Smt. Jyotikaben S.Kakkad, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 220/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7572 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-03-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 08-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: P M MEHTA
• Keywords: Salary income; Onus to prove
• Section: 153A; 132; 10; 15

Judgement Text

IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH , AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.(SS)A. NO.220 & 221/2010 (ASSESSMENT YEARS: 2 004-05 & 2005-06 ) SMT. JYOTIBEN S. KAKKAD E-303, SATELLITE CENTRE, PREMCHAND NAGAR ROAD, AHMEDABAD. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEABAD. (RESPONDENT) PAN:AFDPK 3043H APPELLANT BY : SHRI P.M. MEHTA RESPONDENT BY : SHRI RAHUL KUMAR, SR.D.R. ( )/ ORDER DATE OF HEARING : 14-3-2 012. DATE OF PRONOUNCEMENT : 13-4-2012 PER: SHRI ANIL CHATURVEDI,A.M THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF CIT(A)- III, AHMEDABAD BY TWO SEPARATE ORDERS DATED 7-1-201 0 AND 12-1-2010 FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 RESPEC TIVELY. 2. FIRST WE TAKE UP APPEAL NO.IT(SS) A.NO.220/2010 A.Y. 2004-05. IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 2 2.1. A SEARCH U/S. 132(1) WAS CARRIED OUT AT THE AS SESSEES PLACE ON 14-2-2002 AND CONSEQUENT TO SEARCH NOTICE U/S. 153A WAS ISSUED. 3. IN THIS CASE THE ASSESSMENT WAS COMPLETED U/S.15 3A R.W.S. 143(3), VIDE ORDER DATED 3-12-2008 AT THE TOTAL INC OME OF RS.2,28,120/- .A.O. NOTED THAT SALARY OF RS.2,35,718/- RECEIVED F ROM EMALL HAD NOT BEEN SHOWN ORIGINALLY AND ALSO NOT STATED IN STATEM ENT RECORDED U/S.132(4). IT WAS DISCLOSED IN THE RETURN FILED U/ S. 153A ONLY AS A CONSEQUENCE OF SEARCH. A.O. NOTED THAT NO REPLY WAS FURNISHED TO SHOE CAUSE NOTICE U/S. 271(1)(C ), SERVED ON THE AS SESSEE. THE A.O. THEREFORE, FELT THAT THERE WAS CONCEALMENT OF INCOM E AND IMPOSED PENALTY OF RS.39,715/-. 4. AGGRIEVED BY THE A. OS ORDER, ASSESSEE PREFERRE D APPEAL BEFORE THE CIT (A). BEFORE CIT (A), THE ASSESSEE STATED T HAT ASSESSEE HAD SHOWN SALARY FROM EMALL IN ALL THE RETURNS THAT WER E FILED BEFORE THE SEARCH. IT WAS FURTHER STATED THAT IN THE RETURN FI LED ON 8-3-2006 FOR A.Y. 2004-05 SALARY INCOME OF RS.68,718/- HAD BEEN SHOWN AS AGAINST THE SALARY OF RS.2,35,718/- SHOWN IN THE RETURN FOR A.Y. 2004-05 FILED U/S. 153A.THE DIFFERENCE WAS ON ACCOUNT OF INADVERT ENCE AND CERTAIN DISCREPANCIES BUT NOT DELIBERATELY. CIT (A) CONFIRM ED THE PENALTY BY HOLDING AS UNDER:- 5. THE CONTENTIONS WERE CAREFULLY CONSIDERED. THE APPELLANT HAS ADMITTED INCOME FROM SALARY AT RS.2,35,718/-, I N THE RETURN U/S.153A WHEREAS IT HAD SHOWN SALARY INCOME OF RS.6 8,718/- IN THE RETURN ORIGINALLY FILED FOR A.Y. 2004-05. THE S TATED DISCREPANCY/INADVERTENCE HAS NOT BEEN EXPLAINED/EVI DENCED. IT IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 3 INCOME I.E. RS.1,67,000/- HAD TRANSPIRED ONLY DUE T O THE ACTION U/S. 132 OF THE ACT. THE APPELLANT HAD ALSO NOT ADM ITTED TO THIS DIFFERENTIAL INCOME IN HER STATEMENT U/S. 132(4) AN D SO WAS NOT ENTITLED TO THE BENEFIT OF IMMUNITY AS PER EXPLANAT ION 5 TO SECTION 271(1)(C ). AS SUCH, THERE IS NO INFIRMITY IN THE ACTION OF THE A.O. AND PENALTY IMPOSED IS CONFIRMED. 5. AGGRIEVED BY THE CIT (A)S ORDER, ASSESSEE IS NO W IN APPEAL BEFORE US. 6. BEFORE US ASSESSEE HAS FILED WRITTEN EXPLANATION S. BEFORE US IT WAS STATED THAT CONSEQUENT TO THE SEARCH NOTICE U/S . 153A WAS ISSUED IN RESPONSE TO WHICH RETURN OF INCOME WAS FILED DEC LARING INCOME OF RS.2,10,120/-. IN THIS RETURN SALARY INCOME WAS VOL UNTARILY SHOWN AT RS.2,35,718/-.THE ASSESSEE STATED THAT IN THE ORIGI NAL RETURN OF INCOME CORRECT FIGURE OF SALARY INCOME COULD NOT BE SHOWN DUE TO SOME ARITHMETICAL ERRORS. ASSESSMENT WAS MADE U/S. 153A IN WHICH RETURNED INCOME WAS ACCEPTED EXCEPT THAT A DISALLOW ANCE OF RS.18,000/- WAS MADE IN RESPECT OF WHICH THE ASSESS EE CLAIMED EXEMPTION U/S. 10 BEING CONVEYANCE ALLOWANCE RECEIV ED FROM THE EMPLOYER. THE ASSESSEE DID NOT FILE ANY APPEAL AGAI NST THE ASSESSMENT ORDER. LD. A.R. STATED THAT A.O. HAS NOT BROUGHT ANY MATERIAL OR EVIDENCE ON RECORD TO PROVE THAT THE AS SESSEE HAD INTENTIONALLY CONCEALED HER INCOME OR FURNISHED INA CCURATE PARTICULARS OF INCOME. PENALTY WAS LEVIED MERELY ON THE DIFFERENCE BETWEEN THE INCOME SHOWN IN THE ORIGINAL RETURN OF INCOME AND INCOME SHOWN U/S. 153A. IT WAS STATED THAT IN THE O RIGINAL RETURN OF INCOME, SALARY INCOME WAS DULY SHOWN BUT THE FIGURE THEREOF WAS IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 4 INCORRECTLY CALCULATED DUE TO A BONAFIDE ERROR AND NOT WITH AN INTENTION TO CONCEAL INCOME. IT WAS ALSO SUBMITTED THAT THE A.O. HAS NOT BROUGHT ANY MATERIAL OR EVIDENCE ON RECORD THAT THE ASSESSEE HAD INTENTIONALLY CONCEALED THE INCOME OR FURNISHED INA CCURATE PARTICULARS OF INCOME. ASSESSEE ALSO RELIED ON FOLLOWING DECISI ONS:- 1) CIT VS. ARISUDANA SPINNING MILLS LTD. (326 ITR 4 29)(P&H) 2) CIT VS. VASANT HANDIGUND (327 ITR 333) (KAR) 3) ACIT VS. VIP IND.LTD. 21 DTR 153 (ITAT MUM.) 4) GEM GRANITES (KARNATAKA) VS. DCIT 18 DTR 358 (I TAT CHENNAI) 7. ON THE OTHER HAND, LD. D.R. RELIES ON THE ORDER OF CIT (A).HE STATES THAT SALARY WAS NOT ORIGINALLY SHOWN IN THE RETURN OF INCOME. THE ASSESSEE NEVER STATED THAT SHE WAS HAVING SALAR Y INCOME IN THE STATEMENT RECORDED U/S. 132(4). ACCORDING TO DR, AS SESSEE HAS SHOWN INCOME ONLY AS A RESULT OF SEARCH. ASSESSEE WAS NOT ENTITLED TO IMMUNITY AS PER EXPLANATION 5 TO SECTION 271(1)(C ) . HE RELIED ON THE DECISION OF ACIT VS. KIRITBHAI DAHYABHAI PATEL (200 9) 121 ITD 159. THE HEAD NOTE READS AS UNDER:- BENEFIT OF EXPLANATION 5 IS CONFINED TO THE RETURN FOR THE YEAR IN RESPECT OF WHICH THE PREVIOUS YEAR IS YET TO END OR EVEN THOUGH ENDED, THE TIME FOR FILING THE RETURN UNDER S. 139( 1) IS YET TO EXPIRE.. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL ON RECORD AND WRITTEN SUBMISSIONS MADE AND CASE LAWS CITED BY THE PARTIES. IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 5 9. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAD D ECLARED TOTAL INCOME OF RS.2,28,120/- IN RETURN OF INCOME U/S. 15 3A. THE SALARY INCOME THAT WAS DECLARED WAS NOT BASED ON ANY INCRI MINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH. THE IN COME WAS ALSO ASSESSED ON THE BASIS OF RETURN FILED BY THE ASSESS EE EXCEPT THAT A DISALLOWANCE OF RS.18,000/- WAS MADE IN RESPECT OF WHICH THE ASSESSEE CLAIMED EXEMPTION U/S.10. THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE U/S. 153A AFTER THE SEARCH HAS BEEN AC CEPTED IN ITS ENTIRETY WITHOUT DETAILED DISCUSSION OF SEIZED MATE RIAL. IN A CASE WHERE ALL THE NECESSARY PARTICULARS ARE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME, IT CANNOT BE SAID THAT THE AS SESSEE HAS CONCEALED INCOME OR FURNISHED INACCURATE PARTICULAR S OF INCOME. 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 FILED U/S. 153A OF THE ACT. THE A.O. HAS NOT DISCHARGED THE BURDEN TO PROVE THE CONCEALM ENT OF INCOME THE CASE LAW RELIED BY THE LD. D.R. ARE DISTINGUISH ABLE ON FACTS. WHEN THERE IS NO FINDING OF CONCEALMENT IN RESPECT OF RE TURN FILE BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A, WE FIND T HAT PENALTY U/S. 271(1)(C ) CANNOT BE LEVIED. WE THEREFORE, CANCEL T HE PENALTY OF RS.39,715/- LEVIED U/S. 271(1)(C ). 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 11. IT (SS)A NO.221/2010 A.Y. 2005-06 . IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 6 THE FACTS IN RESPECT OF A.Y. 2005-06 ARE SIMILAR T O THAT OF ASSESSMENT YEAR 2004-05 EXCEPT THAT ASSESSEE HAD NO T FILED RETURN OF INCOME PRIOR TO ISSUE OF NOTICE U/S. 153A WHEREIN S ALARY INCOME OF RS.1,90,000/- WAS SHOWN. THIS RETURN WAS ACCEPTED AND NO ADDITION WAS MADE BY THE A.O. THE RETURN OF INCOME WAS FILED ONLY IN RESPECT TO NOTICE U/S. 153A AND THE RETURN FILED BY THE ASS ESSEE WAS ACCEPTED BY A.O. THE A.O. LEVIED PENALTY OF RS. 18,090/-. 12. AGGRIEVED BY THE ASSESSING OFFICERS ORDER, ASS ESSEE PREFERRED APPEAL BEFORE THE CIT (A). BEFORE CIT (A) IT WAS S UBMITTED THAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE. THE A .O. WAS INCORRECT IN STATING THAT IT WAS NOT SHOWN ORIGINALLY SINCE T HE RETURN FOR A.Y. 2005-06 HAD NOT BEEN FILED ORIGINALLY, AS ON DATE O F SEARCH I.E. 14-2- 2007. AS IT IS, THIS WAS NOT UNUSUAL, SINCE THE ASS ESSEE HAD FILED HER RETURNS BELATEDLY IN RESPECT OF ASSESSMENT YEAR 200 1-02 TO 2004-05. IN THESE RETURNS ALSO, SALARY HAD BEEN SHOWN FROM E-MAIL. NOTHING INCRIMINATING WAS FOUND ABOUT THE SALARY FROM E-MAI L DURING THE SEARCH. CONSIDERING THE PAST DISCLOSURE OF SALARY, THE A.O. WAS INCORRECT IN STATING THAT IT WAS NOT INTENDED TO BE DISCLOSED IN A.Y. 2005-06 AND AS SUCH THERE WAS NO CONCEALMENT OF INC OME. 13. THE CIT (A) CONFIRMED THE PENALTY LEVIED BY A.O . AND NOW THE ASSESSEE IS IN APPEAL BEFORE US. IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 7 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL ON RECORD AND WRITTEN SUBMISSIONS MADE AND CASE LAWS CITED BY THE PARTIES. AS THE FACTS OF THE ASSESSME NT YEAR 2005-06 ARE SIMILAR TO THAT OF ASSESSMENT YEAR 2004-05 AND RELY ING ON THE SAME WE CANCEL THE PENALTY OF RS.18,090/-. ACCORDINGLY T HIS GROUND DECIDED AS INDICATED ABOVE. 13. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13-4 - 2012. (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. 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. IT(SS)A NO.220 & 221/2010 ASSESSME NT YEARS 2004-05 & 05- 06 . 8 1.DATE OF DICTATION 15 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 9 /4 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 9 - 4 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 - 4 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 13 - 4 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 3 - 4 -2012. 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..