Shri Tejas Prafulbhai Jolapara, Ahmedabad V. The Income Tax Officer, Ward-5(1)(4), ( Old Ward-15(3)), Ahmedabad

ITA 2782/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9250 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 05-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L SHARMAS
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2782/AHD/2015 (ASSESSMENT YEAR: 2011-12) TEJAS PRAFULBHAI JOLAPARA 76,HOGIRAJ BUNGALOWS, NEAR M.B. PATEL FIRM, JASODANAGAR CHOWKEY, GODASAR, AHMEDABAD- 382445 V/S INCOME TAX OFFICER, W ARD- 5(1) (4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AGXPJ5373J APPELLANT BY : SHRI PRITESH SHAH, AR RESPONDENT BY : SHRI B.L. SHARMAS, SR. D.R. ( )/ ORDER DATE OF HEARING : 10 -03-201 6 DATE OF PRONOUNCEMENT : 14 -03-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A)-7, AHMEDABAD DATED 23.07.20 15 PERTAINING TO A.Y. 2011-12. ITA NO. 2782 /AHD/2015 . A.Y. 2011-12 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 10,31,283/- IMPOSED B Y THE A.O U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 20.12.2013 MADE U/S. 143(3) OF THE ACT. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND ON THE BASIS OF AIR INFO RMATION, THE ASSESSEE WAS ASKED TO EXPLAIN THE CASH DEPOSITED IN HIS SAVINGS BANK A/C. AMOUNTING TO RS. 35,90,000/- . 4. IN HIS REPLY, THE ASSESSEE CLAIMED THAT HE HAS BORR OWED MONEY FROM HIS AGRICULTURIST FRIEND TO REPAY THE LOAN TAKEN FR OM HIS EMPLOYER. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF THE P ERSONS FROM WHOM HE HAS BORROWED THE MONEY IN RESPONSE TO WHICH THE ASSESSEE GAVE A WRITTEN SUBMISSION DATED 16.12.2013 WHICH READ AS U NDER:- HOWEVER, AS PER COUNTER INFORMATION CALLED FROM A LL THE PERSONS U/S. 133(6) FROM YOUR SIDE IT SEEMS THAT, THE SAME DO NO T PROVIDE YOU WITH SUFFICIENT APPROPRIATE DETAILS SO AS TO SUSTAIN OUR CLAIM THAT, THE CASH DEPOSIT IS ACTUALLY AMOUNT TAKEN FROM OUR CLOSE AGR ICULTURIST FRIENDS FOR THE SPECIFIC PURPOSE AND IN THE NEED OF URGENCY, RE SULTING INTO CONSEQUENCES THAT THE SAME WILL BE TREATED AS OUR I NCOME, WHICH WE BELIEVE IS MOST UNFORTUNATE THINGS HAPPEN IN SPITE OF OUR ALL EFFORTS TO PROVIDE NECESSARY DETAILS. HENCE FOR THE PIECE OF OUR MIND AND IN THE BEST INTEREST OF OUR OWN CASE, WE FEELS THAT WE DO NOT MIND THE SAME WILL BE TREATED AS OUR INCOME IN ADDITION TO OUR AL READY DECLARED INCOME IN THE INCOME TAX RETURN FILED FOR A.Y. 2011 -12. BESIDES, WE DO HOPE THAT YOU WILL CONSIDER OUR CO-OPERATION DURING THE ASSESSMENT PROCEEDINGS AND GRANT THE IMMUNITY FROM INTEREST AN D PENALTY. ITA NO. 2782 /AHD/2015 . A.Y. 2011-12 3 5. ON THE BASIS OF THIS ADMISSION, THE A.O TREATED RS. 35,90,000/- AS INCOME OF THE ASSESSEE AND INITIATED PENALTY PROCEE DINGS U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PART ICULARS OF INCOME. 6. DURING THE COURSE OF THE PENALTY PROCEEDINGS, THE A SSESSEE WAS ASKED TO SHOW CAUSE WHY PENALTY SHOULD NOT BE LEVIED U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME . IN RESPONSE TO THIS NOTICE, THE ASSESSEE FILED A DETAILED REPLY CHALLEN GING THE VALIDITY OF THE NOTICE AND ALSO CLAIMING THAT HE HAS VOLUNTARIL Y ACCEPTED THE ADDITION TO BY MENTAL PEACE TO AVOID LITIGATION AND WITH CONDITION THAT NO PENALTY BE INITIATED. THE ASSESSEE FURTHER STATE D THAT NO SATISFACTION IS RECORDED IN THE ASSESSMENT ORDER FOR LEVYING PEN ALTY. THE EXPLANATIONS OF THE ASSESSEE WERE NOT ACCEPTED BY T HE A.O WHO WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND WILLFULLY TRIED TO EVADE THE TAX LIAB ILITY AND ACCORDINGLY LEVIED PENALTY OF RS. 10,31,283/-. 7. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. BEFORE US, THE LD. COUNSEL FOR THE ASSESSE E REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. STRON G RELIANCE WAS PLACED ON THE DECISION OF THE TRIBUNAL AHMEDABAD BE NCH IN THE CASE OF MANISH ORGANICS INDIA LTD. 17 TAXMAN.COM 25. PER C ONTRA, THE LD. D.R. STRONGLY SUPPORTED THE FINDINGS OF THE REVENUE AUTHORITIES. 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO TH E ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED THE JUDI CIAL DECISION RELIED UPON BY THE COUNSEL. ITA NO. 2782 /AHD/2015 . A.Y. 2011-12 4 9. THE UNDISPUTED FACT IS THAT THE ASSESSEE WAS FOUND TO HAVE DEPOSITED CASH AMOUNTING TO RS. 35,90,000/- IN HIS SAVINGS BANK A/C. WHEN QUESTIONED THE ASSESSEE STATED THAT HE HAS BOR ROWED MONEY FROM HIS AGRICULTURIST FRIENDS. HOWEVER, NO DOCUMEN TARY EVIDENCES WERE FURNISHED IN SUPPORT OF THIS CLAIM IN THE LIGH T OF THE PROVISIONS OF SECTION 68 OF THE ACT. 10. EVEN AFTER GETTING SUFFICIENT OPPORTUNITY FROM THE A.O, THE ASSESSEE PREFERRED TO ACCEPT RS. 35.90 LACS AS HIS INCOME ON THE PRETEXT OF AVOIDING LITIGATION AND TO PURCHASE PEAC E OF MIND. AS IS EVIDENT FROM THE RELEVANT EXTRACT OF ASSESSEES ADM ISSION MENTIONED AT PARA 4 OF THIS ORDER. 11. RELIANCE ON THE DECISION OF THE TRIBUNAL AHMEDABA D, BENCH IS OF NO AVAIL AS THE RATIO LAID DOWN BY THE HONBLE S UPREME COURT IN THE CASE OF MAK DATA P. LTD. 358 ITR 593 SQUARELY APPLY ON THE FACTS OF THE CASE. 12. IT IS A SETTLED PROPOSITION OF LAW THAT PENAL PROCE EDINGS ARE SEPARATE FROM THE ASSESSMENT PROCEEDINGS AND THE AS SESSEE CAN ADDUCE EVIDENCES IN SUPPORT OF HIS CONTENTION. HOWE VER, EVEN DURING THE COURSE OF THE PENALTY PROCEEDINGS, THE ASSESSEE HAS NOT BROUGHT ANY DEMONSTRATIVE EVIDENCE ON RECORD TO PROVE THAT HE HAS ACTUALLY BORROWED MONEY FROM HIS AGRICULTURIST FRIEND. THE C LAIM OF THE ASSESSEE THAT HE HAS BORROWED MONEY TO REPAY THE LO AN TAKEN FROM THE EMPLOYER ALSO DOES NOT HOLD ANY WATER BECAUSE T HE LOAN IS OF RS. 19,06,250/- AND THE ASSESSEE IS FOUND TO HAVE DEPOS ITED CASH OF RS. 35,90,000/-. ITA NO. 2782 /AHD/2015 . A.Y. 2011-12 5 13. IF THE ASSESSEE RETURN WAS NOT SELECTED FOR SC RUTINY ASSESSMENT, THE CASH DEPOSITED IN THE BANK WOULD HAVE GONE UNNO TICED BY THE REVENUE AUTHORITIES. AS THE ASSESSEE HAS NOT DISCLO SED THE SAID BANK ACCOUNT IN HIS RETURN OF INCOME. THUS, CONSIDERING THE FACTS FROM ALL POSSIBLE ANGLES, WE DO NOT FIND ANY ERROR OR INFIRM ITY IN THE FINDINGS OF THE LD. CIT(A). WE ACCORDINGLY UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY; APPEAL FILED BY THE ASSESSEE IS ACCORDIN GLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 14 - 03 - 2016 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD