GOPAL R. SHENOY, MUMBAI V. ITO WD 19(2)(3), MUMBAI

ITA 6316/MUM/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0605 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 19-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Keywords: Agreed addition
• Section: 143(3); 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO S . 6316 & 6317/MUM/2012 ( / ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 SHRI GOPAL R. SHENOY, 502, DINAR BUILDING, 20 STATION ROAD, SANTACRUZ (W), MUMBAI - 400 012 / VS. THE ITO 19(2)(3), PIRAMAL CHAMBERS, 3 RD FLOOR,LALBAUG, MUMBAI - 400 012 ./ ./ PAN/GIR NO. : AAOPS 4019H ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI DHARMESH SHAH / RESPONDENT BY : SHRI VIJAY KUMAR BORA / DATE OF HEARING : 19 . 0 5 .2015 / DATE OF PRONOUNCEMENT : 19 .0 5 .2015 / O R D E R PER N.K. BILLAIYA, AM: TH ESE TWO APPEAL S BY THE ASSESSEE ARE PREFERRED AGAINST THE TWO SEPARATE ORDER S OF THE LD. CIT(A) - 30 , MUMBAI DT. 31 . 8 .2012 PERTAINING TO ASSESSMENT YEAR 2008 - 09 & 2009 - 10. BOTH THESE APPEALS WERE HEARD TOGETHER AND DISPOSE OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 6316/M/2012 A.Y. 2008 - 09 ITA. NO S 6316 & 6317/M/2012 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESSMENT ORDER DT. 30.9 .2010 MADE U/S., 143(3) OF THE ACT. WHILE SCRUTINIZING THE RETURN OF INCOME AND ON THE BASIS OF THE AIR INFORMATION, THE ASSESSEE WAS ASKED TO EXPLAIN THE CASH DEPOSITS MADE IN SARASWAT BANK. THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSITS, ACCORD INGLY, THE AO CONCLUDED BY MAKING AN ADDITION OF RS. 14,56,500/ - AS UNDISCLOSED INVESTMENT OF THE ASSESSEE WITHIN THE MEANING OF SEC. 69 OF THE ACT AND INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. 4. DURING THE COURSE OF THE PENAL PROCEEDINGS , THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN WHY PENALTY SHOULD NOT BE LEVIED U/S. 271(1)(C) OF THE ACT. IN HIS REPLY, THE ASSESSEE STATED THAT WHEN THE CASH DEPOSITS BROUGHT TO THE NOTICE OF THE ASSESSEE, IMMEDIATELY THE ASSESSEE AGREED FOR THE ADD ITION, THEREFORE THE ADDITION MADE IN THE ASSESSMENTS REPRESENT AGREED ADDITION S , NO CONCEALMENT HAS BEEN DETECTED AND SINCE THE ASSESSEE HAS CO - OPERATED WITH THE DEPARTMENT, NO PENALTY SHOULD BE LEVIED. THIS SUBMISSION OF THE ASSESSEE WAS DISMISSED BY TH E AO WHO WAS SATISFIED THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED THE TAXABLE INCOME WITHIN THE MEANING OF SEC. 271(1)(C) R.W. EXPLANATION - I 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY S UCCESS. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE IS A SENIOR CITIZEN OF ABOUT 75 YEARS OF AGE AND WAS NOT PROPERLY ASSISTED ITA. NO S 6316 & 6317/M/2012 3 BY HIS ACCOUNTANT AND THEREFORE THE DEPOSITS MADE IN THE SAID BANK ACCOUNT WHEN BROUGHT TO THE NOTI CE WAS IMMEDIATELY ACCEPTED AS INCOME AND OFFERED THE SAME FOR TAXATION. THE ENTIRE ADDITION HAS BEEN MADE ON AGREED BASIS THEREFORE IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME THEREFORE NO PENALTY SHOULD BE LEVIED. 7. P ER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE WAS VERY MUCH IN THE KNOW OF CASH DEPOSIT S IN SARASWAT BANK. IT IS ALSO AN UNDISPUTED FACT THAT THE ASSESSEE OFFERED THE SAME FOR TAXATION WHEN IT WAS BROUGHT TO HIS NOTICE WHICH MEANS THAT IF THE RETURN OF INCOME WAS NOT SELECTED FOR SCRUTINY ASSESSMENT, THE CASH DEPOSITED IN THE BANK WOULD HAV E GONE UN - NOTICED. WE ARE THEREFORE CONVINCED THAT THIS IS A FIT CASE FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. WE DRAW SUPPORT FROM THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ZOOM COMMUNICATION PVT. LTD. 327 ITR 510 AND ALSO FR OM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. VS CIT 358 ITR 593 PENALTY IS CONFIRMED. APPEAL FILED BY THE ASSESSEE IS DISMISSED. ITA NO. 6317/M/2012 2009 - 10 9. THE GRIEVANCE OF THE ASSESSEE IS AGAINST THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. FACTS OF THE CASE ARE IDENTICAL TO THE FACTS IN ITA NO. 6316/M/12. THE ONLY DISTINGUISHING FACTS VEHEMENTLY ARGUED BY THE LD. COUNSEL IS THAT IN THIS YEAR, THE AO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT IN THE ASSESSMENT ORDER STATING THAT PENALTY ITA. NO S 6316 & 6317/M/2012 4 PROCEEDINGS ARE SEPARATELY INITIATED FOR SUPPRESSION OF TAXABLE INCOME BY FILING INACCURATE PARTICULARS OF INCOME . IT IS THE SAY OF THE LD. COUNSEL THAT THE AO INITIATED PENALTY PROCEEDINGS FOR SUPPRESSION OF TAXABLE INCOME BY FILING INACCURATE PARTICULARS OF INCOME WHEREAS THE PENALTY HAS BEEN LEVIED FOR CONCEALMENT OF THE PARTICULARS OF TAXABLE INCOME. THEREFORE, THE LEVY OF PENALTY IS AGAINST THE PROVISIONS OF THE LAW. IN SUPPORT, THE LD. COUNSEL RELIE D UPON VARIOUS JUDICIAL DECISIONS FILED IN THE FORM OF PAPER BOOK CONTAINING PAGES 1 TO 86. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE SUBMISSIONS MADE BY THE LD. COUNSEL AND HAVE ALSO CONSIDERED ALL THE JUDICIAL DECISIONS RELIED UPON BY THE LD. COUNSEL. HOWEVER, WE DO NOT FIND ANY FORCE IN THE CONTENTION OF THE LD. COUNSEL. THE PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME LEADING TO CONCEALMENT OF INCOME AND THE PENALTY HAS BEEN LEVIED FOR CONCEALING THE P ARTICULARS OF INCOME. WE, THEREFORE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). FOR THE REASONS DISCUSSED AT LENGTH IN ITA NO. 6316/M/11, THE LEVY OF PENALTY IS CONFIRMED. 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESS EE ARE DISMISSED. OR DER PRONOUNCED IN THE OPEN COURT ON 19 TH MAY , 2015 SD/ - SD/ - ( JOGINDER SING H ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 19 TH MAY , 2015 . . ./ RJ , SR. PS ITA. NO S 6316 & 6317/M/2012 5 / 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