SHRI OM PRAKASH MODI, Jaipur V. DEPUTY COMMISSIONER OF INCOME TAX, Jaipur

SA 04/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3647 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Search and seizure; Document seized; Application of stay; Documents seized
• Section: 153A; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ S.A NO. 04/JP/2018 (ARISING OUT OF ITA NO. 196/JP/2018) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 SHRI OM PRAKASH MODI B-49, KESHAV PATH, SURAJ NAGAR (WEST) CIVIL LINES, JAIPUR. CUKE VS. THE DCIT, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACFPM 8683 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGRAWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/03/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 09/03/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS STAY APPLICATION THE ASSESSEE IS SE EKING STAY AGAINST THE OUTSTANDING DEMAND OF RS. 2.50 CRORES A RISING FROM THE PENALTY LEVIED U/S 271AAB OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2014-15. 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH ERE WAS A SEARCH AND SEIZURE ACTION U/S 132 IN THE CASE OF THE ASSES SEE AND DURING THE S.A. NO. 04/JP/2018 SHRI OM PRAKASH MODI VS. DCIT 2 COURSE OF SEARCH THE ASSESSEE HAS DISCLOSED INCOME OF RS. 12.5 CRORES IN THE STATEMENT MADE U/S 132(4) OF THE ACT. SUBSEQ UENTLY, THE ASSESSEE FILED HIS RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S 153A WHEREIN THE AMOUNT OF RS. 12.50 CRORES WAS OFFERED TO TAX ALONG WITH THE INTEREST. THE ASSESSEE PAID THE ENTIRE TAX AND INTEREST DUE ON THE SAID AMOUNT. HOWEVER, THERE WAS SOME DELAY IN FILIN G THE RETURN DUE TO NON SUPPLY OF SEIZED DOCUMENTS TO THE ASSESSEE AND CONSEQUENTLY THE AO HAS INITIATED THE PENALTY PROCEEDINGS U/S 271AAB AND LEVIED THE PENALTY @ 30% ON THE AMOUNT DISCLOSED/ SURRENDERED BY THE ASSESSEE. THUS, THE TOTAL PENALTY LEVIED BY THE AO IN THE CAS E OF THE ASSESSEE IS RS. 3.75 CRORES OUT OF WHICH THE ASSESSEE HAS ALREA DY PAID A SUM OF RS. 1.25 CRORES WHICH IS 33% OF THE TOTAL DEMAND. THE L D. AR HAS THUS CONTENDED THAT IN ANY CASE THE PENALTY IN THE CASE OF THE ASSESSEE SHOULD NOT HAVE BEEN LEVIED MORE 10% OF THE AMOUNT DISCLOSED BY THE ASSESSEE. HENCE, LD. AR HAS PLEADED FOR STAY OF THE BALANCE DEMAND OF RS 2.50 CRORES TILL DISPOSAL OF THE APPEAL OF THE ASSESSEE. 3. ON OTHER HAND, LD. DR HAS OBJECTED TO THE STAY OF THE DEMAND AND SUBMITTED THAT THE ASSESSEE DID NOT FILE THE R. O. WITHIN THE TIME PRESCRIBED AND THEREFORE THE AO HAS RIGHTLY IMPOSED THE PENALTY @ 30%. IN THIS CASE THE AO AS WELL AS LD. CIT(A) HAS GIVEN SUFFICIENT S.A. NO. 04/JP/2018 SHRI OM PRAKASH MODI VS. DCIT 3 OPPORTUNITY TO THE ASSESSEE FOR EXPLANATIONS AND TH EREFORE, THE ASSESSEE SHOULD PAY THE ENTIRE AMOUNT DUE TO ON ACC OUNT OF LEVY OF PENALTY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE SEARCH AND SEI ZURE ACTION U/S 132 WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 09.0 9.2013 AND THEREFORE THE PROVISIONS OF SECTION 271AAB ARE APPL ICABLE FOR PENALTY AS THE SEARCH HAS BEEN INITIATED AFTER ON 01.07.2012. AS PER SECTION 271AAB(1) THE AO MAY LEVY THE PENALTY @ 10% IF THE ASSESSEE DISCLOSED THE INCOME IN THE STATEMENT U/S 132(4) AN D ALSO PAID THE TAX TOGETHER WITH INTEREST IN RESPECT OF THE UNDISCLOSE D INCOME BY FURNISHING THE RETURN OF INCOME ON OR BEFORE SPECIF IC DATE. IN CASE OF FAILURE OF THE ASSESSEE NOT DISCLOSING THE INCOME U /S 132(4) OR NOT PAYEE THE TAX AND INTEREST IN TIME THE LEVY OF PENA LTY MAY BE HIGH PERCENTAGE. THOUGH THERE IS A DELAY IN THIS CASE IN FILING THE RETURN HOWEVER, THERE WAS NO DISPUTE THAT THE ASSESSEE PAI D THE TAX TOGETHER WITH INTEREST ON THE UNDISCLOSED INCOME. THE DISPUT E IS REGARDING THE DELAY IN FILING THE RETURN HAS TO BE CONSIDERED IN THE APPEAL FILED BY THE ASSESSEE. THEREFORE, AT THIS STAGE WHAT IS REQUIRED TO BE CONSIDERED IS A PRIMA FACIE CASE TO BE MADE OUT BY THE ASSESSEE. SI NCE, THE ASSESSEE S.A. NO. 04/JP/2018 SHRI OM PRAKASH MODI VS. DCIT 4 HAS ALREADY PAID 33% OF THE TOTAL DEMAND RAISED AS PENALTY U/S 271AAB THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE WHEN THE ONLY DISPUTE IN THE APPEAL IS REGARDING DELAY IN FILING THE RETURN AND FURTHER WHETHER AT ALL PENALTY U/S 271 AAB IS LEVIABLE IN T HE CASE OF THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS PENDING DIS POSAL AND NOW FIXED FOR HEARING ON 05.04.2018. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS MADE OUT A PRIMA FACIE GOOD C ASE FOR GRANT OF STAY OF THE BALANCE DEMAND OF RS. 2.50 CRORES. HENC E, THE BALANCE DEMAND OF RS. 2.50 CRORES IS STAYED FOR A PERIOD 18 0 DAYS OR TILL THE DISPOSAL OF THE APPEAL OF THE ASSESSEE WHICHEVER IS EARLIER. THE APPEAL OF THE ASSESSEE IS FIXED FOR HEARING ON 05.04.2018 WHICH HAS ALREADY BEEN NOTED BY THE PARTIES THEREFORE, NO SEPARATE NO TICE TO BE ISSUED IN THIS REGARD. WE MAKE IT CLEAR THAT IN CASE THE ASSE SSEE SEEKS UNNECESSARY ADJOURNMENT, THE STAY GRANTED BY US WOU LD STAND VACATED. IN THE RESULT, THE STAY APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/03/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09/03/2018. * SANTOSH. S.A. NO. 04/JP/2018 SHRI OM PRAKASH MODI VS. DCIT 5 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI OM PRAKASH MODI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CENTRAL CIRCLE-2, JAIPUR . 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 {S.A. NO. 04/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR