Shri Saurabh V. Shah, Ahmedabad V. The ACIT, Cent. Circle - 1(3), Ahmedabad

ITSSA 319/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2878 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 07-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) IT(SS)A. NO: 319/AHD/2013 (ASSESSMENT YEAR: 2010-11) SAURABH V. SHAH 9, AKASHNEEM, OPP: NEHRU FOUNDATIONS, THALTEJ, AHMEDABAD-380054 V/S ACIT CENTRAL CIRCLE-(1) 3, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ACMPS 6061P APPELLANT BY : SHRI IRA KAPOOR, A.R. RESPONDENT BY : SHRI OM PRAKASH MEENA, SR. D .R. ( )/ ORDER DATE OF HEARING : 23 -01-201 7 DATE OF PRONOUNCEMENT : 24 -01-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- I, AHMEDABAD DATED 21.06.2013 PERTAINING TO A.Y. 20 10-11. IT(SS)A NO. 319/AHD/2013 . A.Y. 2010-11 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE L EVY OF PENALTY OF RS. 45,000/- U/S. 271AAA OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 30.12.2011 MADE U/S. 153A R.W.S. 143(3) OF THE ACT. 4. A SEARCH OPERATION WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 07.10.2009. SUBSEQUENT TO THE SEARCH OP ERATION, THE ASSESSEE FILED AN APPLICATION BEFORE THE CONCERNED AUTHORITY VOLUNTARILY DISCLOSING ADDITIONAL INCOME OF RS. 4.5 LACS. THE SAID DISCLOS URE WAS ALSO MADE IN THE RETURN OF INCOME AND TAXES WERE PAID ACCORDINGLY. 5. THE A.O. INITIATED PENALTY PROCEEDINGS U/S.271AAA O F THE ACT AND LEVIED THE SAME ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLI ED WITH THE MANDATORY CONDITIONS. 6. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE DISCLOSURE WAS MADE IMMEDIATELY AFTER THE SEARCH OPERATION AND THE AMOUNT WAS OFFERED FOR TAXATION IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION. IT IS THE SAY OF THE LD. COUNSEL THAT THE ASSESSEE HAS PAID THE RELEVANT TAXES AND INTEREST ON THE DISCLOSED AMOUNT BEFORE FILING THE RETURN OF INCOME. THE LD. COUNSEL CONCLUDED BY SAYING THAT IT IS NOT A FIT CASE FOR THE LEVY OF IT(SS)A NO. 319/AHD/2013 . A.Y. 2010-11 3 PENALTY U/S. 271AAA OF THE ACT. PER CONTRA, THE LD. D.R. STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW. IT IS TRUE THAT DURING THE COURSE OF SEARCH OPERATION, THE ASS ESSEE AND HIS FAMILY MEMBERS WERE FOUND IN POSSESSION OF GOLD ORNAMENTS OF 1777.80 GMS. IT IS ALSO TRUE THAT EXPLANATION FOR 1619.59 GMS. WAS ACC EPTED. LEAVING 158.21 GMS. OF GOLD ORNAMENTS UNEXPLAINED. THE UNDISPUTED FACT IS THAT THE ASSESSEE OFFERED THIS UNEXPLAINED JEWELLERY IN ITS RETURN OF INCOME FILED SUBSEQUENT TO THE SEARCH OPERATION AND HAS PAID TAX ES ACCORDINGLY. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY INCRIMINATING MATERIAL QUA THE ACQUISITION OF UNDISCLOSED JEWELLERY WAS FOUND FROM THE ASSESSEE. IT IS ONLY A CASE WHERE THE EXPLANATION OF THE ASSESSEE DID NO T FIND ANY FAVOUR WITH THE REVENUE AUTHORITIES. IN THESE CIRCUMSTANCES, TH E ASSESSEE OFFERED AN ADDITIONAL INCOME IN THE RETURN WHICH WAS ACCEPTED WHICH MEANS THAT THE ASSESSED INCOME WAS THE RETURNED INCOME. IN OUR CON SIDERED VIEW, IN THE LIGHT OF THE AFORE-STATED FACTS, WE DO NOT FIND THI S TO BE A FIT CASE FOR THE LEVY OF PENALTY U/S. 271AAA OF THE ACT. OUR VIEW IS FORTIFIED BY THE DECISION OF THE CO-ORDINATE BENCH IN ITA NO. 1494/AHD/2013 D ATED 08.12.2016. 9. IN THE LIGHT OF THE ABOVE, WE SET ASIDE THE FINDING S OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE IMPUGNED PENALTY. IT(SS)A NO. 319/AHD/2013 . A.Y. 2010-11 4 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 01- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 24/01/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD