RANJANA SUD, MUMBAI V. ACIT CIR 19(1), MUMBAI

ITA 98/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70610 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-03-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 05-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: G P MEHTA
• Keywords: Period of limitation; Revised return
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI . . , , BEFORE SHRI B. R. BASKARAN, AM AND SHRI SANJAY GAR G, JM ./ I.T.A. NOS. 93 TO 95/MUM/2012 ( / ASSESSMENT YEAR: 1998-99 TO 2000-01) RAVI SUD, 601, MOON BEAM, UNION PARK, KHAR (W), MUMBAI-400 052 / VS. ASST. CIT, WARD 19(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI ! ./' ./PAN/GIR NO. AADPS 3736 J ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) & ./ I.T.A. NOS. 96 TO 98/MUM/2012 ( / ASSESSMENT YEAR: 1998-99 TO 2000-01) RANJANA SUD 601, MOON BEAM, UNION PARK, KHAR (W), MUMBAI-400 052 / VS. ASST. CIT, WARD 19(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI ! ./' ./PAN/GIR NO. AMSPS 3723 L ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !# & ' / APPELLANT BY : SHRI G. P. MEHTA $%!# & ' / RESPONDENT BY : SHRI LOVE KUMAR ( )* & +, / DATE OF HEARING : 02.03.2015 -./0 & +, / DATE OF PRONOUNCEMENT : 04.03.2015 2 ITA NOS. 93 TO 95/MUM/2012 (A.YS. 98-99 TO 00-01) RAVI SUD VS. ASST. CIT ITA NOS. 96 TO 98/MUM/2012 (A.YS. 98-99 TO 00-01) RANJANA SUD VS. ASST. CIT 1 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE ABOVE TILTED APPEALS HAVE BEEN PREFERRED BY THE DIFFERENT BUT RELATED ASSESSEES AGAINST THE ORDERS OF THE COMMISSIONER O F INCOME TAX (APPEALS)-22, MUMBAI (CIT(A) FOR SHORT) ALL DATED 13.10.2011, CONTESTI NG THE CONFIRMATION OF THE LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEARS (A.Y.) 1998-00 TO 2000-01 VIDE ORD ERS OF THE ASSESSING OFFICER ALL DATED 31.03.2009. SINCE THE FACTS AND THE ISSUE INV OLVED IN ALL THE APPEALS ARE IDENTICAL, HENCE THE SAME ARE TAKEN TOGETHER FOR DISPOSAL BY T HIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, THE FACTS HAVE BEEN TAKEN FROM ITA NO. 93/MUM/2012. ITA NOS. 93 TO 95/MUM/2012 FOR A.Y. 1998-99 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED HIS RETURN OF INCOME ON 21.12.1998 DECLARING THE TOTAL INCOME OF RS.1,69,90 0/-. SUBSEQUENTLY, THE ASSESSEE FILED ITS REVISED RETURN ON 30.05.2003 DECLARING THE ADDI TIONAL INCOME OF RS.7,50,000/- BEING SHARE OF PROFIT FROM FIRM M/S. R. K. OVERSEAS, WHI CH WAS CLAIMED AS EXEMPT IN THE ORIGINAL RETURN. THE REVISED RETURN SO FILED BY THE ASSESSEE WAS BEYOND THE PERIOD OF LIMITATION PRESCRIBED FOR FILING OF THE SAME. THERE AFTER A NOTICE U/S. 148 WAS ISSUED ON 30.07.2004, IN RESPONSE TO WHICH THE ASSESSEE SUBMI TTED THAT THE REVISED RETURN FILED ON 30.05.2003 BE TREATED AS FILED IN RESPONSE TO NOTIC E U/S. 148. THE ASSESSMENT WAS THEREAFTER COMPLETED U/S.143(3) R/W S. 147 ON 31.12 .2005, DETERMINING THE TOTAL INCOME AT RS.10,01,104/- AS WAS DECLARED BY THE ASSESSEE IN T HE REVISED RETURN. PENALTY PROCEEDINGS U/S. 271(1)(C) WERE ALSO INITIATED. THE ASSESSING O FFICER (A.O.) NOTICED THAT A SEARCH ACTION U/S.132 OF THE ACT WAS CARRIED OUT AT THE FI RM M/S. R. K. OVERSEAS, AMRITSAR AND DURING THE ENQUIRIES IT WAS NOTICED THAT THE SAID F IRM WAS A BOGUS FIRM OPERATED ON BY ONE CHARTERED ACCOUNTANT NAMELY SHRI VIVEK KAPOOR, AND HIS EMPLOYEES. THE ASSESSEE ALLEGEDLY HAD SHOWN TO HAVE RECEIVED PROFITS FROM T HE SAID FIRM. AFTER THE DETECTION OF THE ALLEGED BOGUS FIRMS OPERATED BY THE SAID SHRI VIVEK KAPOOR, C.A., THE ASSESSEE DECLARED 3 ITA NOS. 93 TO 95/MUM/2012 (A.YS. 98-99 TO 00-01) RAVI SUD VS. ASST. CIT ITA NOS. 96 TO 98/MUM/2012 (A.YS. 98-99 TO 00-01) RANJANA SUD VS. ASST. CIT THE INCOME OF RS.74,69,150/- IN HIS TIME BARRED REV ISED RETURN. THE A.O. THEREFORE HELD THAT THE CASE OF THE ASSESSEE WAS A CASE OF UNACCOU NTED INCOME AND THAT THE ASSESSEE HAD CAME FORWARD AND FILED THE REVISED RETURN ONLY AFTE R THE FACT OF RUNNING OF BOGUS FIRMS BY SHRI VIVEK KAPOOR, C.A. WAS DETECTED. 3. THOUGH, THE ASSESSEE PLEADED THAT THE INCOME IN THE REVISED RETURN WAS OFFERED BY THE ASSESSEE VOLUNTARILY AND SUO MOTU AND, THEREFORE, IT WAS NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME, HOWEVER, THE A.O. OBSERVED THAT THE ASSESSEE HAD FILED THE RETURN SUBSEQUENTLY TO THE DETECTION OF THE OPERATION OF BOGUS FIRMS BY THE C.A. AND, THEREFORE, THE REVISED RETURN FILED BY THE ASSESSEE WAS NOT VOLUNTARY BUT WAS UNDER CONSTRAIN OF DETECTION AND FOLLOW UP ACTION BY THE DEPARTMENT. HE, THEREFORE, HELD IT TO BE A CASE OF CONCEALMENT OF INCOME AND LEVIED THE PENALTY OF RS.2,49,450/- U/S.271(1)(C) OF THE ACT. IN FIRST AP PEAL, THE LD. CIT(A) CONFIRMED THE PENALTY SO LEVIED BY THE A.O. THE ASSESSEE HAS THUS CAME IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORD. IN THIS CASE, IT IS NOT DISPUTED THAT NO ESCAPEMENT OF INCO ME WAS DETECTED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. THOUGH A SEARCH ACTION WAS CARRIED OUT IN THE PREMISES OF THE SHRI VIVEK KAPOOR, C.A., AND IT WAS FOUND THAT THE SAID C.A. WAS OPERATING BOGUS FIRMS, HOWEVER, NO PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE EITHER U/S.153C OF THE ACT OR U/S.147 OF THE ACT PURSUANT TO THE SAID SEARCH ACTI ON AGAINST THE SAID C.A. THE ASSESSEE HIMSELF FILED A REVISED RETURN DECLARING AN ADDITIO NAL INCOME WHICH WAS CLAIMED IN THE ORIGINAL RETURN TO HAVE BEEN RECEIVED AS SHARE OF P ROFIT FROM THE FIRM M/S. R. K. OVERSEAS. THE REASSESSMENT U/S. 147(1) WAS DONE IN THIS CASE SUBSEQUENT TO THE FILING OF THE REVISED RETURN SO THAT THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE MAY BE VALIDLY ASSESSED AS THE REVISED RETURN WAS INVALID BEING TIME BARRED. T HE PRESENT IS NOT A CASE WHERE ANY CONCEALMENT OF INCOME WAS DETECTED EITHER DURING TH E ORIGINAL ASSESSMENT PROCEEDINGS OR PURSUANT TO ANY ACTION OF REASSESSMENT EITHER U/S. 153C OF THE ACT OR U/S. 147 OF THE ACT. THE ASSESSEE IN THIS CASE HAS SUO MOTU OFFERED THE ADDITIONAL INCOME AND THE SAME WAS 4 ITA NOS. 93 TO 95/MUM/2012 (A.YS. 98-99 TO 00-01) RAVI SUD VS. ASST. CIT ITA NOS. 96 TO 98/MUM/2012 (A.YS. 98-99 TO 00-01) RANJANA SUD VS. ASST. CIT NOT DETECTED DURING ANY COURSE OF ACTION BY THE REV ENUE AUTHORITIES AGAINST THE ASSESSEE. UNDER SUCH CIRCUMSTANCES, IT CANNOT BE SAID TO BE A CASE WHERE ANY CONCEALMENT OF INCOME IS DETECTED AGAINST THE ASSESSEE INVITING PE NALTY ACTION U/S.271(1)(C) OF THE ACT. HENCE, IT CANNOT BE SAID TO BE A CASE OF CONCEALMEN T OF INCOME BY THE ASSESSEE SO FAR AS THE ASSESSMENT PROCEEDINGS U/.S 147 ARE CONCERNED. THE ASSESSMENT PROCEEDINGS U/S. 147, AS DISCUSSED ABOVE, WERE CARRIED OUT JUST TO VALIDA TE THE INVALID REVISED RETURN AND NOT ON ACCOUNT OF ANY DETECTION OF ESCAPEMENT OF INCOME. I N VIEW OF THE ABOVE, WE DO NOT FIND IT AS A CASE FIT FOR LEVY OF PENALTY U/S.271(1)(C). TH E PENALTY SO LEVIED BY THE LOWER AUTHORITIES IS, THEREFORE, ORDERED TO BE DELETED. ITA NOS. 94 & 95/MUM/2012 FOR A.YS. 1999-2000 & 200 0-01 AND ITA NOS. 96 TO 98/MUM/2012 FOR A.YS. 1989-99 TO 200 0-01 5. SINCE THE FACTS OF THESE APPEALS ARE ALSO IDENTI CAL, AND IN VIEW OF OUR OBSERVATIONS MADE ABOVE, ALL THE ABOVE TITLED APPEALS ARE ALSO H EREBY ALLOWED AND THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IS HEREBY ORDERED TO BE D ELETED. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 4 TH , 2015 SD/- SD/- (B. R. BASKARAN) (SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( * MUMBAI; 2 DATED : 04.03.2015 ). ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( 3+ ( ) / THE CIT(A) 4. ( 3+ / CIT - CONCERNED 5. 6) $+ 78 , , 78 0 , ( * / DR, ITAT, MUMBAI 5 ITA NOS. 93 TO 95/MUM/2012 (A.YS. 98-99 TO 00-01) RAVI SUD VS. ASST. CIT ITA NOS. 96 TO 98/MUM/2012 (A.YS. 98-99 TO 00-01) RANJANA SUD VS. ASST. CIT 6. 9* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ( * / ITAT, MUMBAI