Shri Sanjay RAthore, CHITTORGARH V. ACIT, CHITTORGARH

ITA 414/JODH/2014

• Counselvise Citation: 41423314 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Keywords: Search and seizure
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 414/JODH/2014 414/JODH/2014 414/JODH/2014 414/JODH/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2005 2005 2005 2005 - -- - 06 0606 06 SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, 87, SHASTRI NAGAR, 87, SHASTRI NAGAR, 87, SHASTRI NAGAR, 87, SHASTRI NAGAR, DISTRIC DISTRIC DISTRIC DISTRICT CHITTORGARH. T CHITTORGARH. T CHITTORGARH. T CHITTORGARH. PAN : ACQPR7037Q. PAN : ACQPR7037Q. PAN : ACQPR7037Q. PAN : ACQPR7037Q. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CHITTORGARH, CIRCLE CHITTORGARH, CIRCLE CHITTORGARH, CIRCLE CHITTORGARH, RAJASTHAN. RAJASTHAN. RAJASTHAN. RAJASTHAN. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SHRI S.L. MAURYA, D.R. DATE OF HEARING : 03.09.2015 03.09.2015 03.09.2015 03.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2005-06 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), CENTR AL, JAIPUR DATED 5 TH JUNE, 2014. 2. AT THE TIME OF HEARING OF THE APPEAL, NONE APPEA RED ON BEHALF OF THE ASSESSEE-APPELLANT. THE APPLICATION OF THE ASS ESSEE FOR ADJOURNMENT OF THE CASE WAS REJECTED BY THE BENCH. THEREFORE, THE APPEAL OF THE ASSESSEE IS BEING DECIDED EX PARTE QU A THE ASSESSEE- APPELLANT ON MERITS AFTER HEARING THE LEARNED DR. 3. THE ONLY GROUND OF APPEAL OF THE ASSESSEE IS AS UNDER:- ON THE FACTS & CIRCUMSTANCES OF THE CASE THE HON. COMMISSIONER OF INCOME TAX, (APPEAL) CENTRAL JAIPUR HAS GROSSLY ERRED IN LAW WHILE SUSTAINING THE PENAL TY ITA-414/JODH/2014 2 IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT OF RS.165900/-. 4. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER AND THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT IT IS A CASE WHERE SEARCH AND SEIZURE OPE RATIONS WERE CARRIED ON 09.11.2005 AT THE BUSINESS AND RESIDENTIAL PREMI SES OF THE ASSESSEE GROUP. CERTAIN ADDITIONS WERE MADE AND PE NALTY WAS IMPOSED U/S 271(1)(C) OF THE ACT. THE ASSESSING OF FICER HELD THAT IT WAS A FIT CASE FOR IMPOSITION OF PENALTY U/S 271(1) (C) SINCE THE DEFAULT WAS CLEARLY ESTABLISHED. THE CASE OF THE ASSESSEE IS THAT THE PENALTY HAS BEEN LEVIED MERELY ON THE BASIS OF ADDITION MAD E IN THE QUANTUM CASE OF THE ASSESSEE AND THE ASSESSING OFFICER HAS OVERLOOKED THE FACT THAT TEMPORARY FINANCIAL ASSISTANCE WAS EXTENDED BY THE ASSESSEE TO HIS BROTHER-IN-LAW OUT OF AVAILABLE CASH BALANCE OF THE PETROL PUMP. THE ASSESSEE HAS CLAIMED THAT AVAILABILITY OF FUNDS WAS PROVED AT THE PRELIMINARY STAGE OF THE ASSESSMENT PROCEEDINGS AND HAS NOT BEEN DOUBTED IN ASSESSMENT OR PENALTY ORDER. WE FIND TH AT THESE SUBMISSIONS OF THE ASSESSEE COULD NOT BE CONTROVERT ED BY THE REVENUE. THE RECIPIENT OF THE AMOUNT HAS ALSO FILE D AN AFFIDAVIT IN SUPPORT OF THE CASE OF THE ASSESSEE. WE FIND THAT THE LEARNED CIT(A) HAS CONFIRMED THE PENALTY ON THE PLEA THAT THE AVAI LABILITY OF CASH WITH THE PETROL PUMP DOES NOT LEAD TO THE LOGICAL CONCLU SION THAT THESE FUNDS WERE GIVEN AS LOAN FROM THE CASH OF PETROL PU MP AND THAT NO CORRESPONDING ENTRY OF ADVANCE OF `5 LAKHS FROM THE CASH AVAILABLE WITH THE PETROL PUMP WAS MADE IN THE CASH BOOK. TH IS APPROACH OF THE LEARNED CIT(A) WHILE DEALING WITH THE APPEAL RELATI NG TO IMPOSITION OF PENALTY U/S 271(1)(C) IS NOT SUSTAINABLE IN LAW. T HE ABSENCE OF CORRESPONDING ENTRY OF ADVANCE OF `5 LAKHS FROM THE AVAILABLE CASH IN THE ACCOUNT BOOKS OF THE PETROL PUMP, COULD BE A VA LID GROUND TO ITA-414/JODH/2014 3 SUSTAIN THE ADDITION IN ASSESSMENT PROCEEDINGS ON P REPONDERANCE OF PROBABILITIES, BUT, COULD NOT BE MADE THE BASIS FOR IMPOSITION OF PENALTY FOR CONCEALMENT OF INCOME OR FILING OF INACCURATE P ARTICULARS OF INCOME. IT IS WELL-SETTLED THAT THE PARAMETERS OF JUDGING T HE VALIDITY OF ADDITION IN THE ASSESSMENT CASE OF THE ASSESSEE AND THE PENA LTY LEVIED U/S 271(1)(C) OF THE ACT WERE TOTALLY DIFFERENT. NO OT HER INCRIMINATING MATERIAL HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO PROVE THE CHARGE OF CONCEALMENT OF INCOME OR FILING OF INACCU RATE PARTICULARS. IN THESE FACTS OF THE CASE, WE ARE OF THE CONSIDERED V IEW THAT IT IS NOT A FIT CASE FOR IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT, WHICH IS ACCORDINGLY CANCELLED, AND THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 04.09.2015 . SD/- SD/- ( (( ( R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, SHRI SANJAY RATHORE, 87, SHASTRI NAGAR, DISTRICT CHITTORGARH. 87, SHASTRI NAGAR, DISTRICT CHITTORGARH. 87, SHASTRI NAGAR, DISTRICT CHITTORGARH. 87, SHASTRI NAGAR, DISTRICT CHITTORGARH. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME T AX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CHITTORGARH, RAJASTHAN. CIRCLE CHITTORGARH, RAJASTHAN. CIRCLE CHITTORGARH, RAJASTHAN. CIRCLE CHITTORGARH, RAJASTHAN. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR