ITO, Bhiwani V. Shri Ram Narain Bansal, Bhiwani

ITA 4888/DEL/2012

• Counselvise Citation: 488820114 RSA 2012
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 13-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI J.S. REDDY ITA NOS. 4886, 4887 & 4888/DEL/2012 A.YRS. 2001-02, 2003-04 & 2004-05 INCOME-TAX OFFICER, VS. SHRI RAM NARAIN BANSAL, WARD-2, BHIWANI. S/O SH. MANGE RAM, RAM DASS COLONY, WARD-10, CHARKHI DADRI, BHIWANI. PAN: AAGPN 1452P ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : NONE O R D E R PER R.P. TOLANI, J.M: : THESE ARE THREE REVENUES APPEALS AGAINST CONSO LIDATED ORDER DATED 9-7-2012 OF THE CIT(A) RELATING TO A.Y. 2001-02, 20 03-04 & 2004-05, CHALLENGING THE DELETION OF PENALTY LEVIED U/S 271( 1)(C) OF THE INCOME-TAX ACT, 1961. 2. IT SHALL BE PERTINENT HERE TO MENTION THAT THE C IT(A) DELETED THE PENALTIES OBSERVING THAT THE ITAT IN QUANTUM APPEAL S HAS DELETED THE ENTIRE ADDITIONS MADE IN THE ASSESSMENTS, BY FOLLOWING OBS ERVATIONS: 3. BEFORE ME, THE APPELLANT SUBMITTED THE QUANTUM ADDITIONS FOR ALL THE 3 YEARS UNDER CONSIDERATION A RE SINCE BEING 2 DELETED BY HONBLE ITAT VIDE ORDER DATED 31-01-2012 AND THEREFORE THE PENALTY LEVIED BY THE AO REQUIRES TO BE CANCELLED. 4. IT IS SEEN FROM RECORDS THAT HONBLE ITAT DELHI BENCH F, NEW DELHI IN ITA NOS. 699, 700 & 701/DEL/2010 FOR THE AYS 2001-02, 2003-04 & 2004-05 VIDE ORDER DATED 31- 01-2012 DELETED THE ENTIRE ADDITIONS MADE BY THE AO ON ACCO UNT OF PEAK INVESTMENT AND ESTIMATED PROFITS FROM THE ALLEGED B ENAMI CONCERNS. SINCE HONBLE ITAT HAS DELETED THE QUANTU M ADDITIONS FOR ALL THE 3 APPEALS UNDER CONSIDERATION , THE IMPUGNED PENALTY ORDERS HAVE NO LEGS TO STAND. THE PENALTIES LEVIED BY THE AO ARE THEREFORE CANCELLED AND THE GR OUNDS OF APPEAL ARE ALLOWED. 3. BEFORE US, NONE PUT IN APPEARANCE ON BEHALF OF T HE DEPARTMENT AS WELL AS THE ASSESSEE. SINCE THE CIT(A)S ORDER IS IN CON FORMITY WITH THE ITAT ORDER ON QUANTUM, THE APPEALS ARE BEING DECIDED EX PARTE ACCORDINGLY AS THE ISSUE IS SQUARELY COVERED BY ITAT ORDER. 4. WE HAVE PERUSED THE ENTIRE MATERIAL AVAILABLE ON RECORD. THE ITAT IN ITA NOS. 699, 700 & 701/DEL/2010 VIDE CONSOLIDATED ORDER DATED 31-1-2012 HAS DELETED THE QUANTUM ADDITIONS BY FOLLOWING OBSE RVATIONS: 32. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE CASE RECORD. FACTS HAVE BEEN NARRATED IN DETAILS ABOVE. THE PARAMETERS FOR MAKING ASSESSMENTS IN THE CASES OF B ENAMI ALLEGATIONS ARE BY NOW SETTLED. HONBLE CALCUTTA HI GH COURT IN THE CASE OF USHA BHAR (SUPRA) HAS LAID DOWN SOME IM PORTANT ASPECTS IN THIS REGARD. 33. IT CLEARLY EMERGES FROM THE FACTS THAT AO WHIL E CARRYING OUT ENQUIRIES OR INVESTIGATIONS HAS NOT COLLECTED A DEQUATE MATERIAL, EVIDENCE TO ASCERTAIN THE ALLEGED BENAMI TRANSACTIONS WHICH ARE CLAIMED TO BE VOLUMINOUS, SPREADING TO NE ARLY 5 YEARS AND AS RIGHTLY POINTED OUT BY LD COUNSELS INV OLVE VARIOUS 3 AGENCIES, RECORD AND HUMAN EFFORTS. THESE MATERIAL AGENCIES ARE- NAFED DEPARTMENT, RECORD AND STAFF, TRANSPORTE RS, LABOUR AGENCIES, BANK STAFF, PURCHASERS OF MUSTARD SEED, S ALES TAX AUTHORITIES ETC. NO EFFORT HAS BEEN MADE FROM ANY O F THESE DEPARTMENTS WHICH WOULD HAVE IMMENSELY HELPED THE A O IN INVESTIGATION. 34. THE BENAMI CHARGE IS ONLY 7 STATEMENTS OUT OF W HICH ONE DENIES ASSESSEE BEING A BENAMI OWNER. THUS THERE A RE NEITHER STATEMENTS ON RECORD IN RESPECT OF REMAINING 8 PERS ONS, NOR FURTHER EVIDENCE COLLECTED BY AO BY INVESTIGATIONS OR ENQUIRIES ON ANY OTHER MATERIAL ASPECT. LD DR CONTENDS THAT L OOKING AT THE NATURE OF TRANSACTION IT SHOULD BE HELD THAT TH ESE 8 PERSONS WOULD HAVE ANY WAY DEPOSED AGAINST ASSESSEE, LIKE 6 OTHER WITNESSES, THEREFORE THE AOS ADDITIONS MAY BE UPHEL D IN VIEW OF HONBLE SUPREME COURT JUDGMENT IN THE CASE OF SU MATI DAYAL (SUPRA), OR IN ALTERNATE, MATTER MAY BE SET A SIDE BACK TO AO FOR FRESH EXAMINATIONS. 35. WE ARE UNABLE TO AGREE TO THE REVENUES PROPO SITION ABOUT SET ASIDE. THIS WILL AMOUNT TO GIVING AO FRES H INNINGS FOR INQUIRY WITHOUT ANY LAWFUL JUSTIFICATION, AFTER A P ERIOD OF TEN YEARS, WHICH IS AGAINST PRINCIPLES OF JUSTICE. AO W AS NOT PREVENTED TO CARRY OUT FURTHER INVESTIGATIONS. IN T HESE FACT S AND RESPECTFULLY FOLLOWING CASE LAWS, RELIED ON BY ASSE SSEE, WE DECLINE THIS REQUEST. 36. THE ONLY MATERIAL EVIDENCE RELIED ON BY AO BEIN G THESE STATEMENTS, ADDITIONS IN RESPECT OF 8 PERSONS WHOSE STATEMENTS ARE NOT RECORDED, CAN NOT BE UPHELD. SUMATI DAYAL D ECISIONS LAYS DOWN HUMAN CONDUCT, SURROUNDING CIRCUMSTANCES AND PREPONDERANCE OF PROBABILITIES ON THIS BASIS OF MAT ERIAL AVAILABLE ON RECORD. IT DOES NOT MANDATE TO APPLY T HEM WHEN NO RECORD EXISTS AT ALL LIKE IN RESPECT OF THESE 8 PER SONS. THEY WERE AOS WITNESSES AND HE WAS NOT PREVENTED BY ANY REAS ONS TO SUMMON THEM. SIMILARLY OUT OF 7 IT IS CLAIMED THAT 1 WITNESSED DENIED ASSESSES ROLE AS BENAMI OWNER. IT IS PLEADED BY LD DR THAT HE TRIED TO PROTECT ASSESSEE. LD COUNSEL CONTE NDS THAT CONVERSE MAY ALSO BE TRUE THAT 6 WITNESSES MAY HAVE TRIED TO WRONGLY IMPLICATE THE ASSESSEE. 4 37. IN THESE CIRCUMSTANCES, WHAT REMAINS ON RECOR D ARE 6 STATEMENTS ALLEGING ASSESSEE SANS THE CORROBORATING EVIDENCE. ON FACTS WE HAVE TO DECIDE WHETHER THESE 6 STATEMEN TS CONSTITUTE SUFFICIENT MATERIAL TO HOLD THE ASSESSEE AS BENAMI OWNER THUS LIABLE FOR THESE ADDITIONS WHICH ARE CAL LED IN QUESTION. 38. IT IS TRITE PROPOSITION THAT THE BURDEN OF PRO OF IS ON THE REVENUE TO BRING HOME THE CHARGE OF BENAMI OWNERSHI P AGAINST ANY PERSONS. LOOKING AT THE MATERIAL AND FACTS ON R ECORD, NO FURTHER EVIDENCE OR MATERIAL HAS BEEN BROUGHT ON RE CORD BY THE REVENUE IN RESPECT OF NAFED RECORD; TRANSPORTER; PU RCHASERS OF MUSTARD SEED; STAFF OF VARIOUS BANKS; SALES TAX AUTHORITIES, MARKET INQUIRES. MERE 6 STATEMENTS, WHICH ARE SHAKY , LEADING TO NO CONCLUSIVE ASCERTAINMENT OF ANY FACT CAN NOT BE SOLELY APPLIED AGAINST ASSESSEE WITHOUT ANY CORROBORATIVE MATERIAL. THE SAME COULD HAVE BEEN COLLECTED BY AO FROM VARIO US SOURCES AND AGENCIES AS MENTIONED ABOVE. THESE 6 S TATEMENTS AT BEST ONLY CREATE A SUSPICION THAT ASSESSEE WAS OBTAINING SOME BLANK PAPERS OR SOME FORMS AND CANNOT BE DECIS IVE OF BENAMI ON PREPONDERANCE OF PROBABILITIES. THE STAT EMENTS ARE REPLETE WITH INCONSISTENCIES ABOUT THE SALARY, VOCA TION, NO OF VEHICLES POSSESSED BY ASSESSEE (IT IS CLAIMED BY AS SESSEE THAT HE DOES NOT OWN A CAR). THESE INCONSISTENCIES COULD HA VE BEEN FURTHER FILLED IN BY PROPER CORROBORATIVE EVIDENCE, ENQUIRIES AND INVESTIGATION BY REVENUE AUTHORITIES. 39. IN CONSIDERATION OF ENTIRE MATERIAL AVAILABLE F ROM RECORD, FACTS, CIRCUMSTANCES AND RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT ALLEGATION OF BENAMI HAS NOT BEEN PROVED BY TH E REVENUE AGAINST ASSESSEE ON COGENT MATERIAL OR EVIDENCE. NO CORRELATION OF HUMAN CONDUCT, PREPONDERANCE OF PROBABILITIES AN D HUMAN CONDUCT WITH MATERIAL AVAILABLE ON RECORD HAS BEEN ESTABLISHED. 6 SHAKY STATEMENTS AGAINST ASSESSEE ON THEIR OWN DO NOT CONSTITUTE MATERIAL ENOUGH TO PROVE THAT ASSESSEE W AS BENAMI OWNER OF THESE CONCERNS. NO ADEQUATE & COGENT MATER IAL IS ON RECORD FROM NECESSARY AGENCIES WHICH ARE MENTIONED ABOVE. IN ABSENCE OF SUCH MATERIAL EVIDENCE OR ENQUIRIES THES E STATEMENTS CAN NOT BE HELD TO PROVING THE FACT OR CHARGE THAT ASSESSEE IS A BENAMI OWNER OF ALLEGED CONCERNS. THEREFORE, ALL TH E ADDITIONS 5 OF PEAK INVESTMENT AND ESTIMATED PROFITS FROM THESE ALLEGED BENAMI CONCERNS ARE DELETED. 5. SINCE THE QUANTUM ADDITION STANDS DELETED BY THE ITAT, THEREFORE, CIT(A) IS FULLY JUSTIFIED IN CANCELING THE PENALTIE S U/S 271(1)(C). REVENUES APPEALS ARE ACCORDINGLY DISMISSED. 6. IN THE RESULT, REVENUES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT, AFTER THE HEARING W AS CONCLUDED, ON 16-11- 2012. SD/- SD/- ( J.S. REDDY ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16-11-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 6