The ACIT, Central Circle 1, Baroda V. Shri Amit G. Patel, Baroda

ITSSA 313/AHD/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2300 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Unexplained investment
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR, AM, & SHRI MAHAVIR PRAS AD,JM. IT(SS)A NO.313/AHD/2013 ASST. YEAR: 2009-10 ACIT, CEN.CIR-1, BARODA. VS. SHRI AMIT G. PATEL, D/ 9, AMRUTA BUNGLOWS, NAVDEEP SOCIETY, B/H GOKULDHAM SOCIETY, MANJALPUR, BARODA. APPELLANT RESPONDENT PAN ACQPP 7377M IT(SS)A NO.317/AHD/2013 ASST. YEAR: 2009-10 ACIT, CEN.CIR-1, BARODA. VS. SMT. PRAGNABEN K. PATE L, I/A, KRISHNADHAM SOCIETY, NR. MANINAGAR SOCIETY, MANJALPUR, BARODA. APPELLANT RESPONDENT PAN AETPP5083K AND IT(SS)A NO.318/AHD/2013 ASST. YEAR: 2009-10 ACIT, CEN.CIR-1, BARODA. VS. SMT. MADHUBEN D. PATEL , I/A, KRISHNADHAM SOCIETY, NR. MANINAGAR SOCIETY, MANJALPUR, BARODA. APPELLANT RESPONDENT PAN ACQPP 7751B APPELLANT BY SHRI KAMLESH MAKWANA, SR.DR RESPONDENT BY SHRI S. N. SOPARKAR, AR DATE OF HEARING: 7/9/2016 DATE OF PRONOUNCEMENT: 9/9/2016 IT(SS)A NO.313, 317 & 318/AHD/2013 ASST. YEAR 2009-10 2 O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER . THESE THREE APPEALS ARE FILED BY THE REVENUE AGAIN ST CANCELLATION OF THREE SEPARATE ORDERS OF CIT(A)-IV, AHMEDABAD, OF EVEN DATE I.E. 20 TH MAY, 2013 PASSED U/S 271AAA R.W.S. 274 OF THE I.T. ACT, 1961 (IN SHORT THE ACT). SINCE THE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPEALS, THESE ARE BEING DISP OSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE PENALTY OF RS.19,32,900/-IN THE CASE OF SHRI AMIT G. PATEL, RS.10,90,000/- IN THE CASE OF SMT. PRAGNABEN K. PATEL AND RS.10,91,00 0/- IN THE CASE OF SMT. MADHUBEN D. PATEL FOR ASST. YEAR 2009-10 LE VIED U/S 271AAA OF THE IT ACT, DESPITE ASSESSEE(S) HAVING NOT SATIS FIED THE CONDITIONS MENTIONED IN CLAUSE (I) & (II) OF SECTION 271AAA(2) OF THE ACT. 3. BRIEF FACTS OF THE CASES ARE THAT A SEARCH ACTIO N U/S 132 OF THE ACT WAS CARRIED OUT ON 10.9.2009 IN THE PREMISES OF ASSESSEE. IN THE STATEMENT RECORDED ON 10.9.2009 U/S 132(4) OF THE A CT, SHRI KIRITBHAI D. PATEL, KEY PERSON OF THE FAMILY HAS ADMITTED THE FACT OF UNDISCLOSED ICOME OF RS.11,34,12,000/- ON ACCOUNT O F UNACCOUNTED INVESTMENT IN LAND IN RESPECT OF HIS FAMILY MEMBERS . RETURN OF INCOME WAS FILED ON 30.06.20010 AND 13.9.2011 DISCLOSING TOTAL INCOME OF RS.3,49,37,810/- IN THE CASE OF SHRI AMIT G. PATEL, `RS.1,20,08,600/- IN THE CASE OF SMT. PRAGNABEN K. PATEL AND RS.1,15, 54,050/- IN THE IT(SS)A NO.313, 317 & 318/AHD/2013 ASST. YEAR 2009-10 3 CASE OF SMT. MADHUBEN D. PATEL FOR ASST. YEAR 2009- 10, PERTAINING TO RELEVANT PREVIOUS YEAR. ASSESSMENTS WERE COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT ON 27.12.2011 DETERMINING TOTAL I NCOME AT RS.3,49,37,810/- IN THE CASE OF SHRI AMIT G. PATEL, RS. 1,20,08,600/- IN THE CASE OF SMT. PRAGNEBEN K. PATEL AND RS.1,15, 54,050/- IN THE CASE OF MADHUBEN D. PATEL ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND WHICH WAS ADMITTED IN THE STATEMENT RECORDED U /S 132(4) OF THE ACT DURING THE COURSE OF SEARCH, 4. IN RESPECT OF SUCH UNDISCLOSED INCOME PENALTY PR OCEEDINGS WERE INITIATED U/S 271AAA IN THE ASSESSMENT ORDER P ASSED U/S 153A R.W.S. 143(3) OF THE ACT. 5. THE ASSESSING OFFICER LEVIED PENALTY OF RS.19,32 ,900/- IN THE CASE OF AMIT G. PATEL, RS.10,90,000/- IN THE CASE O F SMT. PRAGNABEN K. PATEL AND RS.10,91,000/- IN THE CASE OF SMT. MAD HUBEN D. PATEL U/S 271AAA OF THE ACT HOLDING THAT THE ASSESSEES HA VE BEEN IN POSSESSION OF UNDISCLOSED INCOME FOR THE SPECIFIED PREVIOUS YEAR RELEVANT TO ASST. YEAR 2009-10 AND IN RESPECT OF WH ICH THE ASSESSEES HAVE FAILED TO SATISFY THE MANNER IN WHICH SUCH INC OME HAS BEEN DERIVED AND ALSO AS THE SUBSTANTIAL MANNER THE UNDI SCLOSED INCOME WAS DERIVED. THUS THE ASSESSEES HAVE FAILED IN REGA RD TO THE PROVISIONS OF SECTION 271AAA OF THE ACT AGAINST THE ACTION OF ASSESSING OFFICER FOR LEVYING OF PENALTY. 6. ALL THE THREE ASSESSEES PREFERRED STATUTARY APPE ALS BEFORE LD. CIT(A) WHEREIN HE HELD SO FAR AS THE MANNER IN WHIC H THE INCOME HAS IT(SS)A NO.313, 317 & 318/AHD/2013 ASST. YEAR 2009-10 4 BEEN EARNED AND SUBSTANTIATED IS CONCERNED, THE ASS ESSEES IN HIS VIEW SATISFIED THE MANNER OF EARNING OF UNDISCLOSED INCOME AS WELL AS SUBSTANTIATED THE SAME TO THE EXTENT OF QUESTIONS H AVE BEEN ASKED IN THIS REGARD IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. THERE WAS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEES FAI LED TO RESPOND TO ANY OF THE QUESTIONS RELATING TO THE MANNER AS WELL AS SUBSTANTIATING THE SAME EVEN DURING THE COURSE OF ASSESSMENT PROCE EDINGS AND IN THE OPINION OF LD. CIT(A) THE ASSESSEES HAVE FULFIL LED THE FIRST TWO CONDITIONS OF AVAILING OF THE IMMUNITY FROM PENALTY PROCEEDINGS U/S 271AAA OF THE ACT AND THERE WAS NO DISPUTE ABOUT TH E THIRD CONDITION AS THE ASSESSEES HAVE PAID TAXES AND INTEREST ON UN DISCLOSED INCOME AND, THEREFORE, THE ASSESSEES HAVE FULFILLED ALL THE CONDITIONS REQUIRED BY THE IMMUNITY FROM LEVYING OF PENALTY U /S 271AAA OF THE ACT. THEREFORE, HE HELD THAT ALL THE THREE ASSESSE ES ARE ELIGIBLE FOR IMMUNITY FROM PENALTY U/S 271AAA OF THE ACT FOR IMP UGNED PENALTIES LEVIED BY THE ASSESSING OFFICER AGAINST (1) AMIT G . PATEL, (2) SMT. PRAGNABEN K. PATEL & (3) SMT. MADHUBEN D. PATEL WE RE CANCELLED AND APPEALS OF THE ASSESSEES WERE ALLOWED BY LD. CI T(A). 7. NOW REVENUE IS IN APPEALS AGAINST THE ORDERS OF LD. CIT(A) FOR ALLOWING THE APPEALS OF THE ASSESSEES. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE RELEVANT RECORDS. LD. AR HAS FILED DETAILED PAP ER BOOK AND HAS ALSO FILED A COPY OF THE DECISION OF THE TRIBUNAL I N THE CASE OF DCIT VS. M/S VISHAL FASHION PVT. LTD. IN ITA NO.1141/AHD /2012 FOR ASST. YEAR 2009-10 AND OTHERS VIDE ORDER DATED 06.11.2015 WHEREIN THE IT(SS)A NO.313, 317 & 318/AHD/2013 ASST. YEAR 2009-10 5 CO-ORDINATE BENCH HAS UPHELD THE ORDER OF LD. 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) REFERS TO CASE LAW OF MA HINDRA C. SHAH (SUPRA) AND HOLDS THAT THE ASSESSEES IN SEARCH STATEMENT HAD AL READY CLAIMED THE IMPUGNED UNDISCLOSED INCOME TO HAVE BEEN EARNED FROM THEIR B USINESS ACTIVITIES. HE CONCLUDES THAT THE SAME WAS NEVER REBUTTED AT ANY S TAGE RIGHT FROM SEARCH 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 FR OM THE VERY SEARCH DATED 20.01.2009 UPHOLDS SIMILAR ORDER OF CIT(A) DELETING IDENTICAL SECTION 271AAA PENALTIES ON THE VERY ASPECT OF NON SATISFACTION OF FIRST TWO CONDITIONS UNDER SUB-SECTION 2 THEREOF. THE REVENUE NEITHER POINT OU T ANY DISTINCTION ON FACTS NOR DOES IT FILE ANY EVIDENCE DISPUTING THE LOWER A PPELLATE FINDINGS ON FACTUAL ASPECTS THAT THE ASSESSEES HAD DECLARED THEIR UNDIS CLOSED 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 T HE APPEALS OF REVENUE ARE DISMISSED. 10. IN THE RESULT, ALL THE APPEALS OF REVENUE ARE D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 SEPTEMBER, 2016 SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (MAHAVIR PRASAD) JUDICIAL MEMBER DATED 9/9/2016 IT(SS)A NO.313, 317 & 318/AHD/2013 ASST. YEAR 2009-10 6 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 8/09/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 9/09/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 12/9/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: