Bipinkumar Bhaktiram Nimavat, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-3(3), RAJKOT-GUJARAT

ITA 21/RJT/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9049 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 24-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA N SHROTE
• Assessee Lawyers: DR ADHIA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA VEJTHR FLAG] YS [KK LNL; DS LE{KA VEJTHR FLAG] YS[KK LNL; DS LE{KA VEJTHR FLAG] YS[KK LNL; DS LE{KA VEJTHR FLAG] YS[KK LNL; DS LE{KA (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ) ./ I.T.A. NO.21/RJT/2017 ( / ASSESSMENT YEAR : 2009-10) BIPINKUMAR BHAKTIRAM NIMAVAT, AYUSH, KAILASH BAUG, NR. AMALGADH BUNGLOW, GONDAL, DIST. RAJKOT / VS. THE ITO WARD-3(3), RAJKOT. ./ ./ PAN/GIR NO. : ADGPN 0828 C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. R. ADHIA, A.R. / RESPONDENT BY : MS USHA N. SHROTE, SR. D.R. / DATE OF HEARING 03/05/2017 !'# / DATE OF PRONOUNCEMENT 30/05/2017 $% / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE A GAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, RAJKOT, DATED 09/11/2016 FOR THE ASSESSMENT YEAR (AY) 2009-10 FOR IMPOSING P ENALTY. ITA NO.21/RJT/2 017 BIPINKUMAR B. NIMAWAT VS. ITO ASST.YEAR 2009-10 - 2 - 2. ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPE AL: THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING PENALTY U/S. 271(1)(C) OF RS.32,019/-. THE PENALTY NEEDS DE LETION. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- DURING THE COURSE OF ASSESSMENT PROCEEDING, IT WAS SEEN THAT THE ASSESSEE HAD DEPOSITED CASH IN BANKS ACCOUNT. ON VE RIFICATION OF THE BANK ACCOUNTS IT WAS SEEN THAT ASSESSEE HAD MANY TIMES D EPOSITED CASH AND HAD CASH WITHDRAWALS THROUGH ATM. THE ASSESSEE WAS ASKED TO EXPLAIN THE REASON FOR SUCH CASH DEPOSITS AND WITHDRAWALS. THE ASSESSEE EXPLAINING THAT HE WAS DOING BUSINESS OF MAMRA (RIC E PRODUCT) ON WHICH ASSESSEE HAD TURNOVER OF RS. 52,04,827/-. AFTER DIS CUSSION WITH THE A.R. OF THE ASSESSEE AND ON MERITS OF THE CASE, THE ADDI TION OF RS. 2,60,241/- WAS MADE U/S 44AF OF THE ACT FOR WHICH THE A.R. OF THE ASSESSEE GAVE HIS CONSENT DURING THE ASSESSMENT PROCEEDINGS. 4. ACCORDINGLY, NOTICE U/S 274 R.W.S. 271(1)(C) OF THE IT ACT DATED 22-12-2011 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 27-12-2011 REQUIRING THE ASSESSEE TO APPEAR BEFORE THE UNDERSI GNED ON 30-01-2012 TO SHOW CAUSE AS TO WHY PENALTY U/S 271(L)(C) SHOULD N OT BE LEVIED FOR HAVING CONCEALED PARTICULARS OF HIS INCOME BUT HE D ID NOT APPEAR BEFORE THE AO. ITA NO.21/RJT/2 017 BIPINKUMAR B. NIMAWAT VS. ITO ASST.YEAR 2009-10 - 3 - 5. THEREAFTER, HE ALSO NOT FILED ANY APPEAL BEFORE THE CIT(A). AS PER AO THE ASSESSEE HAS KNOWINGLY FURNISHED INACCURATE PARTICULARS OF HIS INCOME AND THEREBY THE DEFAULT COMMITTED BY THE ASS ESSEE IS PUNISHABLE UNDER THE PROVISION U/S.271(1)(C) OF THE ACT. FINAL LY, HE LEVIED THE PENALTY OF RS.32,020/-. 6. THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) HAS SUSTAINED THE ADDITION MADE BY T HE AO BY OBSERVING AS UNDER: HAVING CONSIDERED FACTS AND CIRCUMSTANCES OF THE C ASE, I FIND THAT THE ASSESSEE HAD NOT DECLARED CORRECT PROFIT ON HIS TUR NOVER AS REFLECTED IN THE DEPOSITS IN BANK ACCOUNTS. THE TURNOVER OF THE ASSESSEE WAS ABOVE THE LIMIT FOR WHICH AUDIT U/S.44AB WAS REQUIRED. TH IS IMPLIES THAT THE ASSESSEE HAD NO INTENTION OF DECLARING PROFIT ON TH IS TURNOVER. HAD THE AO NOT SELECTED THE CASE FOR SCRUTINY, THE ASSESSEE WOULD HAVE SUCCEEDED IN NOT PAYING TAX OVER THE PROFIT ON UNDI SCLOSED TURNOVER. THE FACT THAT THE PROFIT HAS BEEN ESTIMATED U/S.44AF DO ES NOT MEAN THAT THE ASSESSEE IS NOT LIABLE FOR PENALTY. IT IS NOT A CAS E WHERE THE ASSESSEE HAD DECLARED SOME PROFIT AND THE AO HAD ENHANCED IT ON ESTIMATE BASIS. RATHER HERE THE ESTIMATED PROFIT PERTAINS TO UNDISC LOSED BUSINESS TURNOVER OF THE ASSESSEE. THE FACT OF THE CASE BEIN G DISTINGUISHABLE, THE CASES CITED BY THE ASSESSEE DO NOT APPLY AND DO NOT HELP THE CASE OF THE ASSESSEE. IN MY CONSIDERED OPINION, THE AO IS JUSTI FIED IN IMPOSING THE IMPUGNED PENALTY. THE SAME IS CONFIRMED. GROUNDS OF APPEAL ARE REJECTED. 7. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LEARNED COUNSEL SUBMITTED PAPER BOOK CONTAINING JUDICIAL PR ONOUNCEMENT ETC. HE ALSO CONTENDED THAT THERE WAS NO CONCEALMENT OF INC OME AND THE ADDITION ITA NO.21/RJT/2 017 BIPINKUMAR B. NIMAWAT VS. ITO ASST.YEAR 2009-10 - 4 - WAS MADE ON ESTIMATED BASIS BY THE AO. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF THE LEARNED CIT(A). 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. WE HAVE NOTICED THAT IT WAS UNDISPUTED FACT THAT TH E PROFIT HAS BEEN ESTIMATED U/S.44AF OF THE ACT. WE FIND THAT THE ADD ITION WAS MADE ON THE BASIS OF ESTIMATED PROFIT. WE CONSIDERED THAT THE A SSESSING OFFICER AS PER THE FACT OF THE CASE HAS NOT ESTABLISHED THAT THE A SSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. IN VIEW OF THE AB OVE FACTS AND FINDINGS WE CONSIDERED THAT THE LEARNED CIT(A) IS NOT SATISF IED IN SUSTAINING THE PENALTY LEVIED BY THE AO. THEREFORE, WE DELETE THE PENALTY. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/05/2017 SD/- SD/- VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG &' $ ( $ ) ()* $ ) ( AMARJIT SINGH ) ( MAHAVIR PR ASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30/05/2017 PRITI YADAV, SR.PS ITA NO.21/RJT/2 017 BIPINKUMAR B. NIMAWAT VS. ITO ASST.YEAR 2009-10 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , -. / / CONCERNED CIT 4. / () / THE CIT(A)-II, RAJKOT. 5. 012 **-. , -.# , '&$,$ / DR, ITAT, AHMEDABAD 6. 245 6 / GUARD FILE. / BY ORDER, 0 * //TRUE COPY// / !'# ( DY./ASSTT.REGISTRAR) #$ %, / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION .. 03/05/2017 (DICTATION-PAD 2 PAGES ATTACHED AT THE END OF THIS APPEAL- FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04/05/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 11/05/2017 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 11/05/2017 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER