Shri Anil Agarwal, Itarsi V. The ACIT, Bhopal

ITSSA 96/IND/2009

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8793 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2010
• Assessment Year: misc
• Appeal Filed On: 10-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : ABBPA9214G I.T(SS).A.NOS. 96 /IND/20 09. BLOCK PERIOD : 1.4.1996 TO 23.10.2002 SHRI ANIL AGARWAL, ACIT, BHOPAL. VS 1 (1), BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHABYA, C. A. RESPONDENT BY : SHRI KESHAVE SAXENA, CIT DR DATE OF HEARING : 03 .0 9 .2012 DATE OF PRONOUNCEMENT : 05 . 0 9 .201 2 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, BHOPAL, DATED 30.04.2009 FOR THE BLOC K PERIOD 01.04.1996 TO 23.10.2002, IN THE MATTER OF IMPOSITI ON OF PENALTY U/S 158BFA(2) OF THE INCOME-TAX ACT, 1961. -: 2: - 2 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THE FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH WAS CONDUCTED AT THE RESIDENTIAL HOUSE OF THE ASSESSEE, HIS FATHER SHRI RAM NARAYAN AGARWAL, ALONG WITH SEARCH AT BUSI NESS PREMISES OF THE GROUP CONCERNS. ONE OF THE CONCERNS WAS M/S. NATHURAM SHRINARAYAN, ITARSI CARRYING ON BUSINESS O F TRADING IS AGRICULTURE PRODUCE. THE ASSESSEE IS A PARTNER O F THAT CONCERN ALONGWITH HIS FOUR SONS ALL HAVING EQUAL SH ARE OF 20 %. THE ASSESSEE FILED HIS RETURN FOR THE BLOCK PERI OD DISCLOSING TOTAL INCOME OF RS. 65,67,393/- WHICH INCLUDED UNDI SCLOSED INCOME OF RS. 16,00,000/-. THE ASSESSEE PAID TAX ON THE BASIS OF RETURN BEFORE FILING THE RETURN FOR BLOCK PERIOD . THE ASSESSEES FATHER SHRI RAM NARAYAN AGARWAL HAS ALSO FILED RETURN FOR BLOCK PERIOD DISCLOSING TOTAL INCOME OF RS. 75,69,814/- WHICH INCLUDED UNDISCLOSED INCOME OF RS . 11,36,116/-. HE ALSO INCLUDED JEWELLERY WHICH WAS S EIZED FROM THE POSSESSION OF VARIOUS FAMILY MEMBERS INCLUDING THE WIFE OF THE ASSESSEE SMT. BOBBY DEVI AGARWAL OF RS. 2,53,82 4/-. 3. THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR THE BLOCK PERIOD AT RS. 65.67 LAKHS, WHICH INCLUDED UND ISCLOSED -: 3: - 3 INCOME OF RS. 16 LAKHS. THE ASSESSING OFFICER ASSES SED UNDISCLOSED INCOME AT RS. 21.97 LAKHS. 4. WITH REGARD TO THE ADDITIONS SO MADE, THE ASSESSING OFFICER LEVIED PENALTY OF RS. 3,71,444/- AND THE SA ME WAS CONFIRMED BY THE LD.CIT(A). HOWEVER, BEFORE US THE LD. AUTHORIZED REPRESENTATIVE HAS ONLY PRESSED THE PEN ALTY LEVIED IN RESPECT OF ADDITION OF RS. 2,38,472/- SUSTAINED ON ACCOUNT OF JEWELLERY FOUND IN POSSESSION OF THE WIFE OF THE ASSESSEE, WHO FAILED TO DISCLOSE THE JEWELLERY FOUND IN HER P OSSESSION. CONTENTION OF LD. AUTHORIZED REPRESENTATIVE WAS TH AT THE ENTIRE SEIZED JEWELLERY (605.100 GMS.) WAS DISCLOSE D IN THE RETURN OF SHRI R. N. AGARWAL. OUR ATTENTION WAS ALS O INVITED TO BLOCK ASSESSMENT ORDER OF SHRI R. N. AGARWAL, PAGE 3 TO 42 OF P. B. OUR ATTENTION WAS ALSO INVITED TO THE ORDER I N QUANTUM APPEAL PAPER BOOK P.B. PAGE 18 & 21. 5. IN VIEW OF THE ABOVE, IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATIVE THAT THE ASSESSING OFFIC ER WAS NOT JUSTIFIED IN LEVYING PENALTY WITH RESPECT TO THE GO LD JEWELLERY FOUND IN THE POSSESSION OF WIFE OF THE ASSESSEE, WH ICH HAVE ALREADY BEEN DISCUSSED IN THE HANDS OF SHRI R. N. A GARWAL. -: 4: - 4 6. ON THE OTHER HAND, THE LD. CIT DR RELIED ON THE ORD ER OF LOWER AUTHORITIES AND SUBMITTED THAT SINCE JEWEL LERY WAS IN THE POSSESSION OF THE WIFE OF THE ASSESSEE, THE ASS ESSING OFFICER WAS PERFECTLY JUSTIFIED IN LEVYING PENALTY WITH RESPECT TO ADDITIONS MADE ON ACCOUNT OF SUCH JEWELLERY. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT DURING THE COURSE OF SEARCH, JEWEL LERY WAS FOUND IN THE POSSESSION OF WIFE OF THE ASSESSEE. HO WEVER, SHRI R. N. AGARWAL, HEAD OF THE FAMILY SURRENDERED ALL T HESE JEWELLERIES SEIZED FROM POSSESSION OF VARIOUS FAMIL Y MEMBERS INCLUDING WIFE OF ASSESSEE SMT. BOBBY AGARWAL, IN H IS RETURN OF INCOME AND ADDITION WAS ALSO MADE WITH RESPECT TO T HE SAME. MERELY BECAUSE ADDITION WAS ALSO MADE IN THE HANDS OF THE ASSESSEE, NO PENALTY IS TO BE IMPOSED IN RESPECT OF UNEXPLAINED JEWELLERY WHICH HAVE ALREADY BEEN OFFER ED IN THE HANDS OF HEAD OF THE FAMILY SHRI R. N. AGARWAL. WE HAD ALSO GONE THROUGH THE SEIZURE MEMO AND THE STATEMENTS SH OWING ORNAMENTS FOUND AND SEIZED, WHICH, INDICATE THAT JE WELLERY HAS BEEN OFFERED IN THE HANDS OF SHRI R. N. AGARWAL . THUS, THERE IS NO MERIT FOR IMPOSITION OF PENALTY ON ASSE SSEE MERELY -: 5: - 5 BECAUSE IT WAS FOUND IN POSSESSION OF WIFE OF ASSES SEE. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO D ELETE THE PENALTY IMPOSED IN RESPECT OF JEWELLERY OF RS. 2,38 ,472/-. WHICH WAS SUSTAINED BY THE LD.CIT(A) IN HIS ORDER. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED IN PART. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 05 TH SEPTEMBER, 2012. SD/ - SD/ - ( JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 05 TH SEPTEMBER, 2012. CPU* 459