ITO 21(3)(3), MUMBAI V. MOHD IQBAL ISLAM MALIK, MUMBAI

ITA 4903/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71090 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI H L KARWA, PRESIDENT & SHRI N K BILLAIYA, ACCOUNTANT MEMBER ITA NO.4903/MUM/2012 FOR ASST. YEAR: 2005-06 THE ITO 21(3)(3), MUMBAI VS. SHRI MOHD IQBAL ISLAM MALIK, A-34, NOOR MANZIL, 218, LBS MARG, KURLA (W), MUMBAI 400070 PAN AAAPM8853B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANVENDVA GOYAL RESPONDENT BY : SHRI JAYANT R BHATT DATE OF HEARING : 12.09.2013 DATE OF PRONOUNCEMENT : 12.09.2013 O R D E R PER N.K.BILLAIYA (AM) : WITH THIS APPEAL THE REVENUE HAS CHALLENGED THE COR RECTNESS OF THE ORDER OF THE CIT(A)-32, MUMBAI, DATED 16.05.2012 PERTAINING TO A.Y. 2005-06. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE CIT(A) ERRED I N DELETING THE PENALTY OF RS. 3,75,457/- LEVIED BY THE ASSESSING OFFICER U/S. 271 (1)(C) OF THE ACT. 2. IN THIS CASE, THE RETURN FOR THE YEAR UNDER CONS IDERATION WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER CASS TO VERIFY THE SOURCE OF THE CASH DEPOSITS IN SAVING BANK ACCOUNT AMOUNTING TO RS.11 LAKHS. THE ENTIRE AMOUNT WAS ADDED U/S. 68 OF THE ACT. THE PENALTY IS LEVIED ON THIS ADDITION. THE ASSESSEE CONTENDED THAT MERELY 2 ITA NO.4903/MUM/2012 AY:2005-06 BECAUSE EXPLANATION IN RESPECT OF DEPOSITS DID NOT FIND FAVOUR WITH THE ASSESSING OFFICER, THIS WOULD NOT LEAD TO THE CONCLUSION THAT THE PENALTY IS PRESCRIBED. THE ASSESSEE ALSO RELIED UPON VARIOUS JUDICIAL DECISION S. THE ASSESSING OFFICER WENT UPON TO RELY ON THE FINDINGS OF THE CIT(A) IN THE QUANTU M APPEAL AND LEVIED PENALTY AT RS. 3,75,457/-. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). THE ASSESSEE ONCE AGAIN NARRATED THE FACTS AS THEY STOOD AT THE TIME OF THE ASSESSMENT. THE ASSESSEE FILED BALANCE SHEETS AS ON 31.03.2004 AND 31.03.200 5 AND POINTED OUT THAT THE DEBTORS OF RS.12,45,250/- AS ON 31.03.2004 HAVE BEE N REDUCED TO RS.83,321/- AS ON 31.03.2005, WHICH PRIMA FACIE PROVES THAT THERE WAS REALIZATION FROM THE DEBTORS DURING THE YEAR UNDER CONSIDERATION. THE DEPOSITS IN THE BANK ARE OUT OF THE REALIZATION FROM THE DEBTORS. THE CIT(A) WAS CONVI NCED WITH THIS SUBMISSION OF THE ASSESSEE AND DELETED THE LEVY OF PENALTY. AGGRIEVE D BY THIS, THE REVENUE IS BEFORE US. 3. THE DR STRONGLY SUPPORTED THE FINDINGS OF THE AS SESSING OFFICER. IT IS THE SAY OF THE DR THAT THE ASSESSEE FAILED IN THE QUANTUM P ROCEEDINGS, THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY LEVIED PENALTY U/S. 2 71(1)(C) OF THE ACT. THE COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEF ORE THE LOWER AUTHORITIES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IT IS A WELL SETTLED LAW TH AT PENALTY PROCEEDINGS ARE DIFFERENT FROM THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE CA N DEFEND HIS CASE BY BRINGING COGENT MATERIAL EVIDENCES ON RECORD. IN THE INSTAN T CASE, WE FIND THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF DEPOSIT BY BRINGING BAL ANCE SHEET AS ON 31.03.2004 AND AS ON 31.03.2005 ON RECORD, WHICH HAS BEEN RIGHTLY CONSIDERED BY THE CIT(A). THE CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT THERE I S A REDUCTION IN THE QUANTUM OF DEBTORS AS THEY STOOD ON 31.03.2004 AND 31.03.2005. CONSIDERING THESE FACTS ON RECORD, WE DO NOT FIND ANY REASON TO REJECT THE SUB MISSIONS OF THE ASSESSEE. THE LEVY OF PENALTY HAS BEEN RIGHTLY DELETED BY THE CIT (A). THE FINDINGS OF THE CIT(A) ARE ACCORDINGLY CONFIRMED. 3 ITA NO.4903/MUM/2012 AY:2005-06 5. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER 2013. SD/- SD/- (H L KARWA) (N.K.BILLAIYA) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT : 12 TH SEPTEMBER, 2013 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, MUMBAI 4. THE CIT (A)-32, MUMBAI 5. THE DR, B- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI