M/s. Deoyani Movies Pvt.Ltd, Aurangabad V. Income-tax Officer, Ward - 1 (1), Aurangabad

ITA 873/PUN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9006 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.873/PUN/2019 / ASSESSMENT YEAR : 2009-10 M/S. DEOYANI MOVIES PVT. LTD., CHATE HOUSE, N-2, CIDCO, AURANGABAD PAN : AABCD2215Q VS. ITO, WARD-1(1), AURANGABAD APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-2, AURANGABAD ON 19-03-2019 CON FIRMING PENALTY OF RS.1,38,772/- IMPOSED BY THE ASSESSING OFFICE R (AO) U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E MADE CASH DEPOSITS IN ITS BANK ACCOUNT DURING THE YEAR TO THE TUNE OF RS.1,12,93,100/-. THE AO FOUND THAT THE CASH SALES WER E SHOWN ASSESSEE BY NONE REVENUE BY SHRI S.P. WALIMBE DATE OF HEARING 29-07-2020 DATE OF PRONOUNCEMENT 31-07-2020 ITA NO.873/PUN/2019 M/S. DEOYANI MOVIES PVT. LTD., 2 ONLY AT RS.1,07,99,000/-. ON BEING CALLED UPON TO EXPLAIN WHEREFROM THE REMAINING AMOUNT OF RS.4,94,100/- WAS DEP OSITED, THE ASSESSEE SUBMITTED THAT SOME OF THE CASH WITHDRAWALS OR P ART THEREOF WAS RE-DEPOSITED IN THE BANK. THE AO MADE ADDITION BY OBSERVING THAT THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE F OR THE DIFFERENTIAL AMOUNT. IT IS WITH REFERENCE TO THIS AMOUNT OF AD DITION TO THE TUNE OF RS.4,94,100/- THAT THE INSTANT PENALTY OF RS.1,38,772/- WAS IMPOSED, WHICH CAME TO BE AFFIRMED IN THE FIRST APPEAL. 3. WE HAVE HEARD THE LD. DR THROUGH VIRTUAL COURT AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPE ARANCE FROM THE SIDE OF THE ASSESSEE. IT IS SEEN THAT THE ASSESSE E IS A PRIVATE LIMITED COMPANY AND HAS MAINTAINED REGULAR BOOKS OF ACCOUNT, WHICH IS BORNE OUT FROM THE AUDITED BALANCE SHEE T, WHOSE COPY HAS BEEN PLACED IN THE PAPER BOOK. THE PENALTY IS B ASED ANENT TO THE ADDITION OF RS.4,94,100/- WHICH WAS MADE BY TH E AO ON THE GROUND THAT THE CASH DEPOSITS IN THE BANK AT RS.1.12 CRORE AND ODD WERE MORE THAN THE CASH SALES AT RS.1.07 CRORE AND ODD. THERE IS NO DISPUTE ON THE FACT, WHICH IS ALSO EVIDENT FROM THE STATEMENT OF FACTS FILED BEFORE THE LD. CIT(A), THAT THE CASH ITA NO.873/PUN/2019 M/S. DEOYANI MOVIES PVT. LTD., 3 DEPOSITS IN THE BANK WAS DULY RECORDED IN THE CASH BOOK AND NOWHERE THE AO POINTED OUT ANY SORT OF NEGATIVE CASH BALANC E IN THE CASH BOOK. WE FAIL TO APPREHEND ANY REASON FOR THE DISALLOWANCE AT THE FIRST INSTANCE FOR RAISON DETRE THAT THE ASSESSEE WAS MAINTAINING BOOKS OF ACCOUNT AND THE CASH DEPOSITED IN TH E BANK TO THE TUNE OF RS.1.12 CRORE AND ODD WAS DULY REFLE CTED IN THE BOOKS OF ACCOUNT. IT IS BASIC THAT ONCE CASH DEPOSIT ENTR IES ARE RECORDED IN THE BOOKS OF ACCOUNT, THERE CAN BE NO QUESTIO N OF TREATING SUCH AMOUNT AS UNEXPLAINED UNLESS AND UNTIL THE AO FINDS A NEGATIVE CASH BALANCE IN THE BOOKS OF ACCOUNT ON ANY DA TE ANTERIOR TO THAT. HERE IS A CASE IN WHICH THE ASSESSEE DEP OSITED CERTAIN CASH OUT OF SALE PROCEEDS, WITHDREW SOME PART AND RE- DEPOSITED THE AMOUNT OF RS.4,94,100/- OVER THE YEAR. SI MPLY BECAUSE CASH DEPOSITED IN THE BANK IS A LITTLE MORE THAN THE C ASH SALES, IT CANNOT CALL FOR ANY ADDITION, WHAT TO TALK OF PENALTY, UNLESS IT IS PROVED THAT THE EXCESS CASH DEPOSITED HAD NO ORIGIN. W HERE THE ASSESSEE TENDERS EXPLANATION THAT THE EXCESS CASH DEPO SIT REPRESENTED CASH WITHDRAWALS AT THE EARLIER STAGES, THERE CA N BE NO QUESTION OF MAKING ANY ADDITION AND THE CONSEQUENTIAL PENALTY, MORESO WHEN THE ENTRIES OF CASH DEPOSITS AND WITHDRAWALS AR E ITA NO.873/PUN/2019 M/S. DEOYANI MOVIES PVT. LTD., 4 RECORDED IN BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE A SSESSEE AND THAT ARE NOT FOUND FAULT WITH BY THE AO. WE, THEREFORE, SET- ASIDE THE IMPUGNED ORDER AND DELETE THE PENALTY SUSTAINED IN THE FIRST APPEAL. 4. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2020. SD/- SD /- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER V ICE PRESIDENT PUNE; DATED : 31 ST JULY, 2020 SATISH / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, AURANGABAD 4. 5. 6. THE PR.CIT-1, AURANGABAD , , / DR A, ITAT, PUNE; / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.873/PUN/2019 M/S. DEOYANI MOVIES PVT. LTD., 5 DATE 1. DRAFT DICTATED ON 29-07-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29-07-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *