BADRI PRASAD RAM GOPAL DALL MILL, Alwar V. ITO, Alwar

ITA 305/JPR/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6844 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1999-2000
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA ADD
• Keywords: Unexplained cash credit
• Section: 271(1)(c); 133A; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 305/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :1999-2000 BADRI PRASAD RAM GOPAL DALL MILL 18, CLOCK TOWER, ALWAR (RAJ.) CUKE VS. ITO, WARD 2(2), ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAEFB3625L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADD.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/08/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 11/09/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)- 22, ALWAR DATED 02.02.2017 WHEREIN THE LIMITED GROU ND OF APPEAL RELATES TO CONFIRMATION OF LEVY OF PENALTY AMOUNTING TO RS. 12 ,94,565/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 2. THE HEARING OF THE MATTER WAS SCHEDULED THROUGH VIDEO CONFERENCING IN VIEW OF THE ONGOING COVID-19 PANDEMIC SITUATION PREVAILING IN THE COUNTRY. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE HOWEVER , AN ADJOURNMENT APPLICATION WAS RECEIVED BY THE REGISTRY THROUGH EM AIL WHERE THE A/R OF THE ASSESSEE HAS SOUGHT ADJOURNMENT IN THE MATTER STATI NG THAT THE ASSESSEE IS CONTEMPLATING TO OPT FOR VIVAD SE VISHWAS SCHEME. G IVEN THAT NOTHING HAS BEEN PLACED ON RECORD IN TERMS OF ANY SPECIFIC TIME BY WHEN THE ASSESSEE WILL MOVE ITS PETITION UNDER THE VIVAD SE VISHWAS S CHEME AND THE FACT ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 2 THAT THE APPEAL WAS FILED WAY BACK IN JUNE, 2017 WH ICH WAS DISMISSED VIDE ORDER DATED 02.06.2017 AND THEREAFTER, RECALLED VID E ORDER DATED 10.11.2017 AND SINCE THEN, THE HEARING IN THE MATTER HAS BEEN ADJOURNED FROM TIME TO TIME, WE FIND THAT NO USEFUL PURPOSE WOULD BE SERVE D IN ADJOURNING THE MATTER ANY FURTHER AND IT WAS ACCORDINGLY DECIDED T O HEAR THE LD. DR AND DECIDED THE MATTER BASED ON MATERIAL AVAILABLE ON R ECORD. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE PENALTY ORDER U/S 271(1)(C) OF THE ACT WAS PASSED ON 20.03.2015 WHERE IN THE ASSESSING OFFICER HAS LEVIED PENALTY U/S 271(1)(C) OF THE ACT AMOUNTI NG TO RS. 12,94,565/- AND THE RELEVANT FINDINGS OF THE ASSESSING OFFICER READ AS UNDER:- AS PER BRIEF FACTS OF THE CASE, A SURVEY U/S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 05.03.1999 AND DURING THE COURSE OF SURVEY PROCEEDINGS A DIARY NAMED GEETA D AYANANDINI, 1998 ADDITION (PERTAINING TO PERIOD 1.1.1998 TO 31. 12.1998) WAS FOUND AND IMPOUNDED. AS SUCH DIARY WAS BELONGS TO FIRMS A ND TRANSACTION RECORDED ARE PERTAINED TO FIRM. ON GOING THROUGH TH E TRANSACTION RECORDED IT HAS NOTICED THAT THE ASSESSEE FIRM HAVE TAKEN LOANS IN CASH FROM VARIOUS PERSONS DURING THE PERIOD 1.04.1998 TO 31.03.1999 AND PAID INTEREST THERETO. THE ASSESSEE ADMITTED DURING ORIGINAL ASSESSMENT THAT CREDIT ENTRY SHOWN IN THE DIARY WER E NOT SHOWN IN REGULAR BOOKS OF ACCOUNTS. THE PARTNERS OF FIRM ACC EPTED THAT THEY WERE UNABLE TO GET THESE CASH CREDITORS VERIFIED AN D THUS ACCEPTED THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE FIRM FOR THE YEAR UNDER CONSIDERATION. THEREFORE, IN VIEW OF THE DISCUSSION IN THE FOREGOI NG PARAGRAPHS IT IS CLEAR THAT THE ASSESSEE HAS CONCEALED HIS INCOME BY NOT DISCLOSING TRANSACTION RECORDED IN GEETA DAYANANDINI DAIRY. THUS, IT IS A FIT CASE ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 3 FOR IMPOSING PENALTY U/S 271(1)(C) OF THE I.T. ACT. THEREFORE, I HEREBY IMPOSED PENALTY U/S 271(1)(C) OF RS. 12,94,565/- @ 100% OF THE TAX SOUGHT TO BE EVADED. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND HAS SUBMITTED THAT THE ASSESSING OFF ICER HAS LEVIED THE PENALTY PURSUANT TO THE ORDER PASSED BY THE LD. CIT (A), HOWEVER, SUBSEQUENTLY, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE TRIBUNAL IN ITA NO. 262/JP/2019 AND 492/JP/2019 WHICH HAS BE EN DISPOSED OFF VIDE ORDER DATED 18.02.2016 AND THE EFFECT OF THE ORDER SO PASSED BY THE TRIBUNAL HAS NOT BEEN GIVEN EFFECT TO BY THE AO WHILE PASSIN G THE PENALTY ORDER. IT WAS SUBMITTED THAT PURSUANT TO TRIBUNAL ORDER, THE ASSESSING OFFICER HAS PASSED THE APPEAL EFFECT ORDER DATED 19.09.2016 WHE REIN THE ASSESSED INCOME HAS BEEN DETERMINED AT RS. 17,38,847/- AS AG AINST ASSESSED INCOME OF RS. 36,98,757/- CONSIDERED BY THE ASSESSING OFFI CER WHILE LEVYING THE PENALTY. IT WAS FURTHER SUBMITTED THAT THE ASSESSIN G OFFICERS SATISFACTION AS WARRANTED U/S 271(1)(C) OF THE ACT FOR INITIATING T HE PENALTY PROCEEDINGS HAS NOT BEEN RECORDED IN THE ASSESSMENT ORDER AND UNLES S REQUISITE SATISFACTION IS RECORDED, THE JURISDICTION TO INITIATE THE PENAL TY PROCEEDINGS CANNOT BE EXERCISED. REGARDING PEAK CASH CREDIT OF RS. 19.60 LAKHS, IT WAS SUBMITTED THAT THE SAME HAS BEEN VOLUNTARILY SURRENDERED BY T HE ASSESSEE, HOWEVER, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY CORROBORATIVE EVIDENCE CIRCUMSTANCES IN THE PENALTY ORDER TO PROVE THAT TH E ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME. REGARDING ADDITION T OWARDS INVESTMENT IN UNRECORDED PURCHASES, IT WAS SUBMITTED THAT AGAIN N O SATISFACTION HAS BEEN RECORDED VIS-A-VIS THE SAID ADDITION BY THE ASSESSI NG OFFICER FOR INITIATING THE PENALTY PROCEEDINGS WHILE PASSING THE ASSESSMENT OR DER. IT WAS SUBMITTED THAT IN ABSENCE OF SATISFACTION SO RECORDED BY THE ASSESSING OFFICER, PENALTY ON THE SAID ADDITION CANNOT BE LEVIED. ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 4 5. WE NOW REFER TO THE FINDINGS OF THE LD. CIT(A) WHICH READ AS UNDER: 4.3 I HAVE GONE THROUGH THE PENALTY ORDER AS WELL AS SUBMISSIONS MADE BY THE APPELLANT. FOLLOWING FACTS HAVE EMERGED ; 1. THAT THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS O F TRADING OF CHANA DAL, CHANA CHURI AND CHANA CHHILKA DURING THE YEAR UNDER CONSIDERATION. 2. THAT A SURVEY U/S 132A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 05-03-199 9. 3. THAT DURING THE COURSE OF SURVEY PROCEEDING IT WAS FOUND THAT THE ASSESSEE FIRM WAS TAKING LOANS WHICH WERE NOT R ECORDED IN THE REGULAR BOOKS OF ACCOUNTS. 4. THAT DURING THE COURSE OF SURVEY OPERATION A GEETA DAYANANDANI DIARY WAS FOUND CONTAINING DETAILS LOAN S CREDITORS AND DEBTORS FOR THE PERIOD 01-01-1998 TO 31-12-1998 AND SUCH DETAILS ARE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNTS. 5. THAT IN THE FINAL ASSESSMENT MADE FOR THE YEAR UNDE R CONSIDERATION I.E. 1999-2000 AFTER GIVING THE APPEA L EFFECT, THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITORS U /S 68 OF THE ACT FOR AN AMOUNT OF RS. 16,60,000/- AND UNRECORDED INVESTM ENT IN PURCHASES AMOUNTING TO RS. 20,90,604/- WERE SUSTAIN ED. 6. THAT THE AO HAD LEVIED PENALTY OF RS. 12,94,565/ - ON THE ABOVE MENTIONED ADDITIONS SUSTAINED BY THE APPELLATE AUTH ORITY. 7. THAT THE PRESENT APPEAL IS DIRECTED AGAINST THE LEVY OF THE PENALTY AMOUNTING TO RS. 12,94,565/- U/S 271(1)(C) OF THE ACT. 4.3.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS . THERE IS NO DOUBT THAT DURING THE COURSE OF SURVEY OPERATION U/ S 132A OF THE ACT, DOCUMENTS HAVE BEEN FOUND SHOWING UNRECORDED L OAN ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 5 TRANSACTIONS. THE PEAK VALUE OF SUCH TRANSACTION IS RS. 19,60,000/-. ALSO THERE IS NO DOUBT THAT DOCUMENT SHOWING UNRECO RDED PURCHASES AMOUNTING TO RS. 20,90,604/- WERE FOUND. BOTH THESE TRANSACTIONS HAVE NOT BEEN DECLARED BY THE APPELLANT IN THE REGU LAR BOOKS OF ACCOUNTS. THEREFORE, IN MY CONSIDERED VIEW THE APPE LLANT HAS NOT DECLARED TRUE AND FAIR ACCOUNTS OF ITS INCOME IN TH E REGULAR RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR. THE AO HAS ALLOWED THE CREDIT OF RS. 3 LAKHS SURRENDERED ON ACCOUNT OF PEA K CASH CREDIT. IN THIS REGARD, I HAVE CONSIDERED THE PARAMETER LAID D OWN BY THE HON'BLE SUPREME COURT IN THE CASES OF M/S RELIANCE PETROPRODUCT LTD., UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCES SORS [2008 (13) SCC 369] 2008-TIOL-192-SC-CX-LB, AS ALSO, THE DECIS ION IN UNION OF INDIA VS. RAJASTHAN SPG. & WVG. MILLS [2009(13) SCC 448] =2009- TIOL-63-SC-CX , DILIP N. SHROFF VS. JOINT COMMISSIO NER OF INCOME TAX, MUMBAI & ANR. [2007(6) SCC 329] 2007-TIOL-96-S C-IT, AND K.C. BUILDERS & ANR VS THE ASSISTANT COMMISSIONER O F INCOME TAX. IT IS MY CONSIDERED VIEW THAT THE AO IS JUSTIFIED IN H OLDING THAT THE ABOVE MENTIONED INCOME IS SOUGHT TO BE EVADED AND T HEREFORE PENALTY U/S 271(1)(C) OF THE ACT IS LEVIABLE FOR FU RNISHING OF INACCURATE PARTICULARS OF INCOME. ACCORDINGLY, THE APPELLANT'S APPEAL ON THIS ISSUE IS DISMISSED. 6. WE THEREFORE FIND THAT THE VARIOUS CONTENTIONS A DVANCED BY THE ASSESSEE AS WE HAVE NOTED IN PARA 4 SUPRA HAVE NOT BEEN ADEQUATELY DEALT WITH BY THE LD CIT(A) WHILE DISPOSING OFF THE ASSES SEES APPEAL. WHERE THE ASSESSEE HAS CARRIED THE MATTER IN APPEAL BEFORE TH E TRIBUNAL IN THE QUANTUM PROCEEDINGS AND THE QUANTUM ADDITIONS AS SO CLAIMED BY THE ASSESSEE HAVE BEEN REDUCED AND WHICH FORMS THE BASIS FOR LEVY OF PENALTY, THE CONSEQUENT QUANTUM OF PENALTY WILL ALSO UNDERGO A CHANGE, HOWE VER, WE FIND THAT THERE ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 6 IS NO FINDING RECORDED BY THE LD CIT(A) IN THIS REG ARD. SIMILARLY, THE ASSESSEE HAS RAISED CONTENTIONS REGARDING LACK OF SATISFACTI ON FOR INITIATING THE PENALTY PROCEEDINGS WHILE COMPLETING THE ASSESSMENT PROCEED INGS, TO OUR MIND, THERE ARE RELEVANT CONSIDERATIONS WHICH NEEDS TO BE EXAMINED AND DISPOSED OFF BEFORE THE LEVY OF PENALTY IS CONFIRMED. WE AC CORDINGLY SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE VARIOUS CONTENTIONS SO RAISED BY THE ASSESSEE AND DECIDE THE MATTER AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESS EE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND FILE THE NECESSARY INFORMATION AND DOCUMENTATION IN SUPPORT OF ITS CONTENTIONS, AS SO ADVISED AND ENSURE IN TIMELY COMPLETION OF THE APPELLATE PROCEEDINGS. THI S WILL NOT PREJUDICE THE RIGHT OF THE ASSESSEE IN AVAILING OF THE AFORESAID SETTLEMENT SCHEME AND WHERE THE ASSESSEE SO DECIDES FINALLY TO OPT FOR TH E SCHEME AND HAS TAKEN NECESSARY STEPS AS SO SPECIFIED THEREIN, IT CAN BRI NG THE SAME TO THE NOTICE OF THE LD CIT(A) WHO SHALL THEN DECIDE AND TAKE APPROP RIATE ACTION AS PER LAW. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 11/09/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11/09/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- BADRI PRASAD RAM GOPAL DALL MILL 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 2(2), ALWAR 3. VK;DJ VK;QDR@ CIT ITA NO. 305/JP/2017 BADRI PRASAD RAM GOPAL DALL MILL VS. ITO, ALWAR 7 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 305/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR