M/s. Yash Developers, Nanded V. Income-tax Officer, Ward - 2, Nanded

ITA 118/PUN/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5752 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-04-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 12-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Unexplained investment
• Section: 271(1)(c); 201; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE VIRTUAL COURT BEFORE SH RI R.S. SYAL, VICE PRESIDENT AND SH RI S.S. VISWANETHRA RAVI , J UDICIAL MEMBER I TA NO. 1 18 /PUN/201 8 / ASSESSMENT YEAR : 201 2 - 1 3 M/S. YASH DEVELOPERS C/O MA TOSHRI EDUCATIONAL INSTITUTE, KHUPSARWADI, JIJAU NAGAR, NANDED PAN: AABFY1177B VS. ITO, WARD 2, NANDED APPELLANT RESPONDENT / O RDER TH IS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.10.2017 PASSED BY THE CIT(A) - 1 , AURANGABAD FOR THE ASSESSMENT YEAR 201 2 - 1 3 . 2. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR FILED ANY APPLICATION SEEKING ADJOURNMENT. THE ASSESSEE CA LLED ABSENT AND SET EX - PARTE. THEREFORE, WE PROCEED TO HEAR THE LD. DR AND PASS ORDER ON THE BASIS OF MATERIAL EVIDENCE ON RECORD. A SSESSEE BY NONE RE VENUE BY SHRI VITTHAL BHOSALE DATE OF HEARING 30 - 0 4 - 202 1 DATE OF PRONOUNCEMENT 30 - 0 4 - 202 1 ITA NO . 1 18 /PUN/ 201 8 M/S. YASH DEVELOPERS 2 3. THE ONLY ISSUE EMERGES FROM THE GROUNDS RAISED BY THE ASSESSEE IS AS TO WHETHER THE LD. CIT(A) IS JUSTIFIED IN CONFIRM ING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT EX - PARTE OF ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4 . HEARD LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE IS A FIRM AND FILED RETU RN OF INCOME DECLARING TOTAL INCOME AT NIL. ON FINDING A DEFECT IN RETURN OF INCOME, THE ASSESSING OFFICER ISSUED A DEFECT NOTICE TO THE ASSESSEE, BUT HOWEVER, ACCORDING TO THE ASSESSING OFFICER, THERE WAS NO RECTIFICATION BY THE ASSESSEE. AS THE MATTER BEING BARRED BY LIMITATION, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND IN RESPONSE TO WHICH THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 24,64,280/ - . AS IT APPEARS FROM THE RECORD , IN THE SURVEY CONDUCTED THE PARTNER OF THE ASSESSEE OFFERED INCOME OF RS.1,04,00,000/ - FOR THE YEAR UNDER CONSIDERATION BEING ON ACCOUNT OF UNEXPLAINED INVESTMENT AT RS.74,00,000/ - AND PROFIT @ 25% ON RECEIPTS OF RS.1.20 CRORES. THE ASSE SSMENT U/S. 144 R.W.S. 147 OF THE ACT COMPLETED ON 30.03.2016 INTER - ALIA, MAKING ADDITIONS AT ITA NO . 1 18 /PUN/ 201 8 M/S. YASH DEVELOPERS 3 RS.74,00,000/ - AND PROFIT ON RECEIPT S AT RS.16,59,288/ - . THEREAFTER, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME. UPON CONSIDE RING SUBMISSIONS OF ASSESSEE, THE ASSESSING OFFICER IMPOSED A SUM OF RS.27,99,329/ - U/S 271(1)(C) OF THE ACT VIDE ITS ORDER DATED 28.09.2016. 5. AGGRIEVED BY THE ORDER OF IMPOSING PENALTY BY THE ASSESSING OFFICER, THE ASSESSEE CHALLENGED THE SAME BEFORE THE CIT(A) IN FIRST APPELLATE PROCEEDINGS. WE NOTE THAT THE CIT(A) ISSUED AS MANY AS SIX NOTICES INTIMATING THE DATE OF HEARING TO THE ASSESSEE BUT HOWEVER, IN PAGE 2 OF THE IMPUGNED ORDER SHOWS THERE WAS NO APPEARANCE BY THE ASSESSEE TO PROSECUTE THE GR OUNDS RAISED IN THE FIRST APPELLANT PROCEEDINGS. THE CIT(A) IN THE ABSENCE OF ASSESSEE, PROCEEDED TO ADJUDICATE THE GROUNDS AND HELD THE ASSESSEE FAILED TO OFFER ANY CREDIBLE EXPLANATION INDICATING THE REASON AS TO WHY THE UNEXPLAINED INVESTMENT AND UNDIS CLOSED PROFITS WERE NOT OFFERED EARLIER, THEREBY, CONCEALED THE ABOVE STATED AMOUNTS ATTRIBUTING TO UNDER - STATEMENT OF INCOME TO THE EXTENT STATED IN THE ABOVE SAID PARAGRAPHS, THEREBY, THE CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. AS DISCUSSED ITA NO . 1 18 /PUN/ 201 8 M/S. YASH DEVELOPERS 4 ABOVE, THE ADDITIONS MADE BY THE ASSESSING OFFICER IN ASSESSMENT PROCEEDINGS CO MPLETED IN RE OPENING OF ASSESSMENT PROCEEDINGS WERE ON ACCOUNT OF UNEXPLAINED INVESTMENT AND ESTIMATION OF PROFITS @ 25% ON THE RECEIPTS. IN OUR OPINION, IT REQUIRES THE ASSISTANCE OF ASSESSEE IN SUPPORT OF ITS CLAIMS AS NOTED EARLIER THERE WAS NO OPPORTUNITY TO THE ASSESSEE TO PROSECUTE THE GROUNDS RAISED BEFORE THE CIT(A) IN SPITE OF ISSUANCE OF NOTICES BY THE CIT(A). THEREFORE, TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO REMAND THE ISSUE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. THE ASSESSEE IS AT LIBERTY TO FILE MATERIAL EVIDENCE , IF ANY, IN SUPPORT OF ITS CLAI M. THUS, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL , 202 1 . SD/ - SD/ - ( R.S.SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER PUNE ; DATED : 30 TH APRIL , 202 1 GCVSR ITA NO . 1 18 /PUN/ 201 8 M/S. YASH DEVELOPERS 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A) - 1 , AURANGABAD 4 . 5. THE PR. CIT - 1 , AURANGABAD DR A , ITAT, PUNE 6 . / GUARD FILE / BY ORDER, / / TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 30 - 0 4 - 202 1 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30 - 0 4 - 202 1 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER.