RAJPUT REALTORS P.LTD, MUMBAI V. ITO 8(3)(3), MUMBAI

ITA 5548/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2422 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 30-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 23-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: SANJAY KAPADIA
• Keywords: Onus to prove; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.5548/M/2013 ASSESSMENT YEAR: 2007-08 M/S. RAJPUT REALTORS P. LTD., 466, RATHODI VILLAGE, OPP. BAY VIEW BUILDING, MARVE ROAD, MALAD W, MUMBAI 4000 095 PAN: AADCR 2485A VS. ITO 8(3)(3), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SANJAY KAPADIA, A.R. REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 17.10.2016 DATE OF PRONOUNCEMENT : 17.10.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL OF THE ASSESSEE IS TIME BARRED OF 82 DAYS AND APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFF IDAVIT HAS BEEN FILED. CONSIDERING THE SUBMISSIONS OF THE ASSESSEE WHICH A RE SUPPORTED WITH THE AFFIDAVIT, THE DELAY IN FILING THE APPEAL IS HEREBY CONDONED. NOW COMING TO THE MERITS OF THE CASE. 2. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASS ESSEE AGAINST THE ORDER DATED 26.03.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2007-08 AGITATING THE CONFIRMATION OF THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT AT THE RATE OF 300% OF THE TAX SOUGHT TO BE EVADED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD MADE DEPOSITS AMOUNTING TO RS.20,20,000/-, THE SOURCES OF WHICH T HE ASSESSEE COULD NOT PROVE ITA NO.5548/M/2013 M/S. RAJPUT REALTORS P. LTD. 2 DURING THE QUANTUM PROCEEDINGS. THE ASSESSING OFFI CER (HEREINAFTER REFERRED TO AS THE AO), THEREFORE, MADE THE ADDITIONS OF THE SAID AMOUNT INTO THE INCOME OF THE ASSESSEE AND ALSO INITIATED PENALTY PROCEEDI NGS. THE ASSESSEE SUBMITTED THAT THE MONEY IN QUESTION WAS RECEIVED BY THE ASSE SSEE FROM VARIOUS DEPOSITORS FOR BOOKING OF PLOTS THAT THE SAID MONEY WAS RECEIVED THROUGH DIFFERENT AGENTS AND THEREFORE THE COMPLETE DETAILS OF THE PARTIES COULD NOT BE GIVEN. THE AO, HOWEVER, HELD THAT THE ASSESSEE HAD FAILED TO FURNISH THE REQUIRED EVIDENCES, IDENTITY AND CREDITWORTHINESS O F THE PARTIES AND THE GENUINENESS OF THE TRANSACTIONS. HE, THEREFORE, LE VIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT AT THE RATE OF 300% OF THE TAX SOUGHT TO BE EVADED WHICH CAME OUT AT RS.20,59,794/-. 4. IN APPEAL, THE LD. CIT(A) CONFIRMED THE SAID PEN ALTY. 5. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS SUBM ITTED THAT THE DEPOSITS WERE MADE FROM DIFFERENT PARTIES FOR BOOKING OF THE PLOTS. HOWEVER, THE SCHEME DID NOT MATURE AND THAT THE ASSESSEE HAD REF UNDED THE AMOUNTS TO THE PARTIES. HE HAS FURTHER SUBMITTED THAT THE NAMES O F THE PARTIES WERE SUPPLIED TO THE AO BUT THE PAN NUMBER OF THE PARTIES COULD NOT BE SUPPLIED AS THERE WERE VARIOUS DEPOSITORS AND THE MONEY WAS RECEIVED IN CA SH THROUGH VARIOUS AGENTS. HE, THEREFORE, HAS STATED THAT THOUGH THE ADDITIONS HAVE BEEN CONFIRMED BY THE LD. CIT(A) FOR LACK OF EVIDENCE ON THE PART OF ASSE SSEE TO PROVE GENUINENESS OF THE TRANSACTIONS, HOWEVER, IT WAS NOT A CASE OF LEV Y OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 6. THE LD. D.R., ON THE OTHER HAND, HAS RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. THE UNDISPUTED FACTS OF THE CASE ARE THAT CERTAIN DEPOSITS WERE FOUND INTO THE ACCOUNT OF THE ASSESSEE. THE ASSESSEE HAS FAILED TO DISCHARGE ITS ITA NO.5548/M/2013 M/S. RAJPUT REALTORS P. LTD. 3 BURDEN TO PROVE THE SOURCE OF DEPOSITS. THE ASSESS EE COULD NOT PROVE ITS CONTENTIONS REGARDING DEPOSITS RECEIVED FROM VARIOU S PARTIES WITH ANY CREDIBLE EVIDENCE. EVEN THE ASSESSEE COULD NOT SUPPLY THE A DDRESSES AND THE PAN NUMBERS OF THE PARTIES. WE, THEREFORE, FIND JUSTIF ICATION ON THE PART OF THE LOWER AUTHORITIES IN LEVYING THE PENALTY IN THIS CA SE UNDER SECTION 271(1)(C) OF THE ACT AS IT IS A CLEAR CUT CASE OF CONCEALMENT OF INCOME. HOWEVER, THE PENALTY LEVIED AT THE RATE OF 300% OF THE TAX SOUGH T TO BE EVADED APPEARS ON A HIGHER SIDE. KEEPING IN VIEW OF THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, THE PENALTY IS REDUCED TO THE 100% OF THE TAX SOUGHT TO BE EVADED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.10.2016. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.10.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.