Smt. Kundan N.Shah L/h of Late Narendra V.Shah, Valsad V. The Dy.CIT.,Cent.Circle-2, Surat

ITSSA 562/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8743 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-02-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 16-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADIP KR MAJUMDAR
• Assessee Lawyers: S N DIVETIA
• Keywords: Business income; Income from undisclosed sources
• Section: 143(3); 153A; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI D.K. TYAGI JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCO UNTANT MEMBER LATE SHRI NARENDRA V. SHAH, L/H SMT. KUNDAN N. SHAH (APPELLANT) PAN NO. ACOPS2909Q VS. DCIT, CENTRAL CIRCLE 2, SURAT (RESPONDENT) REVENUE BY : SRI PRADIP KR. MAJUMDAR, SR. D.R. ASSESSEE BY : SRI S.N. DIVETIA, A.R. DATE OF HEARING : 13-02-2013 DATE OF PRONOUNCEMENT : 22-02-2013 / ORDER PER : D.K TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL ARISING OUT FROM THE ORDER OF LD. CIT(A)- II, AHMEDABAD DATED 13/09/2012. 2. THE ONLY EFFECTIVE GROUND TAKEN BY ASSESSEE READ S AS UNDER:- IT(SS)A NO. 562/AHD/2012 A.Y.:-2009-10 IT(SS)A NO. 562/AHD/2012 A.Y. 2009-10 PAGE NO NARENDA V. SHAH VS. DCIT 2 THE HONBLE COMMISSIONER OF INCOME TAX (A)-II, AHM EDABAD [CIT(A)] HAS ERRED IN LAW AND IN FACTS BY PARTLY CO NFIRMING THE PENALTY LEVIED U/S 271AAA AMOUNTING TO RS. 11,823/- . 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE DURING THE YEAR UNDER APPEAL FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS . 11,4,167/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 153A ASS ESSING THE TOTAL INCOME OF RS. 13,00,380/-. THE PENALTY PROCEEDINGS U/S 27 1AAA WERE INITIATED FOR THE UNDISCLOSED INCOME ASSESSED AS UNDER: UNACCOUNTED INTEREST ON LOAN RS. 10,58,000/- UNEXPLAINED CASH RS. 1,18,237/- CATERING BUSINESS INCOME RS. 77,978/- TOTAL RS. 12,54,215/- THIS UNDISCLOSED INCOME PERTAINS TO THE SPECIFIED P REVIOUS YEAR WITHIN THE MEANING LAID DOWN IN EXPLANATION (A) TO SECTION 271 AAA OF THE ACT. THE A.O. HAS LEVIED PENALTY U/S 271AAA OF THE ACT ON T HE GROUND THAT IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT, NO PARTI CULARS OR DETAILS AS REGARDS TO THE MANNER IN WHICH UNDISCLOSED INCOME DERIVED H AS BEEN FURNISHED. THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE MANNER AS T O HOW UNDISCLOSED INCOME HAS BEEN DERIVED WHILE RECORDING THE STATEMENT U/S 132(4) AS WELL AS IN THE ASSESSMENT PROCEEDINGS. HE FURTHER OBSERVED THAT T HE ASSESSEE HAS NOT PAID DUE TAXES TOGETHER WITH INTEREST IN RESPECT OF UNDI SCLOSED INCOME AS THE DEMAND OF RS. 1,00,624/- HAS BEEN RAISED UPON THE COMPLETION OF THE ASSESSMENT PROCEEDINGS. SO, THE ASSESSEES CASE WA S NOT COVERED UNDER THE CONDITIONS LAID DOWN FOR GETTING IMMUNITY FROM PENA LTY AS PER SECTION 271AAA(2) OF THE I.T. ACT AND ACCORDINGLY PENALTY O F RS. 1,25,421/- BEING IT(SS)A NO. 562/AHD/2012 A.Y. 2009-10 PAGE NO NARENDA V. SHAH VS. DCIT 3 10 PER CENT OF 12,54,215/- LEVIED. IN APPEAL, THIS PENALTY HAS BEEN RESTRICTED TO RS. 11,823/- BY THE LD. CIT(A). 4. FURTHER AGGRIEVED NOW, THE ASSESSEE IS IN APPEA L BEFORE US. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT THE LD. CIT(A) SUSTAINED THE PENALTY TO THE EXTENT OF R S. 11,823/- AS CONDITIONS LAID DOWN FOR IMMUNITY FROM PENALTY WERE NOT FULFIL LED BY THE ASSESSEE AS PER SECTION 271AAA OF THE ACT AND THEREFORE, WE FEE L NO NEED TO INTERFERE WITH THE ORDER PASSED BY LD. CIT(A), RELEVANT PORT ION OF WHICH READS AS UNDER:- 5.6 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND FOUND THAT THE APPELLANT HAS ADMITTED UNDISCLOSED C ASH OF RS. 4,44,750 IN THE STATEMENT RECORDED U/S. 132(4) OF T HE I.T. ACT ON 24.09.2008 ALONG WITH TOTAL DISCLOSURE OF UNACCOUNT ED INCOME OF RS.1,11,00,000/- BUT LATER ON HAD RETRACTED THE STA TEMENT OF ADMISSION OF UNACCOUNTED INCOME TO THE EXTENT OF RS. 6.42 LAC S. IN THE EXPLANATION, DURING THE APPELLATE PROCEEDINGS AND I N THE GROUND OF APPEAL, THE APPELLANT HAS CLAIMED THAT THE UNACCOUN TED CASH OF RS. 1,18,237/- WAS NOTHING BUT APPLICATION OF A SMALL P ORTION OF INCOME DISCLOSED U/S. 132(4) OF THE ACT AND NOT THE UNDISC LOSED INCOME AS PRESUMED BY THE ASSESSING OFFICER. IT IS CLEAR FRO M THE SUBMISSIONS THAT THE APPELLANT HAS NOT OFFERED UNEXPLAINED CASH OF RS. 1,18,237/- IN THE RETURN OF INCOME EVEN AFTER ADMISSION OF THE SAME AS UNDISCLOSED CASH IN THE STATEMENT RECORDED U/S132(4 ) OF THE I.T. ACT. THE ASSESSING OFFICER HAS MADE SEPARATE ADDITION OF RS. 1,18,237/- BEING UNEXPLAINED CASH BY TREATING THE SAME AS UNDI SCLOSED INCOME FOR THE SPECIFIED PREVIOUS YEAR AND THE APPELLANT H AS NOT PREFERRED APPEAL AGAINST THE SAID ADDITION AND FINDINGS. THE ADDITION WAS MADE ON THE BASIS OF UNACCOUNTED INCOME FOUND AND SEIZED DURING THE SEARCH. THE CONDITION OF EXPLAINING THE MANNER OF EARNING INCOME AND SUBSTANTIATING THE SAME HAS NOT BEEN COMPLIED W ITH BY THE APPELLANT AS THE APPELLANT HAS SIMPLY CLAIMED THAT THE UNACCOUNTED CASH OF RS. 1,18,237/- WAS APPLICATION OF A SMALL P ORTION OF INCOME IT(SS)A NO. 562/AHD/2012 A.Y. 2009-10 PAGE NO NARENDA V. SHAH VS. DCIT 4 ADMITTED U/S 132(4). THE ADDITION OF UNEXPLAINED C ASH OF RS. 1,18,237/- BY TREATING THE SAME AS UNDISCLOSED INCO ME HAS BECOME FINAL AS THE APPELLANT HAS NOT PREFERRED APPEAL AGA INST THE SAID ADDITION. THE CASE LAWS CITED BY THE APPELLANT ARE NOT APPLICABLE AS THE APPELLANT HAS NOT OFFERED THE UNACCOUNTED CASH OF RS. 1,18,237/- IN THE RETURN OF INCOME BUT THE ASSESSING OFFICER H AS MADE THE ADDITION IN THE ASSESSMENT ORDER. SO, THE CONDITIONS FOR IM MUNITY FROM PENALTY CANNOT BE FULFILLED AS PER SECTION 271AAA OF THE I. T. ACT. IN VIEW OF THE ABOVE FACTS, IT IS HELD THAT THE ASS ESSING OFFICER WAS JUSTIFIED IN LEVYING PENALTY OF RS. 11,823/- @ 10 % ON RS. 1,18,237/- AS PER THE PROVISIONS OF SECTION 271AAA OF THE I.T. ACT AND LEVY OF PENALTY ON THE SAID AMOUNT IS SUSTAINED AND CONFIRM ED. 6. ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 22/02/2013 A.K. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#