Sh. Suresh Kumar, Sunam V. ITO, Sangrur

ITA 607/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9079 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGENDRA MITTALDR
• Keywords: Onus to prove
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO.607/CHD/2016 ASSESSMENT YEAR : 2010-11 SHRI SURESH KUMAR, VS THE ITO, PROP. M/S HEM RAJ SURESH KUMAR, SUNAM (HQ), OLD GRAIN MARKET, SANGRUR. SUNAM. PAN: AHFPK9074Q & ITAS NO.608/CHD/2016 ASSESSMENT YEAR : 2010-11 SHRI SURINDER KUMAR, VS THE ITO, PROP. M/S HEM RAJ & SONS, SUNAM (HQ), OLD GRAIN MARKET, SANGRUR. SUNAM. PAN: AHFPK9073K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI YOGENDRA MITTAL,DR DATE OF HEARING : 21.09.2016 DATE OF PRONOUNCEMENT : 23.09.2016 O R D E R BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEAL S), MEERUT CAMP AT PATIALA DATED 14.03.2016 FOR ASSESSM ENT YEAR 2010-11 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 2 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. THE APPEALS AR E DECIDED AS UNDER. SHRI SURESH KUMAR 3. THE ASSESSING OFFICER NOTED IN THE ASSESSMENT OR DER THAT ETO, SUNAM VIDE HIS LETTER FNO.330/ETO/SUNAM DATED 24.03.2011 FORWARDED COPIES OF CERTAIN DOCUME NTS WHICH WERE COLLECTED BY THAT OFFICE FROM BUSINESS PREMISES OF THE ASSESSEE AND TRANSACTIONS SHOWN IN COPIES OF THE SAID DOCUMENTS WERE CONDUCTED OUTSIDE THE REGULAR BOOKS OF ACCOUNT. THE COPIES OF THE SAME W ERE SUPPLIED TO THE ASSESSEE AND ASSESSEE SUBMITTED THA T THESE DOCUMENTS HAVE NOTHING TO DO WITH HIS CONCERN BUT IT WAS POINTED OUT BY THAT ALL THESE COPIES OF THE SAID DOCUMENTS HAVE BEEN RECEIVED FROM EXCISE & TAXATION OFFICE, SUNAM AND ONUS TO PROVE THAT THEY DO NOT PE RTAIN TO HIM OR HIS BUSINESS LIES ON THE ASSESSEE AND HE COULD NOT PROVE THE SAME. 3(I) THE ASSESSING OFFICER CONSIDERED THIS ISSUE IN WHICH THE ASSESSEE OFFERED TO SURRENDER THE PEAK AMOUNT. AS THE SALE PROCEEDS ARE UTILIZED TO MAKE PURCHASES FR OM TIME TO TIME, AGAIN SALES ARE UTILIZED TO MAKE PURC HASES AND SO ON, THE ADDITION OF PEAK MADE WAS REASONABLE AND RATIONAL. THE PEAK AMOUNT COMES TO RS. 3,73,050/- AS ON 18.02.2010. AFTER GIVING THE BENEFIT OF OPENING AM OUNT OF RS. 1,94,736/-, NET PEAK AMOUNT OF RS. 1,78,314/- W AS 3 ADDED TO THE RETURNED INCOME AND PENALTY PROCEEDING S WERE INITIATED. THE ASSESSING OFFICER VIDE SEPARATE ORDER, LEVIED THE PENALTY ON THE ADDITION OF RS. 1,78,314/ - FOR CONCEALMENT OF PARTICULARS OF INCOME UNDER SECTION 271(1)(C) OF THE ACT. 3(II) THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEAL S) THAT IN ORDER TO PURCHASE PEACE OF MIND, ASSESSEE OFFERE D THE AMOUNT FOR THE PURPOSE OF TAXATION SUBJECT TO NO PE NALTY. THE ASSESSEE POINTED OUT THAT IN ASSESSMENT YEARS 2 009- 10 AND 2011-12, ON THE SAME FACTS, ASSESSING OFFICE R HAS DROPPED THE PENALTY PROCEEDINGS. IT WAS, THEREFORE , SUBMITTED THAT PENALTY MAY NOT BE LEVIED. 4. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND NOTED THAT DOCTRINE OF RES- JUDICATA DO NOT APPLY TO THE INCOME TAX PROCEEDINGS AND CONFIRMED THE LEVY OF PENALTY. 5. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM OF THE VIEW PENALTY IS NOT LEVIABLE IN THE MATTER. THE LD. COU NSEL FOR THE ASSESSEE FILED IN THE PAPER BOOK COPY OF THE ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 UNDER SECTION 143(3) IN WHI CH THE ASSESSING OFFICER REFERRED TO THE SAME LETTER A ND MATERIAL ON THE BASIS OF WHICH ASSESSEE OFFERED PEA K AMOUNT FOR THE PURPOSE OF TAXATION AND ASSESSING OF FICER MADE ADDITION ACCORDINGLY. HE HAS ALSO FILED COPY OF THE ORDER DATED 12.05.2014 FOR ASSESSMENT YEAR 2009-10 4 UNDER SECTION 271(1)(C) OF THE ACT IN WHICH THE ASS ESSING OFFICER, ON IDENTICAL FACTS, DROPPED THE PENALTY PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED COPY OF THE ASSESSMENT ORDER IN THE CASE OF THE ASS ESSEE FOR SUBSEQUENT ASSESSMENT YEAR 2011-12 UNDER SECTIO N 143(3) IN WHICH SAME LETTER OF ETO AND MATERIAL SUP PLIED THEM HAVE BEEN CONSIDERED AND SIMILAR ADDITION ON ACCOUNT OF PEAK MADE BY ASSESSING OFFICER ON IDENTI CAL FACTS ON SURRENDER MADE BY THE ASSESSEE. THE ASSES SING OFFICER SIMILARLY VIDE ORDER DATED 12.05.2014 FOR ASSESSMENT YEAR 2011-12 DROPPED THE PENALTY PROCEED INGS UNDER SECTION 271(1)(C) OF THE ACT. THESE FACTS, T HEREFORE, SHOW THAT ASSESSING OFFICER WAS NOT SATISFIED WITH THE LEVY OF PENALTY IN THE EARLIER AND SUBSEQUENT ASSES SMENT YEARS, BECAUSE THE ASSESSEE EXPLAINED BEFORE ASSESS ING OFFICER THAT THESE DOCUMENTS DID NOT BELONG TO THE ASSESSEE. THEREFORE, ON THE SAME SET OF FACTS, ASS ESSING OFFICER SHOULD NOT HAVE LEVIED THE PENALTY UNDER SE CTION 271(1)(C) OF THE ACT IN ASSESSMENT YEAR UNDER APPEA L. THE PRINCIPLE OF RES-JUDICATA MAY NOT APPLY TO THE INCO ME TAX PROCEEDINGS, HOWEVER, IT IS WELL SETTLED LAW THAT R ULE OF CONSISTENCY DO APPLY TO THE INCOME TAX PROCEEDINGS. THE INCOME TAX AUTHORITIES CANNOT BE PERMITTED TO TAKE A DIFFERENT VIEW UNLESS ANY SPECIFIC OR DIFFERENT MAT ERIAL IS FOUND AGAINST THE ASSESSEE. I RELY UPON DECISION O F DELHI HIGH COURT IN THE CASE OF A.R.J. SECURITIES PRINTER S 264 ITR 276, DECISION OF MADHYA PRADESH HIGH COURT IN T HE CASE OF GODAWARI CORPORATION LTD. 156 ITR 835, DECI SION 5 OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF VIKAS CHEMI GUM INDIA 276 ITR 32 AND DECISION OF SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS CIT 193 ITR 321. 6. CONSIDERING THE ABOVE FACTS THAT ON IDENTICAL IS SUE THE REVENUE DEPARTMENT DID DROPPED THE PENALTY PROCEEDINGS ON IDENTICAL FACTS IN THE CASE OF THE A SSESSEE IN EARLIER AND SUBSEQUENT YEAR, THERE WAS NO JUSTIF ICATION FOR THE ASSESSING OFFICER TO LEVY THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. I, ACCORDINGLY, SET ASIDE TH E ORDERS OF AUTHORITIES BELOW AND CANCEL THE PENALTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SHRI SURINDER KUMAR 8. IN THIS APPEAL ALSO, SIMILAR FACTS HAVE BEEN NOT ED BY ASSESSING OFFICER ON THE LETTER SUPPLIED BY ETO, SUNAM AND MATERIAL FORWARDED TO THE ASSESSING OFFIC ER ON WHICH ASSESSING OFFICER MADE PEAK ADDITION ON SURRENDER MADE BY THE ASSESSEE. THE ASSESSING OFFI CER, ON THE SAME SET OF FACTS IN SUBSEQUENT ASSESSMENT Y EAR 2011-12 MADE THE SIMILAR ADDITION OF PEAK AMOUNT AN D DROPPED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT VIDE ORDER DATED 12.05.2014. THE FACTS OF THIS CASE ARE SIMILAR AS HAVE BEEN CONSIDERED IN THE CAS E OF SHRI SURESH KUMAR (SUPRA). THEREFORE, FOLLOWING REA SON BY DECISION IN THE CASE OF SHRI SURESH KUMAR (SUPRA ), I 6 SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND CANCE L THE PENALTY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 10. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 23 RD SEPTEMBER, 2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD