SHRI NIRMALJEET SINGH WALIA, Ajmer V. ITO, Ajmer

ITA 597/JPR/2012

• Counselvise Citation: 59723114 RSA 2012
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 11-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Assessee Lawyers: SUDHIR SOGANI
• Keywords: Unexplained cash credit; Opportunity of being heard; Difference of opinion
• Section: 143(3)

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 597/JP/2012 ASSTT. YEAR- 2003-04 PAN NO. AAPPA 8617 C SHRI NIRMALJEET SINGH WALIA, THE I.T.O., PUNJAB NATIONAL BANK, VRS. WARD, 1(2), AJMER. M.G. MARG, AJMER. (APPELLANT) (RESPONDENT) ASSESSEE BY :- SHRI SUDHIR SOGANI. DEPARTMENT BY :- MRS. NEENA JEPH. DATE OF HEARING : 10/11/2014 DATE OF PRONOUNCEMENT : 31/12/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 21/03/2012 OF THE LEARNED CIT(A), AJMER FOR THE A.Y. 2003-04. THE SOLE GROUND OF APPEAL IS AGAINST SUSTAINING PART PENALTY OF RS. 58,780/- U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS CASE, SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT WAS PASSED ON 28/02/2008 FOR A.Y. 2003-04. THE ASSESSEE FILED RETURN ON ITA 597/JP/2012 NIRMALJEET SINGH VS. ITO 2 01/01/2003, WHICH WAS REVISED ON 14/10/2003 DECLARIN G INCOME OF RS. 2,09,890/-, WHICH WAS ASSESSED AT RS. 9,81,350/- BY T HE ASSESSING OFFICER. THE ASSESSEE FILED THE APPEAL AGAINST QUANT UM ADDITION BEFORE THE APPELLATE AUTHORITY. THE LEARNED ASSESSING OFFIC ER GAVE REASONABLE OPPORTUNITY OF BEING HEARD BEFORE IMPOSING PENALTY U/S 271(1)(C) OF THE ACT. AFTER CONSIDERING THE ASSESSEES REPLY, THE LE ARNED ASSESSING OFFICER IMPOSED PENALTY U/S 271(1)(C) OF THE ACT ON CONCEAL ED INCOME OF RS. 6,03,541/- AT RS. 1,78,905/-, WHICH IS 100% OF TAX SOUGHT TO BE EVADED. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A ), WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING THAT, REGARDING CAPI TAL GAIN, IT WAS FOUND THAT THE APPELLANT CLAIMED BENEFIT OF INDEXATION ON THE COST OF CONSTRUCTION. THE SAME WAS DISALLOWED ON THE GROUND T HAT THE HOUSE PROPERTY WAS SOLD IN LESS THAN THREE YEARS FROM CONS TRUCTION. THE ADDITION MADE IN THIS RESPECT WAS CONFIRMED IN APPEAL ALSO. H OWEVER, THE ADDITION IS ON ACCOUNT OF DIFFERENCE OF OPINION REGARDING IN TERPRETATION OF PROVISIONS. WHILE THE FACTS ARE SUFFICIENT FOR QUAN TUM ADDITION, THE SAME CANNOT BE A SUBJECT MATTER OF PENALTY. THE FACTS WERE FURNISHED BY APPELLANT AND THERE WAS NO CONCEALMENT. THEREFORE, NO ITA 597/JP/2012 NIRMALJEET SINGH VS. ITO 3 PENALTY U/S 271(1)(C) IS LEVIABLE IN RESPECT OF ADD ITION OF RS. 1,06,785/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ADDITION M ADE ON ACCOUNT OF INTEREST INCOME OF RS. 27,919/- WAS DELETED IN APPEA L, THUS NO PENALTY IS IMPOSABLE ON ADDITION OF RS. 27,919/-. THE ADDITION CONFIRMED UNDER THE HEAD OF RS. 50,000/- ON ACCOUNT OF HOUSE HOLD EXPEN SES IS ALSO ESTIMATED ADDITION AND THE PENALTY IMPOSED BY THE ASSESSING O FFICER U/S 271(1)(C) IS NOT LEVIABLE ON THIS AMOUNT. HE FINALLY RESTRICT ED THE LEVIABLE PENALTY IN RESPECT OF RS. 1,21,011/- OUT OF UNDISCLOSED CASH D EPOSITED IN THE BANK AND RS. 65,592/- AS UNEXPLAINED CREDIT ENTRIES. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED A.R. FOR THE ASSESSEE REITERATED THE ARGUMENTS MADE BEFORE THE LEARNED CIT(A). HE HAS FURTHER SUBMITTED THAT THE ASSESSEE GAVE PROPER AND COMPLETE EXPLANATION OF THE DEPOSIT IN HIS BANK ACCOUNT. THE AUTHORITIES WERE SOMEHOW NOT CONVINCED OF THE EXPL ANATION GIVEN BY THE ASSESSEE AND ADDED THE SAME AS INCOME OF THE AS SESSEE FROM UNDISCLOSED SOURCES. THE AUTHORITIES ONLY DISBELIEVE D THE ASSESSEES EXPLANATION BUT THIS DOES NOT RULE OUT THE ASSESSEE S VERSION OF SOURCE OF CASH DEPOSIT IN BANKS. THE ASSESSING OFFICER AND THE APPEAL AUTHORITIES DID NOT TAKE INTO COGNIZANCE THE EXPLANATION OF THE ASSESSEE AS IN THEIR ITA 597/JP/2012 NIRMALJEET SINGH VS. ITO 4 OPINION IT WAS NOT SUPPORTED BY PROPER EVIDENCE. AS REGARD THE CHEQUES DEPOSITED IN THE BANK ACCOUNT AT RS. 65,592/- WERE E XPLAINED THAT THIS AMOUNT REFLECTS THE CASH RECEIVED FROM SHRI KAMAL S HARMA OF THE AMOUNT ADVANCED TO HIM EARLIER TOWARDS PURCHASE OF LAND AND ALSO FURNISHED PHOTOCOPIES OF THE CHEQUES RECEIVED FROM HIM. THE LE ARNED ASSESSING OFFICER HAD NOT APPRECIATED THE EVIDENCE AND EXPLAN ATION FILED BEFORE HIM AND ASSESSED THIS CASH AS UNDISCLOSED INCOME OF THE ASSESSEE. IN APPELLATE PROCEEDING ALSO, THE APPELLANT FILED EVID ENCES I.E. COPY OF AGREEMENT MADE THROUGH SHRI KAMAL SHARMA FOR PURCHA SE OF LAND FROM DEEP DARSHAN HOUSING SOCIETY OF WHICH SHRI KAMAL SHA RMA WAS ONE OF THE DIRECTORS. THEREFORE, HE PRAYED TO DELETE THE P ENALTY. 6. AT THE OUTSET, THE LEARNED D.R. VEHEMENTLY SUPPO RTED THE ORDER OF THE LEARNED CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE EV IDENCES AVAILABLE WERE EXAMINED BY THE LOWER AUTHORITIES AT THE TIME OF QUANTUM ADDITION. THE LEARNED CIT(A) HAD GIVEN CLEAR CUT FINDING THAT THE EXPLANATION FILED BY THE ASSESSEE WAS NOT BONAFIDE. THE A.R. ALSO HAS N OT CONTROVERTED THE FINDING GIVEN BY THE LEARNED CIT(A). THE ADDITIONS WERE MADE ON ACCOUNT ITA 597/JP/2012 NIRMALJEET SINGH VS. ITO 5 OF CASH/CHEQUE DEPOSITED IN THE BANK ACCOUNT, THERE FORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE LEARNED CIT(A). ACCORDINGLY, WE UPHELD THE ORDER OF THE LEARNED CIT(A). 8. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 31/12/2014 SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 31 ST DECEMBER, 2014 * RANJAN COPY FORWARDED TO :- 1. SHRI NIRMALJEET SINGH WALIA, AJMER. 2. THE ITO, WARD, 1(2), AJMER 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 597/JP/2012) BY ORDER, AR ITAT JAIPUR.