û û û ` ` in the income tax appellate tribunal “b” bench

आयकर अपीलीय अिधकरण,
बी’
अिधकरण, अहमदाबाद यायपीठ ‘बी
बी अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
“B” BENCH, AHMEDABAD
BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER
AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
आयकर अपील सं./ IT(SS)A No. 339/Ahd/2011
िनधारण वष/Assessment Year: Block Assessment 01.04.1990 to 24.01.2001
Shri Joshi Samir Pranubhai,
C/o. Joshi Urology &
Maternity Hospital, Nr.
Hardik Complex, Viththal
Wadi, Bhavnagar
PAN : ABMPJ 5662 J
Vs
अपीलाथ/
अपीलाथ/ (Appellant)
Assessee(s) by :
Revenue by :
ACIT,
Circle-1,
Bhavnagar
ू यथ
यथ/
थ/ (Respondent)
Shri Tushar Hemani, AR
Shri O.P. Vaishnav, DR
सुनवाई क# तार%ख/
/ Date of Hearing
:
घोषणा क# तार%ख /Date of Pronouncement:
26/02/2015
13/03/2015
आदे श/O R D E R
PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER:
This appeal filed by the Assessee is against the order of the
Commissioner of Income Tax (Appeals)-XX, Ahmedabad dated 13.01.2011
for Block Assessment for the period from 01.04.1990 to 24.01.2001.
2.
The brief facts of the case, as culled out from the records are as
under:3.
The assessee is an Uro Surgeon and stated to be operating his
proprietary concern known as “Joshi Urology Hospital & Maternity
Hospital”. In this case, a search u/s 132 of the Act was carried out on
24.01.2001. Thereafter, block return was filed on 19.11.2002 declaring total
IT(SS)A No. 339/Ahd/2011
Shri Joshi Samir Pranubhai Vs. ACIT
Block Asst: 01.04.90 to 24.01.01
-2income at Rs.6,43,631/- for the block period 01.04.1990 to 24.01.2001.
Thereafter, an order u/s 158BC(c) of the Act was passed and the total
undisclosed income was determined at Rs.22,40,505/- inter alia by
estimating the professional receipts of Rs.14,33,468/-. Aggrieved by the
order of the Assessing Officer, the matter was carried before the ld. CIT(A)
who granted partial relief to the assessee. Against the said order of the ld.
CIT(A), the Revenue preferred appeal before the Hon’ble Tribunal. The
Hon’ble Tribunal vide order dated 13.11.2009 in IT(SS) No.101/Ahd/2004
partly allowed the appeal of the Revenue. In respect of addition of
Rs.14,33,468/-, which was made by the Assessing Officer by estimating the
professional receipts by making extrapolation by 20%, the Hon’ble ITAT,
Ahmedabad Bench restored the addition of Rs.11,18,450/-. Thus, on the
total un-disclosed income pursuant to the ITAT order and the disclosure
made by the assessee; the difference of Rs.4,92,844/- was considered as
undisclosed income and on the aforesaid undisclosed income, penalty of
Rs.2,95,706/- was levied u/s 158BFA(2) of the Income-tax Act vide order
dated 28.05.2010.
4.
Aggrieved by the penalty order of the Assessing Officer, the assessee
carried the matter before the ld. CIT(A) who vide order dated 13.01.2011
dismissed the appeal of the assessee. Aggrieved by the aforesaid order of
the ld. CIT(A), the assessee is now in appeal before us, on the following
grounds:1) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming penalty order ignoring legal objections regarding
validity of initiation of penalty proceedings.
2) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming penalty order pursuant to penalty proceedings
initiated without recording separate satisfaction by Assessing ACIT for
initiation of penalty for each addition while passing assessment order.
IT(SS)A No. 339/Ahd/2011
Shri Joshi Samir Pranubhai Vs. ACIT
Block Asst: 01.04.90 to 24.01.01
-33) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming penalty imposed u/s 158BFA(2) while penalty
proceedings was initiated u/s 271(1) © r.w.s. 158BFA(2) of the Act.
4) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming the penalty of Rs. 295706/- imposed without
recording satisfaction by the ACIT that the case is fit to levy penalty.
5) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming the penalty of Rs. 295706/- ignoring the facts that the
addition made in the assessment order is disregarded and new formula has
been arrived at by the honorable ITAT to ascertain total undisclosed income.
6) The Learned Commissioner Of I. Tax (Appeals) - XX erred in law and
on facts in confirming the penalty of Rs. 295706/- instead of Rs. 78868/considering Concealed Income at Rs. 492844/- instead of Rs. 131447/7)
The appellant crave and reserve his right to add, to modify, to alter
and/or to withdraw any or all grounds of appeals.
5.
Before us, ld. Authorized Representative submitted that though
various grounds have been raised but the issue is only with respect to
penalty u/s 158BFA(2) of the Act.
6.
Before us, the Authorized Representative submitted that on the basis
of certain seized material found at the time of search, the Assessing Officer
concluded that the assessee had suppressed the professional receipts. The
suppression rate was determined at 20% and the suppressed professional
receipts were estimated at Rs.14,33,468/- by resorting to extrapolation.
When the matter carried before the Tribunal, the addition to the extent of
Rs.11,18,450/- was confirmed, but; however, the basis of addition was
altered by the Tribunal. The ld. AR also pointed out that the Tribunal has
categorically mentioned that it does not accept the working done by the
Assessing Officer in estimating the professional receipts by extrapolating it
by 20% since 20% was found only in one month. Thereafter, Hon’ble ITAT
IT(SS)A No. 339/Ahd/2011
Shri Joshi Samir Pranubhai Vs. ACIT
Block Asst: 01.04.90 to 24.01.01
-4resorted an altogether different method, and after considering the actual
deposits found in the bank, confirmed the addition to the extent of
Rs.11,18,450/-. Before us, ld. AR submitted that when the original basis of
initiation of penalty proceedings is altered or modified by the Appellate
Authority, the authority initiating the penalty proceedings has no
jurisdiction thereafter to proceed on the basis of findings of the Appellate
Authority and for this proposition, reliance was placed on the decisions in
the cases of CIT vs. Ananda Bazar Patrika P. Ltd. - 116 ITR 416 (Cal), CIT
vs. Dwarka Prasad Subhah Chandra - 94 ITR 154 (All), CIT vs. Shadiram
Balmukand – 84 ITR 183 (All) and the decision of Hon’ble Gujarat High
Court in the case of CIT vs. Lakhdhir Lalji-85 ITR 77 (Guj.).
The ld. AR
further submitted that even the total deposits in the bank accounts were
estimated to be the income of the assessee and it is a settled law that no
penalty can be levied on addition which has been made on estimated basis.
The AR further submitted that the order of the Hon’ble ITAT, qua the
concerned addition, has been challenged before the Hon’ble Gujarat High
Court and substantial question of law in respect of the same has been
admitted and the admission of the Hon’ble Gujarat High Court shows that
the issue is debatable and therefore also no penalty is leviable being the
debatable issue. The ld. AR, thus, submitted that the penalty levied in the
present case be deleted. Ld. Departmental Representative, on the other
hand, supported the order of the Assessing Officer and the CIT(A).
7.
We have heard the rival submissions and perused the material on
record. We find that the addition on account of professional receipts of
Rs.14,33,468/- was estimated by the Assessing Officer by making
extrapolation by 20%.
When the matter was challenged before the
Tribunal, we find that the Hon’ble Tribunal rejected the claim of peak and
did not accept the working done by the Assessing Officer in estimating the
IT(SS)A No. 339/Ahd/2011
Shri Joshi Samir Pranubhai Vs. ACIT
Block Asst: 01.04.90 to 24.01.01
-5overall professional receipts by extrapolating it by 20% because 20% was
only found by the Assessing Officer in one month. We further find that the
Hon’ble Tribunal, after considering the actual receipts found in the bank
account, worked out the total undisclosed receipts and confirmed the
addition to the extent of Rs.11,18,450/-. It is, thus, seen that the addition
was confirmed by referring to an altogether different method than that
adopted by the Assessing Officer. In the present case, we find that the
penalty u/s 158BFA(2) has been levied by the Assessing Officer on the
amount of un-disclosed income finally determined by the Hon’ble Tribunal.
We find that in the case of CIT vs. Ananda Bazar Patrika P. Ltd. (supra), the
Hon’ble Kolkata High Court, after referring to the decisions of CIT vs.
Dwarka Prasad Subhah Chandra (supra), CIT vs. Shadiram Balmukand
(supra) and CIT vs. Lakhdhir Lalji (supra), has held that when the original
basis of initiation of penalty proceedings is altered or modified by the
Appellate Authority, the Authority initiating the penalty proceedings has
no jurisdiction thereafter to proceed on the basis of the findings of the
Appellate Authority. Before us, the Revenue has not brought any contrary
binding decisions nor could point out any distinguishable features of the
decisions cited by ld. AR. Considering the aforesaid facts, we are of the
view that in the present case no penalty is leviable. We hold accordingly.
8.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Court on 13th March, 2015 at Ahmedabad.
Sd/(SHAILENDRA KUMAR YADAV)
JUDICIAL MEMBER
Ahmedabad; Dated 13/03/2015
*Biju T, PS
Sd/(ANIL CHATURVEDI)
ACCOUNTANT MEMBER
IT(SS)A No. 339/Ahd/2011
Shri Joshi Samir Pranubhai Vs. ACIT
Block Asst: 01.04.90 to 24.01.01
-6आदे श क# ूितिल+प अमे+षत/Copy
of the Order forwarded to :
षत
1.
अपीलाथ / The Appellant
2.
ू यथ / The Respondent.
3.
संबंिधत आयकर आयु- / Concerned CIT
4.
आयकर आयु-(अपील) / The CIT(A)-XX, Ahmedabad
5.
+वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR,
ITAT, Ahmedabad
6.
गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER,
//TRUE COPY//
उप/
उप/सहायक पंजीकार (Dy./Asstt.Registrar)
आयकर अपीलीय अिधकरण,
अिधकरण, अहमदाबाद / ITAT, Ahmedabad