NISHA SHARMA, Jaipur V. ITO, Jaipur

ITA 574/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4948 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 31-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 574/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SMT. NISHA SHARMA R/O 57/1, NEW SANGANER ROAD PANCHALI VIHAR, HEM MARG, JAIPUR CUKE VS. THE ITO WARD- 3(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AISPS 2776 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: WRITTEN SUBMISSION JKTLO DH VKSJ LS@ REVENUE BY: SMT. POONAM RAI DCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28/10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALIGHARH (CAMP OFFICE AT JAIPUR) DATED 01 -02-2016 FOR THE ASSESSMENT YEAR 2010-11 WHEREIN THE ASSESSEE IS AGG RIEVED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING IN CONFIRMING THE PE NALTY OF RS. 3,14,627/- U/S 271(1)(C) OF THE ACT. ITA NO. 574/JP/2016 SMT. NISHA SHARMA VS. ITO, WARD- 3(3), JAIPUR . 2 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. HOWEVER, THE WRITTEN SUBMISSION WAS FILED BY THE LD . AR OF THE ASSESSEE WITH THE PRAYER TO TAKE INTO CONSIDERATION AT THE T IME OF HEARING OF THE APPEAL. 3.1 BRIEF FACTS OF THE CASE ARE THAT THERE WAS AIR INFORMATION THAT ASSESSEE HAD RECEIVED AN AMOUNT OF RS.11,36,780/- A S COMMISSION INCOME. HOWEVER, THIS AMOUNT WAS NOT SHOWN BY THE A SSESSEE IN HER RETURN OF INCOME FILED ON 20-01-2012. THE RETURN WA S FILED BY 18 MONTHS LATE AND COMMISSION INCOME OF RS. 11,36,780/0 CREDI TED IN HER SAVING BANK ACCOUNT WAS NOT DISCLOSED. IN THE ASSESSMENT, THE AMOUNT OF COMMISSION OF RS. 11,36,780/- AND SAVING OF INTERES T OF RS. 7,384/- WERE ADDED TO THE RETURNED INCOME AND THE ASSESSMENT WAS COMPLETED AT RS. 13,55,230/- BY THE AO VIDE ASSESSMENT ORDER DAT ED 21-11-2012. IN RESPECT OF THE ADDITIONS, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1) AND DURING THE PENALTY PROCEEDINGS THE ASSESSEE WAS AFFORDED AN OPPORTUNITY TO EXPLAIN AS TO WHY PENALTY SHOULD NOT BE IMPOSED IN RESPECT OF THE ADDITIONS MADE IN THE ASSESSMENT PROCEEDING S. THE AO AFTER CONSIDERING THE REPLY OF THE ASSESSEE IN THIS REGAR D CAME TO THE CONCLUSION THAT THE ASSESSEE IS GUILTY OF FURNISHING INACCURAT E PARTICULARS OF INCOME TO THE EXTENT OF RS. 11,44,164/- (RS. 11,36,780 + RS. 7,384/-) AND THUS THE ITA NO. 574/JP/2016 SMT. NISHA SHARMA VS. ITO, WARD- 3(3), JAIPUR . 3 AO IMPOSED PENALTY OF RS. 3,14,627/- BEING 100% OF THE TAX SOUGHT TO BE EVADED. 3.2 IN FIRST APPEAL, THE LD. CIT(A) HAD CONFIRMED T HE PENALTY OF RS. 3,14,627/- BY OBSERVING AS UNDER:- 5.3. I HAVE CONSIDERED THE WRITTEN SUBMISSIONS. I N MY OPINION, NONE OF THE CASE LAWS HELP THE APPELLAN TS CASE BECAUSE THE FACTS OF THIS CASE ARE MATERIALLY DIFFE RENT FROM THE CITED CASES. IN THIS CASE, THE ADDITIONS HAVE B EEN MADE ON THE BASIS OF CONCRETE EVIDENCE AND THERE IS NO PLAU SIBLE EXPLANATION GIVEN IN THIS REGARD IS THAT THE APPELL ANT WAS UNDER BONA FIDE BELIEF THAT TAX WAS ALREADY DEDUCTE D IN RESPECT OF COMMISSION INCOME. HOWEVER, IGNORANCE O F LAW CAN NEVER BE A VALID DEFENCE. ALSO, EVEN IF THE APP ELLANT HAD BONA FIDE BELIEF THAT DUE TAXES HAVE BEEN DEDUCTED FROM THE COMMISSION INCOME, SHE WAS OBLIGED TO DISCHARGE THE SE RECEIPTS IN HER COMPUTATION. IT IS SEEN THAT TOTAL COMMISSION EARNED DURING THE YEAR IS RS. 1,36,780/-. IT IS NOT A SMALL SUM OF MONEY. NO ASSESSEE CAN BE ALLOWED TO ESCAPE HIS / HER LIABILITIES JUST ON THE PLEA OF IGNORANCE OR BONA F IDE BELIEF. ALSO NO REASON HAS BEEN GIVEN AS TO WHY SAVINGS BAN K INTEREST WAS NOT DISCLOSED IN THE RETURN. THUS, IF THE CASE WAS NOT SELECTED FOR SCRUTINY, INCOME OF RS. 11,44,164/ - WOULD HAVE ESCAPED FROM TAXATION. THE APPELLANT HAS ALSO TAKEN THE DEFENCE THAT THERE WAS NO MENS REA. HOWEVER, IT IS OBSERVED THAT HON'BLE SUPREME COURT IN THE CASE OF UOI VS. DHARMENDRA TEXTILES PR OCESSOR, 306 ITR 277, HAVE DECLARED THAT THERE IS NO NEED TO ESTABLISH MENS REA BEFORE IMPOSING PENALTY U/S 271(1)(C). THE REFORE, THIS DEFENCE ALSO CANNOT BE SUCCEED. IN THIS CONTEXT, PROVISION OF EXPLANATION -1 TO SEC TION 271(1) NEED TO BE CONSIDERED. AS PER EXPLANATION-1, WHERE IN RESPECT OF ANY FACTS MATERIAL TO COMPUTATION TO THE TOTAL INCOME OF ANY PERSON SUCH PERSON OFFERS AN EXPLANAT ION ITA NO. 574/JP/2016 SMT. NISHA SHARMA VS. ITO, WARD- 3(3), JAIPUR . 4 WHICH HE IS NOT ABLE TO SUBSTANTIATE THEN THE AMOUN T ADDED IN COMPUTING THE TOTAL INCOME AS A RESULT THEREOF SHAL L FOR THE PURPOSE OF SECTION 271(1) BE DEEMED TO REPRESENT T HE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN C ONCEALED. SINCE, IN THIS CASE, WITH REGARD TO INCOME OF RS. 1 1,4,164/-, THE APPELLANT HAD NO VALID EXPLANATION, IN VIEW OF EXPLANATION -1 TO SECTION 271(1), SUCH INCOME WOULD BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. THEREFORE, THIS IS A FIT CASE FOR IMPOSITION OF PENALTY U/S 271(1)(C ). IT IS SEEN THAT THE AO HAS IMPOSED PENALTY @ 100% O F THE TAX SOUGHT TO BE EVADED IN RESPECT OF THE CONC EALMENT OF INCOME OF RS. 11,44,164/- WHICH IS MINIMUM AMOUNT PRESCRIBED UNDER THE LAW. AS SUCH, THE AO HAS BEEN REASONABLE AND FAIR. THUS THERE IS NO INFIRMITY IN AOS ORDER. IN VIEW OF THE ABOVE, I HEREBY CONFIRM THE IMPOSITI ON OF PENALTY OF RS. 3,14,627/-AND DISMISS THESE GROUN DS OF APPEAL. 3.3 DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 3.4 I HAVE HEARD THE LD. DR AND PERUSED THE MATERIA LS AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSION OF THE ASSE SSEE. IN THIS CASE, IT IS OBSERVED THAT THERE WAS AIR INFORMATION THAT THE AS SESSEE HAD RECEIVED AN AMOUNT OF RS. 11,36,780/- AS COMMISSION INCOME AND THIS AMOUNT WAS NOT SHOWN BY THE ASSESSEE IN HER RETURN OF INCOME F ILED ON 20-01-2012. THE RETURN OF INCOME WAS FILED LATE BY 18 MONTHS A ND THE COMMISSION OF INCOME OF RS. 11,36,780/- CREDITED IN HER SAVING B ANK WAS NOT DISCLOSED ITA NO. 574/JP/2016 SMT. NISHA SHARMA VS. ITO, WARD- 3(3), JAIPUR . 5 BY THE ASSESSEE. IN THE ASSESSMENT, THE AMOUNT OF C OMMISSION RS. 11,36,780/- AND INTEREST ON SAVINGS OF RS. 7,384/- WERE ADDED TO THE RETURNED INCOME OF THE ASSESSEE AND THE ASSESSMENT WAS COMPLETED AT RS. 13,55,230/- BY THE AO. THE AO INITIATED THE PENALT Y PROCEEDINGS U/S 271(1) OF THE ACT. DURING THE PENALTY PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE WAS GUILTY IN FURNISHING THE INAC CURATE PARTICULARS OF INCOME TO THE EXTENT OF RS. 11,44,164/- (RS. 11,36, 780 + RS. 7384/-) AND IMPOSED THE PENALTY OF RS. 3,14,627/- BEING 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. IN APPELLATE PROCEEDINGS, T HE LD. CIT(A) OBSERVED THAT TOTAL COMMISSION INCOME EARNED BY THE ASSESSEE DURING THE YEAR AMOUNTING TO RS. 11,36,780/- IS NOT A SMALL SUM OF MONEY. NO ASSESSEE CAN BE ALLOWED TO ESCAPE HIS/ HER LIABILITIES JUST ON THE PLEA OF IGNORANCE OR BONA FIDE BELIEF. THE ASSESSEE HAS NOT GIVEN THE REASON AS TO WHY THE SAVING BANK INTEREST WAS NOT DISCLOSED BY THE HER I N THE RETURN OF INCOME. HAD THIS CASE WAS NOT SELECTED FOR SCRUTINY, THE C OMMISSION INCOME OF RS.11,36,780/- AND INTEREST INCOME OF RS. 7,384/- W OULD HAVE ESCAPED FROM TAXATION. THIS WOULD HAVE BEEN PERMANENT LOSS TO THE NATIONAL EXCHEQUER. THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE REASONS FOR NOT FURNISHING THE FULL PARTICULARS OF INCOME. THEREFOR E, IN MY CONSIDERED VIEW, THE AO WAS JUSTIFIED IN IMPOSING PENALTY @ 100% OF THE TAX ITA NO. 574/JP/2016 SMT. NISHA SHARMA VS. ITO, WARD- 3(3), JAIPUR . 6 SOUGHT TO BE EVADED IN RESPECT OF THE INCOME OF R S. 11,44,164/- THE THUS THE LD. CIT(A)S OBSERVATION THAT THE AO HAD BEEN REASONABLE AND FAIR IN IMPOSING THE PENALTY OF RS. 3,14,627/- U/S 271(1)(C) OF THE ACT IS JUSTIFIED. IN VIEW OF THE ABOVE DELIBERATIONS, FACT S AND CIRCUMSTANCES OF THE CASE AND CONSIDERING THE CASE LAW RELIED UPON B Y THE LD. CIT(A) IN THE CASE UOI VS. DHARMENDRA TEXTILES PROCESSOR (SUPRA), I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN SUST AINING THE PENALTY OF RS. 3,14,627/- U/S 271(1)(C ) OF THE ACT. THUS THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 /10/ 2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. NISHA SHARMA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO,WARD- 3 (3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 574/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR