Dilip Motilal Chordiya,, Pune v. Income-tax Officer,, Pune

ITA 762/PUN/2017 | 2008-2009
Pronouncement Date: 29-11-2017 | Result: Allowed

Appeal Details

RSA Number 76224514 RSA 2017
Assessee PAN AAMPC1174F
Bench Pune
Appeal Number ITA 762/PUN/2017
Duration Of Justice 7 month(s) 29 day(s)
Appellant Dilip Motilal Chordiya,, Pune
Respondent Income-tax Officer,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-11-2017
Assessment Year 2008-2009
Appeal Filed On 31-03-2017
Judgment Text
] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE MS. SUSHMA CHOWLA JM AND SHRI ANIL CHATURVEDI AM . / ITA NO.762/PUN/2017 / ASSESSMENT YEAR : 2008-09 SHRI DILIP MOTILAL CHORDIYA FLAT NO.10 SAJJAN PLAZA 3 RD FLOOR OPP. HINDUSTAN BAKERY CHINCHWAD PUNE 411033. PAN : AAMPC1174F. . / APPELLANT V/S DY.COMMISSIONER OF INCOME TAX CIRCLE 9 PUNE. . / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI ALOK SINGH / ORDER PER ANIL CHATURVEDI AM : 1. THIS APPEAL OF THE ASSESSEE IS EMANATING OUT OF THE OR DER OF COMMISSIONER OF INCOME TAX (A) 6 NASHIK DATED 20.12.2016 FOR THE ASSESSMENT YEAR 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND IS A BUILDER AND DEVELOPER. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 29.09 .2008 DECLARING TOTAL INCOME AT RS.16 67 420/-. REVISED RETURN W AS FILED BY THE ASSESSEE ON 30.09.2008 DECLARING TOTAL INCOME OF RS.16 6 6 390/-. / DATE OF HEARING : 07.09.2017 / DATE OF PRONOUNCEMENT: 29.11.2017 2 THEREFORE ASSESSEE AGAIN REVISED RETURN OF INCOME ON 30 .03.2009 DECLARING TOTAL INCOME OF RS.1 37 89 116/- INCLUDING ADDITIONAL INCOME OF RS.1 20 50 000/-. THEREAFTER ASSESSMENT WAS FR AMED U/S 143(3) OF THE ACT VIDE ORDER DT.23.12.2010 AND THE TOTAL INC OME OF THE ASSESSEE WAS DETERMINED AT RS.1 56 88 941/- INTER-ALIA BY MAKING ADDITION OF RS.18 99 825/- U/S 41(1) OF THE ACT BY TREAT ING THE OUTSTANDING LIABILITY AS BEING CESSATION OF LIABILITY. ON THE UNACCOUNTED EXPENDITURE OF RS.1 20 50 000/- THAT WAS OFFERE D BY THE ASSESSEE IN THE RETURN OF INCOME AND WAS ACCEPTED BY D EPARTMENT THE AO VIDE ORDER DT.23.12.2010 LEVIED PENALTY OF RS.40 95 7 95/- U/S 271(1)(C) OF THE ACT ON ACCOUNT OF FURNISHING OF INACCURATE P ARTICULARS OF INCOME AND CONCEALING THE INCOME. AGGRIEVED BY THE ORD ER OF AO ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A) WHO VIDE ORD ER DT.20.12.2016 (IN APPEAL NO.PN/CIT(A)-V/DCIT CIR.9/214/2013 -14) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE O RDER OF LD.CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISE D THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFORMING THE LEVY OF PENALTY U/S. 271(1)(C) OF RS. 40 95 795/- THAT TOO WITHOUT CONSIDERING PROPERLY THE SUBMISSIONS MADE BEFORE. T HE SUSTAINING OF THE PENALTY IS NOT ACCORDING TO LAW. THE SAME BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) FAILED TO APPRECIATE THE SUBMISSION OF THE ASSESSEE BEFORE HIM THAT NO SUCH PENALTY IS LEVIABL E WHEN QUANTUM APPEAL WAS PENDING FOR ADJUDICATION BEFORE TRIBUNAL PUNE. THE LEVY OF PENALTY WAS THUS PREMATURE. THE P ENALTY BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE INCOME OF RS. 1 20 50 000/- WAS NOT TAXABLE IN THE YEAR UNDER APPEAL . THE SAME WAS DISCLOSED IN THE REVISED RETURN FILED FOR A. Y. 2008-09 SO FILED ON 30-03-2009 ASSE SSABLE IN A. Y. 2009-10. THE APPROPRIATE TAXES HAVE BEEN PAID IN THAT YEAR. THE ASSESSEE CONCEALED NOTHING NOR FURNISHED ANY INACCURATE PARTICULARS OF INCOME. THE EXPLANATION S UBMITTED IN RESPONSE TO SHOW-CAUSE NOTICE U/S. 274 WAS ALSO NOT HELD 3 TO BE FALSE. THE PENALTY SUSTAINED IS NOT JUSTIFIAB LE. IT BE QUASHED 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT AS IT WAS BARRED BY LI MITATION. THE PENALTY LEVIED AND SUSTAINED BY CANCELLED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IN VIEW OF THE FAC T THAT THE SAME WAS LEVIED WITHOUT ANY SPECIFIC CHARGE OF EITH ER CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ISSUE IS COVERED INFAVOUR OF THE ASSESS EE CONSIDERING THE JUDGMENTS OF THE VARIOUS BENCHES OF THE HON'BLE TRIBUNAL INCLUD I NG THE HON'BLE PUNE BENCH AND ALSO OF THE JURISDICTIONAL BOMBAY HIGH COURT. IN VIEW OF THIS THE PENALTY IS NOT LEVIABLE AND ALSO THEREAFTER NOT SU STAINABLE. IT BE QUASHED. 3. BEFORE US LD.A.R. SUBMITTED THAT THOUGH THE ASSESSEE H AS RAISED SEVERAL GROUNDS BUT ALL THE GROUNDS ARE INTER-C ONNECTED AND THE SOLE CONTROVERSY IS WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 4. BEFORE US LD.A.R. SUBMITTED THAT WHILE FRAMING THE ASSESSM ENT U/S 143(3) OF THE ACT AO HAD MADE ADDITION U/S 41(1) OF T HE ACT AMOUNTING TO RS.18 99 825/- AND DETERMINED THE TOTAL IN COME AT RS.1 56 88 941/- AS AGAINST THE INCOME OF RS.1 37 89 116/- D ECLARED BY THE ASSESSEE. ON THE ADDITIONAL INCOME OF RS.1 20 50 0 00/- THAT WAS OFFERED BY ASSESSEE IN THE RETURN OF INCOME AND ACCE PTED BY REVENUE AO LEVIED PENALTY OF RS.40 95 795/- U/S 271(1)(C) OF THE ACT . LD.A.R. POINTING TO THE ORDERS PASSED BY THE AO SUBMITTE D THAT WHILE PASSING THE ASSESSMENT ORDER AO HAS NOT RECORDED ANY SATISFACTION FOR LEVY OF PENALTY BUT WHILE PASSING THE PENALTY ORDER U/S 27 1(1)(C) OF THE ACT THE AO LEVIED PENALTY FOR CONCEALMENT OF INCOME AS WELL AS FOR FURNISHING INACCURATE PARTICULARS OF INCOME. LD.A.R. RELYING O N THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. SAMSON PERINCHERY (ITA NO.1154 OF 2014 ORDER DT.05.01.2017) SUBMITT ED THAT 4 WHEN INITIATION OF PENALTY IS FOR FURNISHING OF INACCURATE PART ICULARS OF INCOME AND PENALTY WAS LEVIED ON CONCEALMENT OF INCOME THE N IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO ASSESSEE PENALT Y U/S 271(1)(C) CANNOT BE LEVIED. LD.A.R. THEREFORE SUBMITTED THAT PENALTY LEVIED BY AO BE DELETED. LD.D.R. ON THE OTHER HAND SUPPORTED THE O RDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPEC T TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN THE PRESENT CASE PEN ALTY HAS BEEN LEVIED ON THE INCOME OF RS.1 20 50 000/- THAT WAS OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME AND ACCEPTED BY THE R EVENUE. THE PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3) OF THE A CT REVEALS THAT AO HAD INITIATED PENALTY PROCEEDING BUT NO SATISFACTION WAS RECORDED WHILE PASSING THE ASSESSMENT ORDER. THEREAFTER IN THE PE NALTY ORDER PASSED U/S 271(1)(C) OF THE ACT AO HELD THAT ASSESSEE H AD FURNISHED INACCURATE PARTICULARS OF INCOME AND HAD CONCEALED THE INC OME U/S 271(1)(C) OF THE ACT. IT IS A SETTLED LAW THAT WHILE LEVYING PENALTY FOR CONCEALMENT THE AO HAS TO RECORD SATISFACTION AND THER EAFTER COME TO A FINDING IN RESPECT OF ONE OF THE LIMBS WHICH IS SPECIFIED UND ER SECTION 271(1)(C) OF THE ACT. THE FIRST STEP IS TO RECORD SA TISFACTION WHILE COMPLETING THE ASSESSMENT AS TO WHETHER THE ASSES SEE HAD CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THEREAFTER NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT IS TO BE ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER THEREAFT ER HAS TO LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR NON-SATISFACTIO N OF EITHER OF THE LIMBS. WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER HAS TO COME TO A FINDING AS TO WHETHER THE ASSESSEE HA S CONCEALED ITS 5 INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. TH E HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY IN IT A NO.1154 OF 2014 WITH OTHER ITA NOS.953 OF 2014 1097 OF 2014 AND 1226 OF 2014 VIDE JUDGMENT DATED 05.01.2017 HELD THAT WHERE INITIA TION OF PENALTY IS ONE LIMB AND THE LEVY OF PENALTY IS ON OTHER LIM B THEN IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE T HERE IS NO MERIT IN LEVY OF PENALTY. 6. IN THE PRESENT CASE AS NOTED HEREINABOVE IT IS SEEN THAT THE AO HAS NOT RECORDED ANY SATISFACTION FOR LEVY OF PENALTY IN TH E ASSESSMENT ORDER BUT HAD LEVIED PENALTY ON BOTH THE LIMBS I.E. FOR CONC EALMENT OF INCOME AND FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WHILE PASSING THE PENALTY ORDER. CONSIDERING THE AFORESAID FACTS IN THE LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F SAMSON PERINCHERY (SUPRA) WE ARE OF THE VIEW THAT IN THE PRESENT CASE THE BA SIC CONDITION FOR LEVY OF PENALTY HAS NOT BEEN FULFILLED AND THAT THE PENALTY ORDER SUFFERS FROM NON-EXERCISING OF JURISDICTION POWER OF AO AND THEREFORE PENALTY ORDER CANNOT BE UPHELD. WE ACCORDING LY SET ASIDE THE PENALTY ORDER PASSED BY AO. THUS THE GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 29 TH DAY OF NOVEMBER 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 29 TH NOVEMBER 2017. YAMINI 6 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-2 NASHIK. CIT-2 NASHIK. '#$ %%&' ( &' / DR ITAT A PUNE; $+ -/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ( &' / ITAT PUNE.