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

ITSSA 402/AHD/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3517 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 16-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV NAHTA AR SHRI ROOPCHAND

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER SL. NOS. IT(SS)A NO(S) ASSESSMENT YEAR (S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 3381/AHD/2014 2011-12 SHRI ASHISH C.SOMPURA 3-A, PATHIK SOCIETY SARDAR PATEL COLONY, AHMEDABAD PAN: ACBPS 8892 H THE DCIT CENTRAL CIRCLE-2(2) AHMEDABAD 2. 402/AHD/2014 2010-11 -DO ASSESSEE- -REVENUE- 3. 3413/AHD/2014 2011-12 SHRI CHANDRAKANT B.SOMPURA -ADDRESS AS ABOVE- PAN: ACBPS 8922 J -REVENUE- 4. 3380/AHD/2014 2011-12 SHRI NIKHIL C.SOMPURA -ADDRESS AS ABOVE- PAN: ABJPS 1320 H -REVENUE- ASSESSEE (S)BY : SHRI GAURAV NAHTA, AR REVENUE BY : SHRI ROOPCHAND SR.DR #$ / DATE OF HEARING 07/12/2017 %&'#$ / DATE OF PRONOUNCEMENT 08 / 12 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INS TANCE OF THE ASSESSEES NAMED ABOVE AGAINST RESPECTIVE ORDERS OF THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-III, AHMEDABAD [CIT(A) IN SHORT] DATED 19/09/2014 IN THE MATTER OF RESPECTIVE PENALTY ORDERS IT(SS)A NOS.338 1,402,3413 & 3380/AHD/2014 SHRI ASHISH C.SOMPURA & ORS VS. DCIT ASST.YEARS 2010-11 & 2011 12 - 2 - WHEREBY PENALTY UNDER S.271AAA OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') IMPOSED ON THE ASSESSEE(S) WAS CONFIRMED BY THE CIT(A) RELEVANT TO ASSESSMENT YEAR S (AYS) 2010-11 & 2011-12. 2. THE GROUND OF APPEALS RAISED IN ALL THE FOUR AP PEALS IS SIMILAR AND THEREFORE GROUND OF APPEAL RAISED IN IT(SS)A NO.341 3/AHD/2014 IS REPRODUCED HEREUNDER FOR READY REFERENCE:- THE LD.CIT APPEALS III AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN PASSING APPELLATE ORDER DATED 19/09/2014 FOR THE A.Y. 2011-12 IN THE CASE OF APPELLANT BY CONFIRMING THE PENALTY U/S.271AAA AMOUNTING TO RS.3,40,200/-. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LD.A R FOR THE ASSESSEE MR. GAURAV NAHTA SUBMITTED AT THE OUTSET T HAT THE PRESENT CASE CONCERNS PENALTY IMPOSED UNDER S.271AAA OF VARIED A MOUNT IN THE CASE OF INTERCONNECTED ASSESSEES ARISING OUT OF THE COMM ON SEARCH UNDER S.132 OF THE ACT. THE LD.AR FURTHER POINTED OUT THAT A C OMBINED STATEMENT OF THE ASSESSEES HEREIN WAS RECORDED UNDER S.132(4) OF THE ACT ON 14/06/2010 WHEREIN CERTAIN INCOME PERTAINING TO DIF FERENT ASSESSEES NAMED ABOVE WERE DISCLOSED. IN PURSUANCE OF THE DI SCLOSURE SO MADE, TAX WAS DULY PAID IN ACCORDANCE WITH LAW AND THE INCOME WAS OFFERED AND INCLUDED IN THE RETURN OF INCOME FILED AS A CONSEQU ENCE OF SEARCH. THE LD.AR THEREAFTER SUBMITTED THAT THE ASSESSEE HAS TR UTHFULLY AND WITH BONAFIDE INTENTIONS DECLARED THE UNDISCLOSED INCOME AND ALSO PROVIDED IT(SS)A NOS.338 1,402,3413 & 3380/AHD/2014 SHRI ASHISH C.SOMPURA & ORS VS. DCIT ASST.YEARS 2010-11 & 2011 12 - 3 - ANSWER TO ALL THE QUERIES RAISED IN THE STATEMENT R ECORDED IN THE COURSE OF SEARCH. THE LD.AR THEREAFTER SUBMITTED THAT NO SPE CIFIC QUERY WAS RAISED BY THE AUTHORIZED OFFICER TOWARDS MANNER FOR DERI VING UNDISCLOSED INCOME AND SUBSTANTIATION THEREOF. THEREFORE, NO FAULT CAN BE ATTRIBUTED TO THE ASSESSEE ALLEGED FOR ALLEGED NON-COMPLIANCE OF THE CONDITIONS PRESCRIBED UNDER S.271AAA(2) OF THE ACT. THE LD.AR ACCORDINGLY SUBMITTED THAT IN THE CIRCUMSTANCES, THE ASSESSEE I S FULLY ENTITLED TO EXIT ROUTE PROVIDED UNDER SECTION 271AAA(2) OF THE ACT F OR NON-IMPOSITION OF PENALTY. THE LD.AR FINALLY SUBMITTED THAT THE ISSUE IS SQUARELY COVERED AND IN FAVOUR OF ASSESSEE IN VIEW OF THE DE CISION OF THE COORDINATE BENCH OF TRIBUNAL IN THE CASE OF SHRI CH ANDRAKANT B. SOMPURA FOR AY 2010-11 IN IT(SS)A NO.407/AHD/2014, ORDER DATED 30/10/2017. THE LD.AR SUBMITTED THAT THE RELIEF WAS GRANTED BY THE COORDINATE BENCH BASED ON THE SAME STATEMENT RECORD ED UNDER S.132(4) IN QUESTION. HE ACCORDINGLY URGED FOR DELETION OF PENALTY IMPOSED UNDER S.271AAA IN ALL THE IMPUGNED APPEALS. 4. THE LD.DR RELIED UPON THE ORDER OF THE ASSESSING OFFICER (AO) AND SUBMITTED THAT THE CONDITIONS PROVIDED FOR NON- IMPOSITION OF PENALTY UNDER S.271AAA HAS NOT BEEN SPECIFIED BY THE ASSESS EE AND THEREFORE NO INTERFERENCE WITH THE ORDERS OF THE REVENUE ARE CAL LED FOR. IT(SS)A NOS.338 1,402,3413 & 3380/AHD/2014 SHRI ASHISH C.SOMPURA & ORS VS. DCIT ASST.YEARS 2010-11 & 2011 12 - 4 - 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE MAINTAINABILITY OF IMPOSITION OF PENALTY UNDER S.27 1AAA OF THE ACT IS IN CONTROVERSY. SECTION 271AAA(2) PROVIDES FOR ESCAP E ROUTE FROM LEVY OF PENALTY WHERE THE ASSESSEE ADMITS THE UNDISCLOSED I NCOME IN A STATEMENT UNDER S.132(4) AND SPECIFIES THE MANNER IN WHICH UN DISCLOSED INCOME HAS BEEN DERIVED AND THEREAFTER SUBSTANTIATES THE MANNE R. COUPLED WITH THIS, THE ASSESSEE IS OBLIGED TO PAY TAX WITH INTEREST IN RESPECT OF UNDISCLOSED INCOME. THERE IS NO DISPUTE ON THE DISCHARGE OF TH E TAX LIABILITY ON UNDISCLOSED INCOME. THE AO HAS EVOKED DISPUTE ON N ON-COMPLIANCE OF ESCAPE ROUTE WITH REFERENCE TO ABSENCE OF MANNER OF DERIVING UNDISCLOSED INCOME AND SUBSTANTIATION THEREOF. WE NOTE THAT A S TATEMENT UNDER S.132(4) OF THE ACT WAS RECORDED FROM SHRI NIKHIL C .SOMPURA IN THE PRESENCE OF SHRI ASHISH C.SOMPURA AND SHRI CHANDRAK ANT B.SOMPURA ON 14/06/2010. WE STRAIGHTAWAY FIND THAT THE ASSESSEE HAS MADE DISCLOSURE CERTAIN UNACCOUNTED MONEY. HOWEVER, NO QUESTION WA S POSED BEFORE THE DEPONENT OF THE STATEMENT OR OTHER PRESENTEES TOWAR DS MANNER OF DERIVING THE UNDISCLOSED INCOME. THUS, WE FIND MERIT IN THE PLEA OF THE ASSESSEE THAT BENEFIT OF EXCEPTION PROVIDED UNDER S.271AAA(2 ) OF THE ACT CANNOT BE DENIED TO THE ASSESSEE FOR THE FAULT COMMITTED B Y THE REVENUE. THE COORDINATE BENCH IN CHANDRAKANT B.SOMPURA (SUPRA) HAS ALREADY TAKEN A FAVOURABLE VIEW IN THE CASE OF THE ASSESSEE IN AY 2010-11 EMANATING FROM THE SAME STATEMENT. THUS, IN PARITY, WE DIREC T THE AO TO DELETE THE IT(SS)A NOS.338 1,402,3413 & 3380/AHD/2014 SHRI ASHISH C.SOMPURA & ORS VS. DCIT ASST.YEARS 2010-11 & 2011 12 - 5 - PENALTY IMPOSED UNDER S.271AAA OF THE ACT IN ALL TH E FOUR APPEALS OF THE ASSESSEES HEREIN. 6. IN THE RESULT, ALL THE CAPTIONED APPEALS OF THE ASSESSEES ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 08 / 1 2 /201 7 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 08/ 12 /2017 -..,.../ T.C. NAIR, SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. ./0 / THE APPELLANT 2. 1/0 / THE RESPONDENT. 3. 234$ 5$ / CONCERNED CIT 4. 5$ ( . ) / THE CIT(A)-III, AHMEDABAD 5. 67$34 , ..34' , .2 / DR, ITAT, AHMEDABAD 6. 9 / GUARD FILE. / BY ORDER, 16$$ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 7.12.17(DICTATION-PAD 10- P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.12.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.8.12.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.12.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER