Ashok kumar Dhall & Sons, V. Income Tax Officer, Ludhiana

ITA 853/CHANDI/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9881 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 14-06-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 24-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Gift; Accommodation entries
• Section: 133(6); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 853/CHD/2015 ASSESSMENT YEAR: 1999-2000 SH. ASHOK KUMAR DHALL & SONS,HUF, VS THE IT O, VILLAGE - HABETPUR, WARD1(1), TEH & DISTT. JIND. LUDHIANA. PAN: ABMPD5924D & ITA NO. 854/CHD/2015 ASSESSMENT YEAR: 1999-2000 SH. ASHOK KUMAR DHALL, VS THE ITO, D-42, PHASE-V, WARD1(1), FOCAL POINT, LUDHIANA. LUDHIANA. PAN: ABMPD5924D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SARABJIT GARG RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 14.06.2016 DATE OF PRONOUNCEMENT : 16.06.2016 O R D E R BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEAL S)-I LUDHIANA DATED 30.09.2015 FOR ASSESSMENT YEAR 2 1999-2000 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE IS SUE IS IDENTICAL IN BOTH CASES EXCEPT THE NAME OF DONOR IS DIFFERENT. THEREFORE, BOTH APPEALS ARE DECIDED AS UNDER. (ITA 853/2015 (ASHOK KUMAR DHALL & SONS, HUF) 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE HUF FILED THE RETURN OF INCOME ON 31.03.2000 DECLAR ING INCOME AT RS. 1,52,850/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM INVESTIGATION WING, DELHI REGARDING ACCOMMODATION ENTRIES GIVEN TO VARI OUS ASSESSEES INCLUDING THE ASSESSEE. THE ASSESSMENT W AS REOPENED UNDER SECTION 147 OF THE ACT. THE ASSESSE E IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT STA TED THAT RETURN ALREADY FILED MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER, AS PER INFORMATION RECEIVED FROM THE INVESTIGATION WING, DELHI FOUND THAT ASSESSEE HAD TAKEN AN ACCOMMODATION ENTRY OF RS. 1,50,300/- FROM ENTRY OPERATOR NAMELY SHRI NEERAJ JAIN OF CHANDNI CHOWN, DELHI THROUGH THE CORPORATION BANK, KAMLA NAGAR, NEW DELHI. THE SAID DRAFT WAS CLEARED THROU GH 3 CORPORATION BANK, LUDHIANA AND FINALLY DEPOSITED I N THE BANK ACCOUNT OF THE ASSESSEE AT STATE BANK OF INDIA, MILLER GANJ, LUDHIANA. THE ASSESSEE WAS CONFRONTED OF THIS FACT OF RECEIPT OF ACCOMMODATION ENTRY ALONGWITH COMMISSION PAID. THE ASSESSEE INITIALLY DENIED ANY BANK ACCOUNT WITH CORPORATION BANK, LUDHIANA AND ANY ACCOMMODATION ENTRY TAKEN. HOWEVER, THE ASSESSEE IN HIS LETTER BEFORE ASSESSIN G OFFICER SUBMITTED THAT IN ORDER TO BUY PEACE WITH T HE DEPARTMENT, ASSESSEE OFFERED TO SURRENDER THE AMOUN T IN QUESTION SUBJECT TO NO PENALTY U/E 271(1)(C) OF THE ACT. 3(I) THE ASSESSING OFFICER NOTED THAT ASSESSEE HA S MADE A CONTRARY STATEMENT DENYING ANY GIFT OR ACCOMMODATION ENTRY RECEIVED IN THE MATTER. INFORMATION UNDER SECTION 133(6) OF THE ACT WAS, THEREFORE, CALLED FOR SUBSEQUENTLY FROM THE CORPORA TION BANK, LUDHIANA. THE BANK HAS INTIMATED THAT CORPORATION BANK, KAMLA NAGAR, NEW DELHI ISSUED A DRAFT IN THE NAME OF THE ASSESSEE OF RS. 1,50,000/- WHICH WAS COLLECTED THROUGH STATE BANK OF INDIA, LUDHIANA. THE ASSESSEE HUF WAS BENEFICIARY OF THE DRAFT. THE ASSESSING OFFICER CONFRONTED THESE FACT S TO THE ASSESSEE TO SHOW CAUSED WHY THE ADDITION OF RS. 1,53,300/- ON ACCOUNT OF BOGUS ENTRY (+) DD CHARGES AND COMMISSION PAID SHOULD NOT BE MADE AS UNDISCLOSED INCOME OF THE ASSESSEE IN THE ASSESSMEN T 4 YEAR UNDER APPEAL. THE LD. COUNSEL FOR THE ASSESSE E INTIMATED THE ASSESSING OFFICER THAT ASSESSEE IS ON TOUR AND DID NOT ATTEND THE PROCEEDINGS AND NO COPY OF T HE BANK ACCOUNT WAS ALSO PRODUCED. RECORD REVEALED TH AT GIFT WAS RECEIVED FROM SHRI NEERAJ JAIN, DELHI WHIC H IS NOT EXPLAINED AND WAS ALSO NOT REFLECTED IN THE RET URN OF INCOME BY THE ASSESSEE. THE ASSESSING OFFICER, ON THE BASIS OF THE EVIDENCES ON RECORD AND SURRENDER MADE BY THE ASSESSEE, MADE ADDITION OF RS. 1,53,300 /- ON ACCOUNT OF BOGUS GIFT UNDER SECTION 69A OF THE A CT. PENALTY PROCEEDINGS WERE ALSO INITIATED FOR FURNISH ING INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER VIDE SEPARATE ORDER LEVIED THE PENALTY UNDE R SECTION 271(1)(C) OF THE ACT. THE LD. CIT(APPEALS) VIDE IMPUGNED ORDER, CONFIRMED LEVY OF PENALTY AND DISMISSED APPEAL OF THE ASSESSEE. 4. AFTER HEARING RIVAL CONTENTIONS, I DO NOT FIND A NY MERIT IN THE APPEAL OF THE ASSESSEE. THE LD. COUNS EL FOR THE ASSESSEE MERELY CONTENDED THAT ASSESSING OFFICE R HAS NO JURISDICTION OVER THE ASSESSEE, HOWEVER, HE HAS ADMITTED THAT ASSESSEE HAS NOT FILED ANY OBJECTION OF JURISDICTION BEFORE ASSESSING OFFICER AT ASSESSMENT STAGE. THE ASSESSMENT PROCEEDINGS ARE ADMITTEDLY COMPLETED AND FINALIZED BECAUSE THE ASSESSEE SURRENDERED THE AMOUNT IN QUESTION. THE LD. COUNSE L FOR THE ASSESSEE FURTHER SUBMITTED THAT EVEN AFTER THIS ADDITION, THE ASSESSEE PREFERRED APPEAL BEFORE ITAT 5 CHANDIGARH BENCH ON QUANTUM WHICH HAVE BEEN DISMISSED VIDE ORDER DATED 22.10.2010 IN ITA 186/2010. COPY OF THE ORDER IS PLACED ON RECORD. SINCE NO OBJECTION TO JURISDICTION OF THE ASSESSING OFFICER WAS TAKEN BEFORE ASSESSING OFFICER BEFORE FINALIZATION OF THE ASSESSMENT THEREFORE, SUCH OBJE CTION IS NOT TENABLE AT THIS STAGE. THE CONTENTION OF TH E ASSESSEE IS, THEREFORE, REJECTED. 4(I) FURTHER CONTENTION OF LD. COUNSEL FOR THE ASSE SSEE WAS THAT ASSESSEE HAS SURRENDERED THE AMOUNT IN QUESTION SUBJECT TO NO PENALTY. SUCH PLEA IS NOT TENABLE IN VIEW OF THE JUDGEMENET OF THE HON'BLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. 358 ITR 593 IN WHICH IT WAS HELD THAT THERE IS NO VOLUNTARY SURRENDER CONCEPT AND IN SUCH SITUATION, PENALTY SH ALL HAVE TO BE LEVIED. IN THE PRESENT CASE, SPECIFIC INFORMATION WAS RECEIVED BY THE DEPARTMENT FROM INVESTIGATION WING THAT ASSESSEE HAS RECEIVED A BOG US GIFT. ALL MATERIAL COLLECTED FROM THE BANKS WERE CONFRONTED TO THE ASSESSEE AND ASSESSEE WAS NOT ABL E TO EXPLAIN THE GENUINENESS OF THE GIFT IN THE MATTE R. THE ASSESSEE, THEREFORE, WHEN CONFRONTED WITH ALL T HE FACTS, SURRENDERED THE AMOUNT IN QUESTION. THEREFO RE, IT IS A CLEAR CUT CASE OF RECEIVING BOGUS GIFT ON A CCOUNT OF ACCOMMODATION ENTRY. THE FINDING OF FACT HAS AL SO BEEN CONFIRMED UPTO THE STAGE OF TRIBUNAL. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF DEEP 6 CHAND 336 ITR 292 CONFIRMED THE LEVY OF PENALTY WHE N GIFT WAS FOUND BOGUS. 5. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS A FIT CASE OF LEVY OF PENALTY UNDER SEC TION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME BECAUSE THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME, DID NOT DISCLOSE THE REC EIPT OF GIFT. IT IS WELL SETTLED LAW THAT CONCEALMENT O F PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME, SHALL HAVE TO BE SEEN IN THE LIGHT OF FACTS DISCLOSED IN ORIGINAL RETURN OF INCOME FIL ED BY THE ASSESSEE. SINCE THE ASSESSEE IN THE ORIGINAL R ETURN OF INCOME DID NOT DISCLOSE THE ABOVE AMOUNT IN QUESTION AND IT WAS LATER ON FOUND THAT THE INVESTIGATION WING FOUND BOGUS GIFT RECEIVED BY ASSESSEE, THEREFORE, IT IS A FIT CASE OF LEVY OF PE NALTY UNDER SECTION 271(1)(C) OF THE ACT. NO INFIRMITY H AVE BEEN POINTED OUT IN THE ORDERS OF THE AUTHORITIES B ELOW IN LEVYING OR CONFIRMING THE PENALTY. I, THEREFORE , DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. SAME IS, ACCORDINGLY, DISMISSED. ITA 854/2015 (ASHOK KUMAR DHALL ) 6. THE ISSUE IS SAME AS HAVE BEEN CONSIDERED IN ITA 853/2015, THEREFORE, FOLLOWING THE ORDER AND REASON S 7 FOR DECISION IN ITA 853/2015, I DISMISS THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. 8. IN THE RESULT, BOTH APPEALS OF DIFFERENT ASSESSE ES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 16 TH JUNE, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD