SARLA M. SANGHAVI, MUMBAI V. ASST CIT CEN CIR 38, MUMBAI

ITA 4484/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1271 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Unexplained cash credit
• Section: 69C; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.4484/M/2016 ASSESSMENT YEAR: 2008-09 M/S. SARLA M. SANGHAVI, 2203, WINDSOR TOWER, SHASTRI NAGAR, ANDHERI (W), MUMBAI 400 053 PAN: CBSPS9523H VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 38, AAYAKAR BHAVAN, ROOM NO.32(1), MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI M.C. OMI NINGSHEN, D.R. DATE OF HEARING : 10.04.2017 DATE OF PRONOUNCEMENT : 10.04.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 01.03.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2008-09. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER: A SEARCH ACTION UNDER SECTION 132 OF THE ACT WAS I NITIATED ON 12.09.2007 IN THE CASE OF M/S. K. SERA SERA PRODUCTIONS LTD. SINCE THE ASSESSEES SON WAS ON THE BOARD OF THE COMPANY IN EARLIER YEARS, ASSES SEE WAS COVERED UNDER THE SEARCH. DURING THE SEARCH AT THE PREMISES OF ASSES SEE, NO INCRIMINATING DOCUMENTS, JEWELLERY, CASH UNACCOUNTED BANK ACCOUNT , UNDISCLOSED PROPERTY WERE FOUND, HENCE THERE WAS NO SEIZURE. THE ASSESS ING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS DISALLOWED UNEXPLAINED I NVESTMENT OF RS.24,000/- UNDER SECTION 69, UNEXPLAINED CASH CREDIT OF RS.1,3 9,540/- UNDER SECTION 68 ITA NO.4484/M/2016 M/S. SARLA M. SANGHAVI 2 AND UNEXPLAINED CASH EXPENDITURE OF RS.10,600/- UND ER SECTION 69C TOTALING INTO RS.1,74,140/-. PENALTY PROCEEDINGS WERE INITIA TED. ASSESSEE WAS GIVEN SHOW CAUSE NOTICE. AFTER CONSIDERING THE REPLY, TH E AO HAS IMPOSED THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS CONFIRMED THE ORDER OF THE AO. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. THE ASSESSEE DID NOT REMAIN PRESENT AND HAS NOT FILED ANY WRITTE N SUBMISSION. WE HAVE GONE THROUGH THE ORDER OF LD. CIT(A) AND THE LD. CI T(A) HAS DISCUSSED THE ISSUE IN DETAIL IN HIS ORDER VIDE PARA 4.1 WHICH IS REPRODUCED AS UNDER: 6.4.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE APP ELLANT AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE APPELLANT HAS R EQUESTED TO DELETE THE PENALTY OF RS.58,616/- LEVIED U/S 271(1)(C) OF THE ACT. THE A PPELLANT MAIN CONTENTION IS THAT THE LD. AO HAS ERRED IN LEVYING PENALTY U/S 271(1)( C) OF THE ACT AS THERE WAS NEITHER CONCEALMENT OF PARTICULARS OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME, AS PURSUANT TO SEARCH ACTION SHE HAD VOLUNT ARILY FILED THE RETURN OF INCOME AND ALL THE FACTS WERE AVAILABLE ON RECORDS. IT HAS ALSO BEEN ARGUED THAT MERE ADDITIONS/DISALLOWANCE WILL NOT IPSO FACTO LEAD TO LEVY OF PENALTY AS THE SAME IS NOT AUTOMATIC AND PENALTY PROCEEDINGS BEING CRIMINAL/QU ASI-CRIMINAL, BEFORE LEVYING PENALTY/S 271(1)(C) OF THE ACT MENS-REA NEED TO BE ESTABLISHED. IN SUPPORT OF HER CLAIM RELIANCE HAS BEEN PLACED ON JUDICIAL PRONOUNC EMENTS OF VARIOUS HON'BLE COURTS/TRIBUNALS AS DISCUSSED ABOVE. THE CONTENTION S OF THE APPELLANT HAVE BEEN CONSIDERED CAREFULLY. IT IS ADMITTED FACT THAT THE APPELLANT HAD NOT FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATI ON U/S 139(1) OF THE ACT AND PURSUANT TO SEARCH ACTION FILED HER RETURN ON 22.07 .2009 ADMITTING TOTAL INCOME AT RS. 71,085/-. DURING THE COURSE OF ASSESSMENT PROCE EDINGS IT WAS OBSERVED THAT THE APPELLANT HAD MADE P.O. RD OF RS.24,000/- AND NO EX PLANATIONS REGARDING SOURCE OF SAME WAS SUBMITTED BY THE APPELLANT. IN VIEW OF SAM E THE LD. AC HAD MADE ADDITION OF RS. 24,000/U/S 69 OF THE ACT. THE APPEL LANT HAD NOT PREFERRED ANY APPEAL AGAINST THE SAID ADDITION OF RS. 24,000/-. S IMILARLY, DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS ALSO OBSERVED THAT IN CASH ACCOUNT THE APPELLANT HAD CREDITED A SUM OF RS. 69, 684/- AND RS. 69, 856/- O N 19/07/2007 AND THE SOURCE OF THE SAME WAS SHOWN AS MATURITY AMOUNT OF FIXED DEPO SIT PERTAINING TO THE HDFC BANK. THE LEARNED AC HAD ASKED THE APPELLANT TO SUB MIT CONFIRMATION FROM THE BANK THAT THE MATURITY PROCEEDS WERE RECEIVED IN CA SH. HOWEVER THE APPELLANT COULD NOT SUBMIT ANY SUCH CONFIRMATION. IN ABSENCE OF ANY EVIDENCE OF SOURCE OF THE SAID CASH CREDITED IN CASH ACCOUNT THE LEARNED AC HAD ADDED THE SAME AS UNEXPLAINED CASH CREDIT. THE CIT (A) HAS CONFIRMED THE SAID ADDITION MADE BY THE LEARNED AO. THE FACT SUGGESTS THAT THE APPELLANT CO ULD NOT SUBMIT ANY EVIDENCE IN RESPECT OF SOURCE OF THE SAID CASH CREDITS SHOWN IN CASH ACCOUNT AND RATHER TRIED TO ITA NO.4484/M/2016 M/S. SARLA M. SANGHAVI 3 EXPLAIN THAT THE FDS WERE NOT MATURED AND HENCE DUE TO INADVERTENCE SHOWN AS MATURED. THE SAID EXPLANATION SUBMITTED BY THE APPE LLANT ITSELF SHOWS THAT NO DETAILS/EVIDENCE FOR THE SAID CASH CREDITS COULD BE SUBMITTED BY THE APPELLANT EITHER BEFORE THE LEARNED AC OR BEFORE THE UNDERSIG NED DURING APPELLATE PROCEEDINGS. DURING THE COURSE OF ASSESSMENT PROCEE DINGS IT WAS ALSO OBSERVED THAT IN CASH ACCOUNT OUTGO FOR THE MONTH OF JUNE 20 07 EXCEEDS THE AVAILABLE OPENING BALANCE BY RS. 10,600/-. THE APPELLANT COUL D NOT SUBMIT ANY EXPLANATION FOR SUCH EXCESS OUTGO OF CASH. IN VIEW OF THE SAME THE LEARNED AO ADDED THE SAME TO THE TOTAL INCOME AS UNEXPLAINED CASH EXPENDITURE U/S 69C OF THE ACT. THE SAID ADDITION MADE BY THE LEARNED AC WAS CONFIRMED BY TH E CIT (A). EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS THE APPELLANT COULD NOT SUBMIT ANY EVIDENCE IN RESPECT OF SOURCE OF SAID EXCESS CASH OUTGO OF RS. 10,600/-. THE ENTIRE FACTS OF THE CASE DO NOT SUPPORT THE CLAIM OF THE APPELLANT THAT IT HAD VOLUNTARILY OFFERED ABOVE REFERRED ADDITIONS/DISALLOWANCES MADE BY THE LEARNE D AC. RATHER, THE LEARNED AC HAD MADE THESE ADDITIONS/DISALLOWANCES AFTER SCRUTI NIZING HE ACCOUNTS FILED BY THE APPELLANT AND FOR WHICH THE APPELLANT FAILED TO SUB MIT ANY EVIDENCE IN RESPECT OF SOURCE OF SUCH INCOME. THE NATURE OF ADDITIONS ARE INTRODUCTION OF CASH/INVESTMENTS AND NOT DISALLOWANCE OF ANY CLAIM MADE BY THE APPELLANT IN THE RETURN OF INCOME. NO DEBATABLE POINTS WERE INVOLVE D. IN VIEW OF THE SAME, THE CONTENTION OF THE APPELLANT THAT EVERY DETAIL WAS O N RECORD AND SHE HAD NOT CONCEALED PARTICULARS OF INCOME OR SUBMITTED INACCU RATE PARTICULARS OF INCOME IS DEVOID OF MERIT AND HENCE HEREWITH REJECTED. 5. BEFORE US NOBODY REMAINED PRESENT ON BEHALF OF T HE ASSESSEE. THE ASSESSEE DID NOT OFFER ANY EXPLANATION REGARDING UN EXPLAINED INVESTMENT OF RS.24,000/-, UNEXPLAINED CASH CREDIT AND UNEXPLAINE D CASH EXPENDITURE BEFORE US. THEREFORE, OUR INTERFERENCE IS NOT REQUIRED IN THE FINDING OF THE LD. CIT(A). 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.04.2017. SD/- SD/- (MANOJ KUMAR AGGARWAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.06.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH ITA NO.4484/M/2016 M/S. SARLA M. SANGHAVI 4 //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.