SHRI ANIL KUMAR LILA (HUF), Bhopal V. THE ACIT -1(2), Bhopal

ITA 768/IND/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2340 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Section: 153A; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.768/IND/2016 ASSESSMENT YEAR: 2008-09 ANIL KUMAR LILA (HUF), 83-A, LILA NIWAS, MALVIYA NAGAR, BHOPAL / VS. A CIT - 1 ( 2 ), BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AACHA9047H APPELLANT BY NONE (WRITTEN SUBMISSION) REVENUE BY SHRI K.G. GOYAL , SR. DR DATE OF HEARING: 30.01.2018 DATE OF PRONOUNCEMENT: 31.01.2018 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-31, NEW DEL HI, CAMP BHOPAL DATED 21.03.2016 WHICH IS ARISING OUT OF THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT (HEREINAFTER CALLED AS THE ACT) DATED 27.09.2013 FRAMED BY ACIT CIRCLE 1(2). DEEPAK JETHA 2 2 . SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) CONFIRMING PENALTY OF RS.45,000/- IMPOSED U/ S 271(1)(C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. BRIEFLY STATED FACTS AS CULLED OUT ON THE RECORD S ARE THAT THE ASSESSEE IS A HINDU UNDIVIDED FAMILY AND IS MEMBER OF LILASONS GROUP OF BHOPAL WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF BEER. THE SEARCH WAS CONDUCTED U/S 132 OF THE ACT. SUBSEQUENT NOTICES U/S 153A OF THE ACT WERE ISSUED TO THE ASSESSEE TO FILE THE RETURNS OF INCOME FOR A.YS. 2005-06 TO 2010-11. RETURN DULY SUBMITTED NOTICE ISSUED FOR INITIATING ASSESSM ENT PROCEEDINGS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y . 2008-09.LD. ASSESSING OFFICER (IN SHORT AO) WHILE EXAMINING T HE DETAIL OF SHORT TERM CAPITAL GAIN OBSERVED THAT SOME OF THE TRANSAC TIONS HAVE BEEN DONE WITHOUT DEMAT ACCOUNT. HE ACCORDINGLY TREATED THE BROKERS NOTE AS BOGUS AND ASSESSED THE SHORT TERM CAPITAL G AIN AS INCOME FROM OTHER SOURCES. INCOME SHOWN IN THE RETURN BY T HE ASSESSEE WAS ACCEPTED AS ASSESSED INCOME AND NO OTHER ADDITI ON WAS MADE. 4. SUBSEQUENTLY, PENALTY PROCEEDINGS U/S 271(1)(C) INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. AO TAKING SIMILAR VIEW AS TAKEN IN THE COURSE OF ASSESSMENT I MPOSED PENALTY OF RS.45,000/- ON THE ALLEGED SHORT TERM CAPITAL GA IN OF RS.1,36,280/- BEING ASSESSED AS INCOME FROM OTHER S OURCES. THE ASSESSEES APPEAL BEFORE THE LD. CIT(A) BROUGHT NO RELIEF AND THE PENALTY WAS CONFIRMED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. NONE APPEARED ON BEHALF OF THE ASSESSEE DURING THE COURSE OF HEAR ING. HOWEVER, DEEPAK JETHA 3 WRITTEN SUBMISSIONS WERE PLACED ON RECORD IN THE PA PER BOOK RUNNING FROM PAGE 1 TO 38. LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 6. WE HAVE HEARD THE LD. DR AND PERUSED THE WRITTEN SUBMISSION AND DOCUMENTS FILED BY THE ASSESSEE. QUESTION BEFOR E US IS WHETHER BOTH THE LOWER AUTHORITIES WERE JUSTIFIED IN IMPOSI NG/CONFIRMING THE PENALTY OF RS. 45,000/- U/S 271(1)(C) OF THE ACT FO R FURNISHING OF INACCURATE PARTICULARS OF INCOME. 7. WE FIND THAT THE ASSESSEE HAS SHOWN LONG TERM AN D SHORT TERM CAPITAL GAIN IN VARIOUS ASSESSMENT YEARS FROM A.YS. 2005-06 TO 2008-09. FOR THE A.Y. 2008-09, SHORT TERM CAPITAL G AIN OF RS.1,36,280/- WAS SHOWN IN THE ORIGINAL RETURN AS W ELL AS IN THE RETURN FILED IN COMPLIANCE TO NOTICE U/S 153A OF TH E ACT. THERE WAS NO VARIATION OF INCOME DISCLOSED IN BOTH THE RETURN S. DURING THE ASSESSMENT PROCEEDINGS LD. AO WHILE EXAMINING ALLEG ED TRANSACTIONS OF SALE OF EQUITY SHARES OBSERVED THAT FEW TRANSACTIONS WERE NOT ROUTED THROUGH DEMAT ACCOUNT AND THE TRANS ACTIONS TOOK PLACE IN PHYSICAL FORM. BASED ON THIS OBSERVATION T HE LD. AO CONCLUDED THAT THE ASSESSEE HAS TAKEN BOGUS BROKERS NOTE FOR SALE OF SHARES. 8. IT IS ALSO PERTINENT TO NOTE THAT THERE IS NO SP ECIFIC FINDING BY THE AO AS TO WHETHER ANY EFFORTS WERE TAKEN ON HIS PART TO ENQUIRE ABOUT GENUINENESS OF THE BROKERS NOTE AND THE ALLEG ED TRANSACTIONS WHICH TOOK PLACE THROUGH RECOGNIZED STOCK EXCHANGE. ONLY BECAUSE THE TRANSACTION OF SALE OF EQUITY SHARES TOOK PLACE IN PHYSICAL FORM DEEPAK JETHA 4 CANNOT GIVE RISE TO A BELIEF THAT THE ALLEGED TRANS ACTIONS ARE BOGUS OR THE ASSESSEE HAS FURNISHED INACCURATE PARTICULAR S OF INCOME. 9. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTAN CES OF THE CASE OR THE CONSIDERED OPINION THE INFORMATION PROVIDED BY THE ASSESSEE WERE NOT CHALLENGED BY THE AO EXCEPT TREATING THEM AS BOGUS WITHOUT HAVING ANY BASIS. SUCH CONCLUSION CANNOT LE AD TO PROVE THAT THE ASSESSE HAS FURNISHED INACCURATE PARTICULA RS OF INCOME. IN SUCH SITUATION THE AO WAS NOT JUSTIFIED TO IMPOSING THE PENALTY OF RS.45,000/- U/S 271(1)(C) OF THE ACT. WE, THEREFORE , SET ASIDE THE FINDINGS OF LD. CIT(A) AND DELETED THE PENALTY OF R S.45,000/-, IMPOSED U/S 271(1)(C) OF THE ACT. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31.01. 2018. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 31 / 01/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE