Pr. Commissioner Of Income Tax-Central, Jaipur v. Shri Puna Ram Jangid, G

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Income Tax Appeal No. 148 / 2017 Pr. Commissioner of Income Tax-Central, Jaipur. ----Appellant Versus Shri Puna Ram Jangid, G-132, Shastri Nagar, Jodhpur. ----Respondent _____________________________________________________ For Appellant(s) : Mr. K.K. Bissa. _____________________________________________________ HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS HON'BLE MR. JUSTICE RAMCHANDRA SINGH JHALAJ U D G M E N T 13/04/2018 The instant Income Tax Appeal has been filed by the Appellant- Revenue under Section 260A of the Income Tax Act, 1961 (Act of 1961) against the order dated 10.07.2017 passed by learned Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur in I.T.A. No.234/Jodh/2007 for the Assessment Year 2010-11. As per facts of the case, a search and seizure operation under Section 132 of the Act of 1961 was carried out at the residential and business premises of the Assessee and his family members on 15/16.12.2009. A notice u/s 142 (1) was issued on 24.01.2011 and in response thereto return of income declaring total income at Rs.94,90,890/- including surrendered income of Rs.90,28,293/-, was filed on 31.03.2011. Assessment under Section 143 (3) read with Section 153A/153B of the Act of 1961 was completed on 29.12.2011 at total income of Rs.1,52,65,590/- after making addition of Rs.57,74,000/-, which further rectified and total income was recomputed at Rs.2,81,34,242/- vide order u/s 154/143 (3) dated 07.03.2014. The Assessment Officer initiated penalty proceedings under Section 271-AAA of the Act in the Assessment Order mentioning in the order that the assessee failed to specify the manner in which the undisclosed income was derived or to substantiate the manner in which the undisclosed income was derived. Payment of tax on undisclosed income was derived. Payment of tax on undisclosed income of Rs.90,28,293/- offered in the return of income fulfilled only one condition i.e. condition as per Clause (iii) mentioned u/s 271 AAA (2) in respect of the said income. The assessee since did not fulfill conditions as per Clause (i) and (ii) mentioned u/s 271 AAA (2) i.e. neither specified the manner of deriving undisclosed income nor substantiated the manner in which undisclosed income was derived, therefore, AO passed the impugned penalty order under Section 271 AAA read with Section 274 of the Act. Being aggrieved by the said penalty order, the assessee filed an appeal before the learned C.I.T. (A) and the learned C.I.T. (A) vide its order dated 23.02.2017 cancelled the penalty levied under Section 271 AAA of the Act and observed that the only ground on which penalty order of AO hinge around is the disclosing of manner of earning the undisclosed income which was surrendered during search and reported in the return of income. Being aggrieved with the said order dated 23.02.2017 further appeal was preferred before the learned Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur (ITAT), and the learned ITAT vide a common order dated 10.07.2107 with regard to penalty imposed for A.Y. 2007-08, 2009-10 and 2010-11 observed that in I.T.A. No.204/Jodh/2016 quantum additions has been deleted on the ground of penalty does not have any legs to stand. The instant appeal has been filed by the Income Tax Department against the orders passed by the learned C.I.T. (A) as well as order passed by learned I.T.A.T., Jodhpur. After hearing the learned counsel for the appellant, we have perused the orders impugned. Admittedly the order passed by learned ITAT, is based upon earlier judgment passed in ITA No.204/Jodh/2016 and further the ITAT held that when the quantum additions have been deleted the penalty does not have any legs to stand. In our opinion, no substantial question of law emerges in this appeal because the entire finding arrived at by the authorities below is based upon assessment of law, therefore, there is no force in this appeal. The instant appeal has been filed by the Income Tax Department against the orders passed by the learned C.I.T. (A) as well as order passed by learned I.T.A.T., Jodhpur. After hearing the learned counsel for the appellant, we have perused the orders impugned. Admittedly the order passed by learned ITAT, is based upon earlier judgment passed in ITA No.204/Jodh/2016 and further the ITAT held that when the quantum additions have been deleted the penalty does not have any legs to stand. In our opinion, no substantial question of law emerges in this appeal because the entire finding arrived at by the authorities below is based upon assessment of law, therefore, there is no force in this appeal. Accordingly, the instant income tax appeal filed by the appellant Revenue is hereby dismissed. (RAMCHANDRA SINGH JHALA) J. (GOPAL KRISHAN VYAS) J. DJ/- 32