Hitendra Puri, CHITTORGARH V. ITO, CHITTORGARH

ITA 617/JODH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54442 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-12-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 29-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: R R SI NGHVI
• Section: 271(1)(c); 131

Judgement Text

1 ITA 617-09 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 617/JODH/2009 ASSTT. YEAR : 2003-04. HITENDRAPURI, VS. THE INCOME-TAX OFFICER, PROP. M/S.SHREE VINAYAK COMPLEX, WARD-1, CHITTORGARH. CHITTORGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.R. SINGHVI RESPONDENT BY : SHRI G.R. KOKANI DATE OF HEARING : 15.12.2011. DATE OF PRONOUNCEMENT : 16.12.2011. ORDER DATED : 16/12/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) CONFIRMING THE LEVY OF PENALTY AT RS. 2,34,400/- UNDER SECTION 271(1)(C ) RELATING TO ASSESSMENT YEAR 2003-04. 2. ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SECT ION 143(3). CERTAIN ADDITIONS ON ACCOUNT OF CASH CREDIT WERE MADE BY THE ASSESSING O FFICER. PART ADDITION WAS SUSTAINED BY LD. CIT (A) AND ORDER OF LD. CIT (A) WAS CONFIRM ED BY THE TRIBUNAL ALSO. 3. A TOTAL ADDITION OF RS. 7,84,630/- WAS SUSTAINED ON ACCOUNT OF VARIOUS CASH CREDITORS. THE ASSESSING OFFICER ISSUED NOTICE UNDE R SECTION 271(1)(C) AND AFTER TAKING INTO CONSIDERATION THE EXPLANATION OF THE ASSESSEE WAS OF THE VIEW THAT ASSESSEE HAS CONCEALED PARTICULARS OF INCOME BY FILING INACCURAT E RETURN. ACCORDINGLY HE LEVIED A 2 PENALTY. THE LD. CIT (A) ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY OBSERVING THAT ADDITION MADE AND SUSTAINED HAVE BEEN CONFIRME D BY THE TRIBUNAL. 4. NOW ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUN AL. 5. THE LD. COUNSEL OF THE ASSESSEE FILED WRITTEN SU BMISSIONS. 6. ON THE OTHER HAND, THE LD. D/R PLACED RELIANCE O N ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A). 7. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A) AND SUBMISSIONS OF THE ASSESSEE, WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. IT IS SEEN THAT ALL THE CASH CREDITORS I.E. 7 IN NUMBE R HAVE CONFIRMED HAVING GIVEN LOAN TO THE ASSESSEE. THEIR STATEMENTS UNDER SECTION 131 WERE R ECORDED AND THEY HAVE CONFIRMED HAVING GIVEN THE LOAN, AND TO SOME OF THE CASH CRED ITORS THE AMOUNT HAS BEEN RETURNED ALSO. IT IS FURTHER SEEN THAT IN CASE OF ONE SHRI SHANKAR PURI, RS. 1,00,000/- WAS ON ACCOUNT OF OPENING BALANCE AND RS. 80,000/- WAS NEW LOAN. HOWEVER, THE ADDITION OF RS. 1,80,000/- WAS MADE BY ASSESSING OFFICER WHICH HAS BEEN CONFIRMED UPTO THE STAGE OF TRIBUNAL. HOWEVER, IT IS SETTLED POSITION IN LAW TH AT ON ACCOUNT OF OPENING CAPITAL, NO ADDITION CAN BE MADE. HOWEVER, WE CANNOT GO ON MERI T IN RESPECT OF CASH CREDIT ADDITION BUT, WE ARE OF THE VIEW THAT AT LEAST PENALTY CANNO T BE LEVIED. SIMILARLY, IN RESPECT OF SHRI RATAN SINGH CHOUHAN THERE WAS A TOTAL DEPOSIT OF RS . 2,85,000/- AND RS. 1,85,000/- WAS OLD WHICH HAS BEEN ACCEPTED AS GENUINE AND THE REMA INING AMOUNT OF RS. 90,000/-, THE CREDITWORTHINESS WAS NOT ACCEPTED WHEREAS THE CONFI RMATION HAS BEEN FILED. THE PARTIES HAVE ALREADY BEEN HELD AS GENUINE WHO HAS CONFIRMED THE LOANS. THEREFORE, IN OUR VIEW, NO PENALTY CAN BE LEVIED ON THIS AMOUNT ALSO. SIMIL ARLY IN RESPECT OF REMAINING CASH CREDITORS I.E. SHRI PRASHANT PURI, SHRI PIYUSH PURI , SHRI RAM SWAROOP CHIPA, SMT. 3 SUMITRA DEVI AND SHRI CHANDRA GOHINDANI FROM WHOM T HE LOANS WERE TAKEN BY THE ASSESSEE. STATEMENT UNDER SECTION 131 RECORDED OF ALL THESE PARTIES, AFFIDAVITS WERE ALSO FILED BY WHICH THEY HAVE CONFIRMED ON ACCOUNT THAT CREDITS COULD NOT BE PROVED OF THESE PERSONS. THE AMOUNT WAS ADDED WHICH HAS BEEN CONFI RMED. AGAIN WE SEE THAT ALL THE PARTIES HAVE CONFIRMED THE CASH CREDITS. THEREFORE , IN OUR VIEW AT LEAST PENALTY CANNOT BE LEVIED AS THIS IS NOT A CASE THAT ASSESSEE HAS INTR ODUCED HIS OWN MONEY. WE FURTHER NOTED THAT IN SIMILAR CIRCUMSTANCES IN CASE OF DEVENDRA P URI IN ITA NO. 291/JDP/2009 VIDE ORDER DATED 29.8.2011 THE TRIBUNAL HAS CANCELLED TH E LEVY OF PENALTY. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE CANCEL THE LEVY OF PENA LTY IN THIS CASE ALSO. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16. 12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SHRI HITENDRA PURI, CHITTORGARH. THE ITO WARDE-1, CHITTORGARH. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 617/JODH/2009) BY ORDER, AR ITAT JODHPUR.