DCIT, Jaipur V. ASHISH KUMAR GATTANI, Jaipur

ITA 1021/JPR/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2167 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 30-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S R SHARMA; R K BHATRA CA DHK
• Section: 131; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 1021/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. CUKE VS. SHRI ASHISH KUMAR GATTANI, 2126 - GATTANI BHAWAN, MISTRI KHANA ROAD, GANGORI BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADJPG 2300 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.R. SHARMA & R.K. BHATRA (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.04.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28.04.2017 VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-4, JAIPUR DATED 30/10/2015 PERTAINING TO A.Y. 2012-13. THE REVENUE HAS RAISED THE FOLLOWING REVISED GROUN DS OF APPEAL :- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) WAS RIGHT IN DELETING THE PENALTY OF RS. 15,70,068/ - LEVIED U/S 271AAA OF THE IT ACT, WHEREAS THE ASSESSEE FAILED TO JUSTI FY THE SECOND CONDITION LAID DOWN U/S 271AAA OF THE IT ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE STATEMENTS ON OATH RECORDED U/S 131 OF THE ACT, 196 1 CAN BE TREATED AS STATEMENT U/S 132(4) OF THE IT ACT, 1961. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE STATEMENT RECORDED U/S 131 OF THE IT ACT, 1961 WHEN THE SEARCH IS CONCLUDED CAN BE TAKEN INTO ACCOUNT FOR NOT LEVYING THE PENALTY U/S 271AAA OF THE IT ACT, 1961. 2 ITA NO. 1021/JP/2015 M/S SHRI ASHISH KUMAR GATTANI, JAIPUR. THE APPELLANT CRAVE, LEAVE OR RESERVES THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFOR E OR DURING THE HEARING OF THIS APPEAL. 2. BRIEFLY STATED THE FACTS ARE THAT A SEARCH AND S EIZURE ACTION U/S 132 OF THE INCOME-TAX ACT, 1961 WAS CARRIED OUT BY THE INCOME- TAX DEPARTMENT ON GANPATI LOCKERS PVT. LTD. ON 29/06/2011. AS PART OF SUCH PR OCEEDINGS, THE SEARCH ACTION WAS ALSO CARRIED OUT AT 16 LOCKERS BEARING NOS. 228, 86 3, 686, 853, 877, 875 876, 899, 923, 378, 371, 239, 223, 1042, 867 & 940 SITUATED A T GANPATI PVT. LTD., GANPATI PLAZA, M.I. ROAD, JAIPUR. IT WAS OBSERVED BY THE A SSESSING OFFICER, DURING THE AFORESAID ACTION VALUABLES BEING JEWELLERY VALUED B Y THE REGISTERED VALUER AT RS. 1,53,29,689 AND CASH OF RS. 3,71,000/- AGGREGATING TO RS. 1,57,00,689/- WERE FOUND AND SEIZED FROM THE LOCKER NO. 923 AND THE ARTICLE THEREOF WERE FOUND TO BE BELONGING TO SHRI ASHISH KUMAR GATTANI. IT IS OBSE RVED BY THE ASSESSING OFFICER THAT ON THE BASIS OF THE STATEMENT U/S 131 OF THE ACT BY THE DDIT (UNIT-III), JAIPUR ON 03/08/2011 WHEREIN, THE ASSESSEE CLAIMED THAT THE L OCKER NO. 923 HAD BEEN HIRED BY HIM IN THE NAME OF NISHA, KITTI & PITU. THE ASSESS EE FURTHER CLAIMED IN THE SAID STATEMENT THAT ALL VALUABLES CASH FOUND AND SEIZED FROM THIS LOCKER BELONG TO HIM. THE ASSESSING OFFICER ISSUED A NOTICED U/S 271AAA O F THE ACT. FURTHER, THE ASSESSING OFFICER LEVIED A PENALTY U/S 271AAA OF RS . 1,57,00,689/- BEING 10% OF THE UNDISCLOSED INCOME OF RS. 1,57,00,689/-. 3. AGAINST THIS, THE ASSESSING OFFICER PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED TH E APPEAL. WHILE ALLOWING THE APPEAL, THE LD. CIT(A) DELETED THE PENALTY. AGAINS T THIS, THE REVENUE IS IN APPEAL BEFORE THIS HONBLE TRIBUNAL. 3 ITA NO. 1021/JP/2015 M/S SHRI ASHISH KUMAR GATTANI, JAIPUR. 4. THE LD. DR SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY. HE SUBMITTED THAT THE ASSESSING OFFICER I N THE PENALTY ORDER HAS GIVEN A FINDING. PER CONTRA LD. AR REITERATED THE SUBMISSI ONS AS MADE IN THE WRITTEN BRIEF. THE LD. COUNSEL SUBMITTED THAT THE ACTION OF THE AS SESSING OFFICER IS CONTRARY TO THE PROVISION OF U/S 271AAA. THE LD. COUNSEL HAS TAKEN AS THROUGH THE ASSESSMENT ORDER OF THE PENALTY ORDER. HE POINTED OUT THAT TH E ASSESSING OFFICER IN THE PENALTY ORDER HAS LEVIED A PENALTY BY OBSERVING THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, IT MAY BE TRUE THAT THE SUM OF RS. 1,57, 00,689/- IN THE FORM OF OUTSTANDING BALANCES OF SUNDRY CREDITORS MAY HAVE B EEN RECORDED IN THE REGULAR BOOKS OF ACCOUNTS. HOWEVER, IT IS ALSO UNDENIABLE FACTS THAT SUNDRY C REDITORS TO THE EXTENT OF SUCH ACCOUNTS WERE FOUND TO BE BOGUS NON-EXISTING DURING THE COURSE OF SEARCH. IT IS ALSO UNDENIABLE FACT THAT THE ASSESSEE ITSELF, DURING TH E COURSE OF STATEMENT U/S 132(4) HAD ADMITTED THAT THE SUNDRY CREDITORS BALANCES TO THE EXTENT OF RS. 1,57,00,689/- WERE BOGUS IN NATURE AND WERE NOT REQUIRED TO BE PA ID ANY MORE. IT IS ON THIS ACCOUNT THAT SUM OF RS. 1,57,00,689/- WAS SURRENDER FOR TAXATION. IN THIS BACKGROUND IT IS CLEAR THAT THE ENTRY OF SUNDRY CRE DITORS IN RESPECT OF THE EXPENSES RECORD OF UNEXPLAINED BOOKS OF ACCOUNTS WERE FOUND TO BE FALLS DURING THE COURSE OF SEARCH. IT IS ALSO CLEAR THAT THIS WOULD NOT HAVE BEEN POSSIBLE TO FOUND IF THE SEARCH HAS BEEN CONDUCTED. ACCORDINGLY, THE BOGUS OUTSTAN DING BALANCES RECORD IN THE BOOKS OF ACCOUNTS TO THE EXTENT OF RS. 1,57,00,689/ - CLEARLY FALLS UNDER THE PURVIEW OF UNDISCLOSED INCOME AS PROVIDED IN SUB-SECTION 2 OF SECTION 271AAA OF THE ACT. HENCE, THE CONTENTION RAISED BY THE ASSESSEE FOUND NOT ACCEPTABLE. HE CONTENDED THAT THE AFORESAID OBSERVATION OF THE ASSESSING OFF ICER IS CONTRARY TO THE RECORD. 4 ITA NO. 1021/JP/2015 M/S SHRI ASHISH KUMAR GATTANI, JAIPUR. THERE WAS NO SUCH ISSUE IN THE CASE OF THE ASSESSEE RELATED TO SUNDRY CREDITORS. MOREOVER, HE SUBMITTED THAT, THERE WAS NO SEARCH, N O STATEMENT U/S 132(4) WAS RECORDED, IT WAS ONLY IN THE STATEMENT RECORDED U/S 131 OF THE ACT. THE ASSESSEE HAS DULY STATED THE SOURCE OF THE INVESTMENT MADE I N ACQUIRING THE JEWELLERY AND CASH. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, AND GONE TH ROUGH THE ORDER OF THE AUTHORITIES BELOW. WE FIND THERE ARE GLARING CONTR ADICTION IN THE ASSESSMENT ORDER AND THE PENALTY ORDER. THE REVENUE COULD NOT EXPLA IN THE REASON FOR SUCH CONTRADICTION. ADMITTEDLY, THE PENALTY WAS INITIAT ED FOR THE INVESTMENT IN THE JEWELLERY AND CASH FOUND IN LOCKER NO. 923 AND THE ASSESSING OFFICER WHILE IMPOSING THE PENALTY STATED IN THE ORDER ABOUT THE OUTSTANDI NG BALANCES OF THE SUNDRY CREDITORS. IT IS ALSO ADMITTED FACTS THAT NO SEARC H ACTION WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE. THE STATEMENT WAS NOT RE CORDED U/S 132(4) KEEPING THESE UNREBUTTED FACTS IN VIEW, THE PENALTY ORDER S O PASSED CANNOT BE SUSTAINED. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE IN TO THE ORDER OF THE LD. CIT(A), SAME IS HEREBY AFFIRMED. THUS, GROUNDS ARE REJECTED IN THIS APPEAL. 6. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1021/JP/2015 IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 28TH DAY OF APRIL 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED: 28 /04/2017 5 ITA NO. 1021/JP/2015 M/S SHRI ASHISH KUMAR GATTANI, JAIPUR. POOJA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE DY. COMMISSIONER OF INCOME-T AX CENTRAL CIRCLE-2, JAIPUR. 2. THE RESPONDENT SHRI ASHISH KUMAR GATTANI, 2126 -GATTANI BHAWAN, JAIPUR.. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1021/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR