Shri Prabhudas Patel, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 203/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7842 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-01-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 02-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOURYANWASH I
• Section: 153A; 132; 139

Judgement Text

ITA NO. 203/AHD/2010 ASSESSM ENT YEAR 2003-04. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHM EDABAD (BEFORE SHRI G.C. GUPTA,VICE PRESIDENT AND SHRI A .L. GEHLOT) I.T(SS)A. NO. 203/AHD/2010 (ASSESSMENT YEAR: 2003-2004) SHRI PRABHUDAS PATEL, 11 DEVANSH BUNGALOWS, SURDHARA CIRCLE, THALTEJ, AHMEDABAD. (APPELLANT) VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), AAYAKAR BHAVAN, ASHRAMROAD, AHMEDABAD. (RESPONDENT) PAN: ADRPP 2489E ON BEHALF OF THE ASSESSEE : SHRI GAURAV NAHTA. ON BEHALF OF THE REVENUE : SHRI G.S. SOURYANWASH I, SR.D .R. ( )/ ORDER DATE OF HEARING : 10-1-2012 DATE OF PRONOUNCEMENT : 13-1-2012 PER: SHRI A.L. GEHLOT, A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. CIT (A)-III, AHMEDABAD IN APPEAL NO. CIT (A)-III/65/DCIT/CC.2(2) /09-10 DATED 18-2-2010 FOR THE ASSESSMENT YEAR 2003-04. ITA NO. 203/AHD/2010 ASSESSM ENT YEAR 2003-04. 2 2. THE GROUND RAISED IN THE APPEAL IS IN RESPECT OF LEVY OF PENALTY U/S.271(1)(C) OF RS.78,7250/-. THE BRIEF FACTS OF THE ISSUE ARE T HAT A SEARCH U/S. 132 OF THE I.T. ACT WAS CARRIED OUT IN THE GROUP CASES OF SOHAM GRO UP ON 10-5-2006. A SEARCH WARRANT OF AUTHORIZATION U/S.132 WAS ALSO ISSUED IN THE NAME OF THE ASSESSEE. THE ASSESSMENT WAS COMPLETED U/S.153A OF THE ACT. IT WA S SEEN THAT AS A RESULT OF SEARCH ASSESSEE DECLARED INCOME OF RS.2,50,000/- ON ACCOUNT OF ASSESSEES SHARE IN PARTNERSHIP FIRM WHICH WAS NOT ORIGINALLY SHOWN. AT THE TIME OF SEARCH ASSESSEE WAS OUT OF INDIA AND RETURNED TO INDIA. WHEN THE AS SESSEE RETURNED TO INDIA HIS STATEMENT WAS RECORDED U/S.131 OF THE ACT ON 25-7-2 006.THE ASSESSEE FILED RETURN IN COMPLIANCE TO NOTICE U/S/ 153A(1)(A) DECLARING I NCOME OF RS.2,50,000/-. THE AO ASSESSED THE TOTAL INCOME ACCEPTING THE RETURNED INCOME FILED BY THE ASSESSEE. THE AO LEVIED PENALTY U/S. 271(1) (C) ON THE GROUND THAT THE ASSESSEE HAS DECLARED INCOME OF RS.2,50,000/- IN THE RETURN AS SAME WAS D ETECTED DUE TO SEARCH. THE PENALTY LEVIED BY THE AO HAS BEEN CONFIRMED BY THE CIT (A) RELYING UPON A JUDGMENT OF THE APEX COURT IN THE CASE OF DHARMENDR A TEXTILE 219 CTR 617 AND OTHERS. THE CIT (A) CONFIRMED THE PENALTY LEVIED BY THE AO ON THE GROUND THAT THE ADDITIONAL INCOME OFFERED IN THE RETURN U/S.153A AN D WAS NOT SHOWN IN REGULAR RETURN FILED FOR THE YEAR UNDER CONSIDERATION. THE CIT (A) ALSO RELIED UPON JUDGMENT OF APEX COURT IN THE CASE OF CIT VS. OMKAR SARAN & SONS 195 ITR 1 (SC) WHEREIN IT HAS BEEN HELD THAT THE DATE OF FILING OF THE RETURN WAS THE DATE OF CONCEALMENT. 3. WE HEARD THE REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORDS. ON A PLAIN READING OF SECTION 153A (1) WE NOTICE THAT SE CTION 153A (1)(A) REQUIRES THAT A PERSON WHERE A SEARCH IS CARRIED OUT U/S. 132, THE AO SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASS ESSMENT YEAR FALLING WITHIN THE ITA NO. 203/AHD/2010 ASSESSM ENT YEAR 2003-04. 3 SIX ASSESSMENT YEARS AND THE SAID RETURN FILED IS T O BE TAKEN AS IF SUCH RETURN WHERE A RETURN IS REQUIRED TO BE FURNISHED U/S.139 OF THE ACT AND ACCORDINGLY, THE PROVISIONS OF THIS ACT SHALL APPLY. IN OTHER WORDS, THE REQUIREMENT OF SECTION IS THAT THE RETURN FILED IN RESPONSE TO NOTICE U/S. 153A TH E RETURN FILED WILL BE TREATED AS RETURN FILED U/S. 139 OF THE ACT. WHEN THIS IS THE POSITION THE PROVISION OF PENALTY U/S. 271(1)(C) IS ACCORDINGLY TO BE APPLIED. THE AP EX COURT IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD., 322 ITR 158 (SC), WHEREIN T HE APEX COURT LAID DOWN THE LAW THAT THE FURNISHING OF INACCURATE PARTICULARS O R CONCEALMENT OF PARTICULARS ARE TO BE SEEN FROM THE RETURN FILED BY THE ASSESSEE. THE RELEVANT OBSERVATION OF THE COURT IS REPRODUCED BELOW:- 9. WE ARE NOT CONCERNED IN THE PRESENT CASE WITH T HE MENS REA. HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A MATTER OF FACT, THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBST ERS DICTIONARY, THE WORD INACCURATE HAS BEEN DEFINED AS: NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH, ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT. WE HAVE ALREADY SEEN THE MEANING OF THE WORD PARTI CULARS IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS INJUNCTION , THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCUR ATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. S UCH NOT BEING THE CASE, THERE WOULD BE NO QUESTION OF INVITING THE PENALTY U/S. 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABL E IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REG ARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOU NT TO THE INACCURATE PARTICULARS. ITA NO. 203/AHD/2010 ASSESSM ENT YEAR 2003-04. 4 IN THE LIGHT OF ABOVE SUBSEQUENT JUDGMENT OF APEX C OURT IN THE CASE OF RELIANCE PETROPRODUCTS (SUPRA), THE JUDGMENTS OF DHARMENDRA TEXTILE & OTHER (SUPRA) DOES NOT HELP TO THE REVENUE. 4. THE SECTION 153A (1) PROVIDED FURTHER THAT ASSES SMENT WHICH ARE PENDING ON THE DATE OF INITIATION OF SEARCH SHALL ABATE. IN TH E CASE UNDER CONSIDERATION, THERE IS NO PENDING ASSESSMENT, THEREFORE, SAME IS NOT ABATE FOR THE PURPOSE OF MAKING SEARCH ASSESSMENT IN THE LIGHT OF PROVISIONS U/S. 1 53A OF THE ACT. THE REQUIREMENT OF PENALTY U/S. 271(1)(C) AS PER THE LAW LAID DOWN IN THE CASE OF APEX COURT IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD. (SUPRA) IS TO BE CONSIDERED IN THE LIGHT OF RETURN 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 ADMIS SION OF ASSESSEE AND NOT ON BASIS OF ANY MATERIAL FOUND DURING THE COURSE OF SE ARCH. THEREFORE, THE CASE UNDER CONSIDERATION, IS NOT THE CASE THAT THE ASSESSEE HA S FURNISHED INACCURATE PARTICULARS OR CONCEALED ANY PARTICULARS OF INCOME IN THE RETUR N OF INCOME FILED U/S. 153A OF THE ACT. WHEN THERE IS NO SUCH FINDING IN RESPECT OF RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A WE FIND THAT PENALTY U /S. 271(1)(C) CANNOT BE LEVIED. WE THEREFORE, CANCEL THE PENALTY OF RS.78,750/- LEV IED U/S./ 271(1)(C). 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 - 01 - 2012. SD/- SD/- (G. C. GUPTA) (A. L.GEHLOT) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA NO. 203/AHD/2010 ASSESSM ENT YEAR 2003-04. 5 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-III, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 10 - 01 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 11 /01 / 2011 MEMBER .OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 12 - -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..