ACIT, CHENNAI v. J.Karthikeyan, CHENNAI

ITA 905/CHNY/2017 | 2013-2014
Pronouncement Date: 16-11-2017 | Result: Dismissed

Appeal Details

RSA Number 90521714 RSA 2017
Assessee PAN AANPK9511D
Bench Chennai
Appeal Number ITA 905/CHNY/2017
Duration Of Justice 7 month(s) 3 day(s)
Appellant ACIT, CHENNAI
Respondent J.Karthikeyan, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 16-11-2017
Assessment Year 2013-2014
Appeal Filed On 12-04-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI . . . ! # !$ BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI S. JAYARAMAN ACCOUNTANT MEMBER ./ ITA NOS.899 900 901 902 903 904 & 905/MDS/2017 ' (' / ASSESSMENT YEARS : 2007-08 TO 2013-14 THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) CHENNAI - 600 034. V. SHRI J. KARTHIKEYAN U-9 4 TH MAIN ROAD ANNA NAGAR CHENNAI - 600 040. PAN : AANPK 9511 D (*+/ APPELLANT) ( -*+/ RESPONDENT) *+ . / / APPELLANT BY : MS. S. VIJAYAPRABHA JCIT -*+ . / / RESPONDENT BY : SHRI T. VASUDEVAN ADVOCATE 0 . 1# / DATE OF HEARING : 07.11.2017 23( . 1# / DATE OF PRONOUNCEMENT : 16.11.2017 / O R D E R PER N.R.S. GANESAN JUDICIAL MEMBER: ALL THE APPEALS OF THE REVENUE ARE DIRECTED AGAIN ST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 18 CHENNAI FOR ASSESSMENT YEARS 2007-08 TO 2013-1 4 DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTI ON 271(1)(C) AND 271AAA OF THE INCOME-TAX ACT 1961 (IN SHORT 'THE A CT'). 2 I.T.A. NOS.899 TO 905/MDS/17 2. MS. S. VIJAYAPRABHA THE LD. DEPARTMENTAL REPRES ENTATIVE SUBMITTED THAT FOR THE ASSESSMENT YEARS 2007-08 TO 2011-12 THE CIT(APPEALS) DELETED THE PENALTY BY PLACING RELIANC E ON THE ORDER OF THIS TRIBUNAL IN SMT. R. HEMA MAHESWARI V. ACIT IN ITA NOS.987/MDS/2013 & 1306/MDS/2013 DATED 01.09.2016 O N THE GROUND THAT THE PENALTY CANNOT BE LEVIED UNDER SECT ION 271(1)(C) OF THE ACT. REFERRING TO THE ORDER OF THIS TRIBUNAL THE LD. D.R. POINTED OUT THAT THE PROVISIONS OF SECTION 271AAA OF THE AC T WAS NOT BROUGHT TO THE NOTICE OF THE BENCH. REFERRING TO E XPLANATION (1) (B) OF SECTION 271AAA OF THE ACT THE LD. D.R. SUBMITTE D THAT PENALTY UNDER SECTION 271AAA OF THE ACT CAN BE LEVIED ONLY IN RESPECT OF SPECIFIED PREVIOUS YEAR. ACCORDING TO THE LD. D.R. SPECIFIED PREVIOUS YEAR IS THE PREVIOUS YEAR ENDED BEFORE TH E DATE OF SEARCH BUT THE DATE OF FILING THE RETURN OF INCOME HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED T HE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE SAID DATE. MOREOVER THE YEAR IN WHICH THE SEARCH WAS CONDUCTED WOULD ALSO F ALL WITHIN THE SPECIFIED PREVIOUS YEAR. THEREFORE ACCORDING TO T HE LD. D.R. THE SPECIFIED PREVIOUS YEAR CAN AT THE BEST BE ASSESS MENT YEARS 2012- 13 AND 2013-14 AND NOT OTHER ASSESSMENT YEARS. ACC ORDING TO THE LD. D.R. ADMITTEDLY SEARCH WAS CONDUCTED IN THIS CASE ON 3 I.T.A. NOS.899 TO 905/MDS/17 08.06.2012 THEREFORE THE PROVISIONS OF SECTION 27 1(1)(C) OF THE ACT IS VERY MUCH APPLICABLE FOR THE ASSESSMENT YEARS 20 07-08 TO 2011- 12. HENCE THE CIT(APPEALS) IS NOT JUSTIFIED IN DE LETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 3. ON THE CONTRARY SHRI T. VASUDEVAN THE LD.COUNS EL FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL IN THE CASE OF SHRI A.N. RADHAKRISHNAN V. ACIT IN I.T.A. NOS.684 685 & 686/ MDS/2013 FOUND THAT AFTER 01.06.2007 NO PENALTY CAN BE IMPO SED UNDER SECTION 271(1)(C) OF THE ACT. A SIMILAR VIEW WAS A LSO TAKEN BY THIS TRIBUNAL IN SMT. R. HEMA MAHESWARI (SUPRA). ON A Q UERY FROM THE BENCH WHETHER THE EXPLANATION TO SECTION 271AAA OF THE ACT WHICH CLARIFIES SPECIFIED PREVIOUS YEAR WAS BROUG HT TO THE NOTICE OF THE BENCH? THE LD.COUNSEL HAS FAIRLY SUBMITTED THA T THE EXPLANATION TO SECTION 271AAA OF THE ACT WAS NOT BR OUGHT TO THE NOTICE OF THE BENCH. ON A QUERY FROM THE BENCH W HEN THE ASSESSMENT YEARS 2007-08 TO 2011-12 DO NOT FALL WIT HIN THE SPECIFIED PREVIOUS YEAR CAN THE ASSESSING OFFICER LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT? THE LD.COUNSEL SUBMITTED THAT THE CIT(APPEALS) FOLLOWED THE ORDER OF THIS TRIBUNA L THEREFORE PENALTY CANNOT BE LEVIED. 4 I.T.A. NOS.899 TO 905/MDS/17 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. NO DOUBT THIS TRIBUNAL IN THE CASE OF SHRI A.N. RADHAKRISHNAN (SU PRA) AND IN THE CASE OF SMT. R. HEMA MAHESWARI (SUPRA) FOUND THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE LEVIED IN RE SPECT OF THE MATTER WHICH WAS SUBJECT MATTER OF SEARCH OPERATION ON OR BEFORE 01.06.2007. NOW THE LD. D.R. HAS BROUGHT TO THE N OTICE OF THE BENCH THAT THE PENALTY UNDER SECTION 271AAA OF THE ACT HAS TO BE LEVIED ON THE UNDISCLOSED INCOME OF THE SPECIFIED P REVIOUS YEAR. SPECIFIED PREVIOUS YEAR IS DEFINED IN EXPLANATION (1) (B) TO SECTION 271AAA OF THE ACT. THE WORD SPECIFIED PREVIOUS YE AR AS FOUND IN EXPLANATION (1) (B) TO SECTION 271AAA (1) OF THE AC T WAS NOT BROUGHT TO THE NOTICE OF THE BENCH WHEN THE TRIBUNA L CONSIDERED THE MATTER IN THE CASE OF SHRI A.N. RADHAKRISHNAN (SUPR A) AND IN THE CASE OF SMT. R. HEMA MAHESWARI (SUPRA). 5. AS RIGHTLY POINTED OUT BY THE LD. D.R. PENALTY UNDER SECTION 271AAA OF THE ACT CAN BE LEVIED ONLY IN RESPECT OF SPECIFIED PREVIOUS YEAR. SPECIFIED PREVIOUS YEAR IN THIS CAS E IS ADMITTEDLY ASSESSMENT YEARS 2012-13 AND 2013-14. THEREFORE P ENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN VERY WELL BE LEVIE D FOR THE 5 I.T.A. NOS.899 TO 905/MDS/17 ASSESSMENT YEARS 2007-08 TO 2011-12. SINCE THE EAR LIER BENCH OF THIS TRIBUNAL HAS NOT CONSIDERED THE WORD SPECIFIE D PREVIOUS YEAR AS FOUND IN EXPLANATION (1) (B) TO SECTION 271AAA O F THE ACT THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDE R OF THIS TRIBUNAL IN SHRI A.N. RADHAKRISHNAN (SUPRA) AND IN THE CASE OF SMT. R. HEMA MAHESWARI (SUPRA) MAY NOT COME TO THE RESCUE OF THE ASSESSEE. THEREFORE THE CIT(APPEALS) IS NOT JUSTIFIED IN DEL ETING THE PENALTY. 6. SINCE THE CIT(APPEALS) HAS DELETED THE PENALTY O N TECHNICAL GROUND HE HAS NOT CONSIDERED THE CASE ON MERIT. T HEREFORE THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER HAS TO BE RECONSIDERED ON MERIT. IN THIS CASE THE PENALTY W AS IMPOSED ON THE CLAIM OF AGRICULTURAL INCOME MADE BY THE ASSESSEE. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS NOT FILED ANY M ATERIAL TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE. THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO FILE NECESSARY MATERIAL WITH REGARD TO LAND HOLDINGS AND NATURE OF CROP CULTIVATED WOULD NOT PREJUDICE THE I NTERESTS OF REVENUE IN ANY WAY. GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE WOULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE. ACC ORDINGLY THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF 6 I.T.A. NOS.899 TO 905/MDS/17 PENALTY IS REMITTED BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR ALL THE ASSESSMENT YEARS 2007-08 TO 2011-12. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF THE MAT ERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISS UE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPO RTUNITY TO THE ASSESSEE. 7. NOW COMING TO ASSESSMENT YEAR 2012-13 THE ASSES SING OFFICER LEVIED PENALTY UNDER SECTION 271AAA OF THE ACT. HOWEVER THE CIT(APPEALS) DELETED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAS ADMITTED UNDISCLOSED INCOME DURING THE COURSE OF SEARCH ON THE BASIS OF THE STATEMENT MADE UNDER SEC TION 132(4) OF THE ACT. THE ASSESSEE FILED AFFIDAVIT AND EXPLAINE D THE MANNER IN WHICH THE INCOME WAS DERIVED. IT IS NOT IN DISPUT E THAT THE ASSESSEE HAS PAID TAXES IN RESPECT OF UNDISCLOSED I NCOME. THEREFORE THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS LAID DOWN IN SUB-CLAUSE (II) TO SECTION 271AAA(2) OF THE ACT. WHEN THE ASS ESSEE HAS ADMITTED THE UNDISCLOSED INCOME IN THE COURSE OF SE ARCH OPERATION AND FILED AFFIDAVIT EXPLAINING THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED AND PAID THE TAXES THIS TRIBUNA L IS OF THE 7 I.T.A. NOS.899 TO 905/MDS/17 CONSIDERED OPINION THAT THE ASSESSING OFFICER IS NO T JUSTIFIED IN LEVYING PENALTY UNDER SECTION 271AAA OF THE ACT. T HIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY THEREFORE THIS TRIBUNAL DO NOT FIND A NY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 8. IN THE RESULT THE APPEALS OF THE REVENUE IN I.T .A. NOS.899 TO 903/MDS/2017 ARE ALLOWED FOR STATISTICAL PURPOSES. HOWEVER I.T.A. NOS.904 & 905/MDS/2017 ARE DISMISSED. ORDER PRONOUNCED ON 16 TH NOVEMBER 2017 AT CHENNAI. SD/- SD/- ( ! ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI 5 /DATED THE 16 TH NOVEMBER 2017. KRI. . 167 87(1 /COPY TO: 1. *+ /APPELLANT 2. -*+ /RESPONDENT 3. 0 91 () /CIT(A)-18 CHENNAI-34 4. PRINCIPAL CIT CENTRAL-1 CHENNAI 5. 7: 1 /DR 6. ' ; /GF.