Smt. Shakuntala Devi Somani, Indore V. The ITO Wd-4(1), Indore

ITA 440/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66774 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: P D NAGAR
• Keywords: Unexplained cash credit

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 440/IND/2012 A.Y. 2008-09 SMT. SHAKUNTALA DEVI SOMANI INDORE PAN AERPS2437L :: APPELLANT VS INCOME TAX OFFICER 4(1) INDORE :: RESPONDENT APPELLANT BY SHRI P.D. NAGAR RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 31.12.2012 DATE OF PRONOUNCEMENT 31.12.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 19 TH JUNE, 2012 PASSED BY THE LEARNED CIT(A) U/S 271(1)( C) OF THE ACT CONFIRMING PENALTY OF RS. 4,40,000/-. 2 2. DURING HEARING, THE LEARNED COUNSEL FOR THE ASSE SSEE, SHRI P.D. NAGAR CONTENDED THAT INITIALLY THE LEARNED ASSESSIN G OFFICER TREATED THE AMOUNT OF RS. 26,35,000/- AS UNEXPLAINED CREDIT S IN THE BANK ACCOUNT AND THE LEARNED ASSESSING OFFICER LEVIED PE NALTY @ 300% WHICH IS QUITE UNJUSTIFIED. A PLEA WAS ALSO RAISED THAT THE LEARNED CIT(A) CONFIRMED THE PENALTY @ 150% OF THE TAX SOUG HT TO BE EVADED. IT WAS ALSO PLEADED THAT THE TRIBUNAL WHILE DECIDING THE QUANTUM APPEAL OF THE ASSESSEE, ACCEPTED THE CLAIM TO THE EXTENT OF 50%, THEREFORE, NO PENALTY IS LEVIABLE. RELIANCE W AS PLACED ON THE DECISION IN CIT VS. STAR PAPER MILLS LTD. (108 CTR (CAL) 224 : 70 TAXMAN 329) TO THE EFFECT THAT SINCE THE TRIBUNAL HAS ACCEPTED THE EXPLANATION OF THE ASSESSEE IN PART, THEREFORE, THE PENALTY SHOULD BE CANCELLED. ON THE OTHER HAND, THE LEARNED SENIOR DR , SHRI R.A. VERMA, CONTENDED THAT SINCE THE TRIBUNAL HAS PASSED A REASONED ORDER, THEREFORE, TO THAT EXTENT, THE PENALTY SHOUL D BE CONFIRMED AND THE PERCENTAGE OF PENALTY TO THE EXTENT AS IMPO SED BY THE ASSESSING OFFICER SHOULD BE CONFIRMED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE 3 ASSESSEE ACQUIRED A HOUSE PROPERTY ON THE PARTITION OF HUF. THE ASSESSEE ALSO CLAIMED TO HAVE RECEIVED JEWELLERY ON THE OCCASION OF MARRIAGE FROM THE PARENTS AND IN-LAWS. THE TRIBUNA L HAS ALREADY CONSIDERED THESE FACTS IN ORDER DATED 21 ST FEBRUARY, 2012 (ITA NO. 289/IND/2011 AND ITA NO. 302/IND/2011). KEEPING IN VIEW THE TOTALITY OF FACTS, OBJECTIONS RAISED BY THE ASSESSI NG OFFICER AND THE CONCLUSION DRAWN BY THE LEARNED CIT(A), THE SALE OF JEWELLERY WHICH WAS REALISED THROUGH ACCOUNT PAYEE CHEQUE, THE ASSE SSEE SHOWED GOLD JEWELLERY AT 1754.950 GMS AND SILVER BULLIONS AT 27.19 KGS, THE PAST HISTORY, FAMILY HISTORY WAS CONSIDERED AND THE CLAIM OF THE ASSESSEE WAS ACCEPTED AT 50% BY THE TRIBUNAL. THE ASSESSING OFFICER WAS DIRECTED TO RECOMPUTE THE CAPITAL GAINS AFTER ALLOWING BENEFIT OF INDEXATION IN RESPECT OF 50% OF JEWELLER Y, ETC. THE LEARNED CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE VI DE IMPUGNED ORDER REDUCED THE QUANTUM OF PENALTY TO THE EXTENT OF 150% OF THE TAX SOUGHT TO BE EVADED. THE LEARNED COUNSEL FOR T HE ASSESSEE VEHEMENTLY ARGUED THAT IN VIEW OF THE AFORESAID DEC ISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF STAR PAP ER MILLS LIMITED (SUPRA), NO PENALTY IS LEVIABLE. WE ARE NOT AGREEI NG WITH THIS POSITION FIRSTLY BECAUSE THE HONBLE HIGH COURT ARR IVED AT A 4 PARTICULAR CONCLUSION TO THE FACTS OF THAT CASE. TH E TRIBUNAL HAS ALREADY PASSED AN EXHAUSTIVE ORDER RUNNING INTO 17 PAGES CONSIDERING ALL THE ASPECTS OF THE CASE AND ULTIMAT ELY ARRIVED AT THE CONCLUSION THAT THE CLAIM OF THE ASSESSEE BE ACCEPT ED TO THE EXTENT OF 50% AND THE ASSESSING OFFICER WAS DIRECTED ACCOR DINGLY MEANING THEREBY THAT UP TO THAT EXTENT, THE CLAIM OF THE AS SESSEE WAS NOT FOUND BONAFIDE. IT CAN BE SAID THAT TO THAT EXTENT, THE ASSESSEE EITHER FURNISHED INACCURATE PARTICULARS OR CONCEALE D ITS PARTICULARS, THEREFORE, THE DECISION FROM HONBLE CALCUTTA HIGH COURT DOES NOT COME TO THE RESCUE OF THE ASSESSEE. HOWEVER, THE PE NALTY IS RESTRICTED TO 100% IN PLACE OF 150% ON THE BALANCE ADDITION CONFIRMED BY THE TRIBUNAL. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCL USION OF THE HEARING ON 31.12.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.12.2012 5 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-