Shri Alok Praful Shah, Surat V. The Dy.CIT.,Cent.Circle-1, Surat

ITSSA 246/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1686 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: J P SHAH
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRI ALOK PRAFUL SHAH, SAHARA GATE, SURAT, AHHPS2728P (APPELLANT) VS THE DCIT, CENTRAL CIRCLE - 01, SURAT (RESPONDENT) REVENUE BY : S MT. SONIA KUMAR , SR. D . R. ASSESSEE BY: S H RI J.P. SHAH , A.R. DATE OF HEARING : 01 - 0 2 - 2 016 DATE OF PRONOUNCEMENT : 26 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2008 - 09 , AR ISES FROM ORDER OF THE CIT(A) - II, AHMEDABAD DATED 16 - 03 - 2012 IN APPEAL NO. CIT(A) - I T (SS) A NO . 246 / A HD/20 12 A SSESSMENT YEAR 200 8 - 09 I.T. (SS) A NO. 246 /AHD/20 12 A.Y. 2008 - 09 PAGE NO SHRI ALOK PRAFUL SHAH VS. DCIT 2 II/CC.1/68/2011 - 12 , IN PR OCEEDINGS UNDER SECTION 271AAA OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE S SOLE SUBSTANTIVE GROUND CHALLENGES THE LOWER A PPELLATE ORDER UPHOLDING SECTION 271AAA PENALTY OF RS. 1 LACS IMPOSED BY THE ASSESSING OFFICER IN PENALTY ORDER DATED 30 - 05 - 2011. WE COME TO FACTS OF THE CASE. THE ASSESSEE - INDIVIDUAL DERIVES INCOME FROM CAPITAL GAINS AND OTHER SOURCES. THE DEPARTMENT C ARRIED OUT A SEARCH IN M/S GARDEN GROUP OF CASES. THE ASSESSEE DECLARED ADDITIONAL INCOME OF RS. 9,99,415/ - IN COURSE THEREOF ON A CCOUNT OF DISCREPANCY IN JEWELLE RY HAS NOT RECORDED IN BOOKS. THE ASSESSEE HIMSELF APPEARS TO HAVE AGREED FOR DECLARING A SU M OF RS. 10 LACS DURING SEARCH ITSELF. HE WOULD FILE HIS RETURN ON 15 - 04 - 2009 IN FURTHERANCE TO SECTION 153A NOTICE DATED 29 - 11 - 2008. THE ASSESSING OFFICER FRAMED ASSESSMENT ON 30 - 11 - 2010 ASSESSING A SUM OF RS. 1,75,53,705/ - (INCLUDING THE ABOVE STATED S UM OF RS. 10 LACS). HE ISSUED THE IMPUGNED PENALTY PROCEEDINGS U/S. 271AAA. QUANTUM PROCEEDINGS ATTAINED FINALITY AT THIS STAGE ITSELF. 3. WE COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSEE DREW ASSESSING OFFICER S ATTENTION TOWARDS CHRONOLOGY OF EVENTS IN SEARCH PROCEEDINGS. HE INTER ALIA PLEADED THAT THE ABOVE STATED ADDITIONAL INCOME WAS VOLUNTARILY DECLARED WITHOUT ANY CORRESPONDING EVIDENCE OR MATERIAL OF ANY UNACCOUNTED VALUABLE ASSETS OR PAPERS. THE ASSESSING OFFICER REJECTED THE SAME IN HIS PENALTY ORDER. HE QUOTED SEARCH DEVELOPMENTS RELYING UPON ASSESSEE S ADMISSION I.T. (SS) A NO. 246 /AHD/20 12 A.Y. 2008 - 09 PAGE NO SHRI ALOK PRAFUL SHAH VS. DCIT 3 THEREIN. AND THAT THE RELEVANT CONDITION FOR EXEMPTION U/S. 271AAA I.E. ADMISSION OF UNDISCLOSED INCOME WITH SPECIFICATION OF MANNER OF DERIVING THE SAME FOLLOWED BY I TS SUBSTANTIATION HAD NOT BEEN FULFILLED. ALL THIS RESULTED IN IMPOSITION OF THE IMPUGNED PENALTY. 4. THE ASSES SEE PREFERRED APPEAL. THE C IT(A) UPHOLD ASSESSING OFFICER S ACTION IN LEAVING THE IMPUGNED PENALTY. WE HAVE HEARD BOTH THE PARTIES. THE LD . REPRESENTATIVE S REITERATE THEIR RESPECTIVE STANDS. THERE IS NO DISPUTE THAT THE ASSESSEE S ADDITIONAL INCOME OF RS. 10 LACS PERTAINS TO GOLD JEWELLE RY ITEMS OF RS. 9,99,415/ - . THE AUTHORIZED REPRESENTATIVE FILES BEFORE US A COPY OF BOARD S CIRCULAR NO . 1916 DATED 11 - 05 - 1994 INTER ALIA THAT IN CAS E OF A WEALTH TAX ASSESSEE, S GOLD JEWELLE RY OR ORNAMENT FOUND IN EXCESS OF GROSS WEIGHT DECLARED IN THE WEALTH TAX RETURN ONLY NEEDS TO BE SEIZED DURING SEARCH. IT EMERGES FROM THE CASE FILE THAT THE ASSESSEE AND HIS FAMILY MEMBER WEALTH T AX RETURN DISCLOSED GOLD JEWELLE RY WEIGHING 16526.69 GMS AS AGAINST THAT FOUND IN SEARCH WEIGHING 15297.30 GMS. THIS DIFFERENCE IN WEIGHT BENEFIT HAS NOWHERE BEEN GIVEN BY THE LOWER AUTHORITIES. NOR DO THEY DRAW ANY DETAILED RECONCILIATION OF THE JEWELLE RY ITEMS IN QUANTUM OR PENALTY PROCEEDINGS AS WELL IN THE C O U RS E OF SEARCH. WE REITERATE THAT WE ARE DEALING WITH A PENALTY CASE IN A TAX STATUTE WHEREIN THE SAME IS NOT BE IMPOSED AUTOMATICALLY ON THE BASIS OF QUANTUM ACTION . WE ACCEPT ASSESSEE S ARGUMENT ON THIS SCORE ALONE. THE IMPUGNED SECTION 271AAA PENALTY OF RS. 1 LACS STANDS DELETED. I.T. (SS) A NO. 246 /AHD/20 12 A.Y. 2008 - 09 PAGE NO SHRI ALOK PRAFUL SHAH VS. DCIT 4 4. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 26 - 02 - 201 6 SD/ - SD/ - ( ANIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 26 /02 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,