RANJITSINGH SARDARSINGH DEORA, MUMBAI V. ITO 25(2)(4), MUMBAI

ITA 7094/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3017 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.7093/M/2014 ASSESSMENT YEAR: 2009-10 ITA NO.7094/M/2014 ASSESSMENT YEAR: 2009-10 SHRI RANJITSINGH SARDARSINGH DEORA, 101, SAMARPAN BUILDING, ROKADIA LANE, BORIVALI (W), MUMBAI 400 092 PAN: AACPD3337R VS. JCIT-25(2), C-11, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 26.09.2016 DATE OF PRONOUNCEMENT : 26.09.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED TWO APPEALS PREFERRED BY THE A SSESSEE AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] OF EVEN DATE 20.07.2012 HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. AN APPLICATION FOR ADJOURNMENT HAS BEEN MADE ON BEHALF OF THE ASSESSEE. HOWEVER, CONSIDERING THAT SHORT AND SMALL ISSUES AR E INVOLVED IN THESE APPEALS, WE PROCEED TO DISPOSE OF THESE APPEALS AFTER HEARIN G THE LD. DEPARTMENTAL REPRESENTATIVE. FIRST WE TAKE UP THE ASSESSEES AP PEAL BEARING ITA NO.7093/M/2014. ITA NOS.7093 & 7094/M/2014 SHRI RANJITSINGH SARDARSINGH DEORA 2 ITA NO.7093/M/2014 3. THE ASSESSEE, IN THIS APPEAL, HAS AGITATED THE C ONFIRMATION OF PENALTY UNDER SECTION 271D READ WITH SECTION 269SS OF THE I NCOME TAX ACT, 1961. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS T HE AO) NOTED THAT THE ASSESSEE HAD DEPOSITED RS.17 LAKH IN HIS BANK ACCOU NT DURING FINANCIAL YEAR 2008-09. OUT OF THIS AMOUNT THE ASSESSEE HAD RECEI VED A LOAN AMOUNT OF RS.8 LAKH WHICH WAS DEPOSITED IN THE BANK ACCOUNT IN CAS H. THE SAID LOAN WAS RECEIVED IN THE FOLLOWING MANNER: I) RS.2,50,000/- FROM BHUVNESH DEORA II) RS.2,50,000/- FROM NARENDRA BHUVNESH DEORA III) RS.3,00,000/- FROM SAYARKUNWAR DEORA 4. ON BEING ASKED TO EXPLAIN, THE ASSESSEE SUBMITTE D THAT HE HAD NOT RECEIVED ANY LOAN FROM THESE PERSONS AND THAT HE WA S THE HEAD OF THE FAMILY AND LOOKING AFTER THE SALE OF AGRICULTURAL PRODUCE. THE AMOUNT IN QUESTION HAD BEEN DEPOSITED IN THE ACCOUNT OF THE ASSESSEE OUT O F THE AGRICULTURAL INCOME FROM THE LAND OF THE FAMILY. THE ASSESSEE ALSO FUR NISHED RELEVANT DOCUMENTS PERTAINING TO AGRICULTURAL LAND/AGRICULTURAL INCOME . THE AO, HOWEVER, HELD THAT THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE EVID ENCE OF AGRICULTURAL ACTIVITY. HE, THEREFORE, ADDED THE SAID AMOUNT AS UNEXPLAINED INCOME. HE ALSO LEVIED THE PENALTY UNDER SECTION 271D AGAINST THE ASSESSEE FOR RECEIVING CASH LOANS FROM THE ABOVE SAID PERSONS. 5. THE LD. CIT(A) ALSO CONFIRMED THE IMPUGNED PENAL TY. BEING AGGRIEVED BY THE ABOVE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 6. WE FIND FROM THE RECORD THAT A LETTER DATED 15.0 9.2014 HAS BEEN ADDRESSED TO LD. CIT(A) WHEREIN IT HAS BEEN EXPLAIN ED THAT THE ASSESSEE SHRI RANJITSINGH SARDARSINGH DEORA WAS THE JOINT ACCOUNT HOLDER WITH HIS SON SHRI NARENDRA SINGH DEORA IN WHICH THE ALLEGED DEPOSITS WERE FOUND BY THE AO. THE OTHER TWO PERSONS, WHOSE SHARE OF INCOME FROM A GRICULTURAL LAND WAS ITA NOS.7093 & 7094/M/2014 SHRI RANJITSINGH SARDARSINGH DEORA 3 DEPOSITED IN THE SAID ACCOUNT, ONE IS THE WIFE OF T HE ASSESSEE NAMELY SAYAR KUNVAR AND THE OTHER IS BHUVNESH DEORA WHO IS THE D AUGHTER IN LAW OF THE ASSESSEE. THE ASSESSEE HAS EXPLAINED THAT THE AMOU NT WAS OUT OF THE PROCEEDS OF AGRICULTURAL INCOME WHICH WAS DEPOSITED PERTAINI NG TO THE SHARE OF THE FAMILY MEMBERS WHICH WAS DEPOSITED IN THE BANK ACCO UNT HELD BY HIM JOINTLY WITH HIS SON. FURTHER, WE FIND THAT THE ASSESSEE H AD ALSO FURNISHED COPIES OF AFFIDAVITS WHEREIN THE WIFE OF THE ASSESSEE SAYARKU NWAR DEORA AND DAUGHTER IN LAW OF THE ASSESSEE BHUVNESH DEORA HAVE CONFIRMED I N THEIR RESPECTIVE AFFIDAVITS THAT THEY JOINTLY OWNED LAND WITH THEIR FAMILY MEMBERS AND DURING THE YEAR THEY HAD RECEIVED THEIR SHARE OF AGRICULTU RAL INCOME WHICH WAS DEPOSITED IN THE JOINT BANK ACCOUNT OF THE ASSESSEE WITH HIS SON SHRI NARENDRA BHUVNESH DEORA. IT IS PERTINENT TO MENTION HERE TH AT THE ASSESSEE IS THE HUSBAND OF SAYARKUNWAR DEORA AND SHRI NARENDRA BHUV NESH DEORA IS THE HUSBAND OF BHUVNESH DEORA. UNDER THE CIRCUMSTANCES , IT CANNOT BE SAID THAT THE ASSESSEE HAD RECEIVED ANY LOAN FROM HIS FAMILY MEMBERS. THE NATURE OF DEPOSITS HAS BEEN DULY EXPLAINED. THE OTHER FAMILY MEMBERS OF THE ASSESSEE HAVE NEVER ADMITTED THAT THEY HAD GIVEN ANY LOAN TO THE ASSESSEE RATHER THE PLEA IS THAT THE AMOUNT HAS BEEN DEPOSITED IN THE JOINT SAVING BANK ACCOUNT OF THE FAMILY. 7. SO FAR AS THE PENALTY ON ACCOUNT OF LOAN FROM HI S SON SHRI NARENDRA BHUVNESH DEORA IS CONCERNED, WE FIND THAT FROM THE RECORD THAT THE SAID ACCOUNT IN QUESTION WAS JOINTLY HELD BY THE ASSESSE E ALONG WITH SHRI NARENDRA BHUVNESH DEORA. UNDER THESE CIRCUMSTANCES, THE AMO UNT IN QUESTION CANNOT BE SAID TO BE RECEIVED BY THE ASSESSEE AS LOAN RATH ER THE AMOUNT IN QUESTION WAS DEPOSITED BY SHRI NARENDRA BHUVNESH DEORA IN THE JO INT ACCOUNT AND IT CANNOT, IN ANY MANNER, BE TERMED AS A LOAN TO THE ASSESSEE AS SHRI NARENDRA BHUVNESH DEORA HIMSELF WAS ALSO THE HOLDER OF THE ACCOUNT AL ONG WITH THE ASSESSEE. IT HAS BEEN PLEADED THAT THE OTHER TWO LADIES HAVE ALS O DEPOSITED THE SAID AMOUNT IN THE FAMILY ACCOUNT WHO HAPPENED TO BE THE WIVES OF THE ASSESSEE AND HIS SON ITA NOS.7093 & 7094/M/2014 SHRI RANJITSINGH SARDARSINGH DEORA 4 (JOINT ACCOUNT HOLDERS). UNDER THESE CIRCUMSTANCES , IT CANNOT BE SAID TO BE A CASE OF GIVING LOAN BY THE SAID PERSONS TO THE ASSE SSEE. IN OUR VIEW, THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN LEVYING THE IMPUG NED PENALTY UNDER SECTION 271D UPON THE ASSESSEE. THE SAME IS ACCORDINGLY OR DERED TO BE DELETED. ITA NO.7094/M/2014 8. NOW COMING TO THE ASSESSEES APPEAL BEARING ITA NO.7094/M/2014. THE ASSESSEE, IN THIS CASE, HAS AGITATED THE LEVY O F PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF RS.46,510/-. AS OBSERVED A BOVE, THE AO FOUND CERTAIN AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSE E. OUT OF THE SAID AMOUNT, THE ASSESSEE CLAIMED THAT RS.2,50,000/- WAS HIS OWN AGRICULTURAL INCOME AND THE REMAINING AMOUNT OF RS.8 LAKHS WAS THE INCOME O F THE FAMILY MEMBERS WHICH WAS DEPOSITED IN THE SAID BANK ACCOUNT. THE ASSESSEE PRODUCED THE RELEVANT DOCUMENTS OF OWNERSHIP OF THE LAND, HOWEVE R, SUBMITTED THAT HE HAD GIVEN THE SAID LAND ON CONTRACT AND HE HIMSELF DID NOT CARRY OUT THE AGRICULTURAL OPERATIONS. IT WAS EXPLAINED THAT THE ASSESSEE WAS HAVING TOTAL LAND OF 4.32 HECTORS WHICH PRODUCED 130 QUINTALS OF FOOD GRAINS OUT OF WHICH HIS SHARE WAS 97 QUINTALS AND THAT THE BALANCE HAD BEEN DISTRIBUT ED TO THE CULTIVATORS. HE ALSO SUBMITTED THE NAME AND ADDRESSES OF THE CULTIVATORS . THE AO, HOWEVER, HELD THAT SINCE THE ASSESSEE HAD FAILED TO FURNISH EVIDE NCE OF CARRYING OUT OF AGRICULTURAL OPERATIONS AND RESPECTIVE BILLS AND VO UCHERS FOR PURCHASING SEEDS AND FERTILIZERS, POWER CONSUMPTION ETC., HE THEREFO RE TREATED THE SAID DEPOSIT OF RS.2.50 LAKH AS UNEXPLAINED INCOME OF THE ASSESSEE. HE LEVIED THE IMPUGNED PENALTY ON ACCOUNT OF THE SAID ADDITION MADE INTO T HE INCOME OF THE ASSESSEE. 9. THE LD. CIT(A) ALSO CONFIRMED THE PENALTY. 10. WE HAVE HEARD THE LD. D.R. AND HAVE ALSO GONE T HROUGH THE RECORDS. FROM THE RECORD, IT IS UNDISPUTED THAT THE ASSESSEE IS HAVING AGRICULTURAL LAND OF 4.32 HECTORS. THE ADDITIONS HAVE BEEN MADE IN THIS CASE ON ACCOUNT OF FAILTURE OF THE ASSESSEE TO FURNISH EVIDENCES REGARDING THE CARRYING OUT THE AGRICULTURAL ITA NOS.7093 & 7094/M/2014 SHRI RANJITSINGH SARDARSINGH DEORA 5 OPERATIONS. WHEREAS PLEA OF THE ASSESSEE HAD BEEN THAT THE LAND WAS GIVEN ON CONTRACT FOR CULTIVATION AND THE PROCEEDS OF HIS SH ARE OUT OF THE AGRICULTURAL INCOME WAS DEPOSITED IN HIS BANK ACCOUNT. THOUGH I N THE ASSESSMENT PROCEEDINGS, THE AO MADE THE ADDITION AS THE ASSESS EE HAD FAILED TO FURNISH THE PROPER EVIDENCES ABOUT CARRYING OF CULTIVATION ACTI VITY, HOWEVER, THE FACT REMAINS ON THE FILE THAT THE ASSESSEE OWNS AGRICULT URAL LAND. THE AO HAS NOT REBUTTED THE CLAIM OF THE ASSESSEE BY SHOWING ANY E VIDENCE THAT NO AGRICULTURAL ACTIVITY WAS CARRIED OUT ON THE SAID LAND. THE PLE A OF THE ASSESSEE THAT THE LAND WAS GIVEN ON CONTRACT TO THE OTHER PERSON HAS NOT B EEN REBUTTED BUT THE ADDITIONS HAVE BEEN MADE DUE TO SOME LACK OF EVIDEN CE REGARDING THE CARRYING OUT OF THE OPERATIONS. UNDISPUTEDLY, THE ASSESSMEN T PROCEEDINGS AND THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT PROCE EDINGS. MERELY BECAUSE, THE ADDITIONS HAVE BEEN MADE INTO THE INCOME OF THE ASS ESSEE, BECAUSE OF LACK OF EVIDENCE REGARDING THE CLAIM PUT-FORTH BY THE ASSES SEE, BUT THAT ITSELF IS NOT SUFFICIENT FOR LEVY OF PENALTY UNDER SECTION 271(1) (C) OF THE ACT. THE ADDITIONS IN THIS CASE HAVE BEEN MADE NOT BECAUSE THAT THE AO HAS DISPROVED THE CASE OF THE ASSESSEE BUT BECAUSE OF THE LACK OF EVIDENCE ON THE PART OF THE ASSESSEE TO PROVE HIS CLAIM. THE FACTS AND CIRCUMSTANCES OF TH E CASE DO NOT SUGGEST THAT THE CLAIM OF THE ASSESSEE HAS BEEN PROVED TO BE WRO NG OR FALSE. THE FACTUM OF OWNERSHIP OF THE AGRICULTURAL LAND OF THE ASSESSEE HAS NOT BEEN DENIED. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND IT A FIT CASE F OR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN OUR VIEW, IT HAS NOT BEEN PROVED ON THE FILE THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICUL ARS OF INCOME OR HAD CONCEALED HIS INCOME. 11. IN VIEW OF THE ABOVE, THE PENALTY LEVIED/CONFIR MED BY THE LOWER AUTHORITIES IS HEREBY ORDERED TO BE DELETED. ITA NOS.7093 & 7094/M/2014 SHRI RANJITSINGH SARDARSINGH DEORA 6 12. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.09.2016. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 2609.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.