M/s. Shree Parshwanath Corporation, Ahmedabad V. The ACIT, (OSD). Circle-9, Ahmedabad

ITA 2065/AHD/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6802 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-05-2017
• Assessment Year: 1998-1999
• Appeal Filed On: 09-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER 1. ./ I.T.A. NO.1632/AHD/2014 2. ./ I.T.A. NO.2065/AHD/2014 ( / ASSESSMENT YEAR : 1998-99) M/S.SHREE PARSHWANATH CORPORATION 50, HARSIDDH CHAMBERS ASHRAM ROAD AHMEDABAD 380 014 / VS. THE DY.COMMISSIONER OF INCOME TAX (OSD) CIRCLE-9 AHMEDABAD ./ ./ PAN/GIR NO. : AADFS 3093 C ( / APPELLANTS ) .. ( / RESPONDENTS ) ASSESSEE BY : MS.ARTI SHAH, AR REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING 23/04/2019 !' / DATE OF PRONOUNCEMENT 25/ 04/2019 / O R D E R PER AMARJIT SINGH - AM: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE COMMISS IONER OF INCOME TAX (APPEALS)XX, AHMEDABAD [CIT(A) IN SHORT] VIDE APPE AL NO.CIT(A)- XV/DCIT. CIR-9/139/12-13 AND CIT(A)-XXI/493/11-12 DATED 21/03/2014 & 26/05/2014 ARISING IN THE ASSESSMEN T ORDER PASSED UNDER S.143(3) R.W.S.254 OF THE INCOME TAX ACT, 1961(HERE INAFTER REFERRED TO AS 'THE ACT') AND PENALTY ORDER PASSED U/S.271(1)(C) O F THE ACT DATED 26/12/2008 AND 14/03/2012 RESPECTIVELY RELEVANT TO ASSESSMENT YEAR (AY) 1998-99. ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 2 2. FIRST, WE SHALL TAKE UP THE ASSESSEES APPEAL I N ITA NO.1632/AHD/2014 FOR AY 1998-99. 3. THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF LD.CIT(A)-XX, AHMEDABAD DATED 21/03/2014 IN CONFIRM ING THE ADDITION OF RS.16,24,622/- MADE BY THE ASSESSING OFFICER U/ S.68 OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAS HAD FILED ITS RETURN OF INCOME ON 08/12/1998 DECLARING TOTAL INC OME OF RS.NIL. THE ORIGINAL ASSESSMENT U/S.143(3) OF THE ACT WAS PASSE D ON 30/03/2001 DETERMINING TOTAL INCOME OF RS.82,52,686/-. THE A SSESSING OFFICER HAS TREATED DEPOSITS OF RS.84,75,610/- FROM HARIRAJ SOCIETY, POSUN SOCIETY AND SUNDRY DEPOSITORS AS UNEXPLAINED ON THE BASIS O F UNSIGNED CONFIRMATION LETTERS FROM THE AFORESAID TWO PARTIES AND NON-FURNISHING OF CONFIRMATION FROM THE SUNDRY DEPOSITORS. THEREAFTE R, THE LD.CIT(A) VIDE ORDER DATED 08/07/2002 HAS DELETED THE AFORESAID AD DITION HOLDING THAT ASSESSING OFFICER HAD NOT MADE ANY INQUIRY NOR EXAM INED THE CREDITORS AND THE DEPOSITS WERE RECEIVED BY ACCOUNT PAYEE CHE QUE. SUBSEQUENTLY, THE ITAT AHMEDABAD BENCH VIDE ORDER DATED 11/06/20 07 HAS RESTORED THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WI TH A DIRECTION TO DECIDE THE ASSESSMENT AFRESH AFTER AFFORDING ADEQUATE OPPO RTUNITY TO THE ASSESSEE. 5. THEREAFTER, THE ASSESSING OFFICER HAS COMPL ETED ASSESSMENT U/S.143(3) R.W.S. 254 OF THE ACT ON 26/12/2008 AND REITERATED THE SAME ADDITION TO THE AMOUNT OF RS.84,75,610/- WHICH WERE MADE AT THE TIME OF ORIGINAL ASSESSMENT U/S.143(3) OF THE ACT ON 30/03/ 2001 STATING THAT ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 3 GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE PERSONS WERE NOT PROVED. 5.1. FURTHER, THE LD.CIT(A) VIDE ORDER DATED 13/01/ 2009 HAS DELETED THE ADDITION TO THE AMOUNT OF RS.25 LAKHS OF DEPOSITS R ECEIVED FROM TWO SOCIETIES; NAMELY, (I) HARIRAJ SOCIETY AND (II) POS UN SOCIETY AND RESTRICTED THE ADDITION IN RESPECT OF DEPOSITS RECEIVED FROM S UNDRY DEPOSITORS TO THE AMOUNT OF RS.30,05,518/-. THEREAFTER, THE ITAT AH MEDABAD BENCH VIDE ORDER DATED 07/09/2012 HAS SET ASIDE THE ISSUE OF U NEXPLAINED DEPOSIT RECEIVED FROM HARIRAJ SOCIETY TO THE AMOUNT OF RS.1 0 LAKHS AND DEPOSITS RECEIVED FROM SUNDRY DEPOSITORS TO THE EXTENT OF RS .16,24,622/- TO THE FILE OF LD.CIT(A) TO BE DECIDED AFTER TAKING INTO C ONSIDERATION THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE. TH EREAFTER, THE LD.CIT(A) VIDE ORDER DATED 21/03/2014 HAS RESTRICTE D THE ADDITION TO THE EXTENT OF RS.16,24,622/- IN RESPECT OF DEPOSITS RE CEIVED FROM SUNDRY DEPOSITORS STATING THAT IN ALL THE CASES OF 140 SUN DRY DEPOSITORS, THE ASSESSEE COULD NOT ESTABLISH THE IDENTITY, GENUINEN ESS AND CREDITWORTHINESS. 6. DURING THE COURSE OF HEARING BEFORE US, THE LD.C OUNSEL FOR THE ASSESSEE HAS FURNISHED PAPER-BOOK CONTAINING DETAIL S OF SUBMISSION AND INFORMATION FURNISHED BEFORE THE ASSESSING OFFICER AND THE CIT(A) IN THE COURSE OF ASSESSMENT PROCEEDINGS AND APPELLATE PROC EEDINGS. SHE HAS ALSO CONTENDED THAT DURING THE COURSE OF ORIGINAL A SSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT CALLED FOR ANY INFORM ATION AND CONFIRMATION IN RESPECT OF SUNDRY DEPOSITS RECEIVED FROM 140 PAR TIES AND PER PARTY QUANTUM OF DEPOSITS RECEIVED WAS LESS THAN RS.20000 /-. SHE HAS FURTHER ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 4 SUBMITTED THAT CONFIRMATION FROM THESE SUNDRY PARTI ES WERE SUBMITTED DURING THE COURSE OF SET ASIDE ASSESSMENT PROCEEDIN GS. HOWEVER, THE ASSESSING OFFICER IN THE SET ASIDE PROCEEDINGS HAS ONLY ISSUED SUMMONS TO 20 DEPOSITORS. OUT OF THESE DEPOSITORS IN THE S EVEN CASES THE DEPOSITORS HAVE ATTENDED IN PURSUANCE TO SUMMONS ISSUED U/S.13 1 OF THE ACT AND CONFIRMED THE DEPOSITS WITH OTHER DETAILS LIKE IDEN TIFICATION, DATE OF RETURN OF DEPOSIT, MODE OF PAYMENT/REPAYMENT BY CHEQUE , E TC. THESE DETAILS HAVE BEEN MENTIONED AT PAGE NOS.17 TO 19 OF THE CIT (A)S ORDER. IN THE SEVEN CASES, THE DEPOSITORS HAS NOT ATTENDED PERSON ALLY BUT THE SIMILAR DETAILS AS ABOVE IN COMPLIANCE TO THE SUMMONS HAVE BEEN FILED. SHE FURTHER STATED THAT BECAUSE OF OLD MATTER, SIX OF T HE DEPOSITORS HAD LEFT THE PLACES AS PER THE ADDRESSES AVAILABLE ON RECORD. I T IS FURTHER CONTENDED THAT LD.CIT(A) HAS TREATED THE TOTAL DEPOSITS OF RS .16,24,622/- PERTAINING TO 140 DEPOSITORS AS UNEXPLAINED ON THE BASIS OF D EFICIENCY IN THE INFORMATION COLLECTED IN THE CASE OF 20 DEPOSITORS, HOWEVER, TOTAL DEPOSITS OF RS.3,78,135/- WAS ONLY OBTAINED FROM THE 20 DEPO SITORS TO WHOM THE SUMMONS U/S.131 OF THE ACT WERE ISSUED. 7. ON THE OTHER HAND, THE LD.DR VEHEMENTLY SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE FACTS MENTIONED AS ABO VE IN THIS ORDER PERTAINING TO THE ISSUE OF CONFIRMING THE ADDITION OF RS.16,24,622/- AS UNEXPLAINED DEPOSITS U/S.68 OF THE ACT, IT IS CLE AR THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS THE ASSESSING OF FICER HAS NOT CALLED FOR ANY CONFIRMATION FROM THE ASSESSEE IN RESPECT O F DEPOSITS RECEIVED ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 5 LESS THAN RS.20,000/- PER PERSON. SUBSEQUENTLY, D URING THE COURSE OF APPELLATE PROCEEDINGS THE ASSESSEE HAS FILED CONFIR MATION OF DEPOSIT FROM SUCH SUNDRY DEPOSITORS BEFORE THE LD.CIT(A), HOWEVE R, LD.CIT(A) HAS NOT ADMITTED THESE EVIDENCES UNDER RULE 46A OF THE ACT WITHOUT CONSIDERING THE MATERIAL FACT THAT ASSESSING OFFICE R HAS NOT CALLED FOR ANY SUCH INFORMATION AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. THEREAFTER, THE ITAT VIDE ORDER DATED 07/09/2012 HA S DIRECTED THE LD.CIT(A) TO ADMIT SUCH ADDITIONAL EVIDENCES CONFI RMATIONS IN RESPECT OF 140 PARTIES FURNISHED BY THE ASSESSEE. IN PURSUAN CE OF THE ORDER OF THE ITAT, DURING THE COURSE OF SET ASIDE PROCEEDINGS, T HE ASSESSING OFFICER HAS ISSUED SUMMONS TO ONLY 20 DEPOSITORS OUT OF 140 DEPOSITORS FROM WHOM THE ASSESSEE HAS OBTAINED DEPOSITS TO THE AMOU NT OF LESS THAN RS.20,000/- PER PARTY. IT IS OBSERVED AFTER PERUS AL OF MATERIAL ON RECORD, THAT ASSESSING OFFICER HAS NOT CALLED FOR CONFIRMAT ION/EVIDENCES FROM THE SUNDRY DEPOSITORS AT THE TIME OF ASSESSMENT PROCEED INGS. AFTER A GAP OF 14 YEARS, IN THE SET ASIDE PROCEEDINGS, THE ASSESSI NG OFFICER HAS ISSUED SUMMONS TO ONLY 20 DEPOSITORS WHO HAD PARTLY MADE C OMPLIANCE AS MENTIONED ABOVE IN THIS ORDER. HOWEVER, THE ASSESS ING OFFICER HAS NOT ACCEPTED THE INFORMATION ON THE GROUND THAT DETAILS OF CHEQUE NUMBERS AND COPY OF PASSBOOK ETC. HAVE NOT BEEN FURNISHED. THE ASSESSING OFFICER HAS TREATED THE WHOLE AMOUNT OF DEPOSITS OF RS.16,24,622/- AS UNEXPLAINED ON THE REASONING THAT 20 OF THE DEPOSIT ORS TO WHOM THE SUMMONS ISSUED HAD MADE PARTIAL COMPLIANCE AS ELABO RATED ABOVE IN THIS ORDER. 9. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTA NCES, WE CONSIDER THAT IT IS NOT JUSTIFIED TO TREAT THE WHOLE DEPOSITS OF RS. 16,24,622/- RECEIVED FROM ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 6 140 PERSONS ON THE BASIS OF PARTIAL INFORMATION REC EIVED FROM 20 DEPOSITORS AS UNEXPLAINED WITHOUT CONSIDERING THE M ATERIAL FACT IT WAS 14 YEARS OLD MATTER AND VERIFICATION IN ANY OTHER FORM WERE NOT CARRIED OUT FROM THE REMAINING DEPOSITORS. THEREFORE, WE RESTR ICT THE DISALLOWANCE AS UNEXPLAINED DEPOSITS TO THE EXTENT OF RS.3,78,135/- PERTAINING TO 20 PERSONS AND DELETE THE REMAINING ADDITIONS OF RS.12 ,46,487/-. 10. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.163 2/AHD/2014 FOR AY 1998-99 IS PARTLY ALLOWED. 11. NOW WE TAKE UP THE ASSESSEES APPEAL IN ITA NO. 2065/AHD/2014 FOR AY 1998-99. 12. IN THE CAPTIONED APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE CIT(A)-XXI, AHMEDABAD WHEREBY THE PENALTY UNDER S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S 'THE ACT') AMOUNTING TO RS.10,51,930/- LEVIED BY THE ASSESSI NG OFFICER (AO) WAS CONFIRMED BY THE CIT(A). 13. VIDE ABOVE MENTIONED ORDER PASSED IN ASSESSEE S APPEAL IN ITA NO.1632/AHD/2014 THE SUBSTANTIAL QUANTUM ADDITION TO THE EXTENT OF RS.12,46,487/- OUT OF RS.16,24,622/- HAS BEEN DELE TED BY RESTRICTING THE DISALLOWANCE TO THE EXTENT OF DEPOSIT OF RS.3,78,13 5/- PERTAINING TO 20 PERSONS TO WHOM SUMMONS WERE ISSUED BY THE ASSESSIN G OFFICER U/S.131 OF THE ACT. THE OTHER MAJOR PART OF ADDITION WERE DETECTED IN THE APPELLATE PROCEEDINGS. ITA NOS.1632 AND 2065/AHD/2014 SHREE PARSHWANATH CORPORATION VS. ACIT (OSD) AY 1998-99 7 14. IN RESPECT OF SUSTAINING PARTIAL ADDITION TO TH E EXTENT OF RS.3,78,135/- ON THE BASIS OF INCOMPLETE INFORMATIO N FURNISHED BY THE PARTIES TO WHOM THE SUMMONS U/S.131 WERE ISSUED BY THE ASSESSING OFFICER, WE CONSIDER FORCE IN THE CONTENTION OF THE ASSESSEE THAT BECAUSE OF QUITE OLD MATTER, SOME OF THE INFORMATION, IN RE SPECT OF THE AFORESAID PARTIES COULD NOT BE FURNISHED. CONSIDERING THESE MATERIAL FACT, IT IS APPROPRIATE TO SUSTAIN THE QUANTUM ADDITION FOR WAN T OF COMPLETE INFORMATION BUT IT IS NOT JUSTIFIED TO LEVY PENALTY U/S.271(1)(C) OF THE ACT AS THE ASSESSING OFFICER HAS NOT ESTABLISHED WITH A NY RELEVANT MATERIAL THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICUL ARS OF INCOME. 15. IN THE COMBINED RESULT, APPEAL OF THE ASSESSEE IN ITA NO.1632/AHD/2014 FOR AY 1998-99 IS PARTLY ALLOWED, WHEREAS APPEAL OF THE ASSESSEE IN ITA NO.2065/AHD/29014 FOR AY 2008-9 9 IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/ 04/2019 SD/- SD/- ( KUL BHARAT ) (AMARJIT SI NGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 25/ 04 /2019 %.. , .&../ T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. '() * / CONCERNED CIT 4. * ( ) / THE CIT(A)- 5. -./ &&() , ()' , ' / DR, ITAT, AHMEDABAD 6. /23 4 / GUARD FILE. / BY ORDER, - & //TRUE //COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD