R.A.Palanisamy, Erode V. ITO, Erode

ITA 1730/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9621 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 29-07-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI JCIT
• Assessee Lawyers: S SRIDHAR
• Keywords: Principle of natural justice

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , ! . ' #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.1730 /MDS./2015 ( / ASSESSMENT YEAR :2010-11) MR.R.A.PALANISAMY , 112,LAKSHMI NAGAR, KEEL THINDA,THINDAL,ERODE 638 012. VS. INCOME TAX OFFICER, WARD-1(2), ERODE PAN BDCPP 4183 M ( %& / APPELLANT ) ( '(%& / RESPONDENT ) / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE / RESPONDENT BY : MR.A.B.KOLI,JCIT, D.R ! / DATE OF HEARING : 10 .03.2016 '# ! /DATE OF PRONOUNCEMENT : 06.04.2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-3, COI MBATORE DATED 23.06.2015 PERTAINING TO THE ASSESSMENT YEAR 2010- 11 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS I N HIS APPEAL:- ITA NO.1730/MDS/2015 2 1. THE LD.CIT(A) IS ERRONEOUS IN LAW AND AGAINST T HE PRINCIPLES OF NATURAL JUSTICE. 2. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE GROU NDS OF APPEAL IN PROPER PERSPECTIVE. 3. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE WRIT TEN SUBMISSIONS IN PROPER PERSPECTIVE. 4. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT WHEN THE QUANTUM APPEAL, INVOLVING SUBSTANTIAL QUESTION OF L AW, FILED BEFORE THE MADRAS HIGH COURT, PENALTY CANNOT BE LEV IED. 5. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE SET TLED PRINCIPLE THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDING S ARE DIFFERENT AND THAT THE FINDINGS IN THE ASSESSMENT P ROCEEDINGS ARE NOT CONCLUSIVE. 3. THE FACTS OF THE CASE ARE THAT THERE WAS AN ADD ITION OF ` 45,80,000/- TO THE INCOME DECLARED BY THE ASSESSEE. THE ADDITION WAS MADE U/S.68 OF THE ACT AND CONSEQUENT TO THIS, PENALTY WAS LEVIED AT 100% OF TAX SOUGHT TO BE EVADED. THE CON TENTION OF THE LD.A.R IS THAT THE ASSESSEE HAS FILED ALL THE DETAI LS OF CREDIT WHICH WAS NOT AT ALL ACCEPTED BY THE DEPARTMENT AND THAT ITSE LF NOT LEADS TO CONCLUSION THAT ASSESSEE HAD CONCEALED IN PARTICULA RS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. ADMITT EDLY, IN THIS CASE THE ASSESSEE HAS GIVEN EXPLANATION WITH REGARD TO U NEXPLAINED CREDIT. ITA NO.1730/MDS/2015 3 THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY THE REVENUE AUTHORITIES AS WELL AS TRIBUNAL. THE ADDITION WAS SUSTAINED. AGAINST THE SUSTENANCE OF ADDITION, THE ASSESSEE IS NOW APP EAL BEFORE THE MADRAS HIGH COURT. AS PER THE ARGUMENT OF LD.A.R, THE ISSUE IS PENDING BEFORE THE JURISDICTIONAL HIGH COURT. FURT HER, THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT AT ALL DISPROVED BY T HE DEPARTMENT, THOUGH IT WAS NOT ACCEPTED BY THE DEPARTMENT. WHEN ADDITION U/S.68 OF THE ACT WAS MADE AND CONFIRMED BY THE TRIBUNAL B ECAUSE OF UNSATISFACTORY EXPLANATION GIVEN BY THE ASSESSEE IN SUPPORT OF SUCH CREDIT, BUT IT IS NOT A GOOD CASE FOR IMPOSITION OF PENALTY BECAUSE IT RELATES TO LACK OF TENDERING EXPLANATION TO THE SAT ISFACTION OF THE LD. ASSESSING OFFICER AND NOT DISPROVING THE CONTENTION OF THE ASSESSEE TO THE GENUINENESS OF THE RECEIPTS. AS HELD BY THE CALCUTTA HIGH COURT IN THE CASE OF DURGA KAMAL RICE MILLS VS. CIT REPORTED IN [2004] 265 ITR 025 RELYING ON M/S.NATIONAL TEXTILES REPORTED IN [2001]249 ITR 125(GUJ.), THERE IS A DIFFERENCE IN FACTS NOT PROVED AND FACTS DISPROVED. IT IS FURTHER HELD THAT PE NALTY CAN BE LEVIED ONLY FOR THE LATTER. SIMILAR VIEW HAS BEEN TAKEN IN CIT V. VIDYAGAURI NATVERLAL & ORS., REPORTED IN [1999] 153 CTR 546 (G UJ). BEING SO, IN ITA NO.1730/MDS/2015 4 THE PRESENT CASE, THE EXPLANATION GIVEN BY THE ASSE SSEE NOT DISPROVED BY THE LD. ASSESSING OFFICER, AS SUCH THE RE IS NO CONCLUSIVE EVIDENCE TO SHOW THAT ASSESSEE HAS CONCEALED PARTIC ULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. AT THIS STAGE, LEVY OF PENALTY IS NOT PROPER. THE PENALTY LEVIED U/S.271( 1)(C) OF THE ACT IS DELETED. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED ON WEDNESDAY, THE 6 TH OF APRIL,2016 AT CHENNAI. SD/- SD/- ( . ) (G.PAVAN KUMAR) ( ( $% & ) ) ' CHANDRA POOJARI () JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 6 TH APRIL,2016. K S SUNDARAM. *+)),-).- /COPY TO: ) 1. /APPELLANT 2. /RESPONDENT 3. ) /)'( /CIT(A) 4. ) / /CIT 5. -01 )2 /DR 6. 13)4 /GF