Income Tax Appellate Tribunal - Ahmedabad
The Acit, Central Circle 1,, Baroda vs Smt. Lomharshini A. Patel, Baroda on 27 January, 2017
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ, अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER आयकर अपील सं./ IT(SS)A.No.312/Ahd/2013 नधा रण वष / Asstt. Year: 2009-2010 ACIT, Cent.Cir.1 Smt.Lomharshini A. Patel Baroda. Vs D/9, Amruta Bungalows Navdeep Socieyt B/h. Gokuldham Society Manjalpur, Baroda.
PAN : AGCPK 1023 H
अपीलाथ!/ (Appellant) "#यथ!/ (Respondent)
Revenue by : Shri Sumit Kumar Varma, DR
Assessee by : Shri S.N. Soparkar, AR
सन
ु वाई क तार ख/ Dateof Hearing : 09/12/2016
घोषणा क तार ख / Date of Pronouncement: 27/01/2017
आदे श/O R D E R
This is Revenue's appeal. The sole ground raised in the appeal is as under:
"1. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in law and on facts in deleting the penalty in a combined order of Rs.10,91,000/- for A.Y.2009-10 levied u/s.271AAA of the I.T.Act, despite assessee having not satisfied the conditions mentioned in clause (i) & (iii) of Sect6ion 271AAA(2) of the Act."
2. In this case a search was conducted in the case of all family members of Shri Kiritbhai D. Patel. Assessee is one of the constituents. The ld.AO imposed impugned penalty. The ld.CIT(A) deleted the same by following observations:
IT(SS)A No.312/Ahd/2013 2 "6.6 In view of the above, I am of the considered opinion that so far as the manner of earning the income and substantiating the same is concerned, the appellant has, in my view, specified the manner of earning the undisclosed income as well as substantiated the same to the extent of questions having been asked in this regard in the statement recorded u/s 132(4) of the Act. There is nothing on record to suggest that the appellant has failed to respond to any of the questions relating to the manner as well as substantiating the same even during the course of assessment proceedings. In view of this, the appellant has fulfilled the first two conditions for availing of immunity from penalty proceedings u/s 271AAA of the Act. There is no dispute about the third condition as the appellant has paid tax with interest undisclosed income. Thus, the appellant has fulfilled all the conditions required for immunity from levy of penalty u/s 271AAA of the Act.
In view of the above, I am of the considered opinion that the appellant is eligible for immunity from penalty u/s 271AAA of the Act and, therefore, penalty levied by the AO of Rs.10,91,000/- and Rs.88,200/- for A.Ys. 2009-10 and 2010-11 respectively is hereby cancelled.
3. Aggrieved Revenue is in appeal.
4. The ld.DR relied upon the order of the AO. The ld.counsel for the assessee contended that similar Revenue's appeal against deletion of penalty under section 271AAA of the Act in the case other family members came up for hearing. The ITAT vide consolidated order dated 9.9.2016 in IT(SS)A.No.313/Ahd/2013 in the case of ACIT Vs. Shri Amit G. Patel, IT(SS)A.No.317/Ahd/2013 in the case of ACIT Vs. Smt. Pragnaben K. Patel and IT(SS)A.No.318/Ahd/2013 in the case of ACIT Vs. Smt. Madhuben D. Patel upheld the order of the CIT(A) deleting the penalty by following observations:
"Now Revenue is in appeals against the orders of ld. CIT(A) for allowing the appeals of the assessees.
IT(SS)A No.312/Ahd/2013 3
8. We have considered the rival submissions and gone through the relevant records. Ld. AR has filed detailed Paper Book and has also filed a copy of the decision of the Tribunal in the case of DCIT vs. M/s Vishal Fashion Pvt. Ltd. in ITA No.1141/Ahd/2012 for Asst. Year 2009- 10 and others vide order dated 06.11.2015 wherein the Asst. Year 2009-10 Co-ordinate Bench has upheld the order of ld. CIT(A) by giving observations as under :-
"The Revenues' case is that none of these three assessees satisfy first two conditions envisaged u/s.271AAA(2) of the Act i.e. admission of undisclosed income as well as specifying the manner of deriving the same followed by its substantiation. The CIT(A) refers to case law of Mahindra C. Shah (supra) and holds that the assessees in search statement had already claimed the impugned undisclosed income to have been earned from their business activities. He concludes that the same was never rebutted at any stage right from search till assessment. We find that a coordinate bench in ITA No.ll45/Ahd/2012 DCIT vs. Bharat L. Shah decided on 13.08.2015 arising from the very search dated 20.01.2009 upholds similar order of CIT(A) deleting identical Section 271AAApenalties on the very aspect of non satisfaction of first two conditions under sub-section 2thereof. The Revenue neither point out any distinction on facts nor does it file any evidence disputing the lower appellate findings on factual aspects that the assessees had declared their undisclosed income."
9. Respectfully following the decision of the Co-ordinate Bench we observe that in the present cases there is no infirmity/illegality in the order of ld. CIT(A), wherein penalties have been cancelled. We uphold the same. The common grounds raised in all the appeals of Revenue are dismissed."
5. It is contended that facts and circumstances and the issues being similar, having the ITAT's order in the case of other family members, impugned penalty deserves to be deleted.
6. I have heard rival contentions and gone through the record. Respectfully following the order of the ITAT dated 9.9.2016 (supra) in the IT(SS)A No.312/Ahd/2013 4 case of other family members, the order of the ld.CIT(A) deleting the penalty is upheld, and Revenue's appeal is dismissed.
7. In the result appeal of the Revenue is dismissed.
Order pronounced in the Court on 27th January, 2017 at Ahmedabad.
Sd/-
(R.P. TOLANI) JUDICIAL MEMBER