Shri Ashok Kumar Jain HUF, Indore v. The ACIT, 3(1), Indore

ITA 580/IND/2010 | 2004-2005
Pronouncement Date: 14-09-2011 | Result: Allowed

Appeal Details

RSA Number 58022714 RSA 2010
Bench Indore
Appeal Number ITA 580/IND/2010
Duration Of Justice 1 year(s) 5 day(s)
Appellant Shri Ashok Kumar Jain HUF, Indore
Respondent The ACIT, 3(1), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 14-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 14-09-2011
Assessment Year 2004-2005
Appeal Filed On 09-09-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO. 580/IND/2010 A.Y. 2004-05 ASHOK KUMAR JAIN HUF INDORE PAN AAEHA-4011K . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX 3(1) INDORE L . RESPONDENT DATE OF HEARING : 12.9.2011 DATE OF PRONOUNCEMENT : 14.9.2011 APPELLANT BY : SHRI AJAY TULSIYA N AND SHRI MANISH VAIDYA RESPONDENT BY : SHRI ARUN DEWAN ORDER PER JOGINDER SINGH JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 7.6.2010 ON 2 THE GROUND THAT LD. FIRST APPELLATE AUTHORITY ERRED IN CONFIRMING THE PENALTY OF RS. 80 000/- IMPOSED U/S 271(1) OF THE ACT. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHR I AJAY TULSIYAN ALONG WITH SHRI MANISH VAIDYA LD. COUNSEL FOR THE ASSESSEE AND SHRI ARUN DEWAN LEARNED SENIOR DEPARTMENTAL REPRESENTAT IVE. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ORIGINAL RETURN ACCOMPANIED BY COMPUTATION OF INCOME AUDITED BALAN CE SHEET AND PROFIT AND LOSS ACCOUNT/AUDIT REPORT WERE FILED ON 1.11.2004 AND THE SAME WAS REVISED ON 13.10.2006 DECLARING TOTAL INCO ME AT RS.13 14 332/- AND PAID THE TAX AT RS. 71 996/-. I N THE REVISED RETURN THE AMOUNT OF RS. 2 22 870/- WAS ALSO OFFERED U/S 9 4 OF THE ACT BEING LOSS SUFFERED VIS--VIS DIVIDEND INCOME AND T HE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT ON TOTAL INCOME OF RS. 13 42 592/- BY ADDING BACK THE EXEMPTED DIVIDEND OF RS.2 66 880/-. THE PENALTY ORDER WAS PASSED ON 30.4.2007 IMPOSING PENALTY OF R S. 80 000/-. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE RETURN WAS REVISED BEFORE FINALIZATION OF ASSESSMENT THER EFORE NO PENALTY 3 IS LEVIABLE. ON THE OTHER HAND THE SENIOR DEPARTME NTAL REPRESENTATIVE DEFENDED THE IMPOSITION OF PENALTY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDER THE AFOREMENTIONED FACTS THE QUESTION ARISES AS TO WHETHER THE PENALTY U/S 271(1) COULD BE IMPOSED WHEN THE ASSES SEE REVISED ITS RETURN BEFORE FINALIZATION OF ASSESSMENT. THE OBVI OUS REPLY IS NO BECAUSE THE REVISED RETURN WAS REGULARIZED BY THE R EVENUE AND AT THE SAME TIME THERE IS NO LOSS TO THE REVENUE. THE DECISION OF THE HONBLE APEX COURT IN CIT V. SURESHCHAND MITTAL; 2 51 ITR 9 AND THE RATIO LAID DOWN BY THE HONBLE MP HIGH COURT IN CIT V. SHYAMLAL AND SONI (276 ITR 156) SUPPORT OUR VIEW. AT THE SAME T IME INITIAL BURDEN LIES ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE CONCEALED THE INCOME OR INACCURATE PARTICULARS OF SUCH INCOME WER E FILED BY THE ASSESSEE. THE BURDEN SHIFTS TO THE ASSESSEE ONLY I F HE FAILS TO OFFER ANY EXPLANATION FOR THE ALLEGED UNDISCLOSED INCOME OR THE EXPLANATION SO OFFERED IS FOUND TO BE FALSE BY THE ASSESSING OFFICER. THE EXPLANATION OF THE ASSESSEE THAT THE ADDL. INCO ME WAS DECLARED 4 TO BUY PEACE WITH THE DEPARTMENT AND TO AVOID LITIG ATION COULD BE TREATED AS BONA FIDE. FOR IMPOSING PENALTY U/S 271( 1) EITHER THERE SHOULD BE CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF SUCH INCOME. SINCE THESE TWIN CONDIT IONS ARE NOT PROVED NO PENALTY IS LEVIABLE. IN THE PRESENT APPE AL THE REVISED RETURN WAS FILED ON 20.10.2006 BEFORE FINALIZING TH E ASSESSMENT ON 23.10.2006 THEREFORE THERE IS NO LOSS TO THE REVE NUE CONSEQUENTLY WE DELETE THE PENALTY THEREFORE APPEAL OF THE ASS ESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14.9.2011 . SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14.9.2011 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR