Shri Rajiv Sarin, Indore V. The ITO, Indore

ITA 332/IND/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 47761 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Keywords: Opportunity of being heard; Revised return

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.332/IND/2010 A.Y.2006-07 RAJIV SARIN INDORE PAN ASWPS1142D APPELLANT VS INCOME TAX OFFOCER 1(3), INDORE RESPONDENT APPELLANT BY : SHRI H.P. VERMA ALONG WITH SHRI GIRISH AGRAWAL RESPONDENT BY : SHRI P.K. MITRA O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 24.2.2010 ON THE GROUND THAT THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMIN G THE LEVY OF 2 PENALTY AMOUNTING TO RS. 8,30,000/- IMPOSED U/S 271 (1) OF THE ACT. 2. DURING HEARING, WE HAVE HEARD THE RIVAL SUBMISSI ONS OF THE PARTIES AND HAVE GONE THROUGH THE MATERIAL AVAI LABLE ON THE FILE. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESS EE IS THAT THE ASSESSEE IS AN AGRICULTURIST, HIS 85 YEARS OLD FATH ER WAS SERIOUSLY ILL, THEREFORE, NO EXPLANATION REGARDING CASH DEPOSIT COULD BE FURNISHED. A PLEA WAS ALSO RAISED THAT TH E COUNSEL FOR THE ASSESSEE TO BUY PEACE WITH THE DEPARTMENT SURRE NDERED THE AMOUNT AND RS. 11,26,504/- WAS DEPOSITED AS TAX BETWEEN 31.12.2008 AND 9.1.2009 BY FURTHER SUBMITTING THAT THERE IS NO LOSS TO THE REVENUE. A PLEA WAS ALSO RAISED THAT T HE ASSESSEE DOES NOT MAINTAIN BOOKS OF ACCOUNTS AND SINCE THE A SSESSMENT WAS GETTING TIME BARRED ON 31.12.2008, ASSESSMENT W AS HURRIEDLY FRAMED. A STRONG PLEA WAS RAISED THAT DU E TO AILMENT OF HIS 85 YEARS OLD AGED FATHER, THE ASSESSEE COULD NOT EVEN FILE REVISED RETURN AND THE DEPARTMENT MERELY ACTED UPON AIR INFORMATION REGARDING THE CASH DEPOSIT IN THE BANK, THEREFORE, THERE WAS EVERY LIKELIHOOD THAT THE SAME WOULD HAVE BEEN 3 DECLARED BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT SINCE THE DEPOSIT IS OUT OF SALE OF AGRICULTURAL LAND/SALE OF AGRICULTURAL PRODUCTS, TH EREFORE, THE SAME WAS EVEN OTHERWISE NOT TAXABLE. HOWEVER, TO B UY PEACE WITH THE DEPARTMENT, THE AMOUNT WAS SURRENDERED AND DUE TAXES WERE PAID. THE LD. COUNSEL FOR THE ASSESSEE A LSO CONTENDED THAT THE SURRENDER WAS MADE BY THE LD. CO UNSEL FOR THE ASSESSEE ON THE ASSURANCE OF THE DEPARTMENT NOT TO LEVY PENALTY U/S 271(1) OF THE ACT BUT THE DEPARTMENT I N ITS OWN WISDOM RETRACTED FROM THE ASSURANCE AND IMPOSED PEN ALTY. EVEN THE ASSESSEE DID NOT PREFER APPEAL BEFORE THE APPELLATE AUTHORITY AS DUE TO THE DEATH OF THE FATHER, THE AS SESSEE WAS TOTALLY CONFUSED AND WAS UNDER THE REASONABLE BELIE F THAT NO FURTHER DAMAGE WILL BE DONE BY THE DEPARTMENT. ON T HE OTHER HAND, THE LEARNED SENIOR DEPARTMENTAL REPRESENTATI VE, SHRI P.K.MITRA, STRONGLY DEFENDED THE CONFIRMATION OF PE NALTY BY SUBMITTING THAT IF NO NOTICE WOULD HAVE BEEN SERVED UPON THE ASSESSEE, THE IMPUGNED AMOUNT COULD HAVE REMAINED UNDETECTED, THEREFORE, THE PENALTY WAS RIGHTLY IMPO SED. 4 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSE SSEE IS AN AGRICULTURIST AND CLAIMED TO HAVE DEPOSITED THE CAS H AMOUNT IN FEDERAL BANK OUT OF THE SALE PROCEEDS OF THE LAND. AN AIR INFORMATION WAS RECEIVED BY THE DEPARTMENT REGARDIN G CASH DEPOSIT OF RS.39,01,200/- OUT OF WHICH THE ASSESSEE SURRENDERED RS. 24,53,017/- WHICH WAS ADDED AS UNEX PLAINED INCOME. THERE IS NO DISPUTE TO THE FACT THAT IT WA S A VOLUNTARY SURRENDER TO PURCHASE PEACE WITH THE DEPARTMENT AND SINCE THE OLD AGED FATHER OF THE ASSESSEE WAS UNDER TREATMENT , THEREFORE, THE ASSESSEE IN THE ABSENCE OF SUFFICIENT TIME, MAD E THE SURRENDER AND PAID THE DUE TAXES (RS. 5 LACS ON 31. 12.2008 AND RS. 6,26,504/- ON 9.1.2009). ULTIMATELY, THE F ATHER OF THE ASSESSEE EXPIRED ON 2.5.2009. DURING THIS DIFFICULT PERIOD, THE ASSESSEE COULD NOT CO-RELATE THE DEPOSITS UPTO 30.1 2.2008 AS THE ASSESSMENT WAS GETTING TIME BARRED AND THE ASSE SSEE WAS BUSY IN THE TREATMENT OF HIS FATHER. DURING THIS PE RIOD, THE COUNSEL FOR THE ASSESSEE, IN THE ABSENCE OF DETAILS , 5 SURRENDERED THE AMOUNT AND COOPERATED WITH THE DEPA RTMENT AND PAID THE FULL TAXES. DURING ARGUMENTS, THE LD. COUNSEL FOR THE ASSESSEE ALSO TOOK A PLEA THAT THE AGRICULTURAL LAND WAS SOLD FOR RS. 14,90,000/- AND PAID RS. 1,90,000/- AS GAIN AND THE SAME WAS ACCEPTED BY THE ASSESSING OFFICER. THE RE MAINING INCOME WAS CLAIMED TO BE FROM AGRICULTURAL SOURCES WHICH WAS OTHERWISE NOT TAXABLE. THERE IS NO MENTION IN ANY ORDER THAT THE ASSESSEE WAS HAVING OTHER SOURCE OF INCOME. IT IS ALSO NOT CLEAR WHETHER THE REMAINING CASH DEPOSIT WAS OUT OF SALE PROCEEDS OF THE LAND OR FROM THE AGRICULTURAL INCOM E OF EARLIER YEARS. THIS CASE HAS NOT BEEN ANALYSED FROM THIS A NGLE AND SINCE THE ASSESSMENT WAS GETTING TIME BARRED, IT WA S COMPLETED MERELY ON THE BASIS OF SURRENDER MADE BY THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE, KEEPING IN VIE W THE TOTALITY OF FACTS AND IN THE INTEREST OF JUSTICE, B Y TAKING A LENIENT VIEW, WE REMAND THIS MATTER TO THE FILE OF THE ASSE SSING OFFICER FOR FRESH ADJUDICATION/EXAMINATION OF THE ISSUE FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE 6 ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 20 TH APRIL, 2011. (R.C.SHARMA) (JOGIND ER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH APRIL, 2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE DN/-