONTENTION OF THE AS SESSEE. IN OUR CONSIDERED VIEW, THE CONSIDERATIONS WHICH APPLY FOR LEVY OF PENALTY IS DIFFERENT FROM THE CONSIDERATIONS WHICH APPLY FOR M AKING ASSESSMENT. FOR LEVY OF PENALTY ON THE BASIS OF LOOSE DOCUMENTS FOU ND DURING THE COURSE OF SEARCH OR SURVEY FROM THE POSSESSION OF THIRD PARTY , REVENUE MUST ESTABLISH THAT THESE DOCUMENTS ACTUALLY BELONGED TO THE ASSES SEE AND THE SAME EVIDENCES UNDISCLOSED INCOME OF THE ASSESSEE. ITA NO. 840/AHD/2013 CHITTUSINGH M CHAUHAN VS. ACIT, C.C.-2, SURAT. FOR A.Y. 2004-05 - 4 - 9. IN THE INSTANT CASE, WE FIND THAT APART FROM MA KING ASSESSMENT ON THE BASIS OF ASSESSEE AGREEING TO PAY TAX, NO MA TERIAL COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE SAID SEIZ ED DOCUMENT ACTUALLY BELONGED TO THE ASSESSEE AND THE TRANSACTIONS MENTI ONED THEREIN WERE ACTUALLY TRANSACTIONS OF THE ASSESSEE. IN THE CIRC UMSTANCES, WE HAVE NO HESITATION IN HOLDING THAT PENALTY U/S 271(1)(C) CA NNOT BE LEVIED WITH RESPECT TO THE SAID ADDITION OF RS 5,000/- AND RS 80,985/-. 10. IN RESPECT OF BALANCE AMOUNT OF RS 39,870/- IN RESPECT OF SEIZED DOCUMENT MARKED AS A-1 PAGE 185, NO EXPLANATION WAS OFFERED BY THE ASSESSEE BEFORE US. WE, THEREFORE, CONFIRM THE LEV Y OF PENALTY U/S 271(1)(C) IN RESPECT OF INCOME OF RS 39,870/-. WE, THEREFORE, SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DIRECT THE ASSE SSING OFFICER TO RECOMPUTE THE PENALTY LEVIABLE U/S 271(1)(C) IN THE LIGHT OF DISCUSSIONS MADE HEREINABOVE. THUS, THE GROUND OF APPEAL OF THE ASS ESSEE IS PARTLY ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 31 ST OF MARCH, 2014 AT AHMEDABAD. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 31/03/2014 GHANSHYAM MAURYA, SR. P.S.