Income Tax Appellate Tribunal - Chennai
Late Manjula Munirathinam Rep By Sri ... vs Department Of Income Tax on 4 June, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
'B' BENCH : CHENNAI
BEFORE Dr. O.K. NARAYANAN, VICE PRESIDENT AND
SHRI S.S. GODARA, JUDICIAL MEMBER
I.T.A. No.126/Mds/2013
Assessment year : 2009-10
The Assistant Commissioner Late Manjula Munirathinam
of Income Tax Rep by Shri R.S. Munirathinam
Central Circle - II(5) v. No.83, Plot No.2981, 1st Street,
CHENNAI. Z Block, Anna Nagar,
CHENNi - 600 040.
PAN : AACPM7131Q
I.T.A. No.127/Mds/2013
Assessment year : 2009-10
The Assistant Commissioner Shri R.M. Kishore
of Income Tax No.83, Plot No.2981, 1st Street,
Business Ward-IV(2), Z Block, Anna Nagar,
CHENNAI. CHENNi - 600 040.
PAN : AHSPK2751K.
(Appellant) (Respondent).
Department by : Mr. N. Madhavan, JCIT
Assessees by : Mr. G. Baskar, Advocate
Date of Hearing : 04 June 2013
Date of Pronouncement : 11th June 2013
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ITA No.126,127/Mds/13
ORDER
PER S.S. GODARA, J.M :
These appeals filed by the Revenue in the cases of different assessees are directed against separate orders of the Commissioner of Income Tax (Appeals)-II, Chennai, dated 15.10.2012 in case No.46/11-12/A-II and case No.51/11-12/A.II respectively for Assessment Year 2009-10, in proceedings under sec.271(1)(c) of the Income Tax Act, 1961 (in short the Act).
2. There is delay of 3 days in filing of these appeals. The Revenue has filed for condonation thereof by way of affidavits dated 24.1.2013 in both cases which explain the cause for delay and prayed for condonation thereof. The assessees do not contest the averments in affidavits. After going through solemn affirmations, we are of the view that the delay in filing these appeals is neither willful nor wanton. Hence we :- 3 -:
ITA No.126,127/Mds/13 condone the delay of three days and admit the appeals for consideration on merits.
3. The sole grievance raised by the Revenue in both the cases is that the CIT(Appeals) has wrongly deleted penalty imposed by the Assessing Officer under sec.271(1) of Act. Before us, the Revenue reiterates the pleadings and prays for acceptance of the appeals, which in turn, is opposed by the assessees who rely upon the orders under challenge passed by the CIT(Appeals).
Since a common issue is sought to be raised by the parties in both cases, we take up ITA No.126/Mds/2013 as the lead case.
4. ITA No.126/Mds/2013 : Facts apropos are in a narrow compass. The assessee (now dead) is an 'individual'. In the impugned assessment year, she was trustee of two educational trusts and also a partner in a firm by the name of M/s. SRR Bricks. On 26.8.2008, the department had conducted 'search' and 'seizure' operation in her premises. Thereafter, a notice :- 4 -:
ITA No.126,127/Mds/13 under sec.153A of the Act was issued to her. In response, she filed her return disclosing income of `.1,24,16,520/- and paid tax of `.45,60,551/-. The income disclosed also included additional 'other income' of `.39,53,439/-. Thereafter, the Assessing Officer finalized ;scrutiny' assessment vide order dated 31.12.2010 accepting assessee's return without making any addition. In other words, the Assessing Officer accepted the assessee's books as well as the nature of income. However, he issued notice to the assessee for concealing particulars of income under sec.271(1)(c) of the Act qua the aforesaid 'other' income.
5. In the course of penalty proceedings, the assessee would contend that she had voluntarily disclosed the 'other income' without any incriminating material found by the Asessing Officer. We notice from the penalty order dated 30.6.2011 that the same failed to make the Assessing Officer agree with the explanation tendered who was of the opinion that but for search the other income would not have been disclosed by the assessee.
:- 5 -:
ITA No.126,127/Mds/13
6. The assessee carried the matter in appeal. We find from the order under challenge passed by CIT(Appeals) holding that the present being a case of penalty in a 'search' conducted on 26.8.2008, the same has to be dealt with under sec.271AAA of the Act and not under sec.271(1)(c) of the Act.
7. On merits, it is revealed from the CIT(Appeals)'s order that after considering the assessee's contentions in detail as well as taking into consideration the concept of 'undisclosed income' defined in sec.271AAA, he has held that no such income is forthcoming from the instant case so as to attract the impugned penalty. Whilst deleting the penalty, the CIT(Appeals) has also placed reliance on the case law of Suresh Chandra Mital (2001) (251 ITR 9)(SC).
Therefore, the Revenue is in appeal.
9. We have heard both parties at length and also perused the case file. The only contention of the Revenue is that it was only because of search that the assessee had disclosed her undisclosed income and therefore the present case calls for :- 6 -:
ITA No.126,127/Mds/13 imposition of penalty in question. We are unable to accept this contention. In our view, which is based on facts of the case ie. the 'search' was conducted on 26.8.2008; the accounting period of the impugned assessment year was upto 31.3.2009 the assessee had filed her return within time prescribed under the provisions of the Act disclosing additional other income and paid tax. So, there is hardly any scope to agree with the assertions of the Revenue that the present is a case of undisclosed income. We also make it clear that no material has been filed before us so as to controvert the findings of the CIT(Appeals). Therefore, we confirm the order under challenge passed by the CIT(Appeals).
10. ITA No.127/Mds/2013 : Both the parties before us are fair enough to clarify that the instant case also contains the same very facts and the issue involved is identical to the one decided herein above. After perusing the case file we notice that the instant appeal has also arisen in furtherance to penalty levied after the very 'search' conducted on 26.8.2008 and the assessee before us is the son of Smt. Manjula Munirathinam herein above and the issue sought to be raised by the Revenue is identical.
:- 7 -:
ITA No.126,127/Mds/13 Hence, we uphold the order of CIT(Appeals) deleting the penalty imposed by the Assessing Officer under sec.271(1)(c) of the Act.
11. Both appeals are dismissed.
Order pronounced on Tuesday, the 11th day of June, 2013, at Chennai.
Sd/- sd/-
(Dr. O.K. NARAYANAN) (S.S. GODARA)
VICE PRESIDENT JUDICIAL MEMBER
Dated: 11 June, 2013.
Jls.
Copy to:
1) The Appellant
2) The Respondent
3) The CIT(Appeals)
4) The CIT, (5) The D.R.,
6) Guard File