Shri Mahesh Kumar S/o Shri Hiralal, Indore V. Income Tax officer 5(5), Indore

ITA 554/Ind/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4131 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: S S DESH
• Keywords: Capital receipt
• Section: 143(3)

Judgement Text

MAHESH KUMAR ITA NO.554/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.554/IND/2017 ASSESSMENT YEAR: 2008-09 REVENUE BY S HRI P.K. MITRA, SR.DR ASSESSEE BY SHRI S.S. DESHPANDE ,C.A DATE OF HEARING 11. 10 . 2018 DATE OF PRONOUNCEMENT 12 .10 .2018 O R D E R PER MANISH BORAD, AM. THIS APPEAL OF ASSESSEE PERTAINING TO A.Y. 2008-09 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, INDORE (IN SHORT CIT(A)), DATED 01.05.2017 WHICH IS ARISING OUT OF THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT 1961( HEREINAFTER CALLED AS THE ACT) FRAMED ON 01.03.2016 BY ITO-5( 5), INDORE. SHRI MAHESH KUMAR, GRAM SULAKHEDI, POST MANGLIA, INDORE VS. ITO 5( 5 ), INDORE ( APPELLANT ) (RESPONDENT ) PAN NO. A YPPM2201G MAHESH KUMAR ITA NO.554/IND/2017 2 2. THE ASSESSEES SOLE GRIEVANCE IS AGAINST THE OR DER OF LD.CIT(A)- II, INDORE CONFIRMING THE PENALTY OF RS.39,82,800/- LEVIED BY THE LD. ASSESSING OFFICER U/S 271(1)(C ) OF THE ACT ON ACCO UNT OF UNEXPLAINED SOURCE OF DEPOSIT IN BANK ACCOUNT. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE IMPUGNED PENALTY OF RS.39,82,800/- WAS LEVIED BY TH E LD. ASSESSING OFFICER ON THE ADDITION FOR UNEXPLAINED D EPOSIT IN BANK OF RS.1,32,76,000/-. HE FURTHER SUBMITTED THAT THE AS SESSEE WENT IN APPEAL BEFORE HON'BLE TRIBUNAL AGAINST THE QUANTUM OF ADDITION AND HON'BLE TRIBUNAL VIDE ORDER DATED 24.5.2017 IN I.T. .A NO. 752/IND/2014 DELETED THE QUANTUM ADDITION OF RS.1,3 2,76,000/-. HE PRAYED THAT AS THE QUANTUM HAS BEEN DELETED, NO PENALTY IS LEVIABLE U/S 271(1)(C ) OF THE ACT. 4. LD. DEPARTMENTAL REPRESENTATIVE FAILED TO CONTRO VERT THE SUBMISSION MADE BY THE ASSESSEE. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. WE FIND THAT THE ADDITION OF UNE XPLAINED DEPOSIT IN BANK ACCOUNT AT RS.1,32,76,000/- WAS MADE BY THE INCOME TAX OFFICER WARD 3(3), INDORE IN THE ASSESSMENT ORDER F RAMED US/ 143(3) MAHESH KUMAR ITA NO.554/IND/2017 3 OF THE ACT DATED 31.12.2010 WHICH WAS FOLLOWED BY T HE PENALTY PROCEEDINGS U/S 271(1)(C ) AND VIDE ORDER DATED 01. 03.2016 PENALTY @100% OF TAX SOUGHT TO BE EVADED ON THE ADDITION OF RS.1,32,76,000/- WAS LEVIED AT RS.39,82,800/-. 6. WE FIND THAT THE CO-ORDINATE BENCH IN I.T.A.NO. 752/IND/2014 ORDER DATED 24.05.2017 WHILE ADJUDICATING THE ISSUE OF QUANTUM OF ADDITION IN THE CASE OF ASSESSEE DELETED THE ADDITI ON OF RS.1,32,76,000/- MADE ON ACCOUNT OF UNEXPLAINED CAS H CREDIT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCES ON RECORD AND STATEMENT OF POWER OF ATTORNEY HOLDER RECORDED BY THE A.O AND HO LDING THAT THE AMOUNT OF RS.1,32,76,000/- IS RECEIVED BY THE ASSES SEE ON ACCOUNT OF SALE OF AGRICULTURE LAND AND THE SAME IS TO BE T REATED AS CAPITAL RECEIPT. 7. IN THE INSTANT APPEAL THE ISSUE BEFORE US LIMITS TO PENALTY LEVIED U/S 271(1)(C ) OF THE ACT AT RS.39,82,800/- ON THE QUANTUM OF ADDITION OF RS.1,32,76,000/- ON ACCOUNT OF UNEXPLAI NED CASH CREDIT. THE BASIS OF LEVYING PENALTY U/S 271(1)(C ) OF THE ACT IS ON THE ADDITION MADE IN THE HANDS OF THE ASSESSEE. IN THE INSTANT CASE, THE VERY BASIS OF LEVYING PENALTY I.E. THE QUANTUM ADDITION HAS BEEN MAHESH KUMAR ITA NO.554/IND/2017 4 DELETED BY THE CO-ORDINATE BENCH THEREFORE PENALTY U/S 271(1)(C) HAS NO LEGS TO STAND FOR. IN OUR CONSIDERED VIEW T HE IMPUGNED PENALTY NEEDS TO BE DELETED. WE ACCORDINGLY DO SO AND DIRECT THE LD. ASSESSING OFFICER TO DELETE THE PENALTY OF RS.3 2,82,800/-. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.201 8. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 12 OCTOBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER ASSTT.REGISTRAR,I.T.A.T., INDORE