The ITO, Ward-5(2), Baroda V. Shri Suryakant R.Shah, Baroda

ITSSA 119/AHD/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9429 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-08-2013
• Assessment Year: misc
• Appeal Filed On: 15-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER IT(SS) NO. 119/AHD/2013 THE INCOME TAX OFFICER, WARD-5(2), BARODA ROOM NO.507, 5 TH FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA. VS SHRI SURYAKANT R. SHAH F-16, SUBHAM SHYAM GOKUL SOCIETY, OPP. AIRPORT, HARNI BARODA. PAN: AGFPS 4535C (ASSESSEE) (REVENUE) REVENUE BY : SHRI O.P. BATHEJA, D.R. ASSESSEE(S) BY : SHRI SAMIR PARIKH, A.R. / // / DATE OF HEARING : 12/08/2013 / DATE OF PRONOUNCEMENT: 14/08/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M AN ORDER OF LEARNED CIT(A)-V, BARODA, DATED 05.12.2012 AND T HE ONLY GROUND OF THE REVENUE IS AS FOLLOWS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN LAW IN DELETING PENALTY UND ER SECTION 158BFA(2) OF THE IT ACT IN RESPECT OF UNDISCLOSED I NCOME IN EXCESS OF INCOME SHOWN IN BLOCK RETURN FILED U/S. 158BC(A) , DISREGARDING SECOND PROVISO BELOW SECTION 158BFA(2) OF THE IT AC T. 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT WHILE DELETING THE PENALTY LEARNED CIT(A) HAS REFERRED AN ORDER OF THE TRIBUNAL DATED 24 TH OF APRIL, 2012 AND HELD THAT THE FACTS BEING IDENT ICAL, THEREFORE, NO PENALTY IS TO BE LEVIED IN RESPECT OF AN ADDITION OF RS.5,00,000/-. RELEVANT PARAGRAPH 5.2 IS REPRODUCED BELOW:- ITA NO.119/AHD/2013 ITO VS. SHRI SURYAKANT R. SHAH - 2 - I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE FACTS OF THE CASE AS ALSO THE OBSERVATION OF THE AO AND THE ARGUMENTS PUT FOR TH BY THE AR. SO FAR AS LEVY OF PENALTY IN RESPECT OF ADDITION OF RS .5 LAKHS MADE BY THE AO TOWARDS UNDISCLOSED INVESTMENT IN RESIDENTIAL HO USE IN SHYAM GOKUL SOCIETY IS CONCERNED, HONOURABLE TRIBUNAL HAS DELETED THE PENALTY LEVIED U/S 158 BFA(2) OF THE IT ACT IN THE CASE OF WIFE OF THE APPELLANT SMT. BHARTIBEN S SHAH, ON IDENTICAL SET O F FACTS, VIDE ORDER DATED 24.04.2012 IN ITA NO.2/AHD/2009. RESPECTFULLY FOLLOWING THE SAME, PENALTY LEVIED IN THE CASE OF THE APPELLANT U NDER SECTION 158 BFA(2) OF THE IT ACT ON AMOUNT OF RS.5 LAKHS IS HER EBY DELETED. 3. NOW BEFORE US, THE AFOREMENTIONED ORDER OF ITAT D BENCH, AHMEDABAD PRONOUNCED IN THE CASE OF SMT. BHA RTIBEN S. SHAH VS. ACIT BEARING ITA NO.02/AHD/2009, DATED 24. 4.2012 IS PRODUCED WHEREIN VIDE PARAGRAPH 9, THE PENALTY ORDE R DELETED IN THE FOLLOWING MANNER: 9. NOW, FOR THE 3 RD AMOUNT OF RS.5 LAKHS, WE FIND THAT THE ASSESSEE DECLARED IN THE STATEMENT RECORDED U/S 132(4) THAT AN INVESTMENT OF RS.5 LACS WAS MADE BY HIM OUT OF UNDISCLOSED INCOME AND THE ASSESSEE HAS NOT GONE BACK FOR THIS DISCLOSURE AND HIS SIMPLE CLAIM IS THIS THAT WHATEVER HAS BEEN DISCLOSED BY THE ASSESS EE IN THE BLOCK RETURN IN RESPECT OF VARIOUS UNDISCLOSED INCOME, TE LESCOPYING SHOULD BE ALLOWED AGAINST THE INVESTMENT OF RS.5 LACS AND IF THIS IS DONE, NO ADDITION IS CALLED FOR IN RESPECT OF THIS INVESTMEN T IN HOUSE PROPERTY ON ACCOUNT OF RENOVATION AND FURNITURE. THIS CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY THE A.O. AS WELL AS BY LD. CIT( A) AND BY THE TRIBUNAL BUT STILL THE FACT REMAINS THAT EXPLANATIO N HAS BEEN GIVEN BY THE ASSESSEE AND THIS COULD NOT BE DISPROVED BY THE REVENUE ALTHOUGH NOT ACCEPTED. UNDER THESE FACTS, IN OUR CONSIDERED OPINION, THE TRIBUNAL DECISION RENDERED IN THE CASE OF SMT MALA DYANIDHI (SUPRA) IS APPLICABLE AND IN THE LIGHT OF THIS DECISION OF THE TRIBUNAL, WE FEEL THAT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, PENALTY IS NOT JUSTIFIED EVEN FOR THIS ADDITION OF RS.5 LACS. BY R ESPECTFULLY FOLLOWING THE TRIBUNAL DECISION, WE DELETE THIS PENALTY ALSO. IN THIS MANNER, THE ENTIRE PENALTY IS DELETED. 3.1 ONCE ON IDENTICAL FACTS A PENALTY HAS ALREADY B EEN DELETED BY THE RESPECTED CO-ORDINATED BENCH, THEREFORE, WE FIND NO FALLACY IN THE VIEW TAKEN BY LEARNED CIT(A) WHO HAS SIMPLY FOLLOWED THE ITA NO.119/AHD/2013 ITO VS. SHRI SURYAKANT R. SHAH - 3 - ORDER OF THE TRIBUNAL. THEREFORE, WE FIND NO FORCE IN THIS GROUND OF THE REVENUE, HENCE DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. SD/- SD/- (A.K. GARODIA ) (MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMB ER AHMEDABAD; DATED 14/08/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD