Shri Kamlesh Natubhai Amin, Baroda V. The Income tax Officer, Ward-2(3), Baroda

ITA 1518/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6124 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 16-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.1518/AHD/2014 ( / ASSESSMENT YEAR : 2002-03) KAMLESH NATUBHAI AMIN 26/B, L.G. NAGAR NIZAMPURA BARODA 390 002 / VS. THE INCOME TAX OFFICER WARD-2(3) BARODA # ./ ./ PAN/GIR NO. : AAMPA 6817 F ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : MR. SAKAR SHARMA, AR '#& )( / RESPONDENT BY : MR. JAMES KURIAN, SR.DR *+ ), / DATE OF HEARING 12/04/2017 -./0 ), / DATE OF PRONOUNCEMENT 19/ 04 /2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, BARO DA [CIT(A) IN SHORT] DATED 02/02/2014 FOR THE ASSESSMENT YEAR (AY) 2002-03. 2. THE SHORT ISSUE IN THE PRESENT APPEAL IS ON TH E CORRECTNESS OF IMPOSITION OF PENALTY OF RS.78,680/- UNDER S.271(1) (C) OF THE INCOME TAX ITA NO.1518/AHD /2014 KAMLESH NATUBHAI AMIN VS. ITO ASST.YEAR 2002-03 - 2 - ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') B Y THE ASSESSING OFFICER (AO) AND CONFIRMED BY THE CIT(A). 3. THE LD.AR FOR THE ASSESSEE MR.SAKAR SHARMA SUBMI TTED THAT IN THE INSTANT CASE, AN ADDITION OF RS.2,72,000/- WAS MADE IN THE QUANTUM PROCEEDINGS TOWARDS UNEXPLAINED CASH CREDIT BY INVO KING SECTION 68 OF THE ACT. CONSEQUENTLY, THE PENALTY ON THE AFORESAI D ADDITION HAS BEEN IMPOSED BY THE AO AT RS.78,680/- BY INVOKING SECTIO N 271(1)(C) OF THE ACT. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE AO ALLEGED THAT THE SOURCE OF CREDITS TOWARDS (I) RS.25,000/- IN M/S.AK SHAR AGENCIES, (II) RS.1,05,000/- IN M/S.MAHAKALI ROLLER FLOUR & PULSE MILLS & (III) RS.1,42,000/- IN THE BANK ACCOUNT OF ITS PROPRIETAR Y-CONCERN OF THE ASSESSEE HAS REMAINED UNEXPLAINED. 3.1. THE LD.AR SUBMITTED THAT M/S.AKSHAR AGENCIES & M/S.MAHAKALI ROLLER FLOUR & PULSE MILLS ARE PARTNERSHIP-FIRMS WH ERE ASSESSEE IS A PARTNER. THE CASH WAS DEPOSITED OUT OF CASH WITHDR AWALS MADE AT VARIOUS DATES FROM PERSONAL ACCOUNT IN ALL THESE CASES. TH E LD.AR FURTHER POINTED OUT THAT THE CONFIRMATION FROM THE RESPECTI VE PARTIES AND THE PAN OF THE PARTIES HAVE ALSO BEEN PLACED ON RECORD AND THEREFORE THE ALLEGATION OF THE REVENUE THAT THE CASH DEPOSITS ARE NOT SUPPO RTED ANY KIND OF EVIDENCE/BANK STATEMENT ETC. IS GROSSLY INCORRECT. THE LD.AR ACCORDINGLY PLEADED THAT IN VIEW OF THE PRIMA-FACIE EVIDENCE ON RECORD ITA NO.1518/AHD /2014 KAMLESH NATUBHAI AMIN VS. ITO ASST.YEAR 2002-03 - 3 - WHICH REASONABLY SUPPORTS THE CASE OF THE ASSESSEE, THE PENALTY UNDER S.271(1)(C) OF THE ACT WAS NOT ATTRACTED IN THE FAC TS OF THE CASE. 4. THE LD.DR FOR THE REVENUE MR.JAMES KURIAN, ON TH E OTHER HAND, RELIED UPON THE ORDER OF THE CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. WE FIND THAT THE ASSESSEE HAS SHOWN PRIMA-FACIE NEXUSBETWEEN THE WITHDRAWALS AND THE DEPOSITS OF CASH TRANSACTIONS WHICH IS PLAUSIBL E. WE ALSO NOTE THAT PRIMA-FACIE EVIDENCE IN THE FORM OF LOAN CONFIRMATION ALONG WI TH PAN WAS SUBMITTED BEFORE THE LOWER AUTHORITIES, THE GEN UINENESS OF WHICH HAS NOT BEEN TRANSGRESSED. THE CIT(A) HAS, WHILE CON FIRMING THE ACTION OF THE AO, MAINLY RELIED UPON THE CONDUCT OF THE ASSES SEE IN NOT FURNISHING THE INFORMATION BEFORE THE AO. THIS CANNOT, IN OUR VIEW, BE A SOUND BASIS FOR SUSTAINING THE PENALTY. THE EVIDENCE AND EXPLANATION OF THE ASSESSEE IS REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EXPLANATION-1 TO SECTION 271(1)(C) OF THE ACT. IN THE LIGHT OF DOC UMENTARY EVIDENCES, WE ARE OF THE VIEW THAT ASSESSEE HAS PRIMA-FACIE DISCHARGED THE ONUS WHICH LAY UPON IT FOR NON-IMPOSITION OF PENALTY. CONSEQU ENTLY, APPEAL OF THE ASSESSEE IS ALLOWED AND THE PENALTY IMPOSED BY THE REVENUE IS DIRECTED TO BE DELETED. ITA NO.1518/AHD /2014 KAMLESH NATUBHAI AMIN VS. ITO ASST.YEAR 2002-03 - 4 - 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 19 / 04 /2017 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 19 / 04 /2017 4..*,.*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-II, BARODA 5. 9:;,*67 , 67 0 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 12.4.17 (DICTATION-PAD 7 PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.4.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.19.4.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19.4.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER