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

ITSSA 69/RJT/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8168 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 25-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JM SAHAY
• 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(SS)A. NO.69/RJT/2009 (ASSESSMENT YEAR 2005-06) ACIT, CENT.CIR.2 VS SHRI SHANTILAL JERAMBHAI MAHE SWARI RAJKOT NEW VEGETABLE MARKET, BHUJ PAN : ACXPM5653J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JM SAHAY 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 2005-06. 2. THE ASSESSEE FILED RETURN OF INCOME DECLARING IN COME OF RS. 21,41,890 INCLUDING UNDISCLOSED INCOME OF RS.20,55,000. ON T HE BASIS OF THE UNDISCLOSED INCOME DISCLOSED IN THE RETURN FILED U/S 153A, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 3. THE LD.DEPARTMENTAL REPRESENTATIVE VERY FAIRLY C ONCEDED THAT ON IDENTICAL SET OF FACTS THIS TRIBUNAL IN ASSESSEES OWN CASE F OR THE ASSESSMENT YEAR 2001- 02 HAS CONSIDERED THIS ISSUE ELABORATELY AND FOUND THAT SINCE THE ASSESSEE HAS DISCLOSED THE ADDITIONAL INCOME IN THE RETURN FILED CONSEQUENT TO NOTICE U/S 153A OF THE ACT THERE CANNOT BE ANY LEVY OF PENALTY. TH EREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE ISSUE IS COVERED IN FAVOUR O F THE ASSESSEE BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESS MENT YEAR 2001-02. 4. WE HAVE HEARD SHRI JC RANPURA, THE LEARNED REPRE SENTATIVE FOR THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE FOR T HE ASSESSEE, THE ASSESSEE ITA NO.69/RJT/2009 2 DISCLOSED THE ENTIRE INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 153A OF THE ACT AND NO ADDITION WAS MADE BY THE ASS ESSING OFFICER. THEREFORE, THERE IS NO QUESTION OF LEVY OF ANY PENALTY. ON ID ENTICAL SET OF FACTS, THIS TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02 CONFIRMED SIMILAR ORDER OF CIT(A). THE LD.REPRESENTATIVE FOR THE ASSESSEE FIL ED A COPY OF THE ORDER DATED 27-05-2011 PASSED BY THE TRIBUNAL IN ITA NO.68/RJT/ 2009. THE LD REPRESENTATIVE AGAIN SUBMITTED THAT ON IDENTICAL SET OF FACTS, THE KOLKATA BENCH B OF THE TRIBUNAL IN THE CASE OF DY.CIT VS AVINASH CH.GUPTA (2010) 6 ITR (TRIB) 173 (KOL) HAS DELETED THE PENALTY LEVIED BY LOWER AUTHORITIES ON IDENTICAL SET OF FACTS. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND THE LD.REPRESENTATIVE FOR THE ASSESSEE. ADMITTEDLY, TH ERE WAS A SEARCH IN THE PREMISES OF THE ASSESSEE AND THE ASSESSEE HAS FILED RETURN OF INCOME IN PURSUANCE TO NOTICE U/S 153A OF THE ACT. THE ASSES SING OFFICER ACCEPTED THE RETURN FILED BY ASSESSEE WITHOUT ANY FURTHER ADDITI ON. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HIMSELF HAS DISCLOSED UNDISCLOSED INCOME O F RS.20,55,000. THE FACT REMAINS THAT THE UNDISCLOSED INCOME IS DISCLOSED IN THE RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT. ONCE THE AS SESSEE HAS FILED THE RETURN OF INCOME CONSEQUENT TO THE NOTICE ISSUED U/S 153A OF THE ACT ALL PENDING PROCEEDINGS FOR THOSE ASSESSMENT YEARS SHALL STAND ABATED AND THEREFORE, THE INCOME HAS TO BE COMPUTED ONLY ON THE BASIS OF THE RETURN OF INCOME FILED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSUED U/S 153A OF T HE ACT. ADMITTEDLY, THE ASSESSEE HAS DISCLOSED THE UNDISCLOSED INCOME OF RS .20,55,000 IN THE RETURN OF INCOME FILED CONSEQUENT TO THE ISSUE OF NOTICE U/S 153A OF THE ACT, THEREFORE, IN OUR OPINION, THERE CANNOT BE ANY CONCEALMENT OF INC OME. ON IDENTICAL SET OF FACTS AS RIGHTLY SUBMITTED BY THE LD.DR AND THE LD. REPRESENTATIVE FOR THE ASSESSEE, THIS TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02 IN ITA NO.68/RJT/2009 ORDER DATED 27-05-2011 HAS CONFIRMED IDENTICAL ORDER OF THE CIT(A). A SIMILAR VIEW WAS ALSO TAKEN BY THE KOLKA TA BENCH B OF THE TRIBUNAL IN THE CASE OF DY.CIT VS AVINASH CH.GUPTA (SUPRA). IN VIEW OF THE ABOVE ITA NO.69/RJT/2009 3 DISCUSSION, IN OUR OPINION, THE CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER. WE HAVE NO REASON TO INTERF ERE WITH THE ORDER OF THE CIT(A). ACCORDINGLY THE SAME CONFIRMED. 6. THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03-06-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 03 RD JUNE, 2011 PK/- 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