Sh. Jora Singh, Ferozepur Cantt. V. The Income-tax Officer, Ferozepur City.

ITA 403/ASR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9653 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Keywords: Unexplained investment; Additional evidence
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.403(ASR)/2014 ASSESSMENT YEAR:2008-09 PAN: AYIPS7832C SHRI JORA SINGH VS. INCOME TAX OFFICER, FEROZEPUR. WARD 3(2), FEROZEPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIONS RESPONDENT BY: SH. S.S. KANWAL, DR DATE OF HEARING: 14/07/2016 DATE OF PRONOUNCEMENT: 01/08/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2008-09, AGAINST THE CONFIRMATION OF PENALTY OF RS.58,270/-, LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE A.Y. 2008-09, THE ASSESSEE, VI DE ORDER SHEET ENTRY DATED 22.11.2010, WAS ASKED TO FURNISH COPIES OF B ANK STATEMENTS OF CITI BANK AND HDFC BANK. FROM THE PERUSAL OF THE ST ATEMENTS SO FILED, IT WAS SEEN THAT THE ASSESSEE HAD DEPOSITED MONEY I N CASH TOTALING TO RS.56.19 LAKH ON DIFFERENT DATES IN HDFC BANK AND C ITI BANK. THE ITA NO.403/ASR/2014 A.Y. 2008-09 2 ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THESE C ASH ENTRIES. HOWEVER, THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH D EPOSITED TOTALING TO RS.2.01 LAKH. THEREFORE ADDITION OF RS.2.01 LAKH WA S MADE TO THE RETURNED INCOME UNDER SECTION 69 OF THE I.T. ACT, 1 961 BY TREATING THE SAME AS UNEXPLAINED INVESTMENT DURING THE YEAR BY THE ASSESSEE. 3. THE PENALTY IN QUESTION WAS LEVIED ON THE ASSESS EE IN CONSEQUENCE OF THE ABOVESAID ADDITION. THE LD. CIT(A) CONFIRMED THE PENALTY BY VIRTUE OF THE IMPUGNED ORDER. 4. BEFORE THIS BENCH, NONE HAS PUT APPEARANCE ON B EHALF OF THE ASSESSEE. WRITTEN SUBMISSIONS HAVE BEEN FILED AND T HE FORWARDING LETTER ATTACHED THEREWITH REQUESTS THE APPEAL TO BE DECID ED ON THE BASIS OF THE WRITTEN SUBMISSIONS ALONGWITH THE DOCUMENTARY EVIDE NCE AND CASE LAWS REFERRED THEREIN. 5. THE APPEAL WAS INITIALLY HEARD ON 09.03.2016. HO WEVER, IT WAS REFIXED FOR 23.065.2016 VIDE ORDER SHEET NOTING DAT ED 27.05.2016, WHICH READS AS FOLLOWS: ON 23.05.2016, THE MATTER WAS ADJOURNED TO 09.06.2 016 AT THE WRITTEN REQUEST OF THE ASSESSEE AND ON 09.06.2016, AGAIN AT THE WRITTEN REQUEST OF THE ASSESSEE, THE MATTER WAS FIX ED FOR 14.07.2016. 6. A LETTER DATED 13.07.2016 HAS BEEN RECEIVED FRO M THE LD. COUNSEL FOR THE ASSESSEE, STATING AS FOLLOWS: RESPECTFULLY IT IS SUBMITTED THAT THE CASE HAS BEE N FIXED UP FOR HEARING ON 14.07.2016. THE WRITTEN SUBMISSIONS ALON GWITH PAPER ITA NO.403/ASR/2014 A.Y. 2008-09 3 BOOK AND DOCUMENTARY EVIDENCE, ETC. (TWO SETS) HAD ALREADY BEEN FILED FOR YOUR PERUSAL AND KIND CONSIDERATION PLEA SE. IT HAD ALSO BEEN REQUESTED THAT THE CASE BE DECIDED ON THE BASIS OF THE WRITTEN SUBMISSION AS WELL AS THE DOCUMENTARY E VIDENCE ALONGWITH THE JUDICIAL CITATIONS ALREADY SUBMITTED AND PLACED ON RECORD. AGAIN, IT IS REQUESTED TO DECIDE THE SAME A S REQUESTED ABOVE AND OBLIGED. SD/- DATED 13.07.2016 (CA. JASWINDER SINGH) 7. IT WAS ON THE BASIS OF THE ABOVE, THAT THE LD. D R WAS HEARD. HE HAS STRONGLY SUPPORTED THE IMPUGNED ORDER. 8. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE L D. CIT(A) HAD CALLED FOR A REMAND REPORT FROM THE AO. THE REMAND REPORT DATED 17.02.2014, AS REPRODUCED IN PARA 1.4 OF THE IMPUGN ED ORDER, READS AS FOLLOWS: 3.2. REGARDING THE CONTENTION OF THE ASSESSEE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS VERBAL LY CONTENDED BEFORE THE AO THAT AN AMOUNT OF RS.2.00 LACS WAS TAKEN AS AN ADVANCE FROM THE COMMISSION AGENT M/S. V.K. TRADING CO. IS NOT ACCEPTABLE AS THERE APPEARS NOT HING ON RECORD TO SUGGEST THAT ANY SUCH CONTENTION WAS MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S BEFORE THE AO. ORDER SHEET ENTRY DATED 29.12.2010 READS AS CASE DISCUSSED IN THE LIGHT OF THE REPLY FURNISHED BY TH E ASSESSEE AND REPORT OF THE INSPECTOR. AN ADDITION OF RS. 201 000/- IS MADE ON A/C OF UNEXPLAINED CASH DEPOSITS IN THE BAN K U/S 69 AND PENALTY U/S 271(1)(C) PROCEEDINGS FOR CONCEALIN G THE INCOME OF RS. 201000/- ARE INITIATED'. 3.3 THE ASSESSEE'S CONTENTION THAT HE HAD TAKEN RS. 2 LACS AS AN ADVANCE FROM THE COMMISSION AGENT M/S V.K. TR ADING CO. IS NOT ADMISSIBLE. AS PER THE CERTIFICATE DATED 01.08.2011 ITA NO.403/ASR/2014 A.Y. 2008-09 4 OF M/S V.K. TRADING CO. AN AMOUNT OF RS.200000/- HA S BEEN GIVEN BY M/S V.K. TRADING CO. AGAINST AGRICULTURE P RODUCE ON 25.03.2008. 3.4 BUT PERUSAL OF INSPECTOR'S REPORT DATED 27.12.2 010, SUPRA, REVEALS THAT THE UNEXPLAINED SUM OF RS.2.01 LAC REPRESENTS DIFFERENT AMOUNTS ON DIFFERENT DATES WHI CH EVEN NOW HAVE NOT BEEN EXPLAINED BY THE ASSESSEE. AS PER INSPECTORS REPORT, AMOUNTS WHICH REMAINED UNEXPLAIN ED WERE AS UNDER:- DATE AMOUNT 16.08.2007 RS. 15,000/- CASH DEPOSIT IN HDFC 20.08.2007 RS.22,000/- -DO- 23.08.2007 RS.33,500/- -DO- 27.08.2007 RS.1,30,000/- -DO TOTAL RS. 2,00,500/- 3.4 AS PER THE CERTIFICATE OF M/S V.K. TRADING CO., AN AMOUNT OF RS.200000/- HAS BEEN GIVEN BY M/S V.K. TR ADING CO. ON 25.03.2008, BUT AS PER INSPECTOR'S REPORT TH E UNEXPLAINED AMOUNTS OF RS.2.01 LAC RELATE TO THE PE RIOD AUG- 2007 AND THE SAME STILL HAVE NOT BEEN EXPLAINED BY THE ASSESSEE. THE CONTENTION OF THE ASSESSEE ON THIS IS SUE APPEARS TO BE AN AFTER-THOUGHT AND MISREPRESENTATIO N OF FACTS. 3.5 PENALTY U/S 271(1)(C) HAS BEEN LEVIED BY THE A O VIDE ORDER DATED 28.06.2011 AT RS.58270/- WITH THE PRIOR APPROVAL OF THE JT. COMMISSIONER OF INCOME TAX, RANGE-ILL, F EROZEPUR AS CONVEYED VIDE HIS LETTER NO.JCIT/R-LLL/FEROZEPUR/20 11- 12/407 DATED 27/28.06.2011 ON THE AMOUNT OF RS.2.01 LACS OF UNEXPLAINED INCOME. ASSESSEE HAS CONTENDED THAT HE HAS SURRENDERED RS.40000/- VIDE LETTER DATED 27.12.2010 DURING ASSESSMENT PROCEEDINGS SUBJECT TO CONDITION THAT NO PENALTY U/S 271(1)(C) OR PROSECUTION SHOULD BE MADE IN THIS CASE, BUT EVEN THEN PENALTY WAS INITIATED AND IMPOSED BY THE AO. THIS CONTENTION OF THE ASSESSEE IS NOT TENABLE. AS PER L ETTER DATED 27.12.2010 SUPRA, THE SURRENDER OF RS. 40000/- .VAS MADE ON ACCOUNT OF HOUSEHOLD EXPENDITURE; AND NO PENALTY U/ S 271(1)(C) HAS BEEN INITIATED OR LEVIED BY THE AO ON THE ISSUE OF HOUSE HOLD EXPENSES. PENALTY U/S 271 (1)(C) HAS BEE N INITIATED AND LEVIED ON THE ADDITION MADE ON ACCOUNT OF UNEXP LAINED CASH OF~RS.2.01 LAC DEPOSITED IN HE BANK. NO VOLUNT ARY SURRENDER HAS BEEN MADE BY THE ASSESSEE ON THIS ACC OUNT DURING THE ASSESSMENT PROCEEDINGS ITA NO.403/ASR/2014 A.Y. 2008-09 5 9. WHILE CONFIRMING THE LEVY OF PENALTY ON THE ASSE SSEE, IT WAS HELD AS FOLLOWS: 1.5. AFTER CAREFUL PERUSAL OF THE PENALTY ORDER/WRITTEN SUBMISSIONS AND REMAND REPORT THE PENALTY IMPOSED U /S 271(1)(C) AMOUNTING TO RS.5270/- IS CONFIRMED ON A CCOUNT OF THE FOLLOWING REASONS;- I) THE APPELLANT FAILED TO EXPLAIN THE SOURCE) OF CASH DEPOSIT AMOUNTING TO RS.2.01 LAC IN THE SAVING BANK ACCOUNT EITHER DURING THE COURSE OF ASSESSMENT OR PENALTY PROCEEDI NGS, EVEN IF THE CERTIFICATE OF AMOUNT RECEIVED FROM M/S V.K. TRADING CO. FEROZEPUR CITY IS ADMITTED AS ADDITIONAL EVIDENCE. IT IS BECAUSE OF THE FACT THAT THE CERTIFICATE DATED 01.0 8.2011 CERTIFIES THAT THE AMOUNT OF RS.2 LAC WAS GIVEN TO SH. JORA SINGH ON 25.03.2008 BUT THE APPELLANT DEPOSITED T HE CASH ON VARIOUS DATES FROM 16.08.2007 TO 27.08.2007. THUS T HE CERTIFICATE IS OF NO HELP TO THE APPELLANT. THIS F ACT HAS BEEN HIGHLIGHTED BY THE AO IN HIS REMAND REPORT IN A VER Y APPROPRIATE MANNER. II) THE SURRENDER F THE AMOUNT OF RS.40000/- WAS M ADE BY THE APPELLANT ON ACCOUNT OF HOUSE HOLD EXPENDITU RE AND NO PENALTY WAS INITIATED BY THE AO ON THIS AMOUNT. 10. IT, THUS, REMAINS UNDISPUTED THAT WHEREAS THE C ERTIFICATE OF M/S. V.K. TRADING COMPANY, FEROZEPUR, COMMISSION AGENT, STATED THAT THE AMOUNT OF RS. 2 LAKHS WAS GIVEN TO THE ASSESSEE ON 25.03.2008, THE CASH DEPOSIT IN THE ASSESSEES BANK ACCOUNT HAD BEEN MAD E PRIOR THERETO, I.E., IN THE PERIOD FROM 16.09.2007 TO 27.08.2007. THAT B EING SO, THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS. 2.01 LAKHS IN HIS SAVINGS BANK ACCOUNT, AS CORRECTLY OBSERVED BY THE LD. CIT(A). ITA NO.403/ASR/2014 A.Y. 2008-09 6 11. IN VIEW OF THE ABOVE, THE CONFIRMATION OF LEVY OF THE PENALTY IN QUESTION IS FOUND TO BE IN ORDER. THE LD. CIT(A)S ORDER, ACCORDINGLY, IS UPHELD. 12. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/08/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 01/08/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. JORA SINGH, FEROZEPUR. 2. THE ITO, WARD 3(2), FEROZEPUR. 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.