Asif Latifbhai Khimani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(4), RAJKOT-GUJARAT

ITA 352/RJT/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76425 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 28-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 27-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR J B JHAVERI
• Assessee Lawyers: R K TAKWANI
• Keywords: Income from undisclosed sources
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 352/RJT/2013 ASSESSMENT YEAR : 2008-09 ASIF LATIFBHAI KHIMANI, 3-NEHRUNAGAR, B/H. AMRAPALI CINEMA, NR. SAIYAD MANZIL, RAIYA ROAD, RAJKOT PAN : ANJPK 9688 E ( / APPELLANT) THE I.T.O., WARD-2(4), RAJKOT / RESPONDENT / ASSESSEE BY SHRI R.K. TAKWANI, CA / REVENUE BY DR. J. B. JHAVERI, DR / DATE OF HEARING 28.01.2014 !'# / DATE OF PRONOUNCEMENT 29.01.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 23.07.2013 OF CIT(A)- III, RAJKOT CONFIRMING THE PENALTY OF RS.32,261/- L EVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 FOR THE ASSES SMENT YEAR 2008-09. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, HE FILED THE RETURN OF INCOME ON 25.02.2009 DECLARING TOTAL INCOME AT RS.1,12,890/-. THE ASSESSING OFFICER FRAM ED ASSESSMENT U/S 143(3) OF THE INCOME-TAX ACT ON 22.12.2010, WHEREIN HE MADE ADDIT ION OF RS.1,62,477/- AS INCOME FROM UNDISCLOSED SOURCES. THIS ADDITION WAS MADE BY ESTIMATING THE INCOME U/S 44AF IN RESPECT OF SALES RECEIPTS AGGREGATING TO RS .23,21,102/- WHICH IS NOT SHOWN BY THE ASSESSEE. ON THIS ADDITION, THE ASSESSING OF FICER ALSO INITIATED PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT. SUBSEQUENTLY, THE ASSESSING OFFICER LEVIED PENALTY OF RS.32,261/- U/S 271(1)(C) OF THE INCOME-TAX ACT ON ADDITION OF RS.1,62,477/- WHICH WAS MADE IN THE ASSESSMENT ORDER BEING 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED. 3. ON APPEAL, IN THE IMPUGNED ORDER, LD. CIT(A) CON FIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-T AX ACT FOR THE DETAILED REASONS GIVEN IN PARAGRAPH 5 OF THE IMPUGNED ORDER, WHICH R EADS AS UNDER:- 2 352-RJT-2013 ASIF LATIFBHAI KHIMANI (SMC) 5. I HAVE CONSIDERED CAREFULLY, THE SUBMISSION MAD E BY THE APPELLANT AND THE DISCUSSION MADE IN THE PENALTY ORDER. ALL THE C ASE LAWS REFERRED TO IN BY THE AUTHORIZED REPRESENTATIVE ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THIS IS A CASE WHERE THE APPELLANT HAS SUPPRE SSED CASH DEPOSITS TO THE TUNE OF RS.23,21,102/- APPEARING IN THE BANK ACCOUN T MAINTAINED WITH THE ICICI BANK LTD FROM TAXATION. THIS IS NOTHING BUT C ONCEALMENT, HIT BY THE PROVISIONS OF SECTION 271(1)(C). IN ORDER TO EVADE THE TAX, THE APPELLANT HAS DELIBERATELY SUPPRESSED SALE RECEIPTS WHICH HAVE FO UND WAY TO THE BANK ACCOUNT AS CASH DEPOSITS AMOUNTING TO RS.23,21,102/ -. THEREFORE, THE ACTION TAKEN BY THE ASSESSING OFFICER IN LEVYING THE PENAL TY AT A MINIMUM OF 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED AT RS.32,261/ - IS HEREBY UPHELD. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THIS TRIBUNAL, ON THE FOLLOWING GROUNDS:- LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-III, RAJKOT HAS ERRED IN LAW AND ON FACT IN CONFORMING OF PENALTY U/S 271(1)(C) OF THE ACT OF RS.32,261/-. THE PENALTY MAY KINDLY BE DELETED AND JUSTICE BE DO NE. 4. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI R.K. TAKWANI, CA, APPEARED AND POINTED OUT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FILED A REVISED PROFIT AND LOSS ACCOUNT, W HEREIN HE HAS INCLUDED THE SALES WHICH WAS NOT RECORDED EARLIER IN THE BOOKS OF ACCO UNTS. THEREFORE, THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT IS NOT LEVIABLE. AS AGAINST THIS, LD. DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE ASSESSEE SUPPRE SSED THE SALES RECEIPTS TO THE EXTENT OF RS.23,21,102/- WHICH IS NOTHING BUT CONCE ALMENT, HIT BY THE PROVISIONS OF SECTION 271(1)(C); THEREFORE, THE ORDER OF LD. CIT( A) CONFIRMING THE PENALTY OF RS.32,261/- LEVIED BY THE ASSESSING OFFICER U/S 271 (1)(C) BE UPHELD. 5. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS SUPPRESSED THE CASH DEPOSITS TO THE TUNE OF RS.23,21,102/- APPEARING IN THE BANK ACCOUNT MAINTAINED WITH THE ICICI BANK LTD FROM TAXATION. THIS INFORMATION WAS IN THE POSSESSION OF DEPARTMENT AND WHEN THE ASSESSING OFFICER CONFRONTE D THE SAME TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE FILED THE REVISED PROFIT AND LOSS ACCOUNT. THE ENTIRE CONDUCT OF THE ASSESSE E INDICATES THAT INITIALLY THERE WAS NO INTENTION ON THE PART OF THE ASSESSEE TO DISCLOS E THE SALE PROCEEDS OF RS.23,21,102/-. KEEPING IN VIEW OF THIS CONSPICUOU S FACTS OF THE CASE, I AM OF THE 3 352-RJT-2013 ASIF LATIFBHAI KHIMANI (SMC) VIEW THAT LD. CIT(A) IS LEGALLY AND FACTUALLY CORRE CT IN CONFIRMING THE PENALTY OF RS.32,261/- LEVIED BY THE ASSESSING OFFICER U/S 271 (1)(C) OF THE INCOME-TAX ACT, 1961. I, THEREFORE, DECLINE TO INTERFERE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 29.01.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- ASIF LATIFBHAI KHIMANI, 3-NEHRUNAGAR, B/H. AMRAPALI CINEMA, NR. SAIYAD MANZIL, RAIYA ROAD, RAJKOT 2. / RESPONDENT- THE I.T.O., WARD-2(4),RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-II, RAJKOT 4. * * 2- / CIT (A)-III, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT