Appeal details
Counselvise Citation
[2012] 124 COUNSELVISE.COM (IT) 7774 (ITAT-RAJKOT)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 1 month(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
20-01-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
03-01-2012
Assessment Year
2004-2005
Appeal Filed On
20-12-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA (JM) AND SHRI A. L. GEHL OT AM). ITSS NOS. 75, 76 & 77/RJT/2010 (ASSESSMENT YEARS 2004-05, 2005-06 & 2006-07) THE A.C.I.T., VS. SHRI LAKHABHAI M. JARIYA, CENTRAL CIRCLE-2, SHRI .RAVECHI KRUPA S TRT.NO.4, RAJKOT. AVENUE PARK, RAVAPAR ROAD, MORB I. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI R. N. PRASAD, D. R. ASSESSEE BY : SHRI J. C. RANPURA, C.A. DATE OF HEARING : 03-01-2012. DATE OF PRONOUNCEMENT : 20-01-2012. O R D E R. PER A. L. GEHLOT (A.M.) : THESE APPEALS BY THE REVENUE AGAINST THE APPELLATE ORDER OF COMMISSIONER OF INCOME TAX (APPE ALS)-IV, AHMEDABAD EACH DATED 04-10-2010 FOR ASSESSMENT YEARS 2004-05, 2005 -06 AND 2006-07 RESPECTIVELY.. 2. THE COMMON GROUND RAISED IN ALL THE THREE APPEAL S IS PERTAINING TO DELETION OF PENALTY OF RS.5,65,000/- IN CASE OF SHR I LAKHABHAI M. JARIYA FOR A.Y.2004-05. RS.5,10,000/- FOR A.Y.2005-06 AND RS.7 ,52,000/- FOR A.Y.2006-07 U/S.271(1)(C) OF THE ACT. IN THE GROUND OF APPEAL, IT IS ALSO STATED THAT THE FACTS OF THE CASE UNDER CONSIDERATION ARE DIFFERENT THAN THE FACTS OF THE CASE OF M/S. BALAJI MULTIFLEX P. LTD. IN IT(SS)A. NO.64 & 65/RJT/2009. SINCE COMMON GROUND RAISED BASED ON IDENTICAL SET OF FACTS THEREFORE, FOR THE SAKE OF CONVENIENCE, ALL THE THREE APPEALS DECIDED BY THIS COMMON ORDER. 3. BRIEF FACTS OF THESE CASE ARE THAT A SEARCH WAS CARRIED OUT IN CASE OF ASSESSEE ON 27-09-2006. DURING THE COURSE OF SEARC H, THE ASSESSEE ADMITTED CERTAIN ADDITIONAL INCOME RS.17,00,000/- FOR A.Y.20 04-05, RS.15,00,000/- FOR A.Y.2005- IT A 75, 76 & 77-RJT-2010 A.Y . 2004-5 TO 2006-07. 2 06 AND RS.23,00,000/- FOR A.Y.2006-07. THE SAID INC OME HAS BEEN DECLARED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.153A OF THE ACT. T HE AO LEVIED PENALTY U/S.271 (1) (C) RS.5,65,000/- FOR A.Y.2004-05, RS.5,10,000/- FOR A. Y.2005-06 AND RS.7,52,000/- FOR A.Y.2006-07. THE PENALTY LEVIED BY AO HAS BEEN CANC ELLED BY THE CIT(A) FOLLOWING THE CERTAIN DECISIONS INCLUDING THE DECISION OF RAJKOT BENCH IN THE CASE OF DCIT VS. M/S. BALAJI MULTIFLEX P. LTD. ORDER DATED 10-08-2010. 4. THE LD. D.R. SUBMITTED THAT THE FACT OF THE CASE UNDER CONSIDERATION IS DIFFERENT THAN THE FACT OF THE CASE OF M/S. BALAJI MULTIFLEX P. LTD. AS IN THE CASE OF M/S. BALAJI MULTIFLEX P. LTD., THERE WAS AD HOC DISCLOSURE WHER EAS IN THE CASE UNDER CONSIDERATION, THE ADDITION WAS MADE ON THE BASIS OF MATERIAL FOUN D DURING THE COURSE OF SEARCH. THE LD. D.R. IN SUPPORT OF HIS CONTENTION, RELIED UPON A JUDGMENT OF KERALA HIGH COURT IN THE CASE OF CIT VS. KESAVAN NAIR 287 ITR 276 AND IN THE CASE OF CIT VS. HANDLOOM EMPORIUM 282 ITR 431 (ALL.). THE DECISIONS CITED B Y THE LD. D.R. ARE IN RESPECT OF THE PROVISIONS RELATED TO EARLIER PERIOD THAN THE SEARC H ASSESSMENT U/S.153A. 5. THE LD. A.R. ON THE OTHER HAND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THIS ISSUE ALSO COVERED BY THE JUDGMENT OF CAL CUTTA HIGH COURT IN THE CASE OF CIT VS. SURESH CHAND BANSAL 329 ITR 330 (CAL.) WHEREIN AFTE R CONSIDERING THE PROVISION OF SECTION 153A, THE PENALTY U/S.271(!) (C) HAS BEEN C ANCELLED ON THE GROUND THAT THE CONCLUSION OF DISCLOSURE OF INCOME WAS BASED ON THE OFFER OF THE ASSESSEE AND NOT ON THE BASIS OF SEIZED MATERIAL FOUND. 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF PAR TIES, RECORD PERUSED AND GONE THROUGH DECISIONS CITED. WE FIND THAT THE DECISION CITED BY THE LD. D.R. ARE DISTINGUISHABLE ON THE FACTS AS IN THOSE DECISIONS, SECTION 153A OF THE ACT HAS NOT BEEN CONSIDERED. WE FIND THAT CIT(A) HAS RIGHTLY CANCEL LED THE PENALTY FOLLOWING THE VARIOUS DECISIONS OF ITAT INCLUDING DCIT VS. M/S. BALAJI MU LTIFLEX P. LTD. ORDER DATED 10-08-2010. WE ALSO NOTICED THAT THE ISSUE IS ALSO COVERED BY T HE JUDGMENT OF THE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SURESH CHAND BANSAL 32 9 ITR 330 (CAL.) FURTHER THIS ISSUE IS ALSO COVERED BY THE ORDER OF ITAT, RAJKOT BENCH IN THE CASE OF SHRI SHANTILAL JERAMBHAI MAHESHWARI, ITA NO.68/RJT/2009 ORDER DATE D 27-05-2011. THE RELEVANT FINDING OF THE ITAT IS REPRODUCED AS UNDER:- IT A 75, 76 & 77-RJT-2010 A.Y . 2004-5 TO 2006-07. 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSE SSEE DISCLOSED AN UNDISCLOSED INCOME OF RS,9,25,000. THE INCOME WAS DISCLOSED CO NSEQUENT UPON THE SEARCH OPERATION CONDUCTED BY THE DEPARTMENT, THE CONTENT ION 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 DI SCLOSED THE INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.153A OF THE ACT. ONCE THE ASSESSEE DISCLOSED THE INCOME IN RESPONSE TO NOTICE ISSUED U /S.153A ALL PENDING PROCEEDINGS SHALL STAND ABATED AND THEREFORE, THE I NCOME HAS TO BE COMPUTED ONLY ON THE BASIS OF RETURN FILED 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 ASSESS EE HAS CONCEALED ANY PART OF THE INCOME. THEREFORE, IN OUR OPINION, THE CIT(A) HAS RIGHTLY DELETED THE PENALTY. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LO WER AUTHORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 7. IN THE LIGHT OF THE ABOVE FACT, WE CONFIRM THE O RDER OF CIT(A). 8.. IN THE RESULT, THE APPEALS OF REVENUE ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20-01-2012. SD/- SD/- ( T. K. SHARMA ), ( A. L. GEHLOT ), JUDICIAL MEMBER. ACCOUNTANT MEMBER. RAJKOT. DATED: 20-01-2012. NVA/ COPY TO:- 1.THE ACIT, CENTRAL CIRCLE-2, RAJKOT.. 2 SHRI LAKHABHAI M. JARIYA, MORVI.. 3.THE C.I.T.(A)-II, RAJKOT. 4.THE C.I.T., RAJKOT. 5.THE D.R., ITAT, RAJKOT. TRUE COPY. BY ORDER, ASSTT. REGISTRAR, ITAT,RAJKOT.
