Smt. Alpa Nitinkumar Shah, Ahmedabad V. The Income Tax Officer, Ward-11(1), Now Ward-5(3)(1), Ahmedabad

ITA 2671/AHD/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2376 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 21-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIV SEWAK
• Assessee Lawyers: S N SHAH
• Section: 142(1); 27; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2671 AND 2672/AHD/2015 /BLOCK ASSTT. YEAR: 2005-2006 AND 2006-2007 ALPA NITINKUMAR SHAH B/11, PRATIKSHAH APARTMENT NR. LAXMIVARDHAK JAIN MANDIR SHANTIVAN, PALDI AHMEDABAD 380007. PAN : ARKPS 1166 J. VS ITO, WARD-11(1) (NOW ITO WARD- 5(3)(1) AHMEDABAD. %& / (APPELLANT) '( %& / (RESPONDENT) ASSESSEE BY : SHRI S.N.SHAH REVENUE BY : SHRI SHIV SEWAK, SR.DR / DATE OF HEARING : 13/01/2016 / DATE OF PRONOUNCEMENT: 18/01/2016 )*/ O R D E R THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAIN ST TWO SEPARATE ORDERS LD. CIT(A), AHMEDABAD-5 OF EVEN DATED 23.7.2 015 PASSED FOR THE ASSTT.YEAR 2005-06 AND 2006-07. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.60,000/- IN EACH ASSES SMENT YEAR IMPOSED BY THE AO UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT. 3. BRIEF FACTS OF THE CASE IN A.Y.2005-06 ARE THAT THE AO HAS RECEIVED INFORMATION THAT IN THE BANK ACCOUNT NO.20101010001 8723 WITH BANK OF INDIA A SUM OF RS.45,25,600/- WAS DEPOSITED. THIS ACCOUN T WAS OPENED IN THE NAME ITA NO.2671 AND 2672/AHD/2015 2 OF THE ASSESSEE. THEREFORE, THE LD.AO HAS ISSUED N OTICE UNDER SECTION 148 ON THE BASIS OF AIR INFORMATION. ACCORDING TO THE AO, THE NOTICE WAS DULY SERVED UPON THE ASSESSEE, BUT SHE DID NOT APPEAR BE FORE HIM. THE LD.AO, THEREAFTER, ISSUED NOTICE UNDER SECTION 142(1) ON 3 .9.2012, BUT AGAIN THIS NOTICE WAS NOT ATTENDED. THE LD.AO HAS REPRODUCED THE DETAILS OF NOTICE ISSUED TO THE ASSESSEE IN PARA-3 OF THE PENALTY NOT ICE. ACCORDING TO HIM, THESE NOTICES WERE ISSUED WHICH REMAINED UN-COMPLIED WITH , THEREFORE, HE IMPOSED PENALTY OF RS.60,000/-. APPEAL TO THE CIT(A) DID N OT BRING ANY RELIEF TO THE ASSESSEE. 4. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT TWO ACCOUNTS WERE BEING OPENED IN THE NAME OF ASSESSEE AND HER HUSBAND BY UNKNOWN PERSON, MISUSING IDENTITIES, WHICH WERE PRO VIDED TO SOMEONE, MUST BE FOR SOME OTHER REASONS. THE ASSESSEE HAS NEVER DEPOSITED ANY MONEY IN THE BANK ACCOUNT. THE ALLEGED BANK ACCOUNT HAS BEE N MISUSED BY SOME UNKNOWN PERSON. WHEN A NOTICE UNDER SECTION 148 OF THE ACT WAS RECEIVED BY HER, THEN HER HUSBAND PAID VISIT TO THE OFFICE O F THE ITO. HIS ATTENDANCE WAS NOT NOTED, RATHER HE WAS APPRISED TO COLLECT IN FORMATION FROM THE BANK AND OTHER DETAILS DISCLOSING THE SOURCE OF RS.42,25 ,600/-. SINCE THE ASSESSEE HAS NEVER OPENED ANY ACCOUNT, NOR MADE ANY DEPOSIT, THEREFORE, SHE DID NOT TAKE IT SERIOUSLY. HER HUSBAND HAS BEEN APPEARING IN HIS CASE, BUT ATTENDANCE IN THE CASE OF THE ASSESSEE WAS NOT MARKED. WHEN T HE ASSESSMENT ORDER WAS PASSED, THEN THE ASSESSEE REALIZED COMPLICITY. SHE FILED A POLICE COMPLAINT AGAINST THE BANK OFFICIALS AND UNKNOWN PERSONS ALLE GING THIS FRAUD. SHE HAS FILED APPLICATION UNDER RTI ACT ALSO, DEMANDING THE COPIES OF ACCOUNT OPENING FORM, DETAILS OF INTRODUCERS, DETAILS OF TH E BANK OFFICIALS, COMPLETE DETAILS OF BANK STATEMENT ETC. THE COPIES OF PAY-I N-SLIPS OF DEPOSIT MADE IN THE ACCOUNT. THE BANK DID NOT PROVIDE THESE COPIES ON THE GROUND THAT SINCE THE ASSESSEE HAS DENIED THE OWNERSHIP OF THE ACCOUN T, THEREFORE, THE ITA NO.2671 AND 2672/AHD/2015 3 INFORMATION WOULD BECOME INFORMATION RELATED TO THI RD PERSON. IN THIS WAY, THE ASSESSEE HAS BEEN TAKING ON THE LITIGATION ON D IFFERENT FRONTS. SHE HAS FILED THE APPEAL BEFORE THE CIT(A) AGAINST THE ADDI TION. 5. FACTS IN THE ASSTT.YEAR 2006-07 ARE SIMILAR TO T HE FACTS IN THE ASSTT.YEAR 2005-06. ONLY DIFFERENCE IS THAT, IN TH IS YEAR A SUM OF RS.29 LAKHS WAS TRANSACTED IN THE ABOVE BANK ACCOUNT. OTHER DE TAILS I.E. DATE OF NOTICE, ETC. ARE SAME. ON THE STRENGTH OF THESE FACTS, LD . COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE HAS BECOME VICTIM OF CI RCUMSTANCES, OTHERWISE, SHE HAS NO INTENTION TO AVOID INCOME-TAX PROCEEDING S. 6. THE LD.DR, ON THE OTHER HAND, CONTENDED THAT THE ASSESSEE HAS RECEIVED THESE NOTICES IN A ROW. SHE COULD INQUIRE WITH THE AO AS TO WHY HE HAS BEEN SENDING NOTICES TIME AND AGAIN TO THE ASSESSEE. SH E FAILED TO COMPLY WITH THE STATUTORY NOTICE, THEREFORE, PENALTY IMPOSED UPON H ER IS JUSTIFIABLE. 7. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. NO DOUBT WHEN AN ASSESSEE RECEIVES NOTI CES FROM AUTHORITY, IT IS HIS DUTY TO RESPOND THOSE NOTICES. IF THE NOTICES REMA INED UN-COMPLIED WITH, THEN LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT WOULD BE JUSTIFIABLE. BUT IN THE PRESENT CASE, LOOKING INTO TOTALITY OF THE CIRC UMSTANCES, THEN THE ASSESSEE DESERVES TO BE ABSOLVED FROM THE PENALTY. THE REAS ON IS, WHENEVER, A SHOW CAUSE NOTICE IS BEING ISSUED TO LAYMAN, WHO WAS NOT FILING INCOME TAX RETURN, AND WHO HAS NO SOURCE OF SUCH INCOME, THEN HIS RE-A CTION WOULD BE TO ASCERTAIN THE INGREDIENTS OF THE NOTICE AND TO VERI FY THE FACTS IN WHOSE CONNECTION SUCH NOTICES MIGHT HAVE BEEN GIVEN. THE MOMENT REALIZING THE BANK ACCOUNT IN WHICH THE AMOUNTS HAVE BEEN STATED TO BE DEPOSITED IS VERIFIED, THEN THAT PERSON WOULD HARBOR A BELIEF TH AT I HAVE NEVER OPENED THIS AMOUNT NOR TRANSACTED THE ACCOUNTS. IN SUCH SITUAT ION, IT MUST HAVE BEEN ISSUED TO HIM UNDER SOME WRONG IMPRESSION OR COMMUN ICATION GAP. ITA NO.2671 AND 2672/AHD/2015 4 PROBABLY, THIS TYPE OF FACTS MIGHT HAVE OPERATED IN THE MIND OF THE ASSESSEE IN NOT RESPONDING TO THE NOTICE. ONCE THE ASSESSMENT ORDER HAS BEEN PASSED, SHE HAS BEEN TRYING HER BEST TO COLLECT ALL THE INFORMA TION AND TO GET HERSELF ABSOLVED FROM THE TAX LIABILITY, WHICH IS QUITE HUG E, WHEN COMPARED TO HER FINANCIAL STATURE. IN TWO YEARS, ADDITIONS OF MOR E THAN RS.74 LAKHS HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. SHE HAS ALREADY FILED APPEAL BEFORE THE CIT(A) AND TRYING TO GET HERSELF ABSOLVED FROM TAX LIABILITY OF THIS HUGE AMOUNT. THE PROTRACTED LITIGATION SHE HAS BEEN PUT , IF IT IS ESTABLISHED THAT ACCOUNTS HAVE BEEN OPENED BY MIS-PRESENTING THE IDE NTITY OF THE ASSESSEE, THEN, TO GET OUT OF LITIGATION, IN ITSELF, IS BIG P UNISHMENT FOR THE ASSESSEE. THEREFORE, IN MY OPINION, IN THE PRESENT CIRCUMSTAN CES, THE ASSESSEE DOES NOT DESERVE TO BE VISITED WITH PENALTY UNDER SECTION 27 1(1)(B) OF THE INCOME TAX ACT. I ALLOW THE APPEALS OF THE ASSESSEE AND DELET E THE PENALTY IN BOTH YEARS. 8. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 18 TH JANUARY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER