KARAN P. BATRA, MUMBAI V. ACIT CEN CIR 18 & 19, MUMBAI

ITA 3450/MUM/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9848 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL LD
• Assessee Lawyers: SHAILESH PARMARLD
• Keywords: Unexplained cash credit
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.3537 & 3448/MUM/2014 ( / ASSESSMENT YEARS: 2006-07 & 2007-08) NISHA P. BATRA 321, TRILOK BUILDING 1 ST FLOOR NEAR MADHUPARK, KHAR(W) MUMBAI 400 052 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 18 & 19 AAYKAR BHAVAN MUMBAI -400 020 ./ ./PAN/GIR NO. AFIPB-8047-H ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) & ./I.T.A. NO.3572,3445 & 3446/MUM/2014 ( / ASSESSMENT YEARS:2005-06,2006-07 & 2007- 08) BIPIN P BATRA 321, TRILOK BUILDING 1 ST FLOOR NEAR MADHUPARK, KHAR(W) MUMBAI 400 052 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 18 & 19 AAYKAR BHAVAN MUMBAI -400 020 ./ ./PAN/GIR NO. AJWPB-7711-Q ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) 2 & ./I.T.A. NO.3449 & 3450/MUM/2014 ( / ASSESSMENT YEARS: 2004-05 & 2007-08) KARAN P. BATRA 321, TRILOK BUILDING 1 ST FLOOR NEAR MADHUPARK, KHAR(W) MUMBAI 400 052 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 18 & 19 AAYKAR BHAVAN MUMBAI -400 020 ./ ./PAN/GIR NO. AJWPB-7713-N ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ASSESSEE BY : SHAILESH PARMAR,LD. AR REVENUE BY : RAJAT MITTAL, LD. DR / DATE OF HEARING : 28/06/2017 / DATE OF PRONOUNCEMENT : 12/07/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEALS BY SEPARATE ASSESSEE FOR V ARIOUS ASSESSMENT YEARS [AY] ASSAILS THE ORDER OF FIRST AP PELLATE AUTHORITY QUA CONFIRMATION OF PENALTY U/S 271(1)(C). SINCE, THE S AME ARISE OUT OF COMMON SET OF FACTS, WE DISPOSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3 ITA NO. 3449/MUM/2014 AY 2004-05 KARAN P. BATRA 2. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS ASSESSED FOR IMPUGNED AY U/S 153C ON 29/12/2008 AT RS.7,86,9 70/- CONSEQUENT TO SEARCH OPERATIONS U/S 132 ON 18/01/2007 ON BATRA GROUP. THE ASSESSEE BEING PART OF THE SAID GROUP WAS ASSESSED U/S 153C SINCE A SONATA NOTE BOOK CONSISTING OF 88 PAGES BELONGING TO ASSESSEE WAS SEIZED. THE REGULAR RETURN FOR IMPUGNED AY WAS FILE D AT RS.1,26,290/- AND THE SAME RETURN WAS OFFERED PURSUANT TO NOTICE U/S 153C. THE ASSESSMENT U/S 153C WAS COMPLETED BY ENHANCING THE RETURNED INCOME BY RS.6,60,680/- ON VARIOUS ACCOUNTS, AGAINST WHICH PENALTY U/S 271(1)(C) WAS INITIATED IN THE QUANTUM ASSESSMENT. 2.1 THE ASSESSEE CONTESTED THE QUANTUM ADDITION BEF ORE LD. CIT(A) AND GOT RELIEF TO THE EXTENT OF RS.2,47,870/- LEAVI NG BALANCE ADDITION OF RS.4,12,810/- AGAINST WHICH AN AMOUNT OF RS.1,21,47 2/- HAS FINALLY BEEN IMPOSED AS PENALTY U/S 271(1)(C) VIDE PENALTY ORDER DATED 29/02/2012 WHICH UPON CONFIRMATION BY LD. CIT(A) VIDE IMPUGNED ORDER DATED 14/02/2014, HAS BEEN CONTESTED BEFORE US. 2.2 THE LD. COUNSEL FOR ASSESSEE [AR] POINTED OUT T HAT THE ASSESSEE SUCCESSFULLY CONTESTED THE BALANCE QUANTUM ADDITION BEFORE THIS TRIBUNAL VIDE ITA NO. 1115/MUM/2011 ORDER DATED 06/ 01/2016 AND THEREFORE, THE PENALTY COULD NOT BE SUSTAINED. THE COPY OF THE SAID ORDER HAS BEEN PLACED BEFORE US. THE LD. DR FAIRLY CONCED ED THE SAME. WE HAVE PERUSED THE SAID ORDER AND CONCUR WITH THE STA ND OF LD. AR. SINCE QUANTUM ADDITIONS HAVE BEEN DELETED IN FULL, THE RE SULTANT PENALTY DOES NOT SURVIVE AND THEREFORE, WE DELETE THE SAME. THE ASSESSEES APPEAL STANDS ALLOWED. 4 ITA NO. 3450/MUM/2014 AY 2007-08 KARAN P. BATRA 3. THE ASSESSEE ON SIMILAR FACTS HAVE SUFFERED ADDI TION OF RS.20,81,285/- IN AN ASSESSMENT U/S 143(3) FOR AY 2 007-08 AND THE SAME UPON APPEAL BEFORE LD. CIT(A) HAS BEEN REDUCED TO RS.10,92,867/- AGAINST WHICH PENALTY OF RS.3,91,984 /- U/S 271(1)(C) HAS BEEN LEVIED ON 29/03/2012. 3.1 THE LD. AR HAS POINTED OUT THAT THE ASSESSEE, I N AN APPEAL AGAINST QUANTUM ORDER, BEFORE THIS TRIBUNAL VIDE ITA NO.111 6/MUM/2011 ORDER DATED 25/04/2014 HAS GOT MAJOR RELIEF LEAVING BALAN CE ADDITION OF RS.27,000/- ON ACCOUNT OF CERTAIN PETTY LOANS OBTAI NED BY THE ASSESSEE, THE CONFIRMATION OF WHICH COULD NOT BE FILED. THE L D. DR FAIRLY CONCEDED THE SAME. WE HAVE PERUSED THE TRIBUNAL ORDER AND CO NCUR WITH THE STAND OF LD. AR. THE BALANCE ADDITION LEFT IS ONLY RS.27,000/- WHICH IS ON ACCOUNT OF TWO PETTY LOANS OF RS.20,000/- & RS.7,00 0/-, THE CONFIRMATION OF WHICH COULD NOT BE FILED BY THE ASSESSEE. SINCE THE MAJORITY OF THE ADDITIONS HAVE BEEN DELETED AND THE BALANCE ADDITIO N IS OF SUCH A NATURE WHICH DOES NOT AMOUNT TO FURNISHING OF INACCURATE P ARTICULARS OF INCOME OR CONCEALMENT OF INCOME, THE RESULTANT PENALTY DOE S NOT SURVIVE AND THEREFORE, BY DELETING THE SAME, WE ALLOW ASSESSEE S APPEAL. ITA NO. 3445/MUM/2014 AY 2005-06 BIPIN P. BATRA 4. THE ASSESSEE HAS SIMILARLY BEEN ASSESSED U/S 153 A AND SUFFERED NET ADDITION OF RS.1,41,810/- ON ACCOUNT OF EXCESS BANK CREDIT, AGAINST WHICH PENALTY OF RS.40,527/- HAS BEEN IMPOSED ON 29 /03/2012 WHICH HAS BEEN CONFIRMED BY LD. CIT(A). AGGRIEVED, THE AS SESSEE IS IN APPEAL BEFORE US. 5 4.1 THE LD. AR POINTED OUT THAT THE REMAINING ADDIT ION IS ON ACCOUNT OF IPO REFUND RECEIVED BY THE ASSESSEE, CERTAIN PRIZE MONEY AND LOAN FROM LIC, THE EXPLANATION OF WHICH WAS FURNISHED BY THE ASSESSEE BUT NOT ACCEPTED BY THE REVENUE AND HENCE, PENALTY WAS NOT JUSTIFIED. THE LD. DR CONTENDED THAT THE ONUS WAS ON ASSESSEE TO E XPLAIN THE TRANSACTIONS AND THEREFORE FAILURE TOWARDS THE SAME HAS RIGHTLY ATTRACTED THE IMPUGNED PENALTY. 4.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDER OF LD. CIT(A). WE FIND THAT THE ASSESSEE HAS SUFFERED THE ADDITION OF RS.1,08,750/- ON ACCOUNT OF LOAN TAKEN FROM LIC, RS .30,060/- ON ACCOUNT OF IPO REFUND AND RS.3,000/- ON ACCOUNT OF PRIZE MO NEY RECEIVED BY THE ASSESSEE. THE SAID ADDITIONS WERE SUSTAINED SINCE T HE ASSESSEE COULD NOT PRODUCE EVIDENCE FOR THE SOURCE OF DEPOSITS. TH IS BEING THE CASE, WE FIND THAT THE NATURE OF QUANTUM ADDITION DOES NOT L EAD TO ANY FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME SO AS TO ATTRACT PENALTY AND THEREFORE, WE ARE INCLINED TO D ELETE THE IMPUGNED PENALTY WHICH RESULT INTO ASSESSEES APPEAL BEING A LLOWED. ITA NO. 3446/MUM/2014 AY 2006-07 BIPIN P. BATRA 5. THE ASSESSEE HAS BEEN SADDLED WITH PENALTY OF R S.28,277/- ON ACCOUNT OF UNEXPLAINED CREDIT IN BANK FOR RS.1,23,3 00/-, WHICH UPON CONFIRMATION BY LD. CIT(A) HAS BEEN ASSAILED BEFORE US. 5.1 THE LD. AR HAS POINTED OUT THAT THE BALANCE ADD ITION OF RS.1,23,300/- REPRESENT TWO IPO REFUND OF RS.82,500 /- & RS.40,800/- AND SINCE THE ASSESSEE COULD NOT PRODUCE EVIDENCE A GAINST THE SAME, THE SAID ADDITIONS HAVE BEEN MADE. THE LD. DR SUPPO RTED THE PENALTY LEVIED UPON THE ASSESSEE. HOWEVER, WE ARE OF THE OP INION THAT SINCE THE 6 SAME WAS TOWARDS IPO REFUND, THE NATURE OF ADDITION S DOES NOT WARRANT FOR IMPOSITION OF PENALTY AND HENCE, BY DELETING TH E SAME, WE ALLOW ASSESSEES APPEAL. ITA NO. 3572/MUM/2014 AY 2007-08 BIPIN P. BATRA 6. THE ASSESSEE HAS BEEN SADDLED WITH A PENALTY OF RS.1,48,188/- ON ACCOUNT OF QUANTUM ADDITION OF RS.12,26,160/- AS SU STAINED BY LD. CIT(A), WHICH UPON CONFIRMATION BY LD. CIT(A), HAS BEEN CONTESTED BEFORE US. 6.1 THE LD. AR HAS POINTED OUT THAT THE ASSESSEE CO NTESTED ADDITION OF RS.11,76,160/- BEFORE THIS TRIBUNAL VIDE ITA NO.111 7/MUM/2011 ORDER DATED 17/06/2016 WHERE THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF LD. AO. REGARDING UNCONTESTED ADDITION OF RS.50,000 /-, IT IS CONTENDED THAT THE SAME REPRESENTED CERTAIN PETTY LOANS, THE CONFIRMATION OF WHICH COULD NOT BE PRODUCED BY THE ASSESSEE. SINCE, THE M AJOR QUANTUM ADDITION HAS BEEN RESTORED BACK TO THE FILE OF LD. AO, THE PENALTY TO THAT EXTENT, FOR THE TIME BEING, DOES NOT SURVIVE. THE R EVENUE IS FREE TO RE- INITIATE THE SAME, IF WARRANTED FOR, ON THE BASIS O F OUTCOME OF QUANTUM ADDITIONS. REGARDING ADDITION OF RS.50,000/- ON ACC OUNT OF PETTY LOANS, THE ADDITIONS ARE NOT OF SUCH A NATURE SO AS TO LEA DING TO FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME AND THEREFORE, WE ARE INCLINED TO DELETE THE SAME. RESU LTANTLY, THE ASSESSEES APPEAL STANDS ALLOWED. ITA NO. 3537/MUM/2014 AY 2006-07 NISHA P. BATRA 7. THE ASSESSEE HAS BEEN ASSESSED U/S 153A AND SADD LED WITH A PENALTY OF RS.24,731/- AGAINST QUANTUM ADDITION OF RS.1.00 LACS 7 TOWARDS EXCESS BANK CREDITS. THE PENALTY, UPON CONF IRMATION BY LD. CIT(A) HAS BEEN ASSAILED BEFORE US. 7.1 THE LD. AR HAS CONTENDED THAT THE QUANTUM ADDIT ION REPRESENT LOAN OBTAINED FROM A PERSON NAMELY PREM PUNJABI AND THE ADDITION HAS BEEN MADE SINCE THE ASSESSEE COULD NOT PRODUCE LOAN CONFIRMATION LETTER FROM THE LENDER. NEVERTHELESS, THE SAME WAS RECEIVED AND REPAID DURING IMPUGNED AY THROUGH ACCOUNT PAYEE CHEQUE AND THEREFORE, THE PENALTY WAS NOT WARRANTED FOR. THE LD. DR JUSTIFIED THE SAME ON THE GROUND THAT THE ASSESSEE FAILED TO DISCHARGE THE ON US OF PROVING THE LOAN TRANSACTION. 7.2 UPON PERUSAL OF RELEVANT MATERIAL ON RECORD, WE ARE INCLINED TO DELETE THE IMPUGNED PENALTY SINCE THE LOAN HAS BEEN RECEIVED AND REPAID BACK BY ACCOUNT PAYEE CHEQUE AND THE ADDITIO N HAS BEEN SUSTAINED ONLY IN VIEW OF THE FACT THAT THE ASSESSE E COULD NOT PRODUCE CONFIRMATION LETTER FROM THE LENDER. RESULTANTLY, T HE ASSESSEES APPEAL STANDS ALLOWED. ITA NO. 3448/MUM/2014 AY 2007-08 NISHA P. BATRA 8. IN THIS YEAR, THE ASSESSEE HAS BEEN SADDLED WITH A PENALTY OF RS.1,48,188/- ON ACCOUNT OF ADDITION OF RS.4,84,275 /- TOWARDS CASH BROKERAGE. 8.1 THE LD. AR HAS POINTED OUT THAT THE ASSESSEE HA S SUCCESSFULLY CONTESTED THE QUANTUM ADDITION BEFORE THIS TRIBUNAL VIDE ITA NO. 1270/MUM/2011 ORDER DATED 06/01/2016, A COPY OF WHI CH HAS BEEN PLACED BEFORE US. THE LD. DR FAIRLY CONCEDED THE SA ME. THEREFORE, SINCE QUANTUM ADDITION HAS BEEN DELETED, THE IMPUGN ED PENALTY DOES NOT SURVIVE WHICH RESULTS INTO ASSESSEES APPEAL BE ING ALLOWED. 8 9. RESULTANTLY, ALL THE APPEALS FILED BY ASSESSEE S TANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 12.07.2017 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. #&. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI