HIRO KISHINCHAND VASVANI, MUMBAI V. ITO 20(1)(3), MUMBAI

ITA 5737/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88232 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 19-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ./ I.T.A. NO.5737 /MUM/2013 ( / ASSESSMENT YEAR : 2008-2009 HIRO KISHINCHAND VASVANI, FLAT NO. 202, EMPIRE RESIDENCY, PLOT NO. 194, MAHAKALI CAVES ROAD, ANDHERI EAST, MUMBAI 400 093. / VS. INCOME TAX OFFICER - 20(1)(3), PIRAMAL CHAMBERS,, PAREL, MUMBAI. ./ PAN : AABPV 8587 E ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI HARESH P. SHAH R E SPONDENT BY : SHRI JITENDRA KUMAR / DATE OF HEARING : 02-02-2015 / DATE OF PRONOUNCEMENT : 06-02-2015 [ !' / O R D E R PER R.C. SHARMA, A.M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) -31, MUMBAI DATED 12-08-2013 FOR THE A.Y . 2008-09 IN THE MATTER OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT A MOUNTING TO RS. 8,40,620/-. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)(C ) OF THE I.T. ACT AMOUNTING TO RS. 8,40,620/-. 2. THE ORDER OF THE LEARNED CIT(A) IS AGAINST THE W EIGHT OF EQUITY, NATURAL JUSTICE AND GOOD CONSCIENCE. ITA 5737/M/13 2 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE ORDERS OF LOWER AUTHORITIES. FROM THE RECORD WE FOUND THAT T HE ASSESSEE DERIVES INCOME FROM THE BUSINESS OF HIRING VEHICLES AND FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 31.03.2009 DECLARING TOTAL INCOME OF RS. 1,50,060/~. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER NOTED AS PER AIR INFORMATION, THE ASSESSEE HAD DEPOSITED CASH OF RS. 25,30,000/- IN THE SAVING BANK ACCOUNT WITH JANATA SAHAKARI BANK LTD, PUNE AT ITS VILE PARLE BRANCH. THE ASSESSEE WAS CONFRONTED AND ASKED TO CLARIFY TH E SOURCE OF THE SAID DEPOSITS. THE ASSESSEE ADMITTED THAT THE AMOUNT DEP OSITED IN THE SAVING BANK ACCOUNT DURING THE RELEVANT FINANCIAL YEAR WAS HIS INCOME AND OFFERED THE SAME TO TAX BUT CLAIMED THAT, THIS AMOUNT REMAI NED TO BE INCLUDED IN THE TOTAL INCOME FOR THE YEAR BECAUSE OF OVERSIGHT. AFT ER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THAT AN AMOUNT OF RS. 5 5,399/- WAS CLOSING CASH BALANCE AS ON 31.03.2008, THE A.O. MADE AN ADDITION TO THE TUNE OF RS.25,00,000/- U/S 68 AND ACCORDINGLY, ASSESSMENT U /S 143(3) WAS COMPLETED AT TOTAL INCOME 'AT RS. 26,55,280/-. THER EAFTER A.O. LEVIED PENALTY U/S 271(1)(C) OF THE ACT. BY THE IMPUGNED ORDER, TH E LD. CIT(A) CONFIRMED THE ACTION OF THE A.O AFTER DELIBERATING UPON THE JUDIC IAL PRONOUNCEMENTS CITED BEFORE HIM. 4. IT WAS ARGUED BY THE LD. A.R. THAT IT WAS ONLY A N INADVERTENT MISTAKE OF THE ASSESSEE IN NOT INCLUDING THE RECEIPT OF RS. 25 ,00,000/- DEPOSITED IN THE BANK ACCOUNT. FOR SUCH INADVERTENT MISTAKE, NO PENA LTY SHOULD BE LEVIED U/S 271(1)(C) OF THE ACT. HE RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS P. LTD. REPORTED IN 322 ITR 158 AND IN THE CASE OF T. ASHOKA PAI, 292 ITR 1, IN SUPPORT OF TH E PROPOSITION THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY. 5. ON THE OTHER HAND, THE LD. D.R. CONTENDED THAT T HE ASSESSEE HAS WITHHELD THE FACTS RELATING TO SAVINGS BANK ACCOUNT IN JANATA SAHAKARI BANK ITA 5737/M/13 3 LTD., PUNE AT ITS VILE PARLE BRANCH AND DID NOT REF LECT THE TRANSACTION OF RS. 25,30,000/- IN THE RETURN SO FILED. IT WAS ONLY TH ROUGH AIR INFORMATION THAT THE A.O. CAME TO KNOW THE CASH DEPOSIT OF RS. 25,30 ,000/- WHICH WAS NOT DISCLOSED IN THE RETURN OF INCOME. ACCORDINGLY, THE A.O. WAS JUSTIFIED IN LEVYING THE PENALTY FOR SUCH CONCEALMENT OF INCOME. 6. WE HAVE CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND ALSO DELIBERATED UPON JUDICIA L PRONOUNCEMENTS REFERRED BY THE LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS THE DECISIONS RELIED UPON BY THE LD. A.R DURING THE COURSE OF HEA RING BEFORE US. FROM THE RECORD WE FOUND THAT AS PER AIR INFORMATION, THE A. O. CAME TO KNOW THE CASH DEPOSIT OF RS. 25,30,000/- IN THE SAVINGS BANK ACC OUNT BY THE ASSESSEE AT JANATA SAHAKARI BANK LTD., PUNE AT ITS VILE PARLE B RANCH. THE ONLY PLEA OF THE ASSESSEE WAS THAT DUE TO OVERSIGHT THE SAID AMOUNT OF INCOME DURING THE YEAR WAS LEFT OUT TO BE INCLUDED IN TOTAL INCOME OF THE ASSESSEE. IT IS CLEAR FROM THE RECORD THAT THE ASSESSEE HAD ADMITTED TO HAVE ADDIT IONAL INCOME ONLY BECAUSE OF VERIFICATION DURING THE SCRUTINY ASSESSMENT AND INFORMATION RECEIVED THROUGH AIR. IT WAS NOT A VOLUNTARY OFFER OF INCOME . WE FOUND THAT THE ASSESSEE HAS WITHHELD THE FACT RELATING TO THE BANK ACCOUNT WHEREIN CASH WAS DEPOSITED. HOWEVER, THIS AMOUNT WAS NOT DISCLOSED IN THE RETURN OF INCOME NOR THE SOURCE OF SUCH INCOME WAS EXPLAINED. WHEN THE ASSESSEE WAS CONFRONTED WITH THE INFORMATION, HIS ONLY REPLY WAS THAT THIS WAS NOT DECLARED DUE TO OVERSIGHT. EVEN BEFORE THE LD. CIT(A) THE AS SESSEE COULD NOT ADDUCE ANY EVIDENCE TO EXPLAIN THE SOURCE OF THESE DEPOSITS. L OOKING IN TO THE RETURN OF INCOME FILED BY THE ASSESSEE AT RS. 1,50,060/-, THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED THAT HUGE AMOUNT OF CASH DEPOSIT ED IN THE BANK ACCOUNT AMOUNTING TO RS. 25,30,000/- REMAINED TO BE INCLUD ED IN THE TOTAL INCOME BECAUSE OF OVER SIGHT. THE PERSON FILING RETURN OF INCOME OF RS. 1,50,060/-, THE AMOUNT OF INCOME DEPOSITED IN THE BANK ACCOUNT AMOUNTING TO RS. 25,30,000/- IS SUBSTANTIAL AND CANNOT BE SAID TO B E MEAGER AND LEFT THROUGH ITA 5737/M/13 4 OVERSIGHT FOR INCLUSION IN TOTAL INCOME. IT IS A CL EAR CASE OF CONCEALMENT OF INCOME. THE DECISIONS CITED BY THE LD. A.R ARE NOT APPLICABLE TO THE FACTS OF INSTANT CASE. THE DETAILED FINDING RECORDED BY THE LOWER AUTHORITIES AFTER DISCUSSING EACH REPLY OF THE ASSESSEE, COULD NOT BE CONTROVERTED BY THE LD. A.R. BY BRING ANY POSITIVE MATERIAL ON RECORD. ACC ORDINGLY, WE DO NOT FIND ANY ERROR IN THE ORDERS OF THE LOWER AUTHORITIES FOR TH E LEVY OF PENALTY IMPOSED U/S 271(1)(C) OF THE ACT AMOUNTING TO RS. 8,40,620/-WHI CH WAS EQUIVALENT TO 100% OF TAX SOUGHT TO BE EVADED ON THE CONCEALED IN COME. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH FEB. 2015. !' # $% &! ' 6-2-2015 ( ) SD/- SD/- (I.P. BANSAL) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 5 MUMBAI ; &! DATED 6-2-2015 [ .6../ RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 7 () / THE CIT(A) 31,, MUMBAI 4. 7 / CIT -20, MUMBAI 5. :;( 66<= , <= , $ 5 / DR, ITAT, MUMBAI H BENCH 6. (?@ A / GUARD FILE. ' / BY ORDER, : 6 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 5 / ITAT, MUMBAI