NazmaIzharul Hasan Shah, Ratnagiri V. Income tax Officer,

ITA 249/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7215 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 31-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Unexplained cash credit; Condonation of delay; Set aside
• Section: 271(1)(c); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 249 /P U N/201 7 / ASSESSMENT YEAR : 20 1 1 - 12 S MT. NAZMALZHARUL HASAN SHAH, D - 45, MIDC, MIRJOLE, RATNAGIRI PAN : APZPS1356K ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 2, RATNAGIRI / RESPONDENT ASSESSEE BY : S HRI M.K. KULKARNI REVENUE BY : SHRI M .K. VERMA / DATE OF HEARING : 15 - 04 - 2019 / DATE OF PRONOUNCEMENT : 22 - 04 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2, KOLHAPUR DATED 30 - 11 - 2016 FOR THE ASSESSMENT YEAR 2011 - 12 CONFIRMING LEVY OF PENALTY U/S. 271(1)(C) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) . 2. THE APPEAL IS TIME BARRED BY TWO DAYS. THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF DELAY IN FILING OF THE APPEAL . AFTER 2 ITA NO .249/PUN/2017, A.Y. 2011 - 12 PERUSAL OF THE SAME, WE ARE SATISFIED THAT THE DELAY IN FILING OF THE APPEAL IS NOT INTENTIONAL OR DELIBERATE B UT HAS BEEN CAUSED DUE TO BONAFIDE REASONS AS STATED IN THE APPLICATION. TH E DELAY IN FILING OF APPEAL IS CONDONED AND THE APPEAL IS ADMITTED TO BE HEARD AND DISPOSED OF ON MERITS. 3. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE PENALTY HAS BEEN LEVIED IN RESPECT OF TWO ADDITIONS MADE BY THE ASSESSING OFFICER I.E. ADDITION OF RS.58,72,000/ - ON ACCOUNT OF PEAK CASH CREDITS U/S. 69 OF THE ACT AND ADDITION OF R S.77,515/ - ON ACCOUNT OF INTEREST INCOME ON BONDS AND BANK DEPOSITS. THE ASSESSEE HAD CHALLENGED THE ADDITIONS BEFORE THE TRIBUNAL IN ITA NO. 246/PUN/2015. THE TRIBUNAL VIDE ORDER DATED 21 - 02 - 2018 DELETED THE ADDITION OF RS.58,72,000/ - . HOWEVER, THE ADD ITION OF RS.77,515/ - ON ACCOUNT OF INTEREST INCOME WAS CONFIRMED. A COPY OF TRIBUNAL ORDER IN ITA NO. 246/PUN/2015 (SUPRA) IS AT PAGES 55 TO 61 OF THE PAPER BOOK. 4. SHRI M.K. VERMA REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. T HE LD. DR SUBMITTED THAT DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL THERE WERE CASH DEPOSITS AGGREGATING TO RS.1,79,86,007/ - IN VARIOUS BANKS ACCOUNTS OF THE ASSESSEE. THE ASSESSING OFFICER HAD MADE ADDITION U/S. 68 OF THE ACT OF RS.58 ,72,000/ - ON THE BASIS OF PEAK CASH CREDITS. THE PENALTY U/S. 271(1)(C) WAS RIGHTLY LEVIED FOR CONCEALMENT OF INCOME. 5. BOTH SIDES HEARD. ORDERS OF AUTHORITIES BELOW PERUSED. THE PENALTY U/S. 271(1)(C) FOR CONCEALMENT OF INCOME HAS BEEN LEVIED IN RE SPECT OF TWO ADDITIONS. I . UNEXPLAINED CASH CREDITS (PEAK CASH) IN THE BANK ACCOUNT OF ASSESSEE RS.58,72,000/ - . 3 ITA NO .249/PUN/2017, A.Y. 2011 - 12 II . UNDISCLOSED INTEREST INCOME RS.77,515/ - . 6. WE FIND THAT THE CO - ORDINATE BENCH OF TRIBUNAL IN AN APPEAL BY THE ASSESSEE IN ITA NO. 246/PUN/2015 (SUPRA) HAS DELETED THE ADDITION OF RS.58,72,000/ - ON ACCOUNT OF PEAK CASH DEPOSITS. ONCE, THE ADDITION HAS BEEN STRUCK OFF , THE PENALTY LEVIED ON SUCH ADDITION IS UN SUSTAINABLE. ACCORDINGLY, PENALTY ON RS.58,72,000/ - IS SET ASIDE. 7. THE OTHER ADD ITION ON WHICH THE PENALTY HAS BEEN LEVIED IS UNDISCLOSED INTEREST INCOME OF RS.77,515/ - . THE ASSESSEE HAD EARNED INTEREST INCOME ON BONDS AND CASH DEPOSITS AGGREGATING TO RS.77,515/ - AND THE SAME WAS NOT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME. THE SAID ADDITION WAS UPHELD BY THE CO - ORDINATE BENCH OF TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS FAILED TO SHOW ANY REASON TO STRIKE DOWN THE PENALTY. HENCE, THE PENALTY ON THE ADDITION OF RS.77,515/ - IS UPHELD. 8. IN THE RESULT, THE APPEAL O F ASSESSEE IS PARTLY ALLOWED IN THE TERMS AFORESAID. ORDER PRONOUNCED ON MONDAY, THE 22 ND DAY OF APRIL, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 22 ND APRIL, 2019. RK 4 ITA NO .249/PUN/2017, A.Y. 2011 - 12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, KOLHAPUR 4. THE PR. COMMISSIONER OF INCOME TAX - 2, KOLHAPUR 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE