Shri Pramod J. Daswani, Vadodara V. The Assistant Commissioner of Income Tax, Central Circle-1, Vadodara

ITSSA 264/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5045 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 08-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S N SOPARKAR WITH PARIN SHAH
• Keywords: Document seized; Documents seized
• Section: 271(1)(c); 153A; 27

Judgement Text

IT(SS)A NO.264/AHD/2017 ASSESSMENT YEAR : 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH C, AHMEDABAD [CORAM: JUSTICE P P BHATT, PRESIDENT, AND PRAMOD KU MAR, VICE PRESIDENT] IT(SS)A NO.264/AHD/2017 ASSESSMENT YEAR: 2011-12 PRAMOD J DASWANI, ....APPELLANT 9, SHRI RAM NAGAR, BEHIND RTO, WARASIYA COLONY, VADODARA 390 006. [PAN: ABWPD 8222G] VS ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, BARODA. ..........RE SPONDENT APPEARANCES BY S.N. SOPARKAR WITH PARIN SHAH, FOR THE APPELLANT L.P. JAIN, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : AUGUST 27, 2019 DATE OF PRONOUNCEMENT : OCTOBER 14, 2019 O R D E R PER PRAMOD KUMAR, VP : 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 28.02.2017 PASSED BY THE CIT(A)-12, AHMEDABAD UPHOLDING PENALTY OF RS.33,99,200/- UNDER SECTION 271(1)(C) OF THE IN COME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2011-12. 2. GRIEVANCES RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1) LD. CIT(A) ERRED IN LAW AND ON FACTS CONFIRMING PENALTY LEVIED BY AO OF RS.33,99,200/- INVOKING PROVISIONS OF SECTION 27 1(1)(C) OF THE ACT. LD. CIT(A) OUGHT TO HAVE DELETED PENALTY WHEN INCOM E RETURNED U/S.153A STOOD ACCEPTED BY AO WITHOUT ANY ADJUSTMEN T OR ADDITION. 2) LD. CIT(A) ERRED IN LAW AND ON FACTS CONFIRMING LEVY OF PENALTY BY AO UNDER THE PROVISIONS OF SECTION 271(1)(C) READ WITH EXPLANATION 5A OF THE ACT CONSIDERING AMOUNT OF RS.1,11,45,050/- AS C ONCEALED INCOME. IT(SS)A NO.264/AHD/2017 ASSESSMENT YEAR : 2011-12 PAGE 2 OF 3 3) LD. CIT(A) ERRED IN LAW AND ON FACTS IN HOLDING THE ADDITIONAL INCOME OFFERED IN RETURN FILED U/S 153A TO BUY PEACE AS U NDISCLOSED INCOME DRAWING INFERENCE OF AVAILABILITY OF MONEY, BULLION OR ASSES EMBEDDED IN THE ENTRIES SOLELY ON THE BASIS OF STATEMENT OF THE APPELLANT. 4) LD. CIT(A) ERRED IN LAW AND ON FACTS IN HOLDING THAT ADMISSION OF THE ADDITIONAL INCOME AND ITS INCLUSION IN RETURN BASED ON SEIZED DOCUMENTS COMES WITHIN PURVIEW OF DEEMING FICTION U NDER EXPLANATION 5A NOT APPRECIATING THAT NO REFERENCE TO ANY MONEY, BULLION, JEWELLERY OR ASSET FOUND DURING SEARCH IS MADE BY AO IN PENAL TY PROCEEDINGS. 5) LD. CIT(A) ERRED IN LAW AND ON FACTS CONFIRMING PENALTY BY ERRONEOUS DISTINCTION OF JUDGEMENT/DECISION OF HONBLE JURISD ICTIONAL HIGH COURT AND ITAT ON IDENTICAL FACTS RELYING UPON KOLKATA HI GH COURT JUDGEMENT. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, SHR I TUSHAR HEMANI, LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO T HE FACT THAT, ON MATERIALLY IDENTICAL FACTS, IN THE CASE OF A GROUP ENTITY I.E. M/S. GURU PRASAD INFRASTRUCTURE PVT. LTD. VS. DCIT, ITA NOS.1658 &1659/AHD/2017, FOR ASSESSMENT Y EARS 2010-11 & 2011-12, A CO-ORDINATE BENCH OF THIS TRIBUNAL HAS DELETED SIMI LAR PENALTY. LEARNED COUNSEL THEN TOOK US THROUGH THE IMPUGNED ORDER AND MADE EFFORTS TO DEMONSTRATE THAT THE OBSERVATIONS IN THE SAID CASE ARE ALMOST THE SAME A S IN THE CASE BEFORE US. IT WAS THUS CONTENDED THAT IN THE FACTUAL BACKDROP, THE IS SUE IS NO LONGER RES INTEGRA AND WE MUST, THEREFORE, FOLLOW THE DECISION OF THE CO-ORDI NATE BENCH IN THE CASE OF GROUP ENTITY (SUPRA) AND DELETE THIS PENALTY AS WELL. 4. LD. DEPARTMENTAL REPRESENTATIVE DOES NOT DISPUTE THE FACTUAL ELEMENT EMBEDDED IN THE SUBMISSIONS OF THE ASSESSEE. HE AC CEPTS THAT BOTH THE ASSESSES I.E. THE ASSESSEE BEFORE US AND M/S. GURUPRASAD INFRASTR UCTURE PVT. LTD. ARE GROUP ENTITIES AND THE MATTER RELATES TO SOME SEARCH CONDUCTED BY THE AUTHORITIES AND ALL THE MATERIAL FACTS ARE IN PARI MATERIA . HE, NONETHELESS, RELIED UPON THE STAND OF THE AUTHORITIES BELOW. 5. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN IN THE GROUP ENTITY. RESPECTFULLY FOLLOWING THE SA ME, WE UPHOLD THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE AND DELETE THE IMPUGNED PE NALTY. IN VIEW OF THE ABOVE DECISION AND BEARING IN MIND ENTIRETY OF THE CASE, WE DELETE THE IMPUGNED PENALTY OF RS.33,99,200/-. THE APPEAL IS ACCORDINGLY ALLOWED. IT(SS)A NO.264/AHD/2017 ASSESSMENT YEAR : 2011-12 PAGE 3 OF 3 6. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED I N THE OPEN COURT TODAY ON THE 14 TH OCTOBER, 2019. SD/- SD/- JUSTICE P P BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) AHMEDABAD, DATED THE 14 TH DAY OF OCTOBER, 2019 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ...27.08.2019.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 27.08.2019....... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 27.08.2019......... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 27.08.2019 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .. 27.08.2019.... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......