Appeal details
Counselvise Citation
[2019] 115 COUNSELVISE.COM (IT) 8280 (ITAT-RAJKOT)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 year(s) 6 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-09-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
2005-2006
Appeal Filed On
03-03-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] SHAILESH AMRUTLAL KOTECHA, PROP. M/S. TALENET, 6 - KANTA STRI VIKAS GRUH, DHEBAR ROAD, RAJKOT PAN: AGCPK0930F (APPELLANT) VS THE ITO , WARD - 2(3), RAJKOT (RESPONDENT) REVENUE BY : S H RI PRAVEEN VERMA , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 2 8 - 08 - 2 019 DATE OF PRONOUNCEMENT : 23 - 09 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - T HE INS TANT APPEAL IS FILED AGAINST THE ORDER OF LD. CIT(A) - III, RAJKOT IN CONFIRMING THE FOLLOWING THREE ADDITIONS MADE BY THE ASSESSING OFFICER U/S. 143(3) OF THE ACT. I T A NO S . 146 & 153 / RJT /20 14 A SSESSMENT YEAR 200 5 - 06 I.T.A NO S . 146 & 153 /RJT /20 14 A.Y. 2005 - 06 PAGE NO SHAILESH AMRUTLAL KOTECHA VS. ITO 2 NATURE OF ADDITION AMO UNT (RS.) (I) ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FIXED ASSETS 1,56,736/ - (II) ON ACCOUNT OF TDS DIFFERENCE 6,76,832/ - (III) ON ACCOUNT OF EXPLAINED CASH CREDIT U/S. 68 2,34,350/ - 2 . THE BRIEF FA C T OF THE CASE IS THAT CIT, RAJKOT HAS PASSED ORDER U/S. 263 ON 28 TH DECEMBER, 2010 AND HELD THAT THE ORDER PASS E D BY T H E ASSESSING OFFICER U/S. 143(3) OF THE ACT ON 28 TH DECEMBER, 2007 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, THEREFORE, THE ASSESSMENT WAS SET ASIDE TO THE ASS ESSING OFFICER FOR FRAMING THE SAME DE - NOVO AFTER PROPER INQUIRY AND VERIFICATION OF THE ISSUES PERTAINING TO ADDITION TO FIXED ASSETS, CORRECTNESS OF THE COMMISSION OFFERED AS PER TDS CERTIFICATE AND GENUINENE SS OF UNSECURED LOAN OBTAINED F R O M 13 PERSONS. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS I N CONSEQUENCE TO ORDER U/S. 263, THE ASSESS ING OFFICER HAS ISSUED A NUMBER OF LETTERS AND NOTICES TO THE ASSESSEE , HOWEVER , THE ASSESSEE HAS NEITHER ATTENDED NOR FURNISHED ANY DETAIL AS CALLED FOR BY THE ASSES SING OFFICER , THEREFORE, THE ASSESSING OFFICER HAS FINALIZED THE ASSESSMENT ON THE BASIS OF MATERIAL ON RECORD. THE ASSESSING OFFICER HAS NOTICED THAT IN THE FIXED ASSET SCHEDULE , THE ASSESSE HAS SHOWN ADDITION OF FIVE ASSETS TOTALING TO THE AMOUNT OF RS. 1 , 56 , 736/ - AS MENTIONED AT PAGE NO. 3 OF THE ASSESSMENT ORDER MAINLY ON THE BASIS OF CASH MODE OF PAYMENT FOR ACQUIRING THESE ASSETS. THE ASSESSEE WAS ASKED TO FURNISH THE COMPLETE DETAIL OF ACQUIRING THESE ASSETS. HOWEVER, THE ASSESSEE HAS NOT MADE ANY COMPLIANCE, THEREFORE, THE ASSESSING OFFICER HAS ADDED THE AMOUNT OF RS. 1 , 56 , 736/ - AS I.T.A NO S . 146 & 153 /RJT /20 14 A.Y. 2005 - 06 PAGE NO SHAILESH AMRUTLAL KOTECHA VS. ITO 3 UNEXPLAINED INVESTMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ALSO NOTICED THAT THERE WAS DIFFERENCE IN RECEIPTS SHOWN IN THE TDS CERT IFICATE AND THE AMOUNT OF RECEIPT SHOWN IN THE RETURN OF INCOME TO THE AMOUNT OF RS. 6 , 76 , 832/ - . IN SPITE OF GIVING A NUMBER OF OPPORTUNITIES, THE ASSESSEE HAS FAILED TO EXPLAIN THE DIFFERENCES, THEREFORE, THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASS ESSEE. DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER HAS ALSO NOTICED THAT ASSESSEE HAS CLAIMED INTEREST FREE UNSECURED LOAN AMOUNTING TO RS. 2 , 34 , 350/ - FROM 13 PERSONS APPARENTLY IN CASH. THE ASSESSEE WAS ASKED TO FURNISH THE NAME, ADDRESS, PAN CONFIRMATIONS ETC. OF THE LENDERS. HOWEVER, THE ASSESSEE HAS FAILED TO FURNISH THE REQUIRED DETAIL TO PROVE THE CREDITWORTHINESS OF THE LOAN AND IDENTITY OF THE LENDERS. THEREFORE, THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 2 , 34 , 350/ - U/S 68 OF THE ACT AS UNEXPLAINED CASH CREDIT. 3. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A). 4. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE ADJOU RNMENT APPLICATION WAS REJECTED A FTER TAKING INTO CONSIDERATION THAT THE ASSESSEE HAS FILED THIS APPEAL IN 2014 AND THE MATTER WAS ADJOURNED 10 TIMES AND THE ASSESSEE HAS NEVER FURNISHED DETAI L AND INFORMATION. A FTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AND CONSIDERING THE MATER IAL ON RECORD, IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FAILED TO FURNISH ANY SINGLE EVIDENCE TO EXPLAIN THE ADDITION MADE TO FIXED ASSET TO THE AMOUNT OF RS. 1 , 56 , 736/ - AND DIFFERENCES IN THE COMMISSION RECEIPT REPO RTED IN THE P & L ACCOUNT AND THE AMOUNT APPEARING IN THE TDS I.T.A NO S . 146 & 153 /RJT /20 14 A.Y. 2005 - 06 PAGE NO SHAILESH AMRUTLAL KOTECHA VS. ITO 4 CERTIFICATE. IT IS ALSO NOTICED THAT ASSESSEE HAS FAILED TO FURNISH EVEN THE BASIC EVIDENCES IN SUPPORT OF UNSECURED LOAN AMOUNTING TO RS. 2 , 34 , 350/ - TO EXPLAIN THE IDENTITY OF THE LENDERS AND GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTIONS AS LAID DOWN IN SECTION 68 OF THE ACT. FURTHER DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE LD. CIT(A) IN SPITE OF GIVING ADEQUATE OPPORTUNITY , THE LD. COUNSEL OF THE ASSESSEE HAS NOT FURNISHED A NY DETAIL TO DISPROVE THE AFORESAID ADDITION S MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, IN SPITE OF GIVING A NUMBER OF OPPORTUNITIES , THE ASSESSEE HAS NOT FURNISHE D ANY MATERIAL OR DOCUMENT TO DISPROVE THE FINDING OF LOWER AUTHORITIES. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE, THEREFORE, THE SAME IS DISMISSED. IN THE RESULT, THE APPEAL OF THE ASSESS EE IS DISMISSED. ITA NO. 153 /RJT/2014 5. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT( A) IN CONFIRMING THE PENALTY LEVIED ON THE ADDITION S AS CITED ABOVE IN ITA NO. 146/RJT/2014. THE TOTAL AMOUNT S OF PENALTY IN RESPECT OF THRE E ADDITIONS ARE AS UNDER: - (I) ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS. 1,56,736/ - (II) ADDITION ON ACCOUNT OF TDS DIFFERENCE OF RS. 6 , 76 , 832/ - (III) ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF RS. 234350/ - I.T.A NO S . 146 & 153 /RJT /20 14 A.Y. 2005 - 06 PAGE NO SHAILESH AMRUTLAL KOTECHA VS. ITO 5 THE ASSESSING OFFIC ER HAS STATED THAT THERE WAS NO COMPLIANCE FROM THE ASSESSEE AS NOTHING TO SAY IN THE MATTER. ACCORDINGLY, THE PENALTY OF RS. 3 , 63 , 237/ - WAS LEVIED U/S. 271(1)(C) OF THE ACT. 6. THE ASSESSEE HAS PREFERRED THE MATTER BEFORE THE LD. CIT(A) . THE LD. CIT( A) H AS CONFIRMED THE PENALTY REITERATING THE FACTS REPORTED BY THE ASSESSING OFFICER. 7. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS FILED ADJOURNMENT APPLICATION WHICH WAS REJECTED FOR THE REASON MENTIONED IN THE QUANTUM ADDITION APPEAL FILED BY THE ASSESS EE AS ADJUDICATED ABOVE VIDE ITA NO. 146/RJT/2014. 8. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. IT IS NOTICED THAT IN THIS CASE , THE ASSESSING OFFICER HAS MADE AFORESAID THREE ADDITIONS SINCE THE ASSESSEE HAS FAILED TO FURNISH THE RELEVANT DETAILS DURING THE C OURSE OF ASSESSMENT PROCEEDINGS BECAUSE OF SUCH DEFAULT THE QUANTUM ADDITION IS JUSTIFIED, HOWEVER , FOR LEVY OF PENALTY U/S. 271(1)(C), THE ASSESSING OFFICER HAS TO SUBSTA NTIATE THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULAR OF INCOME. T HE ASSESSEE HAS SIMPLY LEVIED THE PENALTY STATING THAT THERE WAS NO RESPONSE FROM THE ASSESSEE WITHOUT SUBSTANTIATING THAT ASSESSEE HAS CONCEA LED THE PARTICULAR S OF INCOME. IT IS ALSO NOTICED THAT LD. CIT(A) HAS SIMPLY UPHELD THE ORDER OF ASSESSING OFFICER FOR LEVYING PENALTY WITHOUT STATING THE POINTS FOR DETERMINATION THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. IN THE LIGHT OF T HE ABOVE FACT, WE CONSIDER THAT THE I.T.A NO S . 146 & 153 /RJT /20 14 A.Y. 2005 - 06 PAGE NO SHAILESH AMRUTLAL KOTECHA VS. ITO 6 LOWER AUTHORITY HAS NOT SUBSTANTIATED WITH RELEVANT MATERIAL AND FINDING THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME , THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 9. IN THE COMBINED RESULT, APPEAL I T A 146/RJT/2014 IS DISMISSED AND APPEAL ITA 153/RJT/2014 IS ALLOWED ORDER PR ONOUNCED IN THE OPEN C OUR T ON 23 - 09 - 201 9 SD/ - SD/ - (RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : D ATED 23 /09 /201 9 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT
