Kamlesh Kumar Sharma, Mohali V. ITO, Mohali

ITA 765/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81086 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 05-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 765/CHD/2013 ASSESSMENT YEAR: 2006-07 SHRI. KAMLESH KUMAR SHARMA, VS. THE ITO R/O# 2374/A, SCL, SOCIETY WARD 6(2) SECTOR 70 MOHALI MOHALI PAN NO.ACKPS6678N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEET KRISHAN RESPONDENT BY : SHRI. S.K. MITTAL DATE OF HEARING : 09/12/2014 DATE OF PRONOUNCEMENT : 12/12/2014 ORDER PER T.R.SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26/04/2013 OF CIT (APPEALS), CHANDIGARH. 2. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. THAT THE ORDER PASSED UNDER SECTION 250(6) OF THE I .T. ACT, 1961 BY THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH IN APPEAL NO. 14/12-13 DATED 26.04.2013 IS CONTRARY TO LAW AND FACTS OF THE CASE. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE LEVY OF PENALTY U/S 271(1)(C) TO THE EXTENT OF ADDITION OF RS. 7,00,000/-. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT REVE NUE HAD RECEIVED INFORMATION UNDER AIR THAT ASSESSEE HAD DEPOSITED C ASH AMOUNTING TO RS. 25,70,000/- IN HIS BANK ACCOUNT WITH CENTURION BAN K OF PUNJAB SECTOR 28, NO EXPLANATION WAS GIVEN BEFORE THE AO AND THEREFOR E THIS AMOUNT WAS ADDED TO THE INCOME UNDER THE ASSESSMENT FRAMED UND ER SECTION 144, PENALTY PROCEEDING UNDER SECTION 271 (1)(C) WERE AL SO INITIATED. 4. IN RESPONSE TO THE SHOW CAUSE NOTICE WHY PENALTY SHOULD NOT BE IMPOSED, ASESSEE DID NOT APPEAR BEFORE THE AO, AND THEREFORE, PENALTY HAS BEEN LEVIED AT MINIMUM OF RS. 11,17,000/-. 5. ON APPEAL IT WAS SUBMITTED BEFORE LD. CIT(A) THA T TRIBUNAL HAS ACCEPTED PART OF THE EXPLANATION OF THE ASSESSEE AN D ADDITION HAD BEEN RESTRICTED TO RS. 7.00 LACS. LD. CIT(A) AGREED WITH THIS CONTENTION AND CONSIDERING THE ORDER OF TRIBUNAL AND DIRECTED THE AO TO LEVY PENALTY AGAINST THE CASH DEPOSIT OF RS. 7.00 LACS INSTEAD O F RS. 25,70,000/- ADDED ORIGINALLY. 6. BEFORE US LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT VARIOUS EXPLANATIONS WERE GIVEN DURING THE QUANTUM PROCEEDI NGS BEFORE LD. CIT(A) AS WELL AS TRIBUNAL IT WAS POINTED OUT ALTER NATIVELY THAT EVEN IF TOTAL WITHDRAWAL AND DEPOSIT WERE CONSIDERED AND WITHDRAW AL WOULD BE MORE THAN THE DEPOSITS, FURTHER IT WAS REPRESENTED THAT ASSESSEE HAS GIVEN ALL FACTS OF THE CA AND HE HAS NOT REPRESENTED THE CASE PROPERLY. 7. ON THE OTHER HAND LD. DR RELIED ON THE ORDER OF LD. CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT VARIOUS EXPLANATIONS HAVE BEEN GIVEN BY THE ASSESSE E BEFORE LD.CIT(A) AND EVEN BEFORE THE TRIBUNAL. PART OF THIS EXPLANAT ION HAS BEEN ACCEPTED BY THE TRIBUNAL AND QUANTUM APPEAL IN ITA NO. 1131/ CHD/2010 IT WAS ACCEPTED THAT WITHDRAWALS WERE MORE THAN THE DEPOSI TS HOWEVER, ULTIMATELY TRIBUNAL WAS OF THE OPINION THAT PEAK TH EORY MAY BE APPLICABLE AND THEN ULTIMATELY AN ADDITION OF RS. 7.00 LACS WA S UPHELD. THEREFORE IT IS CLEAR THAT ASSESSEE HAD GIVEN BONAFIDE EXPLANATION FOR DEPOSIT OF CASH WHICH HAVE NOT PROVED TO BE FALSE. ONCE ASSESSEE HA S GIVEN A BONAFIDE EXPLANATION THEN PENAL ACTION IS NOT ATTRACTED THER EFORE, IN OUR OPINION IT IS NOT A FIT CASE FOR LEVY OF PENALTY AND ACCORDINGLY WE SET ASIDE THE ORDER OF LD. CIT(A) AND DELETED THE PENALTY. 9. IN THIS RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2014 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12/12/2014 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR