Shri Sandip Navnitlal Shah L/h of late Navnitlal S.Shah, Ahmedabad V. The ACIT.,Cent.Circle-2(4), Ahmedabad

ITSSA 508/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0529 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 24-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: P M MEHTA WITH SHRI G M THAKOR
• Section: 153A; 27; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . IT(SS)A. NOS. 506, 507 & 508/AHD/2011 (ASSESSMENT YEARS: 2002-03, 2005-06 & 07-08) SANDIP NAVNITLAL SHAH L/H NAVNITLAL S. SHAH AHMADABAD APPELLANT VS. ACIT, CENTRAL CIRCLE-2(4), AHMADABAD RESPONDENT PAN: AFHPS9023B / BY REVENUE :SHRI V. K. SINGH, SR. D.R. / BY ASSESSEE : SHRI P. M. MEHTA WITH SHRI G. M. THAKOR, A.R. /DATE OF HEARING :13.01.2015 !' /DATE OF PRONOUNCEMENT : 23.01.2015 I.T.A. NOS. 506, 507 & 508/AHD/2011 FOR A.YS. 02-03 , 05-06 & 07-08 (SANDIP NAVNITLAL SHAH VS. ACIT) PAGE 2 ORDER PER BENCH ALL THESE APPEALS FILED BY ASSESSEE ON SIMILAR ISSU E FOR A.Y. 2002-03, 2005-06 & 2007-08, ARISING OUT FORM T HE ORDER OF CIT(A)-III, AHMEDABAD, DATED 13.07.2011 ON SIMIL AR GROUNDS. SO, THEY ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. ASSESSING OFFICER HAS LEVIED PENALTY OF RS.50,00 0/-, RS.55,000/- & RS.14,000/- U/S. 271(1)(C)/271AAA OF THE INCOME TAX ACT FOR A.Y. 2002-03, 05-06 & 07-08 RESP ECTIVELY, WHICH WAS CONFIRMED BY CIT(A). 3. IN BRIEF FACTS ARE THAT ASSESSEE I.E. LATE NAVNE ETLAL SHAH WAS CARRYING ON PROPRIETARY BUSINESS OF TRADING IN BUILDING MATERIAL. A SEARCH U/S.132 OF THE ACT WAS CARRIED OUT AT ASSESSEES BUSINESS/RESIDENTIAL PREMISES ON 25 TH JULY, 2007. DURING COURSE OF SAID OPERATION NEITHER UNACCOUNTED CASH NOR ANY UNEXPLAINED MONEY, BULLION, JEWELLERY ETC. WERE SEIZED FROM THE PREMISES OF ASSESSEE. CONSEQUENTLY, PROCEEDING S U/S.153A OF THE ACT WERE INITIATED AGAINST ASSESSEE AND NOTI CE U/S. 153A(A) WERE ISSUED ON 07.02.2008 BY DCIT, AHMEDABA D. IN RESPONSE TO NOTICE U/S.153A(A), ASSESSEE FILED RETU RN OF INCOME FOR ABOVE REFERRED THREE YEARS DETERMINING ADDITION AL INCOME AS UNDER: I.T.A. NOS. 506, 507 & 508/AHD/2011 FOR A.YS. 02-03 , 05-06 & 07-08 (SANDIP NAVNITLAL SHAH VS. ACIT) PAGE 3 ASSESSMENT ORDER DATE OF FILING OF RETURN ADDITIONAL INCOME DECLARED (RS.) 2002 - 03 17 - 9 - 2009 1,60,000 2005-06 17-9-2009 1,80,000 2007 - 08 17 - 9 - 2009 1,40,000 AT THE RELEVANT POINT OF TIME, THE ASSESSEE SUFFERE D SEVERE NEUROLOGICAL PROBLEM AND UNTIMELY DIED ON 23-12-200 9, BEFORE THE COMPLETION OF REGULAR ASSESSMENT. 3.1 ASSESSING OFFICER FINALIZED ASSESSMENT U/S. 153 A R.W.S. 143[3] OF THE ACT FOR ALL THE ABOVE REFERRED 3 A.YS ON 24-12- 2009 IN THE NAME OF DECEASED NAVNITLAL SHIVLAL SHAH , ACCEPTING THE RETURN OF INCOME FILED U/S. 153A BY ASSESSEE WH EREIN, ADDITIONAL INCOME WAS OFFERED. HOWEVER, ASSESSING O FFICER INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) /271AA A FOR REASON AS DISCUSSED IN ASSESSMENT ORDER THAT ADDITIONAL IN COME OFFERED BY ASSESSEE FOR THE ABOVE REFERRED THREE YE ARS WAS ONLY AFTER THE SEARCH TOOK PLACE AT THE PREMISES AND THE EVIDENCES OF UNDISCLOSED INCOME WERE SEIZED BY INCOME TAX DEPART MENT. THEREFORE ASSESSING OFFICER HELD THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME FOR ALL THE 3 YEARS A S UNDER- ASSESSMENT ORDER ADDITIONAL INCOME DECLARED [RS.] 2002 - 0 3 1,60,000 2005-06 1,80,000 2007 - 08 1,40,000 3.2 CIT(A) VIDE CONSOLIDATED ORDER DT 13-7-2011, CO NFIRMED THE PENALTY OF RS. 50,000, RS. 55,000 AND RS. 14,00 0 I.T.A. NOS. 506, 507 & 508/AHD/2011 FOR A.YS. 02-03 , 05-06 & 07-08 (SANDIP NAVNITLAL SHAH VS. ACIT) PAGE 4 RESPECTIVELY FOR THE ABOVE REFERRED THREE YEARS LEV IED BY ASSESSING OFFICER. CIT(A) OBSERVED THAT ADDITIONAL INCOME DISCLOSED BY ASSESSEE IN THE IN THE RETURN FILED U/ S. 153A IS ON THE BASIS OF UNACCOUNTED TRADING OF CEMENT BUSINESS AS PER THE EVIDENCES SEIZED DURING THE COURSE OF THE SEARCH. F OR A.Y. 2007-08, PENALTY U/S. 271AAA WAS CONFIRMED AS ASSES SEE HAS NOT COMPLIED WITH THE CONDITIONS MENTIONED IN CLAUS E 2 OF SECTION 271AAA. CIT(A) HAS CONFIRMED THE ABOVE REF ERRED PENALTY BY RELYING UPON THE DECISION OF 3 RD MEMBER, ITAT AHMEDABAD, IN CASE OF KIRIT DAHYABHAI PATEL, REPORT ED IN 121 ITD 159. 3.3 IN THIS REGARD THE STAND OF ASSESSEE THAT DECIS ION OF 3 RD MEMBER OF ITAT, AHMEDABAD, IN THE CASE OF KIRIT DAH YABHAI PATEL [SUPRA] WAS REVERSED BY HON'BLE GUJARAT HIGH COURT IN ITS DECISION GIVEN IN TAX APPEAL NO. 1181, 1182 AND 118 5 OF 2010 VIDE ORDER DATED 3-12-2014 WHEREIN TRIBUNAL HAS HEL D AS UNDER: '13. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY T HE LD. SENIOR ADVOCATE FOR THE APPELLANT, WE ARE OF THE CO NSIDERED OPINION THAT THE VIEW TAKEN BY THE TRIBUNAL IS ERRO NEOUS. THE CIT(A) RIGHTLY HELD THAT IT IS NOT RELEVANT WHE THER ANY RETURN OF INCOME WAS FILED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN VIEW OF SPECIFIC PROVISION OF SECTION 153A OF THE I.T. ACT, THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153A OF THE I. T.ACT IS TO BE CONSID ERED AS RETURN FILED U/S. 139 OF THE ACT, AS THE A.O. HAS M ADE ASSESSMENT ON THE SAID RETURN AND THEREFORE, THE RE TURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENALTY U/S. 27 1(1)(C) OF I.T.A. NOS. 506, 507 & 508/AHD/2011 FOR A.YS. 02-03 , 05-06 & 07-08 (SANDIP NAVNITLAL SHAH VS. ACIT) PAGE 5 THE I. T. ACT AND THE PENALTY IS TO BE LEVIED ON TH E INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED U/S. 15 3A, IF ANY. IN VIEW OF ABOVE, ASSESSEE REQUESTED TO DELETE THE ADDITIONS MADE BY ASSESSING OFFICER BY WAY OF PENALTY U/S. 271(1)(C)/271AAA OF THE ACT AND CONFIRMED BY CIT(A) FOR ALL THE THREE YEARS FOR THE REASON THAT ADDITIONAL INCOME O FFERED BY ASSESSEE IN THE RETURN FILED IN VIEW OF THE NOTICE U/S. 153A HAS BEEN ACCEPTED BY ASSESSING OFFICER WHILE PASSING OR DER U/S.153A R.W.S. 143(2) DATED 24.12.2009 AND ASSESSE D INCOME IS SAME WHAT WAS DECLARED IN RETURNS FILED IN VIEW OF INVESTIGATION U/S. 153A. NOTHING CONTRARY HAS BEEN BROUGHT TO OUR KNOWLEDGE ON BEHALF OF REVENUE. 4. IN VIEW OF ABOVE DISCUSSION, WE FIND THERE IS NO DIFFERENCE BETWEEN RETURNED INCOME AND ASSESSED INCOME AND AS SUCH THERE IS NO UNDISCLOSED INCOME. IT IS UNDISPUTED THAT ASSESSEE HAS PAID ALL THE TAXES DUE ON RETURNS FILED IN LIEU OF NOTICES U/S.153A. UNDER THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT IT IS NOT RELEVANT WHETHER RETURN OF INCOME WAS FIL ED BY ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER AN Y INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN VIEW OF SPECIFIC PROVISION OF SECTION 153A OF THE INCOME TAX ACT, RE TURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153A OF THE ACT IS TO BE CONSIDERED AS RETURN FILED U/S. 139 OF THE ACT AS A SSESSING OFFICER HAS MADE ASSESSMENT ON THE SAID RETURN AND THEREFORE, RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENAL TY U/S. I.T.A. NOS. 506, 507 & 508/AHD/2011 FOR A.YS. 02-03 , 05-06 & 07-08 (SANDIP NAVNITLAL SHAH VS. ACIT) PAGE 6 271(1)(C) AND PENALTY IS TO BE LEVIED ON INCOME ASS ESSED. AS THERE IS NO DIFFERENCE BETWEEN RETURN OF INCOME AND ASSESSED INCOME, SO, IN VIEW OF CASE OF KIRIT DAHYABHAI PATEL [SUPRA] , NO PENALTY U/S. 271(1)(C)/271AAA IS LEVIABLE AND ACCOR DINGLY, ORDER OF LEVY PENALTY FOR ALL THE THREE YEARS ARE Q UASHED. ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 5. IN THE RESULT, ALL APPEALS FILED BY ASSESSEE ARE ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF JANUARY, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA # # # # %& %& %& %& '&' '&' '&' '&' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. ,, - / CONCERNED CIT 4. -- / CIT (A) 5. &12 %, , / DR, ITAT, AHMEDABAD 6. 256 78 / GUARD FILE. BY ORDER / # , 9/ , , ;