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Income Tax Appellate Tribunal, “ A ” BENCH, AHMEDABAD
Before: SHRI N.K. BILLAIYA & SHRI MAHAVIR PRASAD
आदेश / O R D E R
PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : These are two appeals by the Department against the order of the Commissioner of Income Tax(Appeals)-II, Surat, dated 06/08/2013, in the matter of assessment under section 271(1)(c) of the Income tax Act, 1961 (‘the Act hereinafter’), for the Assessment Year (AY) 2003-04 & 2009-10 respectively, following grounds has taken by the department in ITA No.2499/Ahd/2013 for Asst. Year 2003-04:-
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 2 - i. On the facts and circumstances of the case and in law, the Ld.CIT(A)-II, Surat has erred in cancelling the penalty levied by the AO as the assessee has not disclosed its correct income in it’s original return of income and the revised return of income was filed by the assessee only because of action of Investigation Wing of the department. ii. On the facts and in the circumstances of the case, the learned CIT(A) ought to have upheld the order of the Assessing Officer. iii. It is therefore, prayed that the order of the CIT(A) may be set-side and that of Assessing Officer may be restored to the above extent.
The relevant facts as culled out from the materials on record are as under:- In this case, the assessee had filed its return of income for Asst. Year 2003-04 on 24.10.2003 declaring total income at Rs.1,38,887/- Subsequently, the assessee filed a revised return of income on 26.02.2010 wherein he had declared income of Rs.21,14,946/-. However, the revised return filed by the assessee was not a valid return as the time limit for revising the return for the relevant year had already been expired. Therefore, the Assessing Officer issued a notice under Sec.148 of the Act on 23.03.2010 and duly served upon the assessee.
2.2 On verification, it was noticed that based on the information received in respect of unaccounted bank accounts maintained by the assessee, enquiry proceedings were carried out by the Income-tax Department at Mumbai. As a result of this enquiry proceedings, the assessee admitted unaccounted income to the tune of Rs.19,76,059/- for
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 3 - Asst. Year 2003-04, over and above his regular income. Accordingly, in the revised return filed, the assessee has shown an amount of Rs.8,81,997/- as profit on turnover of Rs.4,40,99,866/- pertaining to the transactions reflected in the unaccounted bank account, Rs.4,59,334/- as interest on bank fixed deposits and the balance amount of Rs.5,75,038/- for any other discrepancy. The assessment was completed under Sec.143(3) r.w.s. 147 of the Act determining the total income at Rs.1,14,27,479/- after making additions of Rs.2,50,000/- on account of KVP interest, Rs.90,85,233/- on account of peak balance. However, these additions were made after giving telescopic benefit to the additions on account of unaccounted investment in KVPs of Rs.25,00,000/-, unaccounted fixed deposits with Dena Bank of Rs.62,00,000/- and gross profit estimation on unaccounted turnover of Rs.48,50,985/-. Penalty proceedings were also initiated in this case.
2.3 Aggrieved by the order, the assessee preferred an appeal before the learned CIT(A)-II, Surat. In appeal, the Ld.CIT(A) partly allowed the appeal of the assessee confirming the addition to the extent of Rs.10,00,000/- on account of investment in KVP and the gross profit addition made on the turnover taken ice in the unaccounted bank account was restricted to 3% as against the addition made @ 13%. Therefore, out of the total addition of Rs.93,35,233/- made by the A.O., the Ld.CIT(A) confirmed the additions to the extent of Rs.14,40,998/-.
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 4 - 2.4 In view of the above, the Assessing Officer finalized the penalty proceedings and imposed a penalty of Rs.10,57,349/-. While passing the order, the Assessing Officer observed that the revised returns of income were filed after enquiries were conducted by the Investigation Wing and also the same were invalid returns as the same were filed after the time limit prescribed under Sec.139(5) of the I. T. Act. It was also held that the additional income so disclosed in the revised return apart from the additions confirmed in appeal amounted concealed income, for which penalty was levied under Sec.271(l)(c) of the Act.
2.5 However, in the appeal, the Ld.CIT(A)-II, Surat confirmed the levy of penalty in respect of addition of Rs.10,00,000/- pertaining to unexplained investment in KVPS but deleted the penalty in respect of addition of Rs.4,40,998/- on account of estimation of gross profit.
2.6 The decision of the Ld.CIT(A) is not acceptable as the penalty was rightly levied by the A.O. on the additional income shown in the revised return of income and estimation of gross profit. Only after the initiation of enquiry proceedings, the assessee filed to revised return of income belatedly and the same was filed because of detection of new facts during the course of enquiry proceedings by the Investigation Wing, which were never disclosed by the assessee voluntarily in the period of two years before the enquiry proceedings were initiated by the Department. Even otherwise, this income was not disclosed at the time of filing original return of income and there was no intention on the part of the assessee to
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 5 - revise the return within the prescribed time. The penalty u/s 271(l)(c) was, therefore, rightly levied on the addition account estimation of gross profit as it was not an estimate in itself but based upon facts of the case and on undisclosed turnover of the assessee.
2.7 The tax involved in this assessment year is Rs.1,32,300/-. However, the Ld. CIT(A)-II, Surat in composite order, partly allowed the appeals of the assessee for Asst. Year 2003-04 to 2009-10. The major issue involved in these years is common and in two years i.e. Asst. Year 2004-05 and Asst. Year 09-10, the tax involved is more than the prescribed monetary limit prescribed by the Board Instruction No.3/2011 dated 09.02.2011.
We have gone through the relevant record and impugned order passed by the learned CIT(A). Ld. CIT(A) has mentioned in his order, which is reproduced as under: “7.1 In view of the above, it is held that the appellant failed to disclose all the material facts in respect of source of investment in KVP and consequently, the addition of Rs.10,00,000/- become ‘deemed concealment’ u/s.271(1)(c) of the Act read with Explanation-1. Consequently, penalty equal to 100% of tax of Rs.10,00,000/- in assessment year 2003-04 is confirmed. 8. As regards addition of Rs.4,40,998/- in respect of gross profit, the appellant had disclosed a gross profit of 2% in the assessment year 2003-04, while he had disclosed higher gross profit for all the remaining assessment years. The assessing officer took a net profit @13% which has reduced to 3% by the CIT(A). In respect of this sustained addition of 1%, it cannot be said that the appellant had not disclosed all the material facts in the revised return of income filed
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 6 - which was later treated as having been filed in response to notice u/s.148.
8.1 The addition was made for the reason that appellant has not been able to substantiate estimate of Gross Profit. Addition of 1% has been sustained by comparing GP with GP disclosed in subsequent years. Therefore, it cannot be said that full material facts were not disclosed in revised return and the appellant’s explanation was not bonafide. Consequently, the penalty to that extent is deleted. 8.2 The addition of Rs.94,000/- as assessment year 2008-09 has been made for the reason that the appellant has not been able to furnish any evidence of investment in fixed Deposits to that extent. Therefore, it cannot be said that full material facts were disclosed by the appellant. Consequently, the addition of Rs.94,000/- becomes ‘deemed concealment’ under Explanation-1 to section 271(1)(c) of the IT Act. Therefore, penalty levied @100% of tax sought to be evaded on Rs.94,000/- is confirmed in assessment year 2008-09. 9. As regards the additional income shown in the revised returns of income (GP in respect of undisclosed turnover) before issue of notice u/s.148, the said declaration was made by the appellant voluntarily before the completion of enquiries by the Investigation Wing and before any statement of appellant could be recorded on this issue. Moreover, in respect of last two assessment year (Asstt. Year 2008-09 and 2009-10), the limitation to file revised return of income u/s.139(5) had not been expired. Therefore, respectfully following the decisions of superior courts relied upon by the appellant, the penalty equal to 100% of tax sought to be evaded in respect of additional income disclosed in the revised returns, from assessment years 2003-04 to assessment years 2009-10 are deleted.” 4. We do not find any infirmity in this order passed by the learned CIT(A). Ld. CIT(A) has passed a reasoned and detailed order. We do not require any kind of infirmity in this order. Therefore, appeal of the department is dismissed.
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 7 - 5. Now we take up the Department’s appeal in ITA No.2505/Ahd/2013 for Asst. Year 2009-10 and following Grounds of appeal has taken by the department. i. On the facts and circumstances of the case and in law, the Ld.CIT(A)-II, Surat has erred in cancelling the penalty levied by the AO as the assessee has not disclosed its correct income in it’s original return of income and the revised return of income was filed by the assessee only because of action of Investigation Wing of the department. ii. On the facts and in the circumstances of the case, the learned CIT(A) ought to have upheld the order of the Assessing Officer.
In this case, the assessee had filed its return of income for Asst. Year 2008-09 declaring total income at Rs.6,99,696/-. Subsequently, the assessee filed a revised return of income on 23/02/2010 wherein he had declared total income of Rs.23,53,363/-. However, the revised return filed by the assessee was not a valid return as the time limit for revising the return for the relevant year had already been expired. Therefore, the Assessing Officer issued a notice under Sec.148 of the Act.
6.2 On verification, by the department it was noticed that based on the information received in respect of unaccounted bank accounts maintained by the assessee, enquiry proceedings were carried out by the Income-tax Department at Mumbai. As a result of this enquiry proceedings, the assessee admitted unaccounted income to the tune of Rs.16,53,367/- for Asst. Year 2008-09, over and above his regular income. Accordingly, in
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 8 - the revised return filed, the assessee has shown an amount of Rs.16,48,175 /- being the gross profit estimated on higher side by further 4% on total turnover. The assessment was completed under Section 143(3) r.w.s 147 of the Act determining the total income at Rs.23,53,363/- accepting the income shown in the revised return of income. Penalty proceedings under section 271(1)(c) of the Act were also initiated. However, the assessee has not contested the same before any appellate authorities.
6.3. Assessing Officer finalized the penalty proceedings and imposed a penalty of Rs.5,60,215/-. While passing the order, the Assessing Officer observed that the revised returns of income were filed after enquiries were conducted by the Investigation Wing and also the same were invalid returns as the same were filed after the time limit prescribed under Section 139(5) of the IT Act. It was also held that the additional income so disclosed in the revised return amounted concealed income, for which penalty was levied under section 271(1)(c) of the Act.
However, in the appeal, the learned CIT(A)-II, Surat cancelled the penalty imposed by observing that the declaration was made by the assessee before the completion of enquiries by the Investigation Wing and before any statement of the appellant could be recorded on this issue.
We have gone through the relevant record and impugned order. Now appeal is before us.
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 9 - In quantum proceeding in ITA No.2499/Ahd/2013 for A.Y.2003- 04, we have confirmed the order of the CIT(A), in which he has reversed the order of the Assessing Officer and in the said order, we have also dismissed the department’s appeal. Since we have not given any relief in the quantum proceeding to the department and confirmed the order of the CIT(A).
In this case, we do not find any infirmity in the order passed by the learned CIT(A). Therefore, we also dismiss this appeal of the department and confirmed the order of the CIT(A) in which he has deleted the penalty.
In the result, both the appeals filed by the department are dismissed. This Order pronounced in Open Court on 02/08/2017
Sd/- Sd/- एन.के. �ब�लैया महावीर �साद (लेखा सद�य) (�या�यक सद�य) ( MAHAVIR PRASAD ) ( N.K. BILLAIYA ) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 02/08/2017 Priti Yadav, Sr.PS
ITA Nos.2499 & 2505/Ahd/2013 ACIT vs. Shri Kishorkumar P. Mashruwala Asst.Years –2003-04 & 2009-10 respectively - 10 -
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)-II, Surat. �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 True Copy 1. Date of dictation 24/07/2017 (dictation-pad 4 pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …02/08/2017 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……. 7. Date on which the file goes to the Bench Clerk………………… 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………………