M/S KAMAL JAIN & SONS, Jaipur V. ADD. CIT, Ajmer

ITA 607/JPR/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70128 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI B.R. JAIN AND SHRI KUL BHARAT) ITA NO. 607/JP/2012 ASSESSMENT YEAR : 2006-07 PAN: AAFHK 9061 G M/S. KAMAL JAIN & SONS VS. THE ADDL. CIT 66, MITRA NIWAS RANGER-1 KISHANGARGH, AJMER AJMER (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHENDRA GARGIEYA DEPARTMENT BY: SHRI D.C. SHARMA DATE OF HEARING: 22-08-2013 DATE OF PRONOUNCEMENT: 26-08-2013 ORDER PER KUL BHARAT, JM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. LD. CIT(A), AJMER DATED 19-03-2012 FOR THE ASSESSMENT YEAR 2 006-07 WHEREIN THE ASSESSEE HAS RAISED THE GROUNDS AS UNDER:- .1 THE IMPUGNED PENALTY ORDER U/S 271D OF THE AC T DATED 26- 11-2009 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND FOR VARIOUS OTHER REASONS AND HENC E, THE SAME KINDLY BE QUASHED. 2. THE IMPUGNED PENALTY ORDER U/S 271D OF THE ACT D ATED 26- 11-2009 IS BAD IN LAW AND ON FACTS OF THE CASE, BEI NG BARRED BY LIMITATION, HENCE THE SAME KINDLY BE QUASHED. 3. RS.1.45,000/-: THE LD. CIT(A) ERRED IN LAW AS W ELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPUGNED PE NALTY U/S 271D OF THE ACT OF RS. 1,45,000/-. THE PENALTY SO IMPOSE D AND CONFIRMED BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 2 4. THE APPELLANT PRAYS YOUR HONOUR INDULGENCES TO A DD, AMEND OR ALTER OR ANY OF THE GROUNDS OF APPEAL ON OR BEFO RE THE DATE OF HEARING. 2.1 DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE GROUND NOS. 1 AND 2. HENCE, THE SAME ARE DISMISSED BEING NOT PRESSED. 3.1 THE GROUND NO. 4 OF THE ASSESSEE IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 4.1 THE GROUND NO. 3 OF THE ASSESSEE IS PERTAINING TO CONFIRMATION OF PENALTY OF RS. 1,45,000/- U/S 271D OF THE ACT. 4.2 BRIEFLY, THE FACTS STATED ARE THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS IN THE CASE OF M/S. JAI BHAGWATI MINICHEM (P) LTD. FO R THE ASSESSMENT YEAR 2006-07, IT WAS NOTICED BY THE ITO, WARD-KISHANGARH THAT THE ASSESS EE COMPANY HAD ACCEPTED UNSECURED LOANS FROM M/S. KAMAL JAIN & SONS (HUF), KISHANGARH TO THE EXTENT OF RS. 1.45 LACS. ON PERUSAL OF THE DETAILS OF SOURCE OF LOAN GIVEN BY M /S. KAMAL JAIN & SONS (HUF), KISHANGARH TO THE ABOVE COMPANY, IT WAS REVEALED TH AT M/S. KAMAL JAIN & SONS (HUF ), KISHANGARH HAVE IN TURN ACCEPTED THE LOANS/ DEPOSIT S FROM VARIOUS INDIVIDUALS IN CASH. A SHOW CAUSE NOTICE FOR PENALTY U/S 271D OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) WAS ISSUED TO THE ASSESSEE AND SUBSEQUENTLY AN ORDER U/S 271D OF THE ACT WAS PASSED THEREBY A PENALTY OF RS. 1.45 LACS WAS LEVIE D BY THE ADDL. CIT, RANGE-1, AJMER. HENCE, AGAINST THE ORDER OF THE ADDL. CIT, RANGE-1, THE ASSESSEE IS FILED AN APPEAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE. 4.3 NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL AGAINST THE ORDER OF THE LD. CIT(A). 3 4.4 DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) IS NOT JUSTIFIED. THE LD. C OUNSEL FOR THE ASSESSEE ALSO FILED THE WRITTEN SUBMISSION DURING THE COURSE OF HEARING AND SUBMITTED THAT THE ADDL. CIT HAS TREATED THE SUBJECTED AMOUNT AS UNACCOUNTED INCOME OF THE ASSESSEE APPELLANT. HE FURTHER SUBMITTED THAT LD. CIT(A) CONCLUDED THAT ASSESSEE APPELLANT (HUF) INTRODUCED ITS UNACCOUNTED INCOME IN THE GARB OF THESE LOANS. HE F URTHER SUBMITTED THAT THE ASSESSEE HIMSELF SURRENDERED THE INCOME OF THE SUBJECTED AMO UNT OF RS. 1.45 LACS IN HIS RETURN OF INCOME. HENCE, THE SAME HAS BECOME INCOME OF THE AS SESSEE AND EVEN IN THE CASE OF THE RECIPIENT COMPANY NO ADDITION U/S 68 OF THE ACT WA S MADE. UNDISPUTEDLY, THE AUTHORITIES BELOW HAVE HELD THE SUBJECTED AMOUNT AS UNACCOUNTED INCOME OF THE ASSESSEE. THEREFORE, NOW TO SAY THAT THE ASSESSEE RECEIVED SOME MONEY IT SELF IS CONTRADICTORY. THE LD. COUNSEL FOR THE ASSESSEE PLACED FOLLOWING CASE LAWS:- 1. BAJRANG TEXTILES VS. ADDL. CIT (2009) 21 DTR 8 5 (TRIB) 2. CIT VS. STANDARD BRANDS LTD. (2006) 204 CTR 48 (DEL.) 3. DIWAN ENTERPRISES VS. CIT (2001) 167 CTR 324 ( DEL.) THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT LD. CIT(A) HAS NOT GIVEN ANY FINDING AS TO HOW THE DECISION AS RELIED UPON BY TH E ASSESSEE APPELLANT ARE NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. 4.5 ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE REMAND REPORT WAS SOUG HT BY THE LD. CIT(A) AND IN THE REMAND REPORT THE ADDL. CIT HAS DULY COMMENTED UPON THE DECISION RELIED ON BY THE ASSESSEE. 4 4.6 WE HAVE HEAD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) IN PARA 4.3 OF HIS ORDE R HAS MENTIONED THAT THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE ITAT INDORE BENCH IN THE CASE OF MANGILAL S/O BHANWARLAL VS. JCIT, 15 TTJ 225 AND DECISION IN THE CASE OF NA TCO MAHASHAKTI MINING (P) LTD. VS. ADDL. CIT. HOWEVER, IT APPEARS THAT THE LD. CIT(A) HAS PROCEEDED IN A CASUAL MANNER TO DECIDE THE GROUNDS OF THE ASSESSEE SINCE HE FAILED TO DECIDE AS TO HOW THE CASE LAWS RELIED UPON BY THE ASSESSEE ARE NOT APPLICABLE TO THE FAC TS OF THE CASE. THEREFORE, IN OUR CONSIDERED VIEW, THE ORDER OF THE LD. CIT(A) TO THA T EXTENT IS NOT A SPEAKING ORDER. HENCE, THE SAME IS SET ASIDE AND THE APPEAL OF THE ASSESSE E IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE IT AFRESH BY P ASSING A SPEAKING ORDER AND BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE CONC ERNED PARTIES. THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26-08-2013. SD/- SD/- (B.R. JAIN) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 26 TH AUG, 2013 *MISHRA COPY FORWARDED TO:- BY ORDER 1. M/S. KAMAL JAIN & SONS, KISHANGARH 2. THE ADDL. CIT, RANGE-1, AJMER 3. THE LD. CIT, (A) 4. THE LD. CIT 5. THE LD. DR 6. THE GUARD FILE (IT NO.607/JP/12 ) A.R. ITAT: JAIPUR 5 6