The ACIT, Central Circle-2, RAJKOT-GUJARAT V. Shri Shantilal Jerambhai Maheshwari, Bhuj

ITSSA 68/RJT/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8351 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 25-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LD BHARTI
• Assessee Lawyers: J C RANPURA
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.68/RJT/2009 (ASSESSMENT YEAR 2001-02) ACIT, CENT.CIR.2 VS SHRI SHANTILAL JERAMBHAI MAHE SHWARI RAJKOT NEW VEGETABLE MARKET BHUJ PAN : ACXPM5653J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI LD BHARTI RESPONDENT BY: SHRI JC RANPURA O R D E R PER N.R.S. GANESAN, JM THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-IV, AHMEDABAD DATED 17-03-2009 AND PERTAINS TO ASSESSME NT YEAR 2001-02 CONFIRMING THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. SHRI LD BHARTI, THE LD.DR SUBMITTED THAT THE ASS ESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.9,96,650 INCLUDING THE ADDITIONAL INCOME OF RS.9,25,000. HOWEVER, THE ASSESSMENT WAS COMPLETED DETERMINING THE TOTAL INCOME AT RS.10,06,850. ACCORDING TO THE LD.DR THE ASSESSEE DISCLOSED THE U NDISCLOSED INCOME ONLY AFTER THE SEARCH OPERATION. THEREFORE, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. REFERRING TO THE ASSESSMENT ORDER, THE LD.DR SUBMITTED THAT BUT FOR THE SEARCH OPERATION THE ASSESSEE COULD NOT HAVE DI SCLOSED THE UNDISCLOSED INCOME OF RS.9,25,000, THEREFORE, TO THAT EXTENT THERE WAS CO NCEALMENT OF INCOME. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY LEVIED THE PENALTY. ACCORDING TO THE LD.DR, THE CIT(A) IS NOT JUSTIFIED IN CANCELLING THE PENALTY. 3. ON THE CONTRARY, SHRI JC RANPURA, THE LD REPRESE NTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SUBMITTED THE RETUR N VOLUNTARILY DISCLOSING AN UNDISCLOSED INCOME OF RS.9,25,000. SINCE THE INCOM E WAS DISCLOSED CONSEQUENT UPON A SEARCH THE ASSESSEE IS ENTITLED FOR IMMUNITY UNDE R EXPLANATION 5 TO SECTION 271(1)(C) OF THE I.T. ACT. THE LD.REPRESENTATIVE PLACED HIS RELIANCE ON THE JUDGMENT OF THE MADRAS ITA NO.68/RJT/2009 2 HIGH COURT IN THE CASE OF CIT VS SDV CHANDRU 266 IT R 175 (MAD). THE LD.REPRESENTATIVE HAS ALSO PLACED RELIANCE ON THE J UDGMENT FO THE CALCUTTA HIGH COURT IN THE CASE OF CIT VS SURESH CHAND BANSAL 223 CTR (CAL ) 128 AND THE JUDGMENT OF THE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS KANHAIYA LAL 299 ITR 19 (RAJ). THE LD.REPRESENTATIVE HAS ALSO PLACED RELIANCE ON VARIO US DECISIONS OF THIS TRIBUNAL. ACCORDING TO THE LD.REPRESENTATIVE, SINCE THE ASSES SEE DISCLOSED THE INCOME IN THE RETURN OF INCOME VOLUNTARILY FILED BY IT, THERE IS NO QUES TION OF ANY CONCEALMENT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE DISC LOSED AN UNDISCLOSED INCOME OF RS.9,25,000. THE INCOME WAS DISCLOSED CONSEQUENT U PON THE SEARCH OPERATION CONDUCTED BY THE DEPARTMENT. THE CONTENTION OF THE REVENUE IS THAT BUT FOR THE SEARCH OPERATION THE ASSESSEE COULD NOT HAVE DISCLOSED THE INCOME OF RS.9,25,000. THE FACT REMAINS THAT THE ASSESSEE DISCLOSED THE INCOME IN T HE RETURN FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. ONCE THE ASSESSEE DISCLOSED T HE INCOME IN RESPONSE TO NOTICE ISSUED U/S 153A ALL PENDING PROCEEDINGS SHALL STAND ABATED AND THEREFORE, THE INCOME HAS TO BE COMPUTED ONLY ON THE BASIS OF RETURN FILE D BY THE ASSESSEE U/S 153A OF THE I.T. ACT. SINCE, ADMITTEDLY, THE ASSESSEE HAS DISCLOSED UNDISCLOSED INCOME OF RS.9,25,000 IN THE RETURN OF INCOME, IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED ANY PART OF THE INCOME. THEREFORE, IN OUR OPINION, THE CIT(A) HAS RIGHTLY DELETED THE ADDITION. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27-05-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 27 TH MAY, 2011 PK/- ITA NO.68/RJT/2009 3 COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-IV, AHMEDABAD 4. THE CIT, CENTAL-II, AHMEDABAD 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT