M/s. Varshney Bhandu Foods Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 2973/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3824 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Accommodation entries; Reassessment proceedings
• Section: 147

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D: NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 2973/DEL /2014 ASSESSMENT YEAR: 2008-09 VARSHNEY BHANDU FOODS PVT. LTD., 388/3, 1 ST FLOOR, MAIN ROAD KHARI BAOLI, NEW DELHI. (PAN: AACCV0594K) VS DCIT, CIRCLE 17(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI AMIT JAIN, SR. DR DATE OF HEARING: 25.01.2018 DATE OF PRONOUNCEMENT : 30.01.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A)-19, NEW DELHI WHEREIN, VIDE ORDER DATED 6.3.201 4, THE LD. COMMISSIONER OF INCOME TAX (A) HAS CONFIRMED TH E IMPOSITION OF PENALTY AMOUNTING TO RS. 16,99,500/- IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 ITA NO. 2973/DEL/2014 ASSESSMENT YEAR 2008-09 2 (HEREINAFTER CALLED 'THE ACT') FOR ASSESSMENT YEAR 2008- 09. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CO MPANY IS DEALING IN TRADING AND MANUFACTURING OF SKIMMED MILK POWDER AND DESI GHEE. THE RETURN WAS FILED DECLARI NG A LOSS OF RS. 45,79,569/- ON 25.08.2008. SUBSEQUENTL Y, ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTOR ATE OF INVESTIGATION, NEW DELHI IN RESPECT OF ALLEGED BOGU S ACCOMMODATION ENTRIES PROVIDED BY ONE SHRI ASEEM KUMAR GUPTA, THE ASSESSEES CASE WAS REOPENED U/S 1 47 OF THE ACT AS THE NAME OF THE ASSESSEE FIGURED IN T HE LIST OF BENEFICIARIES OF THE ALLEGED BOGUS ACCOMMODATION ENTRIES. AS PER THE INFORMATION RECEIVED FROM THE DIRECTORATE OF INVESTIGATION, THE ASSESSEE HAD RECE IVED AN ENTRY OF RS. 65 LAKH DURING THE YEAR UNDER CONSIDER ATION. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, THE ASSESSEE SURRENDERED RS. 55 LAKH ON THE GROUND THAT IT WANTED TO AVOID LITIGATION AND FOR PEACE OF MIND. NO APPEAL AGAINST THIS QUANTUM ADDITION MADE ON ACCOUN T OF SURRENDER WAS FILED BY THE ASSESSEE. SUBSEQUENT LY, THE ASSESSING OFFICER IMPOSED PENALTY OF RS. 16,99, 500/- ITA NO. 2973/DEL/2014 ASSESSMENT YEAR 2008-09 3 U/S 271(1)(C) OF THE ACT WHICH WAS ALSO CONFIRMED B Y THE LD. COMMISSIONER OF INCOME TAX(A). THE ASSESSEE HA S NOW APPROACHED THE ITAT AND HAS CHALLENGED THE IMPOSITION OF PENALTY. 3. WHEN THE CASE WAS CALLED OUT FOR HEARING, AN APPLICATION FOR ADJOURNMENT WAS SUBMITTED ON BEHALF OF THE LD. AR. A PERUSAL OF THE ORDER SHEET ENTRIES S HOWS THAT THE ASSESSEES APPEAL HAS BEEN ADJOURNED EARLI ER ON 29.06.2017, 3.7.2017 AND 17.10.2017 ON THE REQUEST OF THE ASSESSEE AND TODAY AGAIN, THE ASSESSEE HAS SOUG HT AN ADJOURNMENT. THUS, IT IS EVIDENT THAT THE ASSES SEE IS NOT INTERESTED IN PURSUING THE APPEAL AND IS ADOPTI NG DILATORY TACTICS TO AVOID THE HEARING FOR THE REASO NS BEST KNOWN TO IT. THEREFORE, LOOKING INTO THE FACTS, WE REJECT THE APPLICATION FOR ADJOURNMENT AND PROCEED TO HEAR THE APPEAL EX PARTE QUA THE ASSESSEE. 4. THE LD. SR. DR SUBMITTED THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS CAST UPON IT TO PROVE THE GENUINENESS OF THE MONEY RECEIVED BY IT. IT WAS AL SO SUBMITTED THAT THE ASSESSEE HAD SURRENDERED THE AMO UNT DURING THE COURSE OF REASSESSMENT PROCEEDINGS AND T HE ITA NO. 2973/DEL/2014 ASSESSMENT YEAR 2008-09 4 SAME WAS NOT A VOLUNTARY SURRENDER AS THE IMPUGNED TRANSACTIONS HAD COME TO THE KNOWLEDGE OF THE INCOM E TAX DEPARTMENT ON RECEIPT OF INFORMATION FROM THE DIRECTORATE OF INVESTIGATION. IT WAS SUBMITTED THA T NO APPEAL HAD ALSO BEEN FILED AGAINST THE QUANTUM ADDI TION AND, THEREFORE, THE PENALTY HAD BEEN RIGHTLY UPHELD BY THE LD. COMMISSIONER OF INCOME TAX (A). 5. WE HAVE HEARD THE LD. SR. DR AND HAVE ALSO PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE FACTS OF THE CASE ARE UNDISPUTED. IN THIS CASE, THE ASSESSMENT WAS REOPENED ON THE BASIS OF INFORMATION OBTAINED THROU GH INVESTIGATION BY THE INVESTIGATION WING. DURING TH E COURSE OF RE-ASSESSMENT PROCEEDINGS, THE ASSESSEE C OULD NOT FURNISH DOCUMENTARY EVIDENCES IN SUPPORT OF THE GENUINENESS OF ITS CLAIM OF HAVING RECEIVED THE IMP UGNED MONEY. IT IS ALSO UNDISPUTED THAT THE ASSESSEES N AME APPEARED IN THE LIST OF BENEFICIARIES OF THE ALLEGE D BOGUS ACCOMMODATION ENTRIES PROVIDED BY SHRI ASEEM KUMAR GUPTA. IT IS APPARENT THAT WHEN THE ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF THE IMPUGNED TRANSACTI ON BEFORE THE ASSESSING OFFICER THAT IT DECIDED TO SUR RENDER ITA NO. 2973/DEL/2014 ASSESSMENT YEAR 2008-09 5 AN AMOUNT OF RS. 55 LAKH. THUS, THE FACTUAL MATRIX INDICATES THAT THE ASSESSEE MADE THE SURRENDER WHEN IT HAD NO EXPLANATION TO OFFER. THUS, THE ASSESSEE CO ULD NOT PROVE THE BONA FIDE OF ITS CLAIM. THE HONBLE APEX COURT IN THE CASE OF MAK DATA (P) LTD. VS CIT 352 I TR 1 (SC) HAS HELD THAT THE ASSESSING OFFICER SHOULD NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE VOLUN TARY DISCLOSURE, BUY PEACE, AVOID LITIGATION, AMICABLE SETTLEMENT ETC. TO EXPLAIN ITS CONDUCT. THE HONBL E APEX COURT FURTHER HELD THAT THE BURDEN IS ON THE ASSESS EE TO REBUT THE PRESUMPTION OF CONCEALMENT AS CONTAINED I N EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT BY CO GENT AND RELIABLE EVIDENCE. IN THE FACTS OF THE PRESENT CASE, WE ARE AFRAID THAT THE ASSESSEE HAS FAILED TO DISCH ARGE THE INITIAL ONUS CAST UPON IT BY COGENT OR RELIABLE EVIDENCE AND HAS SIMPLY MENTIONED THAT THE AMOUNT W AS BEING SURRENDERED AS A VOLUNTARY DISCLOSURE TO BUY PEACE AND AVOID LITIGATION. WE ARE OF THE CONSIDERED OPI NION THAT THE ASSESSEE, IN THE PRESENT CASE, CANNOT ESCA PE THE RIGOURS OF PENALTY AS IT HAS FAILED TO OFFER ANY EX PLANATION AND HAS ALSO FAILED TO LEAD ANY COGENT OR RELIABLE ITA NO. 2973/DEL/2014 ASSESSMENT YEAR 2008-09 6 EVIDENCE. THEREFORE, RESPECTFULLY FOLLOWING THE RA TIO OF THE HONBLE APEX COURT AS LAID DOWN IN THE CASE OF MAK DATA (P) LTD. VS CIT (SUPRA), WE FIND NO REASON TO INTERFERE WITH THE ADJUDICATION OF THE LD. COMMISSI ONER OF INCOME TAX (A) AND WE DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 6. IN THE FINAL RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2018. SD/- SD/- (B.P. JAIN) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30TH JANUARY, 2018 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR