VINAY BHASIN (hUF), MUMBAI V. ITO WD 19(3)(4), MUMBAI

ITA 3373/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1574 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 01-12-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E ,MUMBAI BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3373/MUM/2015 FOR (ASSESSMENT YEAR : 2006-07 ) VINAY BHASIN (HUF) 33, SEA BREEZE APARTMENTS, BULLOCK ROAD, OFF BAND STAND, BANDRA (WEST) MUMBAI 400050 PAN: AAEHV1503P VS. ITO WARD NO 19(3) PIRAMAL CHAMBERS, PAREL, MUMBAI -400012 (APPELLANT) (RESPONDENT) REVENUE BY : NONE ASSESSEE BY : SH. T.A. KHAN (DR) DATE OF HEARING : 01.12.2016 DATE OF PRONOUNCEMENT : .12.2016 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL BY THE ASSESSEE FILED U/S 253 OF THE IN COME-TAX ACT (ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [FOR SHORT THE CIT(A)] 34, MUMBAI DATED 24 TH OF MARCH 2015 FOR ASSESSMENT YEAR (AY) 2006- 07. THOUGH THE ASSESSEE HAS RAISED AS MANY AS SIX G ROUND OF APPEAL, HOWEVER AS PER OUR CONSIDERED OPINION THE ONLY SUBSTANTIAL GROUND OF APPEAL IS WHETHER LD COMMISSIONER (APPEALS) ERRED IN NOT DELETING THE P ENALTY OF RS. 2,90,800/- LEVIED BY ASSESSING OFFICER UNDER SECTION 271(1)(C ) OF TH E ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR WAS COMPLETED U/S 143(3) ON 19 DECEMBER 2008. IN THE AS SESSMENT THE ASSESSING OFFICER TREATED THE LONG TERM CAPITAL GAIN ON SALE OF SHARES OF RS. 10,27,753/- OF M/S ROHINTON WORLDWIDE TRADE LTD AS UNEXPLAINED CA SH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED TO THE INCOME OF THE ASSESSEE. ON APPEAL THE ADDITION WAS VINAY BHASIN(HUF) ITA NO.3373/M/2015 2 CONFIRMED BY LD COMMISSIONER (APPEALS). AFTER DISMI SSAL OF THE APPEAL IN QUANTUM ASSESSMENT BY LD COMMISSIONER (APPEALS), THE AO ISS UED SHOW CAUSE NOTICE FOR LEVYING PENALTY U/S271(1) ( C ) . THE ASSESSEE CONT ESTED THE INITIATION OF PENALTY AND FILED ITS REPLY DATED 05.03.2013. IN REPLY THE ASSE SSEE CONTENDED THAT THERE WAS NO CONCEALMENT OF FACT AND ALL PARTICULARS OF TRANSACT ION OF SALE OF SHARE WERE DISCLOSED. THE AO CONCLUDED THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NEITHER SUBSTANTIATED NOR BONAFIDE, AND THUS EXPLANATION 1 TO SECTION 271(1) (C ) WOULD COME IN TO PLAY. IT WAS FURTHER CONCLUDED THAT ASS ESSEE DELIBERATELY SHOWED THE INCOME THROUGH MODUS OPERANDI ADOPTED BY HIM. THE A O CONSIDERED IT AS PENNY STOCK. AND THE AO CONCLUDED THAT THE ASSESSEE FURN ISHED INACCURATE PARTICULAR OF INCOME TO AVOID THE PAYMENT OF TAX. THE AO LEVIED T HE PENALTY @ 100% OF TAX SOUGHT TO BE EVADED. AGGRIEVED BY THE ORDER OF PENA LTY THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER (APPEALS) BUT NO SUCCESS. T HUS, FURTHER AGGRIEVED BY THE ORDER OF COMMISSIONER (APPEALS) THE PRESENT APPEAL IS FILED BEFORE US. 3. NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE WHOSE A UTHORITY LETTER (POWER OF ATTORNEY) IS ON RECORD APPEARED BEFORE US WHEN CASE WAS CALLED FOR HEARING. WE HAVE NOTED THAT THE ASSESSEE WAS SERVED WITH THE NO TICE OF HEARING OF APPEAL FOR TODAY THROUGH RPAD ON 23 RD NOV 2016 AT THE ADDRESS GIVEN BY ASSESSEE IN THE FORM NO. 36 OF APPEAL. AS NONE APPEARED BEFORE US D ESPITE WAITING FOR SUFFICIENT TIME WE LEFT NO OPTION EXCEPT TO PROCEED FURTHER AN D TO HEAR THE SUBMISSION OF LD REPRESENTATIVE OF REVENUE. WE HAVE HEARD LD DR FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD DR FOR THE REVENUE ARGUED THAT THE ASSESSEE FILED APPEAL AGAINST THE ADDITION IN QUANTUM ASSESS MENT BEFORE COMMISSIONER (APPEALS) AND THE SAME WAS DISMISSED. THE ASSESSEE HAS NOT FILED ANY FURTHER APPEAL BEFORE TRIBUNAL. IT WAS FURTHER ARGUED THAT THE ASS ESSEE HAS NOT SUBSTANTIATED HIS CLAIM NOR GAVE ANY SATISFACTORY EXPLANATION IN THE REPLY TO THE NOTICE UNDER SECTION 271(1) (C). THE ASSESSEE HAS DELIBERATELY SHOWN TH E INCOME THROUGH A MODUS OPERANDI ADOPTED BY HIM THROUGH PENNY STOCK AND THE REBY FURNISHED INACCURATE PARTICULARS OF INCOME AND AVOIDED PAYMENT OF TAX ON TRUE AND CORRECT INCOME. VINAY BHASIN(HUF) ITA NO.3373/M/2015 3 4. WE HAVE CONSIDERED THE SUBMISSION OF LD DR FOR THE REVENUE AND FURTHER GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE AO LEV IED THE PENALTY HOLDING THAT THE ASSESSEE TRIED TO GIVE THE TRANSACTION OF LTCG AS A COLOR OF GENUINE WITH THE HELP OF SERIES OF TRANSACTION WHICH WAS NOT FOUND TO BE GEN UINE AND THE SAME WAS TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 IN THE ASS ESSMENT ORDER. THE AO FURTHER OBSERVED THE SHARES WERE PURCHASED BY THE ASSESSEE OFF THE MARKET. THE SAID OFF MARKET TRANSACTION DONE IN M/S ROHIBSON WORLDWIDE TRADE LTD WAS ONLY A DEVISE ADOPTED BY THE ASSESSEE. THE PAYMENTS WERE MADE IN CASH. THE PURCHASE WAS NOT EXPLAINED BY ASSESSEE. THE SAID SHARE WERE PURCHASE D @ RS. 7.36/- PER SHARE AND SOLD @ RS.102.97/- PER SHARE, WHICH WAS ONLY A DEVI SE TO CONVERT HIS BLACK MONEY INTO WHITE MONEY. IN APPEAL BEFORE COMMISSIONER (AP PEALS) THE ASSESSEE FILED COPIES OF SALE CERTIFICATES, CERTIFICATE OF STANDA RD CHARTERED BANK CONFIRMING THE FACILITIES TO DE-MAT ACCOUNT TRANSFERRING THE SAL ES USING THIS ACCOUNT AND OTHER CERTIFICATE OF STANDARD CHARTERED BANK REGARDING SA LE OF 1000 SHARES ON 31 JANUARY 2006 RS. 10,11,500/-. THE ASSESSEE FURTHER CONTENDE D THAT THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY. THE LEARNED COMMISSIONER (APPEALS) WHILE CONSIDERING THE CONTENTION OF ASSESSEE UPHELD THE ACTION OF AO BY R EFERRING VARIOUS DECISION OF HONBLE APEX COURT AS REFERRED IN PARAGRAPH 4 OF HI S ORDER. BEFORE US, THE ASSESSEE HAS NEITHER FILED ANY DOCUMENTARY EVIDENCE NOR COME FORWARD TO SUBSTANTIATE HIS DEFENSE. THE ASSESSEE HAS NOT DISCHARGED THE ONUS C AST UPON HIM. HENCE, WE DO NOT FIND ANY MERIT IN THE GROUNDS OF APPEAL RAISED BEFO RE US. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH DAY OF DECEMBER 2016. SD/- SD/- (D. KARUNAKRAR RAO) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 07/12/2016 S.K.PS VINAY BHASIN(HUF) ITA NO.3373/M/2015 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) (/ THE CIT(A), MUMBAI. 4. / CIT 5. , ! ' , / DR, ITAT, MUMBAI 6. #$% /GUARD FILE. & //TRUE COPY/