DCIT, Dindigul v. Sedipoun, Palani

ITA 1100/CHNY/2015 | 2010-2011
Pronouncement Date: 07-10-2016 | Result: Dismissed

Appeal Details

RSA Number 110021714 RSA 2015
Assessee PAN AIIPS2319A
Bench Chennai
Appeal Number ITA 1100/CHNY/2015
Duration Of Justice 1 year(s) 4 month(s) 27 day(s)
Appellant DCIT, Dindigul
Respondent Sedipoun, Palani
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 07-10-2016
Assessment Year 2010-2011
Appeal Filed On 11-05-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI . . . .. ' #$ & '( BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH ACCOUNTANT MEMBER ./ ITA NO. 1100/MDS/2015 & C.O. NO.91/MDS/2015 (IN I.T.A. NO.1100/MDS/2015) * +* / ASSESSMENT YEAR : 2010-11 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-I PALANI ROAD KOTTAPATTI POST DINDIGUL-624 002. V. SMT. SEDIPOUN 188 ANNA NAGAR PALANI-624 601. DINDIGUL DISTRICT. PAN : AIIPS 2319 A (-./ APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) -. / 0 / APPELLANT BY : SHRI SHIVA SRINIVAS JCIT 12-. / 0 / RESPONDENT BY : SHRI G. BASKAR ADVOCATE ' / 3& / DATE OF HEARING : 20.09.2016 45+ / 3& / DATE OF PRONOUNCEMENT : 07.10.2016 / O R D E R PER N.R.S. GANESAN JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) I MADUR AI DATED 16.02.2015 AND PERTAINS TO ASSESSMENT YEAR 2010-11 DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTI ON 271(1)(C) OF 2 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 THE INCOME-TAX ACT 1961 (IN SHORT 'THE ACT'). TH E ASSESSEE HAS FILED CROSS-OBJECTION. WE HEARD BOTH THE APPEAL AN D CROSS-OBJECTION TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON O RDER. 2. SHRI SHIVA SRINIVAS THE LD. DEPARTMENTAL REPRES ENTATIVE SUBMITTED THAT THERE WAS A SURVEY IN THE PARTNERSHI P CONCERN OF THE ASSESSEE. DURING THE COURSE OF SURVEY THE ASSESSE ES HUSBAND SHRI K. SUBRAMANIAN ACCEPTED IN HIS STATEMENT THAT THE NET PROFIT FOR ALL THE FOUR CONCERNS WAS ` 2 10 69 826/-. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE HAS DISCLOSED ` 54 00 000/-. BUT FOR SURVEY THIS AMOUNT OF ` 54 00 000/- COULD HAVE GONE UNNOTICED BY THE REVENUE. THEREFORE THE ASSESSING OFFICER L EVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ON APPEAL BY T HE ASSESSEE THE CIT(APPEALS) DELETED THE ADDITION ON THE GROUND THA T THE RETURN FILED BY THE ASSESSEE HAS TO BE CONSTRUED ON THE ASSESSEE S OWN VIOLATION. BUT FOR THE SEARCH ACCORDING TO THE LD . D.R. THE ASSESSEE WOULD NOT HAVE DISCLOSED A SUM OF ` 54 00 000/-. ON A QUERY FROM THE BENCH WHEN A STATEMENT RECORDED DUR ING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE IN THE ASSESSMEN T PROCEEDING WHETHER THE REVENUE HAS ANY OTHER MATERIAL OTHER TH AN THE STATEMENT RECORDED FROM THE ASSESSEES HUSBAND? TH E LD. D.R. 3 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 CLARIFIED THAT SOME OF THE INCRIMINATING MATERIAL W ERE FOUND DURING THE COURSE OF SURVEY OPERATION. 3. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBM ITTED THAT THE SURVEY WAS CONDUCTED ON 17.02.2010 IN THE PARTN ERSHIP CONCERN OF THE ASSESSEE. ON A QUERY FROM THE BENCH THE LD . D.R. CLARIFIED THAT THE ASSESSEE IS A REGULAR ASSESSEE AND FILING RETURN OF INCOME IN THE REGULAR COURSE FOR ALL THE EARLIER ASSESSMEN T YEARS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE LD. D.R. C LARIFIED THAT DUE DATE FOR FILING OF RETURN UNDER SECTION 139(1) OF T HE ACT HAS NOT EXPIRED. IN OTHER WORDS THE FINANCIAL YEAR HAS NO T ENDED. THE LD. D.R. FURTHER SUBMITTED THAT THE PROVISIONAL PROFIT & LOSS ACCOUNT WAS FOUND DURING THE COURSE OF SURVEY. THE SAME WA S IMPOUNDED. THEREFORE ACCORDING TO THE LD. D.R. THE CIT(APPEA LS) IS NOT JUSTIFIED IN DELETING THE PENALTY LEVIED BY THE ASS ESSING OFFICER. 4. ON THE CONTRARY SHRI G. BASKAR THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SURVEY IN THE PARTNERSHIP FIRM OF THE ASSESSEE ON 17.02.2010. ADMITTEDLY THE FIN ANCIAL YEAR HAS NOT ENDED ON THE DATE OF SURVEY. THE STATEMENT SAI D TO BE RECORDED FROM THE ASSESSEES HUSBAND HAD NO EVIDENTIARY VALU E IN THE ASSESSMENT PROCEEDING. ON THE BASIS OF PROVISIONAL PROFIT & LOSS 4 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 ACCOUNT THE ASSESSEE HERSELF FILED RETURN OF INCOM E AND PAID TAXES AND NO DISALLOWANCE WAS MADE IN RESPECT OF THE AMOU NT DISCLOSED BY THE ASSESSEE. 5. REFERRING TO THE ASSESSMENT ORDER THE LD.COUNSE L FOR THE ASSESSEE SUBMITTED THAT WHAT WAS DISALLOWED BY THE ASSESSING OFFICER IS POOJA EXPENSES AND AGRICULTURAL INCOME WHICH WAS TREATED AS INCOME FROM OTHER SOURCES FOR WHICH THE ASSESSING OFFICER HAS NOT LEVIED ANY PENALTY AT ALL. REFERRI NG TO SECTION 271(1)(C) OF THE ACT THE LD.COUNSEL SUBMITTED THA T PENALTY UNDER SECTION 271(1)(C) OF THE ACT COULD BE LEVIED IN CAS E THE ASSESSEE HAS CONCEALED ANY PART OF INCOME OR FURNISHED INACC URATE PARTICULARS OF SUCH INCOME. IN THE CASE BEFORE THE TRIBUNAL ACCORDING TO THE LD. COUNSEL IT IS NOBODYS CASE T HAT THE ASSESSEE CONCEALED ANY PART OF INCOME. THE PROVISIONAL PROF IT & LOSS ACCOUNT SAID TO BE IMPOUNDED BY THE REVENUE WAS PRE PARED ON THE BASIS OF BOOKS OF ACCOUNT AND THE ASSESSEE HAS ALSO PAID TAXES. THEREFORE ACCORDING TO THE LD. COUNSEL THERE IS N O QUESTION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS. 6. REFERRING TO EXPLANATION 3 TO SECTION 271(1)(C) OF THE ACT THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT EXPLANAT ION 3 TO SECTION 5 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 271(1)(C) OF THE ACT IS NOT APPLICABLE IN THIS CASE SINCE THE ASSESSEE WAS FILING RETURN OF INCOME IN THE REGULAR COURSE. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS FILED RETURN OF INCOME ON 08.10.2010 WHICH IS WITHIN THE TIME PROVIDED UNDER SECTION 139(1) OF THE ACT. ACCORDING TO THE LD. COUNSEL WHEN THE ASSESSEE HAS FILED RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT DISCLOSING ALL THE INCOME AND NO ADDITION WAS MADE IN RESPECT OF T HE INCOME DISCLOSED OTHER THAN THE POOJA EXPENSES AND AGRICUL TURAL INCOME THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY LE VIED BY THE ASSESSING OFFICER. THE LD.COUNSEL PLACED HIS RELIA NCE ON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN ACIT V. R AM THANGA NAGAI MALIGAI (2015) 42 ITR (TRIB) 275. ACCORDING TO THE LD. COUNSEL THERE WAS NO CONCEALMENT OF INCOME OR ANY INACCURAT E PARTICULARS OF SUCH INCOME IN THE RETURN FILED BY THE ASSESSEE THEREFORE THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THERE WAS SURVEY OPERATION UNDER SECTION 133A OF THE ACT ON 17.02.2010 IN THE BUSINESS PREMISES OF THE ASSESSEE. DURING T HE COURSE OF 6 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 SURVEY OPERATION A STATEMENT WAS RECORDED FROM THE ASSESSEES HUSBAND. DURING THE COURSE OF SURVEY OPERATION TH E REVENUE AUTHORITIES DID NOT ADMINISTER OATH TO THE DEPONENT . THEREFORE THE STATEMENT RECORDED DURING THE COURSE OF SURVEY OPER ATION HAS NO EVIDENTIARY VALUE. HOWEVER IN THE CASE BEFORE US THE REVENUE AUTHORITIES FOUND A PROVISIONAL PROFIT & LOSS ACCOU NT WHICH WAS IMPOUNDED. AS PER THE PROVISIONAL PROFIT & LOSS AC COUNT THE ASSESSEE HAS OFFERED A SUM OF ` 54 00 000/- BY THE ASSESSEE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED WITHIN THE EXTENDED TIME FOR FILING THE RETURN UNDER SECTI ON 139(1) OF THE ACT. WHEN THE ASSESSEE HAS FILED WITHIN THE EXTEND ED TIME UNDER SECTION 139(1) OF THE ACT AND DISCLOSED ALL THE INC OME THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE CANNOT BE A NY CONCEALMENT OF INCOME. 8. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE A SSESSEE THE ASSESSING OFFICER DISALLOWED ONLY POOJA EXPENSES AN D AGRICULTURAL INCOME FOR WHICH NO PENALTY WAS LEVIED. THE INCOME DISCLOSED BY THE ASSESSEE ON THE BASIS OF PROFIT & LOSS ACCOUNT WAS ACCEPTED BY THE REVENUE AUTHORITIES. WHILE EXAMINING AN IDENTI CAL SET OF FACTS BY THIS TRIBUNAL IN RAM THANGA NAGAI MALIGAI (SUPRA ) THIS TRIBUNAL 7 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 FOUND THAT THE ASSESSEE HAS NOT CONCEALED ANY INCOM E OR FURNISHED INACCURATE PARTICULARS IN THE RETURN FILED BEFORE T HE REVENUE. THE TRIBUNAL HAS ALSO FOUND THAT EXPLANATION 3 TO SECTI ON 271(1)(C) OF THE ACT IS NOT APPLICABLE TO THE FACTS OF THE CASE. IN VIEW OF THOSE FACTUAL CIRCUMSTANCES THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY LE VIED BY THE ASSESSING OFFICER. 8. THE CROSS-OBJECTION FILED BY THE ASSESSEE IS ONL Y TO SUPPORT THE ORDER OF THE CIT(APPEALS). THEREFORE THE CROS S-OBJECTION IS INFRUCTUOUS. 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED AND THE CROSS-OBJECTION OF THE ASSESSEE ALSO STANDS DISMISS ED AS INFRUCTUOUS. ORDER PRONOUNCED ON 7 TH OCTOBER 2016 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI 7 /DATED THE 7 TH OCTOBER 2016. KRI. 8 I.T.A. NO.1100/MDS/15 C.O. NO.91/MDS/15 / 13#8 98+3 /COPY TO: 1. -. /APPELLANT 2. 12-. /RESPONDENT 3. ' :3 () /CIT(A)-I MADURAI 4. ' :3 /CIT-1 MADURAI 5. 8; 13 /DR 6. * < /GF.