Shri Anjanikumar Goel, Hyderabad V. ITO., Ward-5(1), Hyderabad

ITA 1405/HYD/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6344 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-08-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 14-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: N O N E
• Keywords: Difference of opinion
• Section: 133A

Judgement Text

ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A (SMC) BENCH, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT ITA NO.1405/HYD/2014 (ASSESSMENT YEAR: 2004-05) SHRI ANJANI KUMAR GOEL HYDERABAD PAN: ABKPG 3742 G VS. INCOME TAX OFFICER WARD 5(1) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : N O N E FOR REVENUE : SHRI K.E. SUNIL BABU, DR DATE OF HEARING : 20.07.2016 DATE OF PRONOUNCEMENT : 10 .0 8 .2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A)-V, HYDERABAD, DATED 31.03.201 4 WHEREIN PENALTY OF RS.6,07,494/- LEVIED BY THE AO U/S 271(1 )(C) OF THE ACT WAS CONFIRMED. THOUGH THE CASE WAS POSTED FROM TIME TO TIME, NONE APPEARED ON BEHALF OF THE ASSESSEE. IT MAY BE NOTICED THAT ON 4.5.2016 SHRI S. RAMA RAO, ADVOCATE UNDERTOOK TO INFORM THE ASSESSEES COUNSEL AND IN FACT THE ASSESSEE HAS TAK EN NUMBER OF ADJOURNMENTS FROM 2014 ONWARDS. SINCE NONE APPEARED FOR THE ASSESSEE, I PROCEED TO DISPOSE OF THE APPEAL ON MER ITS, QUA THE ASSESSEE. I HAVE GONE THROUGH THE WRITTEN SUBMISSI ONS DATED 26.10.2015 FILED BY THE ASSESSEE. 2. THE FACTS NECESSARY FOR DISPOSAL OF THE APPEAL A RE STATED IN BRIEF. THE ASSESSEE, IN HIS INDIVIDUAL CAPACITY, CA RRIED ON BUSINESS IN PHARMACEUTICALS. FOR THE YEAR UNDER CON SIDERATION, ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 2 OF 6 IT DECLARED A TOTAL INCOME OF RS.1,93,628/-. ON 14. 10.2004, A SURVEY WAS CONDUCTED U/S 133A OF THE ACT WHEREIN TH E BOOKS OF ACCOUNTS FOUND IN THE PREMISES WERE INVENTORISED AL ONG WITH THE BANK ACCOUNT AND NOTICED SOME DISCRIPANCY WHICH REQ UIRED FURTHER INFORMATION, BUT THE ASSESSEE COULD NOT OPE N THE COMPUTER. THEREFORE, THE SAME WAS COPIED INTO HARD DISK AND BROUGHT TO THE OFFICE OF THE AO AND WITH THE HELP O F A SOFTWARE ENGINEER THE SAME WAS OPENED WHEREIN IT WAS NOTICED THAT THE STOCK VALUE TAKEN BY THE ASSESSEE IS NOT TALLYING A S PER THE PRINT OUT TAKEN FROM THE COMPUTER. THOUGH THE ASSESSEE WA S GIVEN AN OPPOIRTUNITY, HE COULD NOT FILE ANY DOCUMENTARY EVI DENCE WITH REGARD TO THE DISCRIPANCY. HE COULD NOT FURNISH EVI DENCE WITH REGARD TO SHORTAGES/BREAKAGES/EXPIRY OF THE DRUGS. UNDER THE CIRCUMSTANCES, THE AO COMPLETED THE ASSESSMENT BY D ETERMINING THE TOTAL INCOME AT RS.21,22,835/- AND SIMULTANEOUS LY INITIATED PENALTY PROCEEDINGS. WITH REGARD TO THE DIFFERENCE IN VALUE OF CLOSING STOCK, THE ASSESSEE SUBMITTED THAT IT IS WI TH REFERENCE TO LOSS OF GOODS, BREAKAGES/EXPIRY OF DRUGS ETC., BUT NO PROOF THEREOF WAS FURNISHED. THOUGH THE ASSESSEE IDENTIFI ED SOME OF THE CORRESPONDENCE MADE BY HIM IN THE SAME COMPUTER , THE DENIAL OF THE CLOSING STOCK VALUE IN THE COMPUTER W AS FOUND TO BE NOT ACCEPTABLE. IN THIS REGARD THE AO OBSERVED THAT IT IS NOT KNOWN AS TO HOW THE ASSESSEE ARRIVED AT THE CLOSING STOCK IN THE ABSENCE OF STOCK REGISTER AND STATUTORY AUDITORS HA VE ALSO CERTIFIED THE SAME IN THE AUDIT REPORT. SIMILARLY, THERE WAS DIFFERENCE IN LUPIN LIMITED A/C WHICH WAS ADDED BY THE AO. LIKEWISE AN ADDITION OF RS.20,709/- WAS MADE REFERR ING TO THE DIFFERENCE BETWEEN THE ACCOUNT COPY OBTAINED FROM T HE SUPPLIERS AND THE BOOKS OF ACCOUNTS OF THE ASSESSEE. ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 3 OF 6 3. DURING THE COURSE OF THE PENALTY PROCEEDINGS, TH E LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THERE WAS N O EVIDENCE WITH REGARD TO THE CONCEALMENT OF INCOME AND AS SUC H PENALTY SHOULD NOT BE LEVIED. THE LEARNED AO HOWEVER, REJEC TED THE CONTENTION OF THE ASSESSEE. HE OBSERVED THAT THE AD DITION OF RS.16,41,997/- IS ON ACCOUNT OF THE CLOSING STOCK F IGURES REFLECTED IN THE PRINT OUT TAKEN FROM THE ASSESSEE S COMPUTER AND IT IS NOT KNOWN AS TO HOW THE ASSESSEE ARRIVED AT T HE CLOSING STOCK IN THE ABSENCE OF STOCK REGISTER. HE FURTHER OBSERVED THAT THE ADDITION MADE BY THE AO HAS BEEN SUSTAINED BY T HE CIT (A) AS WELL AS BY THE ITAT AND IT IS A CLEAR CASE OF CO NCEALMENT OF INCOME. SIMILARLY WITH REGARD TO THE DIFFERENCE BET WEEN THE ACCOUNT COPIES OBTAINED ONE ONE HAND AND THE COPIES OF THE SUPPLIERS & THE BOOKS OF ACCOUNTS OF THE ASSESSEE, TOTALLING TO RS.1,90,222(1,69,513+20,079), HE OBSERVED THAT THE ASSESSEE COULD NOT EXPLAIN THE DIFFERENCE AND THE EXPLANATIO N, IF ANY, FURNISHED IS NOT SATISFACTORY. EVEN BEFORE THE TRIB UNAL, THE ASSESSEE COULD NOT FURNISH SATISFACTORY EXPLANATION AND THEREFORE, THE ADDITION WAS SUSTAINED NOT ONLY BY T HE CIT (A), BUT BY THE ITAT. HENCE IT IS A CLEAR CASE OF CONCEALMEN T OF INCOME IN THE FORM OF FALSE CASH CREDIT. THE LEARNED CIT (A) SUSTAINED THE LEVY OF PENALTY BY OBSERVING AS UNDER: 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE PENALTY ORDER. AFTER GOING THROUGH THE PENALTY ORDER, ON THE ISSUE OF DIFFERENCE IN CLOSING STOCK OF RS.16,41,997, I AGRE E WITH THE OBSERVATIONS OF THE AO THAT THE APPELLANT CONCEALED THE DIFFERENCE BETWEEN THE CLOSING STOCK ADMITTED AND THE VALUE OF THE CLOSING STOCK FOUND LATER. ON THE ISSUE OF DIFFERENCE BETWEEN ACCOUNT COPIES OBTAINED IN THE CASE OF SUPPLIERS AND THE BOOKS OF ACCOUNT OF THE ASSESSEE TOTALLING ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 4 OF 6 RS.1,90,222 (RS.1,69,513+RS.20,709), I AGREE WITH THE OBSERVATIONS OF THE AO THAT THE APPELLANT COULD NOT EXPLAIN THE DIFFERENCE BETWEEN THE ACCOUNTS ATLEAST AT THE TRIBUNAL STAGE AND THAT THE ASSESSEE CONCEALED THE INCOME IN THE FORM OF CLAIM OF EXCESS LIABILITIES TO THE EXTENT OF RS.1,90,220. 4. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THE TRIB UNAL. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE CONTENDS THAT HE HAS GIVEN EXPLANATION REGARDING THE BREAKAGES IN BUSINESS/LEA KAGES/ EXPIRY/SHORTAGE/STOCK NOT FIT FOR SALES ETC., BUT T HE SAME WAS NOT DISBELIEVED AND THERE IS NO FINDING THAT THIS INCOM E IS CONCEALED INCOME AND HENCE IT IS NOT A FIT CASE FOR LEVY OF P ENALTY. HE MAINLY SUBMITTED THAT THERE IS A POSSIBILITY OF SHO RTAGES AND EXPIRY OF DRUGS, WHICH IS COMMON IN THIS LINE OF BU SINESS WHICH COULD HAVE BEEN TAKEN INTO CONSIDERATION. SIMILARLY WITH REGARD TO THE ADDITION OF RS.1,69,513/-, THE ASSESSEE CONT ENDS THAT ACCORDING TO THE BOOKS THERE IS DIFFERENCE IN LUPIN CO., AND THE BALANCE AS ON 31.3.2004 IS NIL AND HENCE THE AO IS NOT CORRECT IN TAKING THE IMAGINARY FIGURE AND ADDING IT. SIMILARL Y WITH REGARD TO THE DIFFERENCE OF RS.20,709/-, IT WAS SUBMITTED THAT IT IS A RUNNING A/C WITH THE SAID COMPANY AND THE AMOUNT WA S PAID SUBSEQUENTLY, HENCE THIS DOES NOT COME UNDER CONCEA LED INCOME. THUS, IT SHOULD NOT BE CONSIDERED AS CONCEALMENT OF INCOME. HE MAINLY RELIED UPON THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD REPORTED IN 322 ITR 158 TO SUBMIT THAT MERE MAKING OF CLAIM WHI CH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FUR NISHING OF INACCURATE PARTICULARS OF INCOME. ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 5 OF 6 5. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE PENALTY WAS LEVIED ON THE GROUND THAT THERE WAS A C ONCEALMENT OF INCOME SINCE PROVISO TO SECTION 271(1)(C) AUTOMA TICALLY COMES INTO PLAY WHEN THERE IS A DIFFERENCE BETWEEN INCOME DECLARED AND INCOME ASSESSED AND IT IS FOR THE ASSESSEE TO PROVE , WITH MATERIAL, THAT THE ADDITIONS ARE NOT REFERABLE TO C ONCEALMENT OF INCOME. IN THE INSTANT CASE, THE ASSESSEE DID NOT F URNISH ANY EVIDENCE EVEN BEFORE THE TRIBUNAL IN THE QUANTUM PR OCEEDINGS AND THUS THE QUANTUM WAS CONFIRMED BY THE TRIBUNAL WHICH CLEARLY PROVES THAT THE ASSESSEE HAS NOT GIVEN ANY JUSTIFIABLE EXPLANATION. WHEN THE ASSESSEE FURNISHED EXPLANATIO N, WHICH IS SUBSTANTIATED BY THE MATERIAL, IT IS OPEN FOR THE R EVENUE TO PROVE THAT THERE WAS CONCEALED INCOME WHEREAS, IN THE INS TANT CASE, THE ADDITIONS MADE BY THE AO HEREIN WERE CONFIRMED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS AND EVEN IN THE PENALTY PROCEEDINGS IT COULD NOT FURNISH ANY EVIDENCE TO SU BSTANTIATE ITS CLAIM THAT THE DIFFERENCE BETWEEN THE CLOSING STOCK AS DECLARED BY THE ASSESSEE AND AS NOTICED IN THE COMPUTER PRIN TOUT ARE IMAGINARY. SIMILARLY THE OTHER TWO ADDITIONS ARE AL SO NOT PROVED TO BE GENUINE, BY FURNISHING ANY MATERIAL ON RECORD . HE THUS STRONGLY RELIED UPON BY THE ORDERS PASSED BY THE AU THORITIES BELOW. 6. I HAVE CAREFULLY CONSIDERED THE MATERIAL ON RECO RD. NONE APPEARED FOR THE ASSESSEE. EXCEPT FILING WRITTEN SU BMISSION, THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO SUPPORT ITS CLAIM THAT THE ADDITIONS/DISALLOWANCE WAS MADE MAINLY ON ACCOU NT OF DIFFERENCE OF OPINION AND THEY ARE NOT REFERABLE TO THE AMOUNT OF CONCEALMENT OF INCOME. HAVING REGARD TO THE CONCUR RENT ITA NO 1405 OF 2014 ANJANI KUMAR GOEL HYDERABAD PAGE 6 OF 6 FINDINGS IN THE PARALLEL QUANTUM PROCEEDINGS AS WEL L AS IN THE PENALTY PROCEEDINGS (AS CONFIRMED BY THE CIT (A)), I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY TH E LEARNED CIT (A). I THEREFORE, CONFIRM THE ORDER PASSED BY THE CIT (A) AND DISMISS THE APPEAL FILED BY THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST, 2016. S D/ - (D. MANMOHAN) VICE PRESIDENT HYDERABAD, DATED 10 TH AUGUST, 2016. VNODAN/SPS COPY TO: 1. SHRI ANJANIKUMAR GOEL, 4-1-11/A TILAK ROAD, HYDERAB AD 500001 2. INCOME TAX OFFICER WARD 5(1) HYDERABAD 3. CIT(A) -V HYDERABAD 4. CIT IV HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER