The ACIT, Central Circle-1, RAJKOT-GUJARAT V. M/s. Balaji Wafers Pvt. Ltd., RAJKOT-GUJARAT

ITSSA 20/RJT/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0501 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M L MEENA SHRI J C RANPURA C
• Keywords: Document seized; Opportunity of being heard; Documents seized
• Section: 133A; 153A; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBULAL, RAJKOT BENCH: RAJKOT ,!'# , #% BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) IT(SS)A NO(S). ASSESSMENT YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 15/RJT/2011 2000-01 THE ASST. CIT, CENTRAL CIRCLE-1, RAJKOT M/S.BALAJI WAFERS PVT.LTD. VAJDI VAD, KALAWAD ROAD TAL: LODHIKA, RAJKOT PAN: AAACB 8755 A 2. 16/RJT/2011 2001-02 REVENUE ASSESSEE 3. 17/RJT/2011 2002-03 REVENUE ASSESSEE 4. 18/RJT/2011 2003-04 REVENUE ASSESSEE 5. 19/RJT/2011 2004 - 05 REVENUE ASSESSEE 6. 20/RJT/2011 2005-06 REVENUE ASSESSEE REVENUE BY : SHRI M.L. MEENA, CIT-DR ASSESSEE BY : SHRI J.C. RANPURA, C.A. &'' / DATE OF HEARING 05/12/2014 () '' / DATE OF PRONOUNCEMENT 18 /12/2014 !/ O R D E R PER BENCH : THESE SIX APPEALS BY THE REVENUE ARE DIRECTED AG AINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS )-IV, AHMEDABAD (CIT(A) IN SHORT) ALL IDENTICALLY DATED 01/04/201 1, PERTAINING TO IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 2 - ASSESSMENT YEARS (AYS) 2000-01 TO 2005-06. SINCE T HE FACTS AND THE ISSUES INVOLVED IN ALL THESE APPEALS ARE IDENTICAL, THEREFORE ALL THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE REVENUES APPEAL IN IT(SS) A NO.15/RJT/2011 FOR AY 2000-01 AS A LEAD CASE. THE REVENUE HAS RAIS ED THE FOLLOWING COMMON GROUNDS (EXCEPT QUANTUM) OF APPEAL (EXTRACTE D FROM IT(SS)A NO.15/RJT/2011):- 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DEL ETING PENALTY OF RS.12,76,429/- (RS.13,69,715/- FOR AY 20001-02, RS. 16,07,025/- FOR AY 2002-03, RS.27,37,111/- FOR AY 2003-04, RS.46,07 ,024/- FOR AY 2004-05 & RS.35,14,624/- FOR AY 2005-06) LEVIED BY THE ASSESSING OFFICER BY HOLDING THAT PENALTY CANNOT BE LEVIED IN RESPECT OF THE ADDITIONS MADE ON ESTIMATE BASIS BY APPLYING THE GR OSS PROFIT RATE. 2. IN DOING SO, THE LD.CIT(A) FAILED TO APPRECIATE THA T WHERE THERE IS A JUSTIFICATION FOR THE ADMISSION OF INCOME, AS IN TH E INSTANT CASE, THE BURDEN IS ON THE ASSESSEE TO PROVE THAT THERE IS NO CONCEALMENT AND WHERE THERE IS FAILURE IN THAT DIRECTION TO DISCHAR GE THE BURDEN, PENALTY IS LEVIABLE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER PASSED U/S.271(1)(C) OF THE ACT. 2. THE FACTS AS RECORDED BY THE LD.CIT(A) VIDE PARA S-3.0 & 3.1 IN THE APPELLATE ORDER, ARE REPRODUCED HEREUNDER (EXTRACTE D FROM IT(SS)A 15/RJT/2011):- 3.0. THE SECOND, THIRD AND FOURTH GROUND OF APPEAL ARE IN RESPECT OF THE IMPOSITION OF PENALTY OF RS.12,76,429/- U/S. 271(1)(C) OF THE ACT ON THE ADDITIONAL INCOME OF RS.30,06,000/- VOLU NTARILY DISCLOSED IN THE RETURN FURNISHED IN RESPONSE TO NO TICE ISSUED U/S.153A OF THE ACT AS WELL AS ON THE ADDITION OF R S.3,09,400/- IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 3 - MADE ON ACCOUNT OF PROFIT ON SUPPRESSED SALES. THE FACTS OF THE CASE ARE THAT A SEARCH WAS CARRIED OUT AT THE RESID ENTIAL PREMISES OF THE DIRECTORS OF THE APPELLANT COMPANY ON 27.10. 2005. SIMULTANEOUSLY SURVEY WAS CARRIED OUT AT THE FACTOR Y PREMISES OF THE COMPANY ON THE SAME DATE. DURING THE POST SEAR CH ENQUIRIES, THE APPELLANT, WITH A VIEW TO AVOID LONG DRAWN LITI GATIONS AND TO BUY MENTAL PEACE ADMITTED AN INCOME OF RS.440 LAKHS FOR VARIOUS ASSESSMENT YEARS AS ITS UNDISCLOSED INCOME SUBJECT TO THE CONDITION THAT NO PENALTY PROCEEDINGS ARE INITIATED AND IMMUN ITY FROM PROVISIONS IS GRANTED. THEREAFTER, THE NOTICE UNDE R SECTION 153A OF THE ACT WAS ISSUED TO APPELLANT. THE APPELLANT HAD FILED RETURN FOR THE YEAR UNDER CONSIDERATION IN RESPONSE TO SAID NO TICE AND IN THE SAID RETURN, ADDITIONAL INCOME OF RS.30,06,000/- WA S DISCLOSED. THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT BY ACCEPTING THE ADDITIONAL INCOME DISCLOSED IN THE RETURN WITHO UT ANY ENQUIRY AS TO FROM WHERE THE ADDITIONAL INCOME SO DISCLOSED WAS EARNED. IT WAS NOTICED THAT THIS ADDITIONAL INCOME SO DISCL OSED IN THE RETURN FILED U/S.153A OF THE ACT WAS NOT DISCLOSED IN THE RETURN FILED U/S.139 OF THE ACT FOR THE YEAR UNDER CONSIDE RATION. ADDITION WAS ALSO MADE ON ACCOUNT OF PROFIT ON SUPPRESSED SA LES ON ESTIMATED BASIS WHICH WAS REDUCED TO RS.3,09,400/- AT APPELLATE STAGE. 3.1. THE ASSESSING OFFICER HAD INITIATED PENALTY PR OCEEDINGS U/S.271(1)(C) OF THE ACT FOR FURNISHING OF INACCURA TE PARTICULARS OF INCOME ON THE AMOUNT OF DISCLOSURE OF UNACCOUNTED I NCOME AND ADDITION MADE ON ACCOUNT OF SUPPRESSED NET PROFIT. AS PER THE ASSESSING OFFICER, THE PENALTY WAS LEVIABLE ON A SU M OF RS.53,04,000/- (RS.30,06,000 + RS.22,98,000). HE ISSUED SHOW- CAUSE NOTICE TO THE APPELLANT. THE ADDITION OF RS. 22,98,000/- WAS REDUCED TO RS.3,09,400/- AT APPELLATE STAGE. TH EREFORE, FRESH OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WAS GIVE N VIDE SHOW CAUSE NOTICE DATED 24.08.2009. THE APPELLANTS REP LY TO SUCH SHOW-CAUSE NOTICE WAS NOT FOUND SATISFACTORY BY ASS ESSING OFFICER AND, THEREFORE, HE IMPOSED PENALTY OF RS.12,76,429/ - UPON THE ASSESSEE U/S.271(1)(C) OF THE ACT ON THE ADDITIONAL INCOME OF RS.30,06,000/- SO DISCLOSED IN THE 153A RETURN AS A LSO ON THE IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 4 - ADDITION MADE ON ACCOUNT OF PROFIT ON SUPPRESSED SA LES ON ESTIMATED BASIS AND REDUCED TO RS.3,09,400/- AT APP ELLATE STAGE. 2.1. THE LD.CIT(A), AFTER CONSIDERING THE SUBMISSI ONS AND FOLLOWING THE DECISION OF THE COORDINATE BENCH (ITAT RAJKOT) RENDERED IN THE CASE OF DCIT VS. M/S.BALAJI MULTIFLEX P.LTD. IN IT(SS)A NOS.64 & 65/RJT/09 FOR AYS 2004-05 & 2005-06) DATED 10/08/2010, ALLOWE D THE APPEAL OF THE ASSESSEE BY DELETING THE PENALTY. 3. THE LD.CIT-DR SUBMITTED THAT THE LD.CIT(A) WAS N OT JUSTIFIED IN DELETING THE ADDITION AND SUPPORTED THE ORDER OF TH E AO. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE R EITERATED THE CONTENTIONS AS WERE MADE IN THE SYNOPSIS. HE SUBM ITTED THAT THIS ISSUE IS SQUARELY COVERED BY THE CATENA OF JUDGEMENTS IN FAV OUR OF ASSESSEE AND AGAINST THE REVENUE. HE FURTHER SUBMITTED THAT OUT OF THE ADDITION MADE BY THE AO, MAJORITY OF THE ADDITIONS WERE DELETED B Y THE LD.CIT(A) IN QUANTUM PROCEEDINGS. HE SUBMITTED THAT EVEN OTHERW ISE ALSO, THE AO WAS NOT JUSTIFIED IN INITIATING THE PROCEEDINGS ON THE ADDITION MADE ON THE BASIS OF ESTIMATION. HE ALSO SUBMITTED THAT IMMUNI TY AVAILABLE UNDER EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT IS AV AILABLE IN FAVOUR OF THE ASSESSEE. APART FROM THE ABOVE, THE LD.COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING CASE-LAWS:- 1. DECISION OF ITAT, RAJKOT BENCH RENDERED IN THE C ASE OF ACIT VS. SHRI SHANTILAL J.MAHESHWARI IN IT(SS)A NO. 69 RJT/2009. IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 5 - 2. DECISION OF ITAT, RAJKOT BENCH RENDERED IN THE C ASE OF ACIT VS. SHRI SAMAT A. JARIA IN IT(SS)A NOS.71 TO 73/RJT/2010. 3. DECISION OF ITAT, RAJKOT BENCH RENDERED IN THE C ASE OF ACIT VS. SHRI MUKESH B.ZAVERI IN IT(SS) NO.67/RJT/2 010. 4. DECISION OF ITAT, RAJKOT BENCH RENDERED IN THE C ASE OF ACIT VS. SHRI SHUKKA NEHAL CHIMANLAL IN IT(SS)A NOS .60 TO 63/RJT/2009. 5. DECISION OF ITAT, B BENCH KOLKATA RENDERED IN THE CASE OF DCIT VS. AVNISH CH.GUPTA IN ITA NOS.414 & 415/KOL/2009. 6. JUDGEMENT OF HONBLE KOLKATA HIGH COURT RENDERED IN THE CASE OF CIT VS. SURESH CHAND BANSAL 22 DTR (CAL) 1. 7. JUDGEMENT OF HONBLE RAJASTHAN HIGH COURT RENDER ED IN THE CASE OF CIT VS. KANHAIYALAL REPORTED AT 299 ITR 19 (RAJ.) 8. JUDGEMENT OF HONBLE KOLKATA HIGH COURT RENDERE D IN THE CASE OF CIT VS. SURESH CHAND BANSAL REPORTED AT 22 DTR (CAL) 1. 9. DECISION OF ITAT DELHI G BENCH THIRD MEMBER RE NDERED IN THE CASE OF ADDL.CIT VS. PREM CHAND GARG REPORTE D AT 119 ITD 97 (DEL) (TM). 10. DECISION OF ITAT DELHI F BENCH RENDERED IN THE CASE OF SHRI OM PRAKASH AGGARWAL VS. DCIT 2009-TIOL-232- ITAT-DEL. 11. DECISION OF ITAT JODHPUR BENCH RENDERED IN THE CASE OF HISSARIA BROTHERS VS. DCIT 31 DTR (JD) 223. 12. DECISION OF ITAT, ALLAHABAD A BENCH, ALLAHAB AD RENDERED IN THE CASE OF SHYAM BIRI WORKS (P) LTD. V S. ASST.CIT REPORTED AT 70 TTJ (ALL) 880 AND IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 6 - 13. JUDGEMENT OF HONBLE KARNATAKA HIGH COURT RENDE RED IN THE CASE OF CIT VS. MUKTA SRIDHAR REPORTED AT (2012) 20 5 TAXMAN 212 (KAR.). 3.2. THE LD.COUNSEL FOR THE ASSESSEE POINTED OUT TH AT THE LD.CIT(A) HAS FOLLOWED THE DECISION OF THE COORDINATE BENCH RENDE RED IN THE CASE OF DCIT VS. M/S.BALAJI MULTIFLEX PVT. LTD. IN IT(SS)A NOS.64 & 65/RJT/09(SUPRA), WHEREIN ON IDENTICAL FACTS, THE O RDER OF THE LD.CIT(A) DELETING THE PENALTY WAS UPHELD BY THE TRIBUNAL. HE FURTHER SUBMITTED THAT THE REVENUE PREFERRED AN APPEAL BEFORE THE JUR ISDICTIONAL HIGH COURT AGAINST THE ORDER OF THE ITAT AND THE HONBLE JURIS DICTIONAL HIGH COURT IN TAX APPEAL NOS.83 & 84 OF 2011 (IN THE CASE OF C IT VS. M/S.BALAJI MULTIFLEX PVT.LTD.) VIDE ORDER DATED 19/10/2011 HAS AFFIRMED THE VIEW TAKEN BY THE TRIBUNAL AND DISMISSED THE APPEAL(S). HE HAS ALSO SUBMITTED THAT THE AO HAS FOLLOWED THE DECISION OF THE HONBL E ITAT AHMEDABAD BENCH RENDERED IN THE CASE OF ACIT VS. SHRI KIRIT D AHYABHAI PATEL (IN ITA NOS.2344, 2345, 2346, 2348 AND 2389/AHD/2007). THE SAID DECISION OF THE HONBLE ITAT HAS BEEN REVERSED BY T HE HONBLE GUJARAT HIGH COURT IN A RECENT JUDGEMENT IN TAX APPEAL NOS .1181, 1182 AND 1185 OF 2010, DATED 03/12/2014 AND DECIDED THE ISSU E IN FAVOUR OF THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.COU NSEL FOR THE ASSESSEE. THE ASSESSEE HAS FILED A WRITTEN SYNOPSIS AND THE C ONTENTIONS OF THE SAME ARE REPRODUCED HEREUNDER:- IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 7 - SYNOPSIS 1.0 SEARCH U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT') CARRIED OUT AT THE PREMISES OF THE DIREC TORS OF THE RESPONDENT COMPANY ON 27.10.2005. CONSEQUENT SURVEY U/S 133A W AS ALSO CARRIED OUT AT THE PREMISES OF THE RESPONDENT. DURING THE COURSE O F SEARCH AT THE RESIDENTIAL PREMISES OF DIRECTORS AS ALSO SURVEY AT THE FACTORY PREMISES NOTHING WAS FOUND TO SUGGEST AND/OR ESTABLISH ANY UNACCOUNTED TRANSAC TIONS. 2.0 DURING THE COURSE OF POST SEARCH INQUIRES, THE RESPONDENT HAD, VIDE LETTER DATED 30.01.2006 ADMITTED ADDITIONAL INCOME OF RS. 440 LACS ON AD-HOC BASIS FOR VARIOUS YEARS SUBJECT TO THE CONDITION THAT IMMUNITY FROM PENALTY PROCEEDINGS IS GRANTED. 3.0 IT WAS ALSO CLARIFIED IN THE SAID LETTER T HAT YEAR-WISE BIFURCATION OF INCOME SHALL BE FURNISHED WHILE FILING THE RETURNS OF INCOME IN DUE COURSE. 4.0 THE RESPONDENT, IN COMPLIANCE OF THE SAID L ETTER AND IN RESPONSE TO NOTICE U/S. 153C OF THE ACT, FILED ITS RETURNS OF I NCOME IN RESPECT OF ASSESSMENT YEARS' UNDER CONSIDERATION WHEREIN IT OFFERED ADDIT IONAL INCOME ON AD-HOC BASIS IN ALL THE YEARS AND PAID DUE TAX ALONG WITH INTEREST ON SUCH INCOME. THE ASSESSMENTS WERE FINALISED U/S 153A(A) R.W.S. 153C OF THE ACT WHEREIN ESTIMATED ADDITIONS OVER AND ABOVE DECLARED INCOME WERE MADE. HOWEVER, THE SAME WERE REDUCED SUBSTANTIALLY AT THE APPELLATE ST AGE [DETAILS OF ADDITIONAL INCOME OFFERED, ADDITIONS MADE AND RELIEF GRANTED I S GIVEN IN THE CHART ATTACHED AT PAGE 5]. 5.0 THE AO LEVIED PENALTY ALLEGING THAT IF NO S EARCH WAS CONDUCTED THEN THE APPELLANT WOULD NOT HAVE FILED THE RETURN OF INCOME AND THUS, HAS CONCEALED INCOME TO THE EXTENT OF ADDITIONAL INCOME AND ADDIT IONS SUSTAINED. 6.0 THE ADMISSION OF ADDITIONAL INCOME WAS ON AD- HOC BASIS WITH A VIEW TO BUY MENTAL PEACE AND SUBJECT TO THE CONDITION TH AT NO PENALTY PROCEEDINGS ARE INITIATED AND IMMUNITY FROM PENAL PROVISIONS IS GRANTED. THEREFORE, THE AO WAS NOT JUSTIFIED IN LEVYING PENALTY AND THE LD. CIT(A) HAS RIGHTLY DELETED THE SAME. 7.0 FURTHER AS PER EXPLANATION (5) TO SECTION 271(1)(C) OF THE ACT, IMMUNITY FROM PENAL PROCEEDINGS IS REQUIRED TO BE GRANTED ON FACTS OF THE RESPONDENT'S CASE. HON'BLE HIGH COURT OF MADRAS HAS IN THE CASE OF CIT VS. S.D.V. CHANDRU IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 8 - 266 ITR 175 (MAD) WHEREIN IT HELD THAT 'PARA (2) IN EXPLANATION 5 DOES NOT MAKE ANY DISTINCTION BETWEEN THE PREVIOUS YEAR WHIC H HAS ENDED BEFORE THE DATE OF SEARCH AND THE PREVIOUS YEAR WHICH IS TO EN D ON OR AFTER THE DATE OF SEARCH AND THEREFORE WHEN THE ASSESSEE FILED HIS RE TURNS FOR EARLIER YEARS ADMITTING A LARGER INCOME AND ALSO PAID TAX TOGETHE R WITH INTEREST AFTER HIS STATEMENT WAS RECORDED UNDER S. 132(4), HE WAS ENTI TLED TO IMMUNITY UNDER EXPLANATION 5 TO S. 271(1)(C) AND PENALTY WAS NOT L EVIABLE'. EXPLANATION 5 TO SECTION 271(1)(C) SPECIFICALLY PROVIDES FOR IMMUNIT Y FROM PENALTY IN CASE OF ADMISSION OF CONCEALED INCOME RECORDED DURING SEARC H. IT IS IN THIS CONTEXT OF PLAIN LANGUAGE OF THE LAW, THE CONCURRENT FINDING O F THE FIRST APPELLATE AUTHORITY AND THE TRIBUNAL WAS UPHELD IN CIT VS CHH ABRA EMPORIUM 264 ITR 249 (DELHI). PENALTY WAS FOUND TO BE NOT LEVIABLE I N GEBILAL KANAIYALAL (HUF) VS ACIT) 270 ITR 523 (RAJ). RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISIONS: A. HON'BLE ITAT, RAJKOT BENCH RAJKOT IN THE CASE O F DCIT VS M/S. BALAJI MULTIFLEX P. LTD., IN IT(SS) NOS. 64 & 65/RJT/09 [PAPER BOOK PAGE 1 TO 9] WHEREIN ON IDENTICAL FACTS THE ORDER OF THE ID. CIT (A) DELETING THE PENALTY WAS UPHELD. THE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF THE HON'BLE ITAT VIDE TAX APPEAL NOS. 83 & 84 HAVE DISMISSED BY THE HON'BLE HIGH COURT OF GUJARAT VIDE ORDERS DATED 19.10.2011 [COPI ES ATTACHED AT PAGE (6 TO 9 ]. B. HON'BLE ITAT, RAJKOT BENCH, RAJKOT IN THE CASE OF ACIT VS SHRI SHANTILAL J. MAHESHWARI IT(SS)A NO. 69/RJT/2009 [PAPER BOOK PAGE 10 TO 12]. C. HON'BLE ITAT, RAJKOT BENCH, RAJKOT IN THE CASE OF ACIT VS SHRI SAMAT A. JARIA IT(SS)A NO. 71 TO 73/RJT/2010 [PAPER BOOK PAGE 13 TO 16]. D. HON'BLE ITAT, RAJKOT BENCH, RAJKOT IN THE CASE OF ACIT VS SHRI MUKESH B. ZAVERI IT(SS)A NO. 67/RJT/2010 [PAPER BOOK PAGE 17 TO 19]. E. HON'BLE ITAT, RAJKOT BENCH, RAJKOT IN THE CASE OF ACIT VS SHRI SHUKKA NEHAL CHIMANLAL IT(SS)A NO. 60 TO 63/RJT/2009 [PAPER BOOK PAGE 20 TO 22]. F. HON'BLE ITAT, 'B' BENCH, KOLKATA IN THE CASE O F DCIT VS AVNISH CH. GUPTA ITA NOS. 414 & 415/KOL/2009 [PAPER BOOK PAGE 23 TO 28]. G. HON'BLE HIGH COURT OF KOLKATA HAS IN THE CASE O F CIT VS. SURESH CHAND BANSAL 22 DTR (CAL) 1 [PAPER BOOK PAGE 29 TO 33] HELD THAT ADDITIONAL INCOME OFFERED AFTER THE SEARCH HAVING ACCEPTED IN ITS ENTIRETY WITHOUT DETAILED IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 9 - DISCUSSION OF THE SEIZED DOCUMENTS AND WITHOUT MAKI NG ANY ATTEMPT TO OBTAIN THE EXPLANATION OF THE RESPONDENT, PENALTY UNDER S. 271(1)(C) IS NOT LEVIABLE. H. HON'BLE HIGH COURT OF RAJASTHAN IN THE CASE OF CIT VS. KANHAIYALAL 299 ITR 19 (RAJ) [PAPER BOOK PAGE 34 TO 37] HAS HELD 'IMMUNITY UNDER EXPLN. 5 OF S. 271(1)(C) IS NOT TAKEN AWAY FOR THE SIMPLE REASO N THAT INCOME DISCLOSED BY THE RESPONDENT IN HIS STATEMENT UNDER S. 132(4) FOR A PARTICULAR YEAR WAS SPREAD OVER IN THE RETURNS OF SEVERAL YEARS, MORE S O, WHEN AO HAD ALSO MADE ASSESSMENT IN ASSESSMENT YEARS AS RETURNED BY RESPO NDENT, THOUGH AFTER MAKING SOME QUANTUM RESHUFFLING.' I. HON'BLE ITAT DELHI 'G' THIRD MEMBER BENCH IN THE CASE OF ADDL CIT VS. PREM CHAND GARG 119 ITD 97 (DEL)(TM) [PAPER BOOK PAGE 38 TO 41]. J. HON'BLE ITAT DELHI 'F' BENCH IN THE CASE OF S HRI OM PRAKASH AGGARWAL VS. DCIT 2009-TIOL-232-ITAT-DEL. [PAPER BOOK PAGE 42 TO 47]. K. HON'BLE ITAT JODHPUR BENCH IN THE CASE OF HISS ARIA BROTHERS VS. DCIT 31 DTR (JD) 223. I. HON'BLE ITAT, ALLAHABAD 'A' BENCH, ALLAHABAD IN THE CASE OF SHYAM BIRI WORKS (P) LTD. VS. ASST.CIT 70 TTJ (ALL) 880 AND M. HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF C IT VS. MUKTA SRIDHAR (2012) 205 TAXMAN 212 (KAR) [COPY ATTACHED AT PAGE 10 TO 11 ] 8.0 WITHOUT PREJUDICE TO THE ABOVE IT IS TO SUB MIT THAT THE IMMUNITY GRANTED UNDER EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT IS APPLICABLE TO ALL THE YEAR COVERED UNDER PROVISIONS OF SECTION 153A OF THE ACT IN THE CASES WHERE SEARCH WAS CONDUCED PRIOR TO 01.04.2007. THE LEGISLATURE H AS WITH SPECIFIC PURPOSES INSERTED PROVISIONS OF SECTION 271AAA W.E.F. 01.04. 2007 AND EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT FOR LEVY OF PENALTY W. E.F. 01.04.2007 AND 01.06.2007 RESPECTIVELY. THEREFORE, ALSO IMMUNITY I S AVAILABLE FROM THE PENALTY ACTION. 9.0 THE RESPONDENT DISCLOSED ADDITIONAL INCOME ONLY ON THE BASIS OF UNDERSTANDING THAT NO PENAL ACTION SHALL BE INITIAT ED. THIS FACT WAS SPECIFICALLY MENTIONED IN THE LETTER OF DISCLOSURE ALSO. UNDER THE CIRCUMSTANCES LEVY OF PENALTY IS TOTALLY UNJUSTIFIED AND UNCALLED FOR. HON'BLE ITAT, AHMEDABAD 'C' BENCH IN THE CASE OF ASHOK NATVARLAL PATEL VS. ACIT61 TTJ(AHD)139. IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 10 - 10.0 IN VIEW OF THE ABOVE, THE ORDER OF THE ID. C ITA(A) MAY KINDLY BE UPHELD. 4.1. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSES SEE IS THAT UNDER THE IDENTICAL FACTS, THE ISSUE OF LEVY OF PENALTY TRAVE LLED UPTO THE STAGE OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. M/S.BALAJI MULTIFLEX PVT.LTD. IN TAX APPEAL NOS.83 & 84 OF 2011(SUPRA). WE FIND THAT THE LD.CIT(A) WHILE DELETING THE ADDITION HAS FOLLOWED THE DECISION OF HONBLE COORDINATE BENCH RENDERED IN THE CASE OF DC IT VS. BALAJI MULTIFLEX PVT.LTD & ORS, WHEREIN THE PENALTY LEVIE D U/S.271(1)(C) OF THE ACT ON THE INCOME ADMITTED DURING THE COURSE OF SUR VEY PROCEEDINGS WAS DELETED BY THE TRIBUNAL. THE CONTENTION OF THE ASS ESSEE IS NOT CONTROVERTED BY THE REVENUE BY PLACING ANY MATERIAL ON RECORD, THEREFORE RESPECTFULLY FOLLOWING RATIO LAID DOWN BY THE HONB LE GUJARAT HIGH COURT RENDERED IN THE CASE OF KIRIT DAHYABHAI PATEL VS. A SST.CIT IN TAX APPEAL NOS.1181, 1182 & 1185 OF 2010, DATED 03/12/2014(SUP RA) AND ALSO THE DECISION OF COORDINATE BENCH IN THE CASE OF DCIT VS . BALAJI MULTIFLEX P.LTD.(SUPRA), WE DO NOT FIND ANY MERIT IN THE RE VENUES APPEAL IN IT(SS)A NO.15/RJT/2011 FOR AY 2000-01, SAME IS HERE BY REJECTED. 5. NOW, WE TAKE UP THE REVENUES APPEALS IN IT(SS)A NOS.16 TO 20/RJT/2011 FOR AYS 2001-02 TO 2005-06 RESPECTIVELY . 6. SINCE THE FACTS AND GROUNDS IN ALL THESE APPEALS ARE IDENTICAL TO THE FACTS AND GROUNDS OF REVENUES APPEAL IN IT(SS)A NO .15/RJT/2011 FOR AY 2000-01(SUPRA) AND REVENUE HAS NOT POINTED OUT A NY CONTRARY IT(SS)A NOS.15,16,17,18,19 & 20/RJT/2011 ACIT VS. M/S.BALAJI WAFERS PVT.LTD. ASST.YEARS 2000-01 TO 2005-06 RESPECTIVELY - 11 - JUDGEMENT, THEREFORE TAKING A CONSISTENT VIEW PASSE D IN REVENUES APPEAL FOR AY 2000-01(SUPRA), ALL THESE APPEALS OF THE REV ENUE ARE REJECTED. 6. IN THE RESULT, ALL THE SIX APPEALS OF THE REVENU E ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 18 TH DAY OF DECEMBER, 2014 AT AHMEDABAD. SD/- SD/- ( ) ( ) !'# # ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/ 12 /2014 ..,.../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. /0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. 343 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A)-IV, AHMEDABAD 5. 781 , , /DR,ITAT,RAJKOT 6. 8CDE& / GUARD FILE. / BY ORDER, 271 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ! '# $, / ITAT, RAJKOT 1. DATE OF DICTATION .. 15.12.2014(DICTATION-PAD 1 1-PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.12.14 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 BAC K TO THE SR.P.S./P.S.18.12.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 18.12.14 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