ANIL KUCHHAL, Jaipur V. ACIT, Jaipur

ITA 236/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99579 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANGAL JCIT DHK
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 236/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 ANIL KUCHHAL, C-17, PANCHSHEEL COLONY, AJMER ROAD, JAIPUR. CUKE VS. A.C.I.T. CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AFBPK 5830 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/10/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 14/12/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 21/02/2014 OF THE LEARNED CIT(A)-I, JAIPUR FOR A.Y. 2006-07. THE RESPECTIVE GROUND OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD CIT(A) HAS GROSSLY ERRED IN CONFIRMING PENALTY OF RS . 46,89,104/- U/S 271(1)(C) OF THE INCOME TAX ACT, 196 1, 2 ITA NO. 236/JP/2014 ANIL KUCHHAL VS ACIT ARBITRARILY WITHOUT PROPERLY APPRECIATING THE SUBMIS SION MADE AND EVIDENCES ADDUCED BEFORE HIM. 1.1 THAT THE LD CIT(A) HAS FURTHER ERRED IN CONFIRMIN G PENALTY ON CASH DEPOSIT OF RS. 1,25,53,450/- IN BANK ACCOUN T WITHOUT APPRECIATING THE FACT THAT THE SAID DEPOSIT HAS BEEN MADE BY THE ASSESSEE OUT OF THE CASH WITHDRAWN MADE PRIOR TO THE DATE OF DEPOSIT AS WELL AS FROM T HE FUNDS AVAILABLE IN THE SHAPE OF BOOKING ADVANCE. 1.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMI NG PENALTY ON UNSECURED LOAN OF RS. 58,00,000/- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FILED P AN, ADDRESS ETC. OF CREDITORS BEFORE THE LD A.O. TO PRO VE THE CREDITWORTHINESS OF THE CREDITORS. EVEN THEN IF LD A .O. HAS DOUBTED THE CREDITWORTHINESS OF CREDITORS THEN LD A .O. HAS POWER TO ISSUE SUMMONS U/S 131 OF THE INCOME TAX ACT, 1961, TO THE PARTIES BUT LD A.O. HAS NOT MADE ANY EFFORT TO ESTABLISH THE CREDITORS NON-GENUINE THUS THE PENALTY LEVIED WITHOUT ANY FRESH ENQUIRIES CONDUCTED IN PENALTY PROCEEDINGS DESERVES TO BE DELETED. 1.3 THAT THE LD CIT(A) HAS FURTHER ERRED IN BRUSHED ASIDE THE EVIDENCE FILED IN SHAPE OF CERTIFICATE RECEIVED FRO M M/S DEEPAK BUILDERS IN SUPPORT OF AMOUNT RECEIVED FROM M/S OMAXE CONSTRUCTION ON BEHALF OF THEM AND DULY CONFIRMING THE RECEIPT OF LOAN AMOUNT ALONGWITH INTE REST FROM THE ASSESSEE AND FURTHER SUSTAINED THE PENALTY WITHOUT APPRECIATING THE NATURE OF TRANSACTION AND EXPLANATIONS FILED BY THE ASSESSEE TO PROVE THE GENUINENESS OF CASH CREDIT, THUS THE PENALTY SO SUS TAINED DESERVES TO BE DELETED. 2. IN THIS CASE THE SOLE GROUND OF APPEAL IS AGAINS T PENALTY OF RS. 46,89,104/- ON ACCOUNT CASH DEPOSITED OF RS. 1,25,5 3,450/- AND 3 ITA NO. 236/JP/2014 ANIL KUCHHAL VS ACIT UNSECURED LOAN OF RS. 58 LACS. THE LD ASSESSING OFFI CER PASSED ORDER IN THIS CASE ON 27/3/2012 AND A DETAILED PENALTY ORDER WAS PASSED AFTER CONSIDER THE VARIOUS CASE LAWS ON ACCOUNT OF ADDITI ON MADE CASH DEPOSIT OF RS. 1,25,53,450/- AND UNSECURED LOAN TAKEN AT RS . 50 LACS AND 8 LACS FROM DEEPAK BUILDERS AND RADHEY SHYAM GUPTA RESPECT IVELY. AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, THE LD ASSESSING OFFICER IMPOSED PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT RS. 46,89,104/-, WHICH IS 100% OF TAX SOUGHT TO BE EVADED ON CONCEALING INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD CONFIRMED THE PENALTY BY OBSERVING THAT UNEXPLAINED CASH DEPOSIT OF RS. 81,30,789/- IN THE BANK ACCOUNT AND UNEXPLAINED CASH CREDIT OF RS. 58 LACS HAS BEEN UPHELD BY THE LD CIT(A). THE ASSESSEE COULD NOT FURNI SH CONFIRMATION FROM THOSE PARTIES NOR ANY RELEVANT DETAILS TO ESTABLISH THAT THE AMOUNT WAS IN FACT RECEIVED AS BOOKING ADVANCE. THEREFORE, GENUINE NESS OF THE TRANSFER, IDENTITY AND CREDITWORTHINESS OF THE PERSONS DEPOSI TING THE MONEY COULD NOT BE ESTABLISHED. MOREOVER, THE CASH FLOW CHART AS PREPARED DURING THE ASSESSMENT PROCEEDINGS SHOWS THAT THE APPELLANT WAS H AVING NEGATIVE CASH BALANCES, WHICH MEANT THAT HE HAD INTRODUCED UN ACCOUNTED MONEY. 4 ITA NO. 236/JP/2014 ANIL KUCHHAL VS ACIT THERFORE, CONSIDERING THE PEAK VALUE OF POSITIVE AND NEGATIVE CASH BALANCES, THE ASSESSING OFFICER ADDED A SUM OF RS. 81,30,789/- AS UNEXPLAINED MONEY. SIMILARLY RS. 58 LACS HAS BEEN R ECEIVED FROM TWO PARTIES, FROM THEM NO PAN, FULL ADDRESS AND CONFIRM ATION HAD BEEN FURNISHED BY THE ASSESSEE. NO CREDIBLE EVIDENCES HA VE BEEN PUT FORTH BY THE APPELLANT TO EXPLAIN VARIOUS DEPOSITS/.CASH CRE DITS IN ITS ACCOUNT. ACCORDINGLY HE DISMISSED THE APPEAL OF THE ASSESSEE . 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE IN QUANTUM APPEAL, ADDITION HAS BEEN SET ASIDE BY THE HONBLE BENCH VIDE ORDER DATED 16/10/2015 PASSE D IN ITA NO. 208/JP/2011. WHEN QUANTUM APPEAL IS SET ASIDE, THER E IS NO POINT TO DECIDE THE PENALTY PROCEEDING ACCORDINGLY. THEREFORE , HE PRAYED TO SET ASIDE THE SAME TO THE ASSESSING OFFICER. 5. AT THE OUTSET, THE LD CIT DR HAS ACCEPTED THE ASS ESSEES PROPOSAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE C OORDINATE BENCH VIDE ORDER DATED 16/10/2015 IN ITA NO. 208/JP/2011 HAD S ET ASIDE THIS ISSUE TO THE ASSESSING OFFICER AFTER ADMISSION OF ADDITIO NAL EVIDENCE, THEREFORE THE PENALTY PROCEEDING IS ALSO SET ASIDE TO THE ASS ESSING OFFICER AND HE IS 5 ITA NO. 236/JP/2014 ANIL KUCHHAL VS ACIT FREE TO IMPOSES PENALTY AS PER LAW. ACCORDINGLY, THI S APPEAL IS ALSO SET ASIDE TO THE LD ASSESSING OFFICER. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 TH DECEMBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI ANIL KUCHHAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 236/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR