Swaminarayan Avenue(Naranpura)Co.Op.Housing Society Ltd., Ahmedabad V. The ACIT.,(OSD)Circle-10, Ahmedabad

ITSSA 160/AHD/2015

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3611 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 11-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P VAISHNAV
• Assessee Lawyers: A L THAKKER
• Section: 153A; 131

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ IT(SS)A NO.160/AHD/2015 / ASSTT. YEAR: 2005-2006 SWAMINARAYAN AVENUE (NARANPURA) CO-OP. HSG. SOIETY LTD. DHARAMADEV HOUSE SHYAMAL CROSS ROADS AHMEDABAD. PAN : AAEAS 2037 G VS. ACIT (OSD) CIR.10, AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI A.L. THAKKER, AR REVENUE BY : SHRI O.P. VAISHNAV, CIT-DR ! / DATE OF HEARING : 01/03/2018 '#$ ! / DATE OF PRONOUNCEMENT: 12 /03/2018 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-5, AHMEDABAD DATED 30.3.2015 PASSED FOR A SSTT.YEAR 2005-06. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING PENALTY OF RS.7.50 LAKHS IMPOSE D BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 . IT(SS)A NO.160/AHD/2015 2 3. BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEIZU RE OPERATION WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF SHRI UMANG THAKKAR AND DHARAMDEV FINANCE P.LTD. ON 9.2.2005 FROM WHERE CERTAIN INCRIMINATING DOCUMENTS PERTAINING TO THE ASSESSEE WERE FOUND AND SEIZED. THESE WERE TRANSMITTED TO THE AO OF THE ASSESSEE FOR INITIATION OF ACTION UNDER SECTION 153C R.W.S. 153A OF THE INCOME TAX ACT. ACCORDINGLY, NOTICE WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE KEPT ON AVOIDING THESE NOTIC ES AND FAILED TO FILE RETURN UPTO 28.11.2009. SUMMONS UNDER SECT ION 131 WAS ISSUED TO THE CHAIRMAN OF THE SOCIETY AND ASSESSMEN T MACHINERY WAS PUT IN MOTION. THE LD.AO MADE TWO ADDITIONS. HE ADDED A SUM OF RS.23,86,030/- ON ACCOUNT UNACCOUNTED CASH R ECEIPTS AND AN ADDITION OF RS.1,91,16,119/- ON ACCOUNT OF UNACC OUNTED INVESTMENT. ADDITION OF RS.1,91,16,119/- WAS DELET ED BY THE LD.CIT(A). THE AO HAS INITIATED PENALTY PROCEEDING S AND VIDE ORDER DATED 28.3.2012 HE IMPOSED PENALTY OF RS.7.50 LAKHS ON THE ADDITION OF RS.23,86,030- WHICH WAS CONFIRMED BY TH E LD.CIT(A). 4. DISPUTE WITH REGARD TO DELETION AND CONFIRMATION OF THE ADDITIONS IN QUANTUM APPEAL TRAVELLED TO THE TRIBUN AL, AND THE TRIBUNAL VIDE ORDER IN IT(SS)A.NO.273/AHD/2011 AND IT(SS)A.NO.274/AHD/2011 DATED 1.6.2016 DISMISSED TH E APPEAL OF THE REVENUE AND PARTLY ALLOWED APPEAL OF THE ASSESS EE. THE TRIBUNAL HAS DELETED ADDITION OF RS.23,86,030/-. T HE CONCLUSION DRAWN BY THE TRIBUNAL IN PARA-14 READS AS UNDER: 14. THEREFORE, WE ARE OF THE VIEW THAT M/S.SWAMINA RAYAN ENTERPRISE HAD SUFFICIENT CASH AVAILABLE IN THEIR B OOKS OF ACCOUNTS, WHICH WAS IN TURN USED TO GIVE BUSINESS A DVANCES TO THE ASSESSEE SOCIETY AND, THEREFORE, THE SUM OF RS.23,86,030/- SHOULD NOT BE TREATED AS UNEXPLAINED INCOME AND, ACCORDINGLY, WE DELETE THE IMPUGNED ADDITION M ADE BY THE LD.ASSESSING OFFICER AND ALLOW THE GROUND OF AS SESSEE. IT(SS)A NO.160/AHD/2015 3 5. WE FIND THAT SUB-CLAUSE (III) OF SECTION 271(1)( C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEM PLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN, BUT WHIC H SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED B Y REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSE E. SINCE BASIS FOR VISITING THE ASSESSEE WITH PENALTY HAS BEEN EXTINGU ISHED BY DELETING ADDITION BY THE TRIBUNAL VIDE ITS ORDER DATED 1.6.2 016 (SUPRA) IN THE QUANTUM APPEAL OF THE ASSESSEE, THEREFORE IMPUGNED PENALTY IS NOT SUSTAINABLE, ACCORDINGLY WE CANCEL THE PENALTY AND ALLOW APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 12 TH MARCH, 2018. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER