Shri Nanubhai Gomanbhai Patel, SILVASSA V. The ACIT.,Cent.Circle-1, Surat

ITSSA 404/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0851 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 14-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MAURYA
• Keywords: Onus to prove; Revised return
• Section: 44AD; 143(3); 5(2); 153A; 139(5); 131; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI KUL BHARAT, JM, & MANISH BORAD, A M. IT(SS)A NOS.404 & 405/AHD/2011 ASST. YEARS: 2004-05 & 2005-06 NATUBHAI GOMANBHAI PATEL, PLOT NO.31, YOGI SADAN, OPP. SILVASSA POLICE STATION, ULTAN FALIA, VAPI, SILVASSA MAIN ROAD, SILVASSA (UT) VS ASSTT. COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE,-1, SURAT. (APPELLANT) (RESPONDENT) PA NO.AFVPP 6883Q APPELLANT BY SHRI ANIL KSHATRIYA, AR RESPONDENT BY SHRI R. P. MAURYA, SR. DR DATE OF HEARING: 9/9/2015 DATE OF PRONOUNCEMENT: 16/09/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THESE TWO APPEALS BEARING IT(SS)A NO.404/AHD/2011 RELEVANT TO AY 2004-05 IS FILED AGAINST THE ORDER OF CIT(A) II, AHMEDABAD DATED 25.3.2011 AND IT(SS)A NO.405/AHD/2011 RELEVAN T TO AY 205- 06 IS FILED AGAINST THE ORDER OF CIT(A)-II, AHMEDAB AD DATED 25.3.2011. AS BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE AND SIMILAR ISSUES ARE INVOLVED, THESE WERE TAKEN UP FO R HEARING TOGETHER AND ARE BEING DISPOSED OF RESPECTIVELY FOR THE SAKE OF CONVENIENCE. ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 2 2. FIRST WE DEAL WITH IT(SS)A NO.404/AHD/2011 FOR A Y 2004-05 WHEREIN THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN R AISED:- 1. AS REGARDS LEVY OF PENALTY U/S 271(1) OF THE ACT . THE LD. CIT(A) HAD ERRED ON THE FACTS OF THE CASE IN UPHOLDING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 2. THE APPELLANT PRAYS FOR THE FOLLOWING RELIEF THE ORDER OF THE LD. CIT(A) CONFIRMING THE LEVY OF PENALTY MAY KINDLY BE QUASHED. 3. BRIEF FACTS OF THE CASE AS GATHERED FROM THE REC ORDS AVAILABLE ARE THAT THE APPEAL IS AGAINST LEVY OF PENALTY OF R S.2,29,000/- U/S 271(1)(C) OF THE I.T. ACT, 1961 (HEREIN AFTER REFER RED TO AS THE ACT). THE ORIGINAL RETURN OF INCOME WAS FIRST FILED ON 16 .3.2006 SHOWING INCOME OF RS.2,38,538/-. SEARCH OPERATION U/S 132 O F THE ACT WAS CONDUCTED AT THE PREMISES OF MAHENDRA KATARIA GROUP , SILVASSA ON 27/12/2006 DURING WHICH VARIOUS DOCUMENTS AND MATER IALS PERTAINING TO ASSESSEE WERE FOUND SHOWING HIS INVESTMENT IN OM SURYA PROJECT. IN THE POST SEARCH ENQUIRIES, STATEMENT OF THE ASSE SSEE MR. NATUBHAI G. PATEL WAS ALSO RECORDED ON 10.1.2007 WHEREIN HE ADMITTED TO HAVE MADE INVESTMENT IN OM SURYA PROJECT OF RS.48,7 2,000/-. ON THE BASIS OF DOCUMENTS AND MATERIAL FOUND DURING THE SE ARCH AND THE STATEMENT RECORDED OF THE ASSESSEE ADMITTING THE IN VESTMENT, NOTICE U/S 153C WAS ISSUED ON 31.7.2007. IN RESPONSE TO TH IS NOTICE THE ASSESSEE FILED RETURN OF INCOME ON 8.11.2007 SHOWIN G TOTAL INCOME OF RS.2,38,538/-. NOTICE U/S 143(2) ALONG WITH THE QUE STIONNAIRE WAS ISSUED ASKING THE ASSESSEE WHY ALL THE INVESTMENTS MADE IN PROPERTY SHOULD NOT BE TREATED AS UNEXPLAINED INVES TMENT. ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 3 THEREAFTER, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 20.10.2008 DECLARING INCOME AT RS.10,38,538/- INCLU DING ADDITIONAL INCOME OF RS.8,00,000/- FOR UNDISCLOSED INVESTMENT. THE AO ACCEPTED THE INCOME DECLARED IN THE REVISED RETURN HOWEVER, PROCEEDED TO INITIATE PENALTY PROCEEDINGS U/S 271(1 )(C) OF THE ACT, TREATING THE ADDITIONAL INCOME OF RS.8,00,000/- AS UNDISCLOSED INCOME. 4. THEREAFTER A SHOW CAUSE NOTICE DATED 27.4.2009 W AS SERVED ON THE ASSESSEE REQUESTING TO SHOW CAUSE WHY PENALTY S HOULD NOT BE LEVIED FOR CONCEALMENT OF INCOME. DURING THE COURSE OF PROCEEDINGS BEFORE ACIT-CEN. CIRCLE-1, ASSESSEE CONTENDED THAT AT THE TIME OF PREPARATION OF ACCOUNTS HE HAD FOUND SOME DISCREPAN CY IN HIS ACCOUNTS AND ACCORDINGLY HAD OFFERED ADDITIONAL INC OME BY SUBMITTING REVISED RETURN AND THE ADDITIONAL INCOME WAS OFFERE D VOLUNTARILY AND HE HAS NEITHER CONCEALED INCOME NOR HAS SUBMITTED A NY INACCURATE PARTICULARS OF INCOME. THE ASSESSEE ALSO SUBMITTED THAT HIS RETURN OF INCOME WAS ACCEPTED BY THE AO. HOWEVER, THE ACIT, CEN. CIRCLE-1, DID NOT AGREE TO THE SUBMISSIONS MADE BY THE ASSESSEE AND VIDE HIS ORDER DATED 29.6.2009 UNDER SECTION 271(1)(C) IMPOSED PENALTY OF RS.2,29,000/- @ 100%. 5. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE TH E CIT(A) WHO ALSO CONFIRMED THE ACTION OF THE ACIT, CC-1 AND HEL D THAT THE AO WAS JUSTIFIED IN LEVYING THE PENALTY BY OF GIVING FOLLO WING FINDING :- ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 4 4. I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS . I DO NOT AGREE WITH THE APPELLANTS VIEW. IT IS A FACT THAT THE AP PELLANT HAS MADE INVESTMENT IN OM SURYA PROJECT WHICH WAS DETECTED I N THE SEARCH PROCEEDINGS AT THE PREMISES OF MAHENDRA KATARIA AND POST SEARCH ENQUIRIES. FURTHER THE APPELLANT HIMSELF ADMITTED T HE UNDISCLOSED INVESTMENT IN OM SURYA PROJECT, IN HIS STATEMENT RE CORDED ON OATH U/S 131 OF THE ACT ON 10.1.2007. HOWEVER THE APPELLANT HAS NOT DISCLOSED THIS INVESTMENT IN THE BOOKS OF ACCOUNTS AND ALSO NOT DI SCLOSED THE INCOME FOR THIS UNDISCLOSED INVESTMENT WHILE FILING ORIGINAL R ETURN OF INCOME ON 16.3.2006 AT RS.2,38,538/-. EVEN WHEN THE AO ISSUED NOTICE U/S 153C, THE APPELLANT FILED RETURN IN ITS COMPLIANCE ON 8.1 1.2007, BUT THE CORRECT INCOME SHOWING THE ENTIRE INVESTMENT WAS NOT DISCLO SED. THE APPELLANT DISCLOSED THE INCOME OF RS.8,00,000/- FOR THIS INVE STMENT ONLY IN THE RETURN FILED ON 20.10.2008 AFTER DETECTION OF THE CONCEALM ENT OF INCOME CORRESPONDING TO THIS UNDISCLOSED INVESTMENT MADE A ND ISSUE OF NOTICE U/S 153C, 143(2) AND DETAILED QUESTIONNAIRE. IN VIEW OF THESE FACTS, IT IS APPARENT THAT THE APPELLANT HAD CONCEALED INCOME AN D FILED INACCURATE PARTICULARS OF INCOME. THEREFORE, THE AO WAS JUSTIF IED IN LEVYING THE PENALTY WHICH IS CONFIRMED. 6. AGGRIEVED, THE ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. THE LD. AR MADE FOLLOWING SUBMISSIONS :- (A) (1) THE ASSESSEE IS AN INDIVIDUAL TRADING IN BUILDI NG MATERIAL AND SUBMITTING RETURN OF INCOME SHOWING PRESUMPTIVE INC OME U/S 44AD OF THE ACT. (2) CONSEQUENT TO SEARCH OPERATION U/S 132 OF THE A CT IN THE CASE OF MAHENDRA KATARIYA GROUP OF SILVASA, IT WAS ADMIT TED TO HAVE MADE INVESTMENT THEREIN AND DISCLOSED INCOME OF RS.30,29,350/-. (3) NEITHER ANY SEARCH WAS CONDUCTED IN HIS CASE NO R WERE ANY DOCUMENTS RECOVERED FROM THE POSSESSION OF THE ASSE SSEE. HENCE, A NOTICE U/S 153C OF THE ACT WAS ISSUED. IN RESPONSE TO THE SAME, THE ASSESSEE SUBMITTED RETURN OF INCOME O N 8/11/2007, SHOWING TOTAL INCOME OF RS.2,38,538/- (F OR AY 2004- 05) & RS.23,15,662/- (FOR AY 2005-06). ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 5 (4) SUBSEQUENTLY, REVISED RETURNS OF INCOME FOR BOT H THE YEARS, DISCLOSED THEREIN (REVISED) TOTAL INCOME OF RS.10,3 8,538/- & RS.23,15,662/- WHICH INCLUDED ADDITIONAL INCOME(S) OF RS.8,00,000/- & RS.16,15,000/- RESPECTIVELY. (5) ON THE BASIS OF THESE RETURNS, THE AO COMPLETED REGULAR ASSESSMENTS U/S 143(3) R.W.S. 153C OF THE ACT, ACCE PTING INCOME AS SHOWN IN THE REVISED RETURNS AS SUCH, AS PER HIS ORDERS DATED 26/12/2008. (6) THOUGH THE AO HAS NOT GIVEN ANY FINDING FOR CON CEALMENT OF INCOME BY WAY OF FURNISHING OF INACCURATE PARTICULA RS IN THE BODY OF ASSESSMENT ORDER BUT MERELY BELOW THE COMPU TATION PART IN PARA 6 STATED TO ISSUE PENALTY NOTICE U/S 2 74 R.W.S. 271(1)(C) ON ACCOUNT OF CONCEALMENT OF INCOME TO TH E TUNE OF RS.8,00,000/-. SUBSEQUENTLY, THE AO LEVIED PENALTY OF RS.2,29,000/- AND RS.5,31,270/- RESPECTIVELY, AS PE R HIS ORDERS DATED 29/6/2009 STATING THAT THEREFORE, I AM SATIS FIED THAT THERE IS AN ELEMENT OF CONCEALMENT OF INCOME BY WAY OF FU RNISHING OF INACCURATE PARTICULARS, AND THIS A FIT CASE FOR LEV Y OF PENALTY U/S 271(1)(C). ACCORDING TO THE ASSESSMENT ORDERS THE S HOW CAUSE NOTICE WAS ISSUED ON ACCOUNT OF CONCEALMENT OF INCO ME AND WHILE PASSING THE PENALTY ORDER, THE PENALTY WAS LE VIED FOR FURNISHING OF INACCURATE PARTICULARS WHICH ITSELF R ENDERS THE PENALTY AS VOID AB INITIO AND ILLEGAL. (B) (1) THE ASSESSEE HAS OFFERED ADDITIONAL INCOME OF R S.8,00,000/- & RS.16,15,000/- FOR AY 2004-05 & 2005-06 RESPECTIVEL Y, THROUGH HIS REVISED RETURNS OF INCOME DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS. (2) IT IS ALSO UNDISPUTED FACT ON RECORD THAT THE R EVISED RETURN OF INCOME SO FILED HAS BEEN ACCEPTED BY THE AO AND THE ASSESSMENTS FOR BOTH THE YEARS HAVE BEEN FRAMED ON THE RETURNED INCOME AS SUCH. IN THE ASSESSMENT ORDER, T HERE IS NO ALLEGATION TO SHOW THAT THE DISCLOSURE MADE BY THE ASSESSEE WAS ON ACCOUNT OF DISCREPANCY, CONCEALMENT ETC; DET ECTED BY THE DEPARTMENT DURING THE COURSE OF SCRUTINY. EVENT UALLY, NO ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 6 ADDITION/DISALLOWANCE HAS BEEN MADE BY THE AO WHILE FRAMING THE ASSESSMENT AND, THEREFORE, THERE CAN BE NO ALLE GATION AT ALL, OF CONCEALMENT OF INCOME. (3) HOWEVER, THE AO, WITHOUT PLACING ON RECORD ANY MATERIAL OR EVIDENCE TO DISCHARGE HIS BURDEN OF PROOF OF CONCEA LMENT, HAS SIMPLY RESTED HIS CONCLUSION ON THE VOLUNTARY SURRE NDER DONE BY THE ASSESSEE, IN GOOD FAITH. (4) THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE PENALTY, WITHOUT GIVING HIS OWN INDEPENDENT FINDING AND IN T OTAL DISREGARD TO THE FACTUAL & LEGAL ASPECT AS WELL AS PECULIAR CIRCUMSTANCES INVOLVED IN THE CASE. FURTHER TO GIVE SUPPORT TO HIS SUBMISSION VARIOUS J UDICIAL PRONOUNCEMENTS WERE FURNISHED BY THE LD. AR. HOWEVE R, SPECIAL IMPETUS WAS PLACED ON THE DECISION OF HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT IN TAX APPEAL NOS.1181 OF 2010, 1182 OF 2010 AND 1185 OF 2010 AND THE ORDERS OF THE TRIBUNAL AND PLACED COPIES OF THE SAME IN THE C OMPILATION. 7. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE JUDICIAL PRON OUNCEMENT REFERRED BY THE LD. AR IN THE CASE OF KIRIT DAHYABH AI PATEL VS. ACIT IN ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 7 TAX APPEAL NO.1181 OF 2010 ALONG WITH OTHERS VIDE O RDER DATED 3/12/2014 WHEREIN THE FACTS OF THE CASE WERE AS FOL LOWS :- 4. THE APPELLANT-ASSESSEE HAD FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2002-03 ON 7.6.2002, DECLARING TOTA L INCOME AT RS.1,30,900/-. A SEARCH UNDER SECTION 132 OF THE IN COME-TAX ACT, 1961 (FOR SHORT THE ACT) WAS CONDUCTED IN THE ASSESSEE S RESIDENTIAL AND OFFICE PREMISES ON 4.9.2003. IN RESPONSE TO THE NOTICE UND ER SECTION 153(1)(A) OF THE ACT, THE ASSESSEE-APPELLANT DISCLOSED ADDITIONA L INCOME OVER AND ABOVE THE INCOME WHICH WAS DECLARED IN THE ORIGINAL RETURN. THEREAFTER, THE ASSESSMENT PROCEEDINGS UNDER SECTION 153(1)(B) OF THE ACT, WERE COMPLETED ON 20.3.2006 AND THE RETURN OF INCOME IN PURSUANCE TO THE SEARCH WAS ACCEPTED. SIMULTANEOUSLY, PENALTY PROCEE DINGS WERE ALSO INITIATED UNDER SECTION 271(1)(C) OF THE ACT AS THE APPELLANT DISCLOSED ADDITIONAL INCOME IN PURSUANCE OF THE SEARCH. HOWEV ER, THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE APPELLANT AN D LEVIED PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED. IN THIS CASE THE HONBLE HIGH COURT OF GUJARAT HAS HELD AS UNDER :- 13 CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY LEARNED SE NIOR ADVOCATE FOR THE APPELLANT, WE ARE OF THE CONSIDERED OPINION THAT TH E VIEW TAKEN BY THE TRIBUNAL IS ERRONEOUS. THE CIT(A) RIGHTLY HELD THAT IT IS NOT RELEVANT WHETHER ANY RETURN OF INCOME WAS FILED BY THE ASSES SEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN VIEW OF SPECIFIC PROVISION OF SECTION 15 3A OF THE I.T. ACT, THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153(A) OF THE I.T. ACT IS TO BE CONSIDERED AS RETURN FILED UNDER SECTI ON 139 OF THE ACT, AS THE ASSESSING OFFICER HAS MADE ASSESSMENT ON THE SAID R ETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF P ENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED UNDER S ECTION 153A, IF ANY. 14. FURTHER, IN THE PRESENT CASE, IT APPEARS FROM T HE RECORD THAT THE ASSESSEE HAD SATISFIED ALL THE CONDITIONS WHICH ARE REQUIRED FOR CLAIMING ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 8 IMMUNITY FROM PAYMENT OF PENALTY UNDER SECTION 271( 1)(C) OF THE ACT. THE PROVISION DOES NOT SPECIFY ANY TIME LIMIT DURING WH ICH THE AFORESAID AMOUNT I.E. THE AMOUNT OF PENALTY WITH INTEREST HAS TO BE PAID. ADMITTEDLY WHEN THE ASSESSMENT HEREIN HAVE PAID THE ENTIRE AMO UNT WITH INTEREST, THE ASSESSING OFFICER OUGHT TO HAVE GRANTED THEM IMMUNI TY AVAILABLE UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT. 15. THE DECISION RELIED UPON BY LD. ADVOCATE FOR TH E RESPONDENT WILL NOT APPLY TO THE FACTS OF THE PRESENT CASE. 16. IN VIEW OF THE AFORESAID FACTS OF THE CASE AND ALSO THE PRINCIPLE LAID DOWN IN THE DECISIONS RELIED UPON BY THE LEARNED SE NIOR COUNSEL FOR THE APPELLANT MORE PARTICULARLY THE PRINCIPLE LAID DOWN IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. GEBILAL KANHAILAL (S UPRA) AND COMMISSIONER OF INCOME TAX VS. ABDUL RASHID (SUPRA) , WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY UNDER SECTION 2 71(1)(C) OF THE INCOME- TAX ACT CANNOT BE LEVIED ON THE INCOME SHOWN IN THE RETURN FILED UNDER SECTION 153 OF THE I.T. ACT. 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISION OF THE MADRAS HIGH COURT I N THE CASE OF S.D.V. CHANDU (SUPRA), WE ARE OF THE OPINION THAT THE APPE LLANT IS ENTITLED TO THE BENEFIT OF THE PROVISIONS OF EXPLANATION 5(2) TO SE CTION 271(1)(C) OF THE INCOME TAX ACT. 9. THE FACTS OF THE CASE UNDER APPEAL BEFORE US ARE IDENTICAL TO A GREAT EXTENT AND QUITE SIMILAR TO THE FACTS AS DESC RIBED HEREIN ABOVE, IN THE DECISION OF HONBLE JURISDICTIONAL GUJARAT H IGH COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT(SUPRA). DURI NG THE COURSE OF POST SEARCH ENQUIRIES THE ASSESSEE- APPELLANT IN RE PLY TO THE NOTICE UNDER SECTION 153C CLEARLY ADMITTED UNDISCLOSED IN VESTMENT OF RS.8,00,000/- IN HIS STATEMENT U/S 131 OF THE ACT. THEREAFTER IN PURSUANCE TO THIS NOTICE APPELLANT WAS REQUIRED TO FURNISH RETURN OF INCOME UNDER SECTION 153A OF THE ACT. BEFORE ADVERT ING TO THE RIVAL CONTENTIONS FOR THE SAKE OF CLARITY WE REPRODUCE HE REIN SECTION 153A(1)(A) OF THE ACT :- ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 9 (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF IN COME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRE SCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRES CRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. 10. FROM A BARE READING OF THE ABOVE PROVISIONS, IT SEEMS THAT ONCE THE NOTICE IS RECEIVED BY THE ASSESSEE FOR FUR NISHING THE RETURN OF INCOME UNDER SECTION 153A, THEN THE PROVISIONS O F SECTION 139 WILL COME INTO EFFECT FOR THE PURPOSE OF FILING SUCH RET URN OF INCOME. HOWEVER, NOTHING SPECIFIC IS MENTIONED IN SECTION 1 53A THAT ASSESSEE WILL BE ALLOWED TO FILE ONLY ONE RETURN OF INCOME. IN THE CASE UNDER APPEAL, ASSESSEE HAS FURNISHED A RETURN IN CO MPLIANCE WITH SECTION 153A ON 8.11.2007 SHOWING TOTAL INCOME OF R S.2,38,538/-. BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS THE ASSESSEE REVISED THE RETURN UNDER SECTION 139(5) ON 20.10.20 08 DECLARING INCOME AT RS.10,38,538/- INCLUDING ADDITIONAL INCOM E OF RS.8,00,000/- FOR UNDISCLOSED INVESTMENT. HERE WE WOULD LIKE AGAI N TO MENTION THAT ASSESSEE HAS ALREADY SURRENDERED THE UNACCOUNTED IN COME OF RS.8,00,000/- IN HIS STATEMENT RECORDED BEFORE THE TAX AUTHORITIES AND AS THE ASSESSEE WAS HAVING THE RIGHT TO REVISE THE RETURN AS PROVIDED IN SECTION 139, HE, THEREFORE, REVISED THE INCOME B EFORE THE COMPLETION OF ASSESSMENT BECAUSE SECTION 139(5) SAY S THAT IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB-SECTION (1) OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142, ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 10 DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THERE IN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXP IRY OF ONE YEAR FROM THE END OF THE RELEVANCE ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. PROVIDED THAT . 11. IN THE CASE OF ASSESSEE THE RETURN UNDER SECTIO N 153A WAS FURNISHED ON 8.11.2007 AND THEREAFTER IT WAS REVISE D ON 20.10.2008 AND THE ASSESSMENT ORDER WAS PASSED BY THE AO ON 26 .12.2008; WHICH MEANS THAT THE RETURN WAS REVISED BEFORE THE COMPLETION OF THE ASSESSMENT BY AO. AS REGARDS IMPOSITION OF PENALTY UNDER SECTION 271(1)(C), AS DECIDED BY HONBLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT (SUPRA) VIDE ABOVE R EFERRED JUDGMENT THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED U/S 153A. IN THE CASE OF ASSESSEE THE INCOME AS SHOWN IN THE REV ISED RETURN OF INCOME AT RS.10,38,538/- WAS ACCEPTED BY THE AO AND NO OTHER ADDITION WAS MADE AS SUCH ASSESSEES CASE WAS NOT A FIT CASE FOR THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C). RESP ECTFULLY FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAHYABHAI PATEL VS. ACIT (SUPRA) WE HEREBY DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. ACCORDINGLY, THE GR OUND OF ASSESSEE IS ALLOWED. 12. NOW WE TAKE UP APPEAL IN IT(SS)A NO.405/AHD/201 1. THIS APPEAL OF THE ASSESSEE FOR AY 2005-06 IS FILED AGAI NST THE ORDER OF CIT(A)-II, AHMEDABAD DATED 24.3.2011 ON THE FOLLOWI NG GROUND :- ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 11 1. AS REGARDS LEVY OF PENALTY U/S 271(1) OF THE ACT . THE LD. CIT(A) HAD ERRED ON THE FACTS OF THE CASE IN UPHOLDING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 2. THE APPELLANT PRAYS FOR THE FOLLOWING RELIEF THE ORDER OF THE LD. CIT(A) CONFIRMING THE LEVY OF PENALTY MAY KINDLY BE QUASHED. 13. IDENTICAL GROUND WAS RAISED IN IT(SS)A NO. 404/ AHD/2011. THE REPRESENTATIVES OF THE PARTIES AT THE OUTSET HAVE A DOPTED THE SAME ARGUMENTS AS WERE ADDRESSED IN IT(SS)A NO. 404/AHD/ 2011 THE REVENUE HAS NOT POINTED OUT ANY CHANGE INTO THE FAC TS AND CIRCUMSTANCES, THEREFORE, TAKING A CONSISTENT VIEW, WE HEREBY DIRECT THE AO TO DELETE THE PENALTY. THUS, THE GROUND OF T HE ASSESSEES APPEAL IS ALLOWED. 14. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/9/2015 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 16/9/2015 MAHATA/- ITA NOS.404 & 405/AHD/2011 ASST. YEARS 2004-05 & 2005-06 12 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 10/9/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER:11/9/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 16/9/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: