The ACIT, Central Circle-4,, Surat v. Shri Kantilal G.Patel, Surat

ITSSA 484/AHD/2010 | 2001-2002
Pronouncement Date: 06-08-2010 | Result: Dismissed

Appeal Details

RSA Number 48420516 RSA 2010
Assessee PAN ABAPP0139N
Bench Ahmedabad
Appeal Number ITSSA 484/AHD/2010
Duration Of Justice 2 month(s) 25 day(s)
Appellant The ACIT, Central Circle-4,, Surat
Respondent Shri Kantilal G.Patel, Surat
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 06-08-2010
Assessment Year 2001-2002
Appeal Filed On 12-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER IT(SS)A NO.484-485/AHD/2010 ASSESSMENT YEARS :2001-02 & 2002-03 DATE OF HEARING:30.7.10 DRAFTED:2.8.10 ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-4 SURAT V/S . SHRI KANTILAL G PATEL TAMANNA BUNGLOW MAHADEVNAGAR MAJURA GATE SURAT PAN NO.ABAPP0139N (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI A.K. PAREKH AR REVENUE BY:- SHRI SUDHANSHU S JHA DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THESE TWO APPEALS BY THE REVENUE ARE ARISING OUT O F THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II SURAT IN A PPEAL NOS.CAS/II/101-102/09-10 OF EVEN DATE 22-02-2010. THE ASSESSMENTS WERE FRAME D BY DCIT CENTRAL CIRCLE-3 SURAT U/S.143(3) R.W.S. 153A OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28-12-2006 FOR ASSE SSMENT YEARS 2001-02 AND 2002- 03 RESPECTIVELY. 2. THE ONLY COMMON ISSUES IN THESE APPEALS OF THE R EVENUE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE PENALTY LEVIED U/S.271(1) (C) OF THE ACT MADE BY ASSESSING OFFICER. FOR THIS REVENUE HAS RAISED THE FOLLOWING TWO EFFECTIVE GROUNDS WHICH ARE COMMON IN BOTH YEARS AND FOR THE SAKE OF CLARITY W E ARE REPRODUCING THE GROUNDS AS RAISED IN ASSESSMENT YEAR 2001-02:- ASSESSMENT YEAR 2001-02 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT SINCE THE ASSESSEE HAS NOT FULFILLED ALL THE CONDITIONS LAID DOWN IN THE EXPLANATION 5 TO SECTION 271(1)(C) (C) OF THE ACT. IT(SS)A NO.484-85/AHD/2010 A.Y.S 2001-02 & 2002-03 ACIT CC-4 SRT V. SH. KANTILAL G PATEL PAGE 2 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT DISREGARDING THE FACT THAT THE A.O HAS BROUGHT ALL THE MATERIAL ON RECORD TO SHOW THE CONCEALMENT OF INCOM E OF THE ASSESSEE. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SHRI A.K. PAREKH STATED THAT THE ADDITION WAS MADE ON ACCOUNT OF ON-MONEY PAID FOR P URCHASE OF LAND TREATED AS UNDISCLOSED INVESTMENT OUT OF UNDISCLOSED SOURCE OF INCOME AT RS.25 LAKH IN EACH OF THE ASSESSMENT YEAR DELETED BY THE TRIBUNAL IN ITA NO.3196-3197/AHD/2007 FOR ASSESSMENT YEARS 2001-02 AND 2002-03 VIDE ORDER DAT ED 12-02-2010. ACCORDINGLY HE STATED THAT ONCE THE QUANTUM ADDITION IS DELETED PENALTY CANNOT SURVIVE. AS REGARDS TO ANOTHER ADDITION IN BOTH ASSESSMENT YEAR S I.E. UNDISCLOSED INCOME TREATED ON ACCOUNT OF AGRICULTURAL EXPENSES DISALL OWANCE AT RS.2 06 065/- IN ASSESSMENT YEAR 2001-02 AND A SUM OF RS.61 584/- IN ASSESSMENT YEAR 2002-03 THE LD. COUNSEL FOR ASSESSEE STATED THAT THE CIT(A) HAS RIGHTLY HELD THAT ALTHOUGH ASSESSING OFFICER HAS TREATED A PART OF AGRICULTURA L INCOME AS UNDISCLOSED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES BUT SUCH ACT ION OF THE ASSESSEE WILL NOT INVITE PENALTY U/S.271(1)(C) OF THE ACT AUTOMATICAL LY. THE LD. COUNSEL FOR ASSESSEE STATED THAT APART FROM TREATING THE AGRICULTURAL EX PENSES AS INCOME OF UNDISCLOSED SOURCE NOTHING WAS BROUGHT ON RECORD EITHER BY THE ASSESSING OFFICER OR BY CIT(A) IN QUANTUM APPEAL AND EVEN BY AO IN PENALTY ORDER. IN THE ABSENCE OF SAME PENALTY CANNOT BE LEVIED MERELY ON DISALLOWANCE OF EXPENSES AND HE RELIED THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 174 (SC) WHEREIN THE HONBLE APEX COURT HAS HE LD :- WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA. HOWEVER WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE AS A M ATTER OF FACT THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBSTERS DICTIONARY THE WORD INACCURATE HAS BEEN DEFINED AS: NOT ACCURATE NOT EXACT OR CORRECT ; NOT ACCORDING TO TRUTH ERRONEOUS AS AN INACCURATE STATEMENT COPY OR TRANSCRIPT. WE HAVE ALREADY SEEN THE MEANING OF THE WORD PARTI CULARS IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS IN CONJUNCTION THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN WHICH ARE NOT ACCUR ATE NOT EXACT OR CORRECT NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY TH E ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH N OT BEING THE CASE THERE WOULD BE NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABL E IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDI NG THE INCOME OF THE IT(SS)A NO.484-85/AHD/2010 A.Y.S 2001-02 & 2002-03 ACIT CC-4 SRT V. SH. KANTILAL G PATEL PAGE 3 ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOU NT TO THE INACCURATE PARTICULARS. 4. AFTER HEARING BOTH THE SIDES WE FIND THAT COMMO N ISSUES ARE SQUARELY COVERED AS REGARDS TO FIRST ISSUE OF ON-MONEY PAYME NT OF RS.25 LAKH OF EACH OF ASSESSMENT YEARS THE TRIBUNAL HAS DELETED THE ADDI TION AS NOTED ABOVE. AS REGARDS TO TREATMENT OF UNDISCLOSED INCOME ON ACCOUNT OF DI SALLOWANCE OF AGRICULTURAL EXPENSES THE ISSUE IS SQUARELY COVERED BY THE DECI SION OF HONBLE APEX COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. (SUPRA). ACCORDINGLY WE DELETE THE LEVY OF PENALTY MADE BY ASSESSING OFFICER AND WE CONFIRM TH E ORDER OF CIT(A) DELETING PENALTY. 5. IN THE RESULT BOTH APPEALS OF REVENUE ARE DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 06/08/2010 SD/- SD/- (N.S.SAINI) MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 06/08/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-II SURAT 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD