IMTIYAZ AHMED BADRUDDIN KHAN, DOMBIVALI V. ITO WD 1(2), KALYAN

ITA 4680/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0756 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 18-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2015
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Retraction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ITA NO. 4680 / MUM/20 1 5 ( ASSESSMENT YEAR : 2008 - 09 ) MR. IMTIYAZ AHMED BADRUDDIN KHAN, 1 ST FLOOR, WADALA BUILDING, NEAR DNS BANK, DOMBIVALI (E) 421201 VS. ITO WD 1(2), KALYAN PAN/GIR NO. AKEPK3159L APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI N.A.KULKARNI REVENUE BY SHRI M.C.OMI NINGSHEN DATE OF HEARING 18 / 05 /201 7 DATE OF PRONOUNCEME NT 18 / 05 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 2, THANE DATED 30/06/2015 FOR THE A.Y. 2008 - 09 IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE IT ACT. 2. IN THIS APPEAL, ASSESSEE IS AGGRIEVED FOR PENALTY IMPOSED WITH RESPECT TO ADDITION OF RS.30 LAKHS ON ACCOUNT CASH CREDITORS. 3. AT THE OUTSET LEARNE D AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL DATED 28/06/2016 IN ITA NO.2261/MUM/2012 WHEREIN ADDITION OF RS. 30 LAKHS WAS DELETED B Y TRIBUNAL IN QUANTUM APPEAL. THE PRECISE OBSERVATION BY TRIBUNAL WAS AS UNDER: - ITA NO. 4680/MUM/2015 MR. IMTIYAJ AHMED BADRUDDIN KHAN 2 4. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERIAL ON RECORD. WE FIND THAT ASSESSEE AND HIS FAMILY MEMBERS WERE RUNNING THE BUSINESS OF POWER LOOMS AT BHIWANDI. AS STATED A BOVE, DEPARTMENT HAVE TAKEN THE ACTION U/S. 133 A OF ACT AND ASSESSEE MADE A DECLARATION OF INCOME AT RS. 80,00,000/ - OVER AND ABOVE THEIR REGULAR INCOME. THE ALLEGED ADDITION HAS BEEN MADE ON THE BASIS OF LOOSE PAPER, DIARIES ETC., WHICH WAS NOT PROVIDED TO ASSESSEE. THE STAND OF ASSESSEE HAS BEEN THAT AFTER SURVEY, ASSESSEE FILED AFFIDAVIT BEFORE THE ASSESSING OFFICER MODIFYING HIS DECLARATION RESTRICTED TO RS. 50,00,000/ - INSPITE OF RS.80,00,000/ - . IT IS UNDISPUTED FACT THAT ASSESSEE HAS HONORED HIS DISCLOSURE OF RS.50,00,000/ - OUT OF RS.80,00,000/ - AND TAX THEREON HAS BEEN PAID. ASSESSEE HAS TRIED TO MODIFY HIS STATEMENT DECLARING NOT RETRACT THE SAME. 4.1 REGARDING ADDITION OF RS.18,88,182/ - OUT OF RS .30,00,000/ - , CHEQUES HAD NOT BEEN DEPOSITED IN BANK. ASSESSING OFFICER HAD OPTION TO CALL UPON THE CONCERNED PERSON AND RECORD THE STATEMENT OF THEM THAT NO CASH HAD BEEN GIVEN TO ASSESSEE, ASSESSEE DECLINED SUCH CASH PAYMENT RECEIVED FROM THEM. REGARDING ITS ASSERTION OF ASSESSEE HAS NOT BEEN LOOKED IN THE LIGHT OF HIS DEPOSIT AND PARTIAL RETRACTION WHICH IS NOT JUSTIFIED. 4.2 REGARDING ADDITION OF RS.11,65,500/ - , THE STAND OF ASSESSEE HAS BEEN THAT THERE WAS AGREEMENT FOR PURCHASES OF PLOT AND SHED. ASSE SSEE PURCHASED THE SAID PLOT ON BEHALF OF THOSE PERSONS AND BUILD UP THE SHED THROUGH HIM OR THROUGH BUILDER FOR THEM AND MONEY BEING SUPPLIED FROM THOSE PARTIES FOR THE PURPOSE TO BUILD UP POWER LOOM. SUCH MONEY BEING SUPPLIED BY THEM BEING NEAREST RELATI VE OF THEM FOR THEIR FUTURE ACTIVITY. IN THIS SITUATION, ADDITION IN HAND OF ASSESSEE WAS NOT JUSTIFIED. CLARIFICATION AS DEPOSED BY ASSESSEE IN ITS AFFIDAVIT, WHICH IS NOT IN DISPUTE. THE CONTENTS OF AFFIDAVIT SHOULD NOT BE REJECTED WITHOUT CONFRONTING TH E CONTENT OF SAME TO DEPONENT WHICH HAS NOT BEEN DONE IN THIS CASE. IT IS ALSO NOT IN DISPUTE THAT ASSESSEE HAS HONOURED HIS DECLARATION TO THE EXTENT OF RS.50,00,000/ - AND PAID TAX THEREON. ASSESSEE HAS CLARIFIED ITS STAND WITH REGARDS TO RETRACTION AS DI SCUSSED ABOVE. IT IS SETTLED LAW THAT ASSESSEE CAN RETRACT FROM DECLARATION PARTIALLY OR COMPLETELY BY GIVEN COGENT REASONING FOR SAME. COGENT REASONING FOR PARTIAL RETRACTION HAS BEEN APPROVED BY US. TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDERATION I NCLUDING OWNER OF RS.50,00,000/ - OUT OF RS.80,00,000/ - DISCLOSURE, ADDITION OF RS.30,00,000/ - IS DIRECTED TO BE DELETED AS DISCUSSED ABOVE. 4. WE HAD CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUN AL AND FOUND THAT QUANTUM ADDITION OF RS.30 LAKHS WITH RESPE CT TO WHICH PENALTY WAS IMPOSED HAS BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED ITA NO. 4680/MUM/2015 MR. IMTIYAJ AHMED BADRUDDIN KHAN 3 28/06/2016. AS THE ADDITION ITSELF IS DELETED THE PENALTY HAS NO LEGS TO STAND, ACCORDINGLY, WE DIRECT THE AO TO DELETE THE PENALTY SO IMPOSED. 5. IN THE RESULT, APPEAL O F THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 18 / 05 /2017 S D/ - ( RAVISH SOOD ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 18 / 05 /201 7 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//