Anil Agarwal, Lucknow V. Asstt. Commissioner Of Income Tax, Lucknow

ITA 98/LKW/2013

• Counselvise Citation: 9823714 RSA 2013
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K C MEENA
• Keywords: Depreciation; Wrong claim; Corroborative evidences

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.98/LKW/2013 ASSESSMENT YEAR:2008 - 09 A.C.I.T. - V, LUCKNOW. VS SHRI ANIL AGARWAL, 193, GAUTAM BUDDH MARG, LUCKNOW. PAN:ACMPA1745L (RESPONDENT) (APPELLANT) SHRI S. C . AGARWAL , ADVOCATE APPELLANT BY SHRI K. C. MEENA, D. R. RESPONDENT BY 17/0 4 /2015 DATE OF HEARING 2 2 /06/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 28/12/2012 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE LEARNED CIT(A) WAS WRONG IN UPHOLDING THE PENALTY ORDER FOR CONCEALMENT OF INCOME AGAINST THE APPELLANT. 2. THAT THE TAX AUTHORITIES WERE WRONG IN INVOKING CLAUSE (B) OF EXPLANATION 1 TO SECTION 271 OF INCOME TAX ACT, 1961 IN HOLDING THAT THE BURDEN WHICH LIES ON THE ASSESSE E WAS NOT DISCHARGED. 3. THAT THE LAX AUTHORITIES HAVE COME TO A WRONG FINDING OF FACT IN CONTENDING THAT THERE WAS NO DOCUMENTARY EVIDENCE BY THE ASSESSEE IN SUPPORT OF HIS CASE. 4. T HAT THE APPELLANT ACTED BONAFIDE AND HAD SUBMITTED COMPLETE PARTICULARS AND DETAILS OF THE CLAIMS AND THE AUTHORITIES COMMITTED GRAVE ERROR IN HOLDING THAT THE INCOME WAS CONCEALED BY THE ASSESSEE. 5. THAT THE CASE LAW CITED BY THE APPELLANT CIT AHMEDABAD VS. RELIANCE PETRO PRODUCTS PVT. LTD. CHARTERED ACCOUNTANT 2463 2 OF 2010 WAS FULLY APPLICABLE TO THE FACTS OF THE CASE AND THE LEARNED CIT (A) WAS W RONG IN NOT APPRECIATING THE SAME WHILE DECIDING THE ISSUE UNDER REFERENCE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE ASSESSING OFFICER COULD NOT ESTABL ISH THAT THE CLAIM OF THE ASSESSEE IS FALSE CLAIM AND THEREFORE, PENALTY IS NOT JUSTIFIED. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT IS NOTED BY THE ASSES SING OFFICER IN THE PENALTY ORDER THAT THE ASSESSEE HAS SHOWN ADDITION OF RS.17.50 LAC IN FIXED ASSETS UNDER THE HEAD BUILDING AND HAS CLAIMED DEPRECIATION OF THIS @10% WHICH WORKED OUT TO RS.1.75 LAC. THE ASSESSEE WAS ASKED BY THE ASSESSING OFFICER TO SU BMIT DOCUMENTARY EVIDENCE WITH REGARD TO THIS ADDITION AND IN RESPONSE, ASSESSEE SUBMITTED COPY OF SALE DEED OF THE BUILDING AS PER WHICH THE BUILDING IS JOINTLY PURCHASED BY THE ASSESSEE AND HIS WIFE SMT. SHUBHRA AGARWAL. IT IS ALSO NOTED THAT AS PER SAL E DEED, THE PROPERTY IN QUESTION IS A RESIDENTIAL FLAT AND AS PER CLAUSE 10, THE FLAT IN QUESTION WAS TRANSFERRED FOR USE FOR RESIDENTIAL PURPOSES ONLY AND WOULD NOT BE USED FOR ANY PURPOSE WHICH LIKELY CAUSE NUISANCE OR ANY ANNOYANCE TO INHABITANTS OF THE OTHER FLATS. IT WAS THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE DISPLAYED THE FLAT WITH ALL THE SELLING MATERIALS AND MAINTAINED IT AS MODEL FLAT FOR ACQUIRING THE ORDERS FOR GOODS TRADED BY HIM. IT IS NOTED BY THE ASSESSING OFFICER IN THE PENALTY ORDE R THAT THE ASSESSEES REPLY IS NOT CONVINCING SINCE HE COULD NOT SUBSTANTIATE HIS CLAIM BY ANY SUPPORTING EVIDENCE THAT COULD EXPLAIN AS TO HOW HE WAS USING A RESIDENTIAL FLAT IN A MULTI STORIED BUILDING FOR BUSINESS PURPOSE AND HOW HE WAS TAKING CUSTOMERS THERE TO DISPLAY HIS PRODUCTS. IT IS ALSO NOTED BY THE ASSESSING OFFICER THAT THE SAID FLAT WAS FINANCED BY HDFC TO THE TUNE OF RS.17.50 LACS ON WHICH ASSESSEE PAID AN INTEREST OF RS.1,29,243/ - DURING FINANCIAL YEAR 2007 - 08 RELEVANT TO ASSESSMENT YEAR 20 08 - 09. BECAUSE OF THIS REASON THAT THE ASSESSEE COULD NOT 3 ESTABLISH THAT THE FLAT WAS USED FOR BUSINESS PURPOSES, IT WAS DISALLOWED. AGAINST BOTH THESE DISALLOWANCES, PENALTY OF RS.92,000/ - WAS IMPOSED. 6. WE ARE OF THE CONSIDERED OPINION THAT SINCE TH E FLAT IN QUESTION WAS JOINTLY OWNED BY THE ASSESSEE ALONG WITH HIS WIFE, EVEN IF IT IS ESTABLISHED THAT THE FLAT IS BEING USED FOR BUSINESS PURPOSES, DEDUCTION IS ALLOWABLE TO THE EXTENT OF 50% OF THE EXPENDITURE BECAUSE THE FLAT IS JOINTLY OWNED BY THE A SSESSEE. IN THE PRESENT CASE, THE ASSESSEE COULD NOT ESTABLISH THAT THE FLAT WAS USED FOR BUSINESS PURPOSES. THE ASSESSEE COULD HAVE PRODUCED PHOTOGRAPH OF THE FLAT ALONG WITH THE MATERIAL DISPLAYED THEREIN AS CLAIMED BUT THE ASSESSEE HAD NOT DONE ANYTHI NG LIKE THAT. IN THE ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE CONTENTION OF THE ASSESSEE, THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED BECAUSE THE FLAT IN QUESTION IS RESIDENTIAL FLAT WHICH CANNOT BE USED FOR BUSINESS PURPOSES IN NORMAL CIRCUMSTANCES. WE, THEREFORE FEEL THAT IN THE FACTS OF THE PRESENT CASE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). 7. IN THE RESULT, THE AP PEAL OF THE ASSESSEE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 /06/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR