DCIT, Chandigarh V. Sh. Rajiv Chopra, Solan

ITA 990/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95711 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: GAUTAM JAIN
• Keywords: Document seized; Documents seized
• Section: 2; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 990/CHD/2014 ASSESSMENT YEAR: 2010-11 THE DCIT, VS SHRI RAJIV CHOPRA, CENTRAL CIRCLE II, PROP. SUGANDHA APARTMENTS, CHANDIGARH. NEAR SAPROON GURUDWARA, SOLAN. PAN: ABZPC1056G (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI MANJIT SINGH RESPONDENT BY : SHRI GAUTAM JAIN DATE OF HEARING : 26.11.2015 DATE OF PRONOUNCEMENT : 27.11.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) CENTRAL, GURGAON DATED 04.09.2014 FOR ASSESSMENT YEAR 2010-11 CHALLENGING THE CANCELLATION OF PENALTY UNDER SECTION 271AAA OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT IN THIS C ASE, SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 11.09.2009 IN BUSINESS AND RESIDENTIAL PREMISES OF SAHNI GROUP OF CASES. THE ASSESSMENT WAS COMPLETED 2 UNDER SECTION 153B(1)(B) READ WITH SECTION 143(3) O F INCOME TAX ACT AT A TOTAL INCOME OF RS. 49.46 CR ON 29.12.2011 AGAINST THE TOTAL RETURNED INCOME OF RS.2,55,49,150/-. PENALTY UNDER SECTION 271AAA OF RS. 28 LACS WAS INITIATED AND SUBSEQUENTLY LEVIED O N SURRENDERED AMOUNT OF RS. 2.80 CR AS THE ASSESSEE FAILED TO SUBSTANTIATE THE MANNER OF EARNING THE SA ME. 3. THE ASSESSEE CHALLENGED THE LEVY OF PENALTY AND WRITTEN SUBMISSION OF THE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER, IN WHICH THE ASSESSEE BRIEFLY EXPL AINED THAT ASSESSING OFFICER ACCEPTED THE RETURNED INCOME . THREE STATEMENTS OF THE ASSESSEE WERE RECORDED. TH E ASSESSEE RELIED UPON SEVERAL JUDGEMENTS IN SUPPORT OF HIS CONTENTION THAT AFORESAID PENALTY CANNOT BE LEV IED IN THIS CASE. THE LD. CIT(APPEALS), ON GOING THROUGH THE RECORD FOUND THAT STATEMENTS WERE RECORDED UNDER SECTION 132(4) OF THE ACT ON 23.09.2009 AND 25.09.2 009 IN WHICH ASSESSEE HAS MADE TOTAL SURRENDER OF RS. 3 CR BEFORE ADIT, CHANDIGARH TO COVER UP DISCREPANCIES/UNACCOUNTED TRANSACTIONS MENTIONED IN THE SEIZED DOCUMENTS AND UNACCOUNTED CASH SEIZED. THE BREAK-UP OF THE INITIAL INCOME SURRENDERED FOR RS.2.80 CR IN THE HANDS OF THE ASSESSEE AND RS. 20 LACS IN THE HANDS OF HIS WIFE SMT. RASHMI. IT WAS SUBMI TTED THAT SURRENDERED INCOME WAS DISCLOSED IN THE RETURN OF INCOME WITH BIFURCATION AND ADDITIONAL INCOME WAS DECLARED UNDER THE HEAD 'INCOME FROM OTHER SOURCES' 3 WHICH WAS ACCEPTED IN THE ASSESSMENT ORDER. IT WAS ALSO NOTED BY THE LD. CIT(APPEALS) THAT SURRENDER I N THE INSTANT YEAR WAS OF RS. 2.20 CR WHEREAS PENALTY WAS IMPOSED UNDER THE ASSUMPTION OF SURRENDER OF RS.2.8 0 CR. THE ASSESSEE ALSO CONTENDED THAT IT IS EVIDENT FROM THE STATEMENTS RECORDED UNDER SECTION 132(4) THAT N O SPECIFIC QUESTION WAS ASKED WITH REGARD TO THE MANN ER IN WHICH INCOME SURRENDERED WAS EARNED IN ORDER TO LEVY THE PENALTY UNDER SECTION 271AAA OF THE ACT. THE L D. CIT(APPEALS) FOUND THAT THE ISSUE IS IDENTICAL AS H AVE BEEN DECIDED BY ITAT, CHANDIGARH BENCH IN THE CASE OF MUNISH KUMAR GOYAL 45 TAXMAN.COM 563 AND FOLLOWING THE SAME, CANCELLED THE PENALTY. 4. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET CONTENDED THAT ISSUE IS COVERED BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF SUNIL KUMAR BANSAL V DCIT 62 TAXMAN.COM 78 IN WHICH IT WAS HELD AS UNDER : IT : WHERE NO QUESTION WAS ASKED DURING STATEMENT RECORDED UNDER SECTION 132(4), IN RESPECT OF MANNER OF EARNING INCOME SURRENDERED, ASSESSEE COULD NOT BE EXPECTED TO SUBSTANTIATE SAME LATER ON; PENALTY COU LD NOT BE LEVIED UNDER SECTION 271AAA 5. THE LD. DR, HOWEVER, RELIED UPON ORDER OF THE ASSESSING OFFICER. 6. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF SUBMISSIONS OF THE ASSESSEE AND FINDING OF LD. CIT(APPEALS), WE ARE OF THE VIEW THAT ISSUE IS COVE RED IN 4 FAVOUR OF THE ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF SUNIL KUMAR BANSAL (SUPRA). W E, THEREFORE, DO NOT FIND ANY MERIT IN THE DEPARTMENTA L APPEAL. THE SAME IS ACCORDINGLY, DISMISSED. 7. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH NOV., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD