DCIT (OSD) II CEN RG 7, MUMBAI V. PRASHANT G SHARM, MUMBAI

ITA 5020/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88552 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 31-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2012
• Court: TRIBUNAL
• Assessee Lawyers: IN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI VK;DJ VIHYH; VF/KDJ.K] LH U;K;IHB EQACBZ BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER JH FOT; IKY JKO] U;KF;D LNL; ,OA JH JKTSUNZ] YS[KK LNL; DS LE{K ITA NO. 5020 /MUM/201 2 ASSESSMENT YEAR: - 2007 - 08 DY. CIT (OSD) - II, CENTRAL RANGE - 7, ROOM NO. 414, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400 020. VS.` SHRI PRASHANT G. SHARMA C - 104, PRASHANT APARTMENT OPP. IIT MAIN GATE, POW AI MUMBAI 400076. PAN: - AABPB3237H ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AGAINST THE ORDER DATED 15.05.2012 OF CIT(A) ARISING FROM PENALTY ORDER PASSED U/S 271(1)(C) FOR THE A.Y. 2007 - 08. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEARING. HOWEVER, WE NOTE THAT THE ASSESSEE HAS ALREADY FILED THE ORDER OF THE TRIBUNAL IN QUANTUM APPEAL PREFERRED BY THE ASSESSEE IN ITA NO. 2319/MUM/2010 DATED 7.11.2014. ACCORDINGLY, WE PROPOSE TO HEAR AND DECIDE THIS APPEAL EX PARTE. 2. WE HAVE HEARD THE LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. IN THE ASSESSMENT FRAMED U/S 143(3) R.W.S 15 3 A, THE ASSESSING OFFICER INTER ALIA REVENUE BY / JKTLP DH VKSJ LS SHRI PREMANAND J. ASSESSEE BY / FU/KKZFJRH FD VKSJ LS NONE DATE OF HEARING 0 4 .03.2015 DATE OF PRONOUNCEMENT 04 .03.2015 ITA NO.5020/MUM/2012 ASSESSMENT YEAR: - 2007 - 08 2 | P A G E MADE THE ADDITION OF RS. 50 LAKH ON ACCOUNT OF CASH AND UNEXPLAINED JEWELLERY DECLARED BY THE ASSESSEE DURING THE COURSE OF SEARCH & SEIZURE PROCEEDINGS. SUBSEQUENTLY, THE ASSESSING OFFICER LEVIED PENALTY OF RS. 16,56,530/ - BEING 100% OF TAX SOUGHT TO BE EVADED VIDE ORDER DATED 17.03.2011. THE ASSESSEE CHALLENGED THE ACTION OF ASSESSING OFFICER BEFORE CIT(A). THE CIT(A) DELETED THE PE NALTY LEVIED BY ASSESSING OFFICER AGAINST THE ADDITION OF RS. 50 VIDE IMPUGNED ORDER. THE CIT(A)HAS HELD THAT THE PENALTY WAS NOT JUSTIFIED AS THE RETURN OF INCOME AND ASSESSED INCOME IS SAME AND ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO DELETE THE PEN ALTY. AT THE OUTSET, WE NOTE THAT IN THE QUANTUM APPEAL, THE TRIBUNAL HAS DECIDED THIS ISSUE IN PARA 17 AND 18 AS UNDER: - 17. WE HEARD THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. THE LD A.R SUBMITTED THAT THE TIME GAP OF ONE AND HALF YEARS POINTED OUT BY THE AO IS NOT CORRECT, SINCE THE DATE OF PURCHASE OF JEWELLERY IS NOT AVAILABLE ON RECORD. HE SUBMITTED THAT THE INCOME OF RS.1.00 CRORE WAS ASSESSED IN THE HANDS OF M/S GHP CORPORATION. HOWEVER THERE IS NO MATERIAL TO DISPROVE THE CLAIM OF THE ASS ESSEES THAT THEY HAD WITHDRAWN THE ABOVE SAID AMOUNT AT RS.50.00 LAKHS EACH. THE LD A.R FURTHER SUBMITTED THAT, ONCE IT IS SHOWN THAT THE CASH WAS AVAILABLE WITH THE ASSESSEES, THE SAME WOULD EXPLAIN THE SOURCES FOR CASH AND JEWELLERY FOUND DURING THE COUR SE OF SEARCH. ON THE CONTRARY, THE LD D.R PLACED RELIANCE ON THE ORDERS OF TAX AUTHORITIES. 18. IT IS AN UNDISPUTED FACT THAT THE CONCERN M/S GHP CORPORATION RECEIVED RS.3.00 CRORES AS ADVANCE IN THE FINANCIAL YEAR 2005 - 06 RELEVANT TO THE ASSESSMENT YEAR 2006 - 07. IT IS ALSO AN UNDISPUTED FACT THAT THE AMOUNT OF RS.2.00 CRORES RECEIVED BY WAY OF C HEQUE WAS CREDITED TO THE CAPITAL ACCOUNT OF THE ASSESSEES HEREIN AVAILABLE IN THE BOOKS OF M/S GHP CORPORATION. WHEN THIS FACT IS ACCEPTED, WE DO NOT FIND ANY REASON TO REJECT THE CLAIM OF THE ASSESSEES THAT THEY HAD TAKEN AWAY THE REMAINING AMOUNT OF RS. 1.00 CRORES RECEIVED BY WAY OF CASH. FURTHER, WE NOTICE THE REVENUE DID NOT BRING ANY OTHER MATERIAL ON RECORD TO DISPROVE THE SAID CLAIM. ONCE IT IS SEEN THAT THESE ASSESSEES ARE POSSESSED OF RS.50.00 LAKHS EACH, THEN THERE WOULD MERIT IN THEIR CONTENTION THAT SAID AMOUNT WOULD BE AVAILABLE AS SOURCE FOR MAKING INVESTMENTS. IN THE INSTANT CASE, BOTH THE ASSESSEES HAVE SOUGHT SET OFF OF RS.50.00 LAKHS AGAINST THE UNEXPLAINED CASH AND UNEXPLAINED JEWELLERY FOUND DURING THE COURSE OF SEARCH. ON PROPER CONSIDE RATION OF FACTS AVAILABLE IN THIS CASE, IN OUR VIEW, BOTH THE ASSESSEES ARE JUSTIFIED IN THEIR CLAIM THAT THE SOURCES TO THE EXTENT OF RS.50.00 LAKHS IN EACH OF THEIR HAND STAND EXPLAINED, PARTICULARLY IN VIEW OF THE FACT THAT THE REVENUE DID NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT THE AMOUNT OF ITA NO.5020/MUM/2012 ASSESSMENT YEAR: - 2007 - 08 3 | P A G E RS.1.00 CRORE WAS OTHERWISE SPENT AWAY. ACCORDINGLY WE FIND MERIT IN THE CLAIM PUT FORTH BY BOTH THE ASSESSEES. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE IN BOTH THE HANDS AND DIREC T THE ASSESSING OFFICER TO GIVE CREDIT OF RS.50.00 LAKHS EACH IN THE HANDS OF THE ASSESSEES HEREIN. 3. IN VIEW OF THE DECISION OF THIS TRIBUNAL IN QUANTUM APPEAL, THE PENALTY LEVIED U/S 271(1)(C) WOULD NOT SURVIVE AND ACCORDINGLY, WE DO NOT FIND ANY REA SON TO INTERFERE WITH THE IMPUGNED ORDER OF CIT(A) AND THE SAME IS UPHELD. 4. IN THE RESULT APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUCNED IN THE OPEN COURT ON THIS 4 TH DAY OF MARCH 2015 VKNS'K DH ?KKS'K.KK [KQYS U;K;KY; ES FNUKAD 4 EKPZ 2015 DKS DH XBZA SD/ - SD/ - ( RAJENDRA ) (VIJAY PAL RAO) ( ACCOUNTANT MEMBER / YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; ) MUMBAI DATED 4 .03.2015 SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI