Vishakhaben P. Dangasia, Surat V. The Dy. CIT, Central Circle-3, Surat

ITA 34/AHD/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9757 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-12-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 07-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD . . , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.34/AHD/2014 ( / ASSESSMENT YEAR : 2004-05) VISHAKHABEN P. DANGASIA 120, NARAYANMUNI NAGAR, NEAR SWAMINARAYAN GURUKUL VED ROAD, SURAT-395004. / VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, SURAT. ./ ./ PAN/GIR NO. :AIYPD 7699 G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.K. PATEL, A.R. / RESPONDENT BY : SHRI SURENDRA KUMAR, D.R. / DATE OF HEARING 06/12/2016 / DATE OF PRONOUNCEMENT 13/12/2016 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL AGAINST THE LEVYING PENALTY OF RS.41,325/- U/S.271(1)(C) ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, AHMEDABAD, DATED 08/10/2013 FOR THE ASSESSMENT YEAR (AY) 2004-05. ON THE FACTS OF THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN LEVYING PENALTY OF RS.41,325/- U/S.271(1)(C) OF THE INCOME TAX ACT,1961. ITA NO.34/AHD/2014 VISHAKHABEN P. DANGASIA VS.DY. CIT ASST.YEAR 2004-05 - 2 - (2) FACTS OF THE CASE ARE THE ASSESSEE/APPELLANT FILED HER RETURN DECLARING TOTAL INCOME OF RS.49,310/- ON 10/03/2008, THEREAFTER, AN ORDER U/S.143(3) READ WITH SECTION 153(C) OF THE ACT WAS PASSED ON 18/12/2008 AT A TOTAL INCOME OF RS.1,87,060/-, MAKING ADDITION OF RS.1,37,750/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN PLOT. PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT WERE INITIATED AT THE TIME OF PASSING THE ASSESSMENT ORDER FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITH FOLLOWING OBSERVATION THAT DURING THE PENALTY PROCEEDINGS, THE ASSESSEE HAS TAKEN THE PLEA THAT SHE HAS NEITHER CONCEALED THE PARTICULARS OF HER INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME AND FILED HER DETAILED REPLY STATING THAT IN THE ASSESSMENT YEAR OF 2002-03 AND THE UNACCOUNTED DEPOSIT OF RS.1,70,000/- IN A.Y. 2004-05 WAS UTILIZED FOR INVESTMENT IN THE PROPERTY. HOWEVER, ON VERIFICATION OF THE PURCHASE DEED OF THE SAID PROPERTY, THE PURCHASE DEED OF THE SAID PROPERTY, THE PURCHASE DEED WAS PREPARED ON 17/04/2003 AND ALL THE PAYMENTS RELATED TO THE SAID PLOT HAVE BEEN MADE ON THE SAME DAY BY CASH BY THE PURCHASE PARTIES. THIS CLEARLY INDICATES THAT THE ASSESSEE HAS MADE THE PAYMENT TOWARDS THE PURCHASE OF THE SAID PLOT ON 17/04/2013. ON VERIFICATION OF THE BANK STATEMENT IN THE CASE OF SHRI PARBATBHAI DANGASIA, THE DEPOSITS AS STATED BY THE ASSESSEE ARE MADE. IT IS CLEARLY SEEN THAT THE ASSESSEE HAS MADE DEPOSITS OF RS.2,10,450/- BEFORE THE PURCHASE OF THE PROPERTY. THE DEPOSIT OF RS.1,70,000/- WAS MADE IN THE MONTH OF DECEMBER, 2003 I.E. 9 MONTHS AFTER PREPARING THE PURCHASE DEED. THUS THIS AMOUNT OF RS.1,70,000/- IS NOT AT ALL USED BY THE ASSESSEE FOR PURCHASING THE SAID PROPERTY. ITA NO.34/AHD/2014 VISHAKHABEN P. DANGASIA VS.DY. CIT ASST.YEAR 2004-05 - 3 - 3. DURING THE PENALTY-PROCEEDINGS, NO COGENT EXPLANATION HAS BEEN FURNISHED BY THE ASSESSEE NEITHER AT THE TIME OF ASSESSMENT PROCEEDINGS NOR DURING PENALTY PROCEEDINGS FOR ITS FAILURE TO SHOW THE TRUE PICTURE OF ITS INCOME FOR THE YEAR UNDER CONSIDERATION. 4. AND FINALLY AS PER THE DEPARTMENT, ASSESSEE HAS COMMITTED THE DEFAULT IN CONCEALING ITS INCOME AND FURNISHING INACCURATE PARTICULARS OF ITS INCOME WITHOUT ANY REASONABLE CAUSE AND THEREFORE SHE WAS LIABLE FOR LEVY OF PENALTY U/S.271(1)(C). 5. WE HAVE GONE THROUGH THE RELEVANT ACCOUNT AND IMPUGNED ORDER AND HEARD THE LD.AR. THE ASSESSEES SUBMISSION WAS AT THE TIME OF ASSESSMENT PROCEEDINGS AS WELL AS DURING THE PENALTY PROCEEDINGS HAVE BEEN THAT THE INVESTMENT IN THE SAID PLOT WAS MADE BY HER HUSBAND SHRI PARBAT DANGASIA AS SHE DID NOT SUFFICIENT FUND WITH HER AND ONLY HER NAME WAS ADDED TO THE REGISTRY DOCUMENTS. THE AO AS WELL AS THE CIT(A) FOUND THAT HER HUSBAND HAD DEPOSITED ONLY RS.1,90,450/- IN A.Y.2003-04 AND NEXT DEPOSIT IN HIS BANK ACCOUNT WAS FOR RS.1,70,000/- IN DECEMBER, 2003 WHICH WAS MUCH LATER THAN THE DATE OF PURCHASE I.E. 17 TH APRIL, 2003. WE JUST FAIL TO UNDERSTAND THAT SHE HAS INVESTED PART PAYMENT AND WHEREAS MAXIMUM PAYMENT MADE BY HER HUSBAND AND NO ACTION WAS TAKEN AGAINST HER HUSBAND AND IN ANY PROCEEDING AND SHE HAS BEEN ALLEGEDLY COMMITTED THE DEFAULT IN CONCEALING ITS INCOME WITHOUT ANY REASONABLE CAUSE. IN OUR CONSIDERED OPINION HOW SHE CAN BE IN ITA NO.34/AHD/2014 VISHAKHABEN P. DANGASIA VS.DY. CIT ASST.YEAR 2004-05 - 4 - DEFAULT OF FURNISHING INACCURATE PARTICULARS AND CONCEALING INCOME BOTH. AT THE MOST SHE CAN BE IN DEFAULT IN EITHER CONCEALMENT OF INCOME WOULD HAVE BEEN THERE OR FURNISHING OF INACCURATE PARTICULARS. 6. THEREFORE, IN OUR OPINION THIS IS NOT A FIT CASE FOR LEVYING OF PENALTY U/S. 271(1)(C) AND THE ORDER OF THE CIT(A) IS QUASHED AND APPEAL OF THE APPELLANT IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/12/2016 SD/- SD/- . . ( ) ( ) ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/12 /2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-II, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY