SASIKUMAR V.PILLAI, MUMBAI V. ITO 24(3)(4), MUMBAI

ITA 5382/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87810 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: S C TIWARI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, M UMBAI BEFORE HONBLE S/SHRI VIJAY PAL RAO (JM) , AND B.R.BASKARAN (AM) , . . , ./I.T.A. NO.5382/MUM/2012 ( / ASSESSMENT YEAR : 2007-08) MR.SASIKUMAR V PILLAI, F-35, SHARAD INDUSTRIAL ESTATE, LAKE ROAD, BHANDUP (W), MUMBAI-400078 / VS. INCOME TAX OFFICER-23(3)(4), C-10, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400051. ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. :AABPP6472C ! / REVENUE BY: SHRI NEIL PHILIP ' ! /ASSESSEE BY : SHRI S C TIWARI # ' $% / DATE OF HEARING : 19.11.2014 &' ' $% /DATE OF PRONOUNCEMENT : 9.1.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE IS CHALLENGING THE ORDER DATED 15.6.20 12 PASSED BY LD CIT(A)-11 CONFIRMING THE PENALTY LEVIED U/S 271(1)( C) OF THE ACT FOR ASSESSMENT YEAR 2007-08. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF MANUFACTURE OF METAL COMPONENTS, CANS, METAL CARTRI DGES AND PLASTIC COMPONENTS. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS FOUND TO HAVE BEEN MADE CASH DEPOSITS AGGREGATING TO RS.35,17,320 /- IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE SIMPLY SUBMITTED THAT T HE SAME REPRESENTS SALE PROCEEDS OF SCRAP AND PROCESS REJECTIONS AMOUNTING TO RS.9,71,186/-. NOT SATISFIED WITH THE SAID EXPLANATION, THE AO ASSESSE D THE ABOVE SAID AMOUNT OF ITA NO.5382/M/2012 2 RS.35,17,320/- AS INCOME OF THE ASSESSEE. IN THE A PPELLATE PROCEEDINGS, THE LD CIT(A) CONSIDERED 15% OF THE TURNOVER DECLARED BY T HE ASSESSEE AS SALES PERTAINING TO SCRAPS AND REJECTIONS, I.E., RS.5,92, 000/- AND ACCORDINGLY CONSIDERED THE AMOUNT TO THE EXTENT OF RS.5,92,000/ - AS EXPLAINED. ACCORDINGLY THE LD CIT(A) SUSTAINED THE ADDITION TO THE EXTENT OF RS.29,25,320/- AFTER GIVING RELIEF OF RS.5,92,000/-. 3. IN THE PENALTY PROCEEDINGS, THE ASSESSEE DID N OT FURNISH ANY EXPLANATION AND HENCE THE ASSESSING OFFICER LEVIED PENALTY EQUI VALENT TO 100% TAX ON THE ADDITION OF RS.29,25,320/- SUSTAINED BY THE LD CIT( A). IN THE ABSENCE OF ANY EXPLANATION, THE LD CIT(A) ALSO CONFIRMED THE PENAL TY. AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE RECORD. DURING THE COURSE OF HEARING, THE LD A.R FURNISHED BEFORE US A LETTER DATED JANUARY 6, 2009 ADDRESSED TO THE INCOME TAX OFFICER AND SUBMITTED T HAT THE ASSESSEE HAD FURNISHED EXPLANATION. HOWEVER, A PERUSAL OF THE S AID LETTER SHOWS THAT THE ASSESSEE HAD RAISED CERTAIN TECHNICAL OBJECTIONS ON LY TO THE PENALTY NOTICE ISSUED BY THE ASSESSING OFFICER. ACCORDINGLY, WE FIND THA T THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION WITH REGARD TO THE ADDITION OF RS.29,25,320/- CONFIRMED BY THE LD CIT(A). 5. THERE SHOULD NOT BE ANY DISPUTE THAT THE EXPLA NATION 1 TO SECTION 271(1)(C) PROVIDES FOR TREATING THE ADDITIONS AS D EEMED CONCEALMENT OF INCOME AND THE SAID EXPLANATION ALSO PLACES INITIAL ONUS U PON THE ASSESSEE TO FURNISH RELEVANT MATERIALS, DOCUMENTS AND EXPLANATIONS. TH E HONBLE SUPREME COURT IN THE CASE OF K.P. MADHUSUDHAN (251 ITR 99) AND ALSO IN THE CASE OF MAK DATA PVT LTD (38 TAXMANN.COM 448) HAS IN CLEAR TERMS HEL D THAT THE ONUS IS ON THE ASSESSEE TO SUBSTANTIATE HIS CLAIM BY COGENT AND RE LIABLE EVIDENCE. ONLY WHEN THE INITIAL ONUS PLACED BY EXPLANATION-1 TO SECTION 271(1)(C) IS DISCHARGED BY THE ASSESSEE, THE BURDEN OF PROVING CONCEALMENT SHIFTS ON REVENUE. 6. IN THE INSTANT CASE, WE NOTICE THAT THE ASSESS EE HAS FAILED TO DISCHARGE THE INITIAL ONUS PLACED UPON HIM BY EXPLANATION 1 TO SE CTION 271(1)(C) OF THE ACT. DURING THE COURSE OF HEARING, THE LD A.R PLACED REL IANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS (322 ITR 158). IN ITA NO.5382/M/2012 3 OUR VIEW, THE ADDITION MADE IN THE INSTANT CASE PER TAINS TO CASH DEPOSITS MADE IN THE BANK ACCOUNT AND HENCE WE ARE OF THE VIEW THAT THE LD CIT(A) HAS RIGHTLY HELD THAT THE DECISION RENDERED IN THE CASE OF RELI ANCE PETRO PRODUCTS IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. HENCE , WE HAVE NO OTHER OPTION BUT TO CONFIRM THE ORDER OF LD CIT(A) ON THIS ISSUE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 9TH JAN, 2015 . &' # () * + 9TH JAN, 2015 ' ' , - SD SD ( / VIJAY PAL RAO ) ( . . ,/ B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ( # MUMBAI: 9TH JAN,2015. . . ./ SRL , SR. PS !'# $#%! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. # 0$ ( ) / THE CIT(A)- CONCERNED 4. # 0$ / CIT CONCERNED 5. 6. 1, $ 2 , % 2 , ( # / DR, ITAT, MUMBAI CONCERNED ,3 4 / GUARD FILE. 5 # / BY ORDER, TRUE COPY 6 (ASSTT. REGISTRAR) % 2 , ( # /ITAT, MUMBAI