UNIQUE TUTORIALS P LTD., Jaipur V. ACIT, Jaipur

ITA 948/JPR/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5487 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO.948/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2007-08 . M/S. UNIQUE TUTORIALS PVT. LTD., 6, RATHORE BHAWAN, SINDHI COLONY, BANI PARK, JAIPUR. CUKE VS. THE ACIT, CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAACU 6339 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY S BY : SHRI MANISH AGARWAL (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11 .01.2016. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 5/02/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OR LD. CIT (A)-I, JAIPUR DATED 01.10.2012 FOR THE ASSESSMENT YEAR 2007-08. T HE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- (1) THE LEARNED A.O. HAS MADE ADDITION U/S 68 OF TH E INCOME TAX ACT, 1961 OF RS. 1,19,558/- IN TOTAL INCOME ON THE GROUND OF SHORTAGE OF CASH DEPOSIT OF RS. 1,19,558/-, WHICH IS NOT CORRECT LOO KING TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT (2) THE ASSESSEE PRODUCED BOOKS OF ACCOUNTS TO THE ASSESSING OFFICER AS AND WHEN REQUIRED. THE ASSESSING OFFICER ACCEPTED THE B OOKS OF ACCOUNTS I.E. HE FOUND THE BOOKS OF ACCOUNT CORRECT AND UP TO SAT ISFACTION, WHICH ITSELF MAKES CLEAR THAT THERE WAS NO CASH SHORTAGE DURING THE YEAR UNDER REVIEW. (3) AT ONE TIME THE LEARNED A.O. HAS TAKEN VIEW THA T SHORTAGE OF CASH WAS UNEXPLAINED AND ON THE OTHER SIDE LEARNED A.O. HIMS ELF SAID THAT EXPLANATION GIVEN BY THE ASSESSEE WAS NOT SATISFACT ORY, WHICH ITSELF IS CONTRARY. (4) IT WAS EXPLAINED REGARDING THE CASH DEPOSIT IN THE BANK THAT THE SAME WAS DEPOSITED OUT OF UNSECURED LOANS FROM DIRECTORS , RELATIVES AND/OR FRIENDS AND RECEIPT OF ADVANCE FEE FROM THE STUDENT S, WHICH WERE DULY RECORDED IN THE BOOKS OF ACCOUNT PRODUCED AS AND WH EN REQUIRED BY LEARNED AO, THEREFORE IT IS NOT CORRECT THAT THE SA ME WAS AN AFTER THOUGHT AND NO EXPLANATION WAS OFFERED FOR SHORT CASH DEPOS IT IN THE BANK DURING THE ASSESSMENT PROCEEDINGS. (5) THE APPELLANT PROVIDED ALL THE INFORMATION AS R EQUIRED BY THE ASSESSING OFFICER FRO TIME TO TIME AS PER NOTE SHEET INCLUDIN G THE UNSECURED LOAN CONFIRMATION OUTSTANDING AS ON 31.03.2007, WHICH PR OVIDES SUFFICIENT CAUSE TO BELIEVE THAT THE APPELLANT HAS PROVIDED AL L THE INFORMATION ENQUIRED FROM HIM. (6) THE ASSESSING OFFICER NEVER ENQUIRED BOUT THE D ETAILS OF UNSECURED LOANS SET-OFF DURING THE YEAR ITSELF, HENCE WAS NOT PROVI DED BY THE APPELLANT. SO THE STATEMENT OF THE LEARNED A.O. THAT THE EXPLANAT ION FOR SHORT CASH WAS NOT PROVIDED IS NOT CORRECT. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FILE THE BANK STATEMENT, AND ON EXAMINING THE BANK STATEMENT, IT WAS NOTICED THAT THERE WERE CASH DEPO SITS ON 13.05.2006, 15.05.2006, 22.05.2006 AND 22.05.2006 FOR RS. 5,98,000/-, RS. 2 ,50,000/-, RS. 2,90,000/- AND RS.80,000/- RESPECTIVELY. THE ASSESSEE HAS GIVEN TH E EXPLANATION THAT THE CASH WAS IN RESPECT OF SALE OF GOODS, AND FURTHER THERE WAS CAS H IN HAND. THE AO HAS ACCEPTED THE 3 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT EXPLANATION OF SALE OF GOODS IN RESPECT OF AMOUNT O F RS. 5,98,000/- AND RS 2,50,000/-. THE AO HAS POINTED OUT THAT IN THE BALANCE SHEET CA SH IN HAND AS ON 31.3.2006 WAS DISCLOSED TO THE EXTENT OF RS. 2,50,442/-. THUS THE ASSESSEE WAS CALLED UPON TO EXPLAIN THE SOURCE OF REMAINING CASH DEPOSIT OF RS. 1,19,55 8/- (I.E. 2,90,000+ 80,000 2,50,442), THE AO POINTED OUT THAT SINCE NO EXPLAN ATION WAS FORTHCOMING, THEREFORE, THE NOTICE UNDER SECTION 68 ALONG WITH NOTICE UNDER SECTION 271(1)(C) WAS ISSUED ON 26.11.2006. THE ASSESSEE HAS POINTED OUT THAT THE AMOUNT OF RS. 1,19,558/- WAS ON ACCOUNT OF UNSECURED LOANS TAKEN FROM THE DIRECTORS , OR THEIR RELATIVES AND/OR FRIENDS. THE AO HAS NOT AGREED TO THE EXPLANATION AND RECORD ED TO BE UNSATISFACTORY THEREBY IMPOSING PENALTY OF RS 40,243/- ON THE ASSESSEE. 3. AGAINST THE SAID ORDER OF THE AO, THE ASSESSEE H AS FILED APPEAL BEFORE LD. CIT (A). THE LD CIT (A) HAS UPHELD THE ORDER PASSED BY THE AO, THE REASONING GIVEN BY THE LD CIT (A) IS MENTIONED IN PARA 6.3 OF HIS ORDER AS UNDER :- 6.3. I HAVE CAREFULLY PERUSED THE ORDER OF THE AO THE ASSESSMENT RECORDS, AND SUBMISSIONS OF THE AR AND DO NOT CONCU R WITH THE SUBMISSIONS OF THE AR ON THE FOLLOWING GROUNDS :- A) THE SUBMISSION OF THE AR REGARDING RECEIPTS OF UNSE CURED LOANS OF RS.90,000/- FROM SHRI RAKESH KUMAR LOHIA, VINAYAK A GENCIES, AGRASEEN ENTERPRISES, UMESH JAIN AND SAROJ JAIN OF R S. 18,000/- EACH IS CLEARLY AN AFTER THOUGHT BECAUSE THESE DETAILS W ERE NEVER FURNISHED BEFORE THE AO EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR PENALTY PROCEEDINGS. MOREOVER, THESE LOANS HAVE NOT BEEN REFLECTED IN ITS BALANCE SHEET FOR THE YEAR ENDING 31.3.2007. IT IS A CLEAR CUT ATTEMPT TO MISLEAD THE DEPARTMENT ON FACTS BY GENER ATING EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS. 4 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT B) SIMILARLY, IT HAS BEEN MENTIONED THAT THE ADVANCE F EE FROM STUDENTS WAS RECEIVED OF RS. 1,28,000/-. ON PERUSAL OF THE P &L ACCOUNT FOR ASSESSMENT YEAR 2007-08, IT IS SEEN THAT THE ASSESS EE HAS NOT SHOWN ANY RECEIPT OF ADVANCE FEE FROM STUDENTS NOR HAS TH IS AMOUNT BEEN OFFERED FOR TAXATION DURING THIS ASSESSMENT YEAR. O NCE AGAIN, THE ASSESSEE HAS MADE SUBMISSIONS WHICH ARE NOT SUPPORT ED BY THE EVIDENCE ALREADY ON RECORD. ON PERUSAL OF THE BANK STATEMENT THERE APPEARS TO BE NO RE-ROUTING OF RS. 3,30,000/- WITHD RAWN AND THEN DEPOSITED IN THE BANK. THUS, IT IS SEEN THAT THE APPELLANT HAS FILED MISLE ADING INFORMATION DURING THE COURSE OF APPELLATE PROCEEDINGS WHICH AR E NOT SUPPORTED BY THE EVIDENCE ON RECORD IN THE ASSESSMENT ORDER. THE REFORE, GROUNDS OF APPEAL NO. 4, 5 & 6 IS DISMISSED. IT IS SEEN THAT NONE OF THE 7 GROUNDS OF APPEAL HAV E CHALLENGED THE ORDER U/S 271(1)(C) AND IMPOSITION OF PENALTY UNDER THE SAID SECTION OF RS. 40,243/-. THEREFORE, IN ANY CASE, THE MATTER IS NOT REQUIRED TO BE ADJUDICATED UPON. BUT EVEN ON MERIT GIVEN THE ABOVE FACTS PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF RS. 40,243/- FOR CONCEALMENT OF INCOME DESERVES TO BE CONFIRMED. 4. NOW THE ASSESSEE IS BEFORE US. 4.1. THE LD. A/R FOR THE ASSESSEE HAS FILED AN APPL ICATION BRINGING ON RECORD THE ADDITIONAL GROUND WHICH IS AS UNDER :- THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. AO HAS GROSSLY ERRED IN LEVYING PENALTY U/S 271(1)( C) OF THE INCOME TAX ACT, 1961 AT RS. 40,243/- BY HOLDING THE ASSESS EE HAS CONCEALED THE PARTICULAR OF INCOME TO THE EXTENT OF THE ADDITION OF RS. 1,19,558/- MADE WITHOUT APPRECIATING THE NATURE OF ADDITION AND THE EVIDENCES PRODUCED, THUS THE PENALTY OF RS. 40,243/- DESERVES TO BE DELETED. 5 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT 4.2. WE HAVE HEARD THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE ASSESSEE HAS FURNISHED THE INFORMATION WITH RESPECT TO RS. 90,00 0/- THAT IT HAS TAKEN UNSECURED LOANS FROM SHRI RAKESH KUMAR LOHIA, VINAYAK AGENCIES, AGR ASEN ENTERPRISES, UMESH JAIN AND SAROJ JAIN OF RS 18,000/- EACH IN THE ASSESSMENT YE AR 2007-08. THE SAID INFORMATION WAS GIVEN ALONG WITH PAN AND OTHER DETAILS DURING T HE APPELLATE PROCEEDINGS. IT WAS FURTHER CONTENDED THAT THE AO HAS NOT ENQUIRED ABOU T THE DETAILS OF UNSECURED LOANS SET OFF DURING THE YEAR ITSELF. HENCE THE SAID INF ORMATION WAS NOT PROVIDED TO THE AO. IT WAS FURTHER SUBMITTED THAT THE ADVANCE FEES OF RS. 1,28,000/- WAS TAKEN FROM THE STUDENTS AND THE AMOUNT OF RS. 1,28,000/- WAS REFUN DED TO THE STUDENTS AS THE CLASSES WERE NOT HELD. SIMILARLY, THE UNSECURED LOANS TO TH E TUNE OF RS. 90,000/- WERE ALSO RETURNED. 4.3. WE HAVE PERUSED THE RECORD. FROM THE BARE READ ING OF THE RECORDS, IT IS CLEAR THAT THE DETAILS AS REQUIRED FOR SATISFYING AND EXP LAINING THE SOURCE OF CASH DEPOSITS, HAVE DULY BEEN EXPLAINED BY PROVIDING THE DETAILS I .E. NAME, PAN AND ADDRESS OF THE CASH DEPOSITOR. THUS THE ASSESSEE, IN OUR VIEW, HAS BEEN ABLE TO EXPLAIN THE SOURCE OF RS. 90,000/-. WITH RESPECT TO OTHER AMOUNT OF RS. 1 ,28,000/-, THE EXPLANATION GIVEN BY THE ASSESSEE THAT THE AMOUNT HAS BEEN RECEIVED AS A DVANCE FEES DEPOSIT, IN OUR VIEW IS SATISFACTORY EXPLANATION. THEREFORE, WE DO NOT FEEL IT APPROPRIATE TO SUSTAIN THE ORDER PASSED BY THE LD. CIT (A). IN THE LIGHT OF THE ABO VE, THE PENALTY IMPOSED BY THE LD. CIT (A) IS HEREBY CANCELLED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 6 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT ORDER PRONOUNCED IN THE OPEN COURT ON 5/02/2016. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 5/02/2016 DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-M/S. UNIQUE TUTORIALS PVT LTD., JAIPU R. 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-3, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 948/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 7 ITA NO. 948/JP/2012 A.Y. 2007-08. M/S. UNIQUE TUTORIALS PVT LTD. VS. ACIT