BHANU HALDIA, Jaipur V. ITO, Jaipur

ITA 239/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2095 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL CIT DHK
• Assessee Lawyers: M L BORAD
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 239/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 BHANU HALDIA S/O LATE SURAJ NARAYAN HALDIA PROPRIETOR M/S VRINDA ENTERPRISES, R/O AB-188, NIRMAN NAGAR, JAIPUR CUKE VS. THE DCIT, CIRCLE- 2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AAKPH9235N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 240/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 BHANU HALDIA S/O LATE SURAJ NARAYAN HALDIA PROPRIETOR M/S VRINDA ENTERPRISES, R/O AB-188, NIRMAN NAGAR, JAIPUR CUKE VS. THE DCIT, CIRCLE- 2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AAKPH9235N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRHDH VKSJ LS@ ASSESSEE BY : SHRI M.L. BORAD (ADV.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L. CHANDEL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08/08/2017 ?KKS'K .KK DH R KJH[K @ DATE OF PRONOUNCEMENT: 28/08/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), JAIPUR ON EVEN DATE 17.12.2015 FOR A.Y. 200 7-08 AND 2008-09 ITA NO. 239 &240/JP/16 BHANU HALDIA VS. DCIT, C-2, JAIPUR. 2 RESPECTIVELY. IN BOTH THESE APPEALS, THE ASSESSEE H AS CHALLENGED THE CONFIRMATION OF PENALTY IMPOSED BY THE AO U/S 217(1 )(C) OF THE ACT. 2. IN RESPECT OF A.Y. 2007-08, BRIEFLY THE FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 28.03 .2008 DECLARING TOTAL INCOME AT RS. 33,51,140/- WHICH WAS ASSESSED U/S 14 3 (3) READ WITH SECTION 153B AT TOTAL INCOME OF RS. 35,57,256/-. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT AS PER PAGES 5 AND 6 OF EX-5 OF ANNEX. A-1 DATED 20.04.2007, THERE ARE ENTRIES OF UNRECORDED PURCHAS ED OF ILACHI AND SUPARI BUSINESS WITH REGARD TO WHICH THE APPELLANT IN HIS STATEMENT U/S 132(4) IN ANSWER TO QUESTION NO. 20 HAD ADMITTED UNDER-BILLIN G IN PURCHASE AND PAYMENT OF CASH OF RS. 62,633/- TO M/S KIRAN ENTERP RISES WITHOUT RECORDING THE SAME IN THE BOOKS OF ACCOUNTS. IN THIS REGARD, IN THE PENALTY ORDER AFTER CONSIDERING APPELLANTS REPLY, THE AO HAD HELD THA T THE APPELLANT HAS CONCEALED PARTICULARS OF INCOME TO THE EXTENT OF RS . 62,633/-. ACCORDINGLY, HE HAS IMPOSED PENALTY OF RS. 21,082/- BEING 100% OF T HE TAX SOUGHT TO BE EVADED ON CONCEALED INCOME OF RS. 62,633/-. 3. THE RELEVANT FINDING OF THE LD. CIT(A) IS REPROD UCED AS UNDER:- 5.2 THE ADDITION OF RS. 62,633/- HAS BEEN MADE AS THE APPELLANT HAD IN HIS STATEMENT RECORDED U/S 132(4) ADMITTED THAT THERE IS UNDER-BILLING IN PURCHASE OF ILACHI AND CASH OF RS. 62,633/- HAS BEEN PAID TO M/S KIRAN ENTERPRISES WITHOUT RECORDING THE SAME IN THE BOOKS. IN THE WRITTEN SUBMISSION, THE APPELLANT HAS NOT CONTESTED THE VERACITY OF THE STATEMENT RECORDED U/S 132(4). THUS, BY APPELLANTS OWN ADMISSION, THE FACT OF UNDISCLOSED CASH PAYMENT IS ESTABLISHED. TH IS UNDISCLOSED CASH IS CLEARLY APPELLANTS CONCEALED INCOME. ONCE, THE CONCEALMENT IS ESTABLISHED, THE AO IS BOUND TO IMPOSE PENALTY U/S 271(1)(C). IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF UOI V/S DHARMENDRA TEXTILES PROCESSOR 306 ITR 277, THERE I S NO NEED TO ESTABLISH MENS REA BEFORE IMPOSING PENALTY U/S 271( 1)(C). SINCE, THE FACTS OF THE CASE CLEARLY INDICATE CONCEALMENT OF I NCOME, THE AO HAS ITA NO. 239 &240/JP/16 BHANU HALDIA VS. DCIT, C-2, JAIPUR. 3 IMPOSED MINIMUM PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED AND THUS, THE AOS ORDER SEEMS TO BE FAIR AND REASONABL E. ACCORDINGLY, I FIND NO INFIRMITY WITH THE PENALTY ORDER AND HENCE PENALTY OF RS. 21,082/- IS CONFIRMED. THIS GROUND OF APPEAL IS DIS MISSED. 4. IN RESPECT OF A.Y. 2008-09, BRIEFLY THE FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED BY ASSESSEE ON 29.09.200 8 DECLARING TOTAL INCOME AT RS. 15,29,970/- WHICH WAS ASSESSED U/S 143(3) RE AD WITH SECTION 153B AT TOTAL INCOME OF RS. 16,40,012/-. DURING THE ASSESSM ENT PROCEEDINGS, THE AO NOTICED THAT AS PER PAGES 1,4 AND 5 OF ANNEX. A-1 DATED 20.04.2007, THERE ARE ENTRIES OF UNRECORDED PURCHASED OF ILACHI AND S UPARI BUSINESS WITH REGARD TO WHICH THE APPELLANT IN HIS STATEMENT U/S 132(4) IN ANSWER TO QUESTION NO. 17 HAD ADMITTED UNDER-BILLING AND THAT HE SOLD 168 KG OF ILACHI @ 500/- PER KG. TO M/S ARCHANA ENTERPRISES FOR WHICH BILL WAS I SSUED @ 300/- PER KG. IN THIS REGARD, IN THE PENALTY ORDER AFTER CONSIDERING APPELLANTS REPLY, THE AO HAD HELD THAT THE APPELLANT HAS CONCEALED PARTICULA RS OF INCOME TO THE EXTENT OF RS. 2,15,411/-. ACCORDINGLY, HE HAS IMPOSED PENA LTY OF RS. 73,218/- BEING 100% OF THE TAX SOUGHT TO BE EVADED ON CONCEALED IN COME OF RS. 2,15,411/-. 5. THE RELEVANT FINDING OF THE LD. CIT(A) IS REPROD UCED AS UNDER:- 5.2 THE ADDITION OF RS. 2,15,411/- HAS BEEN MADE AS THE APPELLANT HAD IN HIS STATEMENT RECORDED U/S 132(4) ADMITTED THAT THERE IS UNDER BILLING AND THAT SOLD 168 KG OF ILACHI @ 500/- PER KG. TO M /S ARCHANA ENTERPRISES FOR WHICH BILL WAS ISSUED @ 300/- PER K G. IN THE WRITTEN SUBMISSION, THE APPELLANT HAS NOT CONTESTED THE VER ACITY OF THE STATEMENT RECORDED U/S 132(4). THUS, BY APPELLANTS OWN ADMISSION, THE FACT OF UNDISCLOSED CASH PAYMENT IS ESTABLISHED. TH IS UNDISCLOSED CASH IS CLEARLY APPELLANTS CONCEALED INCOME. ONCE, THE CONCEALMENT IS ESTABLISHED, THE AO IS BOUND TO IMPOSE PENALTY U/S 271(1)(C). IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF UOI V/S DHARMENDRA TEXTILES PROCESSOR 306 ITR 277, THERE I S NO NEED TO ESTABLISH MENS REA BEFORE IMPOSING PENALTY U/S 271( 1)(C). SINCE, THE FACTS OF THE CASE CLEARLY INDICATE CONCEALMENT OF I NCOME, THE AO WAS RIGHT IN IMPOSING PENALTY U/S 271(1)(C) . IT IS SEE N THAT THE AO HAS ITA NO. 239 &240/JP/16 BHANU HALDIA VS. DCIT, C-2, JAIPUR. 4 IMPOSED MINIMUM PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED AND THUS, THE AOS ORDER SEEMS TO BE FAIR AND REASONABL E. ACCORDINGLY, I FIND NO INFIRMITY WITH THE PENALTY ORDER AND HENCE PENALTY OF RS. 73,218/- IS CONFIRMED. THIS GROUND OF APPEAL IS DIS MISSED. 6. BOTH THE PARTIES WERE HEARD. THE LD. AR HAS REIT ERATED ITS SUBMISSIONS MADE BEFORE THE LD. CIT(A) WHICH HAVE BEEN SUBMITTE D AS PART OF WRITTEN SUBMISSIONS BEFORE US. THE LD. DR RELIED ON THE FIN DING OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THESE ARE MATTERS WHERE THE ADDITION HAS BEEN MADE PURSUANT TO SEARCH OPERATIONS AT THE BUSINESS AND RESIDENTIAL P REMISES OF THE ASSESSEE AND BY ASSESSEES OWN ADMISSION IN STATEMENT RECORD ED U/S 132(4), THE FACT OF UNDER-BILLING FOR PURCHASE AND SALES, AND UNDISC LOSED CASH PAYMENT AND RECEIPT HAS BEEN ESTABLISHED. WE, THEREFORE, DO NOT SEE ANY INFIRMITY IN THE ORDER OF LD. CIT(A) CONFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME ON PART OF THE AS SESSEE. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/08/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 28/08/2017 SANTOSH VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: ITA NO. 239 &240/JP/16 BHANU HALDIA VS. DCIT, C-2, JAIPUR. 5 1. VIHYKFKHZ@ THE APPELLANT - BHANU HALDIA, S/O LATE SURAJ NARAYAN HALDIA, PROPRIETOR M/S VRINDA ENTERPRISES, R/O AB-1 88, NIRMAN NAGAR, JAIPUR . 2. IZR;FKHZ@ THE RESPONDENT - DCIT, 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, 6. XKMZ QKBZY@ GUARD FILE (ITA NO.239 &240/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT REGISTRAR.