SMT. SONU KHANDELWAL, JAIPUR V. INCOME TAX OFFICER, WARD-2-3, JAIPUR

ITA 275/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7781 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA J DHK
• Assessee Lawyers: SHIVANI SAMDHANI
• Section: 271(1)(c); 273B; 13; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH A , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE : SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 275/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. SONU KHANDELWAL C-15, CHOMU HOUSE JAIPUR CUKE VS. THE ITO WARD- 2 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHEPK 3168 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MS. SHIVANI SAMDHANI, CA JKTLO DH VKSJ LS@ REVENUE BY : MS.CHANCHAL MEENA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/01/2020 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /01/2020 VKNS'K@ ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A) -1, JAIPUR DATED 16-01-2019 ARISING FROM TH E ORDER PASSED U/S 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR 2008-0 9. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE AO HAS ERRED IN IMPOSING PENALTY WITHOUT SPECIFICAL LY POINTING OUT IN SHOW CAUSE NOTICE WHETHER THE PENALTY WAS IMPOSED O N CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ACTION OF THE AO IS ILLEGAL, UNJUSTIFIE D, ARBITRARY AND ITA NO.275/JP/2019 SMT. SONU KHANDELWAL VS ITO , WARD- 2(3), JAIPUR 2 AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE PENALTY PROCEEDINGS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF TH E AO IN IMPOSING PENALTY OF RS. 20,506/- U/S 271(1)(C) OF THE I.T. A CT, 1961. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRAR Y AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETI NG THE PENALTY OF RS. 20,506/- 2.1 GROUND NO. 1 OF THE ASSESSEE IS REGARDING VALID ITY OF INITIATION OF PROCEEDINGS U/S 271(1) OF THE ACT 2.2 AT THE TIME OF HEARING, THE LD.AR OF THE ASSESS EE STATED AT BAR THAT HE DOES NOT WANT TO PRESS THE GROUND NO. 1 OF THE A PPEAL AND THE SAME MAY BE DISMISSED AS NOT PRESSED FOR WHICH THE LD. D R HAS NO OBJECTION. HENCE, THE GROUND NO. 1 OF THE ASSESSEE IS DISMISSE D BEING NOT PRESSED BY THE LD.AR OF THE ASSESSEE. 2.3 THE GROUND NO. 2 OF THE ASSESSEE IS REGARDING L EVY OF PENALTY OF RS. 20,506/- ON ACCOUNT OF ADDITION OF RS. 57,000/ MADE U/S 68 OF THE ACT. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE ADDITI ON OF RS. 57,000/- WAS MADE BY THE AO U/S 68 OF THE ACT ON ACCOUNT OF UNSE CURED LOANS. 2.4 WE HAVE HEARD THE LD.AR AND LD. DR AND ALSO CON SIDERED THE RELEVANT MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE AO NOTED THAT THE ASSESSEE HAS TAKE N THE UNSECURED LOANS TO THE TUNE OF RS.25,35,412/- COMPRISING OF PRINCIP AL AMOUNT OF RS. ITA NO.275/JP/2019 SMT. SONU KHANDELWAL VS ITO , WARD- 2(3), JAIPUR 3 22,00,800/- AND INTEREST AMOUNT OF RS. 3,34,612/-. THE AO WHILE COMPLETING THE ASSESSMENT HAS MADE THE ADDITION OF RS. 57,000/- U/S 68 OF THE ACT ON ACCOUNT OF UNSECURED LOANS OUT OF TOTAL AMOUNT OF RS. 22,00,800/-. THUS THE AO HELD THAT THE ASSESSEE H AS FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE C REDITORS. THIS ADDITION WAS CONFIRMED UPTO THE STAGE OF TRIBUNAL IN THE QU ANTUM PROCEEDINGS. NOW THE QUESTION ARISES AS TO WHETHER THE ADDITION MADE BY THE AO U/S 68 OF THE ACT WOULD IPSO FACTO AMOUNT TO FURNISHING TH E INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE TO ATTRACT TH E PENALTY PROCEEDINGS U/S 271(1) OF THE ACT . IT IS PERTINENT TO NOTE TH AT THE ASSESSMENT ORDER IS A RELEVANT MATERIAL FOR THE PURPOSE OF PENALTY U/S 271(1) OF THE ACT, HOWEVER, THE ADDITION MADE IN THE ASSESSMENT PROCEE DING WOULD NOT IPSO FACTO LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS OF INCOME OR CONCEALED THE PARTICULARS OF INCOME. THE ADDITION U/S 68 OF THE ACT HAS BEEN MADE WHEN THE A O FOUND THE EXPLANATION OF THE ASSESSEE AS NOT SATISFACTORY AND THEREFORE, IT IS ONLY WHEN THE ASSESSEE FAILED TO DISCHARGE HER ONUS AS REQUIRED U/S 68 OF THE ACT BUT THE SAID FAILURE OF THE ASSESSEE WOULD NOT MEAN THAT THE EXPLANATION OF THE ASSESSEE IS FALSE OR NOT BONA FI DE. ONCE THE ASSESSEE HAS PRODUCED THE CONFIRMATIONS FROM THE THREE PARTI ES AS INDICATED IN THE ITA NO.275/JP/2019 SMT. SONU KHANDELWAL VS ITO , WARD- 2(3), JAIPUR 4 ASSESSMENT ORDER IN RESPECT OF THIS AMOUNT OF RS. 5 7,000/- AND FURTHER THE ADDITION WAS MADE BY THE AO ONLY FOR THE SAME AMOUN T OF RS. 57,000/- OUT OF TOTAL UNSECURED LOANS OF RS. 22,00,800/-, WE FIND THAT THESE FACTS STAND CLEARLY ESTABLISHED THAT THE EXPLANATION FURN ISHED BY THE ASSESSEE WAS REASONABLE AND BONA FIDE, THOUGH IT WAS NOT FOU ND TO BE SATISFACTORY BY THE AO. THUS IN VIEW OF THE PROVISIONS OF SECTIO N 273B OF THE ACT, THE PENALTY LEVIED BY THE AO IS NOT SUSTAINABLE AND THE SAME IS DELETED. THUS THE GROUND NO. 2 OF THE ASSESSEE IS ALLOWED 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 13 /01 /2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/01/ 2020 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SONU KHANDELWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(3), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.275/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR