Dr C.Mohanan, Palakkad V. DCIT, Palakkad

ITSSA 4/COCH/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7690 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2012
• Assessment Year: misc
• Appeal Filed On: 21-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S PRAVEEN
• Assessee Lawyers: C R HARISH
• Keywords: Block assessment; Revised return
• Section: 139(5)

Judgement Text

1 ITSS NO.04/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI SANJAY ARO RA (AM) I.T(S&S)A. NO. 04/COCH/2010 (BLOCK PERIOD 01-04-1996 TO 26-02-2003) DR. C MOHANAN VS THE DY.C.I.T., CIR.1 15/551,EEMMEL COLONY PALAKKAD KUNNATHURMEDU, PALAKKAD PAN : AEHMPM8415N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.R. HARISH RESPONDENT BY : SHRI S PRAVEEN DATE OF HEARING : 17-01-2012 DATE OF PRONOUNCEMENT : 02-02-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-V, KOCHI DATED 19-03-2010 CONFIRMING THE PENALTY LEVIED U/S 158BFA(2) OF THE ACT. 2. SHRI C.R. HARISH, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SEARCH IN THE CASE OF ASSESSEES WIFE, DR HEMLATH A WARRIER ON 26-02-2003. AFTER THE SEARCH NO PROCEEDINGS U/S 158BD WERE INITIATED AGAI NST THE ASSESSEE. THEREFORE, THE ASSESSEE VOLUNTARILY FILED THE RETURN DISCLOSING SO ME INCOME. THE ASSESSING OFFICER THEREAFTER ISSUED NOTICE U/ 158BD ON 23-03-2005. T HE ASSESSEE FILED RETURN SHOWING NIL INCOME SINCE THE REGULAR RETURNS WERE ALREADY FILED DISCLOSING ALL THE INCOMES. HOWEVER, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 158BD ON 23-03-2007 COMPUTING 2 ITSS NO.04/COCH/2010 THE UNDISCLOSED INCOME AT RS. 15,78,020. THE ASSES SING OFFICER HAS ALSO LEVIED PENALTY U/S 158BFA(2). ACCORDING TO THE LD.REPRESENTATIVE, SINCE THE ASSESSEE HAS FILED THE RETURN VOLUNTARILY, AFTER THE SEARCH THERE IS NO QU ESTION OF ANY CONCEALMENT, THEREFORE, LEVY OF PENALTY IS NOT JUSTIFIED. 3. ON THE CONTRARY, SHRI S PRAVIN, THE LD.DR SUBMIT TED THAT THE ORIGINAL RETURN FILED BEFORE THE DATE OF SEARCH DOES NOT SHOW ANY INCOME WHICH WAS FOUND DURING THE COURSE OF SEARCH OPERATION. IN THE COURSE OF SEARCH OPERA TION, THE REVENUE AUTHORITIES FOUND CERTAIN MATERIAL AGAINST THE ASSESSEE. THEREFORE, AFTER THE SEARCH THE ASSESSEE IN THE NAME OF REVISED RETURN DISCLOSED CERTAIN INCOME. A CCORDING TO THE LD.REPRESENTATIVE, THE REVISED RETURN CAN BE FILED U/S 139(5) BEFORE C OMPLETION OF THE ASSESSMENT. IN THIS CASE, ACCORDING TO THE LD.REPRESENTATIVE, THE RETUR N WAS FILED AFTER COMPLETION OF THE REGULAR ASSESSMENT. IT IS ALSO AFTER THE SEARCH. THEREFORE, THE RETURN FILED AFTER THE SEARCH OPERATION CANNOT BE CONSIDERED TO BE A DISCL OSURE OF INCOME VOLUNTARILY. BUT FOR THE SEARCH, THE ASSESSEE WOULD NOT HAVE FILED THE R ETURN AT ALL IN THE NAME OF REVISED RETURN. THEREFORE, THE ASSESSING OFFICER COMPLETED THE BLOCK ASSESSMENT DETERMINING THE UNDISCLOSED INCOME. SINCE THE UNDISCLOSED INCO ME DETERMINED BY THE ASSESSING OFFICER FOR THE BLOCK PERIOD EXCEEDED THE UNDISCLOS ED INCOME RETURNED BY THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/ S 158BD R.W.S. 158BC THE ASSESSING OFFICER HAS RIGHTLY LEVIED PENALTY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE HAS FILED THE ORI GINAL RETURN OF INCOME AND THE ASSESSMENT WAS ALSO COMPLETED IN THE REGULAR COURSE . SUBSEQUENTLY, THERE WAS A SEARCH OPERATION IN THE CASE OF ASSESSEES WIFE DR. HEMLAT HA WARRIER ON 26-02-2003. AFTER THE SEARCH OPERATION THE ASSESSEE HAS FILED THE REVISED RETURN DISCLOSING CERTAIN INCOME. SUBSEQUENTLY NOTICE U/S 158BD WAS ISSUED AND THE AS SESSEE FILED THE BLOCK RETURN DISCLOSING NIL INCOME. THE CONTENTION OF THE ASSES SEE IS THAT SINCE THE REVISED RETURN WAS FILED VOLUNTARILY BEFORE THE ISSUE OF NOTICE U/ S 158BD THERE CANNOT BE ANY LEVY OF 3 ITSS NO.04/COCH/2010 PENALTY. THIS TRIBUNAL IS UNABLE TO ACCEPT THE CON TENTION OF THE ASSESSEE. THE FACT REMAINS IS THAT BUT FOR THE SEARCH, THE ASSESSEE WO ULD NOT HAVE FILED THE SO-CALLED REVISED RETURN. EVEN OTHERWISE, THE FILING OF THE S O-CALLED REVISED RETURN AFTER THE DATE OF SEARCH WOULD HAVE NO SIGNIFICANCE AT ALL. THE ASSE SSING OFFICER ON THE BASIS OF THE MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIO N HAS TO COMPUTE THE UNDISCLOSED INCOME. THE MATTER WOULD BE DIFFERENT HAD THE ASSE SSEE FILED THE RETURN OR DISCLOSED THE INCOME BEFORE THE DATE OF SEARCH. IT IS NOT TH E CASE OF THE ASSESSEE THAT THE INCOME WAS DISCLOSED BEFORE THE DATE OF SEARCH. THIS TRIB UNAL IS OF THE OPINION THAT FILING OF REVISED RETURN AFTER THE INCOME WAS UNEARTHED IN TH E COURSE OF SEARCH OPERATION CANNOT BE CONSIDERED TO BE A VOLUNTARY DISCLOSURE. SINCE THE INCOME DETERMINED U/S 158BD AS UNDISCLOSED INCOME HAS EXCEEDED THE INCOME RETURNED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S 158BD R.W.S. 158BC, THIS TRIB UNAL IS OF THE OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDER OF THE LOWER AUTHO RITY IS CONFIRMED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 02 ND DAY OF FEBRUARY, 2012. SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 02 ND FEBRUARY, 2012 PK/- COPY TO: 1. DR. C. MOHANAN, 15/551, EMMEL COLONY, KUNNATHURMEDU , PALAKKAD 2. DY.CIT, CIR.1, PALAKKAD 3. THE COMMISSIONER OF INCOME-TAX(A)-V, COCHIN 4. THE COMMISSIONER OF INCOME-TAX, TRICHUR 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH