Shri Jayesh Shah, GANJBASODA V. The ACIT, 3(1), Bhopal

ITSSA 246/IND/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8544 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 15-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA; KU SAKSHI VERMA
• Keywords: Unexplained cash credit; Unexplained investment; Share purchase agreement; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 246/IND/2012 BLOCK PERIOD 1.4.1995 TO 3.1.2002 JAYESH SHAH GANJBASODA PAN ADAPS8420K :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI H.P. VERMA AND KU. SAKSHI VERMA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 22.10.2012 DATE OF PRONOUNCEMENT 22.10.2012 2 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED CIT(A), BHOPAL, DATED 2.1.2012. THOUGH THE ASSESSEE HAS RAISED AS MANY AS THREE GROUNDS BUT THE SUM AND SUB STANCE OF THE SAME IS THAT THE LEARNED FIRST APPELLATE AUTHOR ITY ERRED IN CONFIRMING THE PENALTY OF RS.1,47,750/- LEVIED U/S 158BFA(2) OF THE ACT FOR CONCEALMENT OF INCOME ON THE ADDITION R EMAINED AFTER APPEAL ON ACCOUNT OF BOGUS CASH CREDITS OF FARMERS WITHOUT APPRECIATING THE FACT IN SUMMARY MANNER IGNORING TH AT PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS AND MERE AD DITION AUTOMATICALLY MAY NOT BE THE BASIS FOR IMPOSING PEN ALTY WITHOUT PROVIDING DUE OPPORTUNITY TO THE ASSESSEE AND FURTH ER ERRED IN UPHOLDING THE VIEW OF THE ASSESSING OFFICER WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE FILED THE RETURN SHOWING UNDISCLOSED INCOME OF RS. 6,50,000/-. 2. DURING HEARING OF THIS APPEAL, THE LEARNED COUNS EL FOR THE ASSESSEE, SHRI H.P. VERMA, ALONG WITH KU. SAKSHI VE RMA, ADVANCED THEIR ARGUMENTS WHICH ARE IDENTICAL WITH T HE GROUNDS RAISED. THE SUM AND SUBSTANCE OF THE ARGUMENTS IS THAT NO PENALTY WAS LIABLE TO BE IMPOSED ON THE REMAINING A DDITION ON 3 ACCOUNT OF BOGUS CASH CREDIT MORE ESPECIALLY WHEN P ENALTY AND QUANTUM PROCEEDINGS ARE ALTOGETHER DIFFERENT. A PL EA WAS ALSO RAISED THAT PROPER OPPORTUNITY OF BEING HEARD WAS N OT PROVIDED TO THE ASSESSEE. MR. VERMA ALSO CONTENDED THAT THE OB SERVATION OF THE LEARNED CIT(A) THAT THE PENALTY WAS RIGHTLY IMP OSED IS CONTRARY TO FACTS ON RECORD. ON THE HAND, SHRI R.A. VERMA, THE LEARNED SR. DR STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT UNDER THE FACTS NARRATED IN THE ORD ER, THE PENALTY WAS RIGHTLY IMPOSED BY THE ASSESSING OFFICER AND FU RTHER AFFIRMED BY THE LEARNED CIT(A). THE LEARNED SENIOR DR ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE TRIBUNAL DATED 29 TH AUGUST, 2008 IN THE CASE OF ACIT VS. SHRI JAYESH (IT(SS) A NO. 63/IND/2 005, ETC. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT A SEARCH WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 12 .12.2001 TO 3.1.2002. THE ASSESSEE SHOWED UNDISCLOSED INCOME OF RS.6,50,000/-. THE LEARNED ASSESSING OFFICER DETER MINED THE UNDISCLOSED INCOME AT RS.2,40,27,642/- AGAINST WHIC H THE ASSESSEE FILED THE APPEAL BEFORE THE LEARNED CIT(A) AND THEN BEFORE THE TRIBUNAL. THE POSITION OF ASSESSMENT AN D THE RELIEF 4 ALLOWED BY THE CIT(A) AND THEREAFTER BY THE TRIBUNA L REMAINED AS UNDER :- PARTICULARS OF ADDITION AMOUNT RELIEF BY CIT(A) RELIEF BY ITAT BALANCE BOGUS CASH CREDIT 54,86,980 46,76,514 NIL 8,10,466 DEPOSIT OF OWN UNACCOUNTED STOCK IN WAREHOUSING IN BENAMI NAMES 73,64,644 73,64,644 NIL NIL UNEXPLAINED INVESTMENT IN PURCHASE OF PROPERTY 98,000 98,000 NIL NIL UNEXPLAINED INVESTMENT IN SHARE CERTIFICATES 5,000 5,000 NIL NIL UNEXPLAINED CASH 1,20,000 1,20,000 NIL NIL UNEXPLAIEND INVESTMENT IN GOLD ORNAMENTS 2,56,050 2,56,050 NIL NIL UNEXPLAINED CASH DIFFERENCE 1,51,821 1,51,821 NIL NIL UNEXPLAINED STOCK DIFFERENCE 2,03,659 2,03,659 NIL NIL DEPOSIT OF SELF MADE DRAFTS IN NEW BANK ACCOUNT 18,54,801 18,54,802 NIL NIL UNEXPLAINED CASH TRANSACTIONS 25,97,000 25,97,000 NIL NIL UNEXPLAINED INVESTMENT IN PURCHASE OF HOUSEHOLD GOODS 27,739 377 NIL NIL UNEXPLAINED INVESTMENT IN UNRECORDED PURCHASE & SALE 50,39,842 50,16,662 NIL 23,180 SUPPRESSED PROFIT ON SPECULATION TRANSACTION 6,000 NIL NIL 6,000 UNRECORDED TRANSACTION 8,16,106 8,16,106 NIL 7,785 TOTAL 2,40,27,642 2,31,52,849 NIL 8,74,793 5 3. IF THE AFORESAID TABLE IS ANALYSED, THE ADDITI ON ON ACCOUNT OF BOGUS CASH CREDIT REMAINED TO THE TUNE OF RS. 8,10, 466/- AND THUS IF THE DECLARED INCOME IN THE RETURN (RS. 6 LA CS) IS DEDUCTED THEREFROM, PENALTY U/S 158BFA(2) OF THE ACT WAS IMP OSED ON THE REMAINING AMOUNT OF RS.2,10,466/- TO THE TUNE OF RS .1,47,750/-. IF THE TOTALITY OF FACTS IS KEPT IN JUXTAPOSITION, IT IS OOZED OUT BEYOND DOUBT THAT THE ASSESSEE DELIBERATELY AND KNO WINGLY CONCEALED INCOME BY INTRODUCING UNEXPLAINED CASH CR EDITS, THEREFORE, IN VIEW OF THE DECISION IN THE CASE OF C HUHADMAL VS. CIT; 172 ITR 250 (SC), WHEREIN IT HAS HELD THAT PEN ALTY IS LEVIABLE IN CASE OF UNEXPLAINED CASH CREDIT, WE FIND NO JUST IFICATION TO INTERFERE WITH THE CONCLUSION DRAWN IN THE IMPUGNED ORDER BECAUSE ON EXAMINATION IT WAS FOUND THAT THE AMOUNT SHOWN IN THE RETURN AND THE ACTUAL CASH CREDITS, STILL THERE IS A CONCEALMENT OF INCOME. IT IS A CLEAR CUT CASE OF C ONCEALMENT AND THERE WAS INCORRECT DECLARATION BY THE ASSESSEE IN ITS RETURN, THEREFORE, THE STAND TAKEN BY THE LEARNED CIT(A) IS AFFIRMED.] FINALLY, THE APPEAL OF THE ASSESSEE STAND DISMISSE D. 6 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 22 ND OCTOBER, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 22 ND OCTOBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-22