The Jt. CIT, Range-6, Ahmedabad V. Smt. Gitaben Mukeshbhai Prajapati, Ahmedabad

ITA 83/AHD/2016

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9790 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-12-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 11-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Section: 143(3); 271D; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ITO, WARD - 3(2)(7), AHMEDABAD (APPELLANT) VS GITABEN MUKESHBHAI PRAJAPATI, PROP. RAJAT COMMUNICATIONS, 6, NILGIRI PARK SOCIETY, SMRUTI MANDIR ROAD, GHODASAR, AHMEDABAD - 380050 PAN: ALVPP2930Q (RESPONDENT) REVE NUE BY : S H RI LALIT P. JAIN , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 09 - 12 - 2 019 DATE OF PRONOUNCEMENT : 18 - 12 - 2 019 / ORDER P ER : AMARJIT SING H, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2011 - 12 , ARI SES FROM ORDER OF THE CIT(A) - 3, AHMEDABAD DATED 02 - 11 - 2 015 , IN PROCEEDINGS UNDER SECTION 271D OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 83 / A HD/20 16 A SS ESSMENT YEAR 2011 - 12 I.T.A NO. 8 3 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. SMT. GITABEN MUKESHBHAI PRAJAPATI 2 2. THE SOLITARY GROUND OF APPEAL OF THE R EVENUE IS AGAINST THE DECISION OF LD. CIT(A) IN DELETING THE PENALTY OF RS. 98 , 02 , 000/ - LEVIED U/S. 271D OF THE ACT. 3. IN THIS CASE, THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 2 , 90 , 170/ - WAS FILED ON 26 TH SEP, 2011. THE ASSESSMENT U/S. 143(3) OF THE ACT WAS FINALIZED ON 21 ST MARCH, 2014 DETERMINING THE TOTAL INCOME AT RS. 38 , 89 , 030/ - . DURING THE COURSE OF ASSES SMENT, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS MADE TRANSACTION OF DEPOSIT OTHER THAN ACCOUNT PAYEE CHEQ UE/DRAFT WITH HER HUSBAND SHRI M UKESH PRAJAPAT I , PROPRIETOR OF M/S. RAJAT SALES IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SS OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS GIVEN PROPOSAL FOR INITIATING PROCEEDINGS U/S . 271D OF THE ACT TO THE JOINT COMMISSIONER OF INCOME T AX. DURING THE COURSE OF PENALTY PROCEEDINGS U/S. 271D OF THE ACT , THE ASSESSING OFFICER HAS EXPLAINED THAT SHE WAS PROPRIETOR OF M/S RAJAT COMMUNICATION WHICH RUNS THE BUSINESS OF SALE OF PRE - PAID MOBILE RECHARGE VOUCHERS OF M/S RAJAT COMMUNICATI ON INDIA LTD. WHEREAS HER HUSBAND MR. MUKESH PRAJAPATI WAS THE PRO PRIETOR OF M/S. RAJAT SALE AND WAS ALSO IN THE BUSINESS OF SALE OF PRE - PAID MOBILE RECHARGE VOUCHER S OF M/S RELIANCE COMMUNICATION LTD. THE ASSESSEE HAS FURTHER STATED THAT HER PROPRIETAR Y CONCERN DEALS IN RECHARGE VOUCHER OF GSMA TECHNOLOGY AND HER HUSBAN D PROPRIETARY CONCERN DEALS IN RECHARGE VOUCHER OF CDMA TECHNOLOGY . IT WAS ALSO STATED THAT BOTH THE PROPRIETARY CONCERNS WERE OPERATING FOR THE SAME PRINCIPAL RELIANCE COMMUNICATION LT D. THE RE FORE, CASH COLLECTION OF RAJAT SALES WAS SOME TIME S DEPOSITED INTO THE BANK OF M/S. RAJAT COMMUNICATION AGAINST WHICH RAJAT COMMUNICATION MADE PAYMENT TO R ELIANCE COMMUNICATION LTD. ON I.T.A NO. 8 3 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. SMT. GITABEN MUKESHBHAI PRAJAPATI 3 BEHALF OF M/S. RAJAT SALES. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSEE HAS SUBMITTED THE AFFIDAVITS OF HERSELF AND HIS HUSBAND CITING THE ABOVE FACTS THE ASSESSEE HAS EXPLAINED THAT CASH DEPOSITED IN THE BANK ACCOUNT WAS NOT IN THE NATURE OF LOAN AS ENVISAGED U/S. 269SS OF THE ACT. SINCE THE TRANSACTI ONS WERE IN THE NATURE OF CURRENT ACC OUNT TRANSACTION BECAUSE OF COMMON BUSINESS NATURE O F BOTH THE PROPRIETARY CONCERNS, HOWEVER , THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND STATED THAT THE ASSESSEE HAS NOT PROVED REASONABLE C AUSE FOR NOT MAKING COMPLIANCE WITH THE PROVISION OF SECTION 269SS OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS. 98 , 02 , 000/ - U/S. 271D OF THE ACT. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE CONSIDERING THAT BOTH THE CONCERNS WERE FAMILY CONCERNS AND ENGAGED IN THE SIMILAR NATURE OF BUSINESS AND WAS RUNNING FROM THE SAME PREMISES. 5. WE HAVE HEARD LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON R ECORD AND NOTICED THAT ASSESSEE HAS FURNISHED RELEVANT SUPPORTING DOCUMENT S BEFORE THE LOWER AUTHORITIES IN THE FORM OF CERTIFICATE FROM THE PRINCIPAL M/S. RELIANCE COMMUNICATION INDIA LTD. STATING THE FACT THAT PROPRIETARY CONCERN OF THE ASSESSEE M/S. R AJAT COMMUNICATION DEALS IN RECHARGING VOUCHER OF GSM A TECHNOLOGY AND PROPRIETARY CONCERN OF HER HUSBAND M/S. RAJAT SALES DEALS IN RECHARGE OF CDMA TECHNOLOGY . IT WAS ALSO NOTICED THAT BOTH THE CONCERNS WERE OPERATING FOR THE SAME PRINCIPAL AND MANY OF TH E CUSTOMERS WERE COMMON AND BOTH THE CONCERNS WERE OPERATED I.T.A NO. 8 3 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. SMT. GITABEN MUKESHBHAI PRAJAPATI 4 THROUGH COMMON SALES STAFF AND CASH COLLECTION OF M/S. RAJAT SALES WAS SOME TIMES DEPOSITED INTO BANK ACCOUNT OF M/S. RAJAT COMMUNICATIO N AGAINST WHICH THE PAYMENT WAS MADE TO RELIANCE C OMMUNICATION INDIA L TD ON BEHALF OF M/S. RAJAT SALES. THE ASSESSEE HAS FURNISHED THE AFFIDAVITS OF HERSELF AND HER HUSBAND ALONG WITH RELEVANT DOCUMENTARY EVIDENCES. THE ASSESSING OFFICER HAS FAILED TO CONTRADICT THE RELEVANT MATERIAL FURNISHED BY THE ASSESSEE THEREFORE, WE DO NOT INTERFERE IN THE DECISION OF LD. CIT(A). ACCORDINGLY, THIS APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 18 - 12 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 18 /12 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,