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

ITA 841/AHD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73150 (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: 2007-2008
• Appeal Filed On: 22-03-2013
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: HARDIK N VORA
• Keywords: Document 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. 841/AHD/2013 % &% % &% % &% % &% / // / ASSESSMENT YEAR 2007-08 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) 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 3,73,600/- U/S 271(1)(C) OF THE ACT. ITA NO. 841/AHD/2013 CHITTUSINGH M. CHAUHAN VS ACIT, C.C.-2, SURAT. FOR A.Y. 2007-08 - 2 - 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) WAS LEVIED IN RESPECT OF ADDI TION OF RS 11,09,753/- MADE DURING THE COURSE OF ASSESSMENT. THE ADDITION WAS MADE AS PER THE ASSESSING OFFICER IN ACCORDANCE WITH THE DOCUMENT I MPOUNDED DURING THE SEARCH AND SURVEY PROCEEDINGS. 4. ON APPEAL AGAINST THE ABOVE PENALTY ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. THEREAFTER, IN QUANTUM APPEAL, THE TRIBUNAL DEL ETED THE ADDITION OF RS 5,11,000/- OUT OF RS 11,09,753/- AND CONFIRME D THE ADDITION OF RS 5,98,753/-. THEREFORE, IN VIEW OF THE ABOVE DECISI ON OF THE TRIBUNAL PASSED IN IT(SS)A NO. 113 & 114/AHD/2009 VIDE ORDER DATED 14.08.2013, PENALTY LEVIED U/S 271(1)(C) IN RESPECT OF RS 5,11,000/- CA NNOT BE SUSTAINED AS THE ADDITION ITSELF STANDS DELETED. 6. IN RESPECT OF BALANCE AMOUNT OF RS 4,47,253/-, IT IS OBSERVED THAT THE ADDITION WAS MADE ON THE BASIS OF DOCUMENT MARKED AS A-1/21 IMPOUNDED DURING THE COURSE OF SEARCH. A COPY OF T HE SAID DOCUMENT HAS BEEN FILED BEFORE US AT PAGE NO. 6 OF THE PAPER BOO K. A PERUSAL OF THE SAID DOCUMENT SHOWS THAT THE SAME RELATES TO THE EXPENDI TURE INCURRED FOR CONSTRUCTION OF BUNGALOW. 7. THE LD. AR OF THE ASSESSEE CONTENDED THAT THE A SSESSEE HAD SHOWN RS 1,25,00,000/- AS INVESTMENT MADE IN BUNGAL OW DURING THE YEAR UNDER CONSIDERATION AND THE SAID AMOUNT INCLUDES AB OVE MENTIONED RS 4,47,253/- ALSO. 8. THE LD. DR HAS NOT DISPUTED THE SUBMISSION OF T HE ASSESSEE THAT INVESTMENT OF RS 1,25,00,000/- WAS SHOWN BY THE ASS ESSEE DURING THE YEAR ITA NO. 841/AHD/2013 CHITTUSINGH M. CHAUHAN VS ACIT, C.C.-2, SURAT. FOR A.Y. 2007-08 - 3 - UNDER CONSIDERATION. NO POSITIVE MATERIAL HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE ABOVE MENTIONED AMOUNT OF RS 4,47,253/- WAS NOT INCLUDED IN THE INVESTMENT OF RS 1,25,00,00 0/- SHOWN BY THE ASSESSEE OR THE ACTUAL INVESTMENT IN THE BUNGALOW W AS RS 1,29,47,253/- AND NOT RS 1,25,00,000/-. IT IS A WELL SETTLED POS ITION OF LAW THAT THE CONSIDERATION WHICH APPLIES IN PENALTY PROCEEDINGS IS QUITE DIFFERENT AND DISTINCT FROM THE CONSIDERATION WHICH APPLIES IN AS SESSMENT PROCEEDINGS. BEFORE LEVYING PENALTY U/S 271(1)(C), SOME POSITIVE MATERIAL TO SHOW THAT THE ASSESSEE WAS GUILTY OF ACTUAL CONCEALMENT OF PA RTICULARS OF INCOME OR WAS GUILTY OF FURNISHING INACCURATE PARTICULARS OF INCOME OUGHT TO BE BROUGHT ON RECORD BY THE REVENUE. WHEN THE EXPLANATION OFF ERED BY THE ASSESSEE IS A PLAUSIBLE ONE, THEN PENALTY U/S 271(1)(C) OUGHT N OT TO BE LEVIED WITHOUT BRINGING MATERIAL ON RECORD TO CONTROVERT THE SAME. IN THE CIRCUMSTANCES, CONSIDERING THE FACTS OF THE CASE, IN OUR CONSIDERE D VIEW, PENALTY LEVIED U/S 271(1)(C) CANNOT BE SUSTAINED WITH RESPECT TO THE A DDITION OF RS 4,47,253/-. FURTHER, WITH RESPECT TO LEVY OF PENALTY ON ADDITIO N OF RS 1,51,500/-, WE FIND THAT THIS PERTAINS TO THE DOCUMENT SEIZED DURING TH E COURSE OF SEARCH MARKED AS ANNEXURE A-1 PAGE 375-387. COPIES OF THE SAME ARE PLACED BY THE ASSESSEE AT PAGES 9 TO 19 OF PAPER BOOK. A PER USAL OF THE SAME SHOWS THAT THESE ARE CASH PAYMENT VOUCHERS AND THE NAME O F THE ASSESSEE DOES NOT APPEAR ON THE SAID DOCUMENT. FURTHER, THE EXPL ANATION OF THE ASSESSEE IS THAT THE SAID DOCUMENT WAS SEIZED FROM THE PREMI SES OF SH. DILIP K. GUJARATI AND NOT FROM THE ASSESSEES PREMISES. IT IS, THEREFORE, SUBMITTED THAT IT CANNOT BE PRESUMED THAT THESE DOCUMENTS BEL ONGED TO THE ASSESSEE AND PENALTY CAN BE LEVIED ON THE SAME. 9. THE LD. DR SUBMITTED THAT THE ASSESSEE FAILED T O EXPLAIN THE ENTRIES AND RELATED TRANSACTIONS AS FOUND FROM THE IMPOUNDED DOCUMENTS. THEREFORE, THE SAME WAS TREATED AS UNACCOUNTED SALE S AND/OR UNEXPLAINED PURCHASES/EXPENDITURE AND ADDED TO THE INCOME OF TH E ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR. IT WAS, THEREFORE, HELD THAT THE ASSESSEE UNDER- ITA NO. 841/AHD/2013 CHITTUSINGH M. CHAUHAN VS ACIT, C.C.-2, SURAT. FOR A.Y. 2007-08 - 4 - REPORTED THE INCOME BY FURNISHING OF INACCURATE PAR TICULARS OF INCOME AND HENCE RESULTANT CONCEALMENT OF INCOME. 10. WE FIND THAT IN THE DOCUMENT MARKED AS A-1 PAG E 375-387, NOWHERE THE NAME OF THE ASSESSEE APPEARS AND ALSO T HE SUBMISSION OF THE ASSESSEE THAT IT WAS NOT SEIZED FROM THE PREMISES O F THE ASSESSEE BUT FROM THE PREMISES OF SH. DILIP K. GUJARATI REMAINS UNCON TROVERTED BY THE LD. DR. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I N OUR CONSIDERED OPINION, THE ASSESSEE CANNOT BE MADE LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT. WE, THEREFORE, DELETE THE ENTIRE PENALTY OF RS 3,73 ,600/- LEVIED U/S 271(1)(C) OF THE ACT AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. 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.