Income Tax Appellate Tribunal - Mumbai
Rajesh R. Shah, Mumbai vs Acit (Osd)-I Cr-7, Mumbai on 13 December, 2017
ITA.No.272 to 275/Mum/2016 Rajesh R.Shah Assessment Years-2006-07 to 2009-10 आयकर अपीलीय अिधकरण "बी"
ायपीठ मुं बई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI ी डी.टी. गरािसया, ाियक सद एवं ी मनोज कुमार अ वाल, लेखा सद के सम ।
BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM आयकर अपील सं./I.T.A. No.272 to 275/Mum/2016 (िनधा रण वष / Assessment Years: 2006-07 to 2009-10) Rajesh R.Shah Assistant Commissioner Of 604, Nilgiri, Neelkanth Vihar Income Tax (OSD)-I बनाम/ S.B.K.Ram Marg Circle-7 Ghatkopar(E) Vs. Mumbai-400 012 Mumbai-400 077 थायी ले खा सं . /जीआइआर सं ./PAN/GIR No. AFZPS-2416-N (अ पीलाथ# /Appellant) : ($%थ# / Respondent) Assessee by : Vinod Kumar Bindal & Gaurav Bansal ,Ld.AR's Revenue by : Suman Kumar, Ld. Sr. DR सुनवाई की तारीख / : 30/10/2017 Date of Hearing घोषणा की तारीख / : 13/12 /2017 Date of Pronouncement आदे श / O R D E R Per Manoj Kumar Aggarwal (Accountant Member)
1. The captioned appeals by assessee for Assessment Years [AY] 2006-07 to 2009-10 assails separate order of first appellate authority qua confirmation of penalty u/s 271(1)(c). Since similar issue is involved in all 2 ITA.No.272 to 275/Mum/2016 Rajesh R.Shah Assessment Years-2006-07 to 2009-10 the appeals, we dispose-off the same by way of this common order for the sake of convenience and brevity. First we take up ITA No. 275/Mum/2016 for AY 2006-07 which contest the order of Ld. Commissioner of Income-Tax (Appeals)-52 [CIT(A)], Mumbai, Appeal No.CIT(A)-52/ACIT-CC-4(4)/136/2014-15 dated 21/10/2015. The assessment for impugned AY was framed on 13/01/2014 by Ld. Deputy Commissioner of Income Tax (OSD)-1, Mumbai [AO] u/s 143(3) read with Section 153A. The penalty was levied on 25/07/2014 by Ld. Assistant Commissioner of Income Tax (OSD)-1, Central Range-7, Mumbai [AO[ u/s 271(1)(C).
2.1 Facts leading to the same are that the assessee being resident individual engaged as financial consultant and deriving income under various head was subjected to an assessment for impugned AY u/s 143(3) read with Section 153A on 13/01/2014. Consequent to search / survey actions u/s 132(1) / 133A on 20/01/2012 on 'MAN' Group of cases and its associate concerns, the case of the assessee was also covered under the same.
2.2 The original return of income was filed by the assessee on 31/03/2007 at Rs.6,24,660/-. Consequent to notice u/s 153A dated 03/10/2012, the assessee filed return of income on 09/11/2012 at Rs.10,10,009/-. The assessment was completed at Rs.10,41,530/- after estimated addition of 20% against vehicle and conveyance expenses. 2.3 Consequently, penalty proceedings were initiated during assessment proceedings and the assessee has been saddled with a penalty of Rs.1,29,707/- u/s 271(1)(C) vide order dated 25/07/2014 since Ld. AO opined that the assessee deliberated concealed the income to 3 ITA.No.272 to 275/Mum/2016 Rajesh R.Shah Assessment Years-2006-07 to 2009-10 the extent of additional income offered in return pursuant to Section 153A vis-à-vis original return of income filed u/s 139(1).
3. Aggrieved, the assessee contested the same on legal grounds as well as on merits but without any success before Ld. CIT(A) vide impugned order dated 21/10/2015 where Ld. CIT(A) justified the penalty in terms of Explanation 5A to Section 271(1)(c). Aggrieved, the assessee is in further appeal before us.
4. The Ld. Counsel for Assessee [AR] submitted that the returned income filed by assessee u/s 153A has been accepted by the revenue and therefore, penalty was not justified. Our attention is drawn to the fact that no incriminating material was found during search operations and no undisclosed income could be detected by the revenue and the additional income was offered voluntarily by the assessee. Reliance was placed on several judicial pronouncements for various contentions. Per Contra, Ld. DR contended that penalty was justified since the assessee disclosed additional income subsequent to search operations only and the same was not voluntary.
5. We have heard rival contentions and perused relevant material on record. The admitted fact are that the assessee has filed return of income pursuant to notice u/s 153A which has been accepted by the revenue as such without any substantive additions except for some estimated adhoc additions against vehicle / conveyance expenses claimed by the assessee. It is also admitted fact that no incriminating material has been found and no undisclosed income has been detected by the revenue.
4ITA.No.272 to 275/Mum/2016 Rajesh R.Shah Assessment Years-2006-07 to 2009-10
6. At this juncture, we find that Hon'ble Delhi High Court in recent judgment titled as PCIT Vs. Neeraj Jindal [79 Taxmann.com 96 dated 09/02/2017] has held that once Assessing Officer accepts revised return filed u/s 153A, original return u/s 139 abates and becomes non-est and therefore, concealment has to be seen with reference to revised return filed by the assessee. It has further been observed that the mere fact that the assessee has filed revised returns disclosing higher income than in the original return, in the absence of any other incriminating evidence, would not mean that the assessee has "concealed" his income for the relevant assessment years and mere increase in the amount of income shown in the revised return is not sufficient to justify a levy of penalty. Further, Section 153A is a complete code in itself and starts with non- obstante clause and overrides other provisions of the act. Therefore, once the assessee files a revised return under Section 153A, for all other provisions of the Act, the revised return will be treated as the original return filed under Section 139.
7. Upon perusal of the ratio of the title judgment, we find that imposition of penalty is not automatic and the same being penal in nature has to be construed strictly and should fall within the four corners of the statutory provisions. The 'concealment has to be in the return of income' filed by the assessee. Further, the provisions of Sections 153A, 153B and 153C are intended to be a complete code for post-search assessments. Considering that the non-obstante clause under Section 153A & 153C excludes the application of, inter alia, Section 139, it is clear that the revised return filed under Section 153A & 153C takes the place of the original return under Section 139, for the purposes of all 5 ITA.No.272 to 275/Mum/2016 Rajesh R.Shah Assessment Years-2006-07 to 2009-10 other provisions of the act and accordingly, if the same has been accepted as such by the revenue, the penalty was not justified in view of the fact that return filed pursuant to Section 153A has to be looked at as a second chance to assessee to make good omission, if any, in the original return. Once AO accepts the revised return filed under Section 153A, the original return filed u/s 139 abates and become non-est. Further, it is trite to say that "concealment" has to be seen with reference to the return that is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-à-vis the original return under Section 139. Therefore, respectfully following the ratio of the above decision, we delete the impugned penalty and allow assessee's appeal.
8. The assessee, in similar manner, has been saddled with penalty in AYs 2007-08 to 2009-10 which has been further contested before us vide ITA Nos. 272 to 274/Mum/2016. The grounds are identical and facts and also identical except for minor variations in figures etc. Hence, taking the same stand, we delete the impugned penalties and allow assessee's appeal for all these years.
9. In nutshell, all the appeals filed by the assessee stands allowed.
Order pronounced in the open court on 13th December, 2017.
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ITA.No.272 to 275/Mum/2016
Rajesh R.Shah
Assessment Years-2006-07 to 2009-10
Sd/- Sd/-
(D.T. Garasia) (Manoj Kumar Aggarwal)
ाियक सद / Judicial Member लेखा सद / Accountant Member
मुंबई Mumbai; िदनां क Dated : 13.12. 2017
Sr.PS:- Thirumalesh
आदे श की ितिलिप अ !े िषत/Copy of the Order forwarded to :
1. अपीलाथ# / The Appellant
2. $%थ# / The Respondent
3. आयकर आयु+(अपील) / The CIT(A)
4. आयकर आयु+ / CIT - concerned
5. िवभागीय $ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड. फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायक पं जीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai