Smt. Darpanaben Chiragbhai Patel, Anand V. The Dy.CIT.,Cent.Circle-1, Baroda

ITSSA 300/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9106 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 15-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 18-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: MUKUND BAXI
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI MUKUL KUMAR SHRAWAT, JM AND SHRI A. K. GARODIA, AM) IT(SS) A NO.299/AHD/2012 (AY: 2004-2005) AND IT(SS) A NO.300/AHD/2012 (AY:2007-2008) AND IT(SS) A NO.301/AHD/2012 (AY:2008-2009) SMT. DARPANABEN CHIRAGBHAI PATEL, 3, JAPAN PARK SOCIETY, NEAR CHAITANYA HAIRVIHAR, BEHIND DENA PARIVAR,TOWN HALL ROAD, ANAND -388001 PAN: AJRPP 4633 Q VS THE DCIT., CENTRAL CIRCLE- 1, BARODA (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MUKUND BAXI, A.R. RESPONDENT BY SHRI T. SANKAR, SR. D.R. DATE OF HEARING: 3.4.2013 DATE OF PRONOUNCEMENT:26 -04 -2013 ORDER PER SHRI A. K. GARODIA, A.M. : ALL THESE THREE APPEALS ARE FILED BY THE ASSESSEE A ND THE SAME ARE DIRECTED AGAINST THE COMBINED ORDER OF LEARNED CIT( A)-IV, AHMEDABAD, DATED 2 ND OF MARCH, 2012, FOR THE ASSESSMENT YEARS 2004-05, 2007-08 AND 2008-09. 2. IN ALL THE THREE APPEALS, ONLY ONE ISSUE INVOLVE D IS REGARDING PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE LEAR NED CIT(A) UNDER SECTION 271(1)(C) OF THE I.T. ACT. HENCE, ALL THE T HREE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ALL THE YE ARS ARE IDENTICAL ACCEPT DIFFERENCE IN AMOUNT AND HENCE WE REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2004-05 IN IT(SS) NO.299/AHD/12 ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, AHMEDABAD HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O. IN THE LEVY O F PENALTY U/S. 27(1)(C) IN VIOLATION OF LAW INASMUCH AS THAT THE PENALTY LEVIED IS WITHOUT SPECIFYING THE C HARGE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS. THE PENALTY COULD NOT HAVE BEEN LEVIED IN SUCH CIRCUMSTANCES AS HELD BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGINEERING CO. VS. CIT 282 ITR 642 AND THUS DESERVES TO BE QUASHED. 2. WITHOUT PREJUDICE TO THE ABOVE THE LD. COMMISSIO NER OF INCOME TAX (APPEALS)-IV, AHMEDABAD HAS FURTHER ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O. IN THE LEVY OF PENALTY U/S.27(1)(C) ON THE FAILURE TO SATISFACTORILY EXPLAIN THE SOURCE OF INVESTMENT OF RS.1,25,000/- IS FURNISHING OF INACCU RATE PARTICULARS OF INCOME. THE PENALTY SO CONFIRMED OF RS.35,000/- ON SUCH ADDITIONS IS PRAYED TO BE CANCELLED'. 3. YOUR APPELLANT CRAVES LIBERTY TO ADD, ALTER, AME ND OR SUBSTITUTE OR WITHDRAW ANY OF THE GROUNDS OF APPEAL HEREINABOVE CONTAINED. 4. IN AY: 2007-08 AMOUNT OF PENALTY IMPOSED IS RS.3 0,000/- AND IN A.Y: 2008-09, THE AMOUNT OF PENALTY IMPOSED IS RS.1 ,70,000/-. 5. REGARDING GROUND NO.1, LEARNED A.R. FOR THE ASSE SSEE HAS PLACED RELIANCE UPON THE JUDGMENT OF HONBLE GUJARART HIGH COURT RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. VS. CIT REPORTED IN (2006) 282 ITR 064. REGARDING THE MERIT OF THE PENALTY, LEARNED A.R. FO R THE ASSESSEE HAD NOTHING TO SAY. LEARNED D.R. FOR THE R EVENUE HAS SUPPORTED THE ORDER OF THE TRIBUNAL. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE MATERIAL PLACED ON RECORD. 7. REGARDING GROUND NO.1, WE FIND THAT THE ASSESSEE HAS NO CASE BECAUSE AS PER THE PENALTY ORDER IN ALL THE THREE Y EARS, IT IS ALLEGED BY THE A.O. THAT THE ASSESSEE IS GUILTY OF NOT ONLY CONCEA LMENT OF INCOME BUT THE ASSESSEE HAS ALSO FURNISHED INACCURATE PARTICULARS OF INCOME. HENCE, IT IS SEEN THAT THE OBJECTION OF THE A.O. IS SPECIFIC THA T THE ASSESSEE HAS COMMITTED BOTH THE DEFAULTS. THE JUDGMENT OF THE HO NBLE GUJARAT HIGH COURT CITED BY LEARNED AR FOR THE ASSESSEE WHICH HA S BEEN RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. (SUPRA) IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE THAT JUDGMENT IS APPLICABLE WH EN THE A.OS. OBJECTION IS NOT SPECIFIC. IF THE A.O. SAYS THAT TH E ASSESSEE IS GUILTY OF BOTH THE DEFAULTS OR OF ANY ONE PARTICULAR DEFAULT THEN THIS JUDGMENT IS NOT APPLICABLE AND IN THE PRESENT CASE, THE OBJECTION O F THE A.O. IS THIS THAT THE ASSESSEE IS GUILTY OF BOTH THE DEFAULTS AND HENCE, THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF IN K.M. SHAH & COMPANY VS. CIT REPORTED IN (1999) 238 ITR 415 IS APPLICABLE. LEARNED CIT(A) HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE BY FOLLOWIN G THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT AND HENCE, WE DO NOT FIN D ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A) ON THIS IS SUE. ACCORDINGLY, GROUND NO.1 IS REJECTED IN ALL THE THREE YEARS. 8. REGARDING GROUND NO.2, I.E., THE MERIT OF THE PE NALTY ORDER, WE FIND THAT A SEARCH WAS CARRIED OUT IN THIS CASE AND THE ASSESSEE HAS NOT DISCLOSED HIS INVESTMENT OF RS.1.25 LAC IN A.Y. 200 4-05 IN THE REGULAR RETURN OF INCOME AND THE SAME WAS ALSO NOT DISCLOSE D EVEN IN THE RETURN OF INCOME FILED BY THE ASSESSEE UNDER SECTION 153A OF THE I.T. ACT. SIMILARLY, FOR THE A.Y. 2007-08, WE FIND THAT THE A SSESSEE HAD RECEIVED AN AMOUNT OF RS.60,000/- BEING 10% OF THE PRINCIPAL AM OUNT OF RS.6 LAC, WHICH WAS PLACED WITH POST OFFICE UNDER THE MONTHLY INCOME SCHEME PRIOR TO 1.4.2002. THIS INCOME WAS NOT DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME AS WELL AS IN THE RETURN OF INCOME FILED UNDER SECTION 153A OF THE I.T. ACT. THERE IS ONE MORE ADD ITION IN THIS YEAR. THIS ADDITION HAS BEEN MADE OF RS.72,235/- ON THIS BASIS THAT THE A.O. ASKED THE ASSESSEE TO FURNISH THE DETAILS OF SALE AND PUR CHASE TRANSACTION OF IMMOVABLE PROPERTIES ALONG WITH EVIDENCE THEREOF. O N VERIFICATION OF THE DETAILS, THE A.O. WORKED OUT THE AMOUNT OF CAPITAL GAIN AT RS.72,235/- AND THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME. IT IS F URTHER NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT THE ASSESSEE COUL D NOT OFFER ANY REPLY AND THEREFORE, THIS INCOME WAS ALSO ADDED. HENCE IT IS SEEN THAT BOTH THE INCOMES WERE NOT DECLARED BY THE ASSESSEE IN THE OR IGINAL RETURN OF INCOME AS WELL AS IN THE RETURN OF INCOME FILED BY THE ASSESSEE UNDER SECTION 153A OF THE I.T. ACT. 9. IN ASSESSMENT YEAR 2008-09, THE A.O. HAS MADE TH REE ADDITIONS OF RS.147,298, RS.1,70,522/- AND RS.2,90,800/-. THE FI RST ADDITION OF RS.1,47,298/- WAS MADE BY THE A.O. ON THIS BASIS TH AT THE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAINS IN RESPECT OF SALE O F LAND AND CONSTRUCTION OF SUPERSTRUCTURE THEREON AT RS.6,21,740/- BUT AS P ER THE DETAILS FURNISHED BY THE ASSESSEE REGARDING SALE AND PURCHASE TRANSAC TIONS OF IMMOVABLE PROPERTIES, THE GAIN WAS WORKED OUT BY THE A.O. AT RS.7,69,038/- AND THE ASSESSEE COULD NOT EXPLAIN THIS DIFFERENCE IN SHORT TERM CAPITAL GAIN. 10. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSE SSEE THAT THERE WAS SOME CLERICAL MISTAKE AT THE TIME OF FILING OF RETU RN OF INCOME BUT IN SPITE OF THE QUERY MADE BY THE BENCH, LEARNED A.R. FOR THE A SSESSEE COULD NOT FURNISH BEFORE US THE WORKING OF CAPITAL GAIN DECLA RED BY THE ASSESSEE IN ORIGINAL RETURN OF INCOME AND ALSO IN THE RETURN FI LED U/S 153(A) AT RS.6,21,740/- TO ESTABLISH THAT THE NATURE OF MISTA KE WAS A BONA FIDE MISTAKE AND HENCE, WE DO NOT FIND ANY MERIT IN THE SUBMISSION OF LEARNED A.R FOR THE ASSESSEE. 11. THE SECOND ADDITION IN THIS YEAR IS OF RS.1,70, 522/-. THIS ADDITION WAS MADE BY THE A.O. ON THIS BASIS THAT THE ASSESSE E HAS RECEIVED LOANS FROM TWO PERSONS OF THIS AMOUNT. THE LEARNED A.R. F OR THE ASSESSEE HAS TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THES E LOAN CREDITORS AND GENUINENESS OF THIS TRANSACTION BUT DESPITE SEVERAL OPPORTUNITIES, THE ASSESSEE HAS NOT FURNISHED ANY MATERIAL TO SUBSTANT IATE HIS CLAIM THAT THE AMOUNT IS RECEIVED AS LOAN. EVEN BEFORE US, NO SUCH DETAIL HAS BEEN FURNISHED AND HENCE, ON THIS ISSUE ALSO, THE ASSESS EE COULD NOT MAKE OUT A CASE FOR NOT LEVYING THE PENALTY. 12. THE THIRD ADDITION IN THIS YEAR IS OF RS.2,90,8 00/-. THIS ADDITION WAS MADE BY THE A.O. ON THIS BASIS THAT THERE WAS ONE P URCHASE AND SALE OF PROPERTY BEING LAND OF 2.2167 SQ. METER ON WHICH TH E ASSESSEE HAD EARNED CAPITAL GAIN OF RS.2,90,800/- BUT THE SAME W AS NOT DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME WHETHER IN ORIGINA L RETURN OR RETURN FILED UNDER SECTION 153A OF THE IT ACT. NO EXPLANATION HA S BEEN OFFERED BY THE ASSESSEE REGARDING THIS ADDITION ALSO. 13. AS PER THE ABOVE DISCUSSIONS, WE FIND THAT ALL THESE ADDITIONS MADE BY THE A.O. ARE ON THE BASIS OF EVIDENCE AVAILABLE ON RECORD IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE COULD NO T OFFER ANY EXPLANATION REGARDING THESE ADDITIONS AND AS PER TH E PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C), IF THE ASSESSEE HAS OFFERED THE EXPLANATION AND EVEN IF SUCH EXPLANATION IS NOT SUB STANTIATED BUT THE SAME IS FOUND TO BE BONA FIDE AND SOME OTHERS CONDI TIONS ARE FULFILLED BY THE ASSESSEE THEN THERE CAN BE A CASE OF NOT LEVYIN G A PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. BUT IN THE PRESE NT CASE, THE ASSESSEE HAS NOT EVEN OFFERED EXPLANATION FOR ANY OF THESE A DDITIONS IN ALL THREE YEARS AND THEREFORE, THE PROVISIONS OF 271(1)(C) OF THE I.T. ACT ALONG WITH THE EXPLANATION TO THIS SECTION ARE CLEARLY APPLICA BLE AND HENCE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LEARNED CIT(A) IN THESE YEARS. HENCE, THE SAME IS HEREBY CONFIRMED. 14. IN THE RESULT, ALL THE THREE APPEALS OF THE ASS ESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON CAPTION PAGE. SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (A.K. GARODIA) ACCOUNTANT MEMBER TRUE COPY PRABHAT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, AHMEDABAD