SHRI SAHEBRAO YESHWANTRAO RAUT, Nagpur V. ITO-WARD-5(3), Nagpur

ITA 385/NAG/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1632 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Income from undisclosed sources; Corroborative evidences
• Section: 143(3)

Judgement Text

1 ITA NO. 385/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 385/NAG/2013 ASSESSMENT YEAR : 2009 - 10. SAHEBRAO YASHWANTRAO RAUT, THE INCOME - TAX OFFICER, PLOT NO. 1455, TRIMURTI NAGAR, V/S. WARD - 5(3), NAGPUR. NANDANVAN, NAGPUR. PAN ABFPR7227J APPELLANT. RESPONDENT. APPELLANT BY : SHRI ABHAY AGRAWAL RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 07 - 07 - 2015 DATE OF PRONOUNCEMENT : 14 TH AUGUS T, 2015 O R D E R PER MUKUL K. SHRAWAT, J.M. . THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 10 - 07 - 2013 AGAINST THE CONFIRMATION OF PENALTY LEVIED UNDER SECTION 271(1) (C) OF ` .2,41,400/ - . 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30 TH OF DEC., 2011 AND THE IMPUGNED PENALTY ORDER UNDER SECTION 271(1)(C) DATED 25 - 06 - 2012 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY HAS DECLARED AN INCOME OF ` .3,36,620/ - . THE ASSESSEE IS A RETIRED PERSON FROM NAGPUR MUNICIPAL CORPORATION. THERE WAS AN INFORMATION THAT CERTAIN CASH 2 ITA NO. 385/NAG/2013 DEPOSI T S WERE MADE BY THE ASSESSEE AMOUNTING TO ` .17,65,500/ - IN AXIS BANK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS PLEADED THAT CERTAIN AGRICULTURAL INCOME OF HIS HUF WAS DEPOSITED. HOWEVER, IN THE ABSENCE OF SUPPORTING EVIDENCES, THE ASSESSEE HAS DECIDED TO SURRENDER A SUM OF ` .8,00,000/ - BEFORE THE ASSESSIN G OFFICER BUT WITH A CONDITION THAT NO PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) SHALL BE INITIATED. HOWEVER, THE ASSESSING OFFICER HAS TAXED THE AMOUNT OF ` .8 LAKHS IN THE HANDS OF THE ASSESSEE BUT ALSO INITIATED THE PENALTY PROCEEDINGS. 3. WHILE LEVYIN G THE PENALTY UNDER SECTION 271(1)(C) THE ASSESSING OFFICER HAS CONCLUDED THAT THE ONUS OF PROVING THE SOURCE OF DEPOSIT WAS NOT DISCHARGED. THEREFORE, PENALTY OF ` .2,41,400/ - WAS LEVIED. THE FIRST APPELLATE AUTHORITY HAS CONFIRMED THE SAME. 4. WITH THIS B RIEF FACTUAL BACKGROUND WE HAVE HEARD BOTH THE SIDES. THE ADMITTED FACTUAL POSITION WAS THAT THE ASSESSEE WAS A RETIRED EMPLOYEE OF NAGPUR MUNICIPAL CORPORATION. HE HAD MADE CASH DEPOSIT IN AXIS BANK OF ` .17,65,500/ - OUT OF WHICH A SUM OF ` .8 LAKHS WAS OFF ERED BY THE ASSESSEE AND CORRESPONDINGLY TAXED IN THE HANDS OF THE ASSESSEE. IT IS TRUE THAT THE REVENUE DEPARTMENT HAD NO OTHER MATERIAL IN THEIR POSSESSION TO DEMONSTRATE THE SOURCE OF UNACCOUNTED INCOME IN THE HANDS OF THE ASSESSEE. IN THE CASE OF M/S AGRAWAL ROUND ROLLING MILLS, TAX APPEAL NO. 1 ARISING FROM HIGH COURT ORDER OF BILASPUR (TAX CASE NO. 15/2011) ORDER DATED 22 ND JULU, 2013 WHEREIN AN OBSERVATION WAS THAT THE IMPUGNED SUM WAS ADDED WHICH WAS THAT INCOME WHICH WAS SURRENDERED BY THE ASSES SEE ITSELF. THERE WAS NO RECORDING OF ANY FINDING THAT THE REVENUE HAD 3 ITA NO. 385/NAG/2013 DETECTED ANY INCOME IN HIS POSSESSION OTHER THAN THE SOURCE OF INCOME AS DISCLOSED IN THE RETURN FILED BY THE ASSESSEE. IN THOSE CIRCUMSTANCES, THE VIEW OF THE HONBLE COURT WAS THAT NO CONCEALMENT PENALTY WAS TO BE LEVIED ON THE ASSESSEE. EVEN IN THE CASE OF SHRI VINAY SHARMA DECIDED BY HONBLE DELHI HIGH COURT IN ITA NO. 187/2014 ORDER DATED 2 ND MAY, 2014 IT WAS HELD THAT WHERE THE VOLUNTARY NATURE OF SURRENDER OF INCOME WAS TO BUY PEA CE AND THE CIRCUMSTANCES IN WHICH THE SURRENDERED INCOME COULD BE ACCEPTED LEGITIMATELY THEN IT IS NOT A FIT CASE TO LEVY PENALTY. THEREFORE, CONSIDERING THE DECISIONS CITED IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HEREBY HOLD THAT THIS IS NOT A FIT CASE FOR LEVY OF CONCEALMENT PENALTY ON THE ASSESSEE. WE HEREBY DIRECT TO DELETE THE PENALTY THE GROUND IS ALLOWED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF AUG UST, 2015. SD/ - SD/ - SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER. JUDICIAL MEMBER NAGPUR, DATED: AUGUST, 2015. COPY OF ORDER FORWARDED TO : 1 . THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. 4 ITA NO. 385/NAG/2013 TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR