Shri Sanjay Jain P/o Dhawal Jewellers, V. The A C I T 1 (1),

ITSSA 66/IND/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7964 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-05-2011
• Assessment Year: misc
• Appeal Filed On: 23-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: YESHWANT SHARMA
• Keywords: Search and seizure; Block assessment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)_A NO. 66/IND/2009 BLOCK PERIOD 1.4.1996 TO 13.6.2002 SANJAY JAIN PROP. M/S DHAWAL JEWELLERS BHOPAL PAN AAXPJ-3341A ..APPELLANT V/S. ACIT-1(1), BHOPAL ..RESPONDENT DATE OF HEARING : 13.9.2011 DATE OF PRONOUNCEMENT : 20 .10.2011 APPELLANT BY : SHRI YESHWANT SHARMA RESPONDENT BY : SHRI ARUN DEWAN O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS APPEAL IS BY THE ASSESSEE CHALLENGING THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 2 16.12.2008 ON THE GROUND THAT THE LD. FIRST APPELLA TE AUTHORITY, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, ERRE D IN UPHOLDING THE PENALTY OF RS. 10,50,000/- LEVIED U/S 158BFA(2) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I YESHWANT SHARMA, LD. COUNSEL FOR ASSESSEE AND SHRI ARUN DEWAN, LEARNED SR. DR. THE CRUX OF ARGUMENTS ON BE HALF OF THE ASSESSEE IS THAT PURSUANT TO SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT THE BLOCK ASSESSMENT PROCEEDI NGS WERE COMPLETED ON UNDISCLOSED INCOME AT RS.35,70,440/-. THE PENALTY PROCEEDINGS U/S 158BFA(2) OF THE ACT WERE A LSO INITIATED FOR DISCLOSING INACCURATE PARTICULARS OF INCOME. IT WAS SUBMITTED THAT THE MATTER WAS CARRIED IN APPEAL UP TO THE TRIBUNAL LEVEL WHERE THE ADDITION OF RS.1,24,507/- WAS AFFIRMED RESULTING INTO DELETING THE ADDITION ALMOST UP TO 9 5%. THIS ASSERTION OF THE LD. COUNSEL FOR ASSESSEE THAT ONLY ADDITION REMAINED UPTO THE LIMIT OF RS.1,24,507/- WAS NOT CO NTROVERTED BY THE REVENUE. HOWEVER, THE LEARNED SR DR DEFENDED THE 3 IMPOSITION OF PENALTY BY SUBMITTING THAT AT LEAST THE PENALTY MAY BE SISTAINED UP TO THE ADDITION OF RS.1,24,507/ -. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. UNDER THE AFOREMENT IONED FACTS, NOW THE QUESTION ARISES AT WHICH FIGURE THE PENALTY COULD BE SUSTAINED. THE OBVIOUS REPLY IS THAT THE ASSESSEE DID NOT CONCEAL THE PARTICULARS OF INCOME ON THE TOTAL UNDI SCLOSED ADDITION. WITHOUT DELIBERATING FURTHER, WE DIRECT T HE ASSESSING OFFICER TO RESTRICT THE PENALTY ON THE ADDITION OF RS.1,24,507/- AS UP TO THIS AMOUNT THE ADDITION WAS SUSTAINED BY THE TRIBUNAL. FOR THE REMAINING ADDITION, WHICH WAS DELETED B Y T HE TRIBUNAL , NO PENALTY CAN BE IMPOSED BECAUSE ON THAT AMOUNT TH ERE IS NO CONCEALMENT OF THAT INCOME BY THE ASSESSEE, CONSEQU ENTLY, THE ASSESSING OFFICER IS DIRECTED TO RESTRICT THE PENAL TY ON THE SUSTAINED ADDITION OF RS. 1,24,507/- AS THE SAME CO ULD NOT BE EXPLAINED BY THE ASSESSEE. THE FACTUAL FINDING CONT AINED IN THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) WAS ALSO NOT CONTROVERTED BY THE ASSESSEE. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS PART LY ALLOWED. 4 ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH OCTOBER, 2011. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 .10.2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD FILE DN/-