The ITO,Vapi Ward-4, Nani Daman V. Shri Ritesh Ramesh Contractor, Nani Daman

ITA 2851/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5893 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , AHMEDABAD , SURAT CAMP BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH , ACCOUNTANT MEMBER ./ ITA.NO. 2851 / AHD /201 4 / ASSTT. YEAR: 2009 - 2010 INCOME TAX OFFICER , VAPI WARD - 4 DAMAN - 396210 . VS . SHRI RITESH RAMESH CONTRACTOR, 535/14, NEAR SAI KRIPA - I, NR.OLD POLICE QUARTERS, KATHIRIA, NANI DAMAN - 396210. PAN NO.AFRPC0242G (APPLICANT) (RESPONENT) REVENUE BY : SHRI ASHISH POPHARE , SR.DR ASSESSEE BY : SHRI RAJESH UPADHYAY , AR / DATE OF HEARING : 28 / 04 / 201 7 / DATE OF PRONOUNCEMENT: 17 / 05 /201 7 / O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER : PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE L D.CIT(A), VAL S AD DATED 18.01.2013 PASSED FOR THE ASSTT.YEAR 2009 - 10 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY U/S. 271(L)(C) OF THE ACT LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME, ON ACCOUNT OF ADDITION MADE UNDER THE HEAD UNEXPLAINED CASH CREDIT OF RS.25,51,907/ - . 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY U/S. 271(L)(C) OF THE ACT LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME ON ACCOUNT OF ADDITION MADE UNDER THE HEAD SUNDRY CREDITORS AND SUNDRY DEBTORS O F RS.77,520/ - . ITA NO. 2851 /AHD/201 4 ASSTT. YEAR2009 - 10 2 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY U/S. 271(L)(C) OF THE ACT LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME, ON ACCOUNT OF ADDITION MADE UNDER THE HEAD REFUND ON COMMISSION OF RS.1,50,794/ - . 4) IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEARNED CIT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5) THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ANY GROUNDS OF APPEAL. 2. IN THIS CASE RETURN O F INCOME DECLARING TOTAL INCOME OF RS.2,94,520/ - WAS FILED ON 12/10 /2009 . THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S .143(3) OF THE ACT ON 23/08/2010. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS VERIFIED THE BANK STATEM ENT SUBMITTED BY THE ASSESSEE OF BANK ACCOUNT NO.0456015022792 MAINTAINED WITH ICICI BANK AND ACCOUNT NO.66007780708 MAINTAINED WITH STATE BANK OF INDIA NANI DAMAN. FIRSTLY, FROM VERIFICATION THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS DEPOSITED CASH ON VARIOUS DATES AMOUNTING TO RS.18,13,500/ - AND RS.7,38,407/ - RESPECTIVELY DURING THE YEAR UNDER CONSIDERATION. T HE ASSESSEE HAS NOT ATTENDED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS . T HEREFORE , THE AS SESSING OFFICER ADDED THE AMOUNT OF RS.25,51,907/ - TO THE TOTAL INCOME OF THE ASSESSEE AND INITIATED PENALTY U/S. 271(1)(C) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSING OFFICER HAS ALSO NOTICED THAT ASSESSEE HAS SHOWN S UN DRY CREDITORS OF RS.41,050/ - AND SUNDRY DEBTORS OF RS.36,470/ - RESPECTIVELY . THE ASSESSEE WAS ASKED TO FURNISH THE CREDITWORTHINESS AND GENUINENESS OF SUNDRY CREDITORS AND SUNDRY DEBTORS BUT THE ASSESSEE FAILED TO MA K E ANY COMPLIANCE . T HEREFORE , THE ASSESSING OFFICE R DISALLOWED THE CLAIM OF THE SUNDRY CREDITORS AND SUNDRY DEBTORS AMOUNTING TO RS.77,520/ - AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ASSESSING OFFICER HAS ALSO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT BY STATING THAT ASSESSEE HAS CONCEA LED HIS INCOME AND HAS SHOWN INACCURATE PARTICULARS OF INCOME. FURTHER DURING THE ITA NO. 2851 /AHD/201 4 ASSTT. YEAR2009 - 10 3 COURSE OF ASSESSMENT PROCEEDINGS ASSESSING OFFICER HAS ALSO SEEN THAT ASSESSEE CLAIMED REFUND OF COMMISSION INCOME OF RS.1,50,794/ - BUT THE SAME HAS NOT BEEN OFFER E D IN TH E RETURN OF INCOME . T HEREAFTER, THE ASSESSING OFFICER DISALLOWED THE COMMISSION INCOME OF RS.1,50,794/ - . HE ALSO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT BY STATING THAT ASSESSEE HAS CONCEALED HIS INCOME AND HAS SHOWN INACCURATE PARTICULARS OF INCOME. IN RESPONSE TO THE NOTICE OF THE ASSESSING OFFICER THE ASSESSEE HAS STATED THAT HE HAS FILED APPEAL BEFORE THE LD.CIT(A) AND REQUESTED TO POSTPONE PENALTY PROCEEDING TILL THE DECISION OF APPEAL. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLAN ATION OF THE ASSESSEE. T HE ASSESSING OFFICER CONCLUDED THAT ASSESSEE COULD NOT ESTABLISH THAT THERE WAS NO CONCEALMENT OF INCOME , THEREFORE , HE LEVIED MINIMUM PENALTY OF RS.8,37,362/ - ON THE TOTAL ADDITION OF RS.27,80,221/ - ON THREE ISSUES AS DISCUSSED ABOVE . 3. AGGRIEVED AGAINST PENALTY ORDER OF THE ASSESSING OFFICER THE ASSESSEE FILED IN APPEAL BEFORE LD.CIT(A). THE LD.CIT(A) HAS DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: I HAVE CAREFULLY CONSIDERED T HE PENALTY ORDER PASSED BY THE ASSESSING OFFICER AS WELL AS THE SUBMISSIONS MADE BY THE ASSESSEE DURING THE APPELLANT PROCEEDINGS. IT WAS DISCLOSED BY THE ASSESSEE THAT CIT(A) HAS DELETED ALL THE ADDITIONS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS LE VIED THE PENALTY. I HAVE PERUSED THE RECORD AND ORDER OF THE CIT(A) PASSED IN APPEAL NO CIT(A)/VLS/47/11 - 12 DATED 18.1.2013 AND FOUND THAT ALL THE THREE ADDITIONS NAMELY ADDITION OF RS.2551907/ - ON ACCOUNT OF CASH DEPOSIT, ADDITION OF RS.77520/ - ON ACCOUNT OF SUNDRY CREDITORS AND SUNDRY DEBTORS AND ADDITION OF RS.150794/ - ON ACCOUNT OF REFUND ON COMMISSION INCOME HAS BEEN DELETED. IN VIEW OF THIS THE PENALTY LEVIED BY THE ASSESSING OFFICER ON THE BASIS OF ALL THESE ADDITIONS BECOMES INFRATUOUS AND THE APPEA L OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 4 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORDS PLACED BEFORE US. WE NOTICE D FROM THE FINDINGS OF LD.CIT(A) STATING ITA NO. 2851 /AHD/201 4 ASSTT. YEAR2009 - 10 4 THAT ALL THE QUANTUM ADDITION ON THE BASIS OF WHICH PE NALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER WERE DELETED BY THE LD.CIT(A) VIDE HIS ORDER DATED 18/01/2013 , THEREFORE HE DELETED PENALTY LEVIED BY THE ASSESSING OFFICER. AFTER CONSIDERING THE ABOVE MENTIONED FACTS AND FINDINGS WE ARE OF THE OPINION THAT ASSESSING OFFICER HAS INCORRECTLY MENTIONED IN THE PENALTY ORDER THAT ASSESSEE HAS NOT FILED APPEAL BEFORE THE LD.CIT(A) ON THE QUANTUM ADDITION . THE PENALTY LEVIED BY THE AO HAS BECOME INFRUCTUOUS ON DELETING OF QUANTUM ADDITION BY THE LD. CIT(A), THEREFO RE, WE FIND NO MERITS IN THE CASE OF REVENUE AND THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 17 TH MAY , 2017 AT AHMEDABAD. SD/ - SD/ - ( RAJPAL YADAV ) JUDICIAL MEMBER ( AMARJIT SINGH ) ACCOUNTANT MEMBER TRUE COPY AHMEDABAD; DATED 17 / 05 /2017 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , / DR, ITAT, 6. / GUARD FILE . / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD