INCOME TAX OFFICER, Jaipur V. SHRI GULAM FAROOQ ANSARI, Jaipur

ITA 899/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2131 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHAVIRAJ MEENA
• Keywords: Search and seizure
• Section: 143(3); 153A; 132

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 FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 896 TO 901/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2005-06 TO 07-08 & 2009-10 TO 2011 -12 INCOME TAX OFFICER, WARD- 2(1), JAIPUR. CUKE VS. SHRI GULAM FAROOQ ANSARI, 3261-62, MAJID MANSION, JAIPUR, NAWAB KA CHOURAHA, GHATGATE,JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABPF0454A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI PRITHAVI RAJ MEENA( JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30.01.2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 31/01/2018 VKNS'K@ ORDER PER BENCH: THESE SIX APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE COMPOSITE ORDER DATED 29.09.2017 OF CIT(A), JAIPUR ARISING FROM THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT FOR T HE ASSESSMENT YEARS 2005-06 TO 2007-08 & 2009-10 TO 2011-12 RESPECTIVEL Y. THE REVENUE HAS RAISED COMMON GROUNDS IN THESE APPEALS EXCEPT T HE QUANTUM OF ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 2 PENALTY DELETED BY THE LD. CIT(A). THE GROUNDS RAIS ED FOR THE ASSESSMENT YEAR 2005-06 AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE PEN ALTY U/S 271(1)(C) OF THE I.T. ACT, 1961 AMOUNTING TO RS. 1, 40,000/- WITHOUT CONSIDERING THE FACTS AS MENTIONED BY THE A O IN THE ASSESSMENT ORDER WHILE THE REVENUE HAS FILED APPEAL BEFORE THE HONBLE COURT. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR AD D TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 2. THERE WAS SEARCH AND SEIZURE ACTION U/S 132 OF T HE ACT ON 22.09.2010 IN CASE OF SHREE RAM GROUP, JAIPUR TO WH ICH THE ASSESSEE BELONGS. THE ASSESSEE DISCLOSED AND SURRENDERED INC OME WHICH WAS OFFERED TO TAX FOR THE ASSESSMENT YEARS 2010-11 & 2 011-12 HOWEVER, WHILE FRAMING THE ASSESSMENT U/S 153A R.W.S. 143(3) AND U/S 153B R.W.S. 143(3) FOR THE ASSESSMENT YEARS UNDER CONSID ERATION THE ASSESSING OFFICER MADE ADDITION TO THE RETURN INCOM E OF THE ASSESSEE. THE ASSESSEE CARRIED THE MATTER AGAINST THE ASSESSM ENT PASSED U/S 153A AS WELL AS U/S 153B OF THE ACT TO THIS TRIBUNA L AND THIS TRIBUNAL VIDE ORDER DATED 20.03.2017 IN ITA NOS. 776, 971/JP 2015, 748/JP2014, 777/JP/2015, 972/JP2015, 973/JP/2015, 839/JP/2015, 01/JP/2016 & 02/JP/2016 DELETED THE ADDITIONS MADE BY THE AO. IN THE MEAN TIME THE AO LEVIED PENALTY U/S 271(1)(C) AND 271AAA OF T HE ACT IN RESPECT OF ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 3 THE ADDITION MADE BY THE AO TO THE RETURNED INCOME AS WELL AS THE INCOME SURRENDERED AND OFFERED TO TAX BY THE ASSESS EE. THE ASSESSEE CHALLENGED THE LEVY OF PENALTY U/S 271(1)(C) AS WEL L AS U/S 271AAA OF THE ACT BEFORE THE LD. CIT(A). THE LD. CIT(A) WHILE PASSING THE IMPUGNED COMPOSITE ORDER DELETED THE PENALTY LEVIED BY THE AO U/S 271(1)(C) ON THE GROUND THAT THE ADDITION MADE BY T HE AO WAS DELETED BY THE TRIBUNAL IN THE QUANTUM APPEALS. THUS, AGGRI EVED BY THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE PENAL TY LEVIED U/S 271(1)(C) OF THE ACT THE REVENUES FILED THESE APPEA LS. THE ASSESSEE HAS ALSO FILED APPEALS AGAINST THE ORDER OF THE LD. CIT (A) FOR THE ASSESSMENT YEAR 2010-11 AND 2011-12 IN RESPECT OF THE PENALTY LEVIED ON ACCOUNT OF SURRENDERED AND DISCLOSER MADE BY THE ASSESSEE O F UNDISCLOSED INCOME. THEREFORE, WE FIND THAT THE ISSUES INVOLVED IN THE REVENUES APPEALS IS ENTIRELY DIFFERENT AND SEPARATELY FROM T HE ISSUE INVOLVED IN THE ASSESSEES APPEAL WHICH IS REQUIRED TO BE DECID ED ON MERITS WHEREAS THE REVENUES APPEALS ARE AGAINST THE DELET ION OF PENALTY ON ACCOUNT OF RELIEF GRANTED BY THE TRIBUNAL IN THE QU ANTUM APPEALS. BOTH THE PARTIES HAVE ALSO AGREED THAT THE ISSUE RAISED BY THE ASSESSEE IN ITS APPEAL IS NOT COMMON OR CONNECTED WITH THE ISSUE RA ISED BY THE REVENUE IN THESE APPEALS. THE LD. DR SOUGHT TIME TO ARGUE THE APPEALS ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 4 FILED BY THE ASSESSEE. ACCORDINGLY, WE FIND THAT TH E FINDING AND DECISION IN THE APPEALS FILED BY THE REVENUE SHALL HAVE NO B EARING ON THE ISSUE INVOLVED IN THE ASSESSEES APPEAL. HENCE, WE GRANTE D TIME TO THE LD. DR FOR ARGUING THE APPEAL FILED BY THE ASSESSEE AND AC CORDINGLY THE SAME WERE ADJOURNED. 3. BEFORE US, THE LD. DR HAS SUBMITTED THAT THE ORD ER OF THIS TRIBUNAL IN THE QUANTUM APPEAL HAS BEEN CHALLENGED BY THE RE VENUE BEFORE THE HONBLE HIGH COURT AND THE APPEALS FILED BY THE REV ENUES ARE PENDING BEFORE THE HONBLE HIGH COURT. HE HAS RELIED UPON T HE ORDER OF THE ASSESSING OFFICER PASSED U/S 271(1)(C) OF THE INCOM E TAX ACT. 4. ON THE OTHER HAND, LD. AR OF THE ASSESSEES HAVE SUBMITTED THAT WHEN THE QUANTUM ADDITION MADE BY THE AO HAS BEEN D ELETED BY THIS TRIBUNAL THEN THE PENALTY LEVIED U/S 271(1)(C) ON S UCH ADDITION IS NOT SUSTAINABLE. HE HAS SUPPORTED THE ORDER OF THE LD. CIT(A). 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT THE COMMON ISSUES INVOLVED IN THESE APPEALS OF THE REVENUE IS WHETHER THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT BY CONSIDERING THE FACT THAT THE TRIBUNAL HAS DELETED THE ADDITIONS MADE BY ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 5 THE AO. THE ASSESSING OFFICER WHILE PASSING THE ORD ER U/S 271(1)(C) OF THE ACT FOR THESE ASSESSMENT YEARS HAS LEVIED PENAL TY AS UNDER:- A.Y. SECTION DATE OF ORDER AMOUNT OF PENALTY 2007-08 271(1)(C) 30.03.2016 RS. 8,25,000/- 2005-06 271(1)(C) 21.03.2017 RS. 1,40,000/- 2006-07 271(1)(C) 21.03.2017 RS. 1,72,000/- 2009-10 271(1)(C) 27.03.2017 RS. 27,00,000/- 2010-11 271(1)(C) 27.03.2017 RS. 7,14,000/- 2011-12 271(1)(C) 27.03.2017 RS. 51,500/- THESE PENALTY LEVIED BY THE AO ARE COMPOSITE AMOUNT S AGAINST TWO ADDITIONS IN THE INCOME OF THE ASSESSEE, ONE IS MAD E BY THE AO WHICH WAS DELETED BY THE TRIBUNAL AND ANOTHER IS MADE WHI CH WAS SURRENDERED AND OFFERED TO TAX BY THE ASSESSEE. THE LD. CIT(A) DELETED THE PENALTY LEVIED BY THE AO IN RESPECT OF THE ADDI TIONS MADE BY THE AO WHILE PASSING THE ASSESSMENT U/S 153A AND 153B R.W. S. 143(3) OF THE INCOME TAX. WE FURTHER NOTE THAT THE REVENUE HAS NO T DISPUTED THE FACT THAT THE TRIBUNAL HAS DELETED THE ADDITIONS MA DE BY THE AO AND CONSEQUENTLY THE PENALTY LEVIED BY THE ASSESSING TO THE EXTENT OF ADDITION DELETED BY THE TRIBUNAL IS NOT SUSTAINABLE . HENCE, WE DO NOT ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 6 FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) WHEN THE TRIBUNAL WHILE PASSING THE ORDER DATED 20.03.20 17 IN QUANTUM APPEALS DELETED THE ADDITION MADE BY THE AO. THEREF ORE, THE PENALTY LEVIED U/S 271(1)(C) WOULD NOT SURVIVE AND ACCORDIN GLY HAS BEEN RIGHTLY DELETED BY THE LD. CIT(A). WE FURTHER NOTE THAT MER ELY FILING OF THE APPEAL BEFORE THE HONBLE HIGH COURT WILL NOT HELP THE CASE OF THE REVENUE WHEN NEITHER THE SAID ORDER IS STAYED NOR R EVERSED BY THE HONBLE HIGH COURT. ACCORDINGLY, IN THE FACTS AND C IRCUMSTANCES OF THE CASE WHEN THE ADDITION MADE BY THE AO ITSELF HAS BE EN DELETED BY THE TRIBUNAL IN THE QUANTUM APPEALS THEN THE LEVY OF PE NALTY HAS NO LEGS TO STAND. IN THE RESULT, THESE SIX APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/01/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/01/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE RESPONDENT- ITO, WARD- 2(1), JAIPUR. 2. IZR;FKHZ@ THE APPELLANT- SHRI GULAM FAROOQ ANSARI, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) ITA NO. 896 TO 901/JP/2017 ITO V SHRI GULAM FAROOQ ANSARI, JAIPUR 7 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 896 TO 901/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR