Shri Vasant Parshottambhai Patel, Unjha V. The Income Tax Officer, Ward-2, Patan

ITA 266/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8256 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGALA
• Assessee Lawyers: S N DIVATIA
• Section: 68

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.266/AHD/2015 ( / ASSESSMENT YEAR : 2008-09) VASANT PARSHOTTAMBHAI PATEL PROP. OF PARSHOTTAMBHAI B.PATEL KUBER NAGAR UNJHA 384 170 / VS. THE ITO WRD-2 RAJMAHAL ROAD PATAN (N.G.) $ ./ ./ PAN/GIR NO. : AHKPP 9000 C ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI S.N. DIVATIA, AR ($'*) / RESPONDENT BY : MS.ANUPAMA SINGALA, SR.DR +,*- / DATE OF HEARING 06/11/2017 ./0*- / DATE OF PRONOUNCEMENT 10 / 11 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL IN THE INSTANT CASE AS HAS B EEN FILED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS )-GANDHINAGAR [CIT(A) IN SHORT] DATED 14/11/2014 ARISING IN PEN ALTY ORDER PASSED BY THE ASSESSING OFFICER (AO) DATED 19/03/2013 UNDER S .271(1)(C) OF THE ITA NO.266/AHD/ 2015 SHRI VASANT PARSHOTTAMBHAI PATEL VS. ITO ASST.YEAR 2008-09 - 2 - INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT') FOR THE ASSESSMENT YEAR (AY) 2008-09. 2. THE ASSESSEE AN INDIVIDUAL FILED ITS RETURN O F INCOME FOR AY 2008-09 AT RS.75,550/-. THE RETURN WAS SUBJECTED T O SCRUTINY ASSESSMENT. CERTAIN RECEIPTS BY WAY OF UNSECURED LOAN FROM FAMI LY MEMBERS TO THE TUNE OF RS.6,37,500/- IN AGGREGATE WAS FOUND UNEXP LAINED UNDER S.68 OF THE ACT. THE ADDITION WAS ACCORDINGLY MADE IN THE AFORESAID AMOUNT WHILE FRAMING THE ASSESSMENT ORDER. AS A CONSEQUEN CE, PENALTY WAS ALSO IMPOSED BY THE AO UNDER S.271(1)(C) OF THE ACT. 3. IN THE FIRST APPEAL, THE CIT(A) ALSO CONFIRMED T HE ACTION OF THE AO IN IMPOSING THE PENALTY UNDER S.271(1)(C) OF THE AC T. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. THE LD.AR FOR THE ASSESSEE MR.S.N. DIVATIA AT TH E OUTSET SUBMITTE4D THAT ALL THE PRIMARY EVIDENCES AND DOCUM ENTS IN CONNECTION WITH THE IMPUGNED CASH CREDITS RECEIVED FROM (I) P ARSHOTTAMBHAI BECHARDAS PATEL RS.3,57,500/-, (II) RAIBEN PARSHO TTAMBHAI PATEL RS.2,40,000/- AND (III) MANJULABEN VASANTBHAI PATEL - RS. 40,000/- WERE DULY PRODUCED BEFORE THE LOWER AUTHORITIES IN QUANT UM. IN FACT, ALL THE ITA NO.266/AHD/ 2015 SHRI VASANT PARSHOTTAMBHAI PATEL VS. ITO ASST.YEAR 2008-09 - 3 - TRANSACTIONS HAVE BEEN ADMITTEDLY CARRIED OUT THROU GH BANKING CHANNELS. THE LENDERS HAVE ALSO CLAIMED THAT THE LOAN AMOUNT BELONGS TO THEM. HOWEVER, THE ADDITION WAS CARRIED OUT EXPRESSING D OUBTS ON THE CREDITWORTHINESS OF ALL THESE PARTIES. THE LD.AR S UBMITTED THAT WHILE THE INADEQUACY IN THE DOCUMENTS TOWARDS CREDITWORTHINE SS MAY RESULT IN INVOCATION OF SECTION 68 OF THE ACT, HOWEVER, SUCH ADDITION BY ITSELF CANNOT TRANSLATE INTO IMPOSITION OF PENALTY. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DER OF THE AO AND CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS WITH. T HE LIMITED ISSUE FOR ADJUDICATION IN THE PRESENT CASE IS CORRECTNESS OF IMPOSITION OF PENALTY UNDER S.271(1)(C) OF THE ACT ON THE ASSESSEE IN THE GIVEN SET OF FACTS AND CIRCUMSTANCES EXCEEDING IN THE CASE. AT THE OUTSET , WE NOTE THAT ALL THE PRIMARY DOCUMENTS HAVE BEEN FURNISHED INCLUDING THE BANK STATEMENT AND LOAN CONFIRMATION, ETC. THE CREDITWORTHINESS OF TH E LENDERS HOWEVER, COULD NOT BE ESTABLISHED TO THE SATISFACTION OF THE REVENUE AUTHORITIES. WHEN THE FACT ARE SEEN HOLISTICALLY, ONE CANNOT COM E TO A DEFINITE CONCLUSION THAT ONUS PLACED UNDER EXPLANATION-1 TO SECTION 271(1)(C) OF THE ACT HAS NOT BEEN DISCHARGED BY THE ASSESSEE. T HE LOANS HAVE BEEN TAKEN FROM THE RELATIVES OF THE ASSESSEE. THE AMOU NT INVOLVED ARE SMALL IN NATURE. THE ASSESSEE HAS OFFERED AN EXPLANATION -1 WHICH HAS BEEN ITA NO.266/AHD/ 2015 SHRI VASANT PARSHOTTAMBHAI PATEL VS. ITO ASST.YEAR 2008-09 - 4 - SUBSTANTIATED TO A GREAT DEAL. THE RELEVANT FACTS CONCERNING THE CASH CREDITS HAVE BEEN BROUGHT ON RECORD. THE LENDERS H AVE CATEGORICALLY SUBMITTED THAT THE AMOUNT LENT BELONGS TO THEM. TH US, A REASONABLE EXPLANATION IS AVAILABLE ON RECORD WHICH IS NOT FOU ND TO BE DISPROVED WHILE REMAINING SOMEWHAT UNPROVED. THERE IS NOTHIN G ON RECORD WHICH INDICATES CULPABILITY OF ANY SORT AGAINST THE ASSES SEE. IN THESE CIRCUMSTANCES, WE FIND SOME MERIT IN THE PLEA RAISE D BY THE ASSESSEE FOR DELETION OF ONEROUS PENALTY. THE PENALTY IMPOSED U NDER S.271(1)(C) OF THE ACT THEREFORE DESERVES TO BE DELETED. WE DIREC T THE AO TO DO SO ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 10 / 11 /2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 10 / 11 /2017 4..+,.+../ T.C. NAIR, SR. PS ITA NO.266/AHD/ 2015 SHRI VASANT PARSHOTTAMBHAI PATEL VS. ITO ASST.YEAR 2008-09 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-GANDHINAGAR 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 7.11.17 (DICTATION-PAD 8- PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.11.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .10.11.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10.11.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER