SHRI SURJEET SINGH, Kota V. ACIT, Kota

ITSSA 14/JPR/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0310 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-12-2011
• Assessment Year: misc
• Appeal Filed On: 01-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: B B MAHESHWARI
• Keywords: Search and seizure
• Section: 143(3); 15

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) ITSSA NO. 14/JP/2011 BLOCK PERIOD 1987-88 TO 1997-98 (UP TO 05/02/1997) PAN NO. AEIPN 9901 P SHRI SURJEET SINGH, THE ASST.C.I.T., 1-G-10, VIKAS NAGAR, VRS. CIRCLE-1, KOTA. BUNDI (RAJASTHAN) (APPELLANT) (RESPONDENT) ASSESSEE BY :- SHRI B.B. MAHESHWARI. DEPARTMENT BY :- SHRI D.C. SHARMA. DATE OF HEARING : 17/07/2014 DATE OF PRONOUNCEMENT : 08/08/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28/07/2011 OF THE LEARNED C.I.T. (A), KOTA FOR THE B LOCK PERIOD 1987-88 TO 1997-98 (UP TO 05/02/1997). THE SOLE GROUND OF APPE AL IS AGAINST CONFIRMING THE PENALTY AT RS. 52,722/- BY THE LEARNED CIT(A), KOTA U/S 158BFA(2) OF THE INCOME TAX ACT, 1961 (HEREAFTER REFERRED AS THE ACT) . 2. IN THIS CASE, SEARCH AND SEIZURE OPERATION WAS CA RRIED OUT AT THE PREMISES OF ASSESSEE ON 05/2/1997. THE ASSESSEE FILE D RETURN OF INCOME IN THE PRESCRIBED FORM NO. 2B ON 11/02/1999 DECLARING UNDI SCLOSED INCOME OF THE BLOCK PERIOD AT RS. (-) 5,88,620/-. THE ASSESSMENT U /S 158BC READ WITH SECTION 143(3) OF THE ACT WAS COMPLETED ON 22/2/1999 AT UNDISCLOSED INCOME 2 OF RS. 19,92,854/-. A SHOW CASE NOTICE FOR PENALTY WA S GIVEN BY THE LEARNED ASSESSING OFFICER U/S 158BFA(2) OF THE ACT. THE ASSE SSEE WAS IN APPEAL BEFORE THE LEARNED CIT(A), RAJASTHAN-II, JAIPUR, WHO HAD D ECIDED THE APPEAL ON 28/2/2000 AND UNDISCLOSED INCOME WAS FINALLY DECIDED AT RS. 19,32,291/-. THE ASSESSEE ALSO PREFERRED SECOND APPEAL BEFORE THE IT AT IN ITSSA NO. 40/JP/2000, WHICH HAS BEEN DECIDED BY IT ON 24/1/200 2 AND ALLOWED PARTLY AND SOME ISSUES WERE SET ASIDE. THE SET ASIDE ASSESSM ENT WAS COMPLETED ON 27/12/2002 AT UNDISCLOSED INCOME OF RS. 2,71,907/-. A SHOW CAUSE NOTICE FOR PENALTY U/S 158BFA(3) OF THE ACT WAS ALSO ISSUED. THE ASSESSEE AGAIN PREFERRED APPEAL BEFORE THE LEARNED CIT(A), KOTA, WH O HAD DECIDED THE APPEAL ON 28/6/2004 AND UNDISCLOSED INCOME FINALLY DETERMI NED AT RS. 83,870/-. BEING A SEARCH CASE, THE PENALTY OF RS. 1,05,444/- WAS ACCORDINGLY IMPOSED, WHICH HAS BEEN CALCULATED AS UNDER:- TAX ON RETURNED UNDISCLOSED INCOME : RS. NIL TAX ON ASSESSED UNDISCLOSED INCOME OF RS. 87870: RS . 52,722/- TAX SOUGHT TO BE EVADED : RS. 52,722/- MINIMUM PENALTY IMPOSABLE @ 100% : RS. 52,722/- MAXIMUM PENALTY IMPOSABLE @ 300% : RS. 1,58,166/- PENALTY IMPOSED : RS. 1,05,444/- THE LEARNED ASSESSING OFFICER IMPOSED PENALTY U/S 15 8BFA(2) OF THE ACT AT RS. 1,05,444/- ON 26/10/2006. THE ASSESSEE AGAINST PREFE RRED APPEAL AGAINST THE 3 PENALTY ORDER OF THE ASSESSING OFFICER BEFORE THE L EARNED CIT(A), KOTA, WHO HAD ALLOWED THE APPEAL PARTIALLY AFTER GIVING DETAIL ED REASONING ON PAGE NOS. 6 TO 9 OF PARAGRAPH 4.12. NOW THE ASSESSEE IS IN APPEA L BEFORE US. 3. THE LEARNED A.R. FOR THE ASSESSEE ARGUED THAT SUB STANTIALLY ADDITION MADE BY THE LEARNED ASSESSING OFFICER IN ORIGINAL ASSESSMENT HAD BEEN REDUCED TO RS. 87.870/-. THIS ADDITION INCLUDES UND ISCLOSED INCOME FROM MINING AND LIAISONING AT RS. 55,688/-, UNDISCLOSED LONG TERM CAPITAL GAIN AT RS. 87,479/- AND UNDISCLOSED ACCRUED INTEREST ON IBP O F RS. 4700/-. THE ADDITIONS ARE DEBATABLE AND THERE IS NO CLEAR CUT CONCEALMENT ON THE PART OF THE ASSESSEE. 4. AT THE OUTSET, THE LEARNED D.R. SUPPORTED THE OR DER OF THE LEARNED CIT(A) AND ARGUED THAT PENALTY U/S 158BFA(2) OF THE ACT IS MANDATORY AS HELD BY THE VARIOUS HONBLE HIGH COURTS. THEREFORE, HE H AS REQUESTED TO CONFIRM THE PENALTY. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE UNDISCLOSED IN COME U/S 158BBC OF THE ACT HAD BEEN FINALIZED IN APPEAL ON WHICH, THE LEAR NED ASSESSING OFFICER IMPOSED THE PENALTY U/S 158BFA(2) OF THE ACT. AS TH E HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. BACHAR BHAI P. PARMAR ( 2012) 341 ITR 499 (GUJ) HAS HELD THAT PENALTY UNDER SUB-SECTION (2) OF SECT ION 158BFA(2) IS DISCRETIONARY OF A.O., THE PENALTY IS MANDATORY, ON US IS NOT ON REVENUE TO 4 PROVE THE CONCEALMENT OR FINDING IN ACCURATE PARTIC ULARS. THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT IS DIFFERENT FROM PENALTY IMPOSED UNDER SUB SECTION (2) OF SECTION 158BFA. WHEN UNDISCLOSED ADDITION CO NFIRMED BY THE ITAT, THE ASSESSING OFFICER HAS TO IMPOSE PENALTY UNDER SUB-S ECTION (2) OF SECTION 158BFA. BY RESPECTFULLY FOLLOWING THE DECISION OF HO NBLE GUJARAT HIGH COURT, WE CONFIRM THE PENALTY OF RS. 52,722/- U/S 158BFA(2) OF THE ACT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/08/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 08 TH AUGUST, 2014 * RANJAN COPY FORWARDED TO :- 1. SHRI SURJEET SINGH, BUNDI. 2. THE ASSTT. CIT, CIRCLE-1, KOTA. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.TSS.A. NO. 14/JP/2011) BY ORDER, AR ITAT JAIPUR.