Amarjeet Beeton HUF, Dhuri V. ACIT, C-4, Ludhiana

ITA 1546/CHANDI/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4920 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 09-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI BOHRA
• Section: 133(6); 68; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH SMD, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1546/CHD/2017 (ASSESSMENT YEAR: 2013-14) AMARJEET BEETON(HUF) VS. THE ASSTT. CIT PROP. M/S SHIVA UDYOG, CIRCLE-4 HOUSE NO. 210, WARD NO. 10-B LUDHIANA SHIVPURI MOHALLA, DHURI PAN: AAFHA3569R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. SUDHIR SEHGAL DEPARTMENT BY : SMT. MEENAKSHI BOHRA DATE OF HEARING : 12/04/2018 DATE OF PRONOUNCEMENT : 04/06/2018 O R D E R PER DR.B.R.R.KUMAR, A.M . : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A)-2, LUDHIANA DT. 18/09/2017. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED FOLLOW ING GROUNDS OF APPEAL: 1. THAT THE LD. CIT (A) HAS ERRED IN UPHOLDING PENALTY OF IMPOSED BY THE ASSESSING OFFICER U/S 271 (1)(C) OF THE INC 1961. 2. THAT THE WORTHY CIT (A) HAS FAILED TO APPRECIATE TH E FACT THAT THE CONFIRMATION FROM THE CREDITOR IN THE SHAPE OF AFFI DAVIT, BANK STATEMENT AND COPY OF ITR RETURN ALONGWITH COMPUTATION OF INCOME WERE FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND WHICH HAS TOTALLY BEE N IGNORED BY THE ASSESSING OFFICER WHILE LEVYING THE PENALTY 3. THAT THE LD. CIT (A) HAS EVEN OTHERWISE ERRED IN CO NFIRMING THE PENALTY U/S 271(1)(C) AS COMPLETE DETAILS WERE FILED BY THE ASS ESSEE IN THE RETURN OF INCOME AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT THE PENALTY OF RS. 66,939/- HAS BEEN IMPOSED A GAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETAILED SUBMISSION F ILED DURING THE COURSE OF HEARING VIDE LETTER, DATED 13.09.2017, INCORPORATED IN THE ORDER AT PAGES 3 TO 6, HAS NOT BEEN CONSIDERED PROPERLY. 2 3. BRIEF FACTS OF THE CASE ARE THAT WHILE FRAMING THE ASSESSMENT U/S143(3) VIDE ORDER DATED 19.11.2015 THE ASSESSING OFFICER MADE ADDITION OF RS. 200000/- ON ACCOUNT OF UNSECURED LOAN FROM SMT. ANITA SHARMA DU RING THE YEAR UNDER CONSIDERATION U/S 68 OF THE INCOME TAX ACT. SMT. AN ITA SHARMA WAS AN EXISTING INCOME TAX ASSESSEE AND DURING ASSESSMENT PROCEEDIN GS COPY OF HER INCOME TAX RETURN, COMPUTATION OF INCOME, BANK ACCOUNT STA TEMENT AND AFFIDAVIT CONFIRMING THAT THE LOAN WAS ADVANCED TO THE ASSESS EE WAS PRODUCED BEFORE THE LD. AO. THE ASSESSING OFFICER CALLED FOR THE I NFORMATION U/S 133(6) FROM SMT ANITA SHARMA WHICH ACCORDING TO THE AO WAS NOT REPL IED THE ASSESSEE SURRENDERED RS. 200000/- AS INCOME TO AVOID LITIGAT ION WITH THE DEPARTMENT. THE LD. ASSESSING OFFICER MADE AN ADDITION OF RS. 20000 0/- ON ACCOUNT OF THIS SURRENDER AND INITIATED PENALTY PROCEEDINGS U/S 27 1(L)(C) AND SUBSEQUENTLY LEVIED PENALTY OF RS.66,939/-. 4. IT WAS ARGUED BEFORE US THAT THE ASSESSING OFFIC ER HAS MADE THE ADDITION ON THE GROUND THAT SMT. ANITA SHARMA HAS FAILED TO RESPOND TO THE OFFICE NOTICE AND FROM THE COPY OF HER INCOME TAX RETURN, HER CRE DIT WORTHINESS/CAPACITY TO LEND IS DOUBTFUL. 5. THE ASSESSEE HAS FURNISHED ALL THE DOCUMENTS LIK E INCOME TAX RETURN, COMPUTATION OF INCOME, BANK STATEMENT AND EVEN AFFI DAVIT FROM HER CONFIRMING THAT SHE HAS ADVANCED THE AMOUNT TO THE ASSESSEE. 6. THE LD. AR ARGUED THAT THE ASSESSING OFFICER HAD DOUBT ABOUT THE CREDIT WORTHINESS/CAPACITY TO LEND OF SMT. ANITA SHARMA, B UT, THE LD. AO DID NOT MENTION IN THE ORDER THAT HOW HER CREDIT WORTHINESS/CAPACIT Y TO LEND IS DOUBTFUL. THE ADDITION IN THE HANDS OF ASSESSEE AND THE PENALTY T HEREON CANNOT BE MADE MERELY ON SUSPICION. 7. THE LD. AR PLACED RELIANCE ON THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS PVT. LTD , 322ITR 158 (SC) AND ALSO THE RATIO LAID DOWN IN THE CASE OF CIT VS SURESH CHANDR A MITTAL 251 ITR 9 (SC). 8. THE LD. DR ARGUED THAT THE ASSESSEE HUF HAS CER TAINLY FURNISHED INACCURATE PARTICULARS OF ITS INCOME TO THE EXTENT OF RS.2,16, 635/- BY INTRODUCING CASH CREDIT IN THE NAME OF SMT. ANITA SHARMA, THE GENUINENESS O F WHICH COULD NOT BE ESTABLISHED DURING ASSESSMENT PROCEEDINGS. THE ASSE SSEE HUF CAME FORWARD TO 3 SURRENDER AN AMOUNT OF RS.2,00,000/-WHICH ACTUALLY REPRESENT CASH CREDIT IN THE NAME OF SMT. ANITA SHARMA WHEN IT WAS ASKED TO PROD UCE SMT. ANITA SHARMA FOR VERIFICATION OF LOAN TRANSACTION. HAD THE CASE OF T HE ASSESSEE HUF NOT BEEN SELECTED FOR SCRUTINY, THE ASSESSEE HUF WOULD NOT H AVE COME FORWARD TO SURRENDER THE AMOUNT. MOREOVER, THE SURRENDER MADE BY THE ASSESSEE HUF CANNOT BE SAID TO BE A VOLUNTARY DISCLOSURE. 9. LD. DR FURTHER ARGUED THAT THE ASSESSING OFFICER HAS BROUGHT SUFFICIENT MATERIAL ON RECORD WHICH WILL SUGGEST THAT THE ASSESSEE HUF HAS CONCEALED INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 11. THE ASSESSEE HUF HAS SUBMITTED THAT SMT. ANITA SHARMA FROM WHOM UNSECURED LOAN OF RS.2,00,000/- WAS RAISED IS AN EX ISTING ASSESSEE AND HER COPY OF INCOME TAX RETURN, COMPUTATION OF INCOME, HER BANK STATEMENT AND AFFIDAVIT CONFIRMING THAT THE AMOUNT WAS ADVANCED TO THE ASSE SSEE HUF WAS FURNISHED BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PROC EEDINGS. IT HAS ALSO BEEN SUBMITTED THAT THE ASSESSEE HUF HAS DISCHARGED ITS ONUS BY PROVING THE GENUINENESS OF TRANSACTION IN RESPECT OF LOAN OF RS .2,00,000/-. IT HAS FURTHER BEEN SUBMITTED THAT AMOUNT WAS SURRENDERED ONLY TO AVOID LITIGATION WITH THE DEPARTMENT AND TO PURCHASE PIECE OF MIND SUBJECT TO NO PENAL ACTION. IN SUPPORT OF HIS CONTENTIONS, THE LEARNED AR OF THE A SSESSEE HUF HAS ALSO RELIED UPON VARIOUS JUDICIAL PRONOUNCEMENTS WHICH FINDS ME NTION IN THE WRITTEN SUBMISSIONS AS REPRODUCED ABOVE. ON CAREFUL CONSIDE RATION OF THE RIVAL CONTENTIONS, WE FIND THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD DURING THE PENALTY PROCEEDINGS TO PROVE THAT THE ASSESSEE HAS EITHER CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME. THE ASSESSEE HAVING FILED THE PRIMARY DETAILS AND O WING TO THE NON REPLY OF THE LENDER HAS SURRENDERED THE AMOUNT WHICH DOES NOT NE CESSARILY CONDUCT IN AUTOMATIC LEVY OF PENALTY IN THE ABSENCE OF ANY OTH ER MATERIAL BROUGHT BY THE ASSESSING OFFICER BY THE WAY OF INVESTIGATION OR BY RECORDING OF STATEMENT OF THE LENDER. THERE WAS NO ADDITION ON ACCOUNT OF DETECTI ON OR ON THE BASIS OF ANY OTHER INFORMATION IN POSSESSION OF THE DEPARTMENT EXCEPT THE AMOUNT SURRENDERED BY THE ASSESSEE. 4 11.1 THE AO HAS NOT BROUGHT ANY CONCRETE OR SPECIFI C MATERIAL AGAINST THE ASSESSEE ON RECORD THAT AS TO HOW THE ASSESSEE FURN ISHED INACCURATE PARTICULARS OF INCOME. THE AO HAS NOT MENTIONED ANY SPECIFIC FACT ADVERSE IN NATURE AGAINST THE ASSESSEE IN ORDER TO LEVY OF PENALTY. 12. HENCE, KEEPING IN VIEW THE ENTIRE FACTS AND CIR CUMSTANCES OF THE CASE WE ARE OF THE OPINION THAT THE PRESENT CASE IS NOT OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME ON THE PART OF THE ASSESSEE SO AS TO ATTRACT THE PROVISIONS OF SECTION 271C OF THE ACT A ND THEREFORE THE PENALTY LEVIED IS ORDERED TO BE DELETED. 13. AS A RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 04/06/2018 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR