DEEPAK D TIWARI, MUMBAI V. CIT 3, MUMBAI

ITA 6152/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3252 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: R S SHARMA
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI SAKTIJIT DEY(JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6152 /MUM/2014 ASSESSMENT YEAR: 2008-09 DEEPAK D TIWARI VS. CIT 3 A/5 GROUND FLOOR, 4 TH FLOOR, AAYAKAR BHAVAN SHIVDHAM NEW LINK ROAD MUMBAI - 400020 MALAD WEST MUMBAI- 400064 PAN NO. AAAPT7244F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. R.S. SHARMA REVENUE BY : SHRI. B.S. BIST DATE OF HEARING : 16/08/201 6 DATE OF PRONOUNCEMENT : 24/08/2016 ORDER PER N.K. PRADHAN, A.M THE APPEAL HAS BEEN FILED BY THE ASSESSEE. THE RELE VANT ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A) 3 AT MUMBAI AND ARISES OUT OF ASSESSMENT COMPLET ED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER THE ACT). 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS A PPEAL IS THAT THE LEARNED CIT(A) FAILED TO CONSIDER THE REQUEST FOR REDUCTION OF PENALTY TO A MINIMUM LEVEL OF 100% AGAINST 300% LEVIED BY THE AO. 3. THE ASSESSEE IS A DOCTOR BY PROFESSION. HE HAD D ECLARED TOTAL INCOME OF RS. 4,33,880/- FOR THE IMPUGNED ASSESSMENT YEAR. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, DETERMI NING THE INCOME AT RS. 8,25,390/-. THE ADDITION INCLUDED, APART FROM THE D ISALLOWANCES OF EXPENSES, AN AMOUNT OF RS. 2,03,258/- ON ACCOUNT OF INTEREST RECEIVED FROM SAVINGS ACCOUNT, FD ACCOUNT AND RD ACCOUNT UNDER THE HEAD I NCOME FROM OTHER SOURCES AND RS. 1,78,200/- BEING DEPOSITS IN THE SA VINGS BANK ACCOUNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . THEN THE AO IMPOSED MAXIMUM PENALTY @ 300% OF TAX SOUGHT TO BE EVADED A ND IT COMES TO RS. 3,43,311/-. TO ARRIVE AT THIS AMOUNT OF RS. 1,14,43 7/- THE AO SUBTRACTED RS. 82,180/- (THE TAX ON TOTAL INCOME EXCLUDING CONCEAL ED INCOME ) FROM RS. 1,96,617/- ( TAX ON TOTAL INCOME INCLUDING CONCEALE D INCOME) 4. THE LEARNED COUNSEL OF THE ASSESSEE PLEADED THAT THE PENALTY CHARGED BY THE AO @300% IS TOO HARSH AND THE SAME B E REDUCED TO @100%. 5. THE LEARNED DR SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(A) AND AO. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE ADDITION OF RS . 2,03,258/- MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE CONSISTS OF THE FOLLOWING : SOURCE OF INTEREST AMOUNT(R) FDR 1,15,548/- RD ACCOUNT 79,311/- SB ACCOUNT 8,399/- TOTAL 2,03,258/- WE ALSO FIND THAT FURTHER ADDITION OF RS. 1,78,200/ - MADE BY THE AO AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 CONSISTS O F THE FOLLOWING FROM THE ASSESSES SAVING BANK ACCOUNT DATE AMOUNT(R) MODE 05/05/2007 30,000/- CLEARING 07/07/2007 30,000/- CLEARING 02/11/2007 5,200 CLEARING 06/11/2007 47,000/- CLEARING 26/11/2007 36,000/- CASH 27/02/2008 30,000/- CLEARING TOTAL 1,78,200/- 6.1 ALSO WE FIND THAT NO REASON HAS BEEN GIVEN BY T HE AO IN THE PENALTY ORDER DT. 27/06/2011 FOR IMPOSING MAXIMUM PENALTY @ 300% OF TAX SOUGHT TO BE EVADED. 7. IN VIEW OF THE FACTS AND CIRCUMSTANCES DELINEATE D HEREINABOVE, WE DIRECT THE AO TO IMPOSE MINIMUM PENALTY @ 100% OF T AX SOUGHT TO BE EVADED WHICH COMES TO RS. 1,14,437/-. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 24/08/2016 SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMB ER MUMBAI; DATED: 24/08/2016 AG(ON TOUR) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI