S.N.Vadivelu, CHENNAI V. ACIT, CHENNAI

MA 78/CHNY/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5562 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained investment
• Section: 271(1)(c); 153A; 132; 139

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 78/CHNY/2017 [IN I.T.A. NO.1112/CHNY/2015] ASSESSMENT YEAR: 2009-10 SHRI S.N. VADIVELU, NO. 4, VEDAVALLI STREET, SALIGRAMAM, CHENNAI 600 093. [PAN:AABPV6001H] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, MEDIA CIRCLE II, CHENNAI. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT / DATE OF HEARING : 26.04.2019 /DATE OF PRONOUNCEMENT : 21.05.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO RECALL THE ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO. 1112/CHNY/2015 DATED 23.09.2016 RELEVANT TO THE ASSESSMENT 2009-10 BY STATING THAT THE LEVY OF PENALTY SHOULD NOT HAVE BEEN CONSTRUED AS AUTOMATIC AND OUGHT TO HAVE BEEN APPRECIATED THAT THE BONAFIDE EXPLANATION OFFERED BY THE ASSESSEE IN LEVYING PENALTY ON THE ISSUE OF ASSESSMENT OF SOURCE FOR THE INVESTMENT IN THE PROPERTY AND PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL FOR FRESH ADJUDICATION ON MERITS. M.P. NO.78/CHNY/17 2 2. PER CONTRA, THE LD. DR HAS SUBMITTED THAT THERE IS NO MISTAKE APPARENT IN THE ORDER PASSED BY THE TRIBUNAL AND REVIEW OF THE ORDER OF THE TRIBUNAL IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE ORDER PASSED BY THE TRIBUNAL. THE OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER: 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS NOT VOLUNTARILY ADMITTED HIS TRUE PARTICULARS OF INCOME. EVEN, THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME UNDER SECTION 139 OF THE ACT. ONLY AFTER CONDUCT OF SEARCH OPERATION UNDER SECTION 132 OF THE ACT AND AFTER ISSUING NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE HAS COME FORWARD TO FILE HIS BELATED RETURN OF INCOME. AFTER SCRUTINY OF SEIZED MATERIALS AND VERIFICATION OF PARTICULARS FILED BY THE ASSESSEE, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS MADE UNDISCLOSED INVESTMENTS. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS SIMPLY STATED THAT OUT OF THE THREE ADDITIONS MADE, THE ASSESSEE HAS AGREED FOR THE ADDITION MADE ON UNEXPLAINED INVESTMENT TO THE TUNE OF .60 LAKHS TO HAVE AMICABLY SETTLED WITH THE DEPARTMENT. THE ASSESSEE DID NOT HAVE ANY CREDIBLE AND COGENT EXPLANATION FOR NOT OFFERING THE INCOME IN THE FORM OF UNEXPLAINED INVESTMENT IN PROPERTY BEFORE THE SEARCH OPERATION; HE WAS BOUND TO AGREE FOR THE QUANTUM ADDITION AND NOT PREFERRED ANY APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AGAINST VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER. JUST BECAUSE THE ASSESSEE HAS AGREED FOR ADDITION OF UNDISCLOSED INVESTMENT IN PROPERTY, HE CANNOT BE ESCAPED FROM LEVY OF PENALTY. FACTUALLY, THE ASSESSEE HAS NO VALID REASON FOR CONCEALMENT AND FURNISHING INACCURATE PARTICULARS IN THE BELATED RETURN FILED AGAINST THE NOTICE UNDER SECTION 153A OF THE ACT. IN THIS CASE, NEITHER THE ASSESSEE FILED HIS RETURN BEFORE DUE DATE OF FILING OF RETURN OF INCOME NOR FURNISHED COMPLETE PARTICULARS OF INCOME OR EVEN AFTER SERVICE OF NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE HAS FURNISHED COMPLETE AND TRUE PARTICULARS OF INCOME. FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE WOULD NOT HAVE DETECTED AT ALL IF THE SEARCH OPERATION HAD NOT BEEN CONDUCTED BY THE DEPARTMENT AND THE CASE NOT TAKEN UP SUBSEQUENTLY FOR FURTHER SCRUTINY. SINCE THE ASSESSEE HAS NO VALID REASON FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS, PENALTY UNDER SECTION 271(1)(C) OF THE ACT CLEARLY ATTRACTS IN THIS CASE. THEREFORE, WE ARE OF THE OPINION THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER WAS RIGHTLY CONFIRMED BY THE LD. CIT(A) AND WE FIND NO REASON TO INTERFERE WITH THE ORDERS OF THE LD. CIT(A). THUS, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. M.P. NO.78/CHNY/17 3 4. IN THIS CASE, THE ASSESSEE DID NOT OFFER ANY CREDIBLE AND COGENT EXPLANATION FOR NOT OFFERING THE INCOME IN THE FORM OF UNEXPLAINED INVESTMENT IN PROPERTY PERTAINING TO PREVIOUS YEARS ENDING BEFORE THE SEARCH AND SUCH UNEXPLAINED INVESTMENT CAME INTO LIGHT ONLY DURING THE COURSE OF SEARCH OPERATION AND THUS, TANTAMOUNT TO CONCEALMENT OF PARTICULARS OF INCOME WITHIN THE MEANING OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. MOREOVER, THE ASSESSEE HAD NO VALID REASON FOR CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS IN THE BELATED RETURN FILED AGAINST THE NOTICE UNDER SECTION 153A OF THE ACT. IN THE ABSENCE, OF ANY VALID REASON FOR NOT FILING THE RETURN OF INCOME WITHIN THE TIME STIPULATED UNDER SECTION 139 OF THE ACT OR DECLARING COMPLETE PARTICULARS OF INCOME IN THE BELATED RETURN FILED BY THE ASSESSEE, THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT WAS SUSTAINED BY THE TRIBUNAL. WHILE ADJUDICATING THE APPEAL, THE TRIBUNAL HAS CONSIDERED ALL THE GROUNDS RELATING THE EFFECTIVE GROUND RAISED BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE FIND NO MERIT IN THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. 5. IN THE RESULT, THE MP FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MAY, 2019 IN CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 21.05.2019 VM/- M.P. NO.78/CHNY/17 4 /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.