MASOOM CONSTRUCTION CO P LTD., Kota V. ITO, Kota

ITA 142/JPR/2011

• Counselvise Citation: 14223114 RSA 2011
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1990-1991
• Appeal Filed On: 21-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Gift; Corroborative evidences; Onus to prove
• Section: 143(3)

Judgement Text

1 ITA 142-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 142/JP/2011 ASSTT. YEAR : 1990-91. M/S. MASOOM CONSTRUCTION CO. P. LTD., VS. THE INCOM E-TAX OFFICER, KANSUA, KOTA. WARD 1(1), KOTA. (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 10.8.2011 DATE OF PRONOUNCEMENT : 19.8.2011. ORDER DATE OF ORDER : 19/08/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 1990-91. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) RELATING TO ASSESSMENT YEAR 1990-91. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE THOUGH W RITTEN SUBMISSIONS ARE PLACED ON RECORD. 4. THE LD. D/R HAS PLACED RELIANCE ON THE ORDER OF LD. CIT (A). THE APPEAL OF THE ASSESSEE IS BEING DISPOSED OFF AFTER CONSIDERING TH E WRITTEN SUBMISSIONS AND ORDERS OF THE AUTHORITIES BELOW. 2 5. IN THIS CASE THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) BY WHICH AN ADDITION OF RS. 78,000/- WAS MADE WHICH INCLUDES AN ADDITION OF RS. 20,000/- EACH ON ACCOUNT OF CASH CREDIT IN THE NAME OF SHRI ASHAD K HAN, MASTER AMJAD KHAN AND MASTER AKBAR KHAN AND INTEREST OF RS. 18,000/- CREDITED IN THEIR NAME. THE ADDITION MADE BY AO WAS CONFIRMED BY THE APPELLATE AUTHORITY. THERE AFTER, THE AO ISSUED NOTICE UNDER SECTION 271(1)(C). ASSESSEE FILED EXPLANATION BEFO RE THE AO. HOWEVER, THEY WERE NOT FOUND SATISFACTORY. THE CONTENTION OF THE ASSESSEE THAT CONFIRMATION OF ALL THESE CASH CREDITORS SUPPORTED BY CORROBORATIVE EVIDENCED IN T HE FORM OF AGRICULTURAL LANDHOLDING BY ONE CREDITOR AND GIFT CERTIFICATE RECEIVED BY THE O THER CREDITORS FROM MATERNAL UNCLE WHO WAS AN INCOME-TAX ASSESSEE WERE FILED. THE AO WAS N OT SATISFIED WITH THIS EXPLANATION AS IN HIS VIEW THE ASSESSEE COULD NOT PROVE THE INITIA L BURDEN TO PROVE THE CREDITWORTHINESS OF THESE CREDITORS. THEREFORE, HE HELD THAT ASSESS EE HAS CONCEALED PARTICULARS OF INCOME. ACCORDINGLY HE LEVIED A PENALTY OF RS. 18,720/-. TH E LD. CIT (A) HAS CONFIRMED THE ACTION OF THE AO. 6. AFTER CONSIDERING THE WRITTEN SUBMISSIONS AND PE RUSING THE OTHER MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED I N ITS APPEAL. IT IS SEEN THAT CONFIRMATIONS WERE FILED IN RESPECT OF THREE CREDIT ORS ALONG WITH SUPPORTING EVIDENCE. THESE CONFIRMATIONS WERE NOT FOUND INCORRECT OR FAL SE. THOUGH ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM BY FILING FURTHER EVIDENCE P ROVING CREDITWORTHINESS OF THE PERSONS WHO RECEIVED THE AMOUNT AS GIFT AND AGRICULTURAL PR ODUCE SHOWING INCOME FROM AGRICULTURE IN THE HANDS OF THE CREDITORS AND, THER EFORE, THE ADDITION WAS MADE. INTERESTS PAID TO THESE CREDITORS WERE ALSO DISALLOWED. IN O UR VIEW, THIS IS NOT A CASE OF FURNISHING ANY INACCURATE PARTICULARS OR CONCEALING OF INCOME BUT IT IS A CASE OF NOT SUBSTANTIATING 3 FURTHER. THIS IS A MATTER OF FACT THAT CONFIRMATIO NS OF ALL THE THREE CASH CREDITORS SUPPORTED BY THE CORROBORATIVE EVIDENCE IN THE FORM OF AGRICULTURAL LANDHOLDING BY ONE CREDITOR AND GIFT CERTIFICATES FROM THE CREDITORS M ATERNAL UNCLE WHO WAS INCOME-TAX ASSESSEE AND HAS GIFTED THE AMOUNT TO OTHER TWO CRE DITORS. IT IS FURTHER SEEN THAT SHRI ASHAD KHAN OWNS 8 BIGHAS OF AGRICULTURAL LAND AND O UT OF THE SALE PROCEEDS OF AGRICULTURAL PRODUCE THE AMOUNT OF RS. 20,000/- WA S ADVANCED TO THE ASSESSEE. MASTER AKBAR KHAN AND MASTER AMZAD KHAN BOTH HAD RECEIVED GIFT OF RS. 10,000/- EACH FROM THEIR MATERNAL UNCLE SHRI HAFIZ KHAN, WHO IS ASSESS ED TO TAX PAN 30-039-PZ-2274 WITH ITO WARD-1, KOTA. ALL THESE INFORMATION WERE RECEI VED FROM THE ASSESSEE AND NO ENQUIRY WAS MADE FROM THE CREDITORS DIRECTLY. THERE FORE, IN OUR CONSIDERED VIEW, AT LEAST PENALTY UNDER SECTION 271(1)(C) CANNOT BE LEVIED ON THE FACTS OF THE PRESENT CASE. ACCORDINGLY WE CANCEL THE LEVY OF PENALTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19. 8.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- M/S. MASOOM CONSTRUCTION CO. P. LTD., JAIPUR. THE ITO WARD 1(1), KOTA. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 142/JP/2011) BY ORDER, AR ITAT JAIPUR. 4