Smt. Jatinder Kaur Prop., Una V. DCIT, Palampur

ITA 718/CHANDI/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8440 (ITAT-CHANDIGARH)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-02-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 31-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: R R THAKUR
• Keywords: Principle of natural justice; Difference of opinion
• Section: 271(1)(c); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI D. K.SRIVASTAVA, ACCOUNTANT MEMBER AND MS.SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.718 /CHD/2010 (ASSESSMENT YEAR : 2005-06) SMT. JATINDER KAUR, VS. D.C.I.T., HARMANS VASTRA, CIRCLE, MAIN BAZAR UNA. PALAMPUR. PAN: AAVPK 3800C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.R.THAKUR RESPONDENT BY : SMT. JAI SHREE SHARMA O R D E R PER SUSHMA CHOWLA, J.M, : THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (A), SHIMLA DATED 30.04. 2010 RELATING TO ASSESSMENT YEAR 2005-06 AGAINST THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST LAW AND FACTS OF THE CASE, PRINCIPLES OF NATURAL JUSTICE AND THE PENALTY IS LIKELY TO THE DELETED. 2. THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICE R IS BASED ON THE DIFFERENCE OF OPINION OF THE ASSESSING 2 OFFICER AND THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED TO CONFIRM THE SAME. 3. THAT THE PENALTY ORDER CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BASED ON SURMISES AND CONJECTURES WHICH IS LIKELY TO BE DELETED. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED TO CONFIRM A PUNITIVE ORDER OF THE ASSESSING OFFICER WHERE THE APPELLANT NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME. THE PENALTY IS LIKELY TO BE DELETED. 3. THE ASSESSEE IN THE PRESENT APPEAL LEVIED PENALT Y U/S 271(1)(C) OF THE ACT AT RS. 37,990/- ON ADDITION OF RS. 1,24,121 /-. 4. THE BRIEF FACTS OF THE CASE ARE THAT SURVEY U/S 133A WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE AND TH E DISCREPANCY WAS FOUND IN THE STOCK INVENTORY PREPARED ON THE DATE O F SURVEY AND THE STOCK AS PER BOOKS OF ACCOUNT. THE ADDITION OF RS. 1,24,121/- WAS MADE TO THE INCOME OF THE ASSESSEE BY THE ASSESSING OFFI CER BY OBSERVING AS UNDER:- HOWEVER, THE FACT REMAINS TAT THE SURVEY TEAM PREP ARED STOCK INVENTORY AMOUNTING TO RS. 49,55,526/- AND GA VE A MARGIN OF 13.5% TO THE ASSESSEE AND FINALLY THE STO CK WAS TAKEN AT RS. 42,86,530/-. EVEN IN A MARGIN OF 20%, AS CLAIMED BY THE ASSESSEE IS ALLOWED AND TOTALLING MI STAKE OF RS. 5,67,000 IS DEDUCTED, THE STOCK COMES TO RS. 35,10,821/-. A PERUSAL OF THE TRADING ACCOUNT PREP ARED ON THE DATE OF SURVEY SHOWS A CLOSING STOCK OF RS. 30,14,030/- AND IF THE STOCK SURRENDERED AS PER RET URN OF INCOME AMOUNTING TO RS. 3,72,670/- IS DEDUCTED, THE FACT REMAINS THAT AS ON DATE OF SURVEY, THE ASSESSEE WAS HAVING EXCESS STOCK AMOUNTING TO RS. 1,24,121/- (35,10,821 33,86,700 ). SINCE THE ASSESSEE HAS N OT BEEN SUCCESSFUL TO DEFEND HIMSELF IN THIS REGARD FROM AN Y GROUNDS, THE DIFFERENCE OF RS. 1,24,121/- IS ADDED TO THE INCOME OF THE ASSESSEE. 3 5. THE EXPLANATION OF THE ASSESSEE TO THE ABOVE SAI D FACT WAS THAT THE VALUATION OF STOCK WAS ON ACCOUNT OF TAGGED PRICE A ND SURVEY PARTY ALLOWED BENEFIT OF 13.5% AS AGAINST 20% PRICE EXCES S SHOWN OVER THE COST. THE LD. AR FOR THE ASSESSEE FAIRLY ADMITS TH AT THE PURCHASE VOUCHERS AND BOOKS OF ACCOUNT WERE PRODUCED DURING THE ASSESSMENT PROCEEDINGS, BUT STILL AN ADDITION OF RS. 1,24,121/ - WAS MADE AND PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED ON SAID ADDITIO N AT RS. 37,990/-. 6. FROM THE PERUSAL OF THE ASSESSMENT ORDER, WE FIN D THAT THE ASSESSING OFFICER WHILE COMPUTING THE DIFFERENCE IN STOCK HAS CONSIDERED THE MARGIN OF 20% AS CLAIMED BY THE ASSE SSEE AND ALSO TOTALING MISTAKE OF RS. 5,67,000/- AND DEDUCTED THE SAME AND COMPUTED THE STOCK ON THE DATE OF SURVEY AT RS. 35,10,821/-. AS PER THE TRADING ACCOUNT PREPARED ON THE DATE OF SURVEY CLOSING STOC K OF RS. 30,14,030/- WAS REFLECTED. HOWEVER, STOCK OF RS. 3,72,670/- WAS SURRENDERED WHICH WAS DEDUCTED AND EXCESS STOCK OF RS. 1,24,121/- WAS DETERMINED AND ADDITION TO THE EXTENT WAS MADE. IN THE ABOVE SAID CIRCUMSTANCES, WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE, AS THE PLEA RAISED BY THE ASSESSEE EXPLAINING DISCREPANCY IN STOCK HAD BEEN C ONSIDERED AND BENEFIT ALLOWED. STILL THERE WAS A DISCREPANCY IN THE STOC K AND ADDITION MADE ON THIS ACCOUNT ESTABLISHES THE CASE OF REVENUE OF FUR NISHING INACCURATE PARTICULARS OF INCOME. THE ADDITION TO THE INCOME IN SUCH CIRCUMSTANCES ATTRACTS LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. THE LD. AR PLACED RELIANCE ON THE ORDER OF THE CHANDIGARH BENCH OF TH E TRIBUNAL IN THE CASE OF SHRI INDERJIT SINGH, UNA VS. DCIT, PALAMPUR (ITA NO. 1266/CHD/2009 ORDER DATED 26.2.2010) FOR NON LEVY OF PENALTY U/ S 271(1)(C) OF THE ACT. WE FIND NO MERIT IN THE SAID RELIANCE AS THE FACTS ARE NOT IDENTICAL. 4 CONFORMING THE ORDER OF CIT(A), WE DISMISS THE APPE AL FILED BY THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DAY OF FEBRUARY, 2011. SD/- SD/- (D.K.SRIVASTAVA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER RKK DATED : 28 TH FEBRUARY , 2011 COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR.