Shri Dilipbhai P.Wadhwani, Surat V. The Income tax Officer,Ward-3(2)., Surat

ITA 1076/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9270 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-02-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained cash credit; Third party statement

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.1076/AHD/2013 (ASSESSMENT YEAR:2005-06) DILIPBHAI P. WADHWANI, PROP. OF PRAKASH HARDWARE, B/H. BUS STAND, RAM NAGAR, RANDER ROAD, SURAT APPELLANT VS. THE INCOME-TAX OFFICER, WARD- 3(2), SURAT RE SPONDENT PAN: AAEPW5752D /BY ASSESSEE : SHRI M. K. PATEL, A.R. /BY REVENUE : SHRI RAJDEEP SINGH, SR. D.R. /DATE OF HEARING : 01.02.2017 /DATE OF PRONOUNCEMENT : 08.02.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2005-06 ARISES AGAINST THE CIT(A)-IV, SURATS ORDER DATED 27.02.2013 IN APPEAL NO. CAS-IV/II/250/11- 12, UPHOLDING ASSESSING OFFICERS ACTION IN IMPOSIN G PENALTY OF RS.2,15,400/- IN PROCEEDINGS U/S.271(1)(C) OF THE I NCOME TAX ACT, 1961; IN SHORT THE ACT. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR R ESPECTIVE STANDS. CASE FILE PERUSED. ITA NO. 1076/AHD/2013 (DILIPBHAI P. WADHWANI VS. IT O) A.Y. 2005-06 - 2 - 2. WE NOW ADVERT TO THE RELEVANT FACTS. THE ASSES SING OFFICER FRAMED A REGULAR ASSESSMENT IN ASSESSEES CASE ON 31.12.2007 MAKING UNEXPLAINED CASH CREDIT ADDITION OF RS.6.85LACS U/S.68 OF THE A CT AFTER REJECTING ASSESSEES EXPLANATION TO HAVE OBTAINED CASH LOANS FROM 38 PER SONS EACH INVOLVING AN AMOUNT LESS THAN RS.20,000/-. THE CIT(A) DELETED T HE SAME IN HIS ORDER DATED 12.12.2008. THE REVENUE FILED ITA NO.874/AHD /2009 BEFORE THIS TRIBUNAL. A CO-ORDINATE BENCH IN ITS ORDER DATED 2 2.07.2011 RESTORED THE ASSESSING OFFICERS ACTION. QUANTUM PROCEEDINGS SEE M TO HAVE ATTAINED FINALITY AT THIS STAGE. 3. WE NOW COME TO THE IMPUGNED PENALTY PROCEEDINGS. WE FIND FROM ASSESSING OFFICERS PENALTY ORDER DATED 21.02.2012 ITSELF THAT THE ASSESSEE FILED HIS REPLY DATED 12.01.2012 INTER ALIA STRONGL Y CONTESTING THE IMPUGNED PENAL ACTION. THE ASSESSING OFFICER OBSERVES IN PA RA 3 OF HIS ORDER THAT THE ASSESSEE HAD FILED CONTRA CONFIRMATION IN NINE CASE S ON A PLAIN PAPER. HE THEREAFTER LEVIED THE IMPUGNED PENALTY AFTER HOLDIN G THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS SO AS TO CONCEAL HIS T AXABLE INCOME. ALL THIS RESULTED IN THE IMPUGNED PENALTY BEING LEVIED AS AF FIRMED IN THE LOWER APPELLATE PROCEEDINGS. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. IT HAS COME ON RECORD THAT THE IMPUGNED PENALTY HAS EM ANATED FROM AN UNEXPLAINED CASH CREDIT ADDITION OF RS.6.85 LACS WH EREIN THE ASSESSEE CLAIMED TO HAVE OBTAINED CASH LOANS OF LESS THAN RS.20,000/ - EACH FROM 38 PARTIES. HE WAS ABLE TO FILE CONTRA CONFIRMATION IN NINE CASES. THE SAME HAS NOT BEEN ACCEPTED SINCE NONE OF THE CREDITORS WAS REGULARLY ASSESSED TO TAX SO AS TO HAVE CAPACITY TO ADVANCE SUCH MONIES. IT IS THUS C LEAR THAT IT IS NOT A CASE OF FILING ALTOGETHER A FALSE EXPLANATION BUT THAT OF I NSUFFICIENT EVIDENCE WHEREIN CONTRA CONFIRMATIONS HAS COME FROM NINE PARTIES BUT REJECTED ON TECHNICALITIES. WE THUS OBSERVE THAT ASSESSEES FA ILURE IN QUANTUM ITA NO. 1076/AHD/2013 (DILIPBHAI P. WADHWANI VS. IT O) A.Y. 2005-06 - 3 - PROCEEDINGS IN PROVING GENUINENESS OF HIS LOAN CLA IM WITH REGARD TO 38 CREDITORS IS NEITHER A CASE OF FURNISHING OF INACCU RATE PARTICULARS NOR THAT OF CONCEALMENT OF INCOME. THE ASSESSING OFFICER IS AC CORDINGLY DIRECTED TO DELETE THE IMPUGNED PENALTY. 5. THE ASSESSEE SUCCEEDS IN ITS INSTANT APPEAL. [PRONOUNCED IN THE OPEN COURT ON THIS THE 08 TH DAY OF FEBRUARY, 2017.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 08/02/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0