Shri Swapnil Bharat Shah, Ahmedabad V. The Income Tax Officer, Ward-10(4), Ahmedabad

ITA 2669/AHD/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8496 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 15-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Keywords: Unexplained investment; Deemed to accrue or arise in india

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO. 2669/AHD/2013 (ASSESSMENT YEAR: 2009-10) SHRI SWAPNIL BHARAT SHAH 3-RIVER COLONY, OPP. ST. XAVIERS COLLEGE, NAVRANGPURA, AHMEDABAD 380009 APPELLANT VS. INCOME TAX OFFICER, WARD-10(4), AHMEDABAD RESPONDENT PAN: AKRPS3532Q /BY ASSESSEE : ARTI N. SHAH, A.R. /BY REVENUE : SHRI ROOPCHAND, SR. D.R. /DATE OF HEARING : 12.09.2017 /DATE OF PRONOUNCEMENT : 26.09.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 A RISES AGAINST THE CIT(A)-XVI, AHMEDABADS ORDER DATED OCTOBER 14 TH , 2013, IN CASE NO. CIT(A)- XVI/ITO/WD.10(4)/101/12-13, UPHOLDING PENALTY OF RS. 5,77,433/- IN RESPECT OF QUANTUM ADDITION OF UNEXPLAINED ADDITION BY WAY OF CASH DEPOSITED AMOUNTING ITA NO. 2669/AHD/13 (SHRI SWAPNIL B. SHAH VS. ITO) A.Y. 2009-10 - 2 - TO RS.95,55,500/- MADE IN ASSESSMENT ORDER DATED 05 .12.2011, IN PROCEEDINGS U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHOR T THE ACT. HEARD BOTH SIDES. CASE FILE PERUSED. 2. RELEVANT FACTS ARE IN A NARROW COMPASS. THIS ASS ESSEE IS ASSESSED AS AN INDIVIDUAL. HE DERIVES PROFIT AS A PARTNER IN FIRM S M/S. NATIONAL TEXTILES INDUSTRIES AND M/S. NATIONAL METAL CAST. HE ALSO E ARNS SPECULATION PROFIT AND INTEREST ON DEPOSITS. ASSESSEE FILED RETURN ON 30. 03.2010 STATING INCOME OF RS.1,81,290/-. THE SAME STOOD PROCESSED. THE ASSES SING OFFICER THEREAFTER FRAMED A REGULAR ASSESSMENT ADDING THE ABOVE CASH D EPOSITS IN HIS SAVINGS ACCOUNT MAINTAINED WITH ICICI BANK, BANK OF BARODA AND ORIENTAL BANK OF COMMERCE. THE PEAK THEREOF AS ON 21.03.2009 AMOUNTE D TO RS.19,55,500/- SUBMITTED AS ASSESSEES BEHEST WAS FOUND TO BE CORR ECT AS THERE WERE CORRESPONDING WITHDRAWALS ALSO INDICATED THEREIN. THE ASSESSING OFFICER THEREAFTER INITIATED THE IMPUGNED PENALTY PROCEEDIN GS U/S.271(1)(C) OF THE ACT ALLEGING CONCEALMENT AS WELL AS FURNISHING OF INACC URATE PARTICULARS OF INCOME. THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE SAI D QUANTUM ADDITION. 3. WE NOW ADVERT TO THE IMPUGNED PENALTY PROCEEDING S. THE ASSESSEE FILED HIS WRITTEN RESPONSE ON 01.12.2012 AND 28.05.2012 S TRONGLY CONTESTING THE PENALTY INTER ALIA ON THE GROUND THAT HE HAD DULY C O-OPERATED IN THE COURSE OF ASSESSMENT RESULTING IN NIL INCOME. HE ALSO QUOTED HIS EARLIER REPLY DATED 04.11.2011 DISPUTING TO HAVE CONCEALED ANY TAXABLE INCOME. THE ASSESSING OFFICER REJECTED THE SAME IN PENALTY ORDER DATED 29 .06.2012. HE QUOTED ABOVE QUANTUM FACT THAT THE ABOVE CASH DEPOSITS OF RS.25, 50,500/- WOULD NOT HAVE COME TO LIGHT EXCEPT FOR CASS SCRUTINY. HE THEREFO RE TREATED THE IMPUGNED INSTANCE TO BE THAT OF BOTH CONCEALMENT AS WELL AS FURNISHING OF INACCURATE PARTICULARS OF INCOME QUA THE PEAK QUANTUM ADDITION OF RS.19.55LACS (SUPRA) TO ITA NO. 2669/AHD/13 (SHRI SWAPNIL B. SHAH VS. ITO) A.Y. 2009-10 - 3 - LEVY THE PENALTY IN QUESTION OF RS.5,77,433/- AS UP HELD IN LOWER APPELLATE PROCEEDINGS. 4. WE HAVE HEARD BOTH THE PARTIES. LEARNED COUNSEL S FIRST ARGUMENT IS THAT THE ASSESSEE HAD CO-OPERATED/VOLUNTARILY SURRENDERE D THE CASH DEPOSITS IN QUESTION IN THE COURSE OF SCRUTINY. IT IS THEREFOR E NOT A CASE OF PRESSING INTO OPERATION THE IMPUGNED PENAL PROVISION U/S.271(1)(C ) OF THE ACT SINCE THE TOTAL INCOME ASSESSED READS NIL FIGURE. A FINE DISTINCTI ON THEREAFTER IS SOUGHT TO BE DRAWN BETWEEN QUANTUM AND PENAL PROCEEDINGS IN VIEW OF HONBLE APEX COURTS LANDMARK DECISION CIT VS. RELIANCE PETROPRODUCTS 322 ITR 158 (SC) THAT THE LATTER PENAL ACTION DOES NOT COME INTO PLAY IN EACH AND EVERY QUANTUM DISALLOWANCE/ADDITION. WE FIND NO MERIT IN ALL THE SE ARGUMENTS. THERE CAN HARDLY BE ANY DISPUTE ABOUT THE ABOVE JUDICIAL PREC EDENT. THE FACT HOWEVER REMAINS THAT WHAT AMOUNTS TO CONCEALMENT AS WELL AS FURNISHING OF INACCURATE PARTICULARS DEPENDS UPON THE RELEVANT CIRCUMSTANCES IN EACH AND EVERY CASE. IT IS NOT IN DISPUTE THAT THE ASSESSEE DID NOT TENDER ANY EXPLANATION AT ALL MUCH LESS A SATISFACTORY ONE AS ENVISAGED IN SECTION 271(1)(C ) OF THE ACT. FACTUAL POSITION IS VERY MUCH THE SAME IN QUANTUM PROCEEDINGS AS WEL L WHEREIN HE DID NOT FILE EVEN A SINGLE LETTER EXPLAINING SOURCE OF THE TOTAL CASH DEPOSITS. HONBLE APEX COURTS DECISION MAK DATA (P) LTD. VS. CIT 358 ITR 59 3 (SC) UPHOLDS HONBLE DELHI HIGH COURTS JUDGMENT RESTORING AN IDENTICAL PENALTY IN ABSENCE OF SUCH A TENABLE EXPLANATION. THE ASSESSEES FURTHER ARGUMEN T OF HAVING ASSESSED NIL INCOME IS ALSO WITHOUT ANY MERIT SINCE THE IMPUGNED DEEMED INCOME; ALTHOUGH IN THE NATURE OF UNEXPLAINED INVESTMENT ADDITION ST OOD MADE IN COURSE OF ASSESSMENT, THE FINAL ASSESSABLE INCOME READ NIL FI GURE ONLY AS THE ASSESSEE HAD DERIVATIVE LOSS TO BE ADJUSTED AT RS.23,13,863/-. THE SAME HOWEVER DOES NOT ABSOLVE HIM FROM THE IMPUGNED PENAL CONSEQUENCE SIN CE ARISING ON STANDALONE BASIS ONLY. WE THEREFORE SEE NO REASON TO INTERFERE WITH ITA NO. 2669/AHD/13 (SHRI SWAPNIL B. SHAH VS. ITO) A.Y. 2009-10 - 4 - BOTH THE LOWER AUTHORITIES CONCLUSION IMPOSING THE IMPUGNED PENALTY. SAME IS THEREFORE CONFIRMED. 5. THIS ASSESSEES APPEAL IS ACCORDINGLY DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 26 TH DAY OF SEPTEMBER, 2017.] SD/- SD/- (PRAMOD KUMAR) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL M EMBER AHMEDABAD: DATED 26/09/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0