Shri Nikhil C. Sompura, Ahmedabad V. The Dy.CIT, Central Circle-2(2), Ahmedabad

ITSSA 398/AHD/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3499 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Revised return
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS. 398 & 399/AHD/2014 (ASSESSMEN T YEARS: 2007-08 & 2009-10) SHRI NIKHIL C. SOMPURA 3-A, PATHIK SOCIETY, SARDAR PATEL COLONY, AHMEDABAD 380013 APPELLA NT VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), AHMEDABAD RE SPONDENT PAN: ABJPS1320H & IT(SS)A NOS. 400, 401 & 408/AHD/2014 (ASSESSMEN T YEARS: 2006-07, 2008-09 & 2009-10) SHRI ASHISH C. SOMPURA 3-A, PATHIK SOCIETY, SARDAR PATEL COLONY, AHMEDABAD 380013 APPELLA NT VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), AHMEDABAD RE SPONDENT PAN: ACBPS8892H & IT(SS)A NOS. 398/AHD/14 & 8 ORS. [NIKHIL C. SOMPUR A & 2 ORS.] - 2 - IT(SS)A NOS. 403 TO 406/AHD/2014 (ASSESSMEN T YEARS: 2006-07 TO 2009-10) SHRI CHANDRAKANT B. SOMPURA 3-A, PATHIK SOCIETY, SARDAR PATEL COLONY, AHMEDABAD 380013 APPELLA NT VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), AHMEDABAD RE SPONDENT PAN: ACBPS8922J /BY ASSESSEE : SHRI GAURAV NAHTA, A.R. /BY REVENUE : SHRI V. K. SINGH, SR. D.R. /DATE OF HEARING : 21.12.2017 /DATE OF PRONOUNCEMENT : 28.12.2017 ORDER PER BENCH THIS BATCH OF NINE APPEALS PERTAINS TO THREE DIFFER ENT ASSESSEES. THE CIT(A)- III, AHMEDABAD HAS PASSED HIS THREE COMMON ORDERS; ALL DATED 19.09.2014 (ASSESSEE-WISE) IN CASES NOS. CIT(A)-III/538 & 539/ DCIT.CC.2(2)/13-14, CIT(A)- III/527, 528 & 529/DCIT.CC.2(2)/13-14 & CIT(A)-III/ 532, 533, 534 & 535/DCIT.CC.2(2)/13-14, UPHOLDING ASSESSING OFFICER S ACTION LEVYING PENALTY(IES) OF RS.34,374/-, RS.26,780/-, RS.99,585 /-, RS.5,540/-, RS.7,340/-, RS.53,856/-, RS.13,464/-, RS.45,553/- AND RS.50,692 /-; RESPECTIVELY, INVOLVING RELEVANT PROCEEDINGS U/S. 271(1)(C) OF THE INCOME T AX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. WE NOTICE AT THE OUTSET THAT THIS ENTIRE BENCH O F NINE CASES HAS EMANATED FROM THE SEARCH IN QUESTION DATED 21.04.2010 IN TRI VEDI-SOMPURA GROUP. WE IT(SS)A NOS. 398/AHD/14 & 8 ORS. [NIKHIL C. SOMPUR A & 2 ORS.] - 3 - NOTICE THAT THE RELEVANT SEARCH STATEMENT(S) FORMIN G PART OF THE CASE FILE DULY DISCLOSED THE RELEVANT UNDISCLOSED INCOME AT THE SA ID FIRST STAGE WHICH IS FAIRLY NOT DISPUTED AT THE REVENUES BEHEST. THESE ASSESSEES THEREAFTER FILED THEIR RESPECTIVE RETURNS IN FURTHERANCE TO SECTION 153A NOTICES ISSU ED TO THEM. IT IS AN ADMITTED FACT THAT ALL THREE OF THEM OMITTED TO INCLUDE THEIR RES PECTIVE INVESTMENTS IN KVPS DESPITE THE FACT THAT THE RELEVANT SEARCH STATEMENT (S) HAD VERY WELL INCLUDED THE SAME AS PER RECORDS. ALL THIS FOLLOWED THE RELEVAN T SCRUTINY NOTICES ISSUED TO THESE ASSESSEES QUA THE ABOVE OMISSION. THE ASSESSEES T HEREAFTER FILED THEIR REVISED RETURNS (FORMING PART OF RECORDS IN ALL CASES) INCL UDING THE ABOVE KVPS. THERE IS NO DISPUTE THAT THE SAID REVISED RETURNS STOOD ACCE PTED IN RESPECTIVE ASSESSMENT ORDERS. THE ASSESSING OFFICER HOWEVER INITIATED TH E IMPUGNED PENALTY PROCEEDINGS QUA THE REVISED RETURN INCOMES MAINLY INCLUDING THE ABOVE KVPS IN ALL NINE CASES UNDER SECTION 271(1)(C) OF THE ACT ALLEGING BOTH CO NCEALMENT AS WELL AS FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. WE ADVERT TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSING OFFICER HELD IN ALL PENALTY ORDERS THAT THESE ASSESSEES WOU LD NOT HAVE INCLUDED THE IMPUGNED KVPS IN THEIR REVISED RETURNS OF INCOME BU T FOR SCRUTINY NOTICES. HE THEREFORE LEVIED THE IMPUGNED PENALTY IN ALL THESE CASES WHOSE QUANTUM ALREADY STANDS MENTIONED IN FIRST PARA HEREINABOVE. THE CI T(A) CONFIRMS ASSESSING OFFICERS ACTION. 4. LEARNED COUNSEL REPRESENTING ASSESSEE AS WELL AS REVENUE VEHEMENTLY REITERATE THEIR RESPECTIVE STANDS DURING THE COURSE OF HEARING IN SEEKING TO DELETE AND CONFIRM THE IMPUGNED PENALTIES. IT HAS COME ON RECORD THAT BOTH THE LOWER AUTHORITIES INVOKE SECTION 271(1)(C) RATHER THAN EX PLANATION 5A THEREOF WHILST IMPOSING THESE PENALTIES UNDER CHALLENGE. THE QUES TION THAT ARISES FOR OUR CONSIDERATION THEREFORE IS AS TO WHETHER THE ASSESS EES EXPLANATIONS IDENTICAL IN ALL THESE CASES ARE JUSTIFIABLE OR NOT. WE REITERATE I N THIS BACKDROP THAT THESE ASSESSEES HAD ALREADY DECLARED THE KVPS IN QUESTION DURING SE ARCH (SUPRA). THE ASSESSING OFFICER AS WELL AS CIT(A) ARE OF THE VIEW THAT THEI R OMISSION IN INCLUDING THE SAME IT(SS)A NOS. 398/AHD/14 & 8 ORS. [NIKHIL C. SOMPUR A & 2 ORS.] - 4 - IN ORIGINAL RETURNS INVITES THE IMPUGNED PENAL ACTI ON. THEY HOWEVER NOWHERE REJECT ASSESSEES EXPLANATION THAT THEY NEVER INTENDED TO EITHER CONCEAL OR FILE INACCURATE PARTICULARS OF INCOME BUT FOR THEIR AUDITORS MISTA KE IN NOT INCORPORATING THE SAME IN THEIR BOOKS ON WHOSE BASIS THEY HAD FILED THEIR ORIGINAL RETURNS. THERE IS NO DISPUTE THAT ALL THESE ASSESSEES HAVE COMMITTED AN IDENTICAL MISTAKE IN NOT INCLUDING THE ABOVE KVPS IN ORIGINAL RETURNS. THE SAME LENDS CREDENCE TO THEIR STAND THAT IT WAS NOT THEIR LEVEL BUT THEIR ACCOUNT ANTS MISTAKE RECORDING ONLY PARTIAL ENTRIES QUA THE RELEVANT REVISED KVPS INCOM E. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO PINPOINT EVEN A SINGLE QUER Y BY THE LOWER AUTHORITIES ASKING THE ASSESSEES TO SUBSTANTIATE THE ABOVE FACTUAL PL EA. WE THEREFORE ACCEPT THESE ASSESSEES ARGUMENT FOR DELETING THE ABOVE IMPUGNED PENALTIES IN ALL THESE NINE CASES. ORDERED ACCORDINGLY. 5. THESE NINE APPEALS ARE ACCORDINGLY ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF DECEMBER, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL M EMBER AHMEDABAD: DATED 28/12/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0