Smt. R. Prakash Bai, CHENNAI V. ACIT, Cuddalore

ITA 2283/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7807 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 04-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G BASKAR SHRI SANAT KUM
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO. 2283/MDS/2016 / ASSESSMENT YEAR : 2008-09 SMT. R. PRAKASH BAI, BY LEGAL HEIR, R. ASHOK KUMAR, NO.216, KAMARAJAR STREET, VILLUPURAM 605 602. PAN : AAHPP4736F V. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE II, CUDDALORE. ( /APPELLANT) ( /RESPONDENT) /APPELLANT BY : SHRI G. BASKAR, ADVOCA TE /RESPONDENT BY : SHRI SANAT KUMAR RA HA, JCIT /DATE OF HEARING : 24.01.2017 /DATE OF PRONOUNCEMENT : 27.02.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) PUDUCHER RY, CHENNAI DATED 25.05.2016, CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2008-09. 2 I.T.A. NO. 2283/MDS/2016 2. SHRI G. BASKAR, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS NOT INDICATED IN THE SHOW CAUSE NOTICE THAT WHETHER HE PROPOSE TO LEVY PENALTY FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THEREFORE, THE PENALTY LEVIED BY THE ASSESSING OFFI CER IS NOT JUSTIFIED. THE LD. COUNSEL PLACED HIS RELIANCE ON THE UNREPORT ED JUDGMENT OF THE KARNATAKA HIGH COURT IN CIT V SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015. THE LD. COUNSEL HAS ALSO FILED A COPY OF THE UNREPORTED JUDGMENT OF THE KARNATAKA HIGH COURT. REFERRING T O ANOTHER JUDGMENT OF THE APEX COURT, THE LD. COUNSEL SUBMITTED THAT T HE SLP FILED AGAINST THE ABOVE KARNATAKA HIGH COURT JUDGMENT WAS DISMISS ED BY THE APEX COURT. 3. REFERRING TO THE MERIT OF THE APPEAL, THE LD. CO UNSEL SUBMITTED THAT THE ASSESSEE HAS FURNISHED ALL THE DETAILS OF PAWN BROKING ADVANCES BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAS ALS O EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE OUTSTANDING PAWN BRO KING ADVANCES INCLUDES HER OWN MONEY. MERELY BECAUSE THE ASSESSE E AGREED FOR ADDITION OF RS.8,51,000/- AND OFFERED THE SAME FOR TAXATION THAT DOES NOT MEAN THAT THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS. IN THE ABSENCE OF ANY MATERIAL TO SUGGEST THAT THE ASSESSE E HAS FURNISHED 3 I.T.A. NO. 2283/MDS/2016 INACCURATE PARTICULARS OF INCOME OR CONCEALED ANY P ART OF HER INCOME PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT B E LEVIED AT ALL. THEREFORE, THE CIT (APPEALS) IS NOT JUSTIFIED IN CO NFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. ON THE CONTRARY, SHRI SANAT KUMAR RAHA, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE SUPPRESS ED THE PAWN BROKING ADVANCE TO THE EXTENT OF RS.9,51,000/-. TH E REVENUE AUTHORITIES FOUND OUT THE SAME DURING THE COURSE OF SURVEY OPERATION. THE ASSESSEE HAS RIGHTLY ACCEPTED THE SUPPRESSION M ADE IN PAWN BROKING ADVANCE. PLACING RELIANCE ON THE JUDGMENT OF THE APEX COURT IN MAK DATA PVT. LTD. V. CIT [2013] 358 ITR 593 (SC), THE LD. D.R., SUBMITTED THAT MERELY BECAUSE THE ASSESSEE ADMITTED RS.8,51,000/- AND OFFERED THE SAME FOR TAXATION THAT WOULD NOT ABSOLV E THE LEGAL LIABILITY OF PAYING PENALTY. THEREFORE, THE CIT (APPEALS) HAS R IGHTLY CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFF ICER LEVIED PENALTY OF RS.3,45,261/- UNDER SECTION 271(1)(C) OF THE ACT WI THOUT UNDERTAKING WHETHER THE ASSESSEE HAS CONCEALED HER INCOME OR FU RNISHED ANY 4 I.T.A. NO. 2283/MDS/2016 INACCURATE PARTICULARS OF INCOME. THE FACT REMAINS IS THAT SMT. R. PRAKASH BAI EXPIRED ON 30.05.2015, WHEN THE APPEAL WAS PENDING BEFORE THE CIT(APPEALS). THE LEGAL HEIRS OF SMT. R. PRAKASH BAI PROSECUTED THE APPEAL BEFORE THE CIT(APPEALS) AND T HE CIT(APPEALS) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER. NOW THE PRESENT APPEAL IS FILED BY THE LEGAL HEIR OF SMT. PRAKASH B AI. THE ASSESSEE HAS FURNISHED THE BOOKS OF ACCOUNTS BEFORE THE ASSESSIN G OFFICER. THE ASSESSEE HAS FILED THE DETAILS OF PAWN BROKING ADVA NCE BEFORE THE ASSESSING OFFICER. THE ASSESSEE ADMITTED BEFORE TH E ASSESSING OFFICER FOR TAXATION OF RS.8,51,000/-. THE ASSESSING OFFIC ER FOUND THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCES FOR PAWN BRO KING ADVANCE. THEREFORE HE TREATED IT HAS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. 6. I HAVE CAREFULLY GONE THROUGH THE ORDERS OF BOTH THE AUTHORITIES BELOW. THE ASSESSEE FURNISHED THE BOOKS OF ACCOUNT S AND ALSO DETAILS OF PAWN BROKING ADVANCE. MERELY BECAUSE THE SOURCE OF THE ADVANCE WAS NOT EXPLAINED BY THE ASSESSEE BEFORE THE ASSESS ING OFFICER, THE ASSESSING OFFICER LEVIED THE PENALTY. THIS TRIBUNA L IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE HAS FILED ALL THE DE TAILS OF THE PAWN BROKING ADVANCE AND THE BOOKS OF ACCOUNTS, IT CANNO T BE SAID THAT THE 5 I.T.A. NO. 2283/MDS/2016 ASSESSEE HAS CONCEALED ANY PART OF HER INCOME. MOR EOVER, THE ASSESSEE IS NO MORE AND THE LEGAL HEIRS OF THE ASSE SSEE MAY NOT EXPLAIN THE SOURCE FOR MAKING THE PAWN BROKING ADVANCE. TA KING INTO CONSIDERATION OF THE FACT THAT THE ASSESSEE HAS FUR NISHED THE BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER AND ALSO THE DETAILS OF PAWN BROKING ADVANCE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY. ACCORDINGLY, T HE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE PENALTY LEVIED BY THE ASSESSING OFFICER IS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 27 TH FEBRUARY, 2017 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 27 TH FEBRUARY, 2017. JR. ! ' ! /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. #$% ( )/CIT(A)-PUDUCHERRY 4. #$% /CIT 5. ! /DR 6. &' /GF.