The ACIT, Central Circle 1, Baroda V. Smt. Lomharshini A. Patel, Baroda

ITSSA 312/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2879 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR VARMA
• Assessee Lawyers: S N SOPARKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ IT(SS)A.NO.312/AHD/2013 / ASSTT. YEAR: 2009-2010 ACIT, CENT.CIR.1 BARODA. VS SMT.LOMHARSHINI A. PATEL D/9, AMRUTA BUNGALOWS NAVDEEP SOCIEYT B/H. GOKULDHAM SOCIETY MANJALPUR, BARODA. PAN : AGCPK 1023 H ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI SUMIT KUMAR VARMA, DR ASSESSEE BY : SHRI S.N. SOPARKAR, AR / DATE OF HEARING : 09/12/2016 / DATE OF PRONOUNCEMENT: 27/01/2017 $%/ O R D E R THIS IS REVENUES APPEAL. THE SOLE GROUND RAISED IN THE APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENAL TY IN A COMBINED ORDER OF RS.10,91,000/- FOR A.Y.2009-10 LEVIED U/S. 271AAA OF THE I.T.ACT, DESPITE ASSESSEE HAVING NOT SATISFIED THE CONDITIONS MENTIONED IN CLAUSE (I) & (III) OF SECT6ION 271AAA(2) OF THE ACT. 2. IN THIS CASE A SEARCH WAS CONDUCTED IN THE CASE OF ALL FAMILY MEMBERS OF SHRI KIRITBHAI D. PATEL. ASSESSEE IS ONE OF THE CONSTITUENTS. THE LD.AO IMPOSED IMPUGNED PENALTY. THE LD.CIT(A) DELETED TH E SAME BY FOLLOWING OBSERVATIONS: IT(SS)A NO.312/AHD/2013 2 6.6 IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED O PINION THAT SO FAR AS THE MANNER OF EARNING THE INCOME AND SUBSTANTIATING THE SAME IS CONCERNED, THE APPELLANT HAS, IN MY VIEW, SPECIFIED THE MANNER OF EARNING THE UNDISCLOSED INCOME AS WELL AS SUBSTANTI ATED THE SAME TO THE EXTENT OF QUESTIONS HAVING BEEN ASKED IN THIS REGAR D IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE APPELLANT HAS FAILED TO RESPOND TO ANY OF THE QUESTIONS RELATING TO THE MANNER AS WELL AS SUBSTANTIATING THE SAME EV EN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN VIEW OF THIS, THE APPELLANT HAS FULFILLED THE FIRST TWO CONDITIONS FOR AVAILING OF IMMUNITY FROM PENALTY PROCEEDINGS U/S 271AAA OF THE ACT. THERE IS NO DISP UTE ABOUT THE THIRD CONDITION AS THE APPELLANT HAS PAID TAX WITH INTERE ST UNDISCLOSED INCOME. THUS, THE APPELLANT HAS FULFILLED ALL THE C ONDITIONS REQUIRED FOR IMMUNITY FROM LEVY OF PENALTY U/S 271AAA OF THE ACT . IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINIO N THAT THE APPELLANT IS ELIGIBLE FOR IMMUNITY FROM PENALTY U/S 271AAA O F THE ACT AND, THEREFORE, PENALTY LEVIED BY THE AO OF RS.10,91,000 /- AND RS.88,200/- FOR A.YS. 2009-10 AND 2010-11 RESPECTIVELY IS HERE BY CANCELLED. 3. AGGRIEVED REVENUE IS IN APPEAL. 4. THE LD.DR RELIED UPON THE ORDER OF THE AO. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT SIMILAR REVENUES APPEAL AG AINST DELETION OF PENALTY UNDER SECTION 271AAA OF THE ACT IN THE CASE OTHER FAMILY MEMBERS CAME UP FOR HEARING. THE ITAT VIDE CONSOLIDATED ORDER DATE D 9.9.2016 IN IT(SS)A.NO.313/AHD/2013 IN THE CASE OF ACIT VS. SHR I AMIT G. PATEL, IT(SS)A.NO.317/AHD/2013 IN THE CASE OF ACIT VS. SMT . PRAGNABEN K. PATEL AND IT(SS)A.NO.318/AHD/2013 IN THE CASE OF ACIT VS. SMT. MADHUBEN D. PATEL UPHELD THE ORDER OF THE CIT(A) DELETING THE P ENALTY BY FOLLOWING OBSERVATIONS: NOW REVENUE IS IN APPEALS AGAINST THE ORDERS OF LD. CIT(A) FOR ALLOWING THE APPEALS OF THE ASSESSEES. IT(SS)A NO.312/AHD/2013 3 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE RELEVANT RECORDS. LD. AR HAS FILED DETAILED PAPER B OOK AND HAS ALSO FILED A COPY OF THE DECISION OF THE TRIBUNAL IN THE CASE OF DCIT VS. M/S VISHAL FASHION PVT. LTD. IN ITA NO.1141/AHD/2012 FO R ASST. YEAR 2009- 10 AND OTHERS VIDE ORDER DATED 06.11.2015 WHEREIN T HE ASST. YEAR 2009-10 CO-ORDINATE BENCH HAS UPHELD THE ORDER OF L D. CIT(A) BY GIVING OBSERVATIONS AS UNDER :- 'THE REVENUES' CASE IS THAT NONE OF THESE THREE ASS ESSEES SATISFY FIRST TWO CONDITIONS ENVISAGED U/S.271AAA(2) OF THE ACT I .E. ADMISSION OF UNDISCLOSED INCOME AS WELL AS SPECIFYING THE MANNER OF DERIVING THE SAME FOLLOWED BY ITS SUBSTANTIATION. THE CIT(A) REF ERS TO CASE LAW OF MAHINDRA C. SHAH (SUPRA) AND HOLDS THAT THE ASSESSE ES IN SEARCH STATEMENT HAD ALREADY CLAIMED THE IMPUGNED UNDISCLO SED INCOME TO HAVE BEEN EARNED FROM THEIR BUSINESS ACTIVITIES. HE CONCLUDES THAT THE SAME WAS NEVER REBUTTED AT ANY STAGE RIGHT FROM SEA RCH TILL ASSESSMENT. WE FIND THAT A COORDINATE BENCH IN ITA NO.LL45/AHD/ 2012 DCIT VS. BHARAT L. SHAH DECIDED ON 13.08.2015 ARISING FROM T HE VERY SEARCH DATED 20.01.2009 UPHOLDS SIMILAR ORDER OF CIT(A) DE LETING IDENTICAL SECTION 271AAAPENALTIES ON THE VERY ASPEC T OF NON SATISFACTION OF FIRST TWO CONDITIONS UNDER SUB-SECT ION 2THEREOF. THE REVENUE NEITHER POINT OUT ANY DISTINCTION ON FACTS NOR DOES IT FILE ANY EVIDENCE DISPUTING THE LOWER APPELLATE FINDINGS ON FACTUAL ASPECTS THAT THE ASSESSEES HAD DECLARED THEIR UNDISCLOSED INCOME .' 9. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-OR DINATE BENCH WE OBSERVE THAT IN THE PRESENT CASES THERE IS NO INFIR MITY/ILLEGALITY IN THE ORDER OF LD. CIT(A), WHEREIN PENALTIES HAVE BEEN CA NCELLED. WE UPHOLD THE SAME. THE COMMON GROUNDS RAISED IN ALL THE APPE ALS OF REVENUE ARE DISMISSED. 5. IT IS CONTENDED THAT FACTS AND CIRCUMSTANCES AND THE ISSUES BEING SIMILAR, HAVING THE ITATS ORDER IN THE CASE OF OTH ER FAMILY MEMBERS, IMPUGNED PENALTY DESERVES TO BE DELETED. 6. I HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RECORD. RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT DATED 9.9.2016 (SUPRA) IN THE IT(SS)A NO.312/AHD/2013 4 CASE OF OTHER FAMILY MEMBERS, THE ORDER OF THE LD.C IT(A) DELETING THE PENALTY IS UPHELD, AND REVENUES APPEAL IS DISMISSED. 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON 27 TH JANUARY, 2017 AT AHMEDABAD. SD/- (R.P. TOLANI) JUDICIAL MEMBER