Chandrakanta Pradhan, Bhubaneswar V. ITO, Bhubaneswar

ITA 376/CTK/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5440 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 31-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: D K SHETH

Judgement Text

1 ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377 /CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378 /CTK/2015: ASSESSMENT YEAR : 2010 - 2011 CHANDRAKANTA PRADHAN, PLOT NO.885, KAPIL PRASAD, OLD TOWN, BHUBANESWAR. VS. ITO, WARD 1(2), BHUBANESWAR. PAN/GIR NO. AGWPP 8905 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI D.K.SHETH, AR REV ENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 08 /08/ 2017 DATE OF PRONOUNCEMENT : 09 /08/ 2017 O R D E R PER N.S.SAINI, AM THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE CIT(A) - 1, BHUBANESWAR , ALL DATED 22.7.2015 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. IN ITA NO.376/CTK/2015 , THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED U/S.271A OF RS.25,000/ - . 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNT BUT HE COULD NOT PRODUCE ANY BOOKS 2 ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 OF ACCOUNTS AND ONLY PRODUCED PURCHASE BILLS/INVOICE. THEREFORE, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT AS REQUIRED U/S.44AA(I) OF THE ACT AND LEVIED PENALTY OF R.25,000/ - U/S.271A OF THE ACT FOR NON - MAINT ENANCE OF BOOKS OF ACCOUNT IN VIOLATION OF SECTION 44AA OF THE ACT . 4. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. BEFORE US, NO PLAUSIBLE REASON HAS BEEN GIVEN BY LD A.R. OF THE ASSESSEE TO EXPLAIN THE REASON FOR NON - MAINTENA NCE OF BOOKS OF ACCOUNT BY THE ASSESSEE. HENCE, WE FIND NO GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, APPEAL FILED BY THE ASS ESSEE IS DISMISSED. 7 . IN ITA NO.377/CTK/2015 , THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.31,085/ - U/S.271B OF THE ACT. 8 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER FOUND FROM THE BANK ACCOUNTS OF THE ASSESSEE THAT THERE WERE DEPOSITS TO THE TUNE OF RS.62,16,989/ - DURING THE RELEVANT PREVIOUS YEAR. THE TOTAL DEPOSITS WERE CONSIDERED TO BE THE TURNOVER OF THE ASSESSEE AND THE PROFIT WAS DETERMINED ON ESTIMATION THEREON. SINCE THE TURNOVER WAS TAKEN AT RS.62,16,989/ - , WHICH EXCEEDS RS.40 LAKHS, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271B OF THE ACT FOR FAILURE ON THE PART OF THE 3 ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ASSESSEE TO GET THE ACCOUNTS AUDITED U/S.44AB AND LEVIED PENALTY OF RS.31,085/ - U/S. 271B OF THE ACT. @ % OF THE TURNOVER OF RS.62,16,989/ - . 9 . ON APPEAL, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 10. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES, WE FIND THAT THE ASSESSING OFFICE R HAS LEVIED THE PENALTY U/S.271B OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT GOT ITS ACCOUNT AUDITED U/S.44AB OF THE ACT. WE ALSO FIND THAT THE ASSESSING OFFICER HIMSELF HAS HELD THAT THE ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNT, BILLS AND VOUCH ER AND, THEREFORE, DETERMINED THE INCO ME OF THE ASSESSEE BY APPLYING 7.67 % TO THE GROSS SALES OF RS.62,16,989/ - . THUS, WHEN THE ASSESSING OFFICER HAS COME TO THE CONCLUSION THAT THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNT, THEREFORE, IT CANNOT BE PRO DUCED BEFORE HIM AND THE QUESTION OF GETTING ITS ACCOUNTED AUDITED U/S.44AB DOES NOT ARISE. THE ASSESSING OFFICER HAS LEVIED PENALTY U/S.271A OF THE ACT FOR NON - MAINTENANCE OF BOOKS OF ACCOUNT BY THE ASSESSEE , WHICH IS CONFIRMED BY US IN THE APPEAL FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND D ELETE THE PENALTY OF RS.31,085 / - LEVIED U/S.271B OF THE ACT AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. 4 ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 12 . IN ITA NO.378/CTK/2015 , THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.26,108/ - U/S.271(1)(C) OF THE ACT. 13 . THE BRIEF FACTS ARE THAT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD DISCLOSED LES SER TURNOVER OF RS.39,31,172/ - WHEREAS THE TURNOVER WHICH WAS QUANTIFIED ON THE BASIS OF DEPOSIT IN THE BANK ACCOUNT AT RS.62,16,989/ - . THEREFORE, THE ASSESSING OFFICER ESTIMATED THE PROFIT @ 7.67% OF THE TOTAL TURNOVER OF RS.62,16,989/ - . THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME OF RS.26,108/ - . 14. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT SINCE IN THE ASSESSMENT ORDER, THE INCOME WAS ESTIMATED, THE ASSESSE E CANNOT BE TREATED TO HAVE CONCEALED HIS INCOME OR HAVE FURNISHED ANY INACCURATE PARTICULARS OF HIS INCOME. 15. THE CIT(A) CONFIRMED THE LEVY OF PENALTY OBSERVING THAT THERE WAS CLEAR CASE OF SUPPRESSION OF TURNOVER TO THE EXTENT OF RS.22,85,817/ - ( RS.62,16,989 RS.39,31,172/ - ). THIS SUPPRESSION OF TURNOVER COULD NOT HAVE COME TO LIGHT HAD THE ASSESSING OFFICER NOT EXAMINED THE BANK ACCOUNTS. THE ASSESSEE HAS NOT GIVEN ANY CONVINCING REASONS FOR NOT DISCLOSING THE ACTUAL TURNOVER. 16. BEFORE US , LD A.R. THOUGH SUBMITTED THAT PENALTY SHOULD BE DELETED AS THE INCOME OF THE ASSESSEE WAS ESTIMATED BY THE ASSESSING OFFICER BUT 5 ITA NO.376/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.377/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 ITA NO.378/CTK/2015: ASSESSMENT YEAR : 2010 - 2011 COULD NOT CONTROVERT THE FINDINGS OF THE CIT(A) THAT THIS WAS A CASE OF SUPPRESSION OF TURNOVER TO THE EXTENT OF RS.22,85,817 / - . HENCE, WE FIND NO GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 17. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRO NOUN CED IN THE OPEN COURT ON 09 /08/2017. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 09 /08/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : CHANDRAKANTA PRADHAN, PLOT NO.885, KAPIL PRASAD, OLD TOWN, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD - 1(2), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//