LALITA DEVI GUPTA, Jaipur V. DCIT, Jaipur

ITA 843/JPR/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2003 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMAADDL CIT DHK
• Assessee Lawyers: S L PODDAR
• Section: 143(3); 132; 2

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. 843/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. SMT. LALITA DEVI GUPTA, 1, KOOLWAL BHAWAN, JANTA COLONY, JAIPUR. CUKE VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRLCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABAPG 1605 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR ( ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA(ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.07.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 11/07/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), CENTRAL, JAIPUR DATED 18.10.2013 PERTAINING TO ASSE SSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN PASSING T HE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHICH VOID AB -INITIO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED CONFIRMING THE PENALTY OF RS. 10,12,435/- U/S 271(1 )(C) OF THE INCOME TAX ACT @ 100% OF TAX SOUGHT TO BE EVADED. 3. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEN D OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. BRIEFLY, STATED THE FACTS ARE THAT, THE SEARCH A ND SEIZURE OPERATION U/S 132 WAS CARRIED OUT ON 20.10.2009 AT THE BUSINESS AND R ESIDENTIAL PREMISES OF SODHANI SWEETS GROUP, JAIPUR TO WHICH THE ASSESSEE BELONGS. SUBSEQUENTLY, A NOTICE U/S 2 ITA NO. 843/JP/2013 SMT. LALITA DEVI GUPTA, JAIPUR. 153(A) WAS ISSUED IN PURSUANCE OF, THAT THE ASSESSE E FILED A RETURN DECLARING INCOME OF RS. 33,67,580/-. THE ASSESSMENT WAS COMPLETED U/ S 153(A) READ WITH SECTION 143(3) OF THE ACT, VIDE ORDER DATED 29/12/2011. WH ILE FRAMING THE ASSESSMENT THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE ALSO RAIS ED THE ADDITIONAL GROUND THAT READS AS UNDER:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ORDER DATED 29.06.2012 PASSED BY THE LD. AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WITHOUT STRIKING OFF THE IRRELEVANT P ORTION OF THE PRINTED SHOW CAUSE NOTICE VIZ., FURNISHING INACCURATE PART ICULARS OF INCOME OF CONCEALED PARTICULARS OF SUCH INCOME IS BAD IN LA W. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ORDER PASSED BY THE LD. AO UNDER SECTION 271(1) OF THE A CT IS AGAINST THE PRINCIPLES OF JUDICIAL CONSISTENCY AND THEREFORE, B AD IN LAW. THE GROUND OF THE ASSESSEE WAS ADMITTED TO TAKEN UP FOR HEARING. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. 3. THE LD. DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . THE OBJECTION OF THE ASSESSEE IN THE FORM OF ADDITIONAL GROUND IS THAT, THE PENAL TY PROCEEDING ARE VITIATED ON ACCOUNT OF THE FACT THAT THE AO WHILE INITIATING TH E PENALTY STATED, THAT PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WAS INITIATED SEPARATELY FOR CONCEALING PARTICULARS OF INCOME AND/OR FURNISHING INACCURATE PARTICULARS OF INCOME. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE INCOME TAX ACT 1961, THE CONTENTS WERE IN TYPED PERFORMA AND IT IS TICKED ON THE CONTENTS I.E CONCEALED THE PARTICUL ARS OF YOUR INCOME OR FURNISHED 3 ITA NO. 843/JP/2013 SMT. LALITA DEVI GUPTA, JAIPUR. INACCURATE PARTICULAR OF SUCH INCOME. LD. COUNSEL SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF SHEVETA CONSTRUCTION COMPANY PVT. LTD. VS. ITO, WARD 3(4), JAIPUR, DATED 6/12/2016. THE HONBLE HIGH COURT IN THE CASE OF S HEVETA CONSTRUCTION CO. PVT. LTD.(SUPRA) HELD AS UNDER:- 9. TAKING INTO CONSIDERATION THE DECISION OF THE ANDHR A PRADESH HIGH COURT WHICH VIRTUALLY CONSIDERED THE SUBSEQUENT LAW AND THE LAW WHICH WAS PREVAILING ON THE DATE THE DECISION WAS RENDERE D ON 27.08.2012. IN VIEW OF THE OBSERVATIONS MADE IN THE SAID JUDGME NT, WE ARE OF THE OPINION THAT THE CONTENTION RAISED BY THE APPELLANT IS REQUIRED TO BE ACCEPTED AND IN THE FINDING OF AO IN THE ASSESSMENT ORDER IT IS HELD THAT THE AO, HAS TO GIVEN A NOTICE AS TO WHETHER HE PROPOSES TO LEVY PENALTY FOR CONCEALMENT OF INCOME OR FURNISHING INA CCURATE PARTICULARS. HE CANNOT HAVE BOTH THE CONDITIONS AND IF IT IS SO HE HAS TO SAY SO IN THE NOTICE AND RECORD A FINDING IN THE PENALTY ORDE R. 4.1 IN THE PRESENT CASE THE AO WHILE INITIATING THE PENALTY PROCEEDING U/S 271(1)(C) STATED AS UNDER:- 11. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ARE IN ITIATED SEPARATELY FOR CONCEALING PARTICULARS OF INCOME AND/ OR FURNISHING INACCURATE PARTICULARS OF INCOME. 4.2 FURTHER MORE IN THE NOTICE U/S 274 READ WITH SE CTION 271(1)(C) OF THE ACT ALSO THE AO HAS STATED AS UNDER:- HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FU RNISHED INACCURATE PARTICULARS OF SUCH INCOME 4.3 THEREFORE RESPECTFULLY FOLLOWING THE JUDGMENT O F THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHEVETA CONSTRUCTION CO. PVT. LTD.(SUPRA), THE PENALTY 4 ITA NO. 843/JP/2013 SMT. LALITA DEVI GUPTA, JAIPUR. PROCEEDINGS SO INITIATED ARE QUASHED. THE AO IS DI RECTED TO DELETE THE PENALTY. THE ADDITIONAL GROUND OF THE ASSESSEES APPEAL IS ALLOW ED. AS WE HAVE QUASHED THE PENALTY ORDER ON THE GROUND OF ILLEGALITY, THE OTHE R GROUNDS OF THE ASSESSEES APPEAL DOES NOT REQUIRE TO BE ADJUDICATE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 843/JP/2013 IS ALLOWED ORDER IS PRONOUNCED IN THE OPEN COURT ON TUESDAY, THE 11 TH DAY OF JULY 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 11/07/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. LALITA DEVI GUPTA, JAIPUR. 2. THE RESPONDENT THE DY. CIT, CENTRAL CIRCLE-2, J AIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 843/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR