Shri Sukhraj Bhansali, Surat V. The ACIT.,CC-2, Surat

ITSSA 659/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9073 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-04-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 17-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Section: 5(2); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER SRI SUKHRAJ BHANSALI PAN: (APPELLANT) VS THE ACIT CC-2, SURAT (RESPONDENT) REVENUE BY: SRI Y.P. VERMA, SR. D.R. ASSESSEE BY: SRI HARDIK VORA A.R. DATE OF HEARING : 15-04-2013 DATE OF PRONOUNCEMENT : 03-05-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEE APPEAL AGAINST THE ORDER OF L D. CIT(A)-II AHMEDABAD DATED 11-06-2012. IT(SS)A NO. 659/AHD/2010 ASSESSMENT YEAR 2005-06 I.T(SS).A NO 659/AHD/2010 A.Y. 2005-06 PAGE NO SUKHRAJ BHANSALI VS. ACIT 2 2. BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S 13 2 OF THE ACT WAS CARRIED OUT ON 27/12/2006 AND DURING THE COURSE OF SEARCH P ROCEEDINGS THE ASSESSEE SURRENDERED UNDISCLOSED INCOME OF RS. 68,911/- WHIL E RECODING STATEMENT U/S 132(4) OF THE ACT. ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 2,33,760/- INCLUDING UNDISCLOSED INCOME AT RS. 68,911/- AND PAID DUE TAX THEREON. ASSESSMENT U/S 134(3) FRAMED ASSESSING TO TAL INCOME AT RS. 2,33,760/- AS DECLARED IN RETURN OF INCOME, WITHOUT MAKING ANY ADDITION. HOWEVER A.O. LEVIED PENALTY OF RS. 23,195/- HOLDIN G THAT RELIEF GIVEN IN EXPLANATION 5 OF SECTION 271(1)(C) OF THE ACT IS NO T AVAILABLE TO THE ASSESSEE. BEFORE LD. CIT(A) THE ASSESSEES SUBMISSION WAS THA T HE HAD COMPLIED ALL THE ADDITIONS LAID DOWN UNDER THE PROVISIONS OF EXP LANATION 5 TO SECTION 271(1)(C) OF THE ACT. THE ASSESSEE DECLARED RS. 68 ,911/- AS INCOME IN STATEMENT RECORDED U/S 132(4) OF THE ACT. THE A.O. MAINLY ON THE BASIS OF FOLLOWING GROUNDS DID NOT GRANT IMMUNITY TO ASSESSE E OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. I) THE ASSESSEE HAS NOT DISCLOSED ANY TAXABLE INCO ME TO THE CHIEF COMMISSIONER OF OR COMMISSIONER AT ANY TIME. II) THE ASSESSEE HAS NOT MAKE ANY DISCLOSURE ON BAS IS OF MONEY, BULLION, JEWELLARY OR OTHER VALUABLE ARTICLE OR THI NG FOUND IN POSSESSION OR UNDER HIS CONTROL DURING SEARCH U/S 1 32, BUT THE APPELLANT HAS MADE DISCLOSURE ON BASIS OF INCOME BA SED ON ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENT OR TRANSACTI ON. III) THE ASSESSEE HAS NOT JUSTIFIED THE MANNER OF D ERIVATION OF UNDISCLOSED INCOME IN THE STATEMENT. I.T(SS).A NO 659/AHD/2010 A.Y. 2005-06 PAGE NO SUKHRAJ BHANSALI VS. ACIT 3 3. FOLLOWING FURTHER SUBMISSIONS WERE ALSO MADE ON BEHALF OF THE ASSESSEE BEFORE LD. CIT(A). HOWEVER, SO FAR AS THE AOS CONTENTION THAT THE APP ELLANT HAS NOT MADE ANY DISCLOSURE ON BASIS OF MONEY, BULLION, JEW ELLARY OR OTHER VALUABLE ARTICLE OR THING FOUND IN POSSESSION OR UN DER HIS CONTROL DURING SEARCH U/S 132, BUT THE APPELLANT HAS MADE D ISCLOSURE ON BASIS OF INCOME BASED ON ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENT OR TRANSACTION, THE APPELLANT SUBMITS THAT EXPLANAT ION 5 TO SECTION 271(1)(C) OF THE ACT DOES NOT MAKE DISTINCTION BETW EEN TANGIBLE ASSETS OR INTANGIBLE ASSETS AND IN VIEW OF CLAUSE (2) OF E XPLANATION 5 TO SECTION 271(1)(C), WHERE IN COURSE OF SEARCH AN ASS ESSEE MAKES A STATEMENT UNDER SECTION 132(4) AND OWNS THAT ANY OF SUCH ASSETS HE ACQUIRED OUT OF HIS INCOME FROM UNDISCLOSED INCOME, NOT SO FAR RETURNED, AND PAYS TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME, NO PRESUMPTION OF CONCEALMENT BE DRAWN . FOR THE SAID CONTENTION, THE APPELLANT RELIES ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS MISHRIMAL SONI REP ORTED IN 162 TAXMAN 53. IN RESPECT OF ANOTHER OBJECTION OF THE AO REGARDING THAT THE APPELLANT HAS NOT SPECIFIED MANNER IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT AND THEREFORE IMMUNITY UNDER EXPLANATION 5 CAN NOT BE GRANTED. IN THIS CONNECTION, THE APPELLANT SUBMITS THAT EVEN IF THE MANNER IS NOT SPECIFIED IN THE STATEMENT, EVEN THOUGH IMMUNITY CA N BE GRANTED TO THE APPELLANT UNDER PROVISIONS TO EXPLANATION 5 TO SECT ION 271(1)(C) OF THE ACT. THE APPELLANT FOR THIS CONTENTION RELIES O N THE JURISDICTIONAL GUJARAT HIGH COURT IN THE CASE OF CIT VS. MAHENDRA C. SHAH REPORTED IN 172 TAXMAN 58. IN VIEW OF THIS, THE PENALTY MAY BE DELETED. HOWEVER LD. CIT(A) CONFIRMED THE ACTION OF THE ASS ESSING OFFICER BY OBSERVING AS UNDER:- I.T(SS).A NO 659/AHD/2010 A.Y. 2005-06 PAGE NO SUKHRAJ BHANSALI VS. ACIT 4 4. I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS . I DO NOT AGREE WITH THE APPELLANT'S VIEW. THE HON'BLE ITAT AHMEDAB AD BENCH IN THE CASE OF ACIT VS KIRIT DAYABHAI PATEL, IN ITA NO.234 4/AHD/2007 FOR A.Y.2002-03 AND IN THE CASE OF SHRI RAJESH A. PATEL IN ITA NO.2345, 2346 , 2348 & 2389/AHD/2007 FOR A.YS. 98-99, 99-2000, 200 1-02 & 2002-03 DATED .25/06/2009 [GIVEN BY SHRI R.V. EASWA R VICE PRESIDENT AND THIRD MEMBER], HAVE CONSIDERED THE POINT OF APP LICABILITY OF EXPLANATION 5 TO SECTION 271(1)(C) FOR THE YEARS EA RLIER TO THE YEAR OF SEARCH. THE HON'BLE MEMBER DID NOT APPROVE THE DECI SION OF MADRAS HIGH COURT IN THE CASE OF CIT VS S.D.V.CHANDRU 266 IT.R. 175 AND_RAJASTHAN HIGH COURT DECISION IN THE CASE OF CI T VS KANHSIYALAL 299 ITR 19 AND ORDER OF THE ALLAHABAD BENCH OF ITAT IN THE CASE OF SHYAM BIRI WORKS P.LTD. VS ACIT 70 TTJ 880 . INSTEAD THE MEMBER HAVE FOLLOWED THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF SHERATON APPEARALS VS ACIT 256 ITR 20 AND ITAT AHME DABAD BENCH IN THE CASE OF RUPESH GODHIDAS PATE1 809 ITR (AT) 2 71 AND HELD THAT BENEFIT OF EXPLANATION 5(2) TO SECTION 271(1)(C) IS CONFINED TO THE YEAR IN RESPECT WHICH DUE DATE FOR FILING THE RETURN IS YET TO COME BUT THE BENEFIT IS NOT AVAILABLE TO EARLIER YEARS WHERE DU E DATE TO FILE THE RETURN OF INCOME U/S. 139(1) HAS EXPIRED. AS THE DECISION OF HON'BLE. ITAT AHMEDABAD [THIRD MEMBER] IS BINDING THE SAME IS BEING FOLLOWED. ACCORDINGLY, IT IS HELD THAT THE APPELLANT IS NOT ENTITLED TO THE BENEFIT OF EXEMPTI ON EXPLANATION 5(2) TO SECTION 271(1)(C) OF THE I.T. ACT AND PENALTY IS LE VIABLE. HENCE, THE ACTION OF THE ASSESSING OFFICER IS UPHELD AND THE P ENALTY IS CONFIRMED. 4. SINCE THE LD. CIT(A) HAS CONFIRMED THE ACTION OF ASSESSING OFFICER BY PLACING RELIANCE ON THE DECISION OF ITAT AHMEDAB AD IN THE CASE OF SRI RAJESH A PATEL IN ITA NO. 2345, 2346, 2348 & 2389/A HD/2007 FOR A.YS. 98-99, 99-2000, 2001-02 & 2002-03 DATED 25/06/2009 WHEREIN IT WAS HELD THAT BENEFIT OF EXPLANATION 5(2) TO SECTION 271(1)( C) IS CONFINED TO THE YEAR IN RESPECT WHICH DUE DATE FOR FILING THE RETURN IS YET TO COME BUT THE BENEFIT IS NOT AVAILABLE TO EARLIER YEARS WHERE DUE DATE TO FI LE THE RETURN OF INCOME U/S. I.T(SS).A NO 659/AHD/2010 A.Y. 2005-06 PAGE NO SUKHRAJ BHANSALI VS. ACIT 5 139(1) HAS EXPIRED, WE FEEL NO NEED TO INTERFERE WI TH THE ORDER PASSED BY HIM AND THE SAME IS HEREBY UPHELD. 5. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R. MEENA) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 03/05/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#