SURENDRA AGARWAL, Jaipur V. ITO, Kishangarh

ITA 688/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5464 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Revised return
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NOS. 688/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2005-06 . SHRI SURENDRA AGARWAL, 0/157, AGRASEN BHAWAN GALI, MADANGANJ-KISHANGANJ. CUKE VS. THE INCOME TAX OFFICER, KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AANPA 8974 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY S BY : SHRI MAHENDRA GARGIEYA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.R. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05.02.2016. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/02/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THE PRESENT APPEAL FILED BY THE ASSESSEE IS ARISIN G FROM THE ORDER DATED 16.07.2014 PASSED BY THE LEARNED CIT (A), AJMER FOR THE A.Y. 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) OF T HE ACT DATED 16.076.2014 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE, T HE SAME KINDLY BE QUASHED. 2. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) OF THE ACT IS BARRED BY LIMITATION HENCE, PLEASE BE QUASHED. 2 ITA NO. 688/JP/2014 A.Y. 2005-06. SHRI SURENDRA AGARWAL VS. ITO. 3. RS. 59,019/- : THE LD. CIT (A) ERRED IN LAW AS W ELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPUGNED PENALTY U/S 271 (1)(C) OF THE ACT OF RS. 59,019/-. THE PENALTY SO IMPOSED & CONFI RMED BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME ON 31.3.2006 DECLARING INCOME AT RS. 1,06,619/- FOR TH E ASSESSMENT YEAR 2005-06. ON RECEIPT OF AIR INFORMATION, IT WAS FOUND THAT THE A SSESSEE HAS MADE CASH DEPOSIT OF RS. 11,43,500/- IN SB A/C NO. 0155104000027803 MAINTAIN ED WITH IDBI BANK, KISHANGARH. FROM THE SCRUTINY OF THE RECORD IT WAS FOUND THAT T HE ASSESSEE HAS NOT DISCLOSED THIS CASH DEPOSIT IN THE BANK ACCOUNT. THEREFORE, THE AS SESSEE WAS ISSUED NOTICE U/S 148 OF THE IT ACT ON 3.4.2008 AFTER RECORDING THE REASONS. IN COMPLIANCE, THE ASSESSEE FILED THE REVISED RETURN ON 12.5.2008 DECLARING TOTAL INC OME OF RS. 1,94,732/-. IN THE P&L ACCOUNT FILED WITH THE RETURN DATED 12.5.2008, ASSE SSEE HAS DECLARED INCOME FRO BUSINESS OR PROFESSION AT RS. 1,58,801/- AND AFTER DEDUCTING INTEREST INCOME SHOWN SEPARATELY OF RS. 62,276/-, NET INCOME FROM BUSINES S HAS BEEN SHOWN AT RS. 96,525/-. HOWEVER, IN THE P&L ACCOUNT FILED WITH THE ORIGINAL RETURN FILED ON 31.5.2006 NO SUCH BUSINESS INCOME WAS DISCLOSED. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE ASSESSEE HAS MADE THE FOLLOWING DEPO SITS IN SB A/C NO. 055104000027803 MAINTAINED WITH IDBI BANK :- CASH RS. 11,43,500/- CHEQUE RS. 8,05,000/- INTEREST RS. 61/- TOTAL : RS. 19,48,561/- 3 ITA NO. 688/JP/2014 A.Y. 2005-06. SHRI SURENDRA AGARWAL VS. ITO. ON BEING ASKED BY THE AO TO EXPLAIN THE SOURCE OF T HESE DEPOSITS, THE ASSESSEE COULD NOT FURNISH ANY SATISFACTORY EXPLANATION. THEREFORE , THIS AMOUNT WAS TREATED AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. THUS THE AO INITIATED PENALTY PROCEEDINGS SEPARATELY UNDER SECTION 271(1)(C) OF THE ACT FOR C ONCEALMENT OF INCOME. THE LD. CIT (A) HAS TREATED THE UNDISCLOSED DEPOSITS AS UNDISCL OSED TURNOVER OF THE ASSESSEE AND RESTRICTED THE ADDITION FROM RS. 19,48,500/- TO R S. 1,94,850/- HOLDING THAT THE UNDISCLOSED DEPOSITS FOUND IN IDBI SAVING BANK ACCO UNT IS UNDISCLOSED TURNOVER OF THE ASSESSEE. ON APPEAL, THE ITAT HAS CONFIRMED THE ORD ER OF LD. CIT (A) VIDE ORDER DATED 24.06.2011 IN ITA NO. 1029/JP/2010 & 1093/JP/2010. THEREAFTER, A SHOW CAUSE NOTICE DATED 23.01.2012 WAS ISSUED TO THE ASSESSEE AS TO W HY PENALTY U/S 271(1)(C) SHOULD NOT BE LEVIED FOR CONCEALMENT OF INCOME. IN RESPONS E THE EXPLANATION FILED BY THE ASSESSEE VIDE LETTER DATED 01.02.2012 WAS CONSIDERE D BY THE AO BUT FOUND IT NOT CONVINCING, THEREFORE, THE AO AFTER TAKING APPROVAL FROM THE JCIT AS REQUIRED U/S 274(2), LEVIED THE PENALTY OF RS. 59,019/- U/S 271( 1)(C) OF THE ACT FOR CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. AGAINST THIS ORDER OF AO, ASSESSEE CARRIED THE M ATTER BEFORE LD. CIT (A), WHO CONFIRMED THE ACTION OF THE AO, HOLDING THAT THE AD DITION MADE BY THE AO WAS BASED ON THE INCRIMINATING BANK ACCOUNT OF THE ASSESSEE AND PART OF INCOME HAS BEEN ACCEPTED BY THE ASSESSEE HIMSELF ON THE ABOVE TRANSACTIONS W HICH WAS NOT SHOWN IN THE ORIGINAL RETURN FILED BY THE ASSESSEE. 4. NOW THE ASSESSEE IS BEFORE US. 4 ITA NO. 688/JP/2014 A.Y. 2005-06. SHRI SURENDRA AGARWAL VS. ITO. 4.1 AT THE OUTSET, THE LD. A/R OF THE ASSESSEE PLAC ING RELIANCE ON THE ORDER OF ITAT DATED 24.06.2011 IN ITA NO. 1029/JP/2010 IN QUANTUM PROCEEDINGS, REQUESTED TO DELETE THE PENALTY ADDITION AS IN QUANTUM PROCEEDIN GS THE ITAT HAS CONFIRMED THE ORDER OF LD. CIT (A) WHO TREATED THE UNDISCLOSED DE POSITS AS UNDISCLOSED TURNOVER AND ESTIMATED THE NP RATE @ 10% AND THEREBY ESTIMATED T HE UNDISCLOSED INCOME AT RS. 1,94,850/-. 4.2. ON THE OTHER HAND, THE LD. D/R FOR THE REVENUE HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4.3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL ON RECORD. IT IS SETTLED THAT THE ADDITION MADE ON THE BASIS OF ESTI MATION DO NOT ATTRACT THE IMPOSITION OF PENALTY. FOR THIS PURPOSE, RELIANCE CAN BE MADE ON THE VARIOUS JUDGMENTS:- ADDL. CIT VS. AGGARWAL MISTHAN BHANDAR (RAJ.) 131 I TR 619 INDER SINGH SANKHALA VS. ITO (ITAT JODHPUR) 68 TTJ 463. ITO VS. GANPAT LAL JAIN (ITAT, JODHPUR) 24 TW 323. CIT VS. SURESH CHAND MITTAL (SC) 251 ITR 9. SHIV LAL TAK VS. CIT (RAJ.) 251 ITR 373. CIT VS. B.D. RAM CHANDRA (BOMBAY HC) 150 ITR 242 CIT VS. KERALA SPINNERS LTD. (KER.) 247 ITR 541. CIT VS. DHILLON RICE MILLS (P&H) 256 ITR 47. 5 ITA NO. 688/JP/2014 A.Y. 2005-06. SHRI SURENDRA AGARWAL VS. ITO. AND ALSO COORDINATE BENCH DECISION IN ITA NO. 102 9/JP/2010 DATED 24.06.2011 IN THE ASSESSEES OWN CASE MENTIONED ABOVE, WE FIND NO JUS TIFICATION IN THE ORDERS OF AUTHORITIES BELOW. WE, THEREFORE, DELETE THE PENAL TY LEVIED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2016. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/02/2016. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI SURENDRA AGARWAL, MADANGANJ-KISH ANGARH. 2. IZR;FKHZ@ THE RESPONDENT-THE INCOME TAX OFFICER, KISHANGARH. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 688/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR