Shri Rameshbhai Bababhai Prajapti, Ahmedabad V. The Addl. CIT, Central Range-1, Ahmedabad

ITA 324/AHD/2022

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0556 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 04-10-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 21-08-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Initiation of penalty proceedings
• Section: 132; 273B; 153A; 143(1); 271E

Judgement Text

ITA Nos.324 & 325/Ahd/2022 Assessment Years: 2012-13 & 2013-14 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA Nos.324 & 325/Ahd/2022 Assessment Years: 2012-13 & 2013-14 Shri Rameshbhai Bababhai Prajapati, B-101 Shakti Enclave, Judges Bungalow Road, Bodakdev, Opp. Pushkar Flats, Ahmedabad – 380 054. [PAN – AGWPP 4542 L] Vs. The Addl. Commissioner of Income Tax, Central Range-1, Ahmedabad. (Appellant) (Respondent) Assessee by None Revenue by Shri Sanjay Jain, Sr. DR Da te o f He a r in g 05.10.2023 Da te o f P ro n o u n ce m e n t 17.11.2023 O R D E R These two appeals are filed by the Assessee against two different orders, both dated 27.07.2022, passed by the CIT(A)-11, Ahmedabad for the Assessment Years 2012-13 & 2013-14. 2. The assessee has raised identical grounds in both the appeals and hence grounds raised in ITA No.324/Ahd/2022 for A.Y. 2012-13 are being reproduced as under:- “1. In law and in the facts and circumstances of the appellant's case, the Ld. CIT (A) has erred in not accepting the contention that the impugned penalty order was time barred and thus was bad in law. 1.1 Without prejudice to above, in law and in the facts and circumstances of the appellant's case, the Ld. CIT (A) ought to have held that order passed by AO was bad in law as initiation of penalty proceeding itself was time barred considering the return of income filed in December, 2012 which was processed u/s.143(1). The Department cannot take benefit of the search proceedings and get the period for initiation of penalty proceedings extended, particularly, when the loan or re-payment thereof are not found to be non- genuine. ITA Nos.324 & 325/Ahd/2022 Assessment Years: 2012-13 & 2013-14 Page 2 of 4 1.2 Without prejudice to above, in law and in the facts and circumstances of the appellant's case, the penalty order passed by AO is time barred as the initiation of penalty proceedings was made in February, 2021 and accordingly, the outer time limit for levy of penalty would have expired on 31.08.2021. 2. In the facts and circumstances of the appellant's case, the Ld. CIT (A) has erred in not deleting the penalty levied by the Additional CIT. 2.1 The Ld. CIT (A) has failed to appreciate that loans/deposit or its repayment is not found to be non-genuine and thus levy of penalty u/s.271E was not justified. 2.2 The Ld. CIT (A) ought to have appreciated that the loan or deposit are not representing any unaccounted money. Loan or deposits are not found to be representing explanation for unaccounted money found in the course of search and hence having regard to the intention of the provisions of Section-269SS and 269T, the alleged default for re-payment was merely a technical one and no penalty was justified for such technical venial. Accordingly, the penalty was not justified. 2.3 Having regard to the facts and circumstances of the case, the penalty levied deserves to be deleted.” 3. Firstly we are taking Assessment Year 2012-13. The return of income for Assessment Year 2012-13 was filed on 31.12.2012 declaring total income at Rs.8,96,800/-. The return was processed under Section 143(1) of the Income Tax Act, 1961. Subsequently a search under Section 132 of the Act was conducted on 06.04.2017 in Sadbhav Group of cases. The case of the assessee was also covered under Section 132 of the Act and in view of the provisions of Section 153A(1)(v) of the Act, proceedings under Section 153A of the Act were initiated in the assessee’s case for A.Y. 2012-13 to 2017-18. A Notice under Section 153A of the Act was issued on 18.08.2017 requiring the assessee to file the return of income for the year under consideration. After several statutory notices, the assessee furnished various submissions which was taken on record by the Assessing Officer. The Assessing Officer observed that the assessee is a partner in M/s Siddheshwari Infrastructure and M/s Siddheshwari Motors and receiving income by way of remuneration, interest, profit etc. The assessee has also shown income from other sources. During the assessment proceedings, the Assessing Officer after taking cognisance of the evidences/details observed that there are ITA Nos.324 & 325/Ahd/2022 Assessment Years: 2012-13 & 2013-14 Page 3 of 4 certain cash transaction relating to receipt/repayment of loan otherwise than by account payee cheques/drafts. The Assessing Officer computed total income at Rs.8,96,800/-. Since the details of the loan/deposits transactions found to have been repaid otherwise than by account payee cheques/drafts/e-transactions in violation to the provisions of Section 269T, show cause notice under Section 271E of the Act was issued on 02.02.2021. In response to the said show cause notice, the assessee filed reply dated 24.06.2021. After taking cognisance of the said reply, the Assessing Officer observed that the assessee made a default within the meaning of Section 269T of the Act and, therefore, liable to penalty under Section 271E of the Act and thus levied penalty of Rs.9,10,000/- 4. Being aggrieved by the penalty order under Section 271E of the Act, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. At the time of hearing none appeared on behalf of the assessee despite giving several notices. The said notices were served to the assessee and, therefore, it will be appropriate to proceed with the appeal on the basis of the submissions of the assessee reproduced in the Assessment Order, penalty order as well as order of the CIT(A). 6. Heard the Ld. DR and perused all the relevant material available on record. It is pertinent to note that in the submissions made by the assessee in response to the show cause notice vide letter dated 24.06.2021 it is stated that the transactions were carried out between two genuine bonafide persons for the business exigencies and was duly accounted for in the books of accounts. As there was several lack in the Infrastructure facility at the remote area where the project was undertaken by the sister concern, the assessee had to provide the cash to meet the day-to-day business activities at the project site. But, from the perusal of the submissions, it cannot be revealed that as to what was the project which was carried out/undertaken by the sister concern and how it was relevant to the assessee. The observations made by the CIT(A) as well as by the Assessing Officer that the assessee has not brought on record any evidence under Section 273B in respect of repayment of loan/deposits has been clearly mentioned in the ITA Nos.324 & 325/Ahd/2022 Assessment Years: 2012-13 & 2013-14 Page 4 of 4 Assessment Order as well as in the penalty order. There is no need to interfere with the findings of the CIT(A) and hence appeal of the assessee for A.Y. 2012-13 is dismissed. 7. As regards to ITA No.325/Ahd/2022 for A.Y. 2013-14, the issue is identical as relates to penalty under Section 271E of the Act and there also the assessee could not bring on record the evidences as required under Section 273B of the Act. Hence, ITA No.325/Ahd/2022 for A.Y. 2013-14 is also dismissed. 8. In the result, both the appeals filed by the assessee are dismissed. Order pronounced in the open Court on this 17 th November, 2023. Sd/- (SUCHITRA KAMBLE) Judicial Member Ahmedabad, the 17 th November, 2023 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad