M/s Prem Mill Store, Patiala V. ITO, Patiala

ITA 33/CHANDI/2015

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9782 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 08-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: MAYANK JAIN; RISHAV KAPOOR
• Section: 133A; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 33/CHD/2015 (ASSESSMENT YEAR : 2004-05) PREM MILL STORE, VS. THE INCOME TAX OFFICER, GHAGGA ROAD, WARD 3, SAMANA, PATIALA. PATIALA PAN: AABFP0637R (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI MAYANK JAIN & RISHAV KAPOOR RESPONDENT BY : SMT.JYOTI KUMARI, DR DATE OF HEARING : 05.05.2015 DATE OF PRONOUNCEMENT : 07.05.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), PATIALA DATED 27.10.2014 FOR ASSESSME NT YEAR 2004-05, CHALLENGING THE CONFIRMATION OF PENAL TY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE SUR VEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S AZAD ENGINEERING WORKS, BHATINDA. CERTAIN INCRIMINATING DOCUMENTS PERTAIN ING TO 2 THE ASSESSEE WERE FOUND. ACCORDINGLY, IT WAS NOTE D THAT M/S AZAD ENGINEERING WORKS HAD RECEIVED RS.1,14,000 /- FROM THE ASSESSEE AGAINST SALE OF GENERATOR. THE DETAILS ARE NOTED IN THE PENALTY ORDER. IT WAS ALSO NOTED THA T THE ASSESSEE HAS NOT SHOWN THE SAME IN THE RETURN OF IN COME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE HAS AGREED TO THE OF RS.1,14,000/- SUBJECT TO NO PE NALTY UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSIN G OFFICER VIDE SEPARATE ORDER LEVIED THE PENALTY. 3. IT WAS SUBMITTED BEFORE THE LEARNED CIT (APPEAL S) THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME AND ASSESSEE HAS N OT MADE ANY PAYMENT TO M/S AZAD ENGINEERING WORKS. IT IS AN ESTIMATED ADDITION. THEREFORE, NO PENALTY MAY BE LEVIED. THE LEARNED CIT (APPEALS), HOWEVER, DISMISSED THE A PPEAL OF THE ASSESSEE. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON R ECORD. WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE IN TH E ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE FILED RETURN OF INCOME AT RS.4800/- ON 25.10.2004. THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE AC T FINDING ESCAPEMENT OF INCOME IN A SUM OF RS.1,14,00 0/- IN QUESTION. ON THE BASIS OF THE MATERIAL ON RECORD, IT WAS FOUND THAT THE ASSESSEE HAD MADE PAYMENT OF RS.1,14 ,000 TO M/S AZAD ENGINEERING WORKS FOR PURCHASE OF GENER ATOR DURING THE ASSESSMENT YEAR IN QUESTION. THE SURVE Y WAS 3 CONDUCTED IN THE CASE OF M/S AZAD ENGINEERING WORK S AND INCRIMINATING MATERIAL WAS ALSO FOUND AGAINST THE A SSESSEE REGARDING RECEIPT OF THE AMOUNT IN QUESTION. THE ASSESSEE INITIALLY STATED THAT THERE WAS NO TRANSACTION ENTE RED INTO BETWEEN THIS PARTY. HOWEVER, LATER ON THE ASSESSE E AGREED FOR ADDITION OF RS.1,14,000/-. THIS FACT CLEARLY SHOWS THAT THE ASSESSEE HAD MADE PAYMENT TO M/S AZAD ENGINEERI NG WORKS OUT OF UNDISCLOSED SOURCES FOR WHICH ADDITION HAS BEEN MADE AT THE ASSESSMENT STAGE IN A SUM OF RS.1,14,000/-. THIS FACT CLEARLY PROVES THAT THE ASSESSEE HAS NOT DISCLOSED THE PARTICULARS OF INCOME OF RS.1 ,14,000/- IN THE ORIGINAL RETURN OF INCOME AND EVEN IN THE RE TURN OF INCOME UNDER SECTION 147/148 OF THE ACT, THE SAME A MOUNT WAS ALSO NOT DISCLOSED. SINCE THE REVENUE DEPARTM ENT COLLECTED THE MATERIAL AGAINST THE ASSESSEE PRIOR T O RE- ASSESSMENT PROCEEDINGS, THEREFORE, IT IS NOT A CASE OF VOLUNTARY SURRENDER AT ALL. FURTHER THE HON'BLE S UPREME COURT IN THE CASE OF MAK DATA P. LTD., 358 ITR 593 HELD THAT THERE IS NO CONCEPT OF VOLUNTARY SURRENDER UN DER THE INCOME TAX ACT AND PENALTY HAS TO BE LEVIED. SIN CE IN THIS CASE, THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OF MAKING PAYMENT OF RS.1,14,000/- AND THE ASSESSEE AGREED FOR ADDITION AT THE ASSESSMENT PROCEEDINGS, THEREFORE, IT IS A FIT CASE OF LEVY OF PENALTY. I T IS FURTHER A CASE OF NO EXPLANATION BY THE ASSESSEE AT ANY STAGE . THEREFORE, THE EXPLANATION-1 TO SECTION 271(1)(C) O F THE ACT IS CLEARLY EFFECTED AGAINST THE ASSESSEE. THE LEA RNED COUNSEL FOR ASSESSEE RELIED UPON THE ORDER OF THE I .T.A.T., 4 CHENNAI BENCH IN THE CASE OF G. RAMKUMAR VS. DCIT, 12 TAXMANN.COM 314, WHICH CANNOT BE GIVEN PREFERENCE A GAINST THE JUDGMENT OF THE HON'BLE SUPREME COURT REFERRED TO ABOVE. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THIS APP EAL OF THE ASSESSEE. THE SAME IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF MAY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH MAY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH