JUGAL KISHORE MAHESHWARI, Jaipur V. ACIT, Jaipur

MA 98/JPR/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5683 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY
• Assessee Lawyers: S R SHARMA
• Section: 153A; 131; 132; 15

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER M.A. NOS. 97 & 98/JP/2017 (ARISING OUT OF ITA NOS. 843 & 844/JP/2016) FU/KZKJ.K O'KZ @ ASSESSMENT YEAR: 2011-12 & 2012-13 JUGAL KISHORE MAHESHWARI, B-79, RAJENDRA MARG, BAPU NAGAR, JAIPUR. CUKE VS. A.C.I.T., CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABAPK 0309 H VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.R. SHARMA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/01/2018 MN?KKS'K.KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 16/01/2018 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED BOTH THE MISC. APPLICATIONS ON 30/05/2017 AND 31/05/2017 RESPECTIVELY AGAINST THE ORDER OF TH E ITAT, JAIPUR BENCH, JAIPUR DATED 21/02/2017 PASSED IN ITA NO. 843 & 844 /JP/2016 FOR THE ASSESSMENT YEAR 2011-12 & 2013-13. 2. M.A. NO. 97/JP/2017 IN THIS MISC. APPLICATION, THE ASSESSEE HAS SUBMITT ED AS UNDER: M.A. NO. 97 & 98/JP/2017 JUGAL KISHORE MAHESHWARI VS ACIT 2 THE ASSESSEE FILED ORIGINAL RETURN ON 28-09-2011 DE CLARING TOTAL INCOME OF RS. 6,44,010/- AND FURTHER IN RESPONSE TO NOTICE U/S 15 3C R/W SECTION 153A THE ASSESSEE FILED RETURN OF INCOME ON 27-11-2012 DECLA RING THE TOTAL INCOME OF RS. 6,44,010/-. A SEARCH WAS CARRIED OUT ON 29-06-2011 AT BIRANI SA FE DEPOSIT VAULTS P. LTD. JAIPUR AND IN COURSE OF SEARCH SOME LOCKERS HELD IN SOME NAMES WERE CONSIDERED AS SUSPICIOUS AND SO SEARCH OF SUCH LOCKERS WERE AL SO MADE. A LOCKER NO. L-1084 SITUATED THERE IN THE NAME OF SHRI KAILASH SHARMA W AS ALSO SO SEARCHED. SHRI KAILASH SHARMA WAS AN EMPLOYEE OF ASSESSEE. IN THE LOCKER SOME CASH, JEWELLERY, VALUABLES AND DOCUMENTS WERE FOUND AND ASSESSEE OWN ED THEM AS THE SAME ARE BELONGING TO HIM. THE ASSESSEE BEFORE DDIT (INV.) - III, JAIPUR ON BEING SUMMONED U/S 131 OF I. T. ACT, 1961 ADMITTED IN STATEMENT RE CORDED THAT THE SAID CASH, JEWELLERY, VALUABLE ETC. FOUND FROM THE SAID LOCKER BELONGING TO HIM AND ACQUIRED OUT OF HIS UNDISCLOSED INCOME. THE ASSESSEE THEREUP ON IN ORIGINAL RETURN INCLUDED SAID UNDISCLOSED INCOME OF RS. 4,61,174/- SO ADMITT ED IN STATEMENT U/S 131 PERTAINING TO THIS YEAR AND AGAIN DECLARED SAME INC OME IN RETURN FILED IN COMPLIANCE TO NOTICE U/S 153C. THUS ON THE FACTS OF THE CASE IT IS EVIDENT THAT NO SEARCH U/S 132 OF THE I. T. ACT. 1961 WAS CARRIED O UT IN CASE OF ASSESSEE. THE LD. A.O. COMPLETED ASSESSMENT U/S 153C R.W.S. 143 (3) O F RETURNED INCOME OF RS. 6,44,010/- VIDE ASSESSMENT ORDER DATED 24-3-2014 AN D INITIATED PENALTY PROCEEDINGS U/S 271 AAA. THE LD. A.O. WHILE COMPLETING PROCEEDINGS U/S 271AA A OF I.T. ACT, 1961 HELD THAT THE SAID UNDISCLOSED INCOME OF RS. 4,61,174/- IS UN DISCLOSED INCOME WITHIN THE DEFINITION OF SECTION 271 AAA AND AS ASSESSEE HAS N OT SPECIFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED NOR SUBSTANTIATE D THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED IN HIS STATEMENT AND THEREF ORE HE IS LIABLE FOR PENALTY U/S 271 AAA OF THE I. T. ACT ON SUCH DISCLOSURE IN THE RETURN THOUGH IT IS PART OF M.A. NO. 97 & 98/JP/2017 JUGAL KISHORE MAHESHWARI VS ACIT 3 RETURNED INCOME AND LEVIED A PENALTY OF RS. 46,120/ - VIDE PENALTY ORDER DATED 18-09-2014. THE ASSESSEE FILED APPEAL AGAINST THE SAID PENALTY ORDER BEFORE CIT (A) - 4, JAIPUR WHO DECIDED THE SAME VIDE ORDER DATED 25-07- 2016 IN APPEAL NO. 575/2014-15 AND HELD THAT BUT ON CAREFUL PERUSAL OF ABOVE SWORN STATEMENT, IT IS SEEN THAT ASSESSEE HAS U/S 131 OF THE ACT MERELY MADE DISCLOSURE OF RS. 4,61,174/- (3,11,174 + 1,50,000) ONLY WITHOUT SPECIFYING THE MANNER OF DER IVING SUCH INCOME AND SUBSTANTIATING THE INCOME DERIVED T HEREOF. MEANING THEREBY, ASSESSEE HAS FAILED TO SATISFY ALL THE THREE CONDIT IONS OF SUB-SECTION 2 OF SECTION 271 AAA OF THE ACT, ACCORDINGLY ASSESSEE IS NOT ENT ITLED TO IMMUNITY UNDER SAID PROVISION FOR LEVY OF PENALTY U/S 271 AAA OF THE AC T. THE ASSESSEE FILED APPEAL AGAINST THE SAID APPEAL O RDER PASSED BY CIT (A) - 4, JAIPUR BEFORE THE HON'BLE BENCH WHICH HON'BLE BENCH DECIDED VIDE APPEAL ORDER DATED 21-02-2017 (ITA NO. 843/JP/16) AND IN APPEAL ORDER IN PARA 2.5 ON PAGE - 9 HELD AS UNDER: - ON PERUSAL OF THE PROVISIONS OF SECTION 271 AAA OF THE ACT, IT IS NOTICED THAT PENALTY CANNOT BE LEVIED WHEN THE ASSESSEE FULFILLS THE FOLLOWING THREE CONDITIONS. (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT U NDER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MA NNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCL OSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. IN THIS CASE, IT IS NOTICED THAT THERE WAS NO STATE MENT RECORDED U/S 132 (4) OF THE ACT AND THE MANNER IN WHICH INCOME WAS DERIVED WAS ALSO NOT SPECIFIED. THEREFORE, THE ASSESSEE FAILED TO SATISFY ALL NECES SARY CONDITIONS AS STIPULATED IN THE SECTION 271 AAA OF THE ACT. HENCE, LOOKING I NTO THE PRESENT FACTS AND M.A. NO. 97 & 98/JP/2017 JUGAL KISHORE MAHESHWARI VS ACIT 4 CIRCUMSTANCES OF THE CASE, I FIND NO REASON TO INTE RFERE WITH THE ORDER OF THE LD. CIT (A) WHICH IS SUSTAINED. THUS SOLITARY GROUN D RAISED BY THE ASSESSEE IN ITA NO. 843/JP/2016 IS DISMISSED. IT IS SUBMITTED THAT IN CASE OF ASSESSEE HIMSELF TH ERE WAS NO SEARCH U/S 132 OF I. T. ACT, 1961 AND ASSESSMENT WAS COMPLETED U/S 153C R.W.S. 143 (3) OF THE I. T. ACT, 1961 AND THEREFORE, PROVISIONS OF SECTION 271 AAA ARE INAPPLICABLE TO ASSESSEE. THERE BEING NO SEARCH IN CASE OF ASSESSEE AND SO THERE COULD NOT HAVE BEEN ANY STATEMENT U/S 132 (4) AND THEREFORE SATISF YING THE CONDITION OF ADMISSION OF UNDISCLOSED INCOME IN A STATEMENT U/S 132 (4) AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED OR SUB STANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED DO NOT ARI SE AT ALL. THE ASSESSEE IN HIS STATEMENT U/S 131 BEFORE DDIT ADMITTED UNDISCLOSED INCOME AND INCLUDED THE SAME IN ORIGINAL RETURN FILED PAYING THE TAX TOGETH ER WITH INTEREST MUCH BEFORE ISSUE OF NOTICE U/S 153C AND ALSO INCLUDED THE SAME INCOME IN RETURN FILED U/S 153C. IT IS THUS SUBMITTED THAT PROVISIONS OF SECTI ON 271 AAA ARE NOT AT ALL APPLICABLE AND PENALTY LEVIED ON ASSESSEE U/S 271 A AA AND UPHELD BY HON'BLE TRIBUNAL IS NOT CORRECT IN LAW. THEREFORE, IT IS HUMBLY PRAYED TO ADMIT THE ABOVE M ISCELLANEOUS APPLICATION IN VIEW OF ABOVE SUBMISSION OF THE FACTS OF CASE AS IT APPEARS THAT THERE IS A MISTAKE OF LAW IN THE APPELLATE ORDER PASSED BY HON 'BLE BENCH. IT IS ALSO SUBMITTED THAT NO MISCELLANEOUS APPLICAT ION U/S 254 (2) WAS FILED EARLIER BEFORE THE HON'BLE BENCH AGAINST THE SAME APPEAL ORDER. 3. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY OPPO SED THE PRAYER OF THE ASSESSEE. 4. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . AFTER CONSIDERING THE PLEA OF THE ASSESSEE, THE PENALTY U /S 271AAA OF THE ACT M.A. NO. 97 & 98/JP/2017 JUGAL KISHORE MAHESHWARI VS ACIT 5 CAN BE LEVIED ONLY ON THE ASSESSEE WHERE THE SEARCH HAS BEEN CONDUCTED AND STATEMENT U/S 132(4) OF THE ACT HAS BEEN RECORD ED. THE ASSESSEE FAILS TO COMPLY WITH THE CONDITIONS AS MENTIONED IN THE PROVISO. IN THIS CASE, THE PROCEEDINGS U/S 153A OF THE ACT WERE DROPP ED AND THE ASSESSMENT WAS COMPLETED U/S 153C READ WITH SECTION 1 43(3) OF THE ACT. IN VIEW THEREOF, THE ORDER IS RECALLED AND THE APPEA L IS RESTORED TO BE HEARD AFRESH. 5. M.A. NO. 98/JP/2017. SINCE, THE FACTS OF THE CASE ARE SIMILAR AS WERE IN M.A. NO. 97/JP/2017. THE LD AR OF THE ASSESSEE HAS TAKEN SIM ILAR IDENTICAL SUBMISSIONS AND THEREFORE, THE FINDINGS OF M.A. NO. 97/JP/2017 SHALL APPLY MUTATIS MUTANDIS IN THIS M.A. ALSO. 6. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF TH E ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ TK;IQJ TK;IQJ TK;IQJ @ @@ @ JAIPUR FNUKAD @ DATED:- 16 TH JANUARY, 2018 M.A. NO. 97 & 98/JP/2017 JUGAL KISHORE MAHESHWARI VS ACIT 6 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI JUGAL KISHORE MAHESHWARI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CENTRAL CIRCLE-3, JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 97 & 98/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR