The ITO, Ward-2(4), Ahmedabad V. Shri Paras C.Pandit, Ahmedabad

ITSSA 318/AHD/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8281 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: T J SHAH
• Section: 132

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + )* + )* + )* + ) ' ) ' ) ' ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.318 AND 319/AHD/2012 [ASSTT.YEAR : 2008-2009 AND 2009-2010] ITO, WARD-2(4) AHMEDABAD. /VS. SHRI PARAS C. PANDIT 3, VARSHA SOCIETY, OPP: OM TOWER SHAHIBAUG, AHMEDABAD PIN : 380 004. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 )/ REVENUE BY : SHRI RAHUL KUMAR 4& 1 2 )/ ASSESSEE BY : SHRI T.J. SHAH 5 1 &(*/ DATE OF HEARING : 30 TH AUGUST, 2012 678 1 &(*/ DATE OF PRONOUNCEMENT : 07-09-2012 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE TWO APPEALS FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2008-2 009 AND 2009- 2010 ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) D ATED 30.4.2012. THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE IDENTICAL GROUND OF THE APPEALS OF THE REVEN UE IN BOTH THESE APPEAL IS AS UNDER: IT(SS)A NO.318 AND 319/AHD/2012 -2- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY LEVIED U/S.271AAA OF THE IT ACT, 1961 D ESPITE THE FACT THAT THE CASE OF THE ASSESSEE DOES NOT FALL WI THIN THE EXCLUSION CLAUSES OF SECTION 271AAA(2) OF THE ACT. 3. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . HE SUBMITTED THAT THE FACTS OF THE CASE OF THE ASSESSE E FOR BOTH THE ASSESSMENT YEARS IN APPEALS ARE IDENTICAL AND THE A SSESSEE WAS LIABLE TO PENALTY UNDER SECTION 271AAA OF THE ACT 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. HE SUBMITTED THAT T HE BASIC INGREDIENT FOR IMPOSITION OF PENALTY UNDER SECTION 271AAA OF T HE ACT IS THAT THERE SHOULD BE SOME UNDISCLOSED INCOME OF THE AS SESSEE. HE SUBMITTED THAT IN THIS CASE THE RETURNED INCOME OF THE ASSESSEE WAS ACCEPTED AND THE ASSESSEE HAS FILED THE RETURN OF I NCOME AS PER THE FIGURE OF NET PROFIT OF THE PROFIT & LOSS ACCOUNT A S APPEARING IN THE AUDITED ACCOUNTS OF THE ASSESSEE, AND THEREFORE THE PROVISIONS OF SECTION 271AAA OF THE ACT WAS INAPPLICABLE IN THE C ASE OF THE ASSESSEE. HE RELIED ON THE ORDER OF THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR BOTH THE RELEVANT ASSESSME NT YEARS 2008-2009 AND 2009-2010 AS PER THE NET PROFIT APPEARING IN TH E PROFIT & LOSS ACCOUNT OF ITS ACCOUNT BOOKS, DULY AUDITED BY THE C HARTERED ACCOUNTANT. THE AO WHILE FRAMING THE ASSESSMENT HA S ACCEPTED THE TOTAL INCOME OF THE ASSESSEE AS PER THE RETURN OF I NCOME FILED BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS, AND NO FURT HER ADDITION WAS MADE IN THE ASSESSMENTS OF THE ASSESSEE. IN THESE FACTS OF THE CASE, IT IT(SS)A NO.318 AND 319/AHD/2012 -3- COULD NOT BE SAID THAT THERE WAS SOME UNDISCLOSED INCOME ASSESSED IN THE HANDS OF THE ASSESSEE. WE HAVE PERUSED THE PROVISIONS OF SECTION 271AAA OF THE ACT WHICH PROVIDES FOR PENALT Y AT THE RATE OF 10% OF THE UNDISCLOSED INCOME OF THE SPECIFIED PR EVIOUS YEAR. IN CASE THERE IS NO UNDISCLOSED INCOME ASSESSED IN T HE HANDS OF THE ASSESSEE, THE PROVISION OF SECTION 271AAA BECOMES I NAPPLICABLE. ANY OTHER INTERPRETATION WOULD MEAN THAT WHEREVER T HERE IS A SEARCH OPERATION CARRIED OUT UNDER SECTION 132 OF THE ACT, THE PENALTY UNDER SECTION 271AAA SHALL BE ATTRACTED EVEN WITHOUT ADDI TION OF A SINGLE RUPEE AS UNDISCLOSED INCOME IN THE CASE OF THE AS SESSEE. THIS INTERPRETATION IS NOT CONCEIVABLE AND NOT IN ACCORD ANCE WITH THE SCHEME OF THE ACT AND IN PARTICULAR THIS SPECIFIC P ROVISION OF SECTION 271AAA OF THE ACT. THE CIT(A) HAS RECORDED THAT EN TIRE DISCLOSURE WAS RELATED TO THE COMPANY AND NOT A SINGLE ISSUE W AS FOUND DURING THE SEARCH RELATED TO PERSONAL ASSESSMENTS OF THE A SSESSEE. IN THESE FACTS OF THE CASE, WE HOLD THAT IN THE ABSENCE OF A NY UNDISCLOSED INCOME OF THE ASSESSEE, AS PER THE SCRUTINY ASSESS MENTS FRAMED BY THE AO, THE PROVISION OF SECTION 271AAA BEING INAPPLICA BLE TO THE CASE OF THE ASSESSEE, THE PENALTY IMPOSED FOR BOTH THE Y EARS WAS NOT IN ACCORDANCE WITH THE LAW AND RIGHTLY DELETED BY THE CIT(A). ACCORDINGLY, THE GROUND OF THE APPEAL OF THE REVENU E FOR BOTH THE ASSESSMENT YEARS IS DISMISSED. 6. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT