Shri Vijay Mansinh Mandora, Ahmedabad v. The Dy.CIT,Cent.Circle-2(2),, Ahmedabad

ITSSA 223/AHD/2010 | 2003-2004
Pronouncement Date: 26-07-2013 | Result: Allowed

Appeal Details

RSA Number 22320516 RSA 2010
Assessee PAN ADXPM6769R
Bench Ahmedabad
Appeal Number ITSSA 223/AHD/2010
Duration Of Justice 3 year(s) 4 month(s) 18 day(s)
Appellant Shri Vijay Mansinh Mandora, Ahmedabad
Respondent The Dy.CIT,Cent.Circle-2(2),, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 26-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 26-07-2013
Date Of Final Hearing 11-07-2013
Next Hearing Date 11-07-2013
Assessment Year 2003-2004
Appeal Filed On 09-03-2010
Judgment Text
IT(SS)A NO 223/A HD/2010 . A.Y. 2003- 04 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI A.M.) I.T.(SS)A. NO. 223 /AHD/2010 (ASSESSMENT YEAR:2003-04) SHRI VIJAY MANSINH MANDORA AHMEDABAD (APPELLANT) VS. THE DCIT CENTRAL CIRCLE- 2(2) AHMEDABAD (RESPONDENT) PAN: ADXPM 6769 R APPELLANT BY : SHRI VIJAY RANJAN A.R. RESPONDENT BY : SHRI O.P. BATHEJA SR. D.R. ( )/ ORDER DATE OF HEARING : 11-07-20 13 DATE OF PRONOUNCEMENT : 26 -07-2013 PER SHRI ANIL CHATURVEDI A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF CIT(A)-III AHMEDABAD DATED 12.01.2010 FOR ASSESSMENT YEAR 2003-04. 1. THE FACTS AS CULLED OUT FROM THE ORDER OF LOW ER AUTHORITIES ARE AS UNDER:- 2. IN THIS CASE THE ASSESSEE WAS SUBJECTED TO SEAR CH ALONG WITH SIS GROUP IN FEBRUARY 2007. IN RESPONSE TO NOTICE UNDER SECTION 153A ASSESSEE FILED HIS RETURN OF INCOME ON 19.12.2008 DECLARING TOTAL INCO ME OF RS. 4 25 270/-. THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE ORDER DATED 30.12.2008 AND THE TOTAL IN COME WAS ALSO DETERMINED IT(SS)A NO 223/A HD/2010 . A.Y. 2003- 04 2 AT RS. 4 25 270/- ASSESSING OFFICER INITIATED PROC EEDINGS UNDER SECTION 271(1)(C) ON THE GROUND THAT INCOME OF RS. 2 42 000 /- ON SALE OF SOFTWARE AND RS. 25 000/- FOR DISALLOWABLE EXPENSES WAS DECLARED CONSEQUENT TO THE SEARCH. THE ASSESSING OFFICER WAS THEREFORE OF THE VIEW THAT THE ADDITIONAL INCOME HAS NOT BEEN DECLARED VOLUNTARILY AND THEREF ORE IMMUNITY UNDER EXPLANATION 5 TO SECTION 271(1)(C) WAS NOT AVAILABL E TO THE ASSESSEE. HE ACCORDINGLY LEVIED PENALTY OF RS. 84 105/-. AGGRIE VED BY THE ORDER OF ASSESSING OFFICER ASSESSEE CARRIED THE MATTER BEFO RE CIT(A). CIT(A) GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING A S UNDER: 6. THE CONTENTIONS WERE CAREFULLY CONSIDERED. IT IS SEEN THAT THE ADDITIONAL OFFER OF RS. 25 000/- WAS ON ADHOC BASIS AND MADE S UO MOTTO WITHOUT ANY DETECTION OF DISALLOWABLE EXPENSES. THE SAME CANNO T BE HOWEVER SAID FOR THE ADDITION AMOUNT OF RS. 2 42 000/- ARISING FROM THE SALE OF SOFTWARE AN ACTIVITY WHICH HE NEVER REFERRED TO/ ADMITTED IN H IS STATEMENT U/S. 132(4). IN THESE FACTS THE APPELLANT WAS NOT ENTITLED TO IMMU NITY AS PER EXPLANATION 5 TO SECTION 271(1)(C). THERE IS NO INFIRMITY IN THE AC TION OF THE ASSESSING OFFICER IN CONSIDERING THE AMOUNT OF RS. 2 42 000/- FOR PUR POSE OF PENALTY. THE PENALTY IMPOSED BY THE ASSESSING OFFICER IS THEREFO RE RESTRICTED TO RS. 76 230/- I.E. AT THE MINIMUM. 3. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE I S NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN OMITTING TO CON SIDER AND ADJUDICATE UPON GROUND NO 1 OF THE APPELLANT'S APPEAL VIDE WHI CH THE APPELLANT HAD CHALLENGED THE VERY VALIDITY OF THE ORDER IMPUGNED BEFORE HIM. HE OUGHT TO HAVE APPRECIATED INTER ALIA THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER IMPUGNED BEFORE HIM DESERVED TO BE CANCELLED AS BAD IN LAW. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN SUSTAINING PENA LTY FOR CONCEALMENT OF INCOME TO THE EXTENT OF RS.76 230 OUT OF RS. 84 105 LEVIED VIDE THE ORDER IMPUGNED BEFORE HIM. HE OUGHT TO HAVE APPRECIATED INTER ALIA THAT THE INCOME OF RS.2 42 000 ASSESSED IN THE APPELLANT'S H ANDS WAS PART OF THE INCOME RETURNED BY THE APPELLANT IN THE SAME WAY AS THE AMOUNT OF RS.25 000 WAS AND IN RESPECT OF WHICH HE HAD ORDERE D FOR THE DELETION OF IT(SS)A NO 223/A HD/2010 . A.Y. 2003- 04 3 THE PENALTY AND THAT IT WAS NOT AS IF AN ADDITION O F RS.2 42 000 HAD BEEN MADE TO THE APPELLANT'S RETURNED INCOME AS ASSUMED BY HIM AT PARA 6 OF THE APPELLATE ORDER PASSED BY HIM. HE OUGHT ACCORD INGLY TO HAVE APPRECIATED THAT THE REMAINING AMOUNT OF PENALTY (V IZ. RS.76 230) WHICH WAS IN RESPECT OF THE SAID AMOUNT OF RS.2 42 000 A LSO DESERVED TO BE DELETED. 4. THE ONLY EFFECTIVE GROUND IS WITH RESPECT TO LEV Y OF PENALTY U/S 271(1)(C) 5. BEFORE US THE LEARNED A.R. SUBMITTED CONSEQUENT TO THE SEARCH NOTICE ISSUED UNDER SECTION 153A THE ASSESSEE FILED RETURN OF I NCOME DECLARING TOTAL INCOME OF RS. 4 25 270/-. IN THE ASSESSMENT FRAMED UNDER SECTION 153A READ WITH SECTION 143(3) THE RETURNED INCOME OF THE ASSESSEE WAS ACCEPTED IN TOTALITY AND NO ADDITION WAS MADE BY THE ASSESSI NG OFFICER THE LD. A.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS VOLUNTARILY DISCLOSED OCCASIONAL BUSINESS INCOME FROM SALE OF SOFTWARE OF RS. 242000 /- THOUGH THIS ADDITIONAL INCOME WAS NOT FOUND IN SEARCH PROCEEDINGS OR POST SEARCH INQUIRIES. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD PAID TAX AL ONG WITH INTEREST ON THE INCOME RETURNED. HE FURTHER SUBMITTED THAT SINCE AL L THE PARTICULARS WERE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME AN D NO FURTHER ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER IT CANNOT BE SA ID THAT THE ASSESSEE HAS CONCEALED THE INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. HE FURTHER PLACED RELIANCE ON THE DECISION OF AHMEDABA D TRIBUNAL IN THE CASE OF JYOTIBEN KAKKAD (IT(SS) A NO. 220 & 221/AHD/2010 OR DER DATED 13.04.2012. HE ALSO PLACED ON RECORD AT PAGE 26 TO 33 OF THE PA PER BOOK THE COPY OF THE DECISION. HE THEREFORE URGED THAT THE ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS OF INCOME OR HAS CONCEALED A NY INCOME AND THEREFORE THERE IS NO JUSTIFICATION FOR LEVY OF PENALTY AND T HEREFORE PENALTY SHOULD BE DELETED. 6. THE LEARNED D.R. ON THE OTHER HAND RELIED ON THE ORDER OF ASSESSING OFFICER. HE FURTHER SUBMITTED THAT SINCE THE ASSESSEE HAS SH OWN INCOME ONLY ON ACCOUNT OF SEARCH ASSESSEE WAS NOT ENTITLED TO IM MUNITY AS PER EXPLANATION IT(SS)A NO 223/A HD/2010 . A.Y. 2003- 04 4 5 TO SECTION 271(1)(C) AND FOR WHICH HE PLACED RELI ED ON THE DECISION IN THE CASE OF ACIT VS. KIRITBHAI DAHYABHAI PATEL 209 121 ITD 159. HE THUS SUPPORTED THE ORDER OF ASSESSING OFFICER. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT PURSUANT TO NOTICE U/S 1 53A THE ASSESSEE HAD DECLARED TOTAL INCOME OF RS. 4 25 270/- IN THE RETU RN OF INCOME. THE INCOME OFFERED BY THE ASSESSEE HAS BEEN ACCEPTED IN TOTALI TY AND NO FURTHER ADDITION HAS BEEN MADE ON THE BASIS OF SEIZED MATERIAL. THE ASSESSEE HAS ALSO PAID TAXES ALONG WITH INTEREST ON THE INCOME DECLARED. F URTHER THERE IS NO FINDING OF CONCEALMENT IN RESPECT OF RETURN FILED BY THE ASSES SEE IN RESPONSE TO NOTICE UNDER SECTION 153A. 8. THE CO-ORDINATE BENCH IN THE CASE OF IT(SS)A NO. 220 & 221/AHD/2010 IN THE CASE OF JYOTIBEN KAKKAD HAS DELETED THE PENALTY BY HOLDING AS UNDER:- 9. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAD D ECLARED TOTA L INCOME OF RS.2 28 120/- IN RETURN OF INCOME U/S. 153A. THE SA LARY INCOME THAT WAS DECLARED WAS NOT BASED ON ANY INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH. THE INCOME WAS ALSO ASSESSED ON T HE BASIS OF RETURN FILED BY THE ASSESSEE EXCEPT THAT A DISALLOWANCE OF RS.18 000/- WAS MADE IN RESPECT OF WHICH THE ASSESSEE CLAIMED EXEMPTION U/S.10. THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE U/S. 153A AFTER THE SEARCH HAS BEEN ACCEPTED IN ITS ENTIRETY WITHOUT DETAILED DISCUSSION OF SEIZED MATE RIAL. IN A CASE WHERE ALL THE NECESSARY PARTICULARS ARE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME IT CANNOT BE SAID THAT THE ASSES SEE HAS CONCEALED INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THEREFORE THE CASE UNDER CONSIDERATION IS NOT THE CASE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OR CONCEALED ANY PARTICULARS OF INCOME IN THE RETURN FILED U/S. 153A OF THE ACT. THE A.O. HAS NOT DISCHARGED THE BURDEN TO PROVE THE CONCEALM ENT OF INCOME. THE CASE LAW RELIED BY THE LD. D.R. ARE DISTINGUISHABLE ON FACTS. WHEN THERE IS NO FINDING OF CONCEALMENT IN RESPECT OF RE TURN FILE BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 153A WE FIND T HAT PENALTY U/S. 27L(L)(C ) CANNOT BE LEVIED. WE THEREFORE CANCEL THE PENALTY OF RS.39 715/- LEVIED U/S. 271(1)(C ) IT(SS)A NO 223/A HD/2010 . A.Y. 2003- 04 5 9. BEFORE US THE REVENUE COULD NOT CONTROVERT THE S UBMISSIONS MADE BY LD. A.R. FURTHER SINCE THE FACTS OF THE PRESENT CASE ARE IDE NTICAL TO THAT OF JYOTIBEN KAKKAD (SUPRA) RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO PENA LTY UNDER SECTION 271(1)(C) CAN BE LEVIED. THUS THIS GROUND OF ASSESSEE IS ALL OWED. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 26 - 07 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD