Shri Harshadray M.Shah, Dahod V. The Dy.CIT.,Panchmahal Circle, Godhra

ITSSA 88/AHD/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0653 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER ITA NO . 88 / A HD/ 201 3 A. Y .2008 - 09 SHRI HARSHADRAY M. SHAH 1, AMRUTWADI, YAMUNA NIWAS, STATION ROAD, DAHOD. PAN: AHN PS 3380D VS DY.CIT, PANCHMAHAL CIRCLE, GODHRA. (APPELLANT) (RESPONDENT) REVENUE BY : S HRI D.C. MISHRA, SR. D.R. , ASSESSEE(S) BY : SHRI SAKAR SHARMA , A.R. / DATE OF HEARING : 08 / 0 5 /201 5 / DATE OF PRONOUNCEMENT: 14 / 0 5 /201 5 / O R D E R PER SHRI S.S. GODARA , JUDICIAL MEMBER TH IS ASSESSEE S APPEAL FOR A.Y. 200 5 - 0 6 , ARISE S FROM ORDER OF THE CIT(A) - I, BARODA DATED 19.11.2012 PASSED I N CASE NO . CAB/I/89/12 - 13 AFFIRMING THE ASSESSING OFFICER S ACTION IMPOSING PENALTY OF RS.23,94,414/ - ON ADDITIONAL INCOME OF RS.79,63,755/ - DISCLOSED IN THE RETURN FURNISHED U/S.153A , IN PROCEEDINGS U/S. 271(1) (C) OF THE INCOME TAX ACT IN SHORT THE ACT . 2. FACTS OF THE CASE ARE IN A NARROW COMPASS. THE ASSESSEE DERIVES SALARY FROM SHRI YAMUNA PULSES AND OTHER GROUP CONCERNS. THE DEPARTMENT CONDUCTED A SEARCH ON 19.9.2006 IN THE CASE OF APPELLANT AS WELL AS TH E AFORESAID GROUP CASES. THIS CULMINATED IN ISSUANCE OF SECTION 153A NOTICE. THE ASSESSEE FILED ITS RETURN IN RESPONSE THERETO ADMITTING ITA NO. 88 /AHD/201 3 SHRI HARSHADRAY M. SHAH FOR A.Y. 200 5 - 0 6 - 2 - INCOME OF RS.81,18,125/ - AS AGAINST RS.1,54,370/ - RETURN ED IN THE ONE SUBMITTED U/S.139(1). THE ASSESSING OFFICER FRAME D ASSESSMENT ON 22.12.2008 COMPUTING HIS TOTAL INCOME OF RS.87,17,220/ - . HE ALSO INITIATED PENALTY PROCEEDINGS ALLEGING THE ASSESSEE TO HAVE CONCEALED AND FURNISHED INACCURATE PARTICULARS OF INCOME IN THE ABOVE CIRCUMSTANCES. THE ASSESSEE PREFERRED AN APPE AL. THE CIT(A) IN HIS ORDER DATED 30.9.2009 PARTLY ACCEPTED HIS APPEAL. THE ASSESSEE S INCOME WAS ACCORDINGLY RE - COMPUTED TO RS. 81,35,750/ - IN CONSEQUENTIAL PROCEEDINGS. IN THIS MANNER, QUANTUM PROCEEDINGS ATTAIN FINALITY. 3. NOW WE COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSEE STRONGLY DENIED TO HAVE EITHER CONCEALED OR FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER HELD IN PENALTY ORDER DATED 31.3.2011 HOLDING THAT THE ASSESSEE S ACT OF OFFERING ADDITIONAL INCOME IN SECTION 153A RETURN AMOUNTING TO RS.79,63,755/ - AND ADDITION OF RS.17,625/ - BEING INTEREST ON NSCS WAS A CASE OF CONCEALMENT OF INCOME. HE OBSERVED THAT THE ASSESSEE HAD DECLARED HIS ADDITIONAL INCOME ONLY DUE TO SEARCH CONDUCTED . A ND THE SAME COULD NOT BE HELD AS A VOLUNTARY DISCLOSURE. THE CIT(A) IN HIS LOWER APPELLATE ORDER AFFIRMS THE ASSESSING OFFICER S FINDINGS. THEREFORE, THE ASSESSEE IS IN APPEAL. 4. WE HAVE HEARD BOTH SIDES AND PERUSED THE CASE FILE. THERE IS NO DISPUTE ON FACTS AND FIGURES. THE ASSESSEE S INCOME IN SECTION 139(1) RETURN READS RS.1,54,370/ - . HE INCREASED THE SAME TO RS.81,18,125/ - IN THE RETURN FILED POST 153A NOTICE. THE SAME ALSO RESULTED IN ADDITION OF RS.17,625/ - BEING MADE IN THE FINAL CONSEQUENTIAL ORDER (SUPRA). THIS SUM HAS ARISEN FROM NATIONAL SAVINGS CERTIFICATE INTEREST . A PART OF THIS ITA NO. 88 /AHD/201 3 SHRI HARSHADRAY M. SHAH FOR A.Y. 200 5 - 0 6 - 3 - INTEREST SUM WAS ALREADY DECLARED IN BOTH RETURNS FILED EARLIER . THEREFORE, THE SAME ONLY APPEARS TO BE A COMPUTATION ERROR AND NOT CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. SO FAR AS THE REVENUE STAND THAT THE ADDITIONAL INCOME OF RS.79,63,755/ - OFFERED POST SEARCH RETURN AMOUNTS TO CONCEALMENT IS CONCERNED, THE HON BLE JURISDICTIONAL HIGH COURT IN TAX APPEALS 1181 TO 1185 OF 2010 DECIDED ON 3.12.2014 IN CASE OF KIRIT DAYABHAI PATEL VS. ACIT HOLDS THAT A RETURN FILED IN RESPONSE TO A NOTICE U/S.153A IS TO BE CONSTRUED AS THE ONE U/S.139 . A ND A SECTION 271(1)(C) PENALTY IS TO BE LEVIED ONLY ON THE INCOME ASSESSED OVER AND ABOVE THE ONE RETURNED POST SEARCH. WE REITERATE THAT THE ASSESSEE HAS RETURNED HIS ADDITIONAL INCOME IN RESPONSE TO A SECTION 153A NOTICE. THEREFORE, THE PRESENT CASE IS SQUARELY COVERED BY A DECISION OF HON BLE JURISDICTIONAL HIGH COURT. WE DRAW SUPPORT THEREFROM AND HOLD THAT THE ASSESSEE S ACT OF DECLARING AD DITIONAL INCOME POST SEARCH DOES NOT AMOUNT TO AN ACT OF CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE IMPUGNED PENALTY OF RS.23,94,414/ - STANDS DELETED. 5. THE ASSESSEE S APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON THIS DA Y, THE 14 TH MAY , 201 5 AT AHMEDABAD. SD/ - SD/ - ( N.S. SAINI) ( S.S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14 / 0 5 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD ITA NO. 88 /AHD/201 3 SHRI HARSHADRAY M. SHAH FOR A.Y. 200 5 - 0 6 - 4 - 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD