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Income Tax Appellate Tribunal, “ SMC ” BENCH, AHMEDABAD
Before: SHRI S.S. GODARA & SHRI PRADIP KUMAR KEDIA
आदेश / O R D E R PER PRADIP KUMAR KEDIA - AM: The captioned appeal has been filed at the instance of the assessee is against the order of the Commissioner of Income Tax(Appeals)-10, Ahmedabad [CIT(A) in short] dated 09/12/2014 in the matter of penalty order dated 09/03/2012 passed under s.271(1)(c) of the Income
ITA No.263/Ahd/2015 Shashiben Rajendra Jain vs. ACIT Asst.Year – 2007-08 - 2 - Tax Act, 1961 (hereinafter referred to as "the Act") relevant to Assessment Year (AY) 2007-08.
In this appeal, the assessee seeks to challenge the action of the CIT(A) in sustaining penalty on quantum addition of Rs.2,50,672/- under s.271(1)(c) of the Act.
Briefly stated, a survey under s.133A of the Act was carried out at the business premises of the assessee on 19/01/2007. In the course of survey, the assessee made a disclosure of Rs.35 lakhs towards undisclosed income. It was alleged by the AO that the assessee did not include the aforesaid income in the return filed subsequent to the survey on 02/11/2007 relevant to AY 2007-08. The AO accordingly imposed penalty there on under s.271(1)(c) of the Act.
In the first appeal, the CIT(A) found that out of addition of Rs.35 lakhs in the quantum proceedings, a sum of Rs.32,49,328/- was found unsustainable by the ITAT. Therefore, relief was granted to the assessee for the aforesaid amount. The CIT(A) noticed that in the course of proceedings before the ITAT, the assessee offered the balance amount of rs.2,50,672/- as income which have not been disclosed in the return of income. The aforesaid amount was thus found to be undisclosed income of the assessee. The CIT(A) accordingly sustained penalty on the aforesaid amount of Rs.2,50,672/-.
ITA No.263/Ahd/2015 Shashiben Rajendra Jain vs. ACIT Asst.Year – 2007-08 - 3 -
Aggrieved, the assessee is in appeal before the ITAT.
With the assistance of the ld.AR for the assessee, we find that addition of Rs.2,50,672/- emanating from survey proceedings are purely an estimate. The AO has not pointed out in what manner the assessee has concealed income or furnished in accurate particulars of income. No specific material is available on record to prove the fact of concealment. The sole basis is the admission made by the assessee before the survey team. In the absence of any tangible material incriminating the assessee with any malafide, we do not consider it a fit case for imposition of penalty. In these circumstances, we find merit in the plea raised on behalf of the assessee for deletion of penalty. We direct the AO to do so accordingly.
In the result, appeal of the assessee is allowed. This Order pronounced in Open Court on 10 11 /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 10/ 11 /2017 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS
ITA No.263/Ahd/2015 Shashiben Rajendra Jain vs. ACIT Asst.Year – 2007-08 - 4 -
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)-10, 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 .. 7.11.17 (dictation-pad pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …7.11.17 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…….10.11.17 7. Date on which the file goes to the Bench Clerk…………………10.11.17 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………………