Shri Piyush (Pinal) B. Patel, Ahmedabad V. The ACIT, Circle-13, Ahmedabad

ITSSA 36/AHD/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7170 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 18-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Assessee Lawyers: M J SHAH
• Keywords: Search and seizure; Document seized; Peak credit; Documents seized
• Section: 271(1)(c)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER () . / I.T.(SS)A. NO. 36/AHD/2015 ( ASSESSMENT YEAR : BLOCK PERIOD 01/04/1995 TO 13/12/2001) SHRI PIYUSH (PINAL) B PATEL 8, PARASMANI SOCIETY, RANNAPARK, GHATLODIA, AHMEDABAD - 380061 / VS. ACIT , CIRCLE-13 3 RD FLOOR, NATURE VIEW, ASHRAM ROAD, AHMEDABAD - 380009 ./ ./ PAN/GIR NO. : ABFPP3062K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. J. SHAH, A.R. / RESPONDENT BY : SHRI RAJESH MEENA, SR.D.R. !' DATE OF HEARING 29/07/2019 #$%& !' / DATE OF PRONOUNCEMENT 29/07/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-XXI, AHMEDABAD (CIT(A) IN SHORT), DATED 22.12.2014 ARISING IN THE PENALTY ORDER DATED 17.06.2013 IMPOS ING PENALTY OF IT(SS)A NO. 36/AHD/15 [SHRI PIYUSH (PINAL) B PATEL VS. ACIT] - 2 - RS.2,56,302/- PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 158BFA(2) R.W.S. 271(1)(C) OF THE INCOME TAX ACT, 1 961 (THE ACT). 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE RELIED UPON THE SUBMISSIONS OF THE ASSESSE E MADE BEFORE THE LOWER AUTHORITIES. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE AO AND THE CIT(A). 3. A PERUSAL OF THE ORDER OF THE CIT(A) SHOWS THAT A SEARCH WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESS EE UNDER S.132 OF THE ACT ON 13.12.2001 AND ASSESSMENT UNDER S.158BC OF THE ACT WAS COMPLETED IN THE HANDS OF THE ASSESSEE DETERMINING UNDISCLOSED INCOME OF RS.12,31,789/-. THE UNDISCLOSED INCOME W AS COMPUTED BASED ON THE DEPOSITS TO THE TUNE OF RS.12,31,789/- AS RECORDED IN THE SEIZED DOCUMENTS FOUND FROM THE RESIDENTIAL PREMISE S OF THE ASSESSEE. THE ITAT IN QUANTUM ASSESSMENT HELD THAT THE PEAK O F DEPOSITS FOR COMPUTATION OF UNDISCLOSED INCOME SHOULD BE CONSIDE RED. THE AO ACCORDINGLY REDUCED THE UNDISCLOSED INCOME TO RS.4, 27,170/- WHICH ADDITION WAS CONFIRMED IN THE QUANTUM BEFORE THE CI T(A). THE PENALTY OF RS.2,56,302/- THEREON IS IN DISPUTE. 4. THE CIT(A) HAS OBSERVED THAT THE ADDITION IN THI S CASE HAS BEEN MADE ON THE BASIS OF SEIZED MATERIAL FOUND DURING T HE COURSE OF SEARCH AND SEIZURE OPERATION AT THE RESIDENTIAL PREMISES O F THE ASSESSEE. THE FACT ABOUT UNDISCLOSED INCOME IS NOT IN DISPUTE. T HE QUANTIFICATION OF UNDISCLOSED INCOME HOWEVER WAS RE-DETERMINED ADOPTI NG MOST LIBERAL WAY BY APPLYING PEAK THEORY. THEREFORE, THE EXISTE NCE OF UNDISCLOSED INCOME IS BEYOND DOUBT. 5. IT MAY BE PERTINENT TO OBSERVE THAT UNDISCLOSED INCOME UNDER S.158BC IS TO BE DETERMINED ON THE BASIS OF SEIZED MATERIAL FOUND IT(SS)A NO. 36/AHD/15 [SHRI PIYUSH (PINAL) B PATEL VS. ACIT] - 3 - DURING THE COURSE OF SEARCH. THIS SEIZED MATERIAL IS COMMON BETWEEN THE ASSESSEE AS WELL AS THE AO. THE PENALTY UNDER S.158BFA(2) OF THE ACT IS TO BE IMPOSED ON THE DIFFERENCE BETWEEN THE UNDISCLOSED INCOME DISCLOSED BY THE ASSESSEE IN BLOCK RETURN VIS--VIS THE ONE ULTIMATELY DETERMINED BY THE AO. A CHARGE AGAINST THE ASSESSE E WAS THAT HE FAILED TO COMPUTE TRUE UNDISCLOSED INCOME FROM THE SEIZED MATERIAL. THE ASSESSEE HAS NOT OFFERED ANY EXPLANATION FOR SU CH FAILURE AND THEREFORE HE HAS BEEN VISITED WITH PENALTY BY THE L EARNED AO. EVEN BEFORE US, NO SUCH EXPLANATION HAS BEEN GIVEN. THER EFORE, WE DO NOT HESITATE IN CONCURRING WITH THE CONCLUSIONS OF LEAR NED REVENUE AUTHORITIES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/07/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 29/07/201 9