Meenakshi Gupta, Jalandhar V. The Income Tax Officer, Jalandhar

ITA 292/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0651 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Assessee Lawyers: PAWAN BHALLA
• Keywords: Peak credit

Judgement Text

1 ITA NO.292(ASR)/2016 A.Y. 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.292(ASR)/2016 ASSESSMENT YEAR:2008-09 PAN: AHKPG2208D MEENAKSHI GUPTA VS. INCOME TAX OFFICER, JALANDHAR. WARD-IV(12), JALANDHAR, (APPELLANT) (RESPONDENT) APPELLANT BY: SH.PAWAN BHALLA, ADV. RESPONDENT BY: SH. BHAWANI SHANKER, DR DATE OF HEARING: 23/06/2016 DATE OF PRONOUNCEMENT: 28/06/2016 ORDER PER A.D. JAIN, JM; THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2008-09, AGAINST THE CONFIRMATION OF LEVY OF CONCEALMENT PENALTY OF RS.56,950/-. 2. THE BRIEF FACTS OF THE CASES ARE THAT THE ASSESS EE FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 18.03.20 09 DECLARING THEREIN AN INCOME OF RS.1,52,500/-. HOWEVER, THE ASSESSMENT IN THIS CASE WAS COMPLETED BY THE AO AT AN ASSESSED INCOME OF RS.3,69,300/-. W HILE COMPLETING THE ASSESSMENT, THE AO MADE AN ADDITION OF RS.2,16,804/ - TO THE RETURNED INCOME OF THE ASSESSEE WHICH REPRESENTED PEACK AMOUNT OF U NEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE WITH ICICI BANK MAINTAINED BY HER IN THE 2 ITA NO.292(ASR)/2016 A.Y. 2008-09 NAME OF HER MINOR SON, NAMELY, MR. ABHISHEK GUPTA. THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FILING INACCURATE PART ICULARS OF INCOME TO THE EXTENT OF RS.2,16,804/- WERE ALSO INITIATED SEPARATELY BY THE AO. THE ASSESSEE HAD NOT FILED ANY APPEAL AGAINST THE ORDER OF ASSESSMENT, H ENCE IT WAS PRESUMED THAT THE ADDITION SO MADE HAS BEEN ACCEPTED. SINCE THE A SSESSEE HAD NOT FILED ANY APPEAL AGAINST ORDER OF ASSESSMENT, THE AO HAD ALSO LEVIED PENALTY OF RS.56,950/- FOR FILING INACCURATE PARTICULARS OF I NCOME TO THE EXTENT OF RS.2,16,804/-. 3. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE LEVY OF PENALTY OBSERVING AS FOLLOWS: 6.2. I HAVE CONSIDERED THE OBSERVATIONS OF THE AO AS MADE BY HIM IN THE PENALTY ORDER. I HAVE ALSO CONSIDERED THE WRITTEN S UBMISSIONS FILED BY THE ASSESSEE VIDE LETTER DATED 16.03.2016 ON THE ISSUE UNDER REFERENCE. I HAVE FURTHER CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE IN CONNECTION WITH THE ISSUE UNDER REFEREN CE. ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS, IT HAS BEEN NOTICED THAT THE ASSESSEE CAME FORWARD TO SURRENDER AN INCOME OF RS. 2 LACS W HEN SHE COULD NOT EXPLAIN THE CASH DEPOSITS IN HER BANK ACCOUNT MAINT AINED BY HER WITH ICICI BANK IN THE NAME OF HER MINOR SON. IT HAS ALS O BEEN NOTICED THAT THE ASSESSEE COULD NOT SUBSTANTIATE HER EXPLANATION WH ICH SHE HAS GIVEN DURING ASSESSMENT PROCEEDINGS WITH REGARD TO SOURCE OF CASH DEPOSIT. THE EXPLANATION FURNISHED DURING APPELLATE PROCEEDINGS IS ALMOST IDENTICAL TO THE EXPLANATION WHICH THE ASSESSEE FURNISHED DURING ASSESSMENT PROCEEDINGS. AS THE EXPLANATION FURNISHED BY THE AS SESSEE WITH REGARD TO SOURCE OF CASH DEPOSITS IN HER BANK ACCOUNT HAS NOT BEEN SUBSTANTIATED, I AM ALSO OF THE OPINION THAT THE ASSESSEE HAS CERTAI NLY FILED INACCURATE PARTICULARS OF HER CORRECT INCOME. I AM FURTHER OF THE OPINION THAT THE ASSESSEE CAME FORWARD TO SURRENDER AN AMOUNT OF RS2 ,00,000/- AS SHE COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSITS SATIS FACTORILY. I AM AGAIN OF THE OPINION THAT THE SURRENDER MADE BY THE ASSESS EE WILL NOT MAKE ANY DIFFERENCE IN THIS CASE AS THE SAME HAS BEEN MADE W HEN THE ASSESSEE WAS CORNERED FROM ALL ANGLES. I AM AGAIN OF THE OPI NION THAT THE ADMITTED FACTS NEED NOT TO BE PROVED AGAIN. UNDER SUCH CIRCU MSTANCES, THE ACTION OF THE AO IN LEVYING PENALTY OF RS.56,950/- IN THIS CA SE U/S 271(1)(C) OF THE ACT ON ADDITION OF RS.2,16,804/- CANNOT BE SAID TO BE UNJUSTIFIED. THE 3 ITA NO.292(ASR)/2016 A.Y. 2008-09 JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE HAVE DISTINGUISHABLE FACTS AND HAVE NO APPLICATION IN THE CASE OF THE AS SESSEE RATHER THE DECISION OF HONBLE APEX COURT IN THE CASE OF MAK D ATA SUPPORT THE CASE OF THE A.O. 6.3. IN VIEW OF THE ABOVE STATED FACTS AND IN THE C IRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE AO IS FULLY JUST IFIED IN LEVYING PENALTY OF RS.56,950/- IN THIS CASE U/S 271(1)(C) OF THE ACT F OR FILING INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF RS.2,16,804/ -. AS SUCH, THE PENALTY LEVIED BY THE AO IN THIS CASE AT RS.56,950/- U/S 27 1(1)(C) OF THE ACT FOR FILING INACCURATE PARTICULARS OF INCOME IS, THEREFO RE, UPHELD. IN THE RESULT, THE GROUND NO.2 OF THE APPEAL TAKEN BY THE ASSESSEE IS DISMISSED. 4. CHALLENGING THE IMPUGNED ORDER, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMI NG THE LEVY OF CONCEALMENT PENALTY OF RS.56,950/- WITHOUT CONSIDERING THE REP LY FILED BY THE ASSESSEE AT THE TIME OF IMPOSITION OF PENALTY. 5. THE LD. DR, ON THE OTHER HAND, RELIED ON THE IMP UGNED ORDER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PER USED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE MADE DEPOSITS OF RS.1 LAC TO RS. 2 LAC IN THE SAVINGS BANK ACCOUNT MAINTAINED IN THE NAME OF HER MINOR SON, MR. ABHISHEK GUPTA. THE ADDITION OF RS.2,16,804/- WAS MADE, TAK ING THE PEAK CREDIT. THE ASSESSEE OFFERED THIS AMOUNT FOR TAXATION. IN THE S URRENDER LETTER, THE ASSESSEE STATED THAT HER MINOR SON WAS MAINTAINING SAVINGS B ANK ACCOUNT; THAT THE CREDIT ENTRIES IN THAT ACCOUNT WERE OUT OF PAST SAV INGS OF THE ASSESSEE FOR THE LAST 4 TO 5 YEARS; THAT THE ASSESSEE WAS EARNING TU ITION INCOME; AND THAT THE DEPOSITS OF RS.1 TO 2 LAC IN THE SAVING BANK ACCOUN T WERE RECYCLED TIME AND AGAIN. 4 ITA NO.292(ASR)/2016 A.Y. 2008-09 7. THUS, THE EXPLANATION OF THE ASSESSEE IS THAT TH E CREDIT ENTRIES IN THE BANK ACCOUNT REPRESENTED THE ASSESSEES PAST SAVING S FOR THE LAST 4 TO 5 YEARS AND THAT SHE (THE ASSESSEE) WAS EARNING TUITION INC OME. NOW, THIS EXPLANATION HAS NOT BEEN FOUND TO BE A FALSE EXPLANATION. IT RE MAINS UNDISPUTED THAT THE ASSESSEE IS AN INCOME-TAX ASSESSEE FOR THE LAST TEN YEARS. OBVIOUSLY, SINCE SHE WAS DOING TUITION WORK, IT IS UNDENIABLE THAT THE A MOUNT OF RS.2 LACS WOULD HAVE COME FROM SUCH TUITION WORK. IN MAK DATA (P) LTD. VS. CIT, 358 ITR 593 (SC), IT HAS BEEN HELD ONCE THE INITIAL ONUS OF THE ASSESSEE STANDS DISCHARGED, IT SHIFTS ON THE REVENUE TO SHOW OTHERWISE. THIS HAS N OT BEEN DONE IN THE PRESENT CASE. RELIANCE IS PLACED ON THE DECISION OF RELIAN CE PETROPRODUCTS LTD VS. CIT, 322 ITR 158 (SC), AS PER WHICH, THE EXPLANATION OF THE ASSESSEE IN THE PRESENT CASE CANNOT LEAD TO LEVY OF PENALTY. 8. FOR THE ABOVE REASONS, THE ORDER OF THE LD. CIT( A) IS NOT FOUND TO BE SUSTAINABLE AND THE SAME IS REVERSED. THE GRIEVANC E OF THE ASSESSEE IS ACCEPTED AND THE APPEAL IS ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH JUNE, 2016. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28/06/2016. /SKR/ COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE:SMT. MEENAKSHI GUPTA, JALANDHA R. (2) THE ITO WARD-IV(2), JALANDHAR. (3) THE CIT(A), JLR (4) THE CIT, JLR (5) THE SR DR, I.T.A.T.