Shri Jitendra Balvantrai Sompura, Surendranagar V. The Dy.CIT, Central Circle-2(2), Ahmedabad

ITSSA 19/AHD/2015

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3715 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Keywords: Income from undisclosed sources; Document seized; Documents seized

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER (SS) ./ I.T(SS)A. NO.19/AHD/2015 ( / ASSESSMENT YEAR : 2007-08) JITENDRA BALVANTRAI SOMPURAMATRUKRUPA 52-53 HALVAD ROAD DHANGADHRA SURENDRANAGAR 363 310 / VS. THE DCIT CENTRAL CIRCLE-2(2) AHMEDABAD # ./ ./ PAN/GIR NO. : AFDPS 6410 C ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : SHRI PARIN SHAH, AR '#&)( / RESPONDENT BY : SHRI SAURABH SINGH, SR.DR *+), / DATE OF HEARING 21/03/2018 -./0), / DATE OF PRONOUNCEMENT 02/ 04 /2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-III, AHMEDABAD [CIT(A) IN SHORT] DATED 14/10/2014 RELEVANT TO ASSESSMENT YEAR (AY) 2007-08. IT(SS)A NO.19/A HD/2015 JITENDRA BALVANTRAI SOMPURA VS. THE DCIT ASST.YEAR 2007-08 - 2 - 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE CONCERNS LEVY OF PENALTY OF RS.1,43,985/- UNDER S.271(1)(C) OF THE ACT. THE ED IFICE FOR LEVY OF PENALTY LIES IN THE ASSESSMENT ORDER DATED 19/03/20 13 FRAMED UNDER S.153A R.W.S. 1473(3) OF THE ACT AS A SEQUEL TO SEA RCH ACTION CONDUCTED IN THE GROUP CASES OF TRIVEDI SOMPURA GROUP ON 21/04/2 010. 3. DURING THE COURSE OF ASSESSMENT, THE ASSESSING O FFICER (AO) INTER ALIA FOUND CERTAIN SEIZED DOCUMENTS MENTIONED AT PAGE N OS.48 51 IN ANNEXURE A-2 AND AT PAGE NO.91 IN ANNEXURE A-3 WHIC H RESULTED IN AGGREGATE ADDITION OF RS.5,3,775/- TOWARDS CERTAIN UNACCOUNTED RECEIPTS. THE ASSESSEE WAS CONFRONTED THAT THE SEIZED DOCUMEN TS. THE ASSESSEE ADMITTED THE UNACCOUNTED INCOME WITHOUT ANY LITIGAT ION. 4. CONSEQUENT UP-ON QUANTUM PROCEEDINGS, THE PENALT Y PROCEEDINGS WERE COMPLETED AND PENALTY ON THE AFORESAID UN ACCO UNTED INCOME WAS IMPOSED UNDER S.271(1)(C) OF THE ACT BY THE AO. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A ) AND PLEADED INADVERTENT ERROR WITHOUT ANY SUCCESS. 6. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. IT(SS)A NO.19/A HD/2015 JITENDRA BALVANTRAI SOMPURA VS. THE DCIT ASST.YEAR 2007-08 - 3 - 7. THE LD.AR FOR THE ASSESSEE, AT THE OUTSET, REFER RED TO A TABULATED STATEMENT APPEARING AT PAGE NO.8 OF THE APPELLATE O RDER OF THE CIT(A) APPEALED AGAINST AND SUBMITTED THAT THE ASSESSEE DI SCLOSED A LUMP SUM AMOUNT OF RS.40 LAKHS IN THE COURSE OF SEARCH PROCE EDINGS AND IDENTIFIED SPECIFIC ASSETS AGAINST THE AFORESAID DISCLOSURE TO THE EXTENT OF RS.34,94,230/-. THE REMAINING AMOUNT OF RS.5,05,77 0/- WAS ATTRIBUTABLE TO THE DISCLOSURE ON THE BASIS OF SEIZED MATERIAL W HICH WERE NOT IDENTIFIED. THE LD.AR ACCORDINGLY CONTENDED THAT T HE AFORESAID AMOUNT OF RS.5,63,775/- IS REQUIRED TO BE ATTRIBUTABLE TO THE AFORESAID UNIDENTIFIED INCOME OF RS.5.05 LAKHS. THE LD.AR THEREAFTER SUBM ITTED THAT THE DIFFERENCE BETWEEN THE TWO IS BARELY RS.59,000/- ( APPROX) WHICH COULD NOT BE DISCLOSED DUE TO HUMAN ERROR HAVING REGARD T O THE PAUCITY OF TIME. THE LD.AR ACCORDINGLY CONTENDED THAT THE FAILURE OF THE ASSESSEE IN NOT DISCLOSING THE INCOME SO ASSESSED MAY BE CONSIDERED AS AN INADVERTENT MISTAKE WITHOUT ANY MALAFIDE AND THUS NO PENALTY SH OULD BE IMPOSED. 8. PER CONTRA, THE LD.DR FOR THE REVENUE SUPPORTED THE FINDINGS OF THE REVENUE AUTHORITIES. 9. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE A UTHORITIES BELOW. THERE IS NO DISPUTE THAT THE UNACCOUNTED RECEIPTS O F RS.5.63 LAKHS WAS FOUND IN THE SEIZED MATERIAL AND WHICH WAS NOT UNDI SPUTED BY THE ASSESSEE. THERE IS ALSO NO DISPUTE THAT THE ASSESS EE ALONG WITH GROUP IT(SS)A NO.19/A HD/2015 JITENDRA BALVANTRAI SOMPURA VS. THE DCIT ASST.YEAR 2007-08 - 4 - CASES HAVE DISCLOSED SUBSTANTIAL AMOUNT OF ADDITION AL INCOME WHICH INCLUDES RS.40 LAKHS PERTAINING TO BUSINESS CONCERN OF THE ASSESSEE NAMELY DIVYA STHAPATYA AS A PARTNER. THE AFORESAID ADDITIONS HAVE NOT BEEN RETRACTED OR AGITATED IN THE QUANTUM PROCEEDIN GS. THEREFORE, WE FIND MERIT IN THE PLEA OF THE ASSESSEE THAT HAVING REGARD TO THE PENAL NATURE OF THE PENALTY PROCEEDINGS, ALLOWANCE TOWARD S FLOATING AMOUNT OF RS.5,05,770/- SHOULD BE GIVEN AGAINST THE UNACCOUNT ED RECEIPT OF RS.5,63,775/-. ONCE THE ALLOWANCE IS GIVEN FOR THE PURPOSES OF PENALTY PROCEEDINGS, THE DIFFERENCE OF UNDISCLOSED RECEIPT BECOMES VERY SMALL AND PLEA OF BONAFIDE ERROR LOOKS QUITE PLAUSIBLE IN THE TOTALITY OF CIRCUMSTANCES. WE ACCORDINGLY SET ASIDE THE FINDIN GS OF THE CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY OF RS.1,43,985/ - LEVIED UNDER S.271(1)(C) OF THE ACT. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 02/ 04 /2018 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 02/ 04 /2018 4 ..*,.*../ T.C. NAIR, SR. PS IT(SS)A NO.19/A HD/2015 JITENDRA BALVANTRAI SOMPURA VS. THE DCIT ASST.YEAR 2007-08 - 5 - !'#' / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-III, AHMEDABAD 5. 9:;,*67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9 ,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 21.3.18 (DICTATION-PAD 10-P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.3.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.2.4.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2.4.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER