SHRI HEMRAJ, Jaipur V. ITO, Jaipur

ITA 49/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2142 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DHK
• Assessee Lawyers: GARIMA KHANDELWAL
• Keywords: Unexplained investment; Ignorance of law
• Section: 69; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 49/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SHRI HEMRAJ, VILLAGE- LALYA KA BAS, POST- MAHAPURA, TEHISL- SANGANER, DISTRICT- JAIPUR (RAJ). CUKE VS. INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFRPV 1006 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MS. GARIMA KHANDELWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/04/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/04/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES F ROM THE ORDER OF THE LD. CIT(A)-35, NEW DELHI, CAMP OFFICE AT JAIPUR D ATED 05/10/2016 FOR THE A.Y. 2006-07. THE ONLY ISSUE INVOLVED IN THIS AP PEAL IS AGAINST SUSTAINING THE PENALTY OF RS. 3,83,527/- MADE U/S 2 71(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). ITA 49/JP/2017_ SHRI HEMRAJ VS ITO 2 2. AT THE OUTSET OF THE HEARING, THE LD AR OF THE A SSESSEE HAS SUBMITTED THAT IN THIS CASE THE ASSESSMENT WAS MADE U/S 144 OF THE ACT AND ADDITION OF RS. 13.00 LACS WAS MADE ON THE BASIS THAT THE ASSESSEE HAD DEPOSITED THIS AMOUNT IN CASH IN THE BANK ACCOU NT HELD WITH CENTRAL BANK OF INDIA. THE ASSESSING OFFICER TREATED THE AMO UNT AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. 3. THE ASSESSEE FILED APPEAL AGAINST THE QUANTUM ORD ER. THE LD. CIT(A) PASSED AN EX PARTE ORDER WITHOUT GIVING AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE HAS FURTHER FILED APPEAL BEFORE THE ITAT AGAINST THE EX PARTE ORDER OF CIT(A). THIS APPEAL WAS REGISTERED WITH ITA NO. 404/JP/2013, WHICH WAS HEARD BY A SINGLE MEMBER B ENCH ON 12/1/2016. IN THIS APPEAL, THERE WAS A DELAY OF 472 DAYS IN FILING THE APPEAL. THE ITAT HAD NOT CONSIDERED THE PRAYER TO CO NDONE THE DELAY AND DISMISSED THE APPEAL AS BARRED BY LIMITATION. THE AS SESSING OFFICER ALSO MADE AN EX PARTE ORDER FOR LEVYING THE PENALTY U/S 271(1)(C) OF THE ACT FOR RS. 4.00 LACS. 4. THE LD AR SUBMITTED THAT THE FATHER OF THE APPELL ANT NAMELY SHRI CHAGAN LAL WAS A STATE GOVERNMENT EMPLOYEE AND DURIN G THE RELEVANT PERIOD HE WAS POSTED AT BIKANER. HE ALONGWITH HIS THR EE BROTHERS OWNED AGRICULTURAL LAND AT VILLAGE BHAMBHORIA. ALL THE BR OTHERS SOLD THEIR LAND TO ONE SHRI GANPAT LAL MANDOLIA VIDE SALE DEED DATED 2 6/12/2015 FOR A SUM ITA 49/JP/2017_ SHRI HEMRAJ VS ITO 3 OF RS. 1.99 CRORES. OUT OF THIS AMOUNT, RS. 59,84,1 00/- WAS RECEIVED IN CASH, THUS EACH BROTHER GOT CASH OF RS. 14,96,025/- . AT THE RELEVANT TIME, THE FATHER OF THE ASSESSEE WAS POSTED AT BIKANER AND HE WAS NOT HAVING BANK ACCOUNT AT JAIPUR. FATHER OF THE ASSESSEE INST RUCTED THE APPELLANT TO DEPOSIT THE AMOUNT IN HIS BANK ACCOUNT. THE FATHER O F THE ASSESSEE WAS ALSO OPENED A BANK ACCOUNT ON 13/1/2006 AND THE CHE QUES RECEIVED ON THE SALE OF THE LAND WERE DEPOSITED IN THE BANK ACCO UNT, WHICH CLEARLY SHOWS THAT THE AMOUNT RECEIVED IN THE SHARE OF THE F ATHER WAS DEPOSITED BY THE ASSESSEE IN HIS ACCOUNT AND DUE TO IGNORANCE OF LAW, THE ASSESSEE COULD NOT ATTEND IN THE ASSESSMENT PROCEEDINGS BEFO RE THE ASSESSING OFFICER AND FURTHER IN APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). THEREFORE, EVEN WHERE THE SOURCE WAS WELL EXPLAINED A ND THESE FACTS ARE NOT IN DISPUTE, THEN NO PENALTY U/S 271(1)(C) OF TH E ACT SHOULD BE IMPOSED UPON THE ASSESSEE. 5. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW AND ALSO SUBMITTED THAT THE ASSESS EE WAS NEGLIGENT. HE HAD NOT APPEARED BEFORE THE ASSESSING OFFICER AS WEL L AS CIT(A) IN THE PENALTY PROCEEDINGS ALSO. THEREFORE, HIS EXPLANATION SHOULD NOT BE ACCEPTED. 6. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE FA CTS REGARDING THE SALE OF THE LAND BY THE FATHER AND HIS BROTHERS IS UNDISPUTED. THE FACTS ITA 49/JP/2017_ SHRI HEMRAJ VS ITO 4 REGARDING RECEIPT OF CASH OF MORE THAN RS. 14.00 LA CS IS ALSO UNDISPUTED. THE FACT THAT THE FATHER OF THE ASSESSEE WAS NOT HAVI NG BANK ACCOUNT AT JAIPUR DURING THE RELEVANT PERIOD IS ALSO UNDISPUTE D. THE FATHER OF THE ASSESSEE WAS IN GOVERNMENT SERVICE AND POSTED AT BIK ANER DURING THE RELEVANT PERIOD IS ALSO UNDISPUTED. THE FACT THAT TH E FATHER OF THE ASSESSEE SOLD THE LAND AND OPENED THE BANK ACCOUNT IN JAIPUR IN THE MONTH OF JANUARY, 2006 AND DEPOSITED THE CHEQUES RECEIVED ON THE SALE OF THE LAND IN THAT ACCOUNT IS ALSO UNDISPUTED. NO CASH WAS DEPO SITED IN THE BANK ACCOUNT OF FATHER IS ALSO UNDISPUTED, THUS IT IS WEL L ESTABLISHED ON THE FACT THAT THE FATHER OF THE ASSESSEE WAS HAVING SUFFICIEN T CASH TO EXPLAIN THE DEPOSIT OF RS. 13.00 LACS IN ASSESSEES BANK ACCOUN T. THE FATHER OF THE ASSESSEE HAS CLEARLY STATED THAT HE HAD DIRECTED HI S SON (ASSESSEE) TO DEPOSIT THE CASH RECEIVED ON SALE OF LAND IN HIS BA NK ACCOUNT. ONLY THE NEGLIGENCE ON THE PART OF THE ASSESSEE HAS LENDED H IM IN THE LEVYING THE TAX ON THE DEPOSIT IN HIS BANK ACCOUNT. THE ITAT IN Q UANTUM APPEAL HAS NOT CONDONED THE DELAY AND DISMISSED THE ASSESSEES APPEAL. CONSIDERING ALL THESE FACTS AND CIRCUMSTANCES, I AM OF THE VIEW THAT ALTHOUGH THE ASSESSEE WAS HAVING A REASONABLE AND ACCEPTABLE EXPL ANATION FOR THE DEPOSIT OF CASH IN HIS BANK ACCOUNT BUT DUE TO HIS NEGLIGENCE, THE ADDITION WAS MADE AND SAME WAS CONFIRMED BY THE LD. CIT(A) AND THE ITAT HAS DISMISSED THE APPEAL OF THE ASSESSEE BY NOT CONDONI NG THE DELAY. IN VIEW ITA 49/JP/2017_ SHRI HEMRAJ VS ITO 5 OF THESE FACTUAL ASPECTS, I HOLD THAT THE ASSESSEE DO NOT DESERVE TO BE VISITED BY THE PENALTY U/S 271(1)(C) OF THE ACT. THE REFORE, I DIRECT TO DELETE THE SAME. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/04/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 TH APRIL, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI HEMRAJ, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 49/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR