Shri Ranjitsingh Bath (HUF), RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Central Circle-1, RAJKOT-GUJARAT

ITSSA 8/RJT/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8589 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-12-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 06-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Keywords: Corroborative evidences
• Section: 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI B.R.JAIN, AM IT(SS)A NO. 08/RJT/2012 / ASSESSMENT YEAR 2003-04 SHRI RANJIT SINGH BATH (HUF), GANDHIDHAM, C/O KALPESH S DOSHI & CO. CHARTERED ACCOUNTANT, 411, COSMO COMPLEX, MAHILA COLLEGE CIRCLE, RAJKOT-360001 PAN: AACHR1804D ( / APPELLANT) VS. ASSTT.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, RAJKOT. / RESPONDENT / ASSESSEE BY SHRI. KALPESH DOSHI # / REVENUE BY SHRI AVINASH KUMAR & / DATE OF HEARING 4.12.2012 & / DATE OF PRONOUNCEMENT 12.2012 / / / / ORDER & && &. .. . . . . . , , , , # # # # / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 2.3.2012 OF CIT(A)-IV -AHMEDABAD CONFIRMING THE PENALTY OF RS.67,374/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE HUF IS A P ROPRIETOR OF M/S SATNAM MOVERS. HE IS ENGAGED IN THE BUSINESS OF TRA NSPORTATION. A SEARCH ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE AND OTHERS ON 11.10.2006. THEREAFTER T HE AO FRAMED THE IT(SS)A NO. 08/RJT/2012 2 ASSESSMENT UNDER SECTION 153A(A) OF THE ACT ON 30.12.2 008 AT A TOTAL INCOME OF RS.25,00,173/- AS AGAINST DECLARED INCOME OF RS.9,82,570/-. IN THIS ASSESSMENT ORDER, THE AO MADE FOLLOWING ADDITI ONS/ DISALLOWANCE FOR WHICH THE PENALTY PROCEEDINGS WERE ALSO INITIATED U/S 271(1)( C ) OF THE ACT: RS.5,49,807/- INCOME NOT SHOWN DURING THE YEAR RS.7,63,794 UNDERSTATEMENT OF TRANSPORT RECEIPTS. 3. ON APPEAL, THE LD. CIT(A VIDE ORDER DATED 14.9. 2009 CONFIRMED THE ADDITION OF RS.5,49,807/- AND RESTRICTED THE CONCEALE D ADDITION TO RS.2,13,887/-. ON FURTHER APPEAL, THE TRIBUNAL VID E ORDER DATED 1.4.2010 DELETED THE ADDITION OF RS.5,49,807/- AND UPHELD T HE ORDER OF THE LD. CIT(A) IN RESPECT OF SECOND ADDITION. IN THIS MANNER, FINALLY THERE REMAINED ADDITION OF RS.2,13,887/- BEING UNDERSTATE MENT OF TRANSPORTATION RECEIPTS, FOR WHICH PENALTY WAS INITI ATED. BEFORE THE AO, IN RESPECT OF AFORESAID ADDITION OF RS.2,13,887/-, IN R EPLY TO SHOW CAUSE NOTICE U/S 271(1)( C ), THE ASSESSEE SUBMITTED THAT HE HAD MAINTAINED REGULAR BOOKS OF ACCOUNTS WITH SUPPORTING EVIDENCE. TH E BOOKS OF ACCOUNTS WERE DULY AUDITED BY A QUALIFIED CHARTERED A CCOUNTANT. IT WAS FURTHER SUBMITTED THAT NO PENALTY U/S 271(1) ( C ) IS LEVIABLE IN A CASE WHERE THE ADDITION IS MADE WITHOUT ANY EVIDENCE OR MA TERIAL ON RECORD TO SUBSTANTIATE THE ADDITION BECAUSE AT ANY STAGE THERE I S NO FINDING ON RECORD THAT THE ASSESSEE HAD CONSCIOUSLY AND WILLFULLY CONCEA LED THE INCOME OR PROVIDED INACCURATE PARTICULARS OF INCOME. 4. THE AO REJECTED THE AFORESAID EXPLANATION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FAILED TO RECONCILE THE RECEI PT AS PER TDS IT(SS)A NO. 08/RJT/2012 3 CERTIFICATE AND THOSE REFLECTED IN THE BOOKS OF ACCOUNT. THEREFORE, HE HAS COMMITTED A DEFAULT WITHIN THE MEANING OF SECTION 271 (1)( C ) OF THE ACT. THE AO ACCORDINGLY LEVIED THE PENALTY OF RS.67,374/- BEING 100% OF TAX SOUGHT TO BE EVADED ON UNDERSTATEMENT OF INCOME TO TH E EXTENT OF RS.2,13,887/- WHICH IS ALSO UPHELD BY THE TRIBUNAL IN I TS ORDER DATED 1.4.2010. 5. THE LD. CIT(A) IN THE IMPUGNED ORDER DATED 2.3. 2012 CONFIRMED THE PENALTY OF RS.67,374/- LEVIED BY THE AO ON THE GRO UND THAT DIFFERENCE BETWEEN TRANSPORT INCOME AS PER TDS CERTIFICATES AND T RANSPORT INCOME AS SHOWN BY THE APPELLANT IN THE BOOKS OF ACCOUNT REMAI NED UNRECONCILED, THEREFORE, REPRESENTS THE CONCEALED INCOME OF THE ASSESSE E. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEA L BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, BEFORE US, ON BEHALF OF T HE ASSESSEE SHRI KALPESH DOSHI AND FILED A PAPER BOOK CONTAINING 54 PA GES WHICH INTERALIA INCLUDE THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT (A), COPY OF ACCOUNT OF M/S UNIQUE SHIPPING SERVICES FOR THE ASSESSMENT YEAR 2003-04, COPY OF ASSESSMENT ORDER. HE POINTED OUT THAT ON RE-IMB URSEMENT OF EXPENSES ALSO THE PAYER HAS DEBITED THE TDS WHICH RESULT ED IN DIFFERENCE OF TRANSPORT RECEIPT AS PER THE TDS CERTIFICATE AND AS R ECORDED IN THE BOOKS OF ACCOUNT TO THE EXTENT OF RS.2,13,887/-. HE SU BMITTED THAT NO INCOME ELEMENT IS INVOLVED IN RE-IMBURSEMENT OF EXPENS ES AND FOR THIS REASON, RE-IMBURSEMENT OF EXPENSES ARE NOT RECORDED IN THE BOOKS OF ACCOUNT. HE SUBMITTED THAT THE ASSESSEE HAS NOT CONCEALED A NY PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271 (1)( C ) OF THE ACT IT(SS)A NO. 08/RJT/2012 4 AND THE BOOKS OF ACCOUNT ARE AUDITED, TDS CERTIFICATES A RE DULY VERIFIED BY THE AUDITOR AND THEREFORE, PENALTY TO THE EXTENT OF RS.67,374/- LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT(A) IN THE IMPUG NED ORDER BE CANCELLED. AS AGAINST THIS, SHRI AVINASH KUMAR, THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). 7. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN PARAGRAPH 4 OF THE ASSESSMENT ORDER, THE AO HAS STATED THAT THERE IS UNDERSTATEMENT OF TRANSP ORT RECEIPT TO THE EXTENT OF RS.7,63,794/-. THE TOTAL TRANSPORTATION I NCOME AS PER THE TDS CERTIFICATES IS RS.2,39,82,539/- WHEREAS THE ASSESSEE ACCOUN TED FOR TRANSPORT RECEIPT AT RS.2,32,18,745/-. THE AO ASKED TH E ASSESSEE TO RECONCILE THE FIGURE BUT BEFORE THE AO THE ASSESSEE COUL D NOT RE-COUNCIL THE SAME. ON FURTHER APPEAL, THE LD. CIT(A) RESTRICT ED THE ADDITION OF RS.7,63,794/- TO RS.2,13,887/- FOR THE DETAILED REASO NS GIVEN IN PARAGRAPH 4.3 AT PAGE 4 IN ITS ORDER DATED 30.11.2009 WHICH RE ADS AS UNDER (IN QUANTUM APPEAL) : 4.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE L D. COUNSEL AND ALSO GONE THROUGH THE FINDING OF THE AO RECORDED ON THE ISSUE UNDER CONSIDERATION. THE LD. COUNSEL HAD ADMITTED T HE RECEIPTS AS PER TDS CERTIFICATES AT RS.2,39,82,539/- AND FOR RS.2, 32,18,745/- AS DISCLOSED TO THE DEPARTMENT AS CORRECT. THE CLAIM OF T DS WAS ALSO MADE AS PER THE TAX DEDUCTED AT SOURCE ON THE RECE IPTS RS.2,39,82,539/- AS GIVEN IN THE TDS CERTIFICATES. HOW EVER, IT WAS EXPLAINED THAT THE DIFFERENCE OF RS.5,49,807/- WAS ON ACCOUNT OF THE FACT THE APPELLANT HAD BOOKED THESE RECEIPTS IN T HE SUBSEQUENT YEAR. SINCE, THE RECEIPTS OF RS.5,49,807/- HAVE BEEN CONSIDERED AS RELATING TO THE YEAR UNDER CONSIDERATION, THE DIFFERE NCE TO THIS EXTENT STANDS VERIFIABLE. THE LEARNED COUNSEL HOWEVER, COULD NOT EXPLAINED THE DIFFERENCE OF THE REMAINING AMOUNT OF RS.2,13,887/- (RS.7,63,794-RS.5,49,807). NO ANY DETAILS OF EXPENSES RELATING TO THESE UNVERIFIABLE RECEIPTS OF RS.2,13,887/- WERE GIV EN. EVEN, IT WAS NOT POSSIBLE ALSO. WHEN THE THERE IS NO EXPLANATION FOR THE RECEIPTS OF RS.2,13,887/-/- HOW CAN THERE BE THE EXPLA NATION FOR THE EXPENSES. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION IS IT(SS)A NO. 08/RJT/2012 5 RESTRICTED TO RS.2,13,887/- ONLY. THE THIRD GROUND OF APPEAL IS ACCORDINGLY PARTLY ALLOWED ON FURTHER APPEAL, THE TRIBUNAL UPHELD THE ACTION O F THE LD. CIT(A) CONFIRMING THE ADDITION TO THE EXTENT OF RS.2,13,887/ -. 8. FROM THE PERUSAL OF THE REASONS RECORDED BY THE L D. CIT(A) IN QUANTUM APPEAL IN PARAGRAPH 4.1 (SUPRA) IT IS EVIDENCE THAT THERE IS NO EVIDENCE OF INCURRING ANY EXPENSES RELATING TO UNVERIF IABLE RECEIPTS OF RS.2,13,887/-. UNDER THESE CIRCUMSTANCES, IN OUR CONSIDE RED OPINION, PENALTY ON THE ADDITION TO THE EXTENT OF RS.2,13,88 7/- CONFIRMED UP TO THE LEVEL OF TRIBUNAL IS RIGHTLY LEVIED AND CONFIRMED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. WE, THEREFORE, DECLINE TO INTERFERE IN THE REASONED ORDER OF THE LD. CIT(A). 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSE D. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( B.R.JAIN) (T. K. SHARMA) # / ACCOUNTANT MEMBER # /JUDICIAL MEMBER -/ ORDER DATE 12.2012. /RAJKOT SRL IT(SS)A NO. 08/RJT/2012 6 / / / / 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-, 2. / RESPONDENT- 3. 5 / CONCERNED CIT. 4. 5- / CIT (A). 5. / , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.