ITO, JHUNJHUNU V. SMT. SUNITA DEVI KEDIA, SURAJGARH

ITA 255/JPR/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1959 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Assessee Lawyers: S L PODDAR
• Keywords: Income from undisclosed sources; Opportunity of cross examination; Third party statement

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 IH-DS-CALY] YS[KK LNL; DS LE{K BEFORE: SHRI P.K. BANSAL, ACCOUNTANT MEMBER VK;DJ VIHY LA- @ ITA NO. 255/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER, WARD 2, JHUNJHUNU. CUKE VS. SUNITA DEVI KEDIA, W/O- SH. MANOJ KUMAR, SURAJGARH. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AMIPK 6460 C VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI O.P. BHATEJA (ADDL.CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : S.L. PODDAR (ADV) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 02/11/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 03/11/2015 VKNS'K @ ORDER PER P.K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF LD. CIT(A)-III, JAIPUR DATED 22/12/2011 FOR A.Y. 2004-05 AGAINST DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). ITA 255/JP/2012_ ITO VS. SUNITA DEVI 2 2. AFTER HEARING THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, I NOTED THAT IN THIS CASE THE LD ASSESSING OFFICER IMPOSED PENALTY U/S 271(1)(C) OF THE ACT IN RESPECT OF TAX SOUGHT TO BE EVADED ON THE LONG TERM CAPITAL GAIN DECLARED BY THE ASSESSEE AMOUNTING TO RS. 11,4 0,271/-, WHICH WERE ADDED IN THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. AFTER HEARING THE RIVAL SUBMISSIONS, I FOU ND THAT IN THIS CASE, THE TRANSACTION REGARDING THE CAPITAL GAIN WAS NOT F OUND TO BE A GENUINE TRANSACTION ON THE BASIS THAT THERE WAS A SEARCH IN THE CASE OF ONE M/S B.C. PUROHIT & COMPANY ON 12/04/2005 IN WHICH MR. P AWAN PUROHIT ADMITTED THAT THEY WERE INDULGED IN PROVIDING ACCOM MODATION ENTRIES IN THE FORM OF LONG TERM CAPITAL GAIN. THE ASSESSEE SUB MITTED THE EXPLANATION THAT THEY HAVE NOT PURCHASED THE SHARE FROM M/S B.C. PUROHIT & COMPANY AND THEIR NAME WAS NOT FOUND MENT IONED IN THE STATEMENT GIVEN BY SH. PAWAN PUROHIT. THE ASSESSEE HA S BROUGHT THE SHARES THROUGH M/S PRAKASH NAHATA & COMPANY. THE REV ENUE MADE THE ADDITION ON THE BASIS OF STATEMENT OF SH. PAWAN PURO HIT BUT I NOTED NO INQUIRY HAS BEEN MADE FROM M/S PRAKASH NAHATA & COM PANY. PENALTY CANNOT BE IMPOSED MERELY ADDITION HAS BEEN SUSTAINE D. PENALTY PROCEEDINGS, AS WELL AS ASSESSMENT PROCEEDINGS, BOTH ARE DIFFERENT. THE ASSESSEE CAN ALWAYS ARGUE DURING THE COURSE OF PENAL TY PROCEEDINGS THAT ITA 255/JP/2012_ ITO VS. SUNITA DEVI 3 ADDITION HAS NOT BEEN CORRECTLY MADE. I NOTED THAT THE LD CIT(A) DELETED THE PENALTY ON THE BASIS OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS LTD. 322 ITR 158 (SC ), IN WHICH IT WAS HELD THAT MERELY REJECTION OF ANY CLAIM MADE BY THE ASSESSEE WILL NOT AUTOMATICALLY AND TILL TO THE CONCEALMENT THE PENAL TY UNLESS SOME INACCURATE PARTICULARS ARE FOUND IN THIS REGARD. W ITHOUT BRINGING THE EVIDENCE TO THE INQUIRY BEING MADE FROM M/S PRAKASH NAHATA & COMPANY, THE ADDITION, IN MY OPINION, IS BASED ON T HE THIRD PARTY STATEMENT AND CONSEQUENTLY PENALTY ALSO BEEN LEVIED ON THE STATEMENT OF THE THIRD PARTY, WHICH IS NOT PERMISSIBLE UNDER T HE LAW. I, THEREFORE, DO NOT FIND ANY ILLEGALITY OR IMPROPRIETY IN THE OR DER OF THE LD CIT(A) IN DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE AC T. THEREFORE, I CONFIRM THE ORDER OF THE LD CIT(A). 3. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/11/2015. SD/- IH-DS-CALY (P.K. BANSAL) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 03 RD NOVEMBER, 2015 ITA 255/JP/2012_ ITO VS. SUNITA DEVI 4 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD 2, JHUNJHUNU. 2. IZR;FKHZ @ THE RESPONDENT- SMT. SUNITA DEVI KEDIA, SURAJGARH. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 255/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR