Mr. Ajay Kumar Arora, Bhopal V. The ACIT, Bhopal

ITA 510/IND/2009

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7766 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1993-1994
• Appeal Filed On: 05-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE .. , , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.510/IND/2009 ( !'# $' !'# $' !'# $' !'# $' / / / / ASSESSMENT YEAR : 1993-94) SHRI AJAY KUMAR ARORA C/O.M/S.SOM DISTILLERIES LTD. 23, ZONE II, M.P.NAGAR BHOPAL % % % % / VS. THE ACIT CIRCLE-1(1) BHOPAL & ./ '( ./ PAN/GIR NO. : AAPPA 8542 A ( &) / // / APPELLANT ) .. ( *+&) / RESPONDENT ) &) , / APPELLANT BY : SHRI SUMIT NEMA, ADV. *+&) - , / RESPONDENT BY : SHRI R.A. VERMA, SR.DR . - / / / / / DATE OF HEARING 20/11/2014 01$# - / / DATE OF PRONOUNCEMENT 20/11/2014 2 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, BHOPAL (M .P.) [CIT(A) IN SHORT] DATED 18/08/2009 PERTAINING TO ASSESSMENT YEAR (AY) 1993-94. THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL:- 1. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION OF AUTHORITIES BELOW IS CONTRARY TO LAW, MATERIAL LY INCORRECT AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS. THE ORD ER OF PENALTY, THEREFORE, BE CANCELLED. ITA NO.510/IND/2009 SHRI AJAY KUMAR ARORAR VS. ACIT ASST.YEAR 1993-94 - 2 - 2. THAT ON THE FACTS & IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE ORDER OF PENALTY IS INVALID AND UNLAWFUL BECAUSE BEFORE MAKING SUCH ORDER, THE ASSESSEE HAS NOT BEEN HEAR D NOR HAS BEEN GIVEN A REASONABLE & MEANINGFUL OPPORTUNITY OF BEING HEARD AS CONTEMPLATED U/S.274(1). HENCE THE ORDER BE CA NCELLED. 3. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED LOWER AUTHORITIES ERRED IN HOLDING THA T THE ASSESSEE IS THE OWNER OF THE BANK ACCOUNT AND THAT THE DEPOSITS MA DE THEREIN REPRESENT THE CONCEALED INCOME OF THE ASSESSEE. S UCH FINDINGS OF THE AUTHORITIES BELOW ARE WHOLLY WRONG AND INJUDICIOUS AND, THEREFORE, THE LEVY OF PENALTY IS UNLAWFUL AND UNJUSTIFIED HE NCE BE CANCELLED. 4. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE PENALTY IS NOT WARRANTED IN THIS CASE AND THAT THERE IS NO POSITIVE EVIDENCE THAT THE ADDITION SUSTAINED REPRESENTED T HE CONCEALED INCOME OF THE ASSESSEE AND, THEREFORE, THE LEVY OF PENALTY IS NOT JUSTIFIED AND HENCE BE CANCELLED. 5. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE ADDITION SUSTAINED AT RS.780062 DOES NOT REPRE SENT THE CONCEALED INCOME OF THE ASSESSEE WITHIN THE MEANIN G OF SECTION 271(1)(C) OF THE I.T.ACT. HENCE THE LEVY OF PENAL TY IS UNLAWFUL AND UNJUSTIFIED HENCE BE DELETED. 6. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, IT BE HELD THAT THE ASSESSEE HAS NOT CONCEALED THE PA RTICULARS OF ITS INCOME NOT FURNISHED INACCURATE PARTICULARS OF SUC H INCOME AND, THEREFORE, THE LEVY OF PENALTY OF IS UNJUSTIFIED A ND UNLAWFUL AND, THEREFORE, BE CANCELLED. 7. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED CIT(A) IN PARA (8) OF THE ORDER ARE WHOLLY WRONG AND INJUDICIOUS AND ARE OPPOSED TO FACTS AND , THEREFORE, THERE IS NO JUSTIFICATION IN SUSTAINING THE LEVY OF PENA LTY HOLDING THAT THE ASSESSEE HAS CONCEALED INCOME OF RS.780062. 8. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE AUTHORITIES BELOW ERRED IN IGNORING THE PROVIS IONS OF SECTION 292C OF THE I.T.ACT AND AFFIDAVIT FILED IN SUPPORT OF APPELLANTS CONTENTION WHILE ADJUDICATING THE ISSUE INVOLVED A ND HENCE THE ORDER IS BAD AND VITIATED IN LAW AND, THEREFORE, BE CANC ELLED. ITA NO.510/IND/2009 SHRI AJAY KUMAR ARORAR VS. ACIT ASST.YEAR 1993-94 - 3 - 2. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL IS AGAINST THE CONFIRMATION OF PENALTY BY TH E LD.CIT(A). HE SUBMITTED THAT THE ADDITION SUSTAINED BY THE HON'BL E TRIBUNAL (I.T.A.T. INDORE BENCH) IN ITA NO.357/IND/04 FOR AY 1993-94, THE ASSESSEE HAD FILED AN APPEAL BEFORE THE HONBLE MADHYA PRAD ESH HIGH COURT IN MAIT NO.208 OF 2007 IN ASSESSEES OWN CASE HAS A DMITTED THE APPEAL. HE SUBMITTED THAT SINCE THE ISSUE HAS BECO ME NOW DEBATABLE, NO PENALTY CAN BE SUSTAINED. 3. ON THE CONTRARY, LD.SR.DR SHRI R.A.VERMA VEHEME NTLY OPPOSED THE SUBMISSION OF THE LD.COUNSEL FOR THE ASSESSEE AND S UBMITTED THAT THE LD.COUNSEL FOR THE ASSESSEE IS NOT NARRATING THE CO RRECT FACTS. HE SUBMITTED THAT, IN THIS CASE, THE AMOUNT WAS FOUND TO BE DEPOSITED IN THE ACCOUNT OF THE ASSESSEE, HOWEVER THE CONTENTION OF THE ASSESSEE IS THAT THIS AMOUNT DOES NOT BELONG TO THE ASSESSEE AN D THE SAME BELONGS TO ONE COMPANY; NAMELY, SOM DISTILLERIES LTD. IN WH ICH THE ASSESSEE IS A DIRECTOR. HE FURTHER SUBMITTED THAT ANY AMOUN T FOUND DEPOSITED INTO THE ACCOUNT OF THE ASSESSEE, IT IS INCUMBENT U PON THE ASSESSEE TO GIVE EXPLANATION WITH REGARD TO THE SOURCE OF SUCH DEPOSIT. HOWEVER, THE CONTENTION OF THE ASSESSEE IS THAT THIS AMOUNT HAS BEEN OWNED UP BY THE COMPANY IN THE PROCEEDINGS BEFORE THE SETTLE MENT COMMISSION. HE SUBMITTED THAT THE ORDER OF THE SETTLEMENT COMMI SSION HAS NOT BEEN PLACED ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH T HE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT DISPUTED BY THE REV ENUE THAT THE ISSUE IN RESPECT OF THE ADDITION OF RS.7,80,062/- HAS BEEN SUSTAINED BY THE COORDINATE BENCH OF THIS TRIBUNAL AND THE APPEAL AG AINST THE SAME HAS ITA NO.510/IND/2009 SHRI AJAY KUMAR ARORAR VS. ACIT ASST.YEAR 1993-94 - 4 - ALREADY BEEN PREFERRED BY THE ASSESSEE AND SAME IS ADMITTED BY THE HON'BLE JURISDICTIONAL HIGH COURT. UNDER THESE FAC TS, AS AGREED BY BOTH THE PARTIES, WE FEEL THAT THIS ISSUE OF LEVY O F PENALTY ON ADDITION TO BE RESTORED TO THE FILE OF LD.CIT(A) TO DECIDE I T AFRESH IN ACCORDANCE WITH LAW AFTER THE OUTCOME OF THE APPEAL PENDING B EFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THEREFORE, THE ORDER OF THE LD.CIT(A) IS HEREBY SET ASIDE AND THE ISSUE OF LEVY OF PENALTY O N ADDITION OF RS.7,80,062/- IS RESTORED TO THE FILE OF LD.CIT(A) FOR A FRESH DECISION IN ACCORDANCE WITH LAW. THUS, GROUNDS RAISED IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES ON THURSDAY, THE 20 TH OF NOVEMBER, 2014 AT INDORE. SD/- SD/ - ( .. ) ( ) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDIC IAL MEMBER INDORE; DATED 20/11/2014 5/.., .../ T.C. NAIR, SR. PS 2 - *6 7 87$ 2 - *6 7 87$ 2 - *6 7 87$ 2 - *6 7 87$/ COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. %9! : / CONCERNED CIT 4. : ( ) / THE CIT(A)-I, BHOPAL (M.P.) 5. 7; *9! , / 9!# BUNKSJ BUNKSJ BUNKSJ BUNKSJ / DR, ITAT, INDORE 6. ;<' =. / GUARD FILE. 2 2 2 2 / BY ORDER, +7 * //TRUE COPY// > ' > ' > ' > ' ( ASSTT.REGISTRAR) ITAT, INDORE