Income Tax Officer ,Khamgaon, Buldhana V. Shri. Bohra Fidahussain Yahyabhai, Buldhana

ITSSA 12/NAG/2011

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8872 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BHUSARI
• Assessee Lawyers: S C THAKKAR; C J THAKKAR
• Keywords: Search and seizure
• Section: 143(3); 132

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M IT (SS) A NO . 11 / NAG/201 1 ( ASSESSMENT YEAR : 200 4 - 05 ) ITO, KHAMGAON, BULDHANA - 444 303 VS. SHRI BOHRA NURUDDIN YAHYABHAI, TANK ROAD, KHAMGAON, DISTRICT BULDHANA - 444 303 PAN/GIR NO. : A IFPB 2191 L ( APPELLANT ) .. ( RESPONDENT ) AND IT (SS) A NO.12/NAG/2011 ( ASSESSMENT YEAR :2004 - 05) ITO, KHAMGAON, BULDHANA - 444 303 VS. SHRI BOHRA FIDAHUSSAIN YAHYABHAI, TANK ROAD, KHAMGAON, DISTRICT BULDHANA - 444 303 PAN/GIR NO. : AIFPB 219 3 J ( APPELLANT ) .. ( RESPONDENT ) AND IT (SS) A NO.1 3 /NAG/2011 ( ASSESSMENT YEAR :2004 - 05) ITO, KHAMGAON, BULDHANA - 444 303 VS. SHRI BOHRA MURTUZA YAHYABHAI, TANK ROAD, KHAM GAON, DISTRICT BULDHANA - 444 303 PAN/GIR NO. : AIFPB 219 3 J ( APPELLANT ) .. ( RESPONDENT ) AND IT (SS) A NO.1 4 /NAG/2011 ( ASSESSMENT YEAR :2004 - 05) ITO, KHAMGAON, BULDHANA - 444 303 VS . SHRI BOHRA YAHYABHAI TAHERALI , TANK ROAD, KHAMGAON, DISTRICT BULDHANA - 444 303 PAN/GIR NO. : AIFPB 219 6 P ( APPELLANT ) .. ( RESPONDENT ) IT (SS) A NO S . 11,12,13 &14 /NAG /20 1 1 2 /REVENUE BY : MR. M. BHUSARI /ASSESSEE BY : MR. C.J.THAKKAR & MR. S.C.THAKKAR DATE OF HEARING : 23 RD JAN , 201 3 DATE OF PRONOUNCEMENT : 1 ST FEB , 201 3 O R D E R P ER BENCH : THE SE ARE 4 APPEALS BY THE DEPAR TMENT AGAINST THE ORDER OF LEANED CIT(A) - I , NAGPUR (MAHARASHTRA) , RELATING TO ASSESSMENT YEAR 200 4 - 0 5 AGAINST THE CANCELLATION OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT . SINCE THE COMMON ISSUES ARE INVOLVED IN ALL THE CASES , THEREFORE, FOR THE SAKE OF CONVENIENCE , ALL THE CASES HAVE BEEN HEARD THROUGH E - COURT, MUMBAI AND DISPOSED OF BY THIS CONSOLIDATED ORDER TOGETHER . 2 . THE AFORESAID FOUR APPEALS RELATE TO DIFFERENT FOUR ASSESSEE. AT THE VERY OUTSET, LEARNED COUNSEL OF THE ASSESSEE STATED THA T ON IDENTICAL FACTS THE PENALTIES WERE LEVIED IN THE CASES O F RASHIDA M. BHORA, IN THE CASE OF FAKHERA FIDAHUSSAIN BOHRA AND IN THE CASE OF FARIDA Y. BOHRA. IN ALL THESE CASES, PENALTIES WERE CANCELLED BY THE LEARNED CIT(A) AND ON APPEAL BEFORE THE TRIBUN AL, THE TRIBUNAL HAS CONFIRMED THE CANCELLATION OF LEVY OF PENALTY IN ALL THESE CASES WHILE DECIDING ITA NO.142 TO 149/NAG/2010 , RELATING TO ASSESSMENT YEARS 2002 - 03 TO 2005 - 06 VIDE ORDER DATED 18 - 10 - 2012. THEREFORE, ALL THE IT (SS) A NO S . 11,12,13 &14 /NAG /20 1 1 3 PRESENT APPEALS OF THE DEPARTME NT ARE LIABLE TO BE DISMISSED AS THE FACTS ARE IDENTICAL. 3 . ON THE OTHER HAND, LEARNED DR FAIRLY STATED THAT THE ISSUE IS COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF FAKHERA FIDAHUSSAIN BOHRA AND OTHERS RELIED UPON BY THE LEARNED AR AS FACTS A RE SIMILAR, HOWEVER, HE PLACED RELIANCE ON THE ORDER OF THE AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. FACTS IN ALL THE FOUR APPEALS FILED BY THE DEPARTMENT ARE SIMILAR. IN THESE CASES, SEARCH AND SEIZURE ACTION UNDER SECTI ON 132 WAS CARRIED OUT ON 30 - 5 - 2004 , WHICH WAS FINALLY CONCLUDED ON 31 - 5 - 2004. THESE ASSESSEES WERE NOT ASSESSED TO TAX TILL THE DATE OF SEARCH. THESE ASSESSEES SURRENDERED CERTAIN INCOME I.E. RS. 32, 62,380/ - IN CASE OF SHRI BOHRA NURUDDIN YAHABHAI , RS. 68,8 4,190/ - IN CASE OF SHRI BOHRA FIDAHUSSAIN YAHABHAI, RS. 48,46,600/ - IN CASE OF SHRI BOHRA MURT U ZA YAHABHAI AND RS. 1,14,79,410/ - IN CASE OF SHRI BOHRA YAHABHAI TAHERALI. THE SURRENDERED INCOME WAS ACCEPTED BY THE AO IN ALL THESE CASES. CERTAIN ADDITIONS ON A CCOUNT OF LOW HOUSEHOLD AT RS. 500 0 / - , RS. 2 5000/ - , RS. 3 5000/ - AND RS. 25000/ - RESPECTIVELY IN HAND OF ALL THESE CASES WERE MADE BY THE AO. THEREAFTER ASSESSMENT WAS COMPLETED UNDER SECTION 153 A READ WITH SECTION 143(3) OF THE ACT. PENALTY PROCEEDING UNDER S ECTION 271(1)(C) WAS ALSO INITIATED BY THE AO. THEREAFTER THE AO LEVIED PENALTY BY HOLDING THAT THESE ASSESSES HAVE FURNISHED INACCURATE PARTICULARS TO CONCEAL THE INCOME. REPLIES IT (SS) A NO S . 11,12,13 &14 /NAG /20 1 1 4 WERE FILED ON BEHALF OF THE ASSESSEES BEFORE THE AO. HOWEVER, LEARNED AO WAS NOT SATISFIED WITH THE EXPLANATION. THE AO HELD THAT THE CASE OF ALL THESE ASSESSEES DOES NOT FALL UNDER EXPALANTION 5 TO SECTION 271(1)(C). ACCORDINGLY, HE LEVIED PENALTY UNDER SECTION 271(1)(C) IN CASE OF ALL THESE FOUR CASES. 5 . ALL THESE ASSESSEES P REFERRED APPEAL BEFORE THE CIT(A), WHO CONSIDERING THE EXPLANATION FILED ON BEHALF OF THE ASSESSEES AND THE ORDER OF THE AO, FOUND THAT ON IDENTICAL FACTS IN CASE OF SMT. FAKHERA FIDAHUSSAIN BOHRA DECIDED BY THE CIT(A) - I IN ORDER NO. CIT(A) - I/968&969/08 - 09, VIDE ORDER DATED 24 - 5 - 2010, PENALTIES HAVE BEEN DELETED. IT WAS ALSO FOUND BY THE LEARNED CIT(A) THAT THESE ASSESSEES CASES FALL UNDER SUB - CLAUSE OF EXPLANATION 5 TO SECTION 271(1)(C) AND, THEREFORE, THE PENALTY LEVIED BY THE AO WAS NOT JUSTIFIED. ACCORD INGLY, HE CANCELLED THE LEVY OF PENALTY IN ALL THESE FOUR CASES AS FACTS ARE IDENTICAL. NOW, THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 6 . AFTER CONSIDERING THE ORDER OF THE AO AND THE ORDER OF THE LEARNED CIT(A), WE FOUND NO INFIRMITY IN THE F INDING OF THE LEARNED CIT(A) . WE NOTED THAT LEARNED CIT(A) HAS DELETED THE PENALTY FOLLOWING THE ORDER OF HIS PREDECESSOR IN THE CASE OF SMT. FAKHERA FIDAHUSSAIN BOHRA FOR THE ASSESSMENT YEARS 204 - 05 & 2005 - 06 , WHERE IDENTICAL FACTS WERE INVOLVED AS IN THO SE CASES ALSO THE SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON 30 - 5 - 2004 ALONG WITH THE PRESENT ASSESSEES. IT IS FURTHER NOTED THAT THE DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL IN THE CASE OF SMT. FAKHERA FIDAHUSSAIN BOHRA AND THE TRIBUNAL WHILE DECIDI NG THE IT (SS) A NO S . 11,12,13 &14 /NAG /20 1 1 5 APPEAL IN CASE OF SMT. FAKHERA FIDAHUSSAIN BOHRA IN ITA NO S . 144&145/NAG/2010 FOR THE ASSESSMENT YEARS 2004 - 05 & 2005 - 06 VIDE ITS ORDER DATED 18 - 10 - 2012, HAS CONFIRMED THE ORDER OF THE LEARNED CIT(A) , WHO CANCELLED THE LEVY OF PENALTY BY HOLDING THAT THE CASE OF THE ASSESSEE FALLS UNDER SUB - CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C) , WHERE IT IS PROVIDED THAT IF THE ASSESSEE HAS PAID THE TAX ALONG WITH INTEREST AND RETURN OF THE ASSESSEE WAS NOT DUE AT THE DATE OF SEARCH, THEREFORE, THE ASSESSEE DESERVES TO IMPUNITY IN VIEW OF SUB - CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD. FACTS ARE IDENTICAL IN ALL THESE FOUR CASES, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF SMT. FAKHERA FIDAHUSSAIN BOHRA , WE CONFIRM THE ORDER OF THE LEARNED CIT(A) IN CASE OF ALL THESE FOUR ASSESSEES AS THE FACTS ARE IDENTICAL. 7 . RESULTANTLY , ALL THE APPEAL S OF THE DEPARTMENT ARE DISMISSED . ORDER PRONOUNCED IN THE E - COURT ON THIS 1 ST DAY OF FEB .2013. - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01 / 02 / 201 3 . /PKM , PS COPY OF THE ORDE R FORWARDED TO : 1. / THE APPELLANT IT (SS) A NO S . 11,12,13 &14 /NAG /20 1 1 6 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. G UARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI