DCIT, BARMER V. Shri Gawal Das Mehta, JAISALMER

ITA 288/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5195 (ITAT-JODHPUR)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALKA R JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 2 88 / JODH /201 5 (ASST. YEAR : 200 8 - 0 9 ) DCIT, CIRCLE, BARMER. VS. SHRI GAWAL DAS MEHTA , PROP. M/S. BRIJ CONSTRUCTION CO., SHIV MARG, JAISALMER. PAN NO. ADAPM 3145 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJENDRA JAIN ADV. DEPARTMENT BY : SMT. ALKA R. JAIN - DR DATE OF HEARING : 1 6 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 6 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2 , JODHPUR , DATED 2 5 /0 3 /201 5 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF THE REV E NUE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE LEVY OF PENALTY OF RS. 16,97,219/ - UNDER SEC. 271(1)(C) OF THE ACT ON ACCOUNT OF SECURITY DEPOSIT OF RS. 2,28,40,889/ - . 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER FOUND T H A T THE ASSESSEE HAD SHOWN THE AMOUNT OF RS. 2,28,40,889/ - AS SECURITY DEPOSIT - CUM - RETENTION MONEY ON THE ASSET S SIDE OF HIS BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION ALONG WITH CUMULATIVE AMOUNT FOR EARLIER 2 ITA NO. 288 / JODH /201 5 YEARS. THE ASSESSEE EXPLAINED THAT IN RESPECT OF RETENTION OF MONEY IN TERMS OF CONTRACT FOR PERFORMANCE OF CONTRACT FOR A PERIOD O F FIVE YEARS HAS NOT ACCRUED OR AROSE TO THE ASSESSEE AND AS SUCH , THE SAME IS NOT LIABLE TO BE INC L UDED IN THE GROSS RECEIPTS FOR THE PURPOSE OF APPLICATION OF GROSS PROFIT RATE. HOWEVER, THE ASSESSING OFFICER ADDED THE AMOUNT OF RS. 2,28,40,889/ - TO THE INCOME OF THE ASSESSEE . 4 . ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. ON FURTHER APPEAL, THE TRIBUNAL SUSTAINED THE ADDITION OF RS. 23,98,293/ - BEING 10.50% O F RS. 2,28,40,889/ - . THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY UNDER SEC. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTIC ULARS OF INCOME. 5. ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE PENALTY ON THE GROUND THAT MERELY BECAUSE AN ADDITION WAS MADE BY DISALLOWING SOME EXPENDITURE, IT DOES NOT MEAN THAT PENALTY WOULD AUTOMATICALLY BECOME LEVIABLE IN RELATION T O SUCH INCOME. THE PARTICULARS/INFORMATION REGARDING THE SECURITY DEPOSIT RETAINED BY THE CONTRACTE E S WERE AVAILABLE IN THE DETAILS FILED BY THE ASSESSEE HIMSELF AND WERE NOT UNEARTHED FROM ANY OTHER SOURCES . THESE DETAILS WERE NOT PROVED TO BE INACCURATE. THEY CANNOT ALSO BE CONSIDERED AS CONCEALMENT OF INCOME BY THE ASSESSEE. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIAN CE PETROPRODUCTS PVT. LTD. [ 322 ITR 158 (SC)] . 6 . DEPARTMENTAL REPRESENTATIVE SIMPLY RELIED ON THE ORDER OF THE ASSESSING OFFICER, WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 7. WE FIND THAT THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. (SUPRA) HELD AS UNDER: - 3 ITA NO. 288 / JODH /201 5 WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SEC. 271(1)(C). A MERE MAKING OF A CL A IM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. WE , THEREFORE, DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY , THE 1 6 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 6 TH MARCH , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER