Shri Alpesh R.Lakhani, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 156/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7560 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 16-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Document seized; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.(SS). NO. 156, 157 & 158/ AHD/2010 (ASSESSMENT YEAR 2001-02, 2002-03 & 2006-07) SHRI ALPESH R LAKHANI, 21, MAHESH TENAMENS, OPP. CHAMAK CHUNA, THAKKARBAPA NAGAR, AHMEDABAD VS. DCIT, CC-2(2), AHMEDABAD PAN/GIR NO. : ABLPL5213E (APPELLANT) .. (RESPONDENT) APPELLANT BY: GAURAV NAHTA, AR RESPONDENT BY: SHRI B L YADAV, SR. DR DATE OF HEARING: 16.05.2012 DATE OF PRONOUNCEMENT: 24.05.2012 O R D E R PER SHRI A. K. GARODIA, AM:- ALL THESE THREE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THE COMBINED ORDER OF LD. CIT(A) III AHMEDA BAD DATED 08.12.2009 FOR THE ASSESSMENT YEARS 2001-02, 2002-0 3 AND 2006-07. IN ALL THE THREE YEARS, THE ONLY GRIEVANCE OF THE ASS ESSEE IS REGARDING PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 OF RS.19,490/- IN ASSESSMENT YEAR 2001-02, RS.58,470/- IN ASSESSMENT YEAR 2002-03 AND OF RS.76,930/- IN ASSESSMENT YEAR 2006- 07. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE TRI BUNAL ORDER IN THE CASE OF PRABHUDAS PATEL VS DCIT IN I.T.(SS) NO.203/AHD/2 010 DATED 13.02.2012. HE ALSO SUBMITTED THAT THIS TRIBUNAL O RDER IS REGARDING THE ASSESSEE OF THE SAME GROUP I.E. SOHAM GROUP WHERE S EARCH WAS CARRIED I.T.(SS).NO. 156,157,158 /AHD/2010 2 OUT ON 10.05.2006 AS IN THE PRESENT CASE AND UNDER SIMILAR FACTS, PENALTY WAS IMPOSED BY THE A.O. AND CONFIRMED BY LD. CIT(A) BUT THE SAME WAS DELETED BY THE TRIBUNAL AND, THEREFORE, IN THE PRES ENT CASE ALSO, THE PENALTY SHOULD BE DELETED. 3. AS AGAINST THIS, LD. D.R. OF THE REVENUE SUPPORT ED THE ORDER OF LD. CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD. A.R. OF THE ASSE SSEE. WE FIND THAT IN THE PRESENT CASE ALSO, IT IS NOTED BY THE A.O. IN T HE ASSESSMENT ORDER THAT THE SEARCH WAS CARRIED OUT IN THE GROUP CASES OF SO HAM GROUP ON 10.05.2006 AS HAS BEEN NOTED BY THE TRIBUNAL IN THE CASE OF PRABHUDAS PATEL (SUPRA). HENCE, THE FACTS OF THE PRESENT CAS E ARE IDENTICAL. IN THE IDENTICAL FACTS, THE PENALTY IMPOSED BY THE A.O. IN GROUP CASES HAS BEEN DELETED BY THE TRIBUNAL AND THE RELEVANT PARA OF TH E TRIBUNAL DECISION IS AS UNDER: 4. THE SECTION 153A (1) PROVIDED FURTHER THAT ASSE SSMENT WHICH ARE PENDING ON THE DATE OF INITIATION OF SEARCH SHA LL ABATE. IN THE CASE UNDER CONSIDERATION, THERE IS NO PENDING ASSES SMENT, THEREFORE, SAME IS NOT ABATE FOR THE PURPOSE OF MAK ING SEARCH ASSESSMENT IN THE LIGHT OF PROVISIONS U/S. 153A OF THE ACT. THE REQUIREMENT OF PENALTY U/S. 271(L)(C) AS PER THE LA W LAID DOWN IN THE CASE OF APEX COURT IN THE CASE OF RELIANCE PETR OPRODUCTS (P) LTD. (SUPRA) IS TO BE CONSIDERED IN THE LIGHT OF RE TURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A OF THE ACT . THE ASSESSMENT WAS MADE BY THE AO ON THE BASIS OF ADMISSION OF ASS ESSEE AND NOT ON BASIS OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH. THEREFORE, THE CASE UNDER CONSIDERATION, IS NOT THE CASE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OR CO NCEALED ANY PARTICULARS OF INCOME IN THE RETURN OF INCOME FILED U/S. 153A OF THE ACT. WHEN THERE IS NO SUCH FINDING IN RESPECT OF RE TURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A WE FIND TH AT PENALTY U/S. 271(L)(C) CANNOT BE LEVIED. WE-THEREFORE, CANCEL TH E PENALTY OF RS.78,750/- LEVIED U/S./ 271(L)(C). I.T.(SS).NO. 156,157,158 /AHD/2010 3 5. LD. D.R. COULD NOT POINT OUT ANY DIFFERENCE IN T HE FACTS IN THE PRESENT CASE AND THEREFORE, WE DO NOT FIND ANY REAS ON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE. MOREOVER, BEFORE LD. CIT (A), RELIANCE WAS PLACED BY THE LD. A.R. ON THE JUDGMENT OF HONBLE C ALCUTTA HIGH COURT RENDERED IN THE CASE OF SURESH CHANDRA BANSAL AS RE PORTED IN 223 CTR 128 (CAL.) AND THE RELEVANT PORTION OF THE JUDGMENT HAS BEEN REPRODUCED BY LD. CIT(A) ON PAGE 4 OF HIS ORDER. AS PER THE S AME, IF THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE REVISED RETUR N U/S 153A, AFTER THE SEARCH HAD BEEN ACCEPTED IN ITS ENTIRETY WITHOUT DE TAILED DISCUSSION OF THE SEIZED DOCUMENTS AND WITHOUT MAKING ANY ATTEMPT TO OBTAIN EXPLANATION OF THE ASSESSEE, PENALTY U/S 271(1)(C) IS NOT LEVIA BLE. IN THE PRESENT CASE ALSO, WE FIND THAT AS PER THE ASSESSMENT ORDER IN A LL THESE THREE YEARS, INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN OF I NCOME FILED U/S 153A WAS ACCEPTED BY THE A.O. WITHOUT ANY DISCUSSION OF SEIZED DOCUMENTS AND WITHOUT MAKING ANY ATTEMPT TO OBTAIN THE EXPLAN ATION OF THE ASSESSEE. HENCE, THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE FACTS IN THE CASE OF SURESH CHANDRA BANSAL (SUPRA) AND, THEREFORE, BY RE SPECTABLY FOLLOWING THE TRIBUNAL DECISION AND THE JUDGEMENT OF HONBLE CALCUTTA HIGH COURT, WE HOLD THAT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, PENALTY U/S 271(1)(C) IS NOT JUSTIFIED. WE THEREFORE, DELE TE THE PENALTY IN ALL THE THREE YEARS. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE STAND ALLOWED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.(SS).NO. 156,157,158 /AHD/2010 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION.23/5 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24/5 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 24/5 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.25/5 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25/ 5/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .