Mr. Ashok M. Kulkarni., Belgaum V. Income Tax Officer, Ward-2, Bijapur., Bijapur

ITA 284/PAN/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93551 (ITAT-PANAJI)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B BALAKRISHNA
• Assessee Lawyers: ASHOK M KULKARNI
• Keywords: Onus to prove; Condonation of delay
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 28 4 /PNJ/201 4 (ASST. YEAR : 200 8 - 0 9 ) SHRI ASHOK M. KULKARNI, DEVELOPMENT OFFICER, LIC OF INDIA, CONGRESS ROAD, TILAKAWADI, BELGAUM. VS. ITO , WARD - 2, B IJAPUR . PAN NO. ACQPK 0719 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHOK M. KULKARNI A SSESSEE . DEPARTMENT BY : SHRI B. BALAKRISHNA - D.R. DATE OF HEARING : 08 / 0 7 /2015 . DATE OF PRONOUNCEMENT : 08 / 0 7 /201 5 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF L D.CIT(A), BELGAUM DATED 0 3 /0 3 /201 4 . 2. THIS APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION BY 2 DAYS. THE ASSESSEE HAS FILED A CONDONATION APPLICATION R EQUESTIN G FOR CONDONATION OF DE L A Y. LEARNED DR HAS NO OBJECTION TO THE CONDONATION OF DELAY IN FILING THE APPEAL BY THE ASSESSEE. WE FIND THAT THE REASONS GIVEN FOR DELAY IN FILING THE APPEAL BY THE ASSESSEE ARE REASONABLE, HENCE, WE CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSESSEE A ND ADMIT THE APPEAL FOR HEARING. 2 ITA NO. 284 /PNJ/2014 3. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.2,83,791/ - BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 . 4 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE PENALTY U/S.271(1)(C) OF THE ACT OF RS. 2,83,791/ - CAME TO BE LEVIED IN THE CASE OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE , A DEVELOPMENT OFFICER IN LIC OF INDIA , HAD FILED THE RETURN OF INCOME WITH ITO, WARD - 2, BIJAPUR FOR THE A.Y. 2008 - 09 ON 26/03/2009 SHOWING INCOME OF RS. 3,00,400/ - AND CLAIMING REFUND OF RS. 96,490/ - WHICH WAS PROCESSED BY THE ASSESSING OFFICER AND REFUND OF RS. 96,490/ - WAS ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER SUBSEQUENTLY FOUND THAT THE ASSESSEE HAD FILED RETURN OF INCOME WITH ITO, WARD - 1(3), BELGAUM FOR THE A.Y. 2008 - 09 ON 23/03/2009 SHOWING INCOME AT RS. 4,95,710/ - AND CLAIMING REFUND OF RS. 34,250/ - . THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE HAD DEL I B E RATELY FURNISHED FALSE AND INACCURATE PARTICULARS OF HIS INCOME WITH AN INTENTION TO DEFRAUD THE REVENUE AND TO MAKE ILLEGAL GAIN OUT OF THE PUBLIC REVENUE AND LEVIED PENALTY FOR THE MA XIMUM AMOUNT OF RS. 2,83,791/ - . 5 . ON APPEAL, LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY OBSERVING THAT HAD THE ASSESSING OFFICER NOT RECEIVED INFORMATION REGARDING ASSESSEE HAVING FILED TWO ORIGINAL RETURNS OF INCOME CLAIMING EXCESSIVE AND WRONG DEDUCTIONS, THE DISCREPANCIES WOULD NOT HAVE BEEN DETECTED AND THE ASSESSEE WOULD HAVE GOT AWAY WITH THE CONCEALMENT OF INCOME AND HE WOULD HAVE ENJOYED THE WRONGFUL LY CLAIMED REFUNDS . HE OBSERVED THAT THE PLEA OF THE ASSESSEE THAT HE HAD PROVIDED ALL THE INFORMATION SOUGHT AND SOME OTHER PERSON HAD PLAYED THE MISCHIEF BY FILING RETURNS IN HIS NAME WITHOUT HIS KNOWLEDGE AND THEREFORE PENALTY PROCEEDINGS MAY BE CANCELLED IS NOT 3 ITA NO. 284 /PNJ/2014 ACCEPTA BLE SINCE IT DOES NOT ABSOLVE THE ASSESSEE FROM THE CHARGE OF FURNISHING INACCURATE PARTICULARS AND THE ASSESSEE HAS FAILED TO PROVE THAT HIS EXPLANATION IS BONAFIDE. 6 . BEFORE US , LEARNED AR OF THE ASSESSEE IN THE PAPER BOOK AT PAGE NOS. 20 - 30 HAS FILED A COPY OF E XPERT O PINION FROM FORENSIC SCIENCE DEPARTMENT , PUNE DATED 17/03/2015 WHERE IN THEY HAVE OPINED THAT T HE QUESTIONED SIGNATURE SAMPLE MARKED AS (Q - 1) SEEMS THAT HAS NOT BEEN WRITTEN BY THE SAME WRITER WHO HAVE WRITTEN THE ADMITTED SIGNATURE SAMPLE MARKED AS (S - 1) OR VICE VERSA. . THUS, WITH THIS EVIDENCE THE CONTENTION OF THE ASSESSEE IS THAT THE RETURN OF INCOME FILED WITH ITO, WARD - 2, BIJAPUR SHOWING THE INCOME AT RS. 3,00,400/ - AND REFUND OF RS. 96,490/ - WAS NOT FILED BY HIM, BUT SOME OTHER PERSON AND THE SAME WAS NOT SIGNED BY HIM. FURTHER IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS REFUNDED THE SUM OF RS. 96,490/ - TOGETHER WITH INTEREST OF RS. 3,858/ - TOTALLING TO RS. 1,00,348/ - ON 07/03/2010. W E F I N D T H A T T H E HONBLE D E L H I HIGH COURT I N T H E C A S E O F CIT , D E L H I - I I VS. N A R A N G & C O . R E P O R T E D I N 9 8 ITR 4 6 2 ( D E L H I ) H A S H E L D A S U N D E R : - S E C T I O N 271 ( 1 ) IS NOT ONLY PENAL OR QUASI - CRIMINAL IN NATURE, BUT DEPARTS FROM THE NORMAL WELL - ESTABLISHED RULE WHICH WOULD TH ROW THE BURDEN OF PROOF ON THE R EVENUE TO ESTABLISH THAT THE ASSESSEE HAD CONSCIOUSLY CONCEALED THE PARTICULARS OF HIS INCOME OR DELIBERATELY FURNISHED INACCURATE PARTICULARS IN RESPECT THEREOF. THE ONUS OF PROOF, O N T H E O T H E R H A N D , H A S B E E N P L A C E D B Y T H E E X P L A N A T I O N T O S E C T I O N 2 7 1 ( 1 ) O N T H E ASSESSEE , WHO IS REQUIRED TO PROVE THE NEGATIVE, THAT IS, THE ABSENCE OF FRAUD OR GROSS OR WILFUL NEGLECT ON HIS PART. THE ASSESSEE IS TO BE AFFORDED AN OPPORTUNITY TO FURNISH THIS PROOF. HE WOULD, IN THESE PECULIAR CIRCUMSTANCES, BE TAKEN TO HAVE DISCHARGED THE ONUS, IF HE, IN THE ABSENCE OF ANY PROOF TO THE CONTRA RY, CAN RAISE PROBABILITIES IN HIS FAVOUR OR POINT OUT CIRCUMSTANCES WHICH CAN CREATE DOUBTS, THE BENEFIT OF WHICH CAN BE GIVEN TO HIM. 7 . THUS, WE FIND THAT THE FORENSIC SCIENCE DEPARTMENTS OPINION THAT THE SIGNATURE ON THE RETURN FILED WITH ITO, WARD - 2, BIJAPUR IS NOT BY THE ASSESSEE R A I S E P R O B A B I L I T I E S I N H I S F A V O U R O R P O I N T O U T C I R C U M S T A N C E S W H I C H C A N C R E A T E D O U B T AND , THEREFORE , WE ARE OF THE CONSIDERED OPINION 4 ITA NO. 284 /PNJ/2014 THAT THE ASSESSEE IS NOT E X I G I B L E FOR LEVY OF PENALTY OF RS. 2,83,791/ - U/S. 271(1)(C) OF THE ACT. WE THEREFORE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DELETE THE LEVY OF PENALTY OF RS. 2,83,791/ - AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON W EDNESDAY, THE 08 TH DAY OF JULY , 201 5 AT GOA . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 08 TH JU LY , 201 5 . VR/ - COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD.CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 5 ITA NO. 284 /PNJ/2014 DATE INITIAL ORIGINAL DICTATION PAD IS ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 08 .0 7 .2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 0 9 .07 .2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 0 9 /07 /2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 0 9 /0 7 /2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 9 /07 /2015 SR.PS 6. DATE OF PRONOUNCEMENT 08 /0 7 /2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 09 /07 /2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER