Shri Bhagwanbhai K. Ajara, Ahmedabad V. The Income tax Officer, Ward-7(3), Ahmedabad

ITSSA 140/AHD/2015

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3382 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) IT(SS)A. NO: 140/AHD/2015 (ASSESSMENT YEAR: 2009-10) BHAGWANBHAI K. AJARA 12, GOPALAK SOCIETY, NR. KIRAN PARK, NAVA VADAJ AHMEDABAD V/S INCOME TAX OFFICER, WARD- 7 (3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AGYPA0845K APPELLANT BY : SHRI TUSHAR P. HEMANI, AR RESPONDENT BY : SHRI JAMES KURIAN, SR. D.R. ( )/ ORDER DATE OF HEARING : 31 -08-201 7 DATE OF PRONOUNCEMENT : 06 -09-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-10, AHMEDABAD DATED 20.03.2015 PERTAINING TO A.Y. 2009- 10. IT(SS)A NO. 140/AHD/2015 . A.Y. 2009-10 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED BY THE A.O. U/S. 271(1)(C) OF THE AC T. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 30.12.2011 FRAMED U/S. 143(3) R.W.S. 153A OF THE ACT. . 4. THE RETURNED INCOME OF RS. 3,62,040/- WAS ASSESSED AT A TOTAL INCOME OF RS. 93,56,040/-. THE ASSESSMENT ORDER TRAVELLED UP TO T HE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 12.04.2017 HAS DISPOSED E IGHT APPEALS BY A CONSOLIDATED ORDER AND THE APPEAL OF THE ASSESSEE I S FOUND TO BE AT SERIAL NO. 2 IN IT(SS)A NO. 195/AHD/2013. 5. THE TRIBUNAL DELETED THE ADDITIONS MADE BY THE A.O. AND THE RELEVANT FINDINGS READ AS UNDER:- 47. SO FAR AS THE ASSESSMENT YEAR 2009-10 IS CONCE RNED, WE HAVE ALREADY DELETED THE IMPUGNED ADDITION OF RS.1,94,500/- ALLEGED TO B E AN INTEREST INCOME OF THE ASSESSEE BY OBSERVING THAT IT WAS PART OF THE TOTAL DISCLOSURE OF RS.23,00,000/- MADE BY THE ASSESSEE ON THE BASIS OF HIS DIARIES. A S WE HAVE ALREADY DELETED THE ALLEGED INTEREST OF RS.1,94,500/-, THERE REMAINS NO REASON TO SUSTAIN THE ADDITION OF RS.19,45,000/- MADE BY ID. CIT(A) BY TAKING A DE EMED INTEREST RATE OF 10%. SO FAR AS THE REMAINING AMOUNT OF PEAK ADDITION IS CON CERNED, WE AGREE WITH THE VIEW TAKEN BY THE ID CIT(A) THAT IN THE SEIZED DIAR IES THE TRANSACTIONS ENTERED INTO WERE RELATED TO ON-MONEY RECEIVED FROM VARIOUS MEMB ERS WHO HAVE INVESTED IN THE USCKP PROJECT. WE ALSO AGREE WITH THE VIEW OF T HE ID. CIT(A) THAT AS SUBSTANTIAL PART OF THE NOTING IN THE DIARIES RELAT ES TO ON-MONEY CALCULATED ON BEHALF OF USCKP PROJECT FOR SALE OF FLAT AND THE UN DISCLOSED INCOME INVOLVED IN THIS UNACCOUNTED TRANSACTIONS HAVE ALREADY BEEN OFF ERED TO TAX BY USCKP PROJECT IN ITS DISCLOSURE OF RS.1.63 CRORES WHICH INCLUDES RS.23 LACS CALCULATED FROM THE TRANSACTIONS OF SEIZED DIARIES HELD BY THE ASSESSEE . WE ARE, THEREFORE, OF THE VIEW THAT FOR AY 2009-10, ID. ASSESSING OFFICER ERRED IN MAKING AN ADDITION OF RS.66,35,750/- BY WORKING OUT TOGETHER ALL ENTRIES APPEARING IN DIARIES SEIZED FOR THE VERY REASON THAT SUCH PEAK WAS PART OF THE UNAC COUNTED TURNOVER OF RS.5.44 IT(SS)A NO. 140/AHD/2015 . A.Y. 2009-10 3 CRORES DECLARED BY USCKP IN THE PROFIT ELEMENTS ON THIS TURNOVER HAS ALREADY BEEN OFFERED TO TAX DURING THE COURSE OF SEARCH. 48. IN THE RESULT GROUND NO.2 FOR AY 2009-10 RAISE D BY THE REVENUE IS DISMISSED AND GROUND NO.2 OF ASSESSEE'S APPEAL FOR AY 2009-10 IS ALLOWED. 6. AS THE QUANTUM ADDITIONS STAND DELETED BY THE AFORE MENTIONED FINDINGS OF THE TRIBUNAL, THERE REMAINS NO FOUNDATION FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. WE ACCORDINGLY DIRECT THE A.O. TO DELETE T HE PENALTY SO LEVIED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 06- 09- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACC OUNTANT MEMBER AHMEDABAD: DATED 06/09/2017 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