M/s Amminabhavi Brothers, Dharwad V. ITO, Hubli

ITA 954/BANG/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7373 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-07-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 21-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU J
• Assessee Lawyers: B ALARAM P R AO
• Keywords: Search and seizure; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO S . 951 TO 955 /BANG/201 4 ASSESSMENT YEAR S : 20 04 05 TO 20 08 09 M/S. AMMINABHAVI BROTHERS, NEW APMC YARD, DHARWAD - 580008 PAN: AALFA0764G VS. THE ITO , WARD 2 (1), HUBLI APPELLANT RESPONDENT ASSESSEE BY : SHRI B ALARAM P. R AO, ADVOCATE REVENUE BY : SHRI M. K. BIJU J CIT (DR) DATE OF HEARING : 1 6 . 1 0 .201 7 DATE OF PRONOUNCEMENT : 26 .10 .2017 O R D E R PER BENCH: ALL THESE FIVE APPEALS ARE FILED BY THE ASSESSEE A ND THESE ARE DIRECTED AGAINST A COMBINED ORDER OF CIT (A) HUBLI DATED 25.03.2014 FOR ASSESSMENT YEARS 2004 05 TO 2008 09. 2. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BE ING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. IN ALL THESE APPEALS, ALTHOUGH VARIOUS GROUNDS A RE RAISED BY THE ASSESSEE BUT THE EFFECTIVE GRIEVANCE IS ONLY ONE IN EACH YEAR AN D THE SAME IS REGARDING CONFIRMING OF PENALTY IMPOSED BY THE A.O. U/S 271 ( 1) (C ) OF THE I. T. ACT OF RS. 20,000/- IN A. Y. 2004 05, RS. 55,000/- IN A. Y. 2005 06, RS. 105,000/- IN A. Y. 2006 07, RS. 220,000/- IN A. Y. 2007 08 AND RS. 105,000/- IN A. Y. 2008 09. ITA NOS. 951 TO 955/BANG/2014 PAGE 2 OF 4 4. LEARNED AR OF THE ASSESSEE SUBMITTED THAT IN ALL THESE YEARS, ONLY ESTIMATED ADDITIONS ARE MADE BY THE A. O. AND ON SUCH ESTIMAT ED ADDITIONS, NO PENALTY IS JUSTIFIED. IN SUPPORT OF THIS CONTENTION, HE PLA CED RELIANCE ON A JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT RENDERED IN THE CASE OF CIT VS. RAVAIL SINGH & CO. AS REPORTED IN 254 ITR 191. 5. AS AGAINST THIS, LEARNED DR OF THE REVENUE SUPPO RTED THE PENALTY ORDER AND ORDER OF CIT (A). HE ALSO SUBMITTED THAT AS PER PAR A 11 OF THE PENALTY ORDER FOR A. Y. 2004 05, IT IS NOTED THAT THE ASSESSEE DID NOT FILE RETURN OF INCOME AND THEREFORE, THERE IS CONCEALMENT OF TURNOVER AND THERE IS BOOKS OF ACCOUNT AND THEREFORE, THERE IS NO OPTION BUT TO MAKE ESTIM ATED ADDITION AND THEREFORE, IN THE FACTS OF THE PRESENT CASE WHICH ARE IDENTICA L IN ALL YEARS, PENALTY IS JUSTIFIED. HE PLACED RELIANCE ON THE FOLLOWING JUDG MENTS:- A) CIT VS. S. KRISHNASWAMY & SONS, 219 ITR 157 (MAD .), B) SUSHILKUMAR SHARADKUMAR VS. CIT, 232 ITR 588 (AL L.), C) CIT VS. SMT. CHANDRAKANTA, 205 ITR 607 (MP). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THERE IS NO DISPUTE THAT THE ADDITION ON WHICH PENALTY IS IMPOSED IS AN ESTIMATED ADDITION IN EACH YEAR. IN THE LIGHT THESE FACTS, FIRST WE EXAMINE TH E APPLICABILITY OF JUDGMENTS CITED BY BOTH SIDES. LEARNED AR OF THE ASSESSEE HAS PLACED RELIANCE ON A JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT REN DERED IN THE CASE OF CIT VS. RAVAIL SINGH & CO. (SUPRA). IN THIS CASE, I T WAS HELD THAT PENALTY UNDER S. 271(1)(C) WAS NOT LEVIABLE WHERE THE ADDIT ION TO ASSESSEES INCOME WAS MADE ON THE BASIS OF ESTIMATE AND NOT ON ANY CO NCRETE EVIDENCE OF CONCEALMENT OF ANY TRANSACTION OR FURNISHING OF INA CCURATE PARTICULARS. AS PER THIS JUDGMENT, PENALTY IN THE PRESENT CASE IS NOT V ALID & JUSTIFIED. 7. LEARNED DR OF THE REVENUE HAS PLACED RELIANCE ON A JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF CIT VS. S . KRISHNASWAMY & SONS (SUPRA). IN THIS CASE, THE FACTS WERE THAT ASSESSEE 'S PREMISES WERE RAIDED AND TRIP SHEETS WERE SEIZED WHICH REVEALED SUPPRESSION OF COLLECTION FROM BUSES FOR 33 DAYS FOR ASST. YR. 1979-80 AND FOR 54 DAYS FOR A SST. YR. 1980-81 AND THE ITA NOS. 951 TO 955/BANG/2014 PAGE 3 OF 4 ASSESSEE ADMITTING SUPPRESSION AND FILED REVISED RE TURNS. UNDER THESE FACTS IT WAS HELD THAT PENALTY FOR CONCEALMENT WAS VALID. HE NCE, IT IS SEEN THAT IN THAT CASE, CONCEALMENT WAS ESTABLISHED BY WAY OF INCRIMI NATING MATERIAL FOUND IN SEARCH AND ONLY THE QUANTUM OF CONCEALMENT WAS ESTI MATED. IN THE PRESENT CASE, THERE WAS SURVEY BUT NO INCRIMINATING MATERIA L WAS FOUND IN SURVEY AND THEREFORE, IN THE FACTS OF THE PRESENT CASE, EVEN T HE ALLEGATION OF CONCEALMENT IS BASED ON ESTIMATION MADE BY THE A.O. AND NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND IN SEARCH OR SURVEY AND THEREFORE, T HIS JUDGMENT IS NOT APPLICABLE. 8. LEARNED DR OF THE REVENUE HAS ALSO PLACED RELIAN CE ON A JUDGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF SUSHIL KUMAR SHARADKUMAR VS. CIT (SUPRA). IN THIS CASE, IT WAS FOUND THAT THE AS SESSEE HAD SHOWN VERY LOW HOUSEHOLD EXPENSES WHEREAS THERE WAS EVIDENCE OF HI GHER EXPENDITURE AND THE ASSESSEE LED NO FRESH EVIDENCE IN PENALTY PROCE EDINGS AND UNDER THESE FACTS, THE INFERENCE WAS DRAWN THAT THE AMOUNT ADDE D REPRESENTED CONCEALED INCOME JUSTIFYING PENALTY UNDER S. 271(1)(C). HENCE , IT IS SEEN THAT IN THAT CASE, THESE WAS EVIDENCE OF HIGHER EXPENDITURE AS COMPARE D TO DRAWINGS SHOWN BY THE ASSESSEE AND HENCE, IT IS SEEN THAT IN THAT CAS E, THE PENALTY WAS ON THE BASIS OF MATERIAL ON RECORD SUPPORTING THE ALLEGATI ON OF CONCEALMENT. FACTS IN THE PRESENT CASE ARE DIFFERENT AND THEREFORE, THIS JUDGMENT ALSO IS OF NO HELP TO THE REVENUE. 9. LEARNED DR OF THE REVENUE HAS ALSO PLACED RELIAN CE ON A JUDGMENT OF HONBLE M. P. HIGH COURT RENDERED IN THE CASE OF CIT VS. S MT. CHANDRAKANTA (SUPRA). IN THIS CASE, THE A. Y. IS 1963 64 AND AS PER THE FACTS NOTED IN THIS JUDGMENT, THE ASSESSEE FIRST SHOWED A LOSS OF RS. 50,000 AND LATER, HE REVISED THE RETURN SHOWING PROFIT OF RS. 7,500. THERE IS NO FINDING TH AT THE REVISED RETURN FILED IS A VALID REVISED RETURN AS PER LAW. HENCE, IT HAS TO B E INFERRED THAT THE REVISED RETURN WAS NOT A VALID REVISED RETURN BECAUSE, IF T HE REVISED RETURN IS A VALID REVISED RETURN, THERE CANNOT BE ANY CONCEALMENT AND THE FINDING OF HIGH COURT IS THIS THAT THERE WAS CONCEALMENT. THESE FACTS REV EAL THAT CONCEALMENT WAS NOT ON THE BASIS OF ESTIMATE BY THE AS.O. BUT ON TH E BASIS OF ASSESSEE HIMSELF SHOWING LOWER INCOME IN THE RETURN OF INCOME AND TH EREAFTER SHOWING HIGHER ITA NOS. 951 TO 955/BANG/2014 PAGE 4 OF 4 INCOME WITHOUT FILING A VALID REVISED RETURN. FACTS IN THE PRESENT CASE ARE DIFFERENT AND THEREFORE, THIS JUDGMENT ALSO IS OF N O HELP TO THE REVENUE. 10. AS PER ABOVE DISCUSSION, WE FIND THAT THE JUDGM ENTS CITED BY THE DR OF THE REVENUE ARE RENDERING ANY HELP TO THE REVENUE AND T HE JUDGMENT CITED BY THE LEARNED AR OF THE ASSESSEE SUPPORTS THE CASE OF THE ASSESSEE. HENCE, RESPECTFULLY FOLLOWING THIS JUDGMENT, WE DELETE THE PENALTY IN ALL THESE FIVE YEARS. 11. IN THE RESULT, ALL FIVE APPEALS FILED BY THE AS SESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 26 TH OCTOBER, 2017. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.