Shri Yashinbhai Abdulsattarbhai Vohra, Anand V. The ACIT, Anand Circle, Anand

ITA 109/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6311 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 109/AHD/2014 (ASSESSMENT YEAR: 2009-10) YASHINBHAI ABDULSATTARBHAI VOHRA 24, MUNICIPAL SHOPPING CENTER, ABOVE NEW BUS STATION, NR. SARDAR BAUG, ANAND V/S ACIT, ANAND CIRCLE, ANAND (APPELLANT) (RESPONDENT) PAN: ADAPV1983A APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY : SHRI SANTOSH KARNANI, SR. D. R. ( )/ ORDER DATE OF HEARING : 03 -04-201 7 DATE OF PRONOUNCEMENT : 06 -04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A)-I, BARODA DATED 15.11.2013 PERTAI NING TO A.Y. 2009-10. ITA NO. 109/ AHD/2014 . A.Y. 2009-1 0 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 3,30,900/- LEVIED U/S. 2 71(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 21.10.2011 MADE U/S. 143(3) OF THE ACT. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS, THE A.O. FOUND THAT THE ASS ESSEE HAS DEPOSITED CASH OF RS. 15.70 LACS INTO HIS SAVING BANK ACCOUNT WITH AXIS BANK. SINCE, THE ASSESSEE FAILED TO DISCHARGE THE ONUS CAST UPON HIM , THE A.O. MADE AN ADDITION OF RS. 8.66 LACS. THE ADDITION WAS CONFIRM ED BY THE FIRST APPELLATE AUTHORITY. THE A.O. SIMULTANEOUSLY INITIATED PENAL PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND ON RECEIVING NO PLAUSIBLE REPLY LEVIED PENALTY OF RS. 3,30,900/-. 4. NO ONE APPEARED BEFORE US THOUGH A WRITTEN SUBMISSI ON HAS BEEN FILED. WE HAVE CAREFULLY CONSIDERED THE CONTENTS OF THE WRITT EN SUBMISSION MADE BY THE ASSESSEE, THE RELEVANT PART OF THE SAME READS A S UNDER:- 3. ON THIS ISSUE THE APPELLANT WOULD LIKE TO SUBMIT ON LY ONE PLEA NOT CONSIDERED BY FIRST APPELLANT AUTHORITY IN PENALTY APPEAL THAT THE ADDITIONS OF CASH CREDIT AMOUNTING TO RS.8,66,000/- AND THE CLOSING BALANCE AMOUNTING TO RS.2,71,898/- HAS BEEN MADE TO WARDS THE DEPOSIT IN THE SAME SAVING BANK ACCOUNT HELD BY APP ELLANT WITH AXIS BANK, AMUL DAIRY ROAD, ANAND. SO IT IMPLIES THAT CL OSING BALANCE OF RS.2,71,898/- IS ALREADY INCLUDED IN THE DEPOSIT FI GURE OF RS.8,66,0007/- BECAUSE ANY BANK BALANCE AT THE YEAR END IS THE RESULT OF DEPOSITS MADE DURING THE YEAR IN THAT ACCOUNT AN D AS A RESULT THE ITA NO. 109/ AHD/2014 . A.Y. 2009-1 0 3 PENALTY IF ANY SHOULD BE LEVIED ONLY ON THE FIGURE OF RS.8,66,000/- AND NOT ON RS.2,71,898/-. PARA 3 & 4 OF ASSESSMENT ORDE R ITSELF CLARIFIES THAT THE DEPOSITS AND CLOSING BALANCE PERTAINS TO T HE SAME BANK ACCOUNT NAMELY AXIS BANK, AMUL DAIRY ROAD, ANAND HE LD BY THE APPELLANT. 5. WE FIND FORCE IN THE AFOREMENTIONED CONTENTIONS OF THE ASSESSEE. THE CLOSING BALANCE IN THE SAVINGS BANK ACCOUNT IS THE OUTCOME OF THE DEPOSITS MADE DURING THE YEAR. IN THAT ACCOUNT ONCE THE DEPO SIT IN THE BANK ACCOUNT HAS BEEN TREATED AS UNDISCLOSED INCOME OF THE ASSES SEE, THE CLOSING BALANCE CANNOT ONCE AGAIN BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. THOUGH THE APPEAL BEFORE US IS NOT AGAINS T THE QUANTUM ADDITION BUT FOR THE PENALTY LEVIED U/S. 271(1)(C) OF THE AC T, WE CAN CONSIDER THE FACTUAL ERRORS MADE IN THE QUANTUM PROCEEDINGS. WE, ACCORDINGLY, DIRECT THE A.O. TO RE-COMPUTE THE PENALTY ONLY ON THE CASH CREDIT OF RS. 8.66 LACS. 6. APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 06- 04- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 06 /04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)