Nitesh Munje, Indore V. ACIT-3(1), Indore

ITA 93/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6765 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R S AMBEDKAR
• Keywords: Unexplained investment
• Section: 143(3); 142(1); 143(2); 69A; 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.93/IND/2019 ASSESSMENT YEAR 2011-12 REVENUE BY SHRI R.S. AMBEDKAR , SR.DR ASSESSEE BY SHRI VENUS RAWKA, CA DATE OF HEARING 05.02 .20 20 DATE OF PRONOUNCEMENT 07 . 0 2. 2020 O R D E R PER MANISH BORAD, AM THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEA LS)-I (IN SHORT LD.CIT(A)], INDORE DATED 11.12.2018 WHICH IS ARIS ING OUT OF THE ORDER U/S 271AAA OF THE INCOME TAX ACT 1961(IN SHOR T THE ACT) DATED 09.03.2016 FRAMED BY ACIT-3(1), INDORE. SHRI NITESH MUNJE, 61/1, POOJA VILA LAL BAGH, KESAR BAGH ROAD, BUNGLOW NO.8, INDORE VS. ASSTT. COMMISSIONER OF INCOME TAX-3(1), INDORE (APPELLANT) (RESPONDENT ) PAN NO. ACVPM 4534A SHRI NITESH MUNJE ITA NO. 93/IND/2019 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L; 1. THAT, THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE PENALTY LEVIED BY LD. A.O U/S 271AAA OF I.T. ACT, 1961 WITHOUT CONSIDERING THE FULL FACTS AND REASONS OF T HE CASE. 2. THAT, THE APPELLANT CRAVES TO LEAVE, ADD, ALTER OR AMEND ANY OF THE F GROUNDS AT OR BEFORE HEARING. 3 . THE SOLE GRIEVANCE OF THE ASSESSEE RELATES TO T HE LEVY OF PENALTY OF 1,51,178/- CONFIRMED BY THE LD. CIT(A). 4. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT THE AS SESSEE IS ENGAGED IN THE BUSINESS OF COMMODITY TRADING. RETU RN OF INCOME FILED ON 02.08.2011 DECLARING INCOME OF RS.5,01,357 /-. A SEARCH WAS CONDUCTED AT THE RESIDENCE OF THE ASSESSEE ON 2 5.11.2010. NOTICES U/S 143(2) AND 142(1) WAS SERVED UPON THE A SSESSEE ALONG WITH QUESTIONNAIRE. ASSESSMENT COMPLETED U/S 143(3) OF THE ACT ON 20.3.2013 MAKING VARIOUS ADDITIONS AND INITIATED PE NALTY PROCEEDINGS U/S 271AAA. AGGRIEVED ASSESSEE PREFERRE D APPEAL BEFORE LD. CIT(A) AGAINST THE PENALTY PROCEEDINGS U /S 271AAA BUT COULD NOT SUCCEED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. SHRI NITESH MUNJE ITA NO. 93/IND/2019 3 6. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE WRITT EN SUBMISSIONS. HE ALSO PLACED ON RECORD THE TRIBUNAL S ORDER NO.615/IND/2015 DATED 29.09.2016 IN ASSESSEES OWN CASE IN SUPPORT OF THE FACT THE SOME OF THE ADDITIONS SUSTA INED BY LD. CIT(A) WERE DELETED BY THE HON'BLE TRIBUNAL. HE A CCORDINGLY PRAYED FOR DELETION OF THE PENALTY LEVIED U/S 271AAA OF TH E ACT. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED SUPPORTED THE ORDERS OF BOTH THE LOWER AUTHO RITIES. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE SOLE GRIEVANCE OF THE ASSESS EE IS AGAINST THE FINDING OF LD. CIT(A) CONFIRMING THE PENALTY LEVIED U/S 271AAA OF THE ACT AT RS.1,51,178/-. THE PENALTY IN QUESTION WAS LEVIED ON THE FOLLOWING ADDITIONS MADE BY THE LD. A.O AND CONFIRM ED BY LD. CIT(A). 1. UNEXPLAINED INVESTMENT IN JEWELLERY U/S 69A RS.2,00,000/- 2. UNEXPLAINED CASH FOUND DURING THE COURSE OF SEARCH RS. 59,116/- 3. UNEXPLAINED INCOME OFFERED DURING THE COURSE OF SEARCH RS.12,52,670/- TOTAL RS.15,11,786/- SHRI NITESH MUNJE ITA NO. 93/IND/2019 4 9. LD. A.O COMPUTED THE PENALTY @10% U/S 271AAA OF TH E ACT AT RS.1,51,178/- WHICH HAS BEEN CONFIRMED BY THE LD. C IT(A). OUT OF THE ABOVE REFERRED ADDITIONS, ONE RELATING TO UNEXP LAINED INVESTMENT U/S 69 OF THE ACT FOR UNEXPLAINED GOLD JEWELLERY AT RS.2,00,000/- STANDS DELETED BY THE CO-ORDINATE BENCH VIDE ITS OR DER DATED 29.09.2016. NOW THE ONLY DISPUTE REMAINS TO THE UND ISCLOSED INCOME OFFERED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AT RS. 12,52,670/- AND UNEXPLAINED CASH FOUND DURING THE COURSE OF SEARCH AT RS.59,116/-. 10. THE ASSESSEE MAY GET IMMUNITY FROM LEVY OF PENAL TY UNDER SECTION 271AAA OF THE ACT @10% OF UNDISCLOSED INCOM E IF FOLLOWING THREE CONDITIONS PROVIDED IN SUB SECTION(2) OF SECT ION 271AAA ARE FULFILLED. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPL Y IF THE ASSESSEE, - (I) IN THE COURSE OF SEARCH, IN A STATEMENT UNDER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SP ECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISC LOSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF AN Y, IN RESPECT OF THE UNDISCLOSED INCOME. SHRI NITESH MUNJE ITA NO. 93/IND/2019 5 11. WE OBSERVE THAT UNDISCLOSED INCOME OF RS. 12,52,67 0/- WAS NEITHER OFFERED TO TAX DURING THE COURSE OF SEARCH NOR IT WAS INCLUDED IN THE INCOME TAX RETURN FILED BY THE ASSE SSEE. THE ADDITION WAS MADE WHILE FINALIZING THE ASSESSMENT O RDER. THUS ASSESSEE HAS NOT FULFILLED ANY OF THE CONDITIONS E NUMERATED ABOVE IN SECTION 271AAA(2) OF THE ACT. 12 . AS REGARDS ADDITION FOR UNEXPLAINED CASH OF RS. 5 9,116/- WHICH WAS FOUND DURING THE COURSE OF SEARCH AT THE ASSESSEES RESIDENCE ON 25.11.10, ASSESSEE COULD NOT GIVE ANY PLAUSIBLE REPLY TO SATISFY THE SEARCH TEAM AS WELL AS THE LD. A.O D URING THE COURSE OF ASSESSMENT PROCEEDINGS. ASSESSEE HAS ALSO NOT C HALLENGED THIS ADDITION BEFORE THE TRIBUNAL. SO AS FAR AS UNEXPLA INED CASH OF RS.59,116/- IS CONCERNED ASSESSEE FAILED TO FALL IN SECTION 271AAA(2) OF THE ACT. 13. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS LIA BLE TO PAY PENALTY U/S 271AAA OF THE ACT @10% ON THE UNDISCLOSED INCOM E OF RS.12,52,670/- AND UNEXPLAINED CASH OF RS.59,116/- WHICH TOTALS TO RS. 13,11,786/- ON WHICH THE PENALTY IS SUSTAINE D @10% AT RS. SHRI NITESH MUNJE ITA NO. 93/IND/2019 6 1,31,179/-. THE SOLE GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 14. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY AL LOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.02. 2020. SD/- SD/- ( KUL BHARAT) (MANI SH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 07 FEBRUARY , 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE