Shri Babulal K. Yadav, Ahmedabad V. The Income Tax Officer, Ward-9(2), Ahmedabad

ITA 3175/AHD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94652 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADIP KR MAJUMDAR
• Keywords: Unexplained investment; Wrong claim
• Section: 69C; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRI BABULAL K. YADAV, VINIT MOONDRA C.A. 201, SARAP, OPP. NAVJIVAN PRESS, ASHRAM ROAD, AHMEDABAD - 380014 PAN: ABSPY9706A (APPELLANT) VS INCOME TAX OFFICER, WARD 9(2), AHMEDABAD (RESPONDENT) REVENUE BY : S H RI PRADIP KR. MAJUMDAR , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 12 - 10 - 2 015 DATE OF PRONOUNCEMENT : 30 - 10 - 2 015 / ORDER P ER : S. S. GODARA , JUD ICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2008 - 09 , AR ISES FROM ORDER OF THE CIT(A) - XV, AHMEDABAD DATED 29 TH SEPTEMBER, 2014 IN APPEAL NO. CIT(A) - XV / ITO 9(2)/186/2013 - 14 , IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 3175 / A HD/20 14 A SSESSMENT YEAR 200 8 - 09 I.T.A N O. 3175 /AHD/20 14 A.Y. 2008 - 09 PAGE NO SHRI BABULAL K YADAV VS. ITO 2 2. THE SOLE SUBSTANTIVE GROUND RAISED IN THIS APPEAL CHALLENGES SECTION 271(1)(C) PENALTY OF RS. 64,8,90/ - BASED ON ADDITION OF RS. 1,50,000/ - ON ACCOUNT OF INTRODUCTION OF CAPITAL. IT TRANSPIRES FROM THE CASE FILE THAT THE ASSESSEE HAS INTR ODUCED THIS CAPITAL IN THE RELEVANT PREVIOUS YEAR BY WAY OF CASH SUM OF RS. 1 LAC ON 01 - 04 - 2007, RS. 30,000/ - AND RS. 20,000/ - OBTAINED FROM ONE SHRI JAGARNATH YADAV ON 20 TH AND 27 TH JUNE, 2007. THE ASSESSING OFFICER IN COURSE OF SCRUTINY SOUGHT FOR SOUR CE OF CAPITAL, CONFIRMATION, LEDGER ACCOUNT OF THIS CAPITAL INTRODUCTION ETC. THE ASSESSEE DOES NOT SEEM TO HAVE FILED ALL THESE DETAILS. THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT ON 30 - 11 - 2010 ADDING THIS CAPITAL INTRODUCED OF RS. 1,50,000/ - AS UNEXPLAINED INVESTMENT. HE ALSO INITIATED SECTION 271(1) (C) PENALTY PROCEEDINGS ALLEGING CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSEE DID NOT CHALLENGE THIS QUANTUM ADDITION. 3. NOW , WE COME TO THE IMPUGNED PENALTY PR OCEEDINGS. THE ASSESSING OFFICER IN PENALTY ORDER DATED 26 - 05 - 2011 QUOTED SCRUTINY DEVELOPMENTS AND ASSESSEE S FAILURE IN FILING REASONABLE EXPLANATION FOR LEVYING THE IMPUGNED PENALTY OF RS. 64,890/ - . THE CIT(A) CONFIRMS THIS ACTION. 4. CASE CALLED TWI CE. NONE APPEARS AT ASSESSEE S BEHEST . IT IS ACCORDINGLY PROCEED ED EX - PARTE. WE HAVE HEARD THE R EVENUE AND PERUSED THE CASE FILE. THE SOLE BASIS FOR IMPOSING THE IMPUGNED PENALTY IS AN ADDITION OF RS. 1,50,000/ - ON ACCOUNT OF INTRODUCTION OF I.T.A N O. 3175 /AHD/20 14 A.Y. 2008 - 09 PAGE NO SHRI BABULAL K YADAV VS. ITO 3 CAPITAL. THE ASSESSEE FAILED IN FI LING DETAILS OF HIS SOURCE QUA THE CASH SUM OF RS. 1 LAC AND THAT OBTAINED FROM SHRI YADAV TO THE TUNE OF RS. 50,000/ - . BOTH THE AUTHORITIES BELOW TREATED AS A CASE OF CONCEALMENT AND FURNISHING OF INACCURATE P ARTICULARS OF INCO ME U/S 271(1)(C) . THE LD. CIT(A) OBSERVED THAT ASSESSEE DID NOT PREFER ANY APPEAL AGAINST QUANTUM ADDITION. THE HON BLE KARNATAKA HIGH COURT IN CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 35 TAXMANN.COM 250 HOLDS THAT THIS REASON IS NOT SUSTAINA BLE. COMING TO MERITS, WE ARE OF THE VIEW THAT THIS IS A CASE OF LACK OF SUBSTANTIVE EVIDENCE THEN THAT OF FALSE OR BOGUS CLAIM BEING RAISED AT ASSESSEE S BEHEST. WE OBSERVE THAT ASSESSE E S CASH SUM OF RS. 1 LAC IS HIS PAST SAVINGS. THE BALANCE 50, 000/ - COULD NOT BE PROVED BECAUSE OF LACK OF CONFIRMATION AND EVIDENCE. THE HON BLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. BARODA TIN WORKS (1996) 221 ITR 661 (GUJ) HOLDS THAT THE DEEMING FICTION CREATED U/S. 68 TO 69C BY ITSELF CANNOT BE EXTENDED T O PENALTY PROCEEDINGS FOR PRESUMING ABOUT CONCEALMENT OF SUCH INCOME. WE DRAW SUPPORT THEREFROM AND DELETE THE IMPUGNED PENALTY OF RS. 64,890/ - IMPOSED BY THE LOWER AUTHORITIES. 5. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN TH E OPEN C OURT ON 30 - 10 - 2015 SD/ - SD/ - ( A NIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30 /10 /2015 AK I.T.A N O. 3175 /AHD/20 14 A.Y. 2008 - 09 PAGE NO SHRI BABULAL K YADAV VS. ITO 4 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,