ANANT SHELTERS PVT LTD., MUMBAI V. INCOME TAX OFFICER, WARD-9(1)(1), MUMBAI

ITA 5145/MUM/2007

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62304 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 04-04-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 27-07-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, H, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (JM) AND SHRI RAJE NDRA SINGH (AM) ITA NO.5145/MUM/2007 (ASSESSMENT YEAR: 2001-02) ANANT SHELTERS PRIVATE LTD., 21, VEENA BEENA, GROUND FLOOR, OPP.BANDRA RAILWAY STATION, BANDRA (W), MUMBAI-400050. PAN: AADCA7836N INCOME TAX OFFICER WARD 9(1)(1), AAYAKAR BHAVAN, CHURCHGATE, M.K.ROAD, MUMBAI-400020. APPELLANT V/S RESPONDENT DATE OF HEARING : 4.4.2012 DATE OF PRONOUNCEMENT : 18.4.2012 APPELLANT BY : SHRI M.SUBRAMANIAN RESPONDENT BY : SHRI AJAY O R D E R PER DINESH KUMAR AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 4.5.2007 PASSED BY THE LD. CIT(A) , FOR THE ASSESSMENT YEAR 2001-02 SUSTAINING THE PENALTY OF RS.4,96,452/- IMPOSED BY THE AO U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961 (THE ACT). 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND ITA NO.5145/MUM/2007 (ASSESSMENT YEAR: 2001-02) 2 DEVELOPERS. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE AO OBSERVED THAT THE ASSESSEE HAS TAKEN UNSECURED L OANS FROM PARTIES. THE ASSESSEE WAS ASKED TO FILE LOAN CONF IRMATIONS FROM THE PARTIES. IN RESPONSE, THE ASSESSEE FILED LOAN CONFIRMATIONS ON SIMPLE LETTER WITHOUT ANY DETAILS OF MODE OF PAYMENT RECEIVED, DETAILS OF PAYMENT RECEIVED, LEDG ER ACCOUNT, SOURCES OF PAYMENT AND IN SOME CASES PARTIES WERE N OT EVEN GIVEN PAN/GIR NUMBERS. IN THE ABSENCE THEREOF, TH E AO OBSERVED THAT THE LOANS TAKEN CANNOT BE HELD AS G ENUINE AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ON US OF PROVING THE IDENTITY OF THE CREDITORS, GENUINENESS OF TRANSACTIONS, SOURCES OF LOAN AND CREDITWORTHINESS OF THE PARTIES AND ACCORDINGLY, THE AO ADDED RS.15,91,250/ - AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. ON AP PEAL, THE LD.CIT(A) CONFIRMED THE ADDITION OF RS.12,55,250/- OUT OF THE ADDITION OF RS.15,19,250/- MADE BY THE AO. SINCE THE AO WHILE COMPLETING THE ASSESSMENT HAS ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, THE AO ISSUE D A SHOW CAUSE NOTICE AS TO WHY THE PENALTY U/S 271(1) (C) SHOULD NOT BE IMPOSED. IN RESPONSE, THE ASSESSEE SUBMITTED THA T THE ASSESSEE HAD TAKEN LOAN FROM VARIOUS PARTIES DURING THE ABOVE ASSESSMENT YEAR AND ACCOUNTED FOR THE SAME IN THE BOOKS OF ACCOUNT. THE CONFIRMATION AND OTHER DETAILS FROM T HE PARTIES ITA NO.5145/MUM/2007 (ASSESSMENT YEAR: 2001-02) 3 WERE ALSO SUBMITTED AT THE TIME OF ASSESSMENT, HENC E THE ASSESSEE HAS NOT CONCEALED THE INCOME. HOWEVER, THE AO DID NOT ACCEPT THE ASSESSEES EXPLANATION. THE AO WHI LE OBSERVING THAT THE ONUS OF PROVING THE GENUINENESS OF THE CAS H CREDIT IS ON THE ASSESSEE WHICH HE FAILED TO DISCHARGE AN D HENCE THE ASSESSEE HAS CONCEALED ITS INCOME BY FURNISHING IN ACCURATE PARTICULARS OF INCOME AND ACCORDINGLY HE IMPOSED T HE PENALTY OF RS.4,96,452/- VIDE ORDER DATED 9.1.2006 PASSED U/S 271(1)(C ) OF THE ACT. ON APPEAL, WHILE AGREEING WITH THE VIEWS OF THE AO CONFIRMED THE PENALTY IMPOSED BY T HE AO. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTENANCE OF PENALTY OF RS.4,96,452/- IMPOSE D BY THE AO U/S 271 (1)( C ). 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE TRIBUNAL IN THE ASSESSE ES OWN CASE IN ANANT SMELTERS PRIVATE LIMITED V/S ITO IN I TA NO.8537/MUM/2004 (AY:2001-02) ORDER DATED 21.10.201 1 IN THE QUANTUM APPEAL HAS RESTORED BACK THE ISSUE TO THE FILE OF THE AO, THEREFORE, THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) BE DELETED OR IN TH E ALTERNATIVE IT MAY ALSO BE SET ASIDE TO THE FILE OF THE AO. ITA NO.5145/MUM/2007 (ASSESSMENT YEAR: 2001-02) 4 5. ON THE OTHER HAND, THE LD. DR WHILE RELYING ON T HE ORDER OF THE AO AND THE LD.CIT(A) SUBMITS THAT HE H AS NO OBJECTION IF THE MATTER OF PENALTY BE SET ASIDE TO THE FILE OF THE AO. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT THERE IS NO DISPUTE THAT THE AO HAS IMPOSED PENALTY ON THE SUSTENANCE OF ADDITION ON UNEXPLAINED CASH CRE DIT U/S 68 OF THE ACT RS.12,55,250/-. WE FURTHER FIND THAT TH E TRIBUNAL IN THE QUANTUM APPEAL OF THE ASSESSEE VIDE ORDER DATED 22.10.2011 (SUPRA) HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR AFRESH ADJUDICATION. THIS BEING SO AND KEEPI NG IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF MOHD MOHTRAM FAROOQUI, MOHALLA PIRZADGAN V/S CCE, RAJAST HAN, 2010-TIOL-23-SC-IT WE ARE OF THE VIEW THAT IN T HE INTEREST OF JUSTICE THE ISSUE OF PENALTY BE RESTORED BACK T O THE FILE OF THE AO AND ACCORDINGLY, WE SET ASIDE THE ORDERS PAS SED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEND BACK T HE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AN D ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE , THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5145/MUM/2007 (ASSESSMENT YEAR: 2001-02) 5 7. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH APRIL, 2012. SD SD ( RAJENDRA SINGH ) ( DINESH KUMAR AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 18TH APRIL, 2012 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI