Shri Paresh R. Sompura, Ahmedabad V. The Dy.CIT, Central Circle-2(2), Ahmedabad

ITSSA 12/AHD/2015

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3441 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) IT(SS)A. NO: 12/AHD/2015 (ASSESSMENT YEAR: 2009-10) PARESH R. SOMPURA, 23, TARUNSHAKTI SOCIETY, NR. ALKAPURI, GHATLODIA AHMEDABAD-380061 V/S THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ADLPS0314F APPELLANT BY : SHRI PARIN SHAH, AR RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. ( )/ ORDER DATE OF HEARING : 12 -10-201 7 DATE OF PRONOUNCEMENT : 17 -10-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- III, AHMEDABAD DATED 14.10.2014 PERTAINING TO A.Y. 2009-10. IT(SS)A NO. 12/AHD/2015 . A.Y. 2009-1 0 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE L EVY OF PENALTY OF RS. 98,880/- U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 12.03.2013 FRAMED U/S. 153A R.W.S. 143(3) OF THE ACT. A SEARC H ACTION WAS CONDUCTED IN THE GROUP CASES OF TRIVEDI-SOMPURA GROUP ON 21.04.2 010. 4. IN ADDITION TO OTHER QUERIES, THE A.O. FOUND THAT T HE SEIZED DOCUMENT MENTIONED AT PAGE NO. 19 OF ANNEXURE-BS-2 CONTAINED CASH PAYMENT OF RS. 3,50,000/- MADE ON ACCOUNT OF PURCHASE OF TWO GANT RY CRANE IN SOMPURA TEMPLES PVT. LTD. THE ASSESSEE WAS CONFRONTED WITH THIS AND WAS ASKED TO EXPLAIN THE SAME. THE ASSESSEE ADMITTED THAT THE SA ME WAS PAID OUT OF UNDISCLOSED INCOME. ON SUCH CONCESSION, RS. 3,50 LA CS WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND PENALTY PROCEEDINGS WERE SEPARATELY INITIATED. 5. THE PENALTY PROCEEDINGS WERE COMPLETED BY LEVY OF P ENALTY OF RS. 98,880/-. 6. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE ASSESSEE HAD MADE A TOTAL DISCLOSURE OF RS. 2,14,41,462/- AN D THE SAID DISCLOSURE WAS BIFURCATED IN FOUR FINANCIAL YEARS I.E. FROM F.Y. 2 006-07 TO F.Y. 2009-10. IT IS THE SAY OF THE LD. COUNSEL THAT INADVERTENTLY AND D UE TO BONA FIDE MISTAKE, THE SAID EXPENDITURE OF RS. 3.50 LACS COULD NOT BE ADDE D IN THE TOTAL DISCLOSURE OF RS. 2.14 CRORES. THE LD. COUNSEL CONCLUDED THAT THE SAME MAY BE CONSIDERED IS AN INADVERTENT MISTAKE WITHOUT ANY MALA FIDE AND NO PENALTY SHOULD BE LEVIED. IT(SS)A NO. 12/AHD/2015 . A.Y. 2009-1 0 3 8. PER CONTRA, THE LD. D.R. STRONGLY SUPPORTED THE FIN DINGS OF THE REVENUE AUTHORITIES. 9. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW. THERE IS NO DISPUTE THAT EXPENDITURE OF RS. 3.50 LACS WAS FOUND IN THE SEIZED MATERIAL AND WHICH WAS NOT DISPUTED BY THE ASSESSEE. THERE IS AL SO NO DISPUTE THAT THE ASSESSEE ALONG WITH HIS OTHER GROUP MEMBERS HAS DIS CLOSED ADDITIONAL INCOME OF RS. 2,14,41,462/- AND THE SAME CAN BE UNDERSTOOD FROM THE FOLLOWING CHART:- PARESH SOMPURA GROUP YEARWISE AND CONCERNWISE DISCLOSURE PARTICULARS F.Y. 06 - 07 F.Y. 07 - 08 F.Y. 08 - 09 F.Y. 09 - 10 TOTAL SOMPURA MARABLE INDS AS PER ANNEXURE BS/1 BS/2 &BS/3 TELESCOPING (ADDITIONAL) 526,960 50,000 836,853 100,000 368,869 250,000 6,768,642 1,325,521 8,501,324 1,725,521 TOTAL (I) 576,960 936,853 618,869 8,094,163 10,226,845 SOMPURA TEMPLES PVT. LTDAS PER ANNEXURE BS/1BS/2 &BS/3 TELESCOPING (ADDITIONAL) - - - - - - 3,627,155 500,000 3,627,155 500,000 TOTAL (II0 - - - 4127,155 4,127,155 PARESH R. SOMPURA ON THE BASIS OF SEIZED JEWELLERY - - - 7,087,462 7,087,462 TOTAL (III) - - - 7,087,462 7,087,462 TOTAL(I) + (II) + (III) 576,960 936,853 618,869 19,308,780 21,441,462 IT(SS)A NO. 12/AHD/2015 . A.Y. 2009-1 0 4 10. THERE IS ALSO NO DISPUTE THAT THE GROUP HAS NEITHER RETRACTED FROM THE AFOREMENTIONED DISCLOSURE NOR HAS AGITATED THE AFOR EMENTIONED DISCLOSURE BEFORE ANY APPELLATE AUTHORITY. IT CAN BE SEEN FROM THE AFOREMENTIONED CHART THAT THERE IS A DISCLOSURE OF ADDITIONAL INCOME IN THE FORM OF TELESCOPING. IN OUR CONSIDERED OPINION, IF SOMEONE IS ACCEPTING THE ADD ITIONAL INCOME OF RS. 2.14 CRORES AND IS PAYING TAXES AS PER THE PROVISIONS OF THE LAW, WHAT BENEFIT THAT PERSON WOULD DERIVED IN CONCEALING RS. 3.50 LACS ON WHICH RS. ONE LAC WOULD HAVE BEEN SAVED. IT APPEARS THAT NON INCLUSION OF R S. 3.50 LACS IN THE TOTAL DISCLOSURE MADE BY THE ASSESSEE IS A BONA FIDE MIST AKE AND ON SUCH BONA FIDE MISTAKE NO PENALTY IS LEVIABLE U/S. 271(1)(C) OF TH E ACT. WE, ACCORDINGLY SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 11. APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 17 - 10- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACC OUNTANT MEMBER AHMEDABAD: DATED 17 /10/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD