K.Velavan, Erode V. ACIT Circle 1, Erode

ITA 722/CHNY/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3980 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained investment
• Section: 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.722/CHNY/2018 ( )( / ASSESSMENT YEAR : 2009-10 SHRI K. VELAVAN, 8/9, T.M.S. NAGAR, KEEL THINDAL, THINDAL POST, ERODE 638 012. PAN : ACNPV 2715 N V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, INCOME TAX OFFICE, GANDHI ROAD, ERODE 638 001 (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE -.+, / 0 / RESPONDENT BY : MS. S. VIJAYAPRABHA, JCIT 1 / 2% / DATE OF HEARING : 27.09.2018 3') / 2% / DATE OF PRONOUNCEMENT : 05.10.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -3, COIMBA TORE, DATED 05.02.2018 AND PERTAINING TO ASSESSMENT YEAR 2009-1 0. 2 I.T.A. NO.722/CHNY/18 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSING OFFICER LEVIED PENALTY UNDER SEC TION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') BY AN ORDER DATED 27.03.2014. IN FACT, THE PENALTY WAS LEVIED IN RES PECT OF THE SO- CALLED UNEXPLAINED INVESTMENT TO THE EXTENT OF 10 LAKHS AND THE SO- CALLED UNAPPROVED LOAN AMOUNT OF 8 LAKHS. ACCORDING TO THE LD. COUNSEL, THIS TRIBUNAL IN THE QUANTUM APPEAL IN I.T .A. NO.353/MDS/2014 DATED 20.06.2014, DELETED THE ADDIT ION OF 8 LAKHS WITH REGARD TO UNAPPROVED LOAN AMOUNT. THIS TRIBUNAL FOUND THAT THE ASSESSING OFFICER LEVIED PENALTY ON THE BA SIS OF SWORN STATEMENT SAID TO BE RECORDED UNDER SECTION 131 OF THE ACT. ACCORDING TO THE LD. COUNSEL, IN THE FIRST ROUND OF LITIGATION, WHEREIN THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THIS TRIBUNAL BY AN ORDER DATED 15.07.2016 IN I.T.A. NO.1212/MDS/2016 REMITTED BACK THE MATTER TO THE FI LE OF THE ASSESSING OFFICER. THIS TRIBUNAL WHILE REMITTING B ACK, OBSERVED THAT ADDITION OF 10 LAKHS AND 8 LAKHS CANNOT STAND SIMULTANEOUSLY AND BY APPLYING PRINCIPLES OF TELESCOPING, THIS TRIBUNA L SUSTAINED THE ADDITION OF 10 LAKHS ONLY. THE PROFIT ON SALE OF MEDICINE WAS CONFIRMED AT 20%. ACCORDING TO THE LD. COUNSEL, TH E ORDER PASSED BY THE TRIBUNAL IN QUANTUM APPEAL WAS NOT CONSIDERE D AND THE 3 I.T.A. NO.722/CHNY/18 ASSESSING OFFICER LEVIED PENALTY. THEREFORE, THIS TRIBUNAL IN ITS ORDER DATED 15.07.2016, FOUND THAT THE ASSESSING OF FICER LEVIED PENALTY BY AN ORDER DATED 27.03.2014 WHILE THE TRIB UNAL GRANTED RELIEF IN THE QUANTUM APPEAL ON 20.06.2014, MUCH AF TER THE LEVY OF PENALTY. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO RECONSIDER THE MATTER AFRESH AND THEREAFTER DECIDE THE SAME. 3. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , FURTHER SUBMITTED THAT WHILE RECONSIDERING THE MATTER, THE ASSESSING OFFICER HAS NOT RE-APPRECIATED THE MATERIAL AVAILABLE ON RE CORD. HE HAS SIMPLY TAKEN THE PENALTY LEVIED IN THE ORIGINAL PRO CEEDING AND REDUCED THE PENALTY RELATING TO THE QUANTUM RELIEF GRANTED BY THIS TRIBUNAL AND SUSTAINED THE BALANCE. ACCORDING TO T HE LD. COUNSEL, THE ADDITION WITH REGARD TO UNEXPLAINED INVESTMENT ON THE LAND WAS ONLY TO THE EXTENT OF 10 LAKHS IN THE QUANTUM ADDITION. THIS WAS ON THE BASIS OF STATEMENT RECORDED UNDER SECTION 131 O F THE ACT AND THERE WAS NO SUBSTANTIVE MATERIAL TO DISALLOW THE C LAIM OF THE ASSESSEE. MOREOVER, ACCORDING TO THE LD. COUNSEL, THE PROFIT ON SALE OF MEDICINE WAS ALSO MADE ONLY ON ESTIMATE BAS IS. THE CIT(APPEALS) SIMPLY FOUND THAT THE DIRECTION OF THI S TRIBUNAL TO 4 I.T.A. NO.722/CHNY/18 RECONSIDER THE MATTER AFRESH WAS NOT CARRIED ON BY THE ASSESSING OFFICER. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) DIRECTED THE ASSESSING OFFICER TO PASS AN ORDER AS PER THE DIRECTION GIVEN BY THE TRIBUNAL. THE FACT REMAINS THAT THE A SSESSING OFFICER HAS NOT RE-APPRECIATED THE MATERIAL AVAILABLE ON RE CORD. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) OUGH T TO HAVE DELETED THE PENALTY INSTEAD OF DIRECTING THE ASSESS ING OFFICER TO PASS AN ORDER ONCE AGAIN. 4. ON THE CONTRARY, MS. S. VIJAYAPRABHA, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE CIT(APPEALS), IN FACT, ALLOWED THE APPEAL OF THE ASSESSEE DIRECTING THE ASSESSING OFFICER TO PASS AN ORDER AS PER THE DIRECTION OF ITAT. ACCORDING T O THE LD. D.R., THE ASSESSEE HAS NO GRIEVANCE AT ALL SINCE THE CIT(APPE ALS) HAS ALLOWED THE APPEAL OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN THE QUANTUM APPEAL, THIS TRIBUNAL GRANTED PARTIAL RELIEF. IN T HE FIRST ROUND OF LITIGATION, ON THE PENALTY PROCEEDING, THIS TRIBUNA L FOUND THAT THE PENALTY ORDER WAS PASSED BEFORE THE ORDER PASSED BY THIS TRIBUNAL IN THE QUANTUM APPEAL, THEREFORE, THIS TRIBUNAL DIR ECTED THE 5 I.T.A. NO.722/CHNY/18 ASSESSING OFFICER TO RECONSIDER THE MATTER AFRESH. THE ASSESSING OFFICER SIMPLY HAS TAKEN THE PENALTY LEVIED IN THE ORIGINAL PROCEEDING AND THE PENALTY RELATING TO THE RELIEF GRANTED BY T HIS TRIBUNAL AND SUSTAINED THE REMAINING BALANCE. AS RIGHTLY SUBMIT TED BY THE LD.COUNSEL FOR THE ASSESSEE AND THE LD. D.R., THE A SSESSING OFFICER HAS NOT RE-APPRECIATED THE MATERIAL AVAILABLE ON RE CORD AS DIRECTED BY THIS TRIBUNAL. IN THE NORMAL PROCESS, THIS TRIB UNAL WOULD HAVE REMITTED BACK THE MATTER TO THE ASSESSING OFFICER T O RECONSIDER THE ISSUE ONCE AGAIN. HOWEVER, WE ARE NOT DOING SO IN THIS APPEAL SINCE THE PENALTY LEVIED BY THE ASSESSING OFFICER I S ONLY 5,84,842/-. THEREFORE, WE CONSIDER THE CASE ON MERIT. 6. THE ULTIMATE ADDITION SUSTAINED BY THIS TRIBUNAL IS ONLY 10 LAKHS AND THE PROFIT ON SALE OF MEDICINE WAS AT 20% . IT IS WELL SETTLED PRINCIPLES OF LAW THAT ALL THE ADDITIONS DO NOT AUTOMATICALLY RESULT IN LEVY OF PENALTY. WHEN THE ASSESSEE CLAIM S THAT THE INVESTMENT IN THE LAND WAS MADE FROM THE BORROWED F UNDS AND MERELY BECAUSE THE ASSESSEE COULD NOT SUBSTANTIATE THE BORROWAL OF FUNDS BY PRODUCING THE SUBSTANTIAL MATERIAL BEFORE THE ASSESSING OFFICER, THAT DOES NOT MEAN THAT THE ASSESSEE HAS C ONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. 6 I.T.A. NO.722/CHNY/18 IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASS ESSEE HAS CONCEALED ANY PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF INCOME, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE LEVY OF PENALTY IS NOT CALLED FOR. 7. MERE CLAIM OF EXPENDITURE OR THE CLAIM THAT THE ASSESSEE HAS BORROWED LOAN CANNOT AUTOMATICALLY RESULT IN LEVY O F PENALTY. IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSEE H AS EARNED MONEY OR INCOME AND CONCEALED THE SAME IN THE RETUR N OF INCOME, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE PENALTY CANNOT BE LEVIED. MOREOVER, THE PROFIT ON SALE OF MEDICINE WAS TAKEN AT 20%. IN THESE FACTS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY. THEREFORE, THI S TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF BOTH THE AUTHORITIES BELOW. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY LEVIED UN DER SECTION 271(1)(C) OF THE ACT. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 7 I.T.A. NO.722/CHNY/18 ORDER PRONOUNCED IN THE COURT ON 5 TH OCTOBER, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 5 TH OCTOBER, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-3, COIMBATORE 4. PRINCIPAL CIT-2, COIMBATORE 5. 7: -2 /DR 6. ( ; /GF.