MOHD ZUBAIR H QURESHI, NAVI MUMBAI V. ITO 13(1)(1), MUMBAI

ITA 435/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2996 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-04-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SNEHA R SARBHUSHAN
• Keywords: Unexplained cash credit
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.435/MUM/2013 ASSESSMENT YEAR 2002-03 MOHD. ZUBAIR H QUERESHI APMC FRUIT MARKET, TURBE, NAVI MUMBAI-400705 / VS. ITO-13(1)-(12), R. NO.419, 4 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AAAPQ7919E !' # / ASSESSEE BY MS. SNEHA R SARBHUSHAN $ / REVENUE BY SHRI RANDHIR GUPTA-DR $% & # ' / DATE OF HEARING : 20/10/2015 & # ' / DATE OF ORDER: 20/10/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 29/11/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING PENALTY OF RS.61,200/-, IMPOSED U/S 271( 1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). MOHD. ZUBAIR H. QUERESHI ITA NO.435/MUM/2013 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD MS . SNEHA R. SARBHUSHAN, LD. COUNSEL FOR THE ASSESSEE A ND SHRI RANDHI GUPTA, LD. DR. THE CRUX OF ARGUMENT ADVANCE D ON BEHALF OF THE ASSESSEE IS THAT NEITHER THERE IS CON CEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME, AS THE ASSESSEE, DULY EXPLAINED THE RECEIPT OF RS.2 LAKH FROM M/S RAIEN TRADING CORPORATION ALONGWITH T HE GENUINENESS OF THE TRANSACTION AND THE IDENTITY. O N THE OTHER HAND, THE LD. DR, DEFENDED THE IMPOSITION AS WELL AS CONFIRMATION OF PENALTY. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE ASSESSEE DECLARED TAXABLE INCOME OF RS.2,05,220/- IN HIS RETURN ANNEXED WITH TAX AUDIT REPORT IN FORM NO. 3CD AND 3CB AS PER THE PROVISIONS OF SECTI ON 44AB OF THE ACT. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, THE RETURN WAS SELECTED FOR SCRUTINY AS PER COMPUTERIZED PROCEDURE. THE ASSESSMENT WAS COMPLETE D U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS.40,55,840/- BY MAKING THE ADDITION OF RS.5,45,00 0/- AS UNEXPLAINED CASH CREDIT, RS.11,70,000/- AGAIN AS UNEXPLAINED CASH CREDIT AND RS.21,35,621/- AS ADDIT ION U/S 40A(III) OF THE ACT. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHEREIN, ADDITION FOR LOAN OF RS.2 LAKH WAS CONFIRMED AND THE BALANCE ADDITION OF RS.3,45,000/- WAS DELETED (OUT OF ADDITION OF RS.4,45,000/-). THE DEPARTMENT FILED APPEAL BEFORE THE MOHD. ZUBAIR H. QUERESHI ITA NO.435/MUM/2013 3 TRIBUNAL AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE ASSESSEE FILED CROSS OBJECTIO NS. THE TRIBUNAL SET ASIDE THE MATTER TO THE FILE OF THE AS SESSING OFFICER. THE ASSESSEE FILED MISCELLANEOUS APPLICATI ON BEFORE THE TRIBUNAL WITH RESPECT TO ORDER DATED 14/05/2008 , SETTING ASIDE THE ISSUE OF DISALLOWANCE OF RS.21,35,621/-, MADE U/S 40A(III) OF THE ACT. THE ORDER WAS RECALLED. THE S TAND OF THE REVENUE IS THAT THE ASSESSEE DID NOT FILE CONFIRMAT ION OF LOAN FROM HIKMATULLA M. ZUBER FOR THE AMOUNT OF RS.2 LAK H. PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT. BEFORE US, THE ASSESSEE HAS FILED AN AFFIDAVIT THAT MD. ZUBER H. QURESHI AND HIKMATULLA MOHAMMED ZUBAIR ARE ONE A ND THE SAME PERSON AND THE BUSINESS IS RUN IN THE NAME OF HIKMATULLA MOHAMMED ZUBAIR HMZ IMPEX. IN THIS AFFI DAVIT, IT HAS BEEN CONFIRMED THAT DURING A.Y. 2002-03, LOA N OF RS.2 LAKH WAS RECEIVED FROM RAIEN TRADING CORPORATION VI DE CHEQUE NO.78181 DATED 04/02/2002 AND COPY OF CONFIRMATION AND BANK STATEMENT HIGHLIGHTING THE LO NG TRANSACTIONS FORMS PART OF THE PAPER BOOK (PAGES 35 & 43). THE LD. COUNSEL EXPLAINED THAT THESE DOCUMENTS WERE ALSO FILED BEFORE THE REVENUE AUTHORITIES. IN VIEW OF T HIS FACTUAL POSITION, THOUGH ADDITION WAS MADE AND NO APPEAL WA S FILED BY THE ASSESSEE AGAINST THE QUANTUM ADDITION, THERE FORE, WE ARE OF THE VIEW THAT QUANTUM AND PENALTY PROCEEDING S ARE ALL TOGETHER DIFFERENT. THE ADDITION WAS CONFIRMED BY T HE AUTHORITIES ON THE BASIS THAT LOAN CONFIRMATION WIT H RESPECT TO RS.2 LAKH COULD NOT BE FILED BY THE ASSESSEE. T OTALITY OF FACTS, CLEARLY INDICATES THAT AT LEAST THE PENALTY OF MOHD. ZUBAIR H. QUERESHI ITA NO.435/MUM/2013 4 RS.61,200/- IMPOSED U/S 271(1)(C) OF THE ACT CANNOT SURVIVE. WE ARE NOT COMMENTING ANYTHING ON THE QUANTUM ADDIT ION AS NO APPEAL WAS FILED BY THE ASSESSEE. THUS, WE DIRE CT THE ASSESSING OFFICER AT LEAST TO DELETE PENALTY IMPOSE D TO THE TUNE OF RS.61,200/- AS THE ASSESSEE NEITHER CONCEAL ED THE INCOME NOR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 20/10/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI 5. 3$4 .# , 0 *+' * 5 , % / DR, ITAT, MUMBAI 6. 6! 7% / GUARD FILE. / BY ORDER, /3+# .# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.