Shri Dilipbhai A. Bhojani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3), RAJKOT-GUJARAT

ITA 171/RJT/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4374 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: JAY N RAYJADA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL , SMC BENCH, RAJKOT BEFORE SHRI D K SRIVASTAVA, AM ITA NO. 171 /RJT/2013 ( ASSESSMENT YEAR: 200 8 - 0 9 ) SHRI DILIPBHAI A BHOJANI V. ITO, WARD - 2(3), RAJKOT PROP. OF SHREE SWAMINARAYAN IND., LAXMIWADI MAIN ROAD, RAJKO T PAN: ACEPB 7691 L DATE OF HEARING : 31 - 0 5 - 201 3 DATE OF PRONOUNCEMENT : 19 - 0 6 - 201 3 ASSESSEE BY : SHRI JAY N RAYJADA, ADVOCATE REVENUE BY : SHRI K C MATHEWS, DR ORDER THE APPEAL FILED BY THE ASSESS EE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) - III, RAJKOT ON 28 .0 2 .2013 BY WHICH HE HAS CONFIRMED PENALTY AT THE RATE OF 100% ON TAX SOUGHT TO BE EVADED ON THE ADDITION OF RS.1,64,205/ - CONFIRMED BY THE CIT(A) IN THE QUANTUM APPEAL. THE ASSESSE E HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1.0 THE CIT(A) - III HAS PARTLY ALLOWED THE APPEAL AND MADE ADDITION OF RS.1,64,205/ - AS AGAINST THE ADDITION MADE AT RS.3,73,518/ - . BUT CIT(A) - III HAS DIRECTED TO LEVY PENALTY AT THE MINIMUM OF 100% ON TAX SOU GHT TO BE EVADED ON THE ADDITION OF RS.1,64,205/ - FOR THE ASSESSMENT YEAR 2008 - 09. THE PENALTY MAY KINDLY BE DELETED AND JUSTICE BE DONE. 2. THE ASSESSEE IS AN INDIVIDUAL. HE FILED HIS RETURN OF INCOME ON 29.08.2008 RETURNING TOTAL INCOME AT RS.2,64,380/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DETECTED A BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH ICICI BANK IN WHICH A SUM OF RS.25,37,945/ - WAS FOUND TO HAVE BEEN DEPOSITED DURING THE ASSESSMENT YEAR UNDER APPEAL. ON BEING CON FRONTED, THE ASSESSEE EXPLAINED THAT THE AFORESAID BANK ACCOUNT WAS A JOINT BANK ACCOUNT AND NOT AN INDIVIDUAL BANK ACCOUNT OF THE ASSESSEE. HE ALSO EXPLAINED THAT WITHDRAWALS/DEPOSITS MADE IN THE SAID BANK ACCOUNT RELATED TO HIS BUSINESS. AFTER GOING THRO UGH THE EXPLANATION OFFERED BY THE ASSESSEE, THE ASSESSING OFFICER ADDED A SUM OF RS.3,73,518/ - U/S 68 OF THE INCOME - TAX ACT AS REPRESENTING UNEXPLAINED CASH DEPOSITS, WHICH, ON APPEAL HAS BEEN REDUCED BY THE LD CIT(A) TO RS.1,64,205/ - . 2 ITA 171 /RJT/2013 3. IN SUPPORT OF APPEAL, THE L EARNED C OUNSEL FOR THE ASSESSEE SUBMITTED THAT THE BANK ACCOUNT DETECTED BY THE ASSESSING OFFICER IN ICICI BANK WAS A JOINT ACCOUNT HELD BY ASSESSEE WITH HIS SON SHRI VIMAL BHAI BHOJANI AND THAT THE TRANSACTIONS IN THE SAID BANK ACCOUNT WERE NO T THE TRANSACTION S OF THE ASSESSEES ALONE. HE FURTHER SUBMITTED THAT THE ASSESSEE WANTED TO BUY PEACE AND THEREFORE DID NOT AGITATE THIS ISSUE BEFORE THE ASSESSING OFFICER. RELYING UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A), HE SUBMITTED THAT THE ASS ESSEE AGREED TO THE ADDITIONS WITH A VIEW TO BUY PEACE . ACCORDING TO HIM, IT WAS NOT A FIT CASE FOR LEVY OF PENALTY. HE RELIED UPON THE FOLLOWING JUDGMENTS IN SUPPORT OF HIS SUBMISSIONS: - 1 . CIT V. BADRILAL CHATURBHUJ 265 ITR 329 2 . CIT V. BARODA TIN WORKS 221 ITR 661 3 . NATIONAL TEXTILES V. CIT 249 ITR 125 4. IN REPLY, THE LD DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). HE RELIED UPON THE FOLLOWING JUDGMENTS: - 1 . CIT V. ATUL MOHAN BINDAL 317 ITR 1 2 . PREMPAL GANDHI V. CIT 335 ITR 23 3 . CIT VS . RAKESH SURI 331 ITR 458 4 . SMT RAM PIARI VS. CIT 327 ITR 318 5 . CIT VS. SREE VALLIAPPA TEXTILE 294 ITR 322 6 . 298 ITR 106 5. I HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THEIR SUBMISSIONS. IT HAS BEEN THE CASE OF THE ASSESSEE BEFORE THE ASSESSING OFFIC ER AS WELL AS BEFORE THE LD CIT(A) THAT THE BANK ACCOUNT HELD IN ICICI BANK WAS A JOINT ACCOUNT AND NOT THE ACCOUNT OF ASSESSEES ALONE. HIS EXPLANATION THAT THE IMPUGNED SUM WAS DEPOSITED OUT OF SALE PROCEEDS WAS ALSO REJECTED. IT IS THE CASE OF THE ASSES SEE THAT HE AGREED TO THE ADDITIONS JUST TO BUY PEACE . IT IS NOTICED FROM PARAGRAPH 5 OF THE APPELLATE ORDER PASSED BY THE CIT(A) THAT THE ADDITION OF RS.3,73,518/ - MADE BY THE ASSESSING OFFICER HAS SINCE BEEN REDUCED TO R S .1,64,205/ - CONSIDERING THE ENTIR E MATERIAL AVAILABLE ON RECORD, IT IS CONSIDERED APPROPRIATE TO CANCEL THE IMPUGNED PENALTY. I ORDER ACCORDINGLY. APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 19 .0 6 . 201 3 SD/ - ( D. K. SRIVASTAVA) ACCOUNTANT MEMBER RAJKOT: 19 .0 6 .2013 3 ITA 171 /RJT/2013 BT COPY OF ORDER FORWARDED TO: - 1. APPELLANT - SHRI DILIPBHAI A BHOJANI , PROP. OF SHREE SWAMINARAYAN IND., LAXMIWADI MAIN ROAD, RAJKOT 2 . RESPONDENT - ITO, WARD - 2(3), RAJKOT 3 . CONCERNED CIT - I II, RAJKOT 4. CIT(A) - III, RAJKOT 4 . DR, ITAT, RAJKOT 5 . GUARD FILE. BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT