ASHRAF GEETA KUMAR, MUMBAI V. ACIT CC 42, MUMBAI

ITA 871/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6693 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMLATHA
• Keywords: Search and seizure
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI M ANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 871 / MUM/2016 ( ASSESSMENT YEAR : 20 10 11 ) SMT. ASHRAF GEETA KUMAR MITTAL PARK, FLAT NO.410, E WING, RUIA PARK, JUHU MUMBAI 400 058 PAN AEUPA8297B . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 42, MUMBAI . RESPONDENT ITA NO.872/MUM/2016 ( ASSESSMENT YEAR : 2009 10 ) SMT. ASHRAF GEETA KUMAR MITTAL PARK, FLAT NO.410, E WING, RUIA PARK, JUHU MUMBAI 400 058 PAN AEUPA8297B . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 42, MUMBAI . RESPONDENT ASSESSEE BY : SHRI ANUJ KISNADWALA REVENUE BY : MS. N. HEMLATHA DATE OF HEARING 24 .0 5 .2018 DATE OF ORDER 2 SMT. ASHRAF GEETA KUMAR O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL S BY THE ASSESSEE ARE AGAINST TWO SEPARATE ORDER S , BOTH DATED 17 TH DECEMBER 2015 , PASSED BY THE L EARNED COMMISSIONER (APPEALS) 49 , MUMBAI , CONFIRMING PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) FOR THE ASSESSMENT YEAR S 2009 10 AND 20 10 11 . ITA NO.872/MUM./2016 ASSESSEES APPEAL A.Y. 2009 10 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. F O R THE ASSESSMENT YEAR UNDER DISPUTE, INITIALLY, THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. SUBSEQUENTLY, A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT IN CASE OF BHARTI SHI PYARD GROUP AND THE ASSESSEE WAS ALSO COVERED UNDER THE SAID SEARCH AND SEIZURE OPERATION. IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSEE FILED HER RETURN OF INCOME ON 25 TH MAY 2013 DECLARING TOTAL INCOME OF ` 5,84,244. THOUGH , THE ASSESSING OFFICER ULTIMATELY COMPLETED THE ASSESSMENT UNDER SECTION 153A R/W SECTION 143(3) OF THE ACT VIDE ORDER DATED 12 TH MARCH 2014, BY ACCEPTING THE INCOME RETURNED BY THE ASSESSEE, HOWEVER, HE INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UND ER SECTION 271F OF THE ACT FOR NON FILING OF RETURN OF INCOME UNDER SECTION 3 SMT. ASHRAF GEETA KUMAR 139(1) OF THE ACT AND FURTHER HE INITIATED PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ALLEGING CONCEALMENT OF INCOME BY WAY OF FURNISHING INACCURATE PARTICULARS OF INCOME. AS A LLEGED BY THE ASSESSING OFFICER , IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 274 R/W SECTION 271(1)(C) OF THE ACT , NEITHER THE ASSESSEE FILED ANY EXPLANATION NOR APPEARED BEFORE HIM. THUS, THE ASSESSING OFFICER PROCEEDED TO PASS AN ORDER IMPO SING PENALTY OF ` 77,096 UNDER SECTION 271(1)(C) OF THE ACT ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME LEADING TO CONCEALMENT OF INCOME. THOUGH, THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LEARNED COMMISSIONER (APPEALS), HOWEVER, SHE FAILED IN HER ATTEMPT TO GET THE PENALTY DELETED. 3 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , SINCE , THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT AND THE INCOME RETURNED IN THE RETURN OF INCOME FILED IN PURSUANCE T O NOTICE UNDER SECTION 153A WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY VARIATION , THE ASSESSEE CANNOT BE CHARGED WITH THE OFFENCE OF FURNISHING INACCURATE PARTICULARS OF INCOME. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE LEARNED COMMISSION ER (APPEALS) WHILE SUSTAINING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT HAS APPLIED EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , WHEN IN 4 SMT. ASHRAF GEETA KUMAR COURSE OF SEARCH AND SEIZURE OPERATION, NO MONEY, BULL ION, JEWELLERY, ETC. WERE FOUND IN THE POSSESSION OF THE ASSESSEE, EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT CANNOT BE APPLIED. 4 . WITHOUT PREJUDICE TO THE AFORESAID SUBMISSIONS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS NOT RECORDED ANY SATISFACTION WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED HER INCOME. HE SUBMITTED, IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 274 R/W SECTION 271(1) (C) OF THE ACT THE ASSESSING OFFICER HAS NOT SPECIFIED THE EXACT NATURE OF OFFENCE COMMITTED BY THE ASSESSEE BY STRIKING OFF THE INAPPROPRIATE WORDS. HE SUBMITTED , FOR THIS REASON ALSO, THE PENALTY ORDER CANNOT BE SUSTAINED. IN SUPPORT OF SUCH CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS: I ) M/S. ORBIT ENTERPRISES V/S ITO, ITA NO.1596 AND 1597/MUM./ 2014, DATED 01.09.2017; AND II ) RAJESH R. SHAH V/S ACIT, ITA NO.272 275/MUM./2016, DATED 13.12.2017. 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER (APPEALS). 5 SMT. ASHRAF GEETA KUMAR 6 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD , FOR THE IMPUGNED ASSESSMENT YEAR ASSESSEE HAD NOT FILED ANY RETU RN OF INCOME UNDER SECTION 139(1) OF THE ACT. THE ASSESSEE FILED HER RETURN OF INCOME ONLY IN PURSUANCE TO NOTICE ISSUED UNDER SECTION 153A OF THE ACT BY DECLARING INCOME OF ` 5,84,244. IT IS ALSO A FACT ON RECORD THAT THE ASSESSING OFFICER WHILE COMPLETIN G THE ASSESSMENT ACCEPTED THE INCOME RETURNED BY THE ASSESSEE. NO DOUBT, THE ASSESSING OFFICER HAS IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. HOWEVER, WHEN THE ASSESSEE HAS FI LED A SINGLE RETURN OF INCOME AND THE INCOME RETURNED THEREIN HAS BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY VARIATION , WE FAIL TO UNDERSTAND HOW THE ASSESSEE CAN BE CHARGED WITH THE OFFENCE OF FURNISHING INACCURATE PARTICULARS OF INCOME. FURTHER, LEARNED COMMISSIONER (APPEALS) WHILE SUSTAINING THE PENALTY HAS OBSERVED THAT THE ASSESSEES CASE FALLS WITHIN THE AMBIT OF EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT. HOWEVER, A CAREFUL READING OF THE IMPUGNED ASSESSMENT ORDER DOES NOT REVEAL ANY REFE RENCE TO THE FACT THAT THE INCOME RETURNED BY THE ASSESSEE WAS A RESULT OF ASSESSEE BEING FOUND TO BE THE OWNER OF ANY MONEY , BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING UNEARTHED DURING THE SEARCH AND SEIZURE OPERATION. FURTHER, HE HAS ALSO NOT R EFERRED TO ANY BOOKS 6 SMT. ASHRAF GEETA KUMAR OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS RELATING TO THE ASSESSEE FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT. THUS, IN THE ABSENCE OF ANY FACTUAL FINDING TO THAT EFFECT EITHER BY THE ASSES SING OFFICER OR BY THE LEARNED COMMISSIONER (APPEALS), EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT WILL NOT BE APPLICABLE TO THE ASSESSEE. THAT BEING THE CASE, IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THE INSTANT CASE IS NOT JUSTIFIED . THEREFORE, WE DELETE THE SAME. 7 . IN VIEW OF OUR AFORESAID DECISION , WE DO NOT FIND IT NECESSARY TO DEAL WITH THE WITHOUT PREJUDICE CONTENTION OF THE ASSESSEE REGARDING THE DEFECT IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 274 R/W SECTION 271(1)(C) OF THE ACT. 8 . IN THE RESULT, ASSESSEES APPEAL FOR A.Y. 2009 10 IS ALLOWED. ITA NO.871/MUM./2016 ASSESSEES APPEAL A.Y. 2010 11 9 . FACTS ARE IDENTICAL FOR THIS ASSESSMENT YEAR , EXCEPT , THE QUANTUM OF PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AT ` 75,845. THEREFORE , OUR DECISION IN ITA NO.872/MUM./2016, FOR ASSESSMENT YEAR 2009 10 WILL APPLY MUTATIS MUTANDIS TO THIS APPEAL ALSO. THAT BEING THE CASE, PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT IS DELETED. 7 SMT. ASHRAF GEETA KUMAR 10 . IN THE RESULT, ASSESSEES APPEAL FOR A.Y. 2010 11 IS ALLOWED. 11 . TO SUM UP, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.06. 2 0 18 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 29.06.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI