Shri Manoj Kumar Saraf, Surat V. The Income tax Officer, Ward 2(2), Surat

ITA 2209/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9980 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-11-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Keywords: Unexplained cash credit
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2209/AHD/2013 / ASSESSMENT YEAR : 2005-06 SHRI MANOJ KUMAR SARAF, 644, AJANTA SHOPPING CENTER, RING ROAD, SURAT-395003 PAN : AKUPS 9932 M VS INCOME TAX OFFICER, WARD 2(2), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI HARDIK VORA, AR REVENUE BY : SHRI PRAVIN KUMAR, SR DR / DATE OF HEARING : 15/11/2016 / DATE OF PRONOUNCEMENT: 21/11/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- \ THIS IS ASSESSEES APPEAL CHALLENGING THE CONFIRMAT ION OF PENALTY U/S 271(1)(C) OF THE ACT QUA THE FOLLOWING ADDITIONS:- I) ALLEGED UNEXPLAINED CASH CREDIT OF RS.2,60,000/- II) DISALLOWING INTEREST EXPENSES OF RS.12,825/- 2. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE A DDITIONS IN QUESTION WERE CONTESTED BEFORE THE ITAT, WHERE THE ITAT CONF IRMED THE ADDITIONS VIDE PARAGRAPH 13 OF THE ORDER, HOLDING THAT CIT(A) WAS RIGHT IN CONFIRMING THE ADDITIONS BY HOLDING THAT MERELY FILING A CONFI RMATION LETTER ALONGWITH PAN NUMBER WAS NOT SUFFICIENT AND THE ASSESSEE HAS FAILED TO DISCHARGE ITS BURDEN. IT IS CONTENDED THAT :- (I) FROM PARAGRAPH 11 OF THE ITAT ORDER AND PARAGRAPH 1 4 OF THE CIT(A)S ORDER, IT EMERGES THAT THE CREDITOR SHRI G OPAL KRISHNA SMC-ITA NO. 2209/AHD/2013 SHRI MANOJ KUMAR SARAF VS. ITO AY : 2005-06 2 WAS DULY SERVED WITH NOTICE U/S 133(6) WHICH WAS R ECEIVED BY THE CREDITOR. IF HE FAILS TO APPEAR, THEN IN VIEW OF T HE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF CIT VS. ORISSA CORPOR ATION PVT. LTD., REPORTED IN [1986] 159 ITR 78 (SC),, THE ASSESSEE HAS DISCHARGED ITS BURDEN AND IT IS FOR THE AO TO BRING THE REAL PROCE EDINGS TO LOGICAL CONCLUSION. (II) ONE CANNOT LOSE SIGHT OF THE FACT THE CONFIRMATION OF THE CREDITORS CONTAINS NOT ONLY PAN NUMBER OF SHRI GOPAL KRISHNA, BUT HIS ADDRESS AS WELL AS THE FACT THAT THE TDS WAS DEDUCT ED FROM THE PAYMENT AGAINST THAT PAN. ALL THESE FACTS CLEARLY DEMONSTRATE THAT THE ASSESS EE NEITHER FURNISHED INACCURATE PARTICULARS NOR THERE WAS ANY QUESTION O F ALLEGED UNEXPLAINED CASH CREDIT. IN ANY CASE, SINCE ALL THE PARTICULAR S WERE FURNISHED ALONGWITH CLAIM OF INTEREST EXPENDITURE AND TDS THEREON, THE PENALTY IN QUESTION CANNOT BE IMPOSED ON THE ASSESSEE AND THE PENALTY U /S 271(1)(C) CANNOT BE IMPOSED. 3. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. I FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE NOTICE U/S 133(6) WAS DULY SERVED ON THE CREDITOR. IN SUCH EVENTUALI TY, THE NON-COMPLIANCE OF STATUTORY NOTICE BY THE CREDITOR CANNOT VIEW ADVERS ELY AGAINST THE ASSESSEE IN VIEW OF THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF ORISSA CORPORATION PVT. LTD. (SUPRA). BESIDES, THE ASSESSE E FILED A DETAILED CONFIRMATION CONTAINING ALL THE PARTICULARS, NAME, ADDRESS, PAN AND THE FACT SMC-ITA NO. 2209/AHD/2013 SHRI MANOJ KUMAR SARAF VS. ITO AY : 2005-06 3 OF TDS DEDUCTION. CONSIDERING THESE FACTS AND CIRC UMSTANCES OF THE CASE, IN MY CONSIDERED VIEW, THIS IS NOT A FIT CASE FOR IMPO SING OF PENALTY QUA THE ABOVE ADDITION, WHICH IS DELETED. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 21 ST NOVEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 21/11/2016 *BIJU T., 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. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD