SHRI VINOD KUMAR BAJAJ, JAIPUR V. INCOME TAX OFFICER, WARD-3-4, JAIPUR

ITA 396/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5169 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Keywords: Business income; Tax effect; Reassessment proceedings
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 395 & 396/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 VINOD KUMAR BAJAJ, B-23/24, CITY CENTRE, SANSAR CHAND ROAD, JAIPUR. C UKE VS. I.T.O. WARD-3(4), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AHDPB 9737 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKS J LS @ ASSESSEE BY: SMT. SUHANI MAHARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A), ALWAR DATED 05/02/2019 FOR THE A.Y. 2009-10 IN THE MATTER OF IMPOSITION OF PENALTY U/S 271A AND 271B OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE HAS FILED ORIGINAL RETURN ON 11/02/2011 DECLARING BUSINESS INCOME UNDER PRESUMPTIVE SCHEME OF TAXATION U/S ITA 395 & 396/JP/2019 VINOD KUMAR BAJAJ VS ITO 2 44AF DECLARING BUSINESS INCOME OF RS. 3,73,490/- ON TURNOVER OF RS. 39,99,042.30. LATER ON REASSESSMENT PROCEEDINGS WAS STARTED AND ASSESSEE FILED SAME INCOME AND TURNOVER IN RESPONSE TO NOTICE U/S 148 OF THE ACT. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, THE A.O. ENHANCED THE TURNOVER OF THE ASSESSEE BY MEAGRE AMOUNT OF RS. 87,132/- ON THE PLEA THAT THE ASSESSEE HAS DEPOSITED CASH IN THE BANK ACCOUNT AMOUNTING TO RS. 40,86,174/-. BEFORE THE A.O. IT WAS EXPLAINED THAT SOURCE OF CASH WAS IN THE FOLLOWING FORM: A CASH SALES B CASH RECEIPTS FROM TRADE DEBTORS C CASH WITHDRAWAL FROM BANKS (EVIDENT FROM BANK STATEMENT PLACED ON PAGE NO. 5013 OF PAPER BOOK) ACCORDINGLY, THE ADDITION ON ACCOUNT OF CASH DEPOSITED INTO BANKING ACCOUNT WAS WRONG AND UNJUSTIFIED ON FACTS. HOWEVER, ASSESSEE DID NOT PREFER TO FILE APPEAL AGAINST THE ADDITION SINCE TAX EFFECT WAS OF RS. 800/-. HOWEVER, THE A.O. LEVIED PENALTY U/S 271A OF THE ACT FOR NON- MAINTENANCE OF BOOKS OF ACCOUNT STATING THAT THE ASSESSEE WAS NOT ENTITLED TO OPT PRESUMPTIVE SCHEME OF TAXATION U/S 44AF IN VIEW OF ENHANCED TURNOVER AND THERE WAS NO IMMUNITY TO MAINTAIN BOOKS OF ACCOUNT. ITA 395 & 396/JP/2019 VINOD KUMAR BAJAJ VS ITO 3 3. I FOUND THAT THE ENHANCEMENT OF SALES WERE MADE BY ALLEGING DEPOSIT OF CASH IN THE BANK ACCOUNT PART OF WHICH WAS OUT OF WITHDRAWAL FROM THE VERY SAME BANK ACCOUNT. DEPOSIT OF SUCH AMOUNT WITHDRAWN FROM THE BANK DO NOT CONSTITUTE THE SALES, THEREFORE, THERE IS NO JUSTIFICATION FOR ALLEGING INCREASE SALES MERELY ON THE GROUND OF DEPOSIT OF CASH IN THE BANK ACCOUNT. I ALSO FOUND THAT THE ASSESSEE BEING RETAILER HAVING TURNOVER OF LESS THAN RS. 40.00 LACS HAS CORRECTLY DECLARED N.P. @ MORE THAN 5% UNDER THE PRESUMPTIVE SCHEME. ACCORDINGLY, I DO NOT FIND ANY MERIT IN THE PENALTY SO IMPOSED U/S 271A OF THE ACT FOR NON- MAINTENANCE OF BOOKS OF ACCOUNT. ONCE THE ASSESSEE HAS NOT LIABLE TO MAINTAIN BOOKS OF ACCOUNT, THEREFORE, THERE IS NO REASON TO GET THE SAME AUDITED, THEREFORE, THERE IS NO JUSTIFICATION EVEN FOR LEVY OF PENALTY U/S 271B OF THE ACT. I DIRECT THE A.O. TO DELETE THE PENALTY SO IMPOSED. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL; @ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER, 2019 ITA 395 & 396/JP/2019 VINOD KUMAR BAJAJ VS ITO 4 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI VINOD KUMAR BAJAJ, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O. WARD-3(4), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 395 & 396/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR