SHRI SHOBHAGMAL JAIN, Jaipur V. ITO, Kishangarh

ITA 119/JPR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62030 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 03-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Section: 40A(3)

Judgement Text

ITA 119-12 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : S.M.C JAIPUR (BEFORE SHRI R.K.GUPTA) ITA NO.119/JP/2012 ASSTT. YEAR : 2006-07 SHRI SOBHAGMAL JAIN VS. THE INCOME TAX OFFICER, MADANGANJ-KISHANGARH. KISHANGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI D.K.MEENA DATE OF HEARING : 26.06.2012 DATE OF PRONOUNCEMENT : 28.06.2012 ORDER DATE OF ORDER : 28.06.2012 PER R.K.GUPTA, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER OF THE LD.CIT(A) WHO SUSTAINED THE LEVY OF PENALTY OF RS.16,357/- U/S 271(1)(C) RELATI NG TO ASSESSMENT YEAR 2006-07. 2. DURING THE ASSESSMENT PROCEEDING THE A.O. NOTED THAT THERE ARE THREE SUNDRY CREDITORS TOTALLING TO RS.57,000/-. A.O. ASKED TO P ROVE GENUINENESS OF THE SUNDRY CREDITORS. THE A.O. ALSO REQUIRED TO PRODUCED THEM, HOWEVER, ASSESSEE COULD NOT PRODUCE THEM. LATER ON THE ASSESSEE SURRENDER THE AMOUNT OF RS.57,000/- ON ACCOUNT OF SUNDRY CREDITORS. THE A.O. FURTHER NOTED THAT ASSESSEE HAS SHOWN A LOAN OF RS.15,000/- FROM SHRI ASHISH JAIN. CONFIRMATION OF LOAN WAS FILED. THE A. O. WAS NOT SATISFIED, THEREFORE, A SUM OF RS.15,000/- WAS ALSO ADDED. THE A.O. FURTHER NOT ED THAT ASSESSEE HAS MADE CASH - 2 - PURCHASES EXCEEDING RS.20,000/- FROM M/S.K.S.MARBLE S TOTALLING TO RS.5,76,561/-. HE DISALLOWED A SUM OF RS.1,15,312/- U/S 40A(3). ON A LL THESE AMOUNTS ADDED TO THE INCOME OF THE ASSESSEE, PENALTY PROCEEDING WERE ALSO INITI ATED AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE THE AO LEVIED A PENALTY OF RS.56,232/- U/S 271(1)(C). DETAILED WRITTEN SUBMISSION WERE FILED BEFORE CIT(A), RELIANCE WAS ALSO PLACED ON VARIOUS CASE LAWS MENTIONED IN ORDER OF THE LD.CIT(A) AT PAGE 2 TO 4. 3. AFTER CONSIDERING THE SUBMISSION THE CIT(A) CONF IRMED THE LEVY OF PENALTY ON RS.57,000/- IN RESPECT TO SUNDRY CREDITORS. HOWEVER HE DELETED THE LEVY OF PENALTY ON THE AMOUNT OF ADDITION MADE U/S 40A(3) AT RS.1,15,312/- AND ON THE AMOUNT OF LOAN OF RS.15,000/-. IN THIS WAY THE CIT(A) CONFIRMED THE L EVY OF PENALTY OF RS.16,357/- ON THE AMOUNT OF SUNDRY CREDITORS. 4. NONE APPEARED BEHALF OF THE ASSESSEE ON THE OTHE R HAND LD.D/R PLACED RELIANCE ON THE ORDER OF LD.CIT(A). 5. AFTER CONSIDERING THE ORDER OF THE A.O. AND THE CIT(A), I FOUND THAT ASSESSEE DESERVED TO SUCCEED. IT IS SEEN THAT THE AMOUNT OF PENALTY IS ON ACCOUNT OF SUNDRY CREDITORS OF RS.57,000/- SHOWN IN THE NAME OF THREE PERSONS I.E. SHRI KISHAN CHOUDHARY, SHRI BANSI YADAV AND SHRI VISHRAM CHOUDHARY 19,000/ - EACH TOTALLING OF RS.57,000/-. CONFIRMATION OF THESE PERSON WERE FILED AND A.O. NO TED THAT THESE WERE LOANS TAKEN DURING THE YEAR UNDER CONSIDERATIONS. WHEN THEY COU LD NOT BE PRODUCED THEN ASSESSEE CAME FORWARD TO SURRENDER THE SAME SUBJECT TO NO PE NALTY. IT IS FURTHER SEEN THAT THE ASSESSEE MADE SURRENDER OF RS.57,000/- AS HE COULD NOT PRODUCED THE PARTIES, HOWEVER CONFIRMATION OF THE PARTIES WERE FILED. THEREFORE I T CAN NOT BE SAID THAT ASSESSEE HAS - 3 - CONCEALED ANY PARTICULAR OF INCOME. CONFIRMATIONS W ERE ON RECORD THEY WERE NOT FOUND FALSE OR INCORRECT. 5. IN VIEW OF THESE FACTS I AM OF THE VIEW THAT ATL EAST PENALTY U/S 271(1)(C) IS NOT LEVIABLE. ACCORDINGLY I CANCEL THE LEVY OF PENALTY OF RS.16,357/- CONFIRMED BY CIT(A). 6 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28. 06.2012. SD/- (R.K.GUPTA) JUDICIAL MEMBER JAIPUR, *BASANT* COPY FORWARDED TO :- SHRI SOBHAGMAL JAIN, MADANGANJ-KISHANGARH. THE INCOME TAX OFFICER, KISHANGARH. THE CIT(A) THE CIT THE D/R GUARD FILE (ITA NO.119/JP/12) BY ORDER AR, ITAT, JAIPUR.