SMT. RAM PYARI BAI, KOTA V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, SWAIMADHOPUR

ITA 782/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0542 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 23-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH JCIT DHK
• Section: 143(3); 27

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 782/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. SMT. RAM PYARI BAI W/O SHRI RAMNARAYAN, NEAR BUS STAND DARAH KOTA. CUKE VS. THE ACIT, CIRCLE SWAIMADHOPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ARUPG 0625 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE (DATE WAS NOTED) JKTLO DH VKSJ LS@ REVENUE BY : SHRI JAI SINGH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11.09.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 14/09/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 22 ND AUGUST, 2017 OF LD. CIT (A), KOTA ARISING FROM THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE I.T. ACT FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) DATED 30.06.2011 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JU RISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 2. RS. 4,05,072/- : THE LD. CIT (A) HAS GROSSLY ERR ED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE PENAL TY OF RS. 4,05,072/- U/S 271(1)(C) IMPOSED BY THE AO. THE PEN ALTY SO IMPOSED BY THE LD. AO AND CONFIRMED BY THE CIT (A) IS TOTALLY 2 ITA NO. 782/JP/2017 SMT. RAM PYARI BAI, KOTA. CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITIONS MAY KINDLY BE DELETED IN FULL. 3. THE APPELLANT PRAYS YOUR HONOUR INDULGENCES TO A DD, AMEND OR ALTER OF OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEARING. IT TRANSPIRED FROM THE RECORD THAT THE ASS ESSEE HAS BEEN SEEKING ADJOURNMENTS ON THE EARLIER THREE OCCASIONS AND DUL Y NOTED DOWN THE DATE OF HEARING WHEN THE APPEAL OF THE ASSESSEE WAS ADJOURN ED FOR TODAY VIDE ORDER DATED 19 TH JULY, 2018. DESPITE THE DATE OF HEARING WAS NOTED DOWN, NOBODY WAS APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, WE PROPOSE TO HEAR AND DISPOSE OFF THIS APPEAL EX PARTE. 3. WE HAVE HEARD THE LD. D/R AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. DURING THE ASSESSMENT COMPLETED UNDER SECTIO N 143(3) OF THE ACT, THE AO MADE AN ADDITION OF RS. 13,14,590/- ON ACCOUNT OF C ASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THE SAID ADDITION HAS ATTAINED TH E FINALITY. THE AO IN THE MEANTIME INITIATED THE PROCEEDINGS UNDER SECTION 27 1(1)(C) AND LEVIED THE PENALTY OF RS. 4,05,072/- BEING 100% OF TAX SOUGHT TO BE EVADE D VIDE ORDER DATED 30.06.2011. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) AND FILED THE WRITTEN SUBMISSIONS WHICH HAS BEEN REPRODUCED BY TH E LD. CIT (A) AS UNDER :- 1.1. ADDITION TO INCOME WAS WITHOUT ANY ANALYSIS OR ANY BASIS. WHOLE OF THE AMOUNT DEPOSITED WAS ADDED BY THE LD. AO TO THE INCOME OF THE ASSESSEE WITHOUT LOOKING INTO THE NATURE OF THE TRANSACTION. FURTHER, THE ASSESSEE ALREADY HAD CAPITGAL IN THE B ANK ACCOUNT TO THE TUNE OF RS. 6.11 LAKHS IN THE FINANCIAL YEAR 2003-0 4, WHICH WAS ALSO NOT 3 ITA NO. 782/JP/2017 SMT. RAM PYARI BAI, KOTA. GIVEN ANY WEIGHTAGE AND THE ADDITION, WAS MADE IN A HURRIED MANNER AND ONLY ON ASSUMPTION BASIS. WHEN THE ADDITION CAN NOT BE PROVED ON THE BASIS OF FACTS THAT IT WAS ACTUALLY EARNED AND CONCEALED BY THE ASSESSEE, NO PENALTY CAN BE LEVIED. 1.2. THE PENALTY IN THIS CASE HAS LEVIED UNDER THE MAIN SECTION 271(1)(C) AND NOT UNDER ANY EXPLANATION THERETO. A S THE PENALTY HAS BEEN LEVIED UNDER THE MAIN PROVISIONS OF SECTION 27 1(1)(C), THE BURDEN IS ON THE DEPARTMENT TO PROVE THAT THE ASSESSEE HAS CONCEALED THE INCOME AND CONTENDED THAT NOTHING WAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT TO PROVE THE CONCEALMENT. THE ASSES SING OFFICER HAS NOT MADE ANY EFFORTS TO SHOW THAT THE DISPUTED AMOU NT REPRESENTED THE INCOME OF THE ASSESSEE AND THAT THE ASSESSEE HA S CONSCIOUSLY CONCEALED THE PARTICULARS OF HIS INCOME OR DELIBERA TELY FURNISHED INACCURATE PARTICULARS ABOUT THE SAME. PENALTY CAN NOT BE LEVIED SIMPLY BECAUSE THE ADDITIONS ARE SUSTAINED IN THE QUANTUM PROCEEDINGS. THE PENALTY PROCEEDINGS ARE QUASI CRIMINAL AND PENAL IN NATURE AND CONTENDED THAT IT WAS NECESSARY FOR THE ASSESSING O FFICER TO ESTABLISH THE MENS REA ON THE PART OF THE ASSESSEE IN SUCH CA SES BEFORE LEVYING THE PENALTY UNDER SECTION 271(1)(C) ESPECIALLY WHEN THE EXPLANATION TO SECTION 271(1)(C)IS NOT INVOKED. THUS THE ASSESSEE HAS CONTENDED THAT THE AO HAS NOT GIVEN THE WEIGHTAGE OF THE BALANCE IN THE CAPITAL ACCOUNT OF RS. 6,11,000/- WH ILE MAKING THE ADDITION ON ACCOUNT OF CASH DEPOSIT. THE ASSESSEE HAS ALSO RAI SED THE CONTENTION THAT THE AO HAS TO ESTABLISH THE MENS REA TO INVOKE THE PROVISI ONS OF SECTION 271(1)(C) OF THE ACT. THUS THE ASSESSEES MAIN CONTENTION BEFORE TH E LD. CIT (A) WAS THAT MERE ADDITION IN THE ASSESSMENT PROCEEDINGS WOULD NOT AU TOMATICALLY JUSTIFY THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF TH E ACT. WE FIND THAT ALL THESE CONTENTIONS OF THE ASSESSEE ARE NOT SUPPORTED BY TH E FACTS AND EXPLANATION OF THE 4 ITA NO. 782/JP/2017 SMT. RAM PYARI BAI, KOTA. ASSESSEE BEING SOURCE OF DEPOSIT MADE IN THE BANK A CCOUNT. THE ASSESSEE THOUGH SUBMITTED THAT THERE WAS A CAPITAL ACCOUNT BALANCE OF RS. 6,11,000/-, HOWEVER, THE ASSESSEE HAS FAILED TO EXPLAIN THAT HOW THE SAID AM OUNT CAN BE A SOURCE OF DEPOSIT MADE DURING THE YEAR UNDER CONSIDERATION. ACCORDIN GLY, WHEN THERE WAS NO EXPLANATION WHATSOEVER REGARDING THE DEPOSIT OF MOR E THAN RS. 13 LAKHS IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE YEAR UNDER CONSI DERATION, THEN THE ASSESSEE CANNOT GET THE BENEFIT OF THE LEGAL PROPOSITION. TH ERE IS NO DISPUTE THAT THE ADDITION MADE IN THE ASSESSMENT WOULD NOT IPSO FACTO LEAD TO LEVY OF PENALTY. HOWEVER, WHEN THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION AS TO WHY THE AMOUNT DEPOSITED IN THE BANK ACCOUNT SHOULD NOT BE CONSIDERED AS CON CEALMENT OF THE INCOME MUCH LESS THE EXPLANATION FURNISHED BY THE ASSESSEE BEIN G BONAFIDE ONE, THE PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) IS JUSTIFI ED. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF THE AUTHOR ITIES BELOW, QUA THIS ISSUE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 14/09/ 2018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 14/09/2018. DAS/ 5 ITA NO. 782/JP/2017 SMT. RAM PYARI BAI, KOTA. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-SMT. RAM PYARI BAI, KOTA. 2. THE RESPONDENT THE ACIT, CIRCLE-SAWAIMADHOPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 782/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 782/JP/2017 SMT. RAM PYARI BAI, KOTA.