Income Tax Appellate Tribunal - Chandigarh
Manohar Infrastructure And ... vs Dcit, Chandigarh on 9 November, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
DIVISION BENCH, CHANDIGARH
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No.729/Chd/2016
(Assessment Year : 2011-12)
Manohar Infrastructure and Vs. The D.C.I.T,
Constructions Pvt. Ltd., Central Circle-1,
Chandigarh. Chandigarh.
PAN: AAECM8616P
(Appellant) (Respondent)
Appellant by : Shri N.K. Saini
Respondent by : Smt.Inoshi Sharma, DR
Date of hearing : 07.11.2016
Date of Pronouncement : 09.11.2016
O R D E R
PER ANNAPURNA GUPTA, A.M. :
This appeal has been filed by the assessee against the order of learned Commissioner of Income Tax (Appeals)-3, Gurgaon dated 23.2.2016 for assessment year 2011-12, confirming the levy of penalty under section 271AAA of the Income Tax Act, 1961 (in short 'the Act').
2. The assessee has raised the following grounds of appeal:
"1. The order passed by the learned CIT (A) is contrary to law & facts of the case.2
2. The learned CIT (Appeal) has erred in law in confirming the penalty of Rs.24,05,192/- levied u/s 271 AAA of IT Act 1961 on the ground that taxes and Interest in respect of undisclosed income were not paid in this case in due time, the third condition for non levy of penalty u/s 271 AAA of IT Act. The view taken by learned CIT(A) is contrary to the provisions of section 271 AAA(2)(iii) which do not stipulate any time frame for payment of taxes and interest thereon on undisclosed income.
3 The appellant craves leave to add to or amend any ground of appeal before the disposal of appeal."
3. The only issue involved in the present appeal relates to the levy of penalty under section 271AAA of the Income Tax Act,1961 (in short 'the Act').
4. Brief facts relating to the case are that a search and seizure operation was carried out at the residential/business premises of Manohar Singh group of cases on 8.9.2011. The assessee M/s Manohar Infrastructure & Construction Pvt. Ltd. was one of the concerns covered under section 132 of the Act. During search operation, various documents were found and discrepancies were detected, which when confronted to Shri Taraninder Singh, Director of Manohar Singh group of cases, he voluntarily disclosed Rs.13 crores under section 132(4) of the Act. On being asked to file break-up of the disclosure of Rs.13 crores, assessee-wise break-up was given which showed an amount of Rs.6.5 crores surrendered in the name of the assessee i.e. 3 M/s Manohar Infrastructure & Construction Pvt. Ltd. During the course of assessment proceedings, the assessee was asked to furnish the details of disclosure made, claim-wise, asset-wise, investment-wise and substantiate the manner in which the additional income was earned and mention the amount of taxes paid on the additional undisclosed income. The assessee submitted that it had surrendered an amount of Rs.2,40,51,920/- for assessment year 2011-12 and Rs.4,09,48,080/- for assessment year 2012-13 against the loose papers and discrepancies found during the search and total taxes due on the same amounted to Rs.1.31 crores out of which Rs.30 lacs had been deposited and a letter written for adjustment of cash seized amounting to Rs.55.70 lacs during the search. The assessee stated that rest of the amount would be paid during the financial year. The Assessing Officer after considering the assessee's reply held that since only the quantum of the undisclosed income had been specified and its break-up or basis as also the manner of earning the same had not been specified, penalty proceedings under section 271AAA of the Act were initiated.
5. During the penalty proceedings, the assessee submitted that it had complied with all the conditions outlined under section 271AA of the Act in claiming the immunity from levy of penalty since it had disclosed the undisclosed income in the statement made under section 4 132(4) at the time of search, had specified the manner in which the income had been earned and had also paid taxes on the same. The assessee, therefore, stated that the penalty under section 271AA of the Act could not be levied. The Assessing Officer rejected the assessee's contention and stated that the assessee had only specified the quantum of undisclosed income but neither specified its basis nor substantiated the manner of earning the same. Further, the Assessing Officer held that the assessee had not paid full taxes on the surrendered income at the time of filing of the return of income. The Assessing Officer therefore, levied penalty under section 271AA of the Act on the surrendered income of Rs.2,40,51,920/- @ 10% of the same amounting to Rs.24,05,192/-.
6. The matter was carried in appeal before the Ld. CIT (Appeals) where the assessee reiterated the contentions made before the Assessing Officer and stated that it had complied with all the conditions specified in the section for claiming immunity from penalty including payment of all taxes due on the income surrendered. The Ld. CIT (Appeals) after going through the detailed submissions of the assessee reproduced at para 4 of his order, held that the assessee had substantiated the manner in which the undisclosed income was derived but at the same time held that since the taxes on the same had not been paid before the due date of filing of the 5 return of income, penalty under section 271AAA of the Act was leviable. The Ld. CIT (Appeals) placed reliance on the order of the Hon'ble Punjab & Haryana High Court in the case of Ashok Kumar Gupta Vs. CIT (2006) 287 ITR 376 (P&H) in support of the proposition that immunity from penalty can be availed by the assessee invoking the provisions of Explanation-5 of section 271(1)(c) of the Act if tax on the surrendered income alongwith interest paid immediately and in any case before due date of return. In view of the same, the Ld. CIT (Appeals) upheld the penalty levied under section 271AAA of the Act.
7. Aggrieved by the same, the assessee filed the present appeal before us. The learned counsel for the assessee stated that the only reason for upholding the penalty was that the assessee had failed to pay the due taxes before filing of the return of income and in view of the fact that all taxes had been paid and the Hon'ble Supreme Court in the case of ACIT, Udaipur Vs. M/s Gebilal Kanhaiyalal HUF, through Karta, Udaipur,(2012) 348 ITR 561 (SC) has held that there is no time limit prescribed within which the assessee should pay tax on the income disclosed in the statement under section 132(4) of the Act for the purpose of claiming immunity from penalty as per Explanation-5 to section 271(1)(c) of the Act, the penalty ought to be deleted.
8. The Ld. DR, on the other hand, relied upon the order of the Ld. CIT (Appeals).
6
9. We have heard the rival contentions and perused the orders as also the documents placed before us. Undoubtedly, the only reason for upholding the levy of penalty in the present case is that the taxes due on the surrendered/undisclosed income had not been paid before the date of filing of the return of income. The fact that the taxes had been paid as per the following details is not disputed :
22.07.2013 Rs.20,20,000/-
04.10.2013 Rs.15,00,000/-
10.10.2013 Rs.15,00,000/-
13.12.2013 Rs.15,00,000/-
24.12.2013 Rs.14,47,890/-
TDS deducted Rs.18,870/-
Total Rs.79,86,760/-
10. Further, we find that assessment, under section 153A r.w.s. 143(3) of the Act, was framed on the assessee vide order dated 30.3.2014 and penalty initiated under section 271AAA on the same date i.e. 30.3.2014. Thus clearly all due taxes on the undisclosed income had been paid before framing of assessment and the initiation of penalty proceedings under section 271AA of the Act. Moreover, the Hon'ble Apex Court in the case of M/s Gebilal Kanhaiyalal HUF, through Karta, Udaipur (supra) has categorically held that the only condition required for getting immunity from penalty, as per Explanation-5 to section 271(1)(c) of the Act, is that the assessee has to pay taxes together with interest in respect of such 7 undisclosed income up to the date of payment and that no time limit was prescribed under the section within which the assessee ought to pay the taxes on the income disclosed in the statement under section 132(4) of the Act. In view of the same, since the assessee has paid all due taxes on the income disclosed in the statement under section 132(4) of the Act, the assessee is entitled to immunity from the payment of taxes since the other two conditions prescribed for claiming immunity have been accepted by the CIT (Appeals) himself as being fulfilled by the assessee. The Hon'ble I.T.A.T., Chandigarh Bench in the case of Shri Satish Goyal Vs. DCIT in ITA No.635/Chd/2016 has in identical circumstances deleted the levy of penalty under section 271AA of the Act levied for non-payment of taxes before the due date of filing of return of income by holding as follows :
8. We have heard the rival contentions and perused the orders of the authorities belo w as also the documents placed before us. The sole i s s u e a r i s i n g i n t h e p r e s e n t a p p e a l i s wh e t h e r f o r claiming immunity f rom the levy of penalty under section 271AAA ,the assessee is required to pay t h e d u e t a x e s o n t h e u n d i s c l o s e d i n c o me b e f o r e t h e d u e d a t e o f f i l i n g o f r e t u r n o f i n c o me . T h e L d .
C I T ( A ) , we f i n d r e l i e d u p o n t h e o r d e r o f P u n j a b and Haryana High Court in the case of Ashok Kumar Gupta vs C IT (2006) 287 IT R 376 for upholding the levy of penalty. The Hon'ble High Court in the impugned case held as under :
"It was not in dispute that certain undisclosed assets were found from the premises of the assessee at the time of search and besides that 8 certain books of account and other documents were also found from which it was evident that the assessee had earned undisclosed income as well. In the statement made under section 132(4) of the Act on the date of search, the assessee surrendered a sum of Rs. 10 lakhs as concealed income for the year in question. The date for filing of return for the assessment year in question had not yet expired. The assessee did not even file the return on or before the due date. He filed the same on 19.1.1995. What to talk of payment of tax and interest, if any, due from the undisclosed income, so surrendered by the assessee on the due date, the assessee did not even pay the amount along with the belated return filed on 19.1.1995. From a reading of Explanation 5 to section 271(1)(c) of the Act, it is evident that this concession is meant for persons who after surrendering the undisclosed income for the current year, pay the amount of tax along with interest, if any, on such income before the due date. This does not give liberty to the assessee to plead that no penalty should belevied on him for concealment of income merely for the reason that having failed to pay the due tax and the interest on the due date, the assessee paid the statutory interest thereon. In our view, the concession, as provided in Explanation 5, referred to above, can be availed of only by an assessee who after surrendering the income, pays the tax immediately and not belatedly. [para 2]"
9. It is clear from the above that the Hon'ble High Court had held that immunity f rom penalty is to be availed by the assessee invoking the provisions of Explanation 5 to section 271 (1)(c) of the Act, only if tax on the surrendered i n c o me along wi t h the interest is paid immediately and in any case before the due date o f f i l i n g o f r e t u r n o f I n c o me .
10. W e f i n d t h a t t h e H o n ' b l e S u p r e me C o u r t has reversed the above proposition in the case of A C IT , U d a i p u r v s M / s G e b i l a l K a n h a i y a l a l H U F , t h r o u g h K a r t a , U d a i p u r , ( 2 0 1 2 ) 3 4 8 IT R 5 6 1 ( S C ) and categorically held that f or the purpose of claiming immunity f rom the rigours of penalty 9 under clause 2 of Explanation 5 to section 271 ( 1 ) ( c ) , n o t i m e l i m i t i s p r e s c r i b e d wi t h i n wh i c h t h e a s s e s s e e s h o u l d p a y t a x o n t h e i n c o me d i s c l o s e d in the s t a t e me n t under section 132(4). The H o n ' b l e A p e x c o u r t d e a l t wi t h t h e i m p u g n e d i s s u e a s f o l l o ws :
Explanation 5 is a deeming provision. It provides that where, in the course of search under Section 132, the assessee is found to be the owner of unaccounted assets and the assessee claims that such assets have been acquired by him by utilizing, wholly or partly, his income for any previous year which has ended before the date of search or which is to end on or after the date of search, then, in such a situation, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall be deemed to have concealed the particulars of his income for the purposes of imposition of penalty under Section 27l(1)(c). The only exceptions to such a deeming provision or to such a presumption of concealment are given in sub-clauses (1) and (2) of Explanation 5. In this case, we are concerned with interpretation of clause (2) of Explanation 5, which has been quoted above. Three conditions have got to be satisfied by the assessee for claiming immunity from payment of - penalty under clause (2) of Explanation 5 to Section 271(l)(c). The first condition was that the assessee must make a statement under Section 132(4) in the course of search stating that the unaccounted assets and incriminating documents found from his possession during the search have been acquired out of his income, which has not been disclosed in the return of income to be furnished before expiry of time specified in Section 139(1). Such statement was made by the K.arta during the search which concluded on August 1, 1987. It is not in dispute that condition No.l was fulfilled. The second condition for availing of the immunity from penalty under Section 271(l)(c) was that 10 the assessee should specify, in his statement under Section 132(4), the manner in which such income stood derived. Admittedly, the second condition, in the present case also stood satisfied. According to the Department, the assessee was not entitled to immunity under clause (2) as he did not satisfy the third condition for availing the benefit of waiver of penalty under Section 271(l)(c) as the assessee failed to file his return of income on 31st July, 1987 and pay tax thereon particularly when the assessee conceded on August 1, 1987 that there was concealment of income. The third condition under clause (2) was that the assessee had to pay the tax together with interest, if any, in respect of such undisclosed income. However, no time limit for payment of such tax stood prescribed under clause (2).
The only requirement stipulated in the third condition was for the assessee to "pay tax together with interest". In the present case, the third condition also stood fulfilled. The assessee has paid tax with interest upto the date of payment. The only condition which was required to be fulfilled for getting the immunity, after the search proceedings got over, was that the assessee had to pay the tax together with interest in respect of such undisclosed income upto the date of payment. Clause (2) did not prescribe the time limit within which the assessee should pay tax on income disclosed in the statement under Section 132(4)."
11. It is clear from the above that the decision relied upon by the L d . C IT ( A ) in upholding the levy of penalty, has been overruled b y t h e S u p r e me C o u r t a n d therefore it is settled that f or the purpose of claiming immunity f rom penalty t h e r e i s n o r e q u i r e me n t o f p a y i n g t a x e s o n t h e u n d i s c l o s e d i n c o me b e f o r e t h e d u e d a t e o f r e t u r n o f i n c o me u n d e r s e c t i o n 1 3 9 ( 1 ) o f t h e A c t . Further it is not disputed that the assessee had paid taxes on the undisclosed income 11 s u r r e n d e r e d i n t h e s t a t e me n t m a d e u n d e r s e c t i o n 132(4) of the Act. T he manner of earning the i n c o me a n d i t s s u b s t a n t i a t i o n t h e r e o f h a s a l s o b e e n a c c e p t e d b y t h e L d . C IT ( A ) a n d i s n o t t h e matter of dispute. T he assessee theref ore has fulf illed all the conditions required f or claiming immunity from the levy of penalty under the provisions of section 271 AAA of the Act. Moreover we f ind that in the case of other assessees belonging to the same group, the Ld CIT(A) accepted the contentions of the assessee, wh e r e i n besides other pleadings made, the a s s e s s e e r e l i e d u p o n t h e af o r e s t a t e d a p e x c o u r t decision in the case of Gebilal Kanhaiyalal (supra) on the impugned issue, and deleted the penalty levied. Further, admittedly, no appeal has been f iled by the Revenue ag ains t the said o r d e r s o f t h e C IT ( A ) .
12. I n v i e w o f t h e a b o v e we s e t a s i d e t h e order of the Ld. CIT(A) and delete the penalty levied under section 271AAA of the Act of Rs.10,00,000/-.
11. In view of the above, we set aside the order of the Ld. CIT (Appeals) and delete the penalty levied under section 271AAA of the Act amounting to Rs.24,05,192/-.
12. The appeal of the assessee is allowed.
Order pronounced in the open court.
Sd/- Sd/-
(BHAVNESH SAINI) (ANNAPURNA GUPTA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 9 t h November, 2016
*Rati*
12
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A)
4. The CIT
5. The DR
Assistant Registrar,
ITAT, Chandigarh