KASHINATH LAXMAN MARDE, PALGHAR V. ITO WD 3, PALGHAR

ITA 5369/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8217 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALJ BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.5369/MUM/2015 ( / ASSESSMENT YEAR: 2009-10) SHRI KASHINATH LAXMAN MARDE MANGALPADA, NEAR KIRTARI BUNGLOW, DAHANU FORT, DAHANU, DIST. PALGHAR, 401602 / VS. INCOME TAX OFFICER WARD (2) PALGHAR ./ ./ PAN/GIR NO. AHHPM7218G ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 11.01.2017 /DATE OF PRONOUNCEMENT: 15.02.2017 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 09.09.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-3, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2009- 10 IN WHICH THE PENALTY LEVIED BY THE ASSESSING OFFICER HAS BEEN ORDERED TO BE CONFIRMED. ASSESSEE BY: NONE DEPARTMENT BY: SHRI TUFAIL AHMED KHAN ITA NO.5369.M.15 A.Y. 2009-10 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) 3, THANE ERRED IN CONFIRMING PENALTY U/S.271(1)(C) OF THE I.T.ACT, ON UNEXPLAINED CASH DEPOSIT OF RS.2,00,000/-. THE APPELLANT PRAYS THAT THE SAID PENALTY OF RS.50,896/- MAY KINDLY BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 01.09.2009 DECLARING TOTAL INCOME TO THE TUNE OF RS.4,76,790/-. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. THEREAFTER THE ASSESSMENT WAS COMPLETED ON 27.09.2011 BY MAKING THE ADDITION OF RS.2,14,542/- AND TOTAL INCOME WAS DETERMINED TO THE TUNE OF RS.6,91,330/-. THE PENALTY PROCEEDING U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WAS ALSO INITIATED. DURING THE ASSESSMENT PROCEEDINGS IT WAS OBSERVED THAT THE ASSESSEE HAD DEPOSITED CASH TOTALING TO RS.2,00,000/- IN HIS BANK ACCOUNT. THE DETAILS OF WHICH IS HEREBY MENTIONED AS UNDER:- SR. NO. DATE OF DEPOSIT AMOUNT 1 15/04/2008 RS.50,000/- 2 30/06/2008 RS.75,000/- 3 07/07/2008 RS.75,000/- TOTAL RS.2,00,000/- THEREAFTER, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE SAID DEPOSIT IN THE BANK ACCOUNT. ASSESSEE REPLIED BY VIRTUE OF LETTER DATED 21.09.2011, THAT THE ASSESSEE DEPOSITED CASH IN HIS TDCC BANK ACCOUNT ON 01.06.2008 TO ITA NO.5369.M.15 A.Y. 2009-10 3 THE TUNE OF RS.75,000/- AND ON 07.07.2008 TO THE TUNE OF RS.75,000/- WHICH WAS GENERATED BY SALES OF MARUTI OMNI CAR ON 15.06.2008 TO MR. SACHIN ACCHEWAR SHAH AT RS.1,52,000/- (AS PER AGREEMENT OF RS.1,55,000/- LESS DALALI RS.3000/-) OUT OF WHICH MR. SACHIN ACCHEWAR SHAH PAID RS.55,000/- ON 30.05.2008 AND BALANCE ON 15.06.2008. THE COPY OF AGREEMENT WAS ALSO ATTACHED. THE EXPLANATION OF THE ASSESSEE WAS FOUND GENIUNE THEREFORE AN AMOUNT OF RS.2,00,000/- WAS TREATED AS UNEXPLAINED CASH DEPOSIT AND PENALTY PROCEEDING WAS INITIATED AND AFTER THE REPLY OF THE ASSESSEE THE PENALTY TO THE TUNE OF RS.50,896/- WAS IMPOSED WHICH WAS CONFIRMED BY THE CIT(A) BY VIRTUE OF ORDER IN QUESTION, THEREFORE, THE PRESENT APPEAL HAS BEEN FILED BEFORE US BY THE ASSESSEE. ISSUE NO.1:- 4. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF THE ORDER PASSED BY THE ASSESSING OFFICER VIDE WHICH THE PENALTY TO THE TUNE OF RS.50,896/- HAS BEEN CONFIRMED BY THE CIT(A). THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE FAILED TO SHOW THE SALE PROCEED OF THE CASH IN HIS ACCOUNT IN ADVERTENTLY BUT TO BUY THE PEACE OF MIND THE ASSESSEE PAID THE TAX ON THE ASSURANCE OF THE OFFICER TO NOT TO LEVY THE PENALTY, THEREFORE, THE PENALTY IS NOT LIABLE TO BE LEVIABLE IN ACCORDANCE WITH LAW. THIS CONTENTION OF THE ASSESSEE HAS BEEN ASSAILED BY THE DEPARTMENTAL AND PLACED RELIANCE UPON THE LAW SETTLED IN [2013] 358 ITR 593 (SC) MAK DATA P. LTD. VS. COMMISSIONER OF INCOME TAX. 5. KEEPING IN VIEW OF THE ARGUMENT ADVANCED BY THE LD DR FOR REVENUE PARTIES AND PERUSING THE RECORD CAREFULLY, IT CAME INTO THE NOTICE THAT THE ITA NO.5369.M.15 A.Y. 2009-10 4 ASSESSEE DID NOT DISCLOSE THE SALE PROCEED OF THE CAR IF ANY IN HIS RETURN. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND IT WAS FOUND THAT AN AMOUNT OF RS.2,00,000/- HAS BEEN DEPOSITED IN THE ASSESSEES ACCOUNT ON DIFFERENT DATES I.E. AN AMOUNT OF RS.50,000/- ON 15.04.2008, RS.75,000/- ON 30.06.2008 AND RS.75,000/- ON 07.07.2008 TOTAL TO THE TUNE OF RS.2,00,000/-. IT ALSO CAME INTO THE NOTICE THAT WHEN THE NOTICE WAS GIVEN TO THE ASSESSEE THEN THE ASSESSEE OFFERED THE TAX TO BUY THE PEACE AND REQUESTED TO DROP THE PENALTY PROCEEDING. NOW IT IS TO BE SEEN THAT IN THE SAID CIRCUMSTANCES THE PENALTY IS LEVIABLE OR NOT. IN THIS REGARD HONBLE SUPREME COURT HAS SELLTED THE LAW IN CASE [2013] 358 ITR 593 (SC) MAK DATA P. LTD. VS. COMMISSIONER OF INCOME TAX IN WHICH IT IS SPECIFICALLY HELD THAT THAT IF THE SURRENDER OF INCOME IS NOT VOLUNTARILY AND SURRENDER OF INCOME WAS THE SUBJECT OF INVESTIGATION THEREFORE THE SAME CANNOT BE TREATED AS VOLUNTARILY. THEREFORE, IN THE SAID CIRCUMSTANCES, IT IS QUITE CLEAR THAT IT IS FIT CASE TO LEVY THE PENALTY. IN VIEW OF THE LAW SETTLED IN THE SAID CASE, WE ARE OF THE VIEW THAT THE CIT(A) HAS CONFIRMED THE PENALTY JUDICIOUSLY AND CORRECTLY WHICH IS NOT REQUIRE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2017 . SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 15 TH FEBRUARY, 2017 MP ITA NO.5369.M.15 A.Y. 2009-10 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI