Income Tax Appellate Tribunal - Ahmedabad
Sai Bhakti Enterprises, Surat vs Department Of Income Tax on 13 September, 2012
1 ITA No.1144/AHD/2012
. Assessment Year 2009-10
.
IN THE INCOME TAX APPELLATE TRIBUNAL " C " BENCH, AHMEDABAD
(BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI, A.M.)
I.T. A. No. 1144/AHD/2012
(Assessment Year: 2009-10)
The Deputy Commissioner of Vs. M/s. Sai Bhakti Enterprises,
Income Tax, C/o. Shailesh P. Gonawala,
Central Circle 4, 3/2347-48 Khangad Sheri,
Aayakar Bhavan, Salabatpura,
Majura Gate, Surat.
Surat.
(Appellant) (Respondent)
PAN: ABMFS 6646 M
Appellant by : Shri B.L. Yadav, Sr. D.R.
Respondent by : Shri M. J. Shah.
आदे श)/ORDER
(आदे Date of hearing : 13- 09-2012 Date of Pronouncement : 30-11-2012 PER: SHRI ANIL CHATURVEDI, A.M. The present appeal is against the order of CIT (A)-II, Ahmedabad dated 22-3-2012 for the assessment year 2009-10 whereby the penalty of Rs 3,00,000/- levied u/s. 271AAA by the A.O. was deleted by CIT (A).
2. Facts as culled out from the orders are as under:-
2 ITA No.1144/AHD/2012. Assessment Year 2009-10 .
3. A search u/s.132 was carried out at the residence of Shri Shailesh Gonawala, the partner of the assessee firm on 20-1-2009 whereupon he made a disclosure of unaccounted income of Rs.30 lacs on behalf of the firm. The disclosure made at the time of search was declared in the return of income and the A.O. vide order dated 29-12-2010 assessed the total income at declared income of Rs.30 lacs. It is on the aforesaid income of Rs.30 lacs, A.O. levied penalty u/s. 271AAA of Rs.3 lacs vide order dated 21-6-2011 for the reason that the assessee did not describe and substantiate the manner in which such income was derived. Aggrieved by the order of A.O., Assessee carried the matter before CIT (A). After considering the submissions of the Assessee, CIT (A) deleted the penalty vide order dated 22-3-2012 by holding as under:-
"5. I have considered the facts of the case, the order of the Assessing Officer levying penalty, the submissions of the appellant and the case laws relied upon. It is seen that there is no search u/s. 132 in the case of the firm and accordingly, section 271AAA is not applicable at all and therefore, the penalty u/s. 271AAA needs to be deleted out rightly as being illegal and bad in law since section 271AAA is applicable only in a case where search action u/s.132 has been initiated. From the facts that in the case of the appellant firm, the assessment order for A.Y. 2008-09 was passed u/s. 143(3) r.w.s. 153C and from the copy of the panchnama in the case of Shri Shailesh Gonawala, it is established that no search action was initiated in the case of the appellant firm and on going through the provisions of section 271AAA and the definition of the 'specified previous year' in sub clause (b) of Explanation 2 to section 271AAA,I agree with the appellant that the provisions of Section 271AAA are not applicable in the present case of the appellant as no search action has been initiated u/s. 132 of the I.T. Act in the case of the appellant."3 ITA No.1144/AHD/2012
. Assessment Year 2009-10 .
4. Aggrieved by the order of CIT (A), the Revenue is now in appeal before us.
5. Before us, the Ld. D.R. submitted that during the course of search the key person, Shri Shailesh Gonawala made disclosure of unaccounted income but did not specify nor substantiated the manner of the unaccounted income earned. He did not furnish specific details like name of the parties from whom the money was received. In view of these facts the assessee did not fulfill the conditions for exemption from levy of penalty and therefore A.O. was fully justified in levying penalty u/s. 271AAA.
6. On the other hand the Ld. A.R. submitted that provisions of Sec. 271AAA was not applicable in the case of the assessee as no search had taken place at the premises of the assessee. He submitted that the search had taken place at the premise of Shri Shailesh Gonawala. He further submitted that by virtue of instruction No.3 of 2011 dated 9-2-2011 issued by the CBDT; monetary limits have been fixed for filing of appeal. In the present case the penalty of Rs.3 lacs has been levied on assessee. By virtue of the aforesaid circular, appeal cannot be filed because the tax effect is less than the prescribed limit. He thus supported the order of CIT (A).
7. We have heard the rival submissions and perused the material on record. Provisions of Sec.271AAA are attracted in case where a search has been initiated u/s. 132 on or before 1st day of June 2007 but before 1st day of July, 2012. We find that CIT (A), on the basis of material on record, has given a finding that no search u/s. 132 had taken place in the case of the 4 ITA No.1144/AHD/2012 . Assessment Year 2009-10 .
assessee firm. Further, CIT (A) has also given a finding that the 3 conditions provided in exception in sub-section (2) of Sec. 271AAA are also fulfilled by the assessee. Nothing has been brought on record by the Revenue to controvert the aforesaid findings of CIT (A). CBDT vide instruction No.3 of 2011 dated 9-2-2011 has fixed monetary limit for filing of appeal before various authorities. As per the aforesaid instruction, the monetary limit fixed for filing of appeal before ITAT has been fixed at Rs.3 lac. In the present case, the penalty levied is of Rs.3 lac and is therefore within the prescribed limit. In view of the totality of the aforesaid facts, we are of the view that CIT (A) has rightly deleted the penalty. We thus find no reason to interfere to the order of the CIT (A).Thus the appeal of the Revenue is dismissed.
8. In the result appeal of the Revenue is dismissed.
Order pronounced in Open Court on 30- 11- 2012.
Sd/- Sd/-
(G.C.GUPTA) (ANIL CHATURVEDI)
VICE PRESIDENT ACCOUNTANT MEMBER
Ahmedabad.
S.A.Patki.
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals) -
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad
5 ITA No.1144/AHD/2012
. Assessment Year 2009-10
.
1.Date of dictation 23 - 11 -2012
2.Date on which the typed draft is placed before the Dictating 23 / 11/ 2012 Member................Other Member................
3.Date on which the approved draft comes to the Sr.P.S./P.S - -2012.
4.Date on which the fair order is placed before the Dictating Member for pronouncement - -2012
5.Date on which the fair order comes back to the Sr.P.S./P.S - -2012
6.Date on which the file goes to the Bench Clerk - -2012.
7.Date on which the file goes to the Head Clerk.............
8.The date on which the file goes to the Asstt. Registrar for signature on the order........................
9.Date of Despatch of the Order............