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TAXAP/103/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 103 of 2011
=========================================================
COMMISSIONER
OF INCOME TAX-II - Appellant(s)
Versus
DR.KAMLESH
PRABHUDAS DOMADIA - Opponent(s)
=========================================================
Appearance
:
MR
MANISH BHATT, SR COUNSEL
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 19/10/2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
Issue
raised for consideration of this Court is as follows :
“Whether
the Appellate Tribunal is right in law and on facts in cancelling
the penalty levied u/s. 271(1)(c) amounting to Rs.30,93,510/-?”
This
issue is arising from order of the Tribunal dated 24.8.2010. Revenue
has essentially challenged cancellation of penalty levied by the
Assessing Officer.
Having
heard learned counsel Shri Manish Bhatt for the Revenue and on
having considered the materials on record, it could be gathered that
assessee during search and seizure action, had disclosed sum of
Rs.25,00,000/- as an additional income and paid tax thereon. The
Assessing Officer framed the assessment under Section 153A of the
Income Tax Act and also initiated penalty proceedings on the ground
that assessee had concealed the income.
When
challenged before the CIT(Appeals), it allowed the appeal of the
assessee and the Tribunal concurred with the view of the
CIT(Appeals).
As
could be noted from the order of the Tribunal, it had relied on
findings of CIT(Appeal) largely and also by giving its own detailed
findings, held that the action of imposing the penalty was not
tenable. It also was of the opinion that the amount of disclosure
made by the assessee in statement under Section 132(4) of the Act
was duly honored by paying tax and in view of explanation(5) to
Section 271(1)(c) of the Act, cancellation of penalty made by
CIT(Appeals) was justifiable. As could be seen from the record,
CIT(Appeals) and Tribunal both have quashed the order of the
Assessing Officer accepting explanation (5) to Section 271(1)(c) of
the Act. Tribunal also noted that there was nothing contrary which
could be pointed out by the Department for not accepting such
explanation.
We
are in agreement with the findings of both the adjudicating
authorities. When the assessee respondent had disclosed the amount
and already paid the tax, on the basis of immunity made available by
the statute, the findings given by both the authorities are
justifiable. With no further question of law arising in this Tax
Appeal, this Tax Appeal requires no further meritorious
consideration. Same is dismissed.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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