Shri Tejinder Singh , Bhopal V. Addl.CIT R-1, Bhopal, Bhopal

ITA 836/Ind/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6245 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-05-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V J BORICHA
• Assessee Lawyers: N D PATWA A RS
• Keywords: Loose papers
• Section: 143(3); 271D; 271E; 148

Judgement Text

[ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.835 & 836/IND/2017 ASSESSMENT YEAR: 2011-12 & 2012-13 SHRI TEJINDER SINGH E-1/103, ARERA COLONY BHOPAL (M.P.) / VS. ADDITIONAL COMMISSIONER IT, RANGE-1 BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. ADOPS9169H APPELLANT BY SHRI ASHISH GOYAL & SHRI N.D. PATWA, A.RS RESPONDENT BY SHRI V.J. BORICHA, D.R. DATE OF HEARING: 06.08.2019 DATE OF PRONOUNCEMENT: 07.08.2019 / O R D E R PER KUL BHARAT, J.M: THESE TWO APPEALS BY THE ASSESSEE PERTAINING TO THE ASSESSMENT YEARS 2011-012 & 2012-13 AGAINST CONSOLIDATED ORDER OF THE LD. CIT(A)-1, BHOPAL DATED [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 2 20.9.2017 WHEREBY THE LD. CIT HAS CONFIRMED LEVY OF PENALTY U/S 271E & 271D OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). FIRST WE TAKE UP TH E ASSESSEES APPEAL IN ITA NO.835/IND/2017. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEALS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF LEARNED A.O. ARE BAD AND OPPOSED TO FACTS, EQUITY AND LAW AND ARE, THEREFORE, UNSUSTAINABLE LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A SCRUTINY ASSESSM ENT U/S 143(3) OF THE ACT AND WRONGLY ASSUMED LOANS AND ADVANCE OF RS.10.00 LACS FROM L.N. GUPTA, WITHOUT REASON AND OPEN THE CASE U /S 148 OF THE ACT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED A.O. ERRED IN IMPOSING PENALTY OF SECTI ON 271D OF RS.10.00 LACS WITHOUT APPROPRIATE REASONS AND JUSTI FICATION. 4. BECAUSE THE LD. COMMISSIONER IT (APPEALS) HAS DISMI SSED THE APPEAL OF ASSESSEE AND CONFIRMED THE ADDITIONS OF R S.10,00,000.00 LACS AS CASH DEPOSITS WITHOUT APPROPRIATE OPPORTUNI TY OF HEARING. 5. THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. BRIEFLY STATED FACTS ARE THAT A SEARCH & SEIZURE OPERATION WAS CARRIED OUT AT THE RESIDENTIAL PREMISES O F GUPTA SONS GROUP OF CASES U/S 132(1) OF THE INCOME TA X ACT, 1961 (HEREINAFTER CALLED AS THE ACT) ON 28.10.2 010. DURING THE COURSE OF SEARCH AT RESIDENTIAL PREMISES O F SHRI [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 3 L.N. GUPTA AT E-1/55, ARERA COLONY, BHOPAL, LOOSE PAPERS LPS PAGES 82 AND 83 WERE FOUND AND SEIZED. IT WAS OBSERVED BY THE A.O. THAT AS PER THE DOCUMENTS SO SEI ZED, THE ASSESSEE HAD TAKEN UNSECURED LOAN OF RS.10 LAKHS F ROM SHRI ANIL GUPTA IN CASH ON 24.10.2010. FURTHER, THE ASSESSEE DEPOSITED A SECURITY CHEQUE DATED 24.4.2011 OF ANDHRA BANK WITH SHRI ANIL GUPTA. THE LOAN WAS TO BE REPAID ON 24.4.2011. THE CASE OF THE ASSESSEE WAS REOPENED AFTER RECORDING THE REASONS. DURING THE COU RSE OF ASSESSMENT, THE ASSESSEE WAS ASKED TO EXPLAIN THE TAKING OF LOAN AND REPAYMENT OF THE SAME. THE A.O. AFTER CONSIDERING THE SUBMISSIONS, CAME TO THE CONCLUSION THAT THE ASSESSEE HAD RECEIVED AN UNSECURED LOAN OF RS.10 LAKHS FROM SHRI ANIL GUPTA DURING THE FINANCIAL YEAR 201 0- 11 IN VIOLATION OF PROVISION OF SECTION 269SS OF THE ACT. THEREFORE, A NOTICE U/S 271D OF THE ACT WAS ISSUED AND AFTER CONSIDERING THE SUBMISSIONS, THE A.O. LEVIED P ENALTY U/S 271D OF THE ACT OF RS.10 LAKHS. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISS IONS SUSTAINED THE PENALTY. BEFORE US, LD. COUNSEL FOR TH E [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 4 ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WR ITTEN SUBMISSIONS WHICH ARE REPRODUCED AS UNDER: [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 5 [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 6 4. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. LD. D.R. RELIED ON THE PROVISIONS OF SECTION 271D OF THE ACT AND SUBMITTED THAT THERE IS NO AMBIGUITY EITHER ON FACTS OR ON LAW. THE REFORE, THE A.O. WAS JUSTIFIED IN IMPOSING THE PENALTY. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. DURING THE COURSE OF HEARI NG, LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THE ASSES SEE HAS NOT CHALLENGED THE ADDITION OF THIS AMOUNT. THEREF ORE, THE FACTUM OF OBTAINING LOAN IS PROVED. CONSIDERING T HE RIVAL SUBMISSIONS AND THE FACTS AVAILABLE ON RECORD, THE ASSESSEE COULD NOT CONTROVERT THE FINDING OF THE AUTH ORITIES BELOW IN RESPECT OF THE EVIDENCES GATHERED DURING TH E SEARCH WHICH PROVES RECEIPT OF LOAN IN CASH, THEREFORE , WE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDING OF THE AUTHORITIES BELOW. THE GROUNDS RAISED IN THIS APPEAL AR E [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 7 DISMISSED. APPEAL OF THE ASSESSEE IN ITA NO.835/IND/ 2017 IS DISMISSED. 6. NOW COMING TO ITA NO.836/IND/2017. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF LEARNED A.O. ARE BAD AND OPPOSED TO FACTS, EQUITY AND LAW AND ARE, THEREFORE, UNSUSTAINABLE LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A SCRUTINY ASSESSM ENT U/S 143(3) OF THE ACT AND WRONGLY ASSUMED LOANS AND ADVANCE OF RS.10.00 LACS FROM L.N. GUPTA, WITHOUT REASON AND OPEN THE CASE U /S 148 OF THE ACT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED A.O. ERRED IN IMPOSING PENALTY OF SECTI ON 271E OF RS.10.00 LACS WITHOUT APPROPRIATE REASONS AND JUSTI FICATION. 4. BECAUSE THE LD. COMMISSIONER IT (APPEALS)-I HAS DIS MISSED THE APPEAL OF ASSESSEE AND CONFIRMED THE ADDITIONS OF R S.10,00,000.00 LACS AS CASH DEPOSITS WITHOUT APPROPRIATE OPPORTUNI TY OF HEARING. 5. THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 7. THE FACTS ARE IDENTICAL AS WERE IN ITA NO.835/IND/2017 EXCEPT THAT IN THE PRESENT CASE IT IS INFERRED THAT THE REPAYMENT OF LOAN WAS MADE IN CASH. BEFORE THE A.O., IT WAS SUBMITTED BY THE ASSESSEE THAT THERE IS NO EVIDENCE SUGGESTING THAT THE LOAN WAS REPAI D IN [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 8 CASH. HOWEVER, THE A.O. DID NOT ACCEPT THE CONTENTIO N OF THE ASSESSEE AND PROCEEDED TO IMPOSE PENALTY U/S 271E OF THE ACT. THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO SUSTAINED THE IMPOSITION OF PENALTY. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY HAS BEEN LEVIED PURELY ON THE GUESS WORK. HE RELIED ON THE PROVISIONS OF SECTION 271E OF THE ACT AND ALSO THE PROVISIONS OF SECTION 269T. HE SUBMITTED THAT THE P ENALTY CAN BE LEVIED ONLY IN THE EVENT WHERE THE ASSESSEE HA S REPAID THE LOAN IN CASH. IT IS NOT THE CASE WHERE THE AUTHORITIES BELOW HAVE FOUND ANY EVIDENCE OF MAKING REPAYMENT OF LOAN IN CASH. LD. D.R. OPPOSED THE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 9 OF THE AUTHORITIES BELOW. WE FIND THAT THE LD. CIT(A ) HAS DECIDED THE ISSUE IN PARAS 4, 5 & 6 OF HER ORDER AS UN DER: [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 10 9. WE FIND MERIT INTO THE CONTENTION OF LD. A.R. TH AT THERE IS NOTHING ON RECORD SUGGESTING THAT THE LOAN AMOUNT W AS REPAID IN CASH BY THE ASSESSEE. THE REVENUE HAS CONSIDERED THE TERMS OF LOAN AS IF THE SAME HAS BEEN R EPAID IN CASH. THERE IS NO RECEIPT BY THE PERSON WHO HAS GIVEN LOAN TO THE ASSESSEE ACCEPTING OR ACKNOWLEDGING THE REPAYMENT OF THE LOAN IN CASH BY THE ASSESSEE. EVEN IN THE STATEMENT RECORDED BY THE REVENUE AUTHORITIES, NOTHIN G OF THIS SORT IS STATED BY SHRI L.N. GUPTA, FATHER OF SH RI ANIL [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 11 GUPTA. THEREFORE, UNDER THE FACTS OF THE PRESENT CAS E AND IN THE ABSENCE OF THE PROOF THAT ASSESSEE HAD MADE REPAYMENT OF LOAN IN CASH, IN OUR CONSIDERED VIEW, IMPOSITION OF PENALTY U/S 271E WOULD NOT BE JUSTIFIE D. THE A.O. OUGHT TO HAVE BROUGHT SOME MATERIAL SUGGESTING TH AT THE ASSESSEE HAS MADE REPAYMENT OF LOAN IN CASH, THEREFORE, WE HEREBY DIRECT THE A.O. TO DELETE THE PENALTY. THEREFORE, THE APPEAL OF THE ASSESSEE IN ITA NO.836/IND/2017 IS ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.835/IND/2017 IS DISMISSED AND THE APPEAL OF THE ASSESSEE IN ITA NO.836/IND/2017 IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 07 . 08.2019. SD/ - (MANISH BORAD) SD/ - (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 07/08/2019 VG/SPS [ITA NOS.835 & 836/IND/2017] [SHRI TEJINDER SINGH, BHOPAL] 12 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE