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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: Shri Shamim Yahya & Shri Pawan Singhand
आदेश / O R D E R Per Shamim Yahya (Accountant Member) This appeal by Revenue and Cross Objection by the assessee are directed against order of the Ld. CIT(A)-III, Nagpur, dated 24/11/2015 and pertain to Assessment Year 2008-09. The ground of appeal raised by the Revenue is as under:-
2. The grounds of appeal read as under:-
1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty u/s 271(1)(c) of the IT Act, 1961, Rs.73 lacs levied on concealed income although the Explanation 5A(ii)(a) to section 271(1)(c) of the IT Act is clearly application in the case of the assessee.” 3. The brief, facts of the case are as under:-
Search and seizure action was conducted at the business premises of the assessee and residential premises of the directors of the appellant company subsequent to which returns were filed by the assessee u/s 153A fo the act with total income of Rs.36,79,88,163/- dated 31.10.2011. The return was later revised at total income of Rs.33,64,88,160/-. The assessment was made by the AO u/s 143(3) r.w.s. 153A of the Act by order dated 30.12.2011. The assessment was made at the total income of the assessee as per return i.e. Rs.33,64,88,160/-. Penalty proceedings were initiated by the AO u/s 271(1)(c) while completing the assessment u/s 143(3) r.w.s. 153A. Order of penalty was made dated 18.06.2012 levying penalty of Rs.73,00,000/-. The AO treated the amount of Rs.2,42,13,619/- as the concealed income and computed the penalty accordingly. In the penalty proceedings, the AO dealt with issues of addition in quantum proceedings as under:-
Issue of payments to bogus sub-contractors- At the time of search and assessment proceedings it was found that the assessee had claimed following expenditure in its P/L account during the year on account of bogus subcontract payments to following parties- I) Siva Construction- Rs. 1,17,74,454/- ii) Krat Engineering- Rs. 3,00,000/- It was revealed through enquiries that the above payments were not genuine. When the assessee was confronted on the issue during assessment proceedings the assessee stated as follows- "...These payments were not the genuine payment and were subsequently received back by the assessee...." The assessee thus revised its return and surrendered the amount of Rs. 1,20,74,454/- (Rs. 1,17,74,454/- + Rs. 3,00,000/-) as its income. Assessment order was passed and penalty show-cause u/s 274 r.w.s. 271(1)(c) was issued to the assessee on 30-12-2011 for concealment of income of Rs. 1,20,74,454/-. Issue of unaccounted cash payments- On perusal of pages 1 and 2 of item 19 of annexure B-1 seized from the MID C, Butibori premises of the assessee, during assessment proceedings, it was seen that the assessee had paid Ps. 13,50,000/- in cash against the purchase of property at Anna Nagar, Chennai. On verification these payments were found to be unrecorded in the books of the assessee. When the assessee was confronted on the issue, the assessee replied as follows-
“………….This property is accounted for in the books of Shel during the F. Y 2007-08. Ledger extract is enclosed for verification. However as per the said documents an amount of Rs. 13,50,000/- paid for parking is unaccounted in the books...."
The assessee revised its return and surrendered the unaccounted income after claiming telescoping. The penalty proceedings were initiated u/s 271(i)(c) of the Act for concealment of income of Rs. 13,50,000/-.
Unaccounted investments- On perusal of Item 73 of Annexure B-1 dated 1509-2009 seized from the office premises of the assessee at the East High Court Road, Ramdaspeth, Nagpur, it was found that the assessee had invested Rs. 4,80,240/- for purchase of a land at Gangakhed. This investment was not recorded in the books of the assessee. Similarly there were other investments as per other items of Annexure B-1 dated 15-9-2009 (referred earlier), which were unrecorded. It was seen that the payments of Rs. 1,03,08,925/- on the transaction of above land were not recorded in the books.
On being confronted at this issue at the time of assessment proceedings the assessee replied as follows-
Item No. 73: This is a Sale deed Between Gangaked Sugar Energy and various land holders for and amount of Rs. 480240. This amount is not accounted in the books and hence is surrendered as unexplained income of the assessee for the F. Y 2007-08 The total amount paid as per the power of attorneys listed in enclosed is Rs. 1,49,89,325/- out of which Rs. 46,00,000 was paid from the books of Shri R. M. Gutte (copy of account of Gangakhed land in the books of R. M. Gutte is enclosed). Out of the balance Rs.1,03,08,925/-(Rs.1,49,89,325 — 46,007000) an amount of Rs.5691141/-is paid out of the unaccounted income surrendered in respect of SIVA Construction and the balance amount i.e. Rs.46,98184/- is unaccounted in the books of the SHEL for the F. Y 2007-08 and is surrendered as undisclosed income for the F. Y 2007- 08. Accordingly the assessee revised its return of income and surrendered its income as stated. Penalty proceedings were initiated u/s 271(1)(c) of the Act for concealment of income of Rs. 1,07,89,165/- (Rs. 4,80,240/- + Rs. 1,03,08,925/-).
In its reply dated 13-06-2012 to the penalty show-cause on the issues discussed above the assessee stated as follows-
During the course of search proceedings the assessee has filed a declaration u/s 132(4) on 07.10.2009 declaring total unaccounted income for the search period at Rs.50.00 crores to cover the various irregularities observed in the course of search in order to buy peace and to avoid litigation. The assessee also paid the due taxes and interest on the amount of voluntary declaration as above. ………………………..
The assessee has vide its written reply filed . ............. Voluntarily surrendered the following amounts as undisclosed income for the assessment year 2008-09: a) An amount of Rs. 1,20,74,454/- in respect of some payments to the subcontractors i.e M/S Siva Construction and Krat Engineers. b) Rs. 6,60, 800/- towards agreement of Sale with MIS Udha yam foundations, Chennai. c) Rs. 4,80,2401- and Rs. 46,98,184 for purchase of property at Gan.qkiicj.
That as against the total declaration of Rs. 5.00 crores made at time of statement filed u/s 132(4) as mentioned in para 2 supra, the assessee filed its revise return on 27. 12.2011 declaring additional income of Rs. 1,85,00,000/-.
7. The assessment order passed for the A. Y. 2008-09 under the assessment proceedings was also assessed for the same amount of Ps. 1,85,00, 000/- 8. The assessee has suo motto surrendered the income of PS. 1, 85, 00,000/- in respect of items mentioned at serial no.5 above. The assessee has neither concealed any income nor furnished any inaccurate particulars of income. ...........................” The AO observed that the contention of the assessee in reply has been given due consideration. He held that the contention of the assessee regarding non-levying of penalty is not acceptable on following grounds-
“i) Though, the assessee had disclosed Rs.50 crores (Rs. 5 crores for AY 2008-09) at the time of search, it was done only after the assessee was confronted with the incriminating documents. It is well-settled that if the department has incriminating material with regard to disclosed income, disclosure cannot be stated to be voluntary. ii) The disclosure on account of various issues as discussed above, was made by the assessee only at the time of assessment proceedings, when after analysis of the seized material and verification of books of accounts, the assessee was confronted on the above issues. The assessee had filed the revised return only on 27-12-2011, when the assessment proceedings were on the verge of finalization. Hence, the disclosure of incomes on above- mentioned issues can in no terms be called as voluntary. iii) The declaration of Rs. 5 crores made at the time of search for the relevant year, has no relevance as the assessee revised its return and made disclosure of income on the basis of various issues raised at the time of assessment proceedings. iv) The assessee revised its return and made disclosure of income only when the concealment was detected at the time of assessment proceedings, on the basis of incriminating seized material.
It is well-settled that revised return after detection of concealed income offers no immunity from penalty.
Hence, it is a clear case of concealment of income and penalty is ought to be levied on the assessee.
Based on the above facts and arguments I am satisfied that the assessee has concealed its income amounting to Rs. 2,42,13,619/- and penalty needs to be levied upon the assessee u/s 271(1)(c) of the I.T. Act.”
Against above order, assessee appealed before the Ld. CIT(A). The Ld. CIT(A) referred to assessee’s submissions. He observed as under:-
“The order of penalty of the AO dated 18.06.2012 and assessee’s arguments during hearing as well as assessee’s submissions have been considered. It is a fact that the assessee has made declaration and disclosed the income u/s 132(4) amounting to Rs.50 crores for the entire group of cases in which search was conducted u/s 132. It included amount of Rs.1,85,00,000/- which related to Assessment Year 2008-09 in the case of M/s Sunil Hitech Engineers Ltd. Though the difference between assessed income of Rs.33,64,88,160/- and the total income as per the original return u/s 139 filed on 24.09.2008 is Rs.1,66,67,760/-, the AO has wrongly treated the concealed income at Rs.2,42,13,619/-.
5. Therefore, Ld. CIT(A) referred to several case laws and concluded as under:-
“Respectfully, following the judgment of the Hon’ble ITAT, Nagpur Bench in the case of DCIT vs Purti Sakhar Karkhana and the fact that the assessee had disclosed the amount u/s 132(4) of the Act and offered the same in the return filed by the assessee u/s 153A and the assessed income is the same as the returned income, it is held that the penalty levied by the AO is not justified. Accordingly, the penalty of Rs.73,00,000/- levied by the AO u/s 271(1)(c) is deleted. The AO is accordingly directed to delete the penalty.” 6. Against the above order revenue is in appeal before us.
We have heard both the counsel and perused the records.
Learned departmental representative submitted that levy of penalty in this case is quite correct. He submitted that learned CIT(A) has totally erred in holding that assessee has voluntarily surrendered the income and revised the return.
Learned departmental representative submitted that it was only during the course of assessment when the assessee was confronted with the materials showing that assessee has concealed the income and furnished inaccurate particulars of income that the assessee agreed before the assessing officer offer the same. Hence learned departmental representative submitted that by no stretch of imagination it can be said that assessee has made any voluntary surrender of income so as to get out of the ambit of penalty under section 271(1)(c) of the Act.
Per Contra learned counsel of the assessee supported the order of the learned CIT(A). He submitted that assessee has duly made voluntary disclosure of income under a statement under section 132(4). He further submitted that assessee had made voluntary disclosure and assessee should not be visited with the rigours of penalty. In this regard learned counsel placed reliance upon several case laws including apex court decision in the case of S.C. Mittal.
We have carefully considered the submissions and perused the records. We note that Assessing Officer in the penalty order and the assessment order has clearly given a finding that assessee had agreed for the impugned additions only when assessee was confronted with the incriminating materials by the assessing officer during the course of assessment. Furthermore as regards the assessee's claim of aforesaid income under a statement under section 132(4) is concerned we note that nothing is on the records as to when pursuant to the said admission taxes were paid by the assessee or in which return filed the said disclosure was made. We find that provisions of law under section 271(1)(c) for search conducted is contained in Explanation 5 & Explanation 5A to that section. We note that Ld. CIT(A) in his appellate order has not dealt with the concerned section. He has also not dealt with the Assessing Officer’s observation that the offer of income was not voluntarily. We also note that Ld. CIT(A) has not dealt with as to when assessee paid the taxes in accordance with his offered under section 132(4) of the Act or when pursuant to the said disclosure return of income was filed. We note that in his appellate order, Ld. CIT(A) has referred several case laws and without showing as to how these are comparables or applicable on the facts of the case decided the issue in favour of the assessee. We further note that Hon’ble Apex Court has an occasion to consider the issue of levy of penalty u/s 271(1)(c) of the Act with respect to claim of voluntary disclosure in the case of MAK Data Pvt. Ltd. vs CIT, vide order dated 31/10/2013. In our considered opinion on the facts and circumstances of the case, the issue needs to be remitted to the Ld. CIT(A) to consider the issue in light of observation as above. Ld. CIT(A) shall also consider the case laws and other submissions been made by the Ld. Counsel of the assessee.
In the result, appeal filed by the Revenue stands allowed for statistical purpose.
Cross objection No.57/Mum/2019
The grounds reads as under:
Each of the following ground is independent of and without prejudice to one another: 1) On the facts and in the circumstances of the case, the Assessing Officer erred in levying penalty on the payments made to sub-contractors, viz. Siva Construction and Krat Engineering of Rs. 1,17,74,454/- and Rs.3,00,000/- as being concealment of income; 2) On the facts and in the circumstances of the case, the Assessing Officer erred in levying penalty on the cash payments of Rs. 13,50,000/- for purchase of property to Udayam Foundations; 3) On the facts and in the circumstances of the case, the Assessing Officer erred in levying penalty on payments of Rs. 1,07,89,165/- in cash for purchase of property by Gangakhed Sugar & Energy Pvt. Ltd.
It is noted that there is a delay of 513 day in filing the cross objection.
In reasonable cause for delay it is stated that at the time of hearing, ITAT Bench point out that assessee should file cross objection. We do not find any noting in the order-sheet.
Hence, this reasonable cause is rejected. Therefore, cross objection is dismissed in limine.
Order pronounced in the Open Court on 07/05/2019