Mukesh Sharma, Panchkula V. ITO, Panchkula

ITA 538/CHANDI/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8703 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Agreed addition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 538/CHD/2013 (ASSESSMENT YEAR : 2008-09) MUKESH SHARMA, VS. THE INCOME TAX OFFICER, HOUSE NO.1106J, WARD 2, SECTOR 4, PANCHKULA. PANCHKULA. PAN: AMQPS3264E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY JAIN RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 22.01.2015 DATE OF PRONOUNCEMENT : 28.01.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS ), PANCHKULA DATED 9.4.2013 FOR ASSESSMENT YEAR 2008-0 9, CHALLENGING THE ADDITION OF RS.11,44,500/-. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILE D RETURN OF INCOME AT 1,77,600/-. THE CASE WAS SELECTED FOR S CRUTINY. THE ASSESSEE MAINTAINED BANK ACCOUNT WITH IDBI BANK AND ON PERUSAL OF THE BANK STATEMENT, IT WAS NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.11,44,500/- DURIN G THE YEAR. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURC E OF THE CASH DEPOSITS IN THE BANK ACCOUNT AND AS TO WHY THE SAME 2 MAY NOT BE TREATED AS UNEXPLAINED. THE ASSESSEE E XPLAINED BEFORE THE ASSESSING OFFICER THAT THE SOURCE OF THE CASH DEPOSITS IN THE ABOVE SAID BANK IS NOT READILY AVAI LABLE. HOWEVER, TO AVOID LITIGATION AND TO PURCHASE PEACE OF MIND, THE ASSESSEE AGREED FOR ADDITION OF RS.11,44,500/- SUBJECT TO NO PENAL ACTION. THE ASSESSEE ACCORDINGLY, SURREN DERED THE AMOUNT IN QUESTION FOR ADDITION. 3. THE LEARNED CIT (APPEALS) SIMILARLY NOTED THAT T HE ASSESSEE SURRENDERED THE AMOUNT FOR ADDITION BEFORE THE ASSESSING OFFICER, THEREFORE, NO APPEAL LIES AGAINS T THE AGREED SURRENDER AND RELIED UPON THE DECISION OF THE HON'B LE PUNJAB & HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KAR TAR SINGH VS. CIT, 125 ITR 239(P&H) AND ACCORDINGLY, DISMISSE D THE APPEAL OF THE ASSESSEE. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE LEARNED COUNSEL FOR ASSESSEE SUBMITTED THAT THE MAT TER MAY BE REMANDED TO THE FILE OF THE LEARNED CIT (APPEALS ) FOR DECIDING THE APPEAL ON MERITS. HOWEVER, THE LEARN ED D.R FOR THE REVENUE OPPOSED THE REQUEST OF THE ASSESSEE AND SUBMITTED THAT ON AGREED ADDITION NO APPEAL LIES. T HEREFORE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS APPEAL OF THE ASSESSEE. THE HON 'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KAR TAR SINGH (SUPRA) HELD AS UNDER : 3 HELD, THAT IT WAS ON THE AGREEMENT OF THE ASSESSEE , WHICH AGREEMENT MENTIONED THE RATE AS WELL AS THE F IGURE, THAT PENALTY HAD BEEN LEVIED. THE ASSESSEE HAD NO RIGHT TO AGITATE THIS QUESTION IN APPEAL. THE TRIBUNAL WAS RIGHT IN LAW IN NOT GOING INTO THE QUESTION WHETHER THE P ENALTY WAS IN LAW THE MINIMUM PENALTY LEVIABLE UNDER S.271 (1)(C) OF THE I.T. ACT, 1961. 6. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF JIV ATLAL PURTAPSHI, 65 ITR 261 (BOM.) HELD AS UNDER : HELD, THAT THE DEPARTMENT, HAVING AGREED TO DELETE THE AMOUNT FROM THE COMMISSIONER AND HAVING CONCEDE D THE DELETION BEFORE THE APPELLATE ASSISTANT COMMISS IONER, CANNOT BE HELD TO BE AGGRIEVED BY THIS PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL TO THE TRIBUNAL; THE AP PEAL OF THE DEPARTMENT REGARDING THE DELETION OF THE AMOUNT WAS NEITHER COMPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE TRIBUNAL. 7. THE KERALA HIGH COURT IN THE CASE CIT VS. VAMADE VAN BHANU 330 ITR 559 (KER) HELD AS UNDER : ASSESSMENT ASSESSMENT ON AGREED BASIS ASSESSEE CANNNOT APPEAL AGAINST SUCH ORDER- INCOME-TAX ACT, 1961. 8. IN VIEW OF THE ABOVE JUDGMENTS, IT IS CLEAR THAT NO APPEAL LIES AGAINST THE AGREED ADDITION. THE LEARNED COU NSEL FOR ASSESSEE, HOWEVER, STATED THAT SOME EVIDENCE WAS FI LED BEFORE THE ASSESSING OFFICER TO EXPLAIN THE SOURCE OF THE BANK DEPOSITS. THEREFORE, THE MATTER SHOULD BE DECIDED ON MERITS BY THE LEARNED CIT (APPEALS). WE DO NOT FIND THE CONTENTION OF THE LEARNED COUNSEL FOR ASSESSEE TO BE CORRECT. THE 4 ASSESSEE HAS SPECIFICALLY SURRENDERED THE AMOUNT IN QUESTION FOR THE PURPOSE OF ADDITION BEFORE THE ASSESSING OF FICER AND THUS AGREED FOR ADDITION. THOUGH THE ASSESSEE FIL ED THE APPEAL BEFORE THE LEARNED CIT (APPEALS) CHALLENGING THE ABOVE ADDITION BUT THE ASSESSEE IN THE GROUND OF APPEAL R AISED BEFORE THE LEARNED CIT (APPEALS) HAS NOT CHALLENGE D THE FINDING OF FACT RECORDED BY THE ASSESSING OFFICER I N THE ASSESSMENT ORDER OR MAKING ADDITION AGAINST THE ASS ESSEE ON AGREED BASIS. SINCE THE ASSESSEE DID NOT DISPUTE THE STATEMENT OF FACT RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ON AGREED ADDITION BEFORE THE LEAR NED CIT (APPEALS), THEREFORE, THE CONTENTION OF THE LEARNED COUNSEL FOR ASSESSEE CANNOT BE ACCEPTED AT THE STAGE. THE HON 'BLE DELHI HIGH COURT IN THE CASE DEEKSHA SURI VS. ITAT, 232 I TR 395 (DEL) HELD THAT THE STATEMENT RECORDED BY THE COUR T OR QUASI- JUDICIAL TRIBUNAL IS PRESUMED TO BE CORRECT AND CAN NOT BE PERMITTED TO BE ASSAILED AS INCORRECT UNLESS STEPS ARE TAKEN BEFORE THE SAME FORUM. SINCE IN THIS CASE THE AS SESSING OFFICER HAS RECORDED SPECIFICALLY IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS AGREED FOR SURRENDER OF RS.11,44,5 00/-, THEREFORE, THE ASSESSING OFFICER MADE ADDITION ON A GREED BASIS. IT MAY ALSO BE RELEVANT TO NOTE HERE THAT ON OTHER ISSUE OF INTEREST OF RS.12,262/-, THE ASSESSING OFF ICER MADE ADDITION SIMILARLY ON SURRENDER MADE BY THE ASSESSE E THOUGH IT IS NOT IN CHALLENGE BEFORE US. THESE FACTS WOU LD CLEARLY SHOW THAT THE ASSESSEE AGREED FOR ADDITION BEFORE T HE ASSESSING OFFICER AND NEVER RETRACTED THROUGH ANY E VIDENCE OR MATERIAL TO SHOW THAT THE ASSESSEE NEVER AGREED FOR SUCH 5 ADDITION BEFORE THE ASSESSING OFFICER. ADMITTEDLY , THE ASSESSEE HAS NOT TAKEN ANY STEPS BEFORE THE ASSESSI NG OFFICER TO DISPUTE THE CORRECTNESS OF THE AGREED ADDITION R ECORDED IN THE ASSESSMENT ORDER AS WELL AS DID NOT CONTRADICT THIS FACT IN APPEAL BEFORE THE LEARNED CIT (APPEALS). THE ASSE SSEE HAS ALSO NOT PRODUCED ANY EVIDENCE OR MATERIAL BEFORE U S TO CONTRADICT THE FINDING OF FACT RECORDED BY THE ASSE SSING OFFICER IN THE ASSESSMENT ORDER REGARDING AGREED AD DITION. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIE W THAT LEARNED CIT (APPEALS) WAS JUSTIFIED IN FOLLOWING TH E DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE BANTA SINGH KARTAR SINGH (SUPRA) IN HOLDING THAT THE APPE AL OF THE ASSESSEE IS NOT MAINTAINABLE. 9. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE HAS NO MERIT AND IS ACCORDINGLY, DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 TH JANUARY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6