PURAN MAL SAINI, Jaipur V. ITO, Jaipur

ITA 246/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5220 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 15-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMAADDL CIT DR DHK
• Keywords: Unexplained investment; Revised return
• Section: 143(3); 142(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 246/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI PURAN MAL SAINI 1628, BRAHMA MARG, PALIWALON KA CHOWK, NEAR OLD VIDHANSABHA, JAIPUR CUKE VS. THE ITO WARD- 3 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ADEPS 1133 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SATISH GUPTA, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA,ADDL.CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05 /08/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALIGARH AT JAIPUR (CAMP OFFICE) DATED 17-12 -2015 FOR THE ASSESSMENT YEAR 2008-09 RAISING THEREIN FOLLOWING G ROUND:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN LEVYING PENALTY U/S 271(1) OF THE ACT OF RS. 18,500/-. LD. CIT(A) ALSO ERRED IN CONFIRMING THE S AME. ACTION OF THE LOWER AUTHORITIES IS UNJUST, ILLEGAL AND CONTRARY TO FACTS OF THE CASE. ITA NO. 246/JP/2016 SHRI PURAN MAL SAINI VS. ITO, WARD- 3 (4), JAIPUR . 2 2.1 BRIEF FACTS IN THIS CASE ARE THAT ASSESSMENT WA S COMPLETED U/S 143(3) OF THE ACT ON 28-12-2010 ON TOTAL INCOME OF RS. 9,47,470/- AS AGAINST DECLARED INCOME OF RS. 2,47,910/-. THE AO M ADE ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT U/S 69 OF RS. 6 ,39,000/- AND UNDER THE HEAD INCOME FROM OTHER SOURCES RS. 60,555/-. THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED RELIEF OF RS. 6,39,000/- ON ACCOUNT OF UNACCOUNTED INVESTMENT AND SUSTAINED TH E BALANCE ADDITION OF RS. 60,555/- MADE ON ACCOUNT OF INTEREST INCOME WH ICH WAS DISCLOSED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS. NOTICE U/S 271(1)(C) DATED 28-12-2010 AND DATED 18-04-2013 WER E ISSUED TO THE ASSESSEE ASKING HIM TO SHOW CAUSE AS TO WHY PENALTY U/S 271(1)(C) SHOULD NOT BE IMPOSED FOR SUBMITTING INACCURATE PARTICULAR S AND FOR CONCEALING THE PARTICULARS OF INCOME WHILE FILING THE ORIGINA L RETURN OF INCOME. THE LD. AR OF THE ASSESSEE FILED THE REPLY BEFORE THE A O FOR CONSIDERATION BUT THE SAME WAS NOT FOUND ACCEPTABLE TO THE AO WIT H FOLLOWING OBSERVATIONS. (I) THE ASSESSEE HAS NOT DISCLOSED THE INTEREST INC OME OF RS. 60,555/- (RS. 12,356/- RECEIVED FROM BANK AND R S. 48,019/- RECEIVED FROM OTHER PARTIES IN HIS ORIGINAL RETURN OF INCOME FILED ON 16-07-2008. HAD THE CASE OF ASSESSEE NOT SELECTED FOR SCRUTINY UNDER CASS THE SAID INCOME OF RS. 60,555/- WOULD H AVE ESCAPED ASSESSMENT.. IT WAS ONLY AFTER SERVICE OF NOTICE U/ S 143(2) AND AFTER ISSUE OF QUESTIONNAIRE ASKING FOR THE COMPLETE PART ICULARS OF INCOME AND BANK STATEMENTS THAT THE ASSESSEE REVISE D HIS RETURN OF ITA NO. 246/JP/2016 SHRI PURAN MAL SAINI VS. ITO, WARD- 3 (4), JAIPUR . 3 INCOME DISCLOSING INTEREST INCOME OF RS. 60,555/-. THEREFORE, THE ASSESSEE'S PLEA THAT HE HAS NOT CONCEALED THE PARTI CULARS OF INCOME OR HAS NOT SUPPLIED ANY INACCURATE PARTICULARS OF I NCOME IS NOT ACCEPTABLE. (II) THERE ARE PLETHORA OF DECISION IN FAVOUR OF TH E DEPARTMENT, A FEW OF THESE ARE REPRODUCED HEREUNDER:- (A) ADMISSION OF ASSESSEE DURING ASSESSMENT REGARDING CONCEALMENT NO INDEPENDENT ENQUIRY TO P ROVE CONCEALMENT NECESSARY IN PENALTY PROCEEDINGS. H.V. VENUGOPAL CHETTIAR VS. CIT (MAD.) 153 ITR 376 AND D DIT VS. CHIRAG METAL ROLLING MILLS LTD. (M.P.) 305 ITR 29 (B) SIMPLY BECAUSE ASSESSEE AGREED TO ADDITION OF CONCEALED INCOME AFTER DETECTION THEREOF AND FILED RETURN IN RESPONSE TO NOTICE OFFERING ADDITIONAL INCOME, ASSE SSEE CANNOT ESCAPE FROM PENALTY U/S 271(1)(C). P.C. JOSE PH & EROS VS. CIT (KER.) 240 ITR 818. (III) THE DECISION OF HON'BLE SUPREME COURT RELIED BY THE ASSESSEE IN HIS REPLY FILED IN PARA 4 IS ON DIFFERE NT FACTS, HENCE NOT APPLICABLE IN THIS CASE. PARA 4 OF ASSESSEE'S REPLY IS AS UNDER:- S 271(1) APPLIES WHERE THE ASSESSEE HAS CONCEALE D THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURA TE PARTICULARS OF SUCH INCOME. THE PRESENT WAS NOT A C ASE OF CONCEALMENT OF THE INCOME. AS REGARDS, THE FURNISHI NG OF INACCURATE PARTICULARS, NO INFORMATION GIVEN THE RE TURN WAS FOUND TO BE INCORRECT OR INACCURATE. THE WORDS IN ACCURATE PARTICULARS MEANS THAT THE DETAILS SUPPLIED IN TH E RETURN ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDI NG TO TRUTH OR ERRONEOUS. IN THE ABSENCE OF A FINDING BY THE AO THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE, THERE WOULD BE NO QUESTION OF INVITING PENALTY U/S 271(1). THE ASSESSEE ALS O RELIED ON THE DECISION OF HON'BLE SUPREME COURT PRONOUNCED I N THE CASE OF CIT VS. RELIANCE PETROPRODUCTS. ITA NO. 246/JP/2016 SHRI PURAN MAL SAINI VS. ITO, WARD- 3 (4), JAIPUR . 4 THE AO CONSIDERING THE FACTS AND CIRCUMSTANCES OF T HE CASE FOUND THAT THE ASSESSEE HAD DISCLOSED INTEREST INCOME OF RS. 6 0,550/- AFTER ISSUE OF NOTICE U/S 143(2)/ 142(1) AND THE ASSESSEE HAS NOT CHALLENGED THE ADDITION SO MADE BY THE AO EVEN BEFORE THE IST APPELLATE AUT HORITY WHICH PROVES THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOME AND SUBMITTED INACCURATE PARTICULARS OF HIS INCOME IN H IS ORIGINAL RETURN FILED BEFORE THE DEPARTMENT ON 16-07-2008. HENCE, THE AO IMPOSED THE PENALTY OF RS. 18,500/- U/S 271(1) OF THE ACT ON T HE ASSESSEE. 2.2 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ACTION OF THE AO BY OB SERVING AS UNDER:- .. IN THIS CASE, IT IS ADMITTED FACT THAT INTERE ST INCOME AMOUNTING TO RS. 60,555/-WAS NOT DISCLOSED I N THE RETURN OF INCOME WHICH WAS SUBSEQUENTLY DISCLOSED B Y FILING REVISED RETURN DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THERE IS NO PLAUSIBLE EXPLANATION AS T O WHY THIS INCOME WAS NOT INCLUDED IN THE ORIGINAL COMPUTATION . THIS INCOME HAS BEEN DISCLOSED AS THE APPELLANT WAS LEFT WITH NO OTHER OPTION BECAUSE HIS AFFAIRS WERE BEING SCRUTIN IZED. AS NO BONAFIDE EXPLANATION HAS BEEN GIVEN FOR NOT DISC LOSING HIS INCOME IN THE ORIGINAL COMPUTATION, I AM NOT IN CLINED TO ACCEPT APPELLANTS CONTENTION THAT THIS AMOUNT WAS OFFERED VOLUNTARILY. IN THE GIVEN FACTS AND CIRCUMSTANCES, THE AO WAS RIGHT IN HOLDING THAT THE APPELLANT HAD CONCEAL ED PARTICULARS OF INCOME OF RS. 60,555/- EARNED AS INT EREST INCOME ON DEPOSITS WITH BANK AND OTHERS. ACCORDINGL Y, THE FACT OF CONCEALMENT WAS CLEARLY ESTABLISHED IN THIS CASE. ONCE, THE FACT OF CONCEALMENT IS ESTABLISHED THE AO HAS NO OPTION TO IMPOSE PENALTY U/S 271(1). FURTHER, WITH THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF U NION OF INDIA VS. DHARMENDRA TEXTILES PROCESSOR 306 ITR 277 , THERE ITA NO. 246/JP/2016 SHRI PURAN MAL SAINI VS. ITO, WARD- 3 (4), JAIPUR . 5 IS NO NEED TO ESTABLISH MENS REA BEFORE IMPOSING PE NALTY U/S 271(1). ACCORDINGLY I FIND NO FAULT IN AOS ORDER AND HENCE THE PENALTY OF RS. 18,500/- IS CONFIRNMED. 2.3 NOW THE ASSESSEE IS BEFORE ME AND THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING PRAYED FOR DELETION OF PENALTY OF RS. 18,500/- U/S 271(1)( C) OF THE ACT, CONFIRMED BY THE LD. CI T(A). THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE OFFERED THE AM OUNT OF INTEREST VOLUNTARILY FOR TAXATION WITHOUT ANY NOTICE FROM TH E AO. 2.4 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTICED THAT THE ASSESSE E IS A RETIRED SENIOR CITIZEN. THE ASSESSEE OFFERED THE AMOUNT OF INTERES T BY REVISING RETURN VOLUNTARILY FOR TAXATION WITHOUT DETECTION OF THE S AME BY THE AO . THE FACTS OF THE CASE SUGGESTS THAT THERE WAS NO MALAFI DE OR WILFULL INTENTION OF THE ASSESSEE TO CONCEAL THE INCOME OR TO FILE TH E INACCURATE PARTICULARS OF INCOME. AS SOON AS THE MISTAKE WAS DETECTED BY T HE ASSESSEE HIMSELF, THE SAME WAS RECTIFIED BY OFFERING THE INTEREST INC OME FOR TAXATION. THERE WAS MISTAKE IN FILING THE ORIGINAL RETURN OF INCOM E WHICH WAS RECTIFIED LATER ON BY THE ASSESSEE. IT WAS A BONA FIDE MISTAK E. IN VIEW OF THESE FACTS, THE ASSESSEE DOES NOT DESERVE TO BE VISITED BY PENA LTY U/S 271(1) OF THE ITA NO. 246/JP/2016 SHRI PURAN MAL SAINI VS. ITO, WARD- 3 (4), JAIPUR . 6 ACT. HENCE, THE LEVY OF PENALTY OF RS. 18,500/- U/S 271(1) ON THE ASSESSEE IS DELETED. THEREFORE, THE APPEAL OF THE A SSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED ORDER PRONOUNCED IN THE OPEN COURT ON 05/08/20 16 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/08/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI PURAN MAL SAINI,JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3 (4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 246/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR