Sh. S.K. Srivastava, Meerut V. ITO, Meerut

ITA 5094/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7423 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 21-08-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 04-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Source of fund
• Section: 148

Judgement Text

ITA NOS.5094 - 5096/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. N OS. 5094, 5095 & 5096/DEL/2013 A.Y RS . : 200 0 - 0 1 , 2001 - 02 & 2002-03 S.K. SRIVASTAVA, 22/3, MANDAL PANDEY NAGAR, MEERUT (PAN: AIAPS1783J) VS. ITO, WARD-2(3), MEERUT (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI RAKESH KUMAR, SR. DR DATE OF HEARING : 2 DATE OF HEARING : 2 DATE OF HEARING : 2 DATE OF HEARING : 27 77 7- -- -8 88 8- -- -2014 2014 2014 2014 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 28 2828 28- -- -8 88 8- -- -2014 2014 2014 2014 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THESE THREE APPEALS ARE FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-MEERUT, DATED 31.7.2013 PERTAINING TO AS SESSMENT YEARS 2000-01, 2001-02 AND 2002-03 RESPECTIVELY. SINCE T HE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL AND COMMON RELATING TO IMPOSING OF PENALTY U/S. 271(1)(C) FOR ASSTT. YEAR 2000-01 OF RS. 85,674/-; ASSTT. YEAR 2001-02 FOR RS. 10,800/- AND ASSTT. YEAR 2002-03 FOR RS. 10,800/-, WE ARE THEREFORE, PROCEED ING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE O F CONVENIENCE. ITA NOS.5094 - 5096/DEL/2013 2 2. THE BRIEF FACTS RELATING TO ASSTT. YEAR 2000-01 IS THAT IN THIS CASE THE RETURN WAS FILED BY THE ASSESSEE SHOWING N ET INCOME OF RS. 2,29,650/- ON 30.6.2000 AND PROCESSED ON THE SAME I NCOME. LATER ON THE CASE WAS REOPENED BY THE ISSUING NOTICE U/S. 148 AND ASSESSMENT WAS COMPLETED U/S. 148/143(3) AT NET INC OME OF RS. 4,24,400/-. THE ASSESSEE WAS AGGRIEVED WITH THE OR DER OF THE AO AND FILED APPEAL BEFORE THE LD. CIT(A), MEERUT, WHO VIDE ORDER DATED 1.11.2006 DISMISSED THE APPEAL OF THE ASSESSEE. THE REAFTER, THE ASSESSEE FILED 2 ND APPEAL BEFORE THE ITAT, NEW DELHI, AND THE ITAT, NEW DELHI HAS SET ASIDE THE ORDER. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE ASSESSEE HAS TAK EN LOAN AMOUNTING TO RS. 1,61,500/- FROM HIS MOTHER SMT. GY ANMATI. THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 24 OF THE I.T. ACT AT RS. 33,246/- AGAINST THE INTEREST PAID TO HIS MOTHER ON THE AFOR EMENTIONED LOAN. TO PROVE THE SOURCE OF FUND AVAILABLE WITH SMT. GY ANMATI, THE ASSESSEE VIDE ITS REPLY DATED 15.4.2008 SUBMITTED T HAT SMT. GYANMATI DEVI HAD SOLD HER HOUSE PROPERTY TO SH. AR UN CHAND FOR RS. 8,50,000/-. FROM THE ABOVE SALE CONSIDERATION S MT. GYANMATI DEVI HAD GIVEN LOAN TO HER SON DR. SK SRIVASTAVA DU RING THE YEAR. A NOTICE WAS SENT TO THE PURCHASER AS WELL AS THE SUB REGISTRAR, GORAKHPUR TO VERIFY THE CONTENTS OF THE SALE DEED A ND IN COMPLIANCE, THE SUB REGISTRAR, GORAKHPUR FURNISHED THE CERTIFIE D COPY OF THE SALE DEED AND ON GOING THROUGH THE SAME IT WAS FOUND THA T THE SALE DEED WAS EXECUTED ON 23.5.2001, WHICH PROVES THAT THE SA ID PROPERTY WAS SOLD BY SMT. GYANMATI DEVI DURING THE F.Y. 2001-02 I.E. A.Y. 2002-03 AND THE SAME ALSO ESTABLISHED THAT THE SAID SALE DEED IS FABRICATED. SINCE ASSESSEE FILED A FABRICATED SALE DEED, A PEN ALTY OF RS. 85,674/- WAS LEVIED UPON THE ASSESSEE. ITA NOS.5094 - 5096/DEL/2013 3 3. AGAINST THE ORDER OF THE ASSESSING OFFICER, ASSE SSEE APPEALED BEFORE THE LD. CIT(A), WHO AFTER ELABORATE DISCUSSI ON SUSTAINED THE AFORESAID PENALTY. 4. AGAINST THE ABOVE ORDER OF THE LD. CIT(A) DATED 31.7.2013, ASSESSEE APPEALED BEFORE US. 5. THE CASE WAS CAME UP FOR HEARING BEFORE US O N 27.8.2014 AND NONE APPEARED ON BEHALF OF THE ASSESSEE. HOW EVER, LD. COUNSEL OF THE ASSESSEE FILED AN APPLICATION DATED 25.8.2014 SUBMITTING THAT ASSESSEE HAS RECEIVED NOTICE FIXING THE DATE OF HEARING ON 27.8.2014 AND ALSO SUBMITTED THAT THE AS SESSEE HAS ALREADY FILED THE PAPER BOOK ON 22.2.2014 BY SPEED POST. THEREFORE, HE REQUESTED TO KINDLY DECID E THE AFORESAID APPEALS ON THE BASIS OF WRITTEN SUBMISSION DATED 21 .2.2014 FILED BY THE ASSESSEE. LD. COUNSEL OF THE ASSESSEE BY WAY OF HIS GROUNDS OF APPEAL MENTIONED IN THE APPEAL BEFORE THE TRIBUN AL STATED THAT LD. CIT(A) HAS IGNORED THE SUPREME COURT JUDGMEN T QUOTED BY THE ASSESSEE AND REPLY UPON DHARMENDRA TEXTILE PROCESSO RS 295-ITR- 244, WHICH IS OVERRULED BY HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS 322-ITR-158. HENCE, IMPOSIT ION OF PENALTY IMPOSED BY AO AND CONFIRMED BY THE CIT(A) IS AGAINS T THE JUDICIAL PRONOUNCEMENT. 6. ON THE OTHER HAND LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND REQUESTED THE PENALTY IMPOSED MAY BE SUSTAINED. 7. WE HAVE HEARD LD. DR. WE HAVE PERUSED THE RECORD S ESPECIALLY THE WRITTEN SUBMISSIONS DATED 21.2.2014 FILED BY T HE ASSESSEE ALONG WITH THE PAPER BOOK AND DECIDING THE ISSUE EXPARTE ASSESSEE. WE FIND THAT LD. CIT(A) HAS RIGHTLY OBSER VED THAT STATEMENT MADE INITIALLY DURING THE ASSESSMENT PROC EEDINGS THAT ITA NOS.5094 - 5096/DEL/2013 4 THE LOAN GIVEN BY THE MOTHER OF THE ASSESSEE WAS SO URCED FROM SALE PROCEEDS OF PROPERTY, A STATEMENT WHICH HAS BEEN FO UND TO BE UNTRUE LATER. WE FIND THAT IT WAS OBSERVED FROM T HE SALE CONSIDERATION THAT SMT. GYANMATI DEVI HAD GIVEN LOA N TO HER SON DR. SK SRIVASTAVA DURING THE YEAR. A NOTICE WAS SENT T O THE PURCHASER AS WELL AS THE SUB REGISTRAR, GORAKHPUR TO VERIFY T HE CONTENTS OF THE SALE DEED AND IN COMPLIANCE, THE SUB REGISTRAR, GOR AKHPUR FURNISHED THE CERTIFIED COPY OF THE SALE DEED AND ON GOING TH ROUGH THE SAME IT WAS FOUND THAT THE SALE DEED WAS EXECUTED ON 23.5.2 001, WHICH PROVES THAT THE SAID PROPERTY WAS SOLD BY SMT. GYAN MATI DEVI DURING THE F.Y. 2001-02 I.E. A.Y. 2002-03 AND THE SAME ALSO ESTABLISHED THAT THE SAID SALE DEED IS FABRICATED. SINCE ASSESSEE FILED A FABRICATED SALE DEED, A PENALTY OF RS. 85,6 74/- WAS RIGHTLY LEVIED UPON THE ASSESSEE BY THE AO AND THE SAME WAS LATER CONFIRMED BY THE LD. CIT(A). WE FIND THAT WE FIND THAT SECTION 271(1)(C) POSTULATES IMPOSITION OF PENALTY FOR FURN ISHING OF INACCURATE PARTICULARS AND CONCEALMENT OF INCOME. IN THIS CASE WE FIND THAT ASSESSEE HAS CLEARLY BEEN GUILTY OF CONCE ALMENT AND THE SAME CAME TO THE LIGHT AFTER VERIFYING THE AUTHENT ICATION OF THE SALE DEED FROM THE CONCERNED SUB REGISTRAR, GORAKHP UR. WE ALSO FIND THAT CASE LAW CITED BY THE ASSESSEE IN THE GRO UNDS OF APPEAL IS DISTINGUISH FROM THE FACTS OF THE PRESENT CASE. HENCE, IN OUR OPINION, THE ASSESSEE IS CLEARLY LIABLE FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE I.T. ACT AND THEREFORE, THE ORDE R PASSED BY THE LD. CIT(A) IMPOSING THE PENALTY U/S. 271(1)(C) DOES NOT NEED ANY INTERFERENCE ON OUR PART. ACCORDINGLY, WE AFFIRM T HE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 8. WITH REGARD TO ASSESSMENT YEARS 2001-02 AND 200 2-03 ARE CONCERNED, WE FIND THAT THE ISSUE INVOLVED IN BOTH THE YEARS ARE COMMON, HENCE, WE ARE ADJUDICATING THE ISSUE WITH R EFERENCE TO ITA NOS.5094 - 5096/DEL/2013 5 ASSTT. YEAR 2001-02. THE BRIEF FACTS OF THE CASE AR E THAT IN THIS CASE THE RETURN WAS FILED BY THE ASSESSEE SHOWING NET IN COME OF RS. 1,70,087/- ON 27.9.2001 AND PROCESSED ON THE SAME INCOME. LATER ON THE CASE WAS REOPENED BY THE ISSUING NOTICE U/S. 148 AND ASSESSMENT WAS COMPLETED U/S. 148/143(3) AT NET INC OME OF RS. 2,90,090/-. THE ASSESSEE WAS AGGRIEVED WITH THE O RDER OF THE AO AND FILED APPEAL BEFORE THE LD. CIT(A), MEERUT, WHO VIDE ORDER DATED 1.11.2006 DISMISSED THE APPEAL OF THE ASSESSEE. THE REAFTER, THE ASSESSEE FILED 2 ND APPEAL BEFORE THE ITAT, NEW DELHI, AND THE ITAT, NEW DELHI HAS SET ASIDE THE ORDER. HENCE, THE ASSE SSMENT WAS COMPLETED U/S. 254(143(3) VIDE ORDER DATED 29.12.20 09 AND DISALLOWANCE OF INTEREST ON BOGUS HOUSING LOAN AT R S. 36,000/- WAS MADE AS OFFERED BY THE ASSESSEE VIDE REPLY DATED 16 .12.2009, WHEREIN HE HAS STATED THAT REGARDING INTEREST PAID OF RS. 80,000/ REGARDING INTEREST PAID OF RS. 80,000/ REGARDING INTEREST PAID OF RS. 80,000/ REGARDING INTEREST PAID OF RS. 80,000/- -- - THE ASSESSEE ALREADY OFFER RS. 36,000/ THE ASSESSEE ALREADY OFFER RS. 36,000/ THE ASSESSEE ALREADY OFFER RS. 36,000/ THE ASSESSEE ALREADY OFFER RS. 36,000/- -- - FOR TAXATION ON ACCOUNT TO FOR TAXATION ON ACCOUNT TO FOR TAXATION ON ACCOUNT TO FOR TAXATION ON ACCOUNT TO AVOID TAX. AVOID TAX. AVOID TAX. AVOID TAX. THUS, THERE WAS DELIBERATE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESS EE TO AVOID TAX. HENCE, THE PENALTY OF RS. 10,800/- WAS MADE. 9. AGAINST THE ORDER OF THE ASSESSING OFFICER, ASS ESSEE APPEALED BEFORE THE LD. CIT(A), WHO AFTER ELABORATE DISCUSSI ON SUSTAINED THE AFORESAID PENALTY. 10. AGAINST THE ABOVE ORDER OF THE LD. CIT(A) DATE D 31.7.2013, ASSESSEE APPEALED BEFORE US. 11. WE HAVE HEARD LD. DR AND PERUSED THE RECORDS. WE FIND THAT LD. CIT(A) HAS RIGHTLY OBSERVED THAT ASSESSEE COULD NOT GIVEN ANY EXPLANATION AS TO WHY THE DEDUCTION FOR INTEREST O N LOAN FROM OTHER WAS CLAIMED DURING THE YEAR UNDER CONSIDERATION, A S THE ASSESSEE COULD NOT SUBSTANTIATE / EXPLAIN THAT SUCH LOAN HA D INDEED BEEN RAISED FROM THE MOTHER IN THE PRECEDING YEAR. WE F IND THAT HE HAS ITA NOS.5094 - 5096/DEL/2013 6 RIGHTLY MADE A OBSERVATION THAT IN THE SUBMISSIONS MADE FOR THE YEAR UNDER CONSIDERATION, NO EXPLANATION HAS BEEN G IVEN WHY THE AMOUNT OF INTEREST OF RS. 36,000/- HAD BEEN CLAIMED AS DEDUCTION DURING THE YEAR AND WAS SUBSEQUENTLY WITHDRAWN. HE NCE, IN OUR CONSIDERED OPINION, THE DECISION OF THE LD. CIT(A) IN SUSTAINING THE IMPOSITION OF PENALTY IS CORRECT AND THEREFORE, DOE S NOT NEED ANY INTERFERENCE ON OUR PART. HENCE, THE SAME IS AFFIRM ED. IN THE RESULT, THE APPEAL FOR THE ASSTT. YEAR 2001-02 AND 2002-03 STAND DISMISSED. 12. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE ASSESSEE STAND DISMISSED. 13. ORDER PRONOUNCED IN THE OPEN COURT ON 28/8/2014 . SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT SHRI SK SRIVASTAVA, C/O VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT. 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES