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Income Tax Appellate Tribunal, “ D ” BENCH, AHMEDABAD
Before: SHRI S.S. GODARA & SHRI PRADIP KUMAR KEDIAShri Ashish C.Sompura Shri Chandrakant Shri Nikhil C.Sompura Shri Gaurav Nahta, AR Shri Roopchand Sr.DR
Consolidated Appeals (4)
आदेश / O R D E R
PER PRADIP KUMAR KEDIA - AM:
The captioned appeals have been filed at the instance of the assessees named above against respective orders of the order of the Commissioner of Income Tax(Appeals)-III, Ahmedabad [CIT(A) in short] dated 19/09/2014 in the matter of respective penalty orders
IT(ss)A Nos.3381,402,3413 & 3380/Ahd/2014 Shri Ashish C.Sompura & Ors vs. DCIT Asst.Years – 2010-11 & 2011 12 - 2 - whereby penalty under s.271AAA of the Income Tax Act, 1961 (hereinafter referred to as "the Act") imposed on the assessee(s) was confirmed by the CIT(A) relevant to Assessment Years (AYs) 2010-11 & 2011-12.
The ground of appeals raised in all the four appeals is similar and therefore ground of appeal raised in IT(ss)A No.3413/Ahd/2014 is reproduced hereunder for ready reference:- The Ld.CIT Appeals III Ahmedabad has erred in law and on facts in passing appellate order dated 19/09/2014 for the A.Y. 2011-12 in the case of appellant by confirming the penalty u/s.271AAA amounting to Rs.3,40,200/-. 3. When the matter was called for hearing, the Ld.AR for the assessee Mr. Gaurav Nahta submitted at the outset that the present case concerns penalty imposed under s.271AAA of varied amount in the case of interconnected assessees arising out of the common search under s.132 of the Act. The Ld.AR further pointed out that a combined statement of the assessees herein was recorded under s.132(4) of the Act on 14/06/2010 wherein certain income pertaining to different assessees named above were disclosed. In pursuance of the disclosure so made, tax was duly paid in accordance with law and the income was offered and included in the return of income filed as a consequence of search. The Ld.AR thereafter submitted that the assessee has truthfully and with bonafide intentions declared the undisclosed income and also provided
IT(ss)A Nos.3381,402,3413 & 3380/Ahd/2014 Shri Ashish C.Sompura & Ors vs. DCIT Asst.Years – 2010-11 & 2011 12 - 3 - answer to all the queries raised in the statement recorded in the course of search. The Ld.AR thereafter submitted that no specific query was raised by the authorized officer towards ‘manner’ for deriving undisclosed income and substantiation thereof. Therefore, no fault can be attributed to the assessee alleged for alleged non-compliance of the conditions prescribed under s.271AAA(2) of the Act. The Ld.AR accordingly submitted that in the circumstances, the assessee is fully entitled to exit route provided under section 271AAA(2) of the Act for non-imposition of penalty. The Ld.AR finally submitted that the issue is squarely covered and in favour of assessee in view of the decision of the Coordinate Bench of Tribunal in the case of Shri Chandrakant B. Sompura for AY 2010-11 in IT(SS)A No.407/Ahd/2014, order dated 30/10/2017. The Ld.AR submitted that the relief was granted by the Coordinate Bench based on the same statement recorded under s.132(4) in question. He accordingly urged for deletion of penalty imposed under s.271AAA in all the impugned appeals.
The Ld.DR relied upon the order of the Assessing Officer (AO) and submitted that the conditions provided for non-imposition of penalty under s.271AAA has not been specified by the assessee and therefore no interference with the orders of the Revenue are called for.
IT(ss)A Nos.3381,402,3413 & 3380/Ahd/2014 Shri Ashish C.Sompura & Ors vs. DCIT Asst.Years – 2010-11 & 2011 12 - 4 - 5. We have carefully considered the rival submissions. The maintainability of imposition of penalty under s.271AAA of the Act is in controversy. Section 271AAA(2) provides for escape route from levy of penalty where the Assessee admits the undisclosed income in a statement under s.132(4) and specifies the manner in which undisclosed income has been derived and thereafter substantiates the manner. Coupled with this, the assessee is obliged to pay tax with interest in respect of undisclosed income. There is no dispute on the discharge of the tax liability on undisclosed income. The AO has evoked dispute on non-compliance of escape route with reference to absence of manner of deriving undisclosed income and substantiation thereof. We note that a statement under s.132(4) of the Act was recorded from Shri Nikhil C.Sompura in the presence of Shri Ashish C.Sompura and Shri Chandrakant B.Sompura on 14/06/2010. We straightaway find that the assessee has made disclosure certain unaccounted money. However, no question was posed before the deponent of the statement or other presentees towards manner of deriving the undisclosed income. Thus, we find merit in the plea of the assessee that benefit of exception provided under s.271AAA(2) of the Act cannot be denied to the assessee for the fault committed by the Revenue. The Coordinate Bench in Chandrakant B.Sompura (supra) has already taken a favourable view in the case of the assessee in AY 2010-11 emanating from the same statement. Thus, in parity, we direct the AO to delete the
IT(ss)A Nos.3381,402,3413 & 3380/Ahd/2014 Shri Ashish C.Sompura & Ors vs. DCIT Asst.Years – 2010-11 & 2011 12 - 5 -
penalty imposed under s.271AAA of the Act in all the four appeals of the assessees herein.
In the result, all the captioned appeals of the assessees are allowed. 6. This Order pronounced in Open Court on 08/ 12 /2017
Sd/- Sd/- (एस.एस.गोदारा) (�द�प कुमार के�डया) �या�यक सद�य लेखा सद�य ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 08/ 12 /2017 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-III, Ahmedabad �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation .. 7.12.17(dictation-pad 10- pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …7.12.17 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S…….8.12.17 7. Date on which the file goes to the Bench Clerk…………………8.12.17 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………