Shri Rameshchandra M.Shah, Baroda V. The Dy.CIT.,Circle-4(1), Baroda

ITA 1948/AHD/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9272 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 04-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHALAJA RAI
• Section: 271(1)(c)

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH, JM AND D.C.AGRAWAL, AM SHRI RAMESHCHANDRA M. SHAH, 34, SUVARNA REKHA SOCIETY, NIZMPURA, BARODA. VS. DY. CIT, CIRCLE 4(1), BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI SAKAR SHARMA, AR RESPONDENT BY:- SMT. SHALAJA RAI, D.R. O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) CONFIRMING THE LEVY OF PENALTY OF RS.38,050/ - UNDER SECTION 271(1)(C). THE GROUND RAISED BY THE ASSESSEE IS AS UNDER :- (1) THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AMOUNTING TO RS.38 ,050/- WITHOUT APPRECIATING THE SUBMISSIONS AND EVIDENCES FURNISHE D BEFORE HIM. 2. THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO VERIFIED PASS-BOOK OF ASSESSEE I N COMMERCIAL CO-OP. BANK LTD. WHEREIN FOLLOWING CASH DEPOSITS WERE FOUN D :- 1. 26.5.2003 RS.15,000/- 2. 22.07.2003 RS.15,000/- 3. 25.08.2003 RS.25,000/- ----------- ---- RS.55,000/- -------------- ITA NO.1948/AHD/2010 ASST. YEAR :2004-05 ITA NO.1948/AHD/2010 ASST. YEAR 2004-05 2 THE ASSESSEE FURNISHED REPLY ON 5.10.2006 WHEREIN I T WAS STATED THAT SOME OF THE AMOUNTS DEPOSITED ARE BY CHEQUE. THE DE TAILS SUBMITTED ARE AS UNDER :- 02.05.2003 RS.25,000/-(CH.NO.8567) 26.05.2003 RS.15,000/- (CH.NO.20331) 26.05.2003 RS.15,000/- (CASH) 22.07.2003 RS.15,000/- (CASH) 19.08.2003 RS.25,000/- (CH. NO.20575) 25.08.2003 RS.25,000/- (CASH) 17.09.2003 RS.80,000/- (CH.NO.020323) SINCE THERE WAS CASH DEPOSIT OF RS.55,000/- AND THE RE WAS NO EXPLANATION FROM THE ASSESSEE, THE AO PROPOSED THE ADDITION AND ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C). DURING PENALTY PROCEEDINGS IT WAS EXPLAINED THAT CASH DEPOSIT WAS OUT OF CASH AVAILAB LE IN HAND AND OUT OF VARIOUS CASH WITHDRAWALS IN THE PAST. 3. FURTHER DURING THE COURSE OF ASSESSMENT PROCEEDI NGS THE ASSESSEE IS FOUND TO HAVE INCURRED CASH EXPENSES ON RESIDENTIAL PROPERTY AS UNDER :- DATE NAME OF PERSON TO WHOM PAYMENT IS MADE AMOUNT (RS.) 27.01.2004 SHRI JIGNESHBHAI (FAJALPUR)-LABOUR 11,300 27.02.2004 SHAKTI TUBE WELL 10,000 05.03.2004 -DO- 12,500 17.02.2004 SAGAR INDUSTRIES 1,500 25.03.2004 SHRI ALLPESH GAJJAR 25,000 TOTAL 60,300/- NO EXPLANATION WITH RESPECT THERETO WAS RECEIVED AN D ACCORDINGLY A SUM OF RS.60,300/- WAS ALSO ADDED IN THE TOTAL INCOME. IN PENALTY PROCEEDINGS ALSO SAME REPLY WAS GIVEN THAT EXPENDITURE WAS INCU RRED OUT OF PAST SAVINGS AND PAST WITHDRAWALS FROM THE BANK ACCOUNT. THE AO DID NOT ITA NO.1948/AHD/2010 ASST. YEAR 2004-05 3 ACCEPT THE EXPLANATION SATISFACTORY AND LEVIED MINI MUM LEVIABLE PENALTY WORKED OUT AT RS.38,050/-. 4. THE LD. CIT(A) CONFIRMED THE PENALTY BY HOLDING THAT NO EVIDENCE HAS BEEN PLACED BEFORE HIM WHICH WOULD WARRANT A DI FFERENT CONCLUSION. 5. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE AUTHORITIES BELO W HAVE NOT EXAMINED VARIOUS WITHDRAWALS MADE BY THE ASSESSEE FROM HIS B ANK ACCOUNT AND ACCORDINGLY AVAILABILITY OF SAVINGS. THE EXPLANATIO N OF THE ASSESSEE HAS BEEN REJECTED WITHOUT GIVING DUE CONSIDERATION. THE ASSESSEE HAD ALSO EXPLAINED THAT PAYMENTS MADE FOR EXPENDITURE WAS OU T OF WITHDRAWALS OF CASH FROM THE BANK ACCOUNT. IN OUR CONSIDERED VIEW UNLESS EXPLANATION IS CONTROVERTED, IT SHOULD BE ACCEPTED. THE EXPLANATIO N IS APPARENTLY SATISFACTORY. WE CANCEL THE PENALTY. THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 30.11.10. SD/- SD/- (MAHAVIR SINGH) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT ME MBER AHMEDABAD, DATED : 30.11.10. MAHATA/- ITA NO.1948/AHD/2010 ASST. YEAR 2004-05 4 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 19/11/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 22/11/2010 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..