Deputy Commissioner of Income tax, V. Dr. Ravindra Bbasaheb Kadam, Pune

ITA 92/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2507 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 12-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANTOSH JADHAV
• Section: 271(1)(c); 143(3); 133A

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.92/PUN/2017 / ASSESSMENT YEAR : 2012-13 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 9, PUNE. . / APPELLANT V/S DR. RAVINDRA BABASAHEB KADAM, SHAKUN CLINIC, SANT BHOOMI, HOUSING SOCIETY, BEHIND NIGIDI BUS STOP, NIGIDI, PUNE. PAN : ABAPK8198G. . / RESPONDENT ASSESSEE BY : SHRI SANTOSH JADHAV / SHRI BHARAT SHAH. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY REVENUE IS EMANATING OUT OF THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS) 13, PUNE DATED 25.10 .2016 FOR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND A DOCTOR BY PROFESSION. A S URVEY OPERATION WAS CARRIED OUT U/S 133A OF ACT IN THE CASE OF ASSESSEE ON 12.01.2012. DURING THE COURSE OF SURVEY, ASSESSEE HAS DIS CLOSED / DATE OF HEARING : 20.02.2019 / DATE OF PRONOUNCEMENT: 08.03.2019 2 ITA NO.92/PUN/2017 ADDITIONAL INCOME OF RS.1,49,59,870/- FOR A.Y. 2012-13 AND TH E AFORESAID INCOME WAS INCLUDED IN THE RETURN OF INCOME FILED B Y THE ASSESSEE ON 13.08.2012 FOR A.Y. 2012-13. THE CASE WAS TA KEN UP FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143 (3) OF THE ACT VIDE ORDER DT.05.11.2014 AND THE TOTAL INCOME WAS DETER MINED AT RS.2,18,19,100/-, AFTER MAKING ADHOC DISALLOWANCE OF RS.1,42,64 2/- ON ACCOUNT OF CERTAIN EXPENDITURE BEING NOT VERIFIABLE. ON THE ADDITIONAL INCOME DISCLOSED DURING THE SURVEY ACTION AND W HICH WAS INCLUDED IN THE RETURN OF INCOME, AO IN THE PENALTY ORDER P ASSED U/S 271(1)(C) OF THE ACT DATED 15.05.2015 HELD THAT THE ADDITIONA L INCOME WAS DECLARED BY THE ASSESSEE ONLY AS A RESULT OF SURV EY AND HAD THE SURVEY U/S 133A OF THE ACT NOT BEEN CONDUCTED, THE A SSESSEE WOULD HAVE NEVER OFFERED SUCH ADDITIONAL INCOME IN THE RETURN OF INCOME. HE ACCORDINGLY HELD THAT ASSESSEE IS LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT AND VIDE PENALTY ORDER DATED 15.05.015 LEVIED PEN ALTY OF RS.46,22,600/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.25.10.2016 (IN APP EAL NO.PN/CIT(A)-13/ACIT CIR-09/104/2016-17) DELETED THE PE NALTY. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPE AL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) WAS JUSTIFIED IN DELETING THE PEN A LTY LEVIED OF RS . 46,22,600/ - WHEN THE ADDITION ON WHICH THE PENALTY WAS LEVIED WAS BASED ON SURVEY OPERATION ON ASSESSEE ' S HOSPITAL & A LARGE DIFFERENCE WAS NOTICED BETWEEN ASSESSEE ' S ACTUAL DAILY COLLECTION FROM HOSPITAL & MANU A L RECORDING IN THE BOOKS OF ACCOUNTS & D A IL Y ACCOUNTING PACKAGE. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD . CIT(A) ERRED IN NOT CONSIDERING THE HON'BLE SUPREME COURT'S DECISION IN THE CASE OF MAK DATA P. LTD . V/S. COMMISSIONER OF INCOME TAX-II (CIVIL APPEAL NO . 9772 OF 2013 , ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.18 389 OF 2013) IN WHICH HON ' BLE SUPREME COURT STATED THAT UNDER THE EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT, IT IS TRITE LAW THAT THE VOLU NTARY DISCLOSURE DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PRO CEEDINGS . THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLU NTARY DIS C LOSURE OF HIS CONCE A LED INCOM E , HE HAD TO BE ABSOLVED FROM PENALTY . 3 ITA NO.92/PUN/2017 3. BOTH THE GROUNDS BEING INTER-CONNECTED ARE CONSIDER ED TOGETHER. 4. BEFORE US, LD.D.R. TOOK US THROUGH THE ASSESSMENT ORD ER AND SUBMITTED THAT ASSESSEE HAD DISCLOSED ADDITIONAL INCOME OF RS.149.59 LACS ON THE BASIS OF ALLEGED RECEIPTS WHICH WERE NOT REFLEC TED IN THE BOOKS OF ACCOUNTS. HE SUBMITTED THAT THE INCOME WAS DEC LARED BY THE ASSESSEE ONLY ON ACCOUNT OF SURVEY CONDUCTED U/S 133 A OF THE ACT AND HAD THE SURVEY NOT BEEN CONDUCTED, THE ASSESSEE WOULD HAVE NEVER OFFERED SUCH ADDITIONAL INCOME IN THE RETURN. HE THE REFORE SUBMITTED THAT AO WAS FULLY JUSTIFIED IN LEVYING THE PENALTY U/S 271(1)(C) OF THE ACT. LD.A.R. ON THE OTHER HAND, REITERATED T HE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBM ITTED THAT ON IDENTICAL FACTS RESULTING OUT OF THE SAME SURVEY, A DDITION WAS ALSO MADE IN THE CASE OF DR. RANJANA, THE WIFE OF ASSESSEE. ON SUCH ADDITION, PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED BY THE A O. THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DT.01.02.2019 IN ITA NO.91/PUN/2017 HAD DISMISSED THE APPEAL OF REVENUE. HE P LACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE R ELYING ON THE ORDER OF TRIBUNAL IN THE CASE OF ASSESSEES WIFE SUPPORT ED THE ORDER OF LD.CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESP ECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IT IS AN UNDISPUTED FACT T HAT ADDITIONAL INCOME OF RS.1.49 CRORES WAS OFFERED BY THE ASSE SSEE DURING THE COURSE OF SURVEY CONDUCTED ON 12.01.2012. IT IS ALSO A FACT THAT AFORESAID ADDITIONAL INCOME WAS OFFERED BY THE ASSESSE E IN HIS RETURN OF INCOME AND THE SAME HAS BEEN ACCEPTED BY TH E AO IN THE 4 ITA NO.92/PUN/2017 ASSESSMENT FRAMED U/S 143(3) OF THE ACT. WE FIND THAT LD.C IT(A) WHILE DELETING THE PENALTY HAS NOTED THAT ON THE DATE OF SURVEY, THE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT HAD NOT EXPIRE D AND ASSESSEE HAD ALSO NOT FILED HIS RETURN OF INCOME UPTO THE DATE OF SURVEY. HE HAS FURTHER NOTED THAT THE FACT OF CONCEALM ENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME CAN BE ESTABLISHED ONLY WITH REFERENCE TO THE INCOME DECLARED IN THE RETURN OF INCOME. IN THE PRESENT CASE, SINCE THE INCOME DECLARED B Y THE ASSESSEE IN THE RETURN OF INCOME HAS BEEN ACCEPTED, THE RE CANNOT BE THE CASE OF CONCEALING THE PARTICULARS OF INCOME OR FUR NISHING THE INACCURATE PARTICULARS OF INCOME. WE FURTHER FIND THAT THE CASE OF DR. RANJANA, THE WIFE OF ASSESSEE, PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE ADDITIONAL INCOME DECLARED OUT OF THE SAME SURVE Y WAS DELETED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DT.01 .02.2019. CONSIDERING THE TOTALITY OF THE FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A), MORE SO WHEN NO FALLACY HAS B EEN POINTED OUT BY THE REVENUE IN THE ORDER OF LD.CIT(A). THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON 8 TH DAY OF MARCH, 2019. SD/- SD/- ( PARTHA SARATHI CHAUDHURY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 8 TH MARCH, 2019. YAMINI 5 ITA NO.92/PUN/2017 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-13, PUNE. PR. CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.