MANJU JAIN, MUMBAI V. ITO 19(1)(1), MUMBAI

ITA 1763/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8713 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 13-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M C OMI NIGSHEN
• Assessee Lawyers: NIKITA AGARWAL
• Keywords: Wrong claim
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE S/SHRI AMIT SHUKLA, JM & ASHWANI TANEJA, AM ITA NO.1763/MUM/2014 ASSESSMENT YEAR : 2003-04 MRS. MANJU JAIN B 402, KAILASH BLDG., S V ROAD, KHAR (W), MUMBAI 400 052 PAN AAEPJ7530J VS. ITO 19(1)(1) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : MS NIKITA AGARWAL RESPONDENT BY :SHRI M. C. OMI NIGSHEN DATE OF HEARING :17.01.2017 DATE OF PRONOUNCEMENT :17 .01.2017 O R D E R PER AMIT SHUKLA, JUDICIAL MEMBER THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 28.11.2013, PASSED BYLD. CIT(AP PEALS)-18, MUMBAI,IN RELATION TO THE PENALTY PROCEEDINGS U/S. 271 (1)(C) FOR THE A.Y. 2003-04. THE ASSESSEE IS AGGRIEVED BY THE LEVY OF PENALTY ON ACCOUNT OF ADDITION OF RS.2,00,000/- WHICH WAS MADE U /S. 68 AND RS.20,200/- ON ACCOUNT OF BOGUS CLAIM OF AGRICULTURAL INCOME. 2. BEFORE US, THE LEARNED COUNSEL, MS. NIKITA AGARWAL , SUBMITTED THAT SO FAR AS THE LEVY OF PENALTY ON ADDITION OF RS.2 LACS MADE U/S. 68 IS CONCERNED, THE SAME STANDS DELETED BY THE ORDER OF THE TRIBUNAL ITA NO.1763/MUM/2014 MRS. MANJU JAIN. 2 DATED 21.09.2016, IN ASSESSEES OWN CASE IN THE QUANTU M PROCEEDINGS IN ITA NO. 7593/MUM/2013 AND, THEREFORE, THE PENALTY LEVIED ON THE AMOUNT OF RS. 2 LACS SHOULD BE DELETED. REGARDING TH E TREATMENT OF AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES, SH E SUBMITTED THAT THOUGH SAME WAS NOT PRESSED BY LEARNED AR BEFORE THE T RIBUNAL IN QUANTUM PROCEEDINGS, HOWEVER NO PENALTY CAN BE LEVI ED ON SUCH TREATMENT OF AGRICULTURAL INCOME AS INCOME FROM OTHER S OURCES FOR THE REASON THAT FIRSTLY, IT IS MERE CHANGE OF HEAD OF INCOM E; AND SECONDLY, IN THE SUBSEQUENT YEAR THE ASSESSEE HAS FILED THE PROOF OF SALE OF AGRICULTURAL LAND. THUS, NO PENALTY SHOULD BE LEVI ED ON SUCH AN ADDITION. 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE ASSESSEES CLAIM FOR AGRICULTURAL INCOME REMAINS UNS UBSTANTIATED AND NO DETAILS OR EVIDENCE WHATSOEVER HAS BEEN FILED BY TH E ASSESSEE. THEREFORE, PENALTY HAS RIGHTLY BEEN LEVIED BY THE AO AND CONFIRMED BY THE CIT(A) ON THE AGRICULTURAL INCOME. REGARDING ADD ITION OF RS. 2 LACS, HE ADMITTED THAT THE SAME NOW STANDS DELETED BY THE TRIBUNAL AND, THEREFORE, NO PENALTY CAN BE LEVIED ON THIS AMOU NT. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS OF THE PARTI ES AND ON PERUSAL OF THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS, WE FIND THAT SO FAR AS LEVY OF PENALTY ON ACCOUNT OF UNEXPLAIN ED CASH CREDIT OF ITA NO.1763/MUM/2014 MRS. MANJU JAIN. 3 RS. 2 LACS MADE U/S. 68 IS CONCERNED, THE SAME NOW S TANDS DELETED BY THE TRIBUNAL AFTER OBSERVING AND HOLDING AS UNDER:- 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT ASSESSEE WAS IN RECEIPT OF LOAN FROM MA HESH JEWELLERS, PROPRIETOR RAJMAL K. JAIN DURING THE ASS ESSMENT YEAR 2003-04 UNDER CONSIDERATION. THE LOAN WAS NOT OF RS .2 LAKHS BUT IT WAS A CARRIED FORWARD LOAN WHERE IN THE AMOUNT W AS GIVEN AND TAKEN AT VARIOUS DATES DURING THE A.Y.2003-04 AND T HE NET BALANCE OUTSTANDING IS SHOWN AS RS.2 LAKHS AS AT 31 -3-2003. WE FOUND THAT LOAN WAS RECEIVED BY ACCOUNT PAYEE CHEQU E FROM BANK OF INDIA. ON 10 -4-2002 THERE WAS A CHEQUE OF RS.4 LAKHS, ON 22- 4-2002, A CHEQUE OF RS.38,617/- AND ON 14-12-2002 A CHEQUE OF RS.3,50,000/- WAS RECEIVED. OUT OF THESE PAYMENT AS SESSEE HAS REPAID A SUM OF RS.1,50,000/- BY WAY OF CHEQUE OF H DFC BANK ON 31-1-2003, THERE WAS A CLOSING BALANCE OF RS.2 L AKHS ON 31-3- 2003. THE REQUIRED CONFIRMATION FROM RAJMAL K. JAIN , PROPRIETOR OF MAHESH JEWELLERS WAS FILED BEFORE THE LOWER AUTHORI TIES, WHO WAS ASSESSED TO TAX. WE HAD ALSO VERIFIED THE ACKNO WLEDGEMENT OF RETURN OF INCOME OF SHRI RAJMAL JAIN ALONG WITH ITS PROFIT AND LOSS ACCOUNT AND BALANCE SHEET DULY INDICATING THE LOAN AMOUNT. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT FOR THE ADDITION OF RS.2 LAKHS MADE BY THE AO. ITA NO.1763/MUM/2014 MRS. MANJU JAIN. 4 WHENCE QUANTUM ITSELF HAS BEEN DELETED, THEN NO PENALT Y ON THIS AMOUNT CAN BE LEVIED OR SUSTAINED AND ACCORDINGLY, WE DIRECT THE AO TO DELETE THE PENALTY ON ADDITION OF RS. 2,00,000/-. 5. AS REGARDS THE LEVY OF PENALTY ON AGRICULTURAL IN COME, IT IS SEEN THAT THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF RS. 20,200/- IN THE CAPITAL ACCOUNT. HOWEVER, DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, NO DETAILS OF LAND HOLDING AND 7/12 EXTR ACT OR ANY OTHER EVIDENCE OR DOCUMENT WAS FURNISHED IN SUPPORT OF AGR ICULTURAL INCOME OF RS.20,200/-. THE ASSESSEE IN THE QUANTUM PROCEEDIN GS MAY NOT HAVE PRESSED THIS GROUND BEFORE THE TRIBUNAL,BUT IT IS A TRITE LAW THAT IF THE ASSESSEE CLAIMS THAT CERTAIN INCOME IS EXEMPT AN D DO NOT FORM PART OF THE TOTAL INCOME THEN ONUS LIES HEAVILY UPON THE ASSESSEE TO SHOW THAT SUCH AN INCOME IS EXEMPT. THIS PRIMARY ONUS OF THE ASSESSEE HAS NOT BEEN DISCHARGED EITHER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS OR IN THE COURSE OF PENALTY PR OCEEDINGS. THERE HAS TO BE SOME PRIMA FACIE EXPLANATION THAT AT THE TIME OF FILING THE RETURN OF INCOME, THE ASSESSEE HAD SOME BASIS FOR SHOWING OR CLAIMING THE AGRICULTURAL INCOME IN THE RETURN OF INCO ME, WHICH HAS BEEN CLAIMED AS EXEMPT. IN THE ABSENCE OF ANY DETAILS IT HAS BEEN RIGHTLY HELD TO BE TAXED AS INCOME FROM OTHER SOURCES. EVEN BEFORE US, WITHOUT THERE BEING ANY MATERIAL OR PLAUSIBLE BON AFIDE EXPLANATION, WE ARE UNABLE TO APPRECIATE THE CONTENTION OF THE LEARNED ITA NO.1763/MUM/2014 MRS. MANJU JAIN. 5 COUNSEL AND ACCORDINGLY, WE SUSTAINED THE PENALTY ON THE DISALLOWANCE OF AGRICULTURAL INCOME OF RS.20,200/-. 6. THUS, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS17 TH DAY OF JANUARY 2017. SD/- SD/- (ASHWANITANEJA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI; DATED: 19 TH JANUARY, 2017. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. DR, H BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// (ASSISTANTREGISTRAR) INC OME TAX APPELLATE TRIBUNAL, MUMBAI