Shri` Samir S.Kakkad, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 258/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7556 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 19-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Keywords: Search and seizure; Salary income; Onus to prove
• Section: 143(3); 153A; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA (SS) NO. 258/AHD/2010 ASSESSMENT YEAR :2005-06 SHRI SAMIR S. KAKKAD AHMEDABAD V/S . DCIT CENTRAL CIRCLE-2(2), AHMEDABAD PAN NO. AHQPK8056P (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI P.M. MEHTA, A.R. /BY RESPONDENT SHRI SHYAM PRASAD, SR. D.R. /DATE OF HEARING 2 1 .0 5 .2012 /DATE OF PRONOUNCEMENT 25.05.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R OF CIT(A)-III, AHMEDABAD, ORDER DATED 12.01.2010 FOR ASSESSMENT YE AR 2005-06. THE EFFECTIVE GROUND OF APPEAL IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT(A) ERRED IN CONFIRMING THE ORDER OF PENALTY U/S. 271(1)(C) MORE PARTICULARLY BECAUSE THE CONFIRMATION OF THAT PENALTY ORDER IS BASED ON MISU NDERSTANDING OF THE IMPORTANT FACTUAL ASPECTS OF THE CASE EVEN BY THE C IT(A). ITA(SS)NO. 258/AHD/2010 A.Y.2005-06 PAGE 2 2. LD. A.O. IMPOSED PENALTY OF RS. 45,900/- UNDER S ECTION 271(1) (C) ON 29.06.2009. THE FACT OF THE CASE IS THAT THERE WAS A SEARCH AND SEIZURE OPERATION IN GROUP CASES OF SIS ON 14.02.2007. THE ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143(3) WAS PASSED ON 03.12.2008 AND AN ADDITION OF RS. 1,50,000/- WAS MADE ON ACCOUNT OF N OT DISCLOSING FULL SALARY RECEIVED FROM M/S SAI INFOSYSTEM (INDIA) PVT. LTD. DURING THE COURSE OF SEARCH, HE NEVER ADMITTED THE SALARY INCOME FROM AB OVE COMPANY UNDER SECTION 132(4) OF THE IT ACT. THEREFORE, THE A.O. HELD THAT NO EMUNITY UNDER SECTION 271(1) (C) EXPLANATION (5) COULD BE AVAILED BY THE ASSESSEE. THUS, HE IMPOSED PENALTY AT RS. 45,900/- UNDER SECTION 271(1 ) (C) OF THE IT ACT. 3. BEING AGGRIEVED BY THE ORDER OF A.O., THE ASSES SEE FILED SECOND APPEAL BEFORE LD. CIT(A), AHMEDABAD, HE CONFIRMED THE ORDE R BY OBSERVING AS UNDER:- THE CONTENTIONS WERE CAREFULLY CONSIDERED. IT IS SEEN THAT THE APPELLANT HAD DISCLOSED INCOME FROM SALARY IN THE EARLIER YEA R I.E. 2004-05 IN THE RETURN FILED ORIGINALLY ON 31/3/2005. IT HAS BEEN NOW EXPLAINED THAT IN THE RETURN FOR A.Y. 2005-06, THE SALARY INCOME OF R S.1,50,000/-(FROM M/S. SAI INFOSYSTEM PVT. LTD.) HAD BEEN INADVERTENT LY SHOWN AT RS. 15,000/-, IN THE RETURN FILED ORIGINALLY, INSTEAD O F THE CORRECT FIGURE OF RS. 1,50,000/- WHICH HAD BEEN SHOWN CORRECTLY IN THE RE TURN FOR THE EARLIER YEAR. IT IS SEEN HOWEVER THAT IN HIS STATEMENT U/S . 132(4), HE HAD DENIED HIS RELATIONSHIP WITH M/S. SAI INFOSYSTEM PV T. LTD. IT HAS BEEN FURTHER CLARIFIED THAT M/S. SAI COMPUTECH PVT. LTD. WAS SUBSEQUENTLY NAMED AS M/S. ACHAL COMPUTECH PVT. LTD., OR E-MALL PVT. LTD. HOWEVER, IN HIS STATEMENT U/S. 132(4), THE APPELLANT AFFIRME D THAT HE WAS DIRECTOR IN M/S. E-MALL INFOTECH PVT. LTD., BUT STATED THAT THERE WAS NO RELATIONSHIP WITH M/S SAI INFOSYSTEM PVT. LTD. IN VIEW OF THE CATEGORICAL DENIAL U/S. 132(4), THE BENEFIT OF IMMUNITY UNDER E XPLANATION 5 TO SECTION 271(1) (C) IS NOT AVAILABLE TO THE APPELLAN T. IN THE EVENT, NO INFIRMITY IS SEEN IN THE ACTION OF THE AO IN IMPOSI NG THE PENALTY, WHICH IS THEREFORE, CONFIRMED. 4. NOW THE ASSESSEE IS BEFORE US AGAINST THE ORDER OF LD. CIT (A). THE A.R. OF THE ASSESSEE REFERRED THE DECISION OF ITAT, AHMEDABAD A BENCH, IN ITA(SS)NO. 258/AHD/2010 A.Y.2005-06 PAGE 3 THE CASE OF SMT. JYOTIBEN S. KAKKAD V. DCIT, AHMEDABAD, IN ITA NOS.- 220 & 221/2010, A.Y. 2004-05 & 2005-06 WHERE RESPECTED A BENCH HAS DECIDED THE SIMILAR ISSUE IN FAVOUR OF ASSESSEE. THE FINDING OF THE A BENCH IS AS UNDER:- IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAD DEC LARED TOTAL INCOME OF RS.2,28,120/- IN RETURN OF INCOME U/S. 153/A. THE SALARY INCOME THAT WAS DECLARED WAS NOT BASED ON ANY INCRIMINATING MAT ERIAL SEIZED DURING THE COURSE OF SEARCH. THE INCOME WAS ALSO ASSESSED ON THE BASIS OF RETURN FILED BY THE ASSESSEE EXCEPT THAT A DISALLOW ANCE OF RS. 18,000/- WAS MADE IN RESPECT OF WHICH THE ASSESSEE CLAIMED E XEMPTION U/S. 10. THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE U/S. 153A AFTER THE SEARCH HAS BEEN ACCEPTED IN ITS ENTIRETY WITHOUT DE TAILED DISCUSSION OF SEIZED MATERIAL. IN A CASE WHERE ALL THE NECESSARY PARTICULARS ARE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME, I T CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED INCOME OR FURNISHED INAC CURATE PARTICULARS OF INCOME. THEREFORE, THE CASE UNDER CONSIDERATION IS NOT THE CASE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS O R CONCEALED ANY PARTICULARS OF INCOME IN THE RETURN FILED U/S. 153 A 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 DISTINGUISHABLE 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 THAT PENALTY U/S. ITA(SS)NO. 258/AHD/2010 A.Y.2005-06 PAGE 4 271(1)(C) CANNOT BE LEVIED. WE THEREFORE, CANCEL T HE PENALTY OF RS. 39,715/- LEVIED U/S. 271(1) (C). 5. LD. D.R. VEHEMENTLY RELIED UPON THE ORDER OF A.O . AND LD. CIT (A) AND ARGUED THAT THE ORDER OF LD. CIT(A) SHOULD BE CONFI RMED AS THERE WAS A CASE OF CONCEALMENT OF INCOME. 6. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND ALSO GONE THROUGH THE CASE LAW RELIED UPON BY THE A.R. OF THE ASSESSEE. THE HONBLE A BENCH HAS DEALT SIMILAR ISSUE IN ABOVE ORDER WHERE SALARY INCOME HAS NOT BEEN DISCLOSED FULLY BY THE ASSESSEE, BUT THE SALAR Y INCOME DECLARED WAS NOT BASED ON ANY INCRIMINATING MATERIAL SEIZED DURING T HE COURSE OF SEARCH. THE INCOME OF THE ASSESSEE WAS ALSO ASSESSED ON THE BAS IS OF RETURN FILED BY THE ASSESSEE EXCEPT EXCESS DEDUCTION CLAIM OF RS. 39,60 0/- UNDER SECTION 10 OF THE IT ACT. THE UNDISCLOSED INCOME HAS BEEN ACCEPT ED BY THE A.O. IN ENTIRETY, THEREFORE, WE FEEL THAT THIS IS NOT FIT C ASE OF PENALTY UNDER SECTION 271(1) (C) OF THE IT ACT. AS THERE IS NO FINDING O F CONCEALMENT IN ASSESSMENT ORDER, THEREFORE, THE PENALTY ORDER CONFIRMED BY TH E LD. CIT (A) IS DELETED. 7. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- ( MUKUL KR. SHRAWAT) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- ITA(SS)NO. 258/AHD/2010 A.Y.2005-06 PAGE 5 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 22.05.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 23.05.2012 4) DATE OF CORRECTION 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 25.05.2012 7) ORDER UPLOADED ON 28.05.2012 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 28.05.2012