Income Tax Appellate Tribunal - Hyderabad
Smt.Dr.V.Gourisri,, Nalgonda vs Department Of Income Tax on 23 April, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "B" : HYDERABAD
BEFORE S/SHRI B. RAMAKOTAIAH, A.M. & SAKTIJIT DEY, J.M.
ITA.No.1837/Hyd/2013
Assessment Year 2006-07
ITO, Ward-1, Smt. Dr. V. Gourisri,
Nalgonda. vs. Nalgonda.
PAN:ABVPV3654P
(Appellant) (Respondent)
For Assessee : Sri P. Raviseshagiri Rao
For Revenue : Shri B. Yadagiri
Date of Hearing : 23-04-2014
Date of pronouncement : 07.05.2014
ORDER
PER SAKTIJIT DEY, J.M.
This appeal of the department is directed against the order dated 16-9-2013 of the CIT (A)-VI, Hyderabad deleting penalty imposed u/s 271(1)(c ) of the Act pertaining to the assessment year 2006-07.
2. Briefly the facts are, the assessee an individual is a doctor by profession. For the assessment year under dispute, she filed her return of income on 31-10-2006 declaring income of Rs.3,62,840/- besides agricultural income of Rs.1,00,000. A survey u/s 133A of the Act was conducted in case of the assessee on 23-1-2007. Pursuant to the survey, assessee filed a revised return on 23-3-2007 declaring income of Rs.17,99,840/- which included additional income of Rs.14,37,000/-. The agricultural income u/s 2 ITA.No.1837 of 2013 Dr. V. Gourisri, Nalgonda.
143(3) of the Act vide assessment order dt. 15-12-2008 accepting the income admitted in the revised return. However, the Assessing Officer initiated proceeding for imposition of penalty u/s 271(1)© of the Act by issuing a show cause notice to the assessee. The assessee in her explanation stated that during survey assessee along with her husband were asked to pay tax of Rs.30,00,000/- with an assurance that if such tax is paid then the returns will be accepted and no penalty proceedings will be initiated. Therefore, believing the assurance given at the time of survey, they have paid the taxes in asst. years 2005-06 to 2007-08. The assessee submitted that the Assessing Officer also accepted the income declared by the assessee without any variation. Thus, it was submitted that as the assessee and her husband have cooperated with the department in payment of taxes, filing returns of income and completion of assessment as suggested by the department no penalty should be imposed.
3. The Assessing Officer also recorded a statement from the assessee during the penalty proceeding. Ultimately, rejecting the explanation of the assessee, the Assessing Officer passed an order on 18-6-2009 imposing penalty of Rs.4,89,570/- u/s 271(1)© of the Act.
4. Being aggrieved of the order imposing penalty assessee preferred an appeal before the CIT (A). In course of proceeding before CIT (A), it was submitted that on the suggestion of departmental officers the assessee admitted additional income of Rs.14,37,000/- though no specific material was found in survey. It was submitted, though 3 ITA.No.1837 of 2013 Dr. V. Gourisri, Nalgonda.
assessee could be able to explain discrepancies but to purchase peace with the department has offered additional income. It was also submitted that the revised return not only was filed within the period prescribed under sec. 139(4) but income declared was also accepted by the Assessing Officer while completing assessment. Further, it was submitted by the assessee that on similar facts in assessee's own case for the asst. year 2005-06 the ITAT deleted the penalty imposed u/s 271(1)(c) of the Act. The CIT (A) after considering the submissions of the assessee deleted the penalty observing as under:-
"On perusal of the facts of the case with reference to the submissions of appellant, the observations made in the assessment order as well as the penalty order, reveal that the appellant has offered to pay the tax on additional incomes admitted during the survey proceedings, without any specific findings by the Assessing Officer and in absence of any specific information had filed revised return of income, voluntarily, within the stipulated time. It is also a fact that the Assessing Officer has not brought out any additional information/evidence to prove that the additional income admitted by assessee, represented the concealed income. The facts for the year under reference, are very much akin to the facts in the case of the appellant for the immediately preceding year, for which the penalty proceedings were not upheld by the CIT (A), and the decision of the CIT (A) in deleting the penalty u/s 271(1)(c), was upheld by Hon'ble ITAT, Hyderabad. Further, the case laws relied upon by the Assessing Officer in the penalty order are distinguishable on facts. Under the circumstances with no changes in the facts of the case, compared to the immediate preceding year, I am inclined to accept the contention of the Assessing Officer and hold 4 ITA.No.1837 of 2013 Dr. V. Gourisri, Nalgonda.
that the additional income admitted by the appellant is not proved from the angle of concealment. Hence, the penalty proceedings u/s 271(1)(c), for the year under reference, is not sustainable and the penalty of Rs.4,89,570/- levied by the Assessing Officer, is ordered to be cancelled.
5. We have heard the parties and perused the materials on record. The learned DR has contended before us that assessee field the revised return declaring additional income only as a result of survey. Referring to the statement recorded from the assessee during penalty proceedings, he submitted that the assessee has admitted that investments made by her are not recorded in the books of accounts which proves concealment. The learned AR on the other hand strongly supporting the order of the CIT (A) submitted that additional income was offered by the assessee on the assurance of the department that return will be accepted and no penalty will be imposed. It was submitted that as the revised return was filed within the time allowed u/s 139 of the Act and income declared was also accepted by the Assessing Officer there is no concealment of income. In support of such contention the learned AR relied upon the decision of Hon'ble Supreme Court in case of Suresh Chandra Mittal vs. CIT (251 ITR 9). He further submitted on similar facts penalty imposed u/s 271(1)(c ) of the Act was deleted by the ITAT in assessee's own case in ITA No.1008/Hyd/09 dated 13-1-2010.
6. After considering rival contentions we need to mention that there is no dispute that as per the offer made by the assessee at the time of survey she has filed revised return of income declaring the additional income offered at the time of 5 ITA.No.1837 of 2013 Dr. V. Gourisri, Nalgonda.
survey. It is also a fact that assessment was completed u/s 143(3) of the Act accepting the income declared without any variation. Unless actual concealment of income or furnishing of inaccurate particulars of income is found from the return of income, penalty cannot be imposed. As the assessee has made complete disclosure of income in the revised return and the Assessing Officer has also accepted such income, provisions of sec. 271(1)( c) will not be attracted as imposition of penalty u/s 271(1)(c ) can only be considered on the basis of income tax return. The allegation of the Assessing Officer that but for the survey, assessee otherwise would not have disclosed the income cannot be the sole basis for imposition of penalty u/s 271(1)©. May be explanation 5 and 5A may extend the scope of 'concealed income' identified in search operation but there is no such provision/explanation u/s 271(1)(c ) for proceedings u/s 133A so as to consider the income admitted in course of survey subsequently declared in the return of income in due course, as concealed income. It may be noted that in case of Suresh Chandra Mittal vs. CIT (supra), the Hon'ble Supreme Court has affirmed the view held by the Hon'ble M.P. High Court that when income declared by the assessee is accepted no penalty can be imposed u/s 271(1)© of the Act. Further, it is very much evident that during the survey operation, the assessee and her husband were asked to pay taxes of Rs.30 lakhs. On the suggestions of the department assessee and her husband paid the taxes by declaring corresponding income spread over assessment years 2005- 06 to 2007-08.
6 ITA.No.1837 of 2013Dr. V. Gourisri, Nalgonda.
7. Under identical facts and situation the Assessing Officer also imposed penalty for assessment year 2005-06 u/s 271(1)© of the Act. On a perusal of the penalty order passed for asst. year 2005-06, a copy of which is placed on record, it is very much clear that not only the basis for penalty proceedings is the survey conducted on 23-1-2007 but penalty order is similar in all respect except for the fact that in the present case the Assessing Officer has recorded a statement from the assessee. In the asst. year 2005-06 when the CIT (A) deleted the penalty the department went in appeal before ITAT. The ITAT vide order dated 13-1-2010 deleted the penalty by holding that there is no concealment. On examination, we find that in the present case also facts are materially same. Therefore, considering the fact that co- ordinate bench of this Tribunal has deleted penalty imposed u/s 271(1)(c ) of the Act in case of the same assessee for asst. year 2005-06 under identical facts and circumstances, we do not find any reason to interfere with the order of the CIT (A). Accordingly, we confirm the same by dismissing the grounds.
8. In the result, the appeal is dismissed.
Order pronounced in the open Court on 07.05.2014.
Sd/- sd/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated 7th May, 2014 Jmr* 7 ITA.No.1837 of 2013 Dr. V. Gourisri, Nalgonda. Copy to :
1.Income-tax Officer, Ward-1, Nalgonda.
2. Smt. Dr. V. Gourisri, H.No.8-2-67/2, Ansari Colony, Nalgonda.
3. CIT(A)-VI, Hyderabad
4. CIT-VI, Hyderabad
5. D.R. ITAT, 'B' Bench, Hyderabad.
8 ITA.No.1837 of 2013Dr. V. Gourisri, Nalgonda.
Sl. Description Date Initials No. 1. Date of dictation by the Author on computer Sr.PS 2. Draft placed before the Dictating Member Sr.PS 3. Draft placed before the Second Member J.M. 4. Draft approved by the Second Member A.M. 5. Date of approved order comes to the Sr. PS Sr.PS 6. Date of pronouncement of order Sr.PS 7. Date of file sent to the Bench Clerk Sr.PS
8. Date on which files goes to the Head Clerk
9. Date of dispatch of order