PUSHPASEN A. SHAH, MUMBAI V. DCIT CEN CIR-2, THANE

ITSSA 34/MUM/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7602 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-02-2012
• Assessment Year: misc
• Appeal Filed On: 03-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard
• Section: 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER IT (SS) NO.34/MUM/2010 BLOCK PERIOD 01.04.1987 TO 16.10.1997 PUSHPABEN A. SHAH, 1001, RAJ DARSHAN, SARVODAYA, PARASHWANATH NAGAR, NAHUR ROAD, MULUND (W), MUMBAI -400 080 ...... APPELLANT VS DY. COMMISSIONER OF INCOME-TAX- CENTRAL CIRCLE -II, VARDAAN, 9 TH FLOOR, M.I.D.C., WAGLE INDL. ESTATE, THANE, MUMBAI ..... RESPONDENT PAN: BKFPS 6893 B APPELLANT BY: MISS VASANTI PATEL & MR. NILESH JOSHI RESPONDENT: MR. A.C. TEJPAL DATE OF HEARING: 13.02.2012 DATE OF PRONOUNCEMENT: 28.03.2012 O R D E R PER R.S. PADVEKAR, JM : IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A, MUMBAI DATED 28.01.2010 CONFIRMI NG THE PENALTY LEVIED BY THE A.O. U/S.158BFA(2) OF THE ACT. THE E FFECTIVE GROUND TAKEN BY THE ASSESSEE IS AS UNDER: 1. THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX H AS NOT JURISDICTION TO LEVY THE PENALTY UNDER SECTION 158B FA(2) OF THE INCOME TAX ACT, 1961. THE APPELLANT HAS REFLEC TED THE SAID INCOME IN HER REGULAR BOOKS OF ACCOUNT AND FIL ED THE BLOCK RETURN IN RESPONSE TO NOTICE UNDER SECTION 15 8BD OF THE INCOME TAX ACT, 1961 AND THEREFORE THE QUESTION OF LEVY ITSS 34/M/2010 PUSHPABEN A. SHAH 2 OF PENALTY UNDER SECTION 158BFA(2) DOES NOT ARISE A T ALL, AND WHICH WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX APPEALS WITHOUT GIVING ANY REASONABLE OPPORTUNITY OF BEING HEARD AND ALSO WITHOUT CONSIDE RING THE SUBMISSIONS MADE BY THE APPELLANT. 2. BRIEFLY STATED THE FACTS ARE AS UNDER. IN THE C ASE OF PRESENT ASSESSEE, THE PROCEEDING WAS INITIATED U/S.158BD OF THE ACT IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTION U/S.13 2 AGAINST ONE MR. KANTILAL SHAH WHO IS BROTHER-IN-LAW OF THE ASSESSEE . DURING THE COURSE OF THE SEARCH TWO DIARIES WERE CEASED. FROM THE CEASED DIARIES IT WAS REVEALED THAT THE RECEIPT OF THE COMPENSATIO N AGAINST THE LEASING OF THE PREMISES BEARING HOUSING NO.584, 103 5 & 584B OF BHIWANDI AND ASSESSEE RECEIVED 1/3 RD SHARES OUT OF THE SAID COMPENSATION THE ASSESSEE FILED THE BLOCK RETURN F OR BLOCK PERIOD 01.04.1987 TO 16.10.1997 DECLARING UNDISCLOSED INCO ME OF RS.1,06,064/-. THE ASSESSEE HAD CLAIMED EXPENSES A T 33.33% FROM LEASE RENT FROM GROSS LEASE RENT. IT WAS FOUND THAT THE LESSEE SHRI ANANDI PRASAD IN HIS STATEMENT STATED THAT ALL THE EXPENSES ON ACCOUNT OF ELECTRICITY BILL, MUNICIPAL TAXES AND WA TER TAXES WERE BORNE BY HIM. THE A.O. RESTRICTED THE EXPENSES AT 15% IN PLACE OF 33.33%. . THE A.O. FINALLY COMPLETED THE ASSESSMENT BY INVOKI NG THE SEC.158BD OF THE ACT. WHEN THE MATTER REACHED BEFORE THE LD. CIT (A) HE CONFIRMED THE DISALLOWANCE AND FURTHER DIRECTED THA T IN TERMS OF PROVISIONS OF SEC.158BB(1)(C) THE INCOME OF RS.51.6 00/- DECLARED IN THE RETURN OF INCOME FOR THE A.Y. 1996-07 FILED ON 11.11.1997 AND RS.74,000/- DECLARED IN THE RETURN OF INCOME FOR TH E A.Y. 1997-908 ALSO SHOULD BE INCLUDED IN THE UNDISCLOSED INCOME. THE A.O. LEVIED THE PENALTY OF RS.1,35,342/- U/S.158BFA(2) OF THE A CT. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LD. CIT (A) BUT WITHOUT SUCCESS AS PENALTY WAS CONFIRMED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORDS. THE LD. COUNSEL SUBMITS THAT THE ENHA NCEMENT MADE TO THE INCOME DECLARED BY THE ASSESSEE WAS ONLY ON THE ESTIMATE BASIS. ITSS 34/M/2010 PUSHPABEN A. SHAH 3 HE ARGUED THAT IN THE CASE OF MR. KANTILAL N. SHAH THE HONBLE TRIBUNAL GRANTED SUBSTANTIAL RELIEF AND ACCEPT THE AMOUNT OF COMPENSATION NO ADDITION TOWARDS ANY INVESTMENT OR BANK ACCOUNT ETC. WERE MADE. SHE SUBMITS THAT THE ASSESSEE IS 7 0 YEARS OLD LADY AND THERE WAS NO CONSCIOUS ACT FOR CONCEALING THE I NCOME. MOREOVER, INCOME DETERMINED IS QUITE MEAGRE HENCE THE LENIENT VIEW MAY BE TAKEN. WE HAVE ALSO HEARD THE LD. D.R. 4. WE FIND THAT SO FAR AS ASSESSMENT OF THE ASSESSE E IS CONCERNED, THE UNDISCLOSED INCOME RELATES TO COMPENSATION FOR LEASING OUT PROCESSING HOUSE AT BHIWANDI. THE ASSESSEE HAS NO OTHER SOURCE OF INCOME. NO SERIOUS INCRIMINATING MATERIAL WAS FOUN D AGAINST THE ASSESSEE WHEREBY IT CAN BE SAID THAT THERE WAS SERI OUS LAPSE ON THE PART OF THE ASSESSEE TO EVADE THE TAX. IN OUR OPIN ION, THIS IS NOT THE FIT CASE WHERE THE A.O. SHOULD BE VERY SERIOUS TO INVOK E THE PROVISIONS OF SEC.158BFA(2). ON THE FACTS OF THIS CASE WE FIND N O JUSTIFICATION TO SUSTAIN THE PENALTY LEVIED BY THE A.O. WE, ACCORDI NGLY, DELETE THE SAME. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH MARCH, 2012. SD/- ( J. SUDHAKAR REDDY ) ACCOUTANT MEMBER SD/- ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 28TH MARCH, 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-I, THANE. 4) THE CIT CENTRAL, PUNE. 5) THE D.R. C BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN