Miss.Rizwana Yusufali Tinwala, Ahmedabad V. The Income tax Officer,Ward-5(1), Baroda

ITA 2201/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1120 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 29-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ././ ./ ITA NO. 2201/AHD/2013 / // / ASSESSMENT YEAR : 2006-07 MISS. RIZWANA YUSUFALI TINWALA, 109, ALVI APARTMENT, HARANKHANA ROAD, OUTSIDE PANIGATE, BARODA PAN : AAVPT 5933 C VS INCOME-TAX OFFICER, WARD 5 (1), BARODA / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE BY : SMT. KINJAL SHAH, AR REVENUE BY : SHRI ADITYA SHUKLA, SR DR / // / DATE OF HEARING : 12/07/2016 / // / DATE OF PRONOUNCEMENT: 14/07/2016 / // / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V, BAR ODA DATED 14.05.2013 FOR ASSESSMENT YEAR 2006-07. 2. THE EFFECTIVE GROUND RAISED IN THIS APPEAL IS AG AINST THE CONFIRMATION OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT, AMOUNTI NG TO RS.86,323/-. 3. THE BRIEF FACTS ARE THE ASSESSEE WAS FOUND TO HAVE MAINTAINED A BANK ACCOUNT WITH BANK OF INDIA, RAOPURA, BARODA WH ICH WAS NOT DISCLOSED IN THE INCOME-TAX RETURNS. THE ASSESSING OFFICER M ADE ADDITION OF RS.7,60,050/- QUA THE CASH DEPOSITS IN THE BANK ACC OUNT, WHICH IN FURTHER APPEAL HAS BEEN REDUCED BY ITAT AT RS.2,82,102/- ON THE BASIS OF PEAK WORKING BY LD. CIT(A). THE ASSESSING OFFICER IMPOS ED THE IMPUGNED PENALTY, SUBSEQUENTLY, WHICH WAS CONFIRMED BY THE L D. CIT(A). THE ASSESSEE IS IN SECOND APPEAL BEFORE THE ITAT. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT IT IS NOT A FIT CASE FOR IMPOSITION OF PENALTY AS :- SMC-ITA NO. 2201/AHD/2013 MISS RIZWANA YUSUFALI TINWALA VS. ITO AY : 2006-07 2 A) NO PARTICULARS OF INCOME WERE EITHER SUPPRESSED OR CONCEALED; B) THE IMPUGNED UNDISCLOSED BANK OF INDIA ACCOUNT WAS USED ONLY FOR INVESTMENT PURPOSES AND A PROPER EXPLANATION WA S GIVEN THAT THE AMOUNTS DEPOSITED THEREIN WERE ADVANCED BY ASSESSEES FATHER FROM HIS FDRS; C) THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF GU ESS WORK, FOR WHICH NO PENALTY CAN BE IMPOSED ON ESTIMATED INCOME ; D) LD. AO HAS FAILED TO DEMONSTRATE THAT ASSESSEE DELIBERATELY COMMITTED THE IMPUGNED DEFAULT. 5. LD. SR. DR, SHRI ADITYA SHUKLA, ON THE OTHER HAN D, VEHEMENTLY CONTENDS THAT THIS IS A FIT CASE FOR IMPOSITION OF PENALTY INASMUCH AS :- I) ASSESSEE HAS NOT DISPUTED THE FACT THAT THE BANK OF INDIA BANK ACCOUNT WAS NOT DISCLOSED TO THE IT DEPTT.; II) LD. CIT(A) HAS GIVEN CLEAR OBSERVATIONS THAT THE AS SESSEE DID NOT ANSWER AS TO WHY THE BANK ACCOUNT WAS NOT DISCLOSED IN HER INCOME-TAX RETURNS. ASSESSEE CANNOT REMAIN SILENT O N RELEVANT QUERIES ABOUT THE UNDISCLOSED BANK ACCOUNT AND AT T HE SAME TIME CLAIM THAT THE LD. AO HAS NOT DEMONSTRATED THE ELEM ENTS OF DELIBERATE DEFAULT. III) IN VIEW OF HONBLE SUPREME COURT JUDGMENT IN THE CA SE OF UNION OF INDIA & ORS VS. DHARAMENDRA TEXTILE PROCESSORS & ORS, REPORTED IN (2008) 306 ITR 0277 (SC), THERE IS NO BURDEN ON REVENUE TO DEMONSTRATE MENS REA ON DELIBERATE DEFAULT IN THIS BEHALF; BESIDES ASSESSEE HAS NOT GIVEN ANY JUSTIFIA BLE EXPLANATION. IV) THERE IS NO MERIT IN ASSESSEES CONTENTION THAT THE ADDITION IN THIS BEHALF WAS BASED ON GUESS WORK. THE LD. ASSESSING OFFICER AGGREGATED ALL THE CASH CREDITS AND ADDED THE SAME WHICH WERE SMC-ITA NO. 2201/AHD/2013 MISS RIZWANA YUSUFALI TINWALA VS. ITO AY : 2006-07 3 METICULOUSLY EXAMINED BY THE LD. CIT(A); AND ITAT I N QUANTUM PROCEEDINGS REDUCED THE ADDITION ON PROPER PEAK WOR KING OF THE UNDISCLOSED AMOUNT. THEREFORE, THE IMPUGNED ADDITI ON IS CLEARLY BASED ON PROPER MATERIAL, ACCURATE WORKING AND THERE IS NO ELEMENT OF ANY GUESS WORK. ORDERS OF THE LOWER A UTHORITIES ARE RELIED ON. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. THERE IS CONSIDERABLE MERIT IN THE CONTENTIONS PUT FORWARD B Y THE LD. SR. DR. THE ASSESSEE REMAINED SILENT ABOUT AS TO WHY THE BANK O F INDIA BANK ACCOUNT WAS NOT DISCLOSED, WHICH IS ADMITTED BY THE ASSESSE E TO BE NOT SHOWN IN THE INCOME-TAX RETURNS. THERE IS NO ELEMENT OF GUESS W ORK INASMUCH AS THE PEAK AMOUNT WORKED OUT HAS BEEN BY A PROPER WORKING AND THE SAME IS UPHELD BY TWO APPELLATE AUTHORITIES. IN VIEW OF TH E HONBLE SUPREME COURT JUDGMENT IN THE CASE OF DHARAMENDRA TEXTILE PROCESS ORS (SUPRA), THERE IS NO ONUS ON THE DEPTT. TO PROVE MALA FIDE OR MENS REA ON THE PART OF THE ASSESSEE; BESIDES THE PENALTY HAS BEEN HELD TO BE IN THE NATU RE OF CIVIL LIABILITY. 7. IN VIEW OF THE FOREGOING, THERE IS NO MERIT IN T HE CONTENTIONS OF THE ASSESSEE. PENALTY IS CONFIRMED AND THE ORDERS OF TH E LOWER AUTHORITIES ARE UPHELD. 8. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JULY, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 14/07/2016 *BIJU T. SMC-ITA NO. 2201/AHD/2013 MISS RIZWANA YUSUFALI TINWALA VS. ITO AY : 2006-07 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, TRUE COPY / // / ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD