Smt. Sumitra Kailash Rathi, Ahmedabad V. The Income Tax Officer, Ward 7(2), Ahmedabad

ITA 2075/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94607 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Keywords: Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO: 2075/AHD/2013 (ASSESSMENT YEAR: 2008-09) SMT. SUMITRA KAILASH RATHI, 10, BALGAYATRI SOCIETY, PART-II 132 FT. RING ROAD, SHYAMAL CROSS ROADS, SATELLITE, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 7 (2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABLPR 4807N APPELLANT BY : SHRI P.B. PARMAR, AR RESPONDENT BY : SHRI SOMOGYAN PAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 01-10-2015 DATE OF PRONOUNCEMENT : 16-10-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XIV, AHMEDABAD DATED 14.06.2013 FOR A.Y. 2008-09. ITA NO 2075/ AHD/2013 . A.Y. 2008-09 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE DOING BUSINE SS OF CAR RENTALS ETC. ASSESSEE FILED HER RETURN OF INCOME FOR A.Y 08-09 O N 30.7.2008 DECLARING TOTAL INCOME OF RS. 3,26,562/-. THE CASE WAS SELEC TED FOR SCRUTINY AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON THE BASIS OF AIR INFORMATION, IT WAS NOTICED BY THE A.O THAT ASSESSE E HAD DEPOSITED CASH AGGREGATING TO RS 10,50,000/- IN HER BANK ACCOUNT T HAT WAS MAINTAINED WITH PUNJAB NATIONAL BANK. THE ASSESSEE WAS THEREFORE AS KED TO EXPLAIN THE SOURCE OF CASH DEPOSITS AND IN RESPONSE TO WHICH AS SESSEE EXPLAINED THE SOURCE OF CASH DEPOSITS OF RS 3,85,000/- ONLY AND C OULD NOT EXPLAIN THE SOURCE OF BALANCE RS 6,65,000/-. A.O ALSO NOTED THA T ASSESSEE ACCEPTED THE DEPOSIT OF RS. 6,65,000/- TO BE OUT OF UNEXPLAINED SOURCE. HE ACCORDINGLY, WHILE FRAMING THE ASSESSMENT U/S. 143(3), MADE ADDI TION OF RS 6,65,000/- AND THUS THE TOTAL INCOME WAS DETERMINED AT THE RS 9,91,660. ON THE AFORESAID ADDITION OF RS. 6,65,000/-, A.O VIDE ORDE R DATED 30.5.2011 LEVIED PENALTY OF RS 2,05,184/- U/S 271(L)(C) OF THE ACT B Y CONCLUDING THAT ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED THE INCOME. AGAINST THE PENALTY ORDER PASSED BY THE A.O , ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO VIDE ORDER DATED 14.6. 2013 UPHELD THE PENALTY LEVIED BY AO. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWIN G GROUNDS:- 1. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE PENALTY OF RS.2,05,485/- LEVIED U/S 271(L)(C) O N ADDITION OF RS.6,65,000/- MADE U/S 68 OF THE ACT. 2. IN ANY CASE, THE IMPUGNED PENALTY ORDER IS BARRED B Y LIMITATION AND THUS WITHOUT JURISDICTION AND ILLEGAL. 3. IN ANY CASE, QUANTIFICATION OF THE PENALTY IS ERRON EOUS AND EXCESSIVE. ITA NO 2075/ AHD/2013 . A.Y. 2008-09 3 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN INITIATING AND LEVYING PENALTY UNDER SECTION 271(L) (C) OF THE ACT WITHOUT RECORDING MANDATORY SATISFACTION AS CONTEMPLATED UNDER THE AC T AT THE TIME OF FRAMING THE ASSESSMENT ORDER. 5. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDER S WITHOUT PROPERLY APPRECIATING THE FACT AND THAT THEY FURTHER ERRED IN GROSSLY IGN ORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPEL LANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IM PUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRI NCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 4. BEFORE US, LD. A.R. SUBMITTED THAT THOUGH VARIOUS G ROUNDS HAVE BEEN RAISED BUT THE ONLY EFFECTIVE GROUND IS WITH RESPECT TO LE VY OF PENALTY U/S. 271(1)(C) OF THE ACT. 5. BEFORE US, THE LD AR APART FROM REITERATING THE SUB MISSIONS MADE BEFORE AO AND LD. CIT(A) SUBMITTED THAT THE ADDITION WAS A CCEPTED BY THE ASSESSEE TO BUY PEACE OF MIND AND THE ASSESSEE HAD ALSO PAID THE TAX ON IT AND THEREFORE PENALTY BE DELETED. HE FURTHER SUBMIT TED THAT ADDITIONS MADE U/S. 68 IS ON ACCOUNT OF LEGAL FICTION WHEREBY CASH CREDITS RECEIVED ARE DEEMED TO BE UNEXPLAINED FOR WANT OF NECESSARY EVID ENCES AND MERELY BECAUSE ADDITION U/S 68 IS ACCEPTED BY THE ASSESSEE , THAT CANNOT BE A GROUND FOR LEVY OF PENALTY AND FURTHER QUANTUM AND PENALTY PROCEEDINGS ARE DISTINCT AND DIFFERENT. HE FURTHER PLACED RELIANCE ON THE DE CISIONS IN THE CASE OF DISHMAN PHARMACEUTICALS & CHEMICALS LTD VS ACIT (IT A NO 1138/A/2011) AND PRAGNESH TRADING CO VS ITO (ITA NO 2173/A/2010) . HE THEREFORE SUBMITTED THAT PENALTY BE DELETED. LD DR ON THE OTH ER HAND RELIED ON THE ORDER OF A.O AND LD. CIT(A) AND SUBMITTED THAT NO E XPLANATION WAS ITA NO 2075/ AHD/2013 . A.Y. 2008-09 4 SUBMITTED BY THE ASSESSEE AND THEREFORE AO WAS FULL Y JUSTIFIED IN LEVYING THE PENALTY. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE PENALTY ON ACCOUNT OF FURNISHING I NACCURATE PARTICULARS OF INCOME U/S 271(1)(C) WAS LEVIED ON ACCOUNT OF UNEXP LAINED CASH DEPOSITS OF RS. 6,65,000/- IN THE BANK ACCOUNT. IN THE PRESENT CASE, A.O HAS NOTED THAT ASSESSEE HAD GIVEN NO EXPLANATION WITH RESPECT TO T HE CASH DEPOSITS WHICH HAVE BEEN ADDED U/S 68 AND BEFORE A.O IT WAS ACCEPT ED BY THE ASSESSEE THAT THE CASH DEPOSITS TO BE OUT OF UNDISCLOSED SOURCE. WE FURTHER FIND THAT NO EXPLANATION WITH RESPECT TO THE IMPUGNED SOURCE OF CASH DEPOSITS WAS OFFERED BY THE ASSESSEE BEFORE A.O EITHER DURING TH E ASSESSMENT OR PENALTY PROCEEDINGS. BEFORE US ALSO, LD AR HAS NOT POINTED TO ANY PLAUSIBLE EXPLANATION WITH RESPECT TO THE IMPUGNED CASH DEPOS ITS WAS GIVEN BY THE ASSESSEE AND WAS NOT CONSIDERED BY THE LOWER AUTHOR ITIES. IN SUCH A SITUATION, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A). FURTHER, THE DECISIONS RELIED UPON THE LD AR ARE DI STINGUISHABLE ON FACTS AND ARE THEREFORE NOT APPLICABLE TO THE PRESENT FACTS O F THE ASSESSEE. THUS THE GROUND OF ASSESSEE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 10 - 2015 . SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY